On the National Assembly's Attempt to Redefine 'State Officer' to Exclude MPs

Posted by on 17th September 2013

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Since the promulgation of the constitution three issues have been particularly contentious, and more for Parliamentarians than for the public. These are the issues of MPs salaries, MPs paying taxes, and the standard of leadership and integrity required of state officers. While the public have pushed for a following of the constitution with regard to these issues, the National Assembly seems to be pulling in the opposite direction.

Yet the constitution is clear on these issues: Chapter 6 sets the bar for leadership and integrity for State Officers.

With regards to taxation of members of the National Assembly the constitution requires all State Officers to pay taxes stating, “no law may exclude or authorise the exclusion of a State Officer from payment of tax Article 210 (3).

On the MPs salaries, Article 230 (4) (a) of the constitution removes from the members of the National Assembly the mandate of setting their own salaries and transfers it to the Salaries and Remuneration Commission (SRC); requiring the SRC “to set and regularly review the remuneration and benefits of all State officers.

Members of parliament in both this and last administration have fought and continue to fight these requirements. The last parliament watered down the standards of leadership and integrity in the Leadership and Integrity Act and the current National Assembly refused to adhere to the new salary scale set by the SRC.

Most recently Ruaraka MP, Otieno Kajawang, has introduced a bill to amend the constitution to exclude Parliamentarians from the constitutional definition of State Officers.

One wonders if this will mean that MPs will no longer be constitutionally bound by the requirements of leadership and integrity that applies to state officers. Will they be free from the provision that requires all state officers to pay tax? And will Parliamentarians be able to set their own salaries? Seeing as they will no longer be defined as State Officers

The Preamble to the bill states that the, “bill is informed by the need to uphold the doctrine of separation of powers between the various arms of government [the Legislature, Judiciary, and Executive]…by including all the officers of these three arms of government under the definition of State Office, it compromises their independence.”

This logic is flawed on several levels firstly all the above are State Officers i.e. they perform functions of the State, secondly I am sure the public can easily differentiate by title which State Officer belongs to which State Organ. It is highly unlikely that a member of public will mistake a member of parliament for belonging to the Judiciary, or a member of the Judiciary, say a Judge, for belonging to the Legislature. Finally it is difficult to see how calling State-Officers by the name that relates to their function compromises their independence.

The above not withstanding there exists wider questions with regards to what the passage of such a bill would mean for supremacy of the constitution and what this means for the future of the constitutional implementation.

If Members of the National Assembly do not like provisions of the constitution will they just make legislation to make the provisions null and void?