John Mbadi is right: if the law is not there, Parliament can make one. However, he misconstrues that power; while he thinks that Parliament is supreme, when it comes to the declaration of whether a law is constitutional or not, it is the High Court that has the final say subject, of course, to the appeals process through the Court of Appeal at the Supreme Court. Kenyans have had a very difficult relationship with the last three parliaments; the elected representatives' insatiable desire for more and more of the Nnational treasure has made them a menace when it comes to the knotty probvlem of setting their pay-and-perks.
Let us not get carried away, though, by the arguments and counterarguments in this debate; let us instead question the entire rationale for a well-remunerated elected body such as Parliament or the 47 county assemblies that we wisely, or unwisely, agreed to in 2010. Let us begin this disquisition with the cost of getting elected in Kenya. It is not cheap. Therefore, whether one was an incumbent or a newcomer, the amount of money that one would have to spend to be elected or to retain their seat is colossal. The elected representatives would argue that they must be allowed to recoup their "investment" through their salaries and retirement benefits, otherwise they would lives of penury in payment for their life of service to their constituents.
While it is a reasonable argument, it is fallacious. For them to be elected, they had to spend large sums. They must have raised those large sums from somewhere. When they are eventually elected, they do not shut down the sources of the funds that they used for their campaigns, unless, of course, those sources were unlawful, in which case they should not have been elected in the first place. Despite their howls of protest, very few MPs can claim that their salaries-and-remuneration is the only source of income they enjoy. They, or nearly all of them, run businesses and consultancies that net them much, much more than they claim from the National Treasury.
From a constitutional perspective, even Mithika Linturi's arguments are without merit. The parliamentary committee that adopted the report on the SRC Gazette Notices did not even bother to read the law on the matter; the power of the SRC to set the pay of State officers is not fettered by niceties such as Gazette Notices or the like. All statutes that were in existence before the promulgation and ratification of the Constitution in 2010 stood ultra varies to the extent of their inconsistency with the Constitution on the effective date, including the existing law on the salaries, remuneration and retirement benefits of elected representatives. The SRC did not purport to invalidate statute; statute had already been invalidated by the Constitution!
We have diagnosed the problem, and hypocritically, we have absolved ourselves of all blame. This author has consistently warned against buck-passing by the electorate of Kenya. In this instance, we must insist that Kenyans take full responsibility for the quick-fingered, five-fingered-discount-loving MPs that we call the Eleventh Parliament. As late as October 2012, it was quite apparent that if even one-quarter of the members of the Tenth Parliament succeeded in persuading their constituents to send them back to Nairobi, all the prayers in the world would be in vain. Those estimates were wildly off the mark. Justin Muturi and Ekwe Ethuro, the speakers of the National Assembly and the Senate respectively, are presiding over the most difficult parliament ever. Aden Duale, for Jubilee, and Francis Nyenze, for CORD, in the National Assembly lead a group of elected representativs used to getting their own way regardles of the consequences. On the question of their pay-and-perks, Jubilee and CORD sing from the same song-book without a discordant note between them. But the person to blame for the state of affairs is the one that elected the same lot expecting a different outcome.
When Aden Duale responds to our accusations of thievery and greed by calling us thieves and greedy pigs, he is not far off the mark. Were not many voters bribed during the elections without bothering to report the election offenses? Were not many voters involved in the commission of even greater election offenses such as voter intimidation? Were not many voters choosing their representatives based on their tribe or clan, rather than their party's manifesto or track record in public service? Are we not being hypocritical today demanding probity and integrity when these qualities mattered not when we were casting our ballots? Shouldn't we just let the elected representatives steal from us until there is nothing left? Deep down we know that we wanted them to do so. We just won't admit it.