Kenya: Marende Right On MPs’ Taxation

Nairobi Star (Nairobi)

Pharis Kimaru

21 July 2011

opinion

The issue on whether MPs are exempted from paying tax has captured the media headlines for a considerable length of time and engendered such intense and emotive “take-no-prisoners” debate. Amidst the fog of the debate, the truth has been taken casualty.

The written opinion by Attorney General Amos Wako who is the Principal Government Legal Advisor has been ignored. The opinion by the Attorney General was fully accepted by Deputy Prime Minister and Minister for Finance and the Commissioner General of Kenya Revenue Authority in July last year. This was a subject of two Kamukunji’s (MPs informal meetings) that was attended by President Kibaki and Prime Minister Raila Odinga before the August 27, 2010 referendum.

What needs to be asked now are: Did the Attorney General mis-advice Parliament as a whole? Did he mis-advice the President and the Prime Minister? Has Kenya Revenue Authority and Ministry of Finance which had endorsed the opinion then changed position? Why did it take 10 months for KRA to allegedly implement the tax provisions on MPs? Was the change of position by KRA motivated by any other consideration? Did it have a grudge to settle with MPs? It is only in having candid answers to these questions that we can move forward as a country to implement the Constitution.

We expected people like Makau Mutua, a Professor of law, to understand the Doctrine of Estoppel instead of blindly attacking the person of Speaker Kenneth Marende. The doctrine precludes a party from bringing an action when the party knowingly failed to claim or enforce a legal right at the proper time. We expect Prof Mutua to respect the person of the Speaker and the institution of Parliament because under his stewardship, Parliament has earned remarkable respect and showed transformational, progressive leadership.

MPs have a letters of employment. They got that letter in January 2008 after rigorous campaigns with knowledge of their emoluments. Their arrangement unlike other Kenyans was different. Their allowances according to the National Assembly and Remuneration Act was exempt from taxation. However, they pay tax on their salary of Sh200, 000. Their allowances are exempt from taxation. The 10th Parliament did not enact this law; it has been operational since 1975. Neither has the 10th Parliament increased a penny of its salary.

Those who say this Act is not superior to the constitution are right, the constitution is the supreme law but until this law is repealed or amended to align it with the constitution, it remains the law. Promulgation of the Constitution didn’t mean that existing statutes and laws became obsolete. And which law applies retrospectively?

Who out there would accept his salary to be reviewed downwards midterm? MPs have not refused to pay additional taxes. Hon Marende is on record as saying this but this has been shunted aside by those who want cheap publicity and populism. The Speaker’s view which l quote is: “My stand has always been that we uphold the rule of law. I want to state clearly that I believe that the provisions of the Constitution and legislation related to taxation should be applied to the letter and that if MPs are lawfully liable to pay additional tax they should do so in accordance with the law.”

The Speaker is a creature of order and a slave of the law. He is not bound to the law only while on the chair but also in the administration of Parliament.

The Speaker is being demonized for an opinion which is erroneously viewed as shielding MPs from paying additional tax. By stating his position in regard to payment of additional taxes he has not diminished himself or lost his wisdom as most allege. He has only been brave to stand publicly on a subject he knows is unpopular in the court of public opinion. It’s a mark of leadership. History is replete with popular leaders engaging the public in a subject that isn’t popular with them. Who says the majority are always right?

All MPs played their role in passing the Constitution and they cannot be said to be its saboteurs now. Why have those who are demanding MPs pay additional taxes not push for the one third gender parity provision in the Constitution? After all just like article 210 it is not expressly delayed in the schedules. And are we saying departments or institutions which do not fulfill this requirement are illegally constituted? Why do the same voices not also talk about tribal imbalance in the civil service and all the rest of the skewed resource allocation disparities that bedevil our country, and its citizens? Hon Marende is being crucified for doing what he has done since 2008 -looking to the law for guidance.

Kimaru is a communications consultant and commentator on topical issues

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