BY Mwendwa Chuma
“Get up, stand up; stand up for your rights. Get up stand up; don’t give up the fight!” – Bob Marley, Singer
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Arecent ruling of the High Court in Petition No. 296 of 2016 awarded Members of County Assemblies an eye-watering Sh4.2 billion of our hard earned and reluctantly remitted taxes for what the court termed as “losses for the 8 months they will not be in office”. The rationale was that the MCAs were entitled to serve for five years, and that the period between the date of the last general elections (4th March 2013) and the forthcoming general elections slated for the 8th of August 2017 takes away 8 months.
The good judge, Edward Muriithi, in his considered ruling, stated that since there was a contradiction between Article 177(1) and (4) as regards the term in office of the MCAs, the remedy would be to award them for the salaries and emoluments for the period excised from their “full” term of office. Paragraph 31 of the ruling correctly holds that to make a determination that the elections of county assemblies are to be held separately from those of the other representatives – President, Governors, Senators and MPs – would lead to constitutional chaos. To then make a finding that the MCAs are the only group of representatives who constitutionally serve a fixed term would by logical consequence be paradoxical, and leads to nothing but absurdity.
It is curious that no mention was made of the transitional provisions of the Constitution, and specifically Part 3 on Elections, where in Section 9(1) it provides, “The first elections for the President, the National Assembly, the Senate, county assemblies and county governors under this Constitution shall be held at the same time, within sixty days after the dissolution of the National Assembly at the end of its term”(emphasis mine). It is self-evident that the framers of our Constitution did not envisage a situation in which the elections for county assemblies would be held separately from those of the other representatives.
The date of the second general elections under the Constitution was never a secret, and as specifically stipulated in the ruling in John Harun Mwau vs. The Attorney General and 2 others (2012) eKLR: “Whichever date the first elections are held on, the next elections must be conducted on the second Tuesday of August of the fifth year from that date. Hence the term for the next President, Members of Parliament, Governors and Members of County Assemblies may be shorter than five years as a consequence of the Transitional Provisions.”
To disregard the import of that judgement in a matter that brings the issue of the term of office of our MCAs into stark reality is to do a great disservice to the people of Kenya. The essence of that ruling raises important questions that need to be answered within the context of constitutionality. First is the consequence that the taxpayer is burdened with a tab for services not rendered which in and of itself is bad enough, but on the other hand is that the taxpayer would essentially have to pay salaries to two sets of representatives after the elections in August. Let me take the argument a step further and introduce MCAs who will be reelected to their respective wards. This ruling results in an onerous burden being laid upon the proverbial donkey, aquus africanus asinus. A delicious paradox if you ask me, where the law is being an ass and the burden of its impugned act being to overburden another ass – wanjiku.
In this unfortunate case for the defence of wanjiku we had the normally able officers from the State Counsels office, acolytes of the good Attorney General, Dr Githu Muigai.
Unfortunately it appears that on the day of the drafting their defence and on the hearing the good officers were either on a go-slow or it was abdicate-our-responsibility day. The state counsel handling the matter seemed to have passed the buck onto the office of Sarah Serem, our stalwart defender at the Salaries and Remuneration Commission. It is telling that there has been no appeal filed either against the ruling of Justice Muriithi nor has there been a constitutional application praying that the award to themselves of the severance package by our Members of Parliament in the Appropriations Act 2017 be found unconstitutional. The National Assembly has, through the Appropriations Act 2017, awarded themselves a “severance” in similar terms, to jump onto what is obviously the biggest gravy train of recent times.
One would be forgiven to surmise that there is a conspiracy by the relevant offices and the bearers thereof to raid the public coffers at the public’s expense.
I submit that both the Appropriation Act 2017 and the ruling by Justice Muriithi have infringed the rights of the citizens as recognised under Article 46 on consumer rights in so far as they purport to award our representatives a severance package for services not rendered. Justice Muriithi even took cognizance of the fact that the public “may feel aggrieved” by his award of the amounts in question to the MCAs for “services not rendered”.
We are in trouble when a judicial officer finds for the plunder of public resources in an attempt to sate the appetites of our political elite for anything not nailed down. We are in unchartered waters when the said decision is justified as being guaranteed under the Constitution. The judiciary ordinarily ought to be the gatekeepers of public interest; the sentinels who never slumber. In this case, however, it would appear that the sentinel abandoned his post and let all manner of plunderers free ingress to the inner sanctum.
This act of unbridled disloyalty, for such it is, must not be allowed to go unchallenged. And if the courts have abdicated their duty, it falls upon the common mwananchi to take up arms, figuratively, against the avarice of our so-called waheshimiwa. We must reject any further indecent attempts to take liberties on our genteel selves.
The good news is that the said actions are not only against the spirit, but also against the naked letter of the Constitution. Article 201(d) of the Constitution demands that public money be used in a prudent and responsible way. In other words, “Hii sio pesa ya mama yako, ni yetu!” To coin a phrase beloved by civil society activists this should be a case of “punda amechoka!” or to quote our current President when he was the Minister for Finance under the Grand Coalition government, “Can’t pay, won’t pay!” If we cannot trust the government through its offices to look out for our interests then we must exercise our inalienable rights under the supreme law and determine, either through our representatives or directly, our opposition to the kind of liberality, with the public purse, that was exhibited by the good judge.
Separation of powers
The decision also attracts criticism in that the good judge must be aware that Article 206 of the Constitution requires that the National assembly ratify, as it were, any withdrawal from the Consolidated Fund. Further, in the event that there is a Contingency Fund as envisaged under Article 208, it would still require an Act of Parliament to authorise any withdrawals therefrom. Essentially, the ruling by Justice Muriithi places the Judiciary on an inevitable collision course with Parliament. In a democracy like ours, where every arm of government is straining at the proverbial leash to prove its muscles to the other(s), it does not bode well for wanjiku because in this era of horse trading we, the people, might end up with a tab. One would be forgiven for thinking that there is a competition between the various arms of government to see who can appropriate more of our tax billions than the others oblivious of the hardships that are bound to be faced by the citizenry.
I take full cognizance of the Contempt of Court Act 2016 and the provisions therein with regard to questioning or lambasting decisions of the court but I am of the opinion that the criticism of a judicial decision made in good faith finds protection under Article 33 of the Constitution. In other words, where Statute meets the Constitution in a disputation, the Act must make way for the supreme law of the land.
I also write this article as a lawyer because, of late, there seems to be a conspiracy of silence within the legal profession that has allowed acts of injustice to be the new normal. How far we have fallen as a profession that has sworn to protect the Constitution. We have the big shoes of such legal greats as former Chief Justice Willy Mutunga SC, Senior Counsel Pheroze Nowrojee, Senior Counsel Gibson Kamau Kuria, Senior Counsel James Orengo and others of that ilk, who did not hesitate, even at the risk of deprivation of their personal liberty, to lend voice to the clamour for justice. We must strive, in these times and especially in this new Constitutional dispensation, to fight for the common good.
Writer is Advocate of the High Court