Big blow to MCAs as court upholds ban on sitting, retreat allowances

Members of the County Assembly (MCAs) have suffered a blow after the High Court upheld a decision by Salary and Remuneration Commission (SRC) to scrap-off sitting and retreat allowances.

The scrapped allowances applied to both public officers in both National and County Governments.

SRC said that after comprehensive evaluation of the roles, responsibilities, remuneration and benefits for all state officers, it was evident that the nature and scope of responsibilities of MCAs involved sitting in the plenary sessions and did not qualify for sitting allowances.

According to SRC, the tasks undertaken in retreats, internal committees and internal task forces were in furtherance of MCAs core business.

ALSO READ: SRC freezes salary review for all public servants 

As such, SRC said that additional sitting allowances in addition to the gross monthly remuneration package would amount to double compensation.

MCAs from Meru County had filed a petition seeking to overturn SRC's decision to scrap off the allowances. 

However, Justice Onesmus Makau uphled SRC' decision that scrapped off retreat and sitting allowance for members of institutional internal committees and task force allowance to members of internal institution task forces. 

Justice Makau held the SRC position that the allowances amounted to double compensation as it was in addition to the basic salary.

"I find that there was basis for scrapping the said allowances and the circulars communicated the same, namely, that the allowances amounted to double compensation to the concerned officers," said Justice Makau.

SRC issued three circulars dated August 7 2023 to all the accounting officers in three arms of Government, parastatals and other public entities in regards to a review and advice on allowances in the public service.

The circular also provided a Schedule of Daily subsistence Allowance (DSA) payable on both local and foreign travel for all state officers in both National and County Governments, and public officers.

However, the circular banned payment of DSA for locations within 50KM radius of the officer’s duty station.

In the circular, dated November 7 2023, SRC proceeded to grade County Assembly Speaker as job grade E4, Deputy Speaker job grade E1, Leader of Majority and Minority job grade D5, while MCA were in job grade D4 same as External Member of County Assembly Service Board.

However, the MCAs in their petition accused SRC of demoting them from job grade 5 (equivalent to job group P in civil service) to Job grade D4 (equivalent to job Group N in the Civil service).

The MCAs said that the demotion has adversely affected their welfare as their benefits have been lowered from their previous earning and further there is no provision given for any allowances on foreign travel.

The MCAs further faulted the removal of sitting allowances for internal institutional committees and task forces terming the review unfair, unreasonable, unjustified, oppressive, unlawful and manifestly unconstitutional.

The MCAs said the demotion was done unilaterally without due process and justification as their role of representation, legislation, and oversight under Article 185 of the Constitution and the applicable statute has not changed.

They said it is unlawful to change the terms of service and benefits in the tenure of their term and termed the demotion as discriminatory since other equivalent positions in the public service were not demoted and their terms of service reduced.

They accused the SRC of violating Article 10,27 (1)(2)(3)(4) and 47 of the Constitution and undermining the provision of services and the realization of the objectives of devolution contrary to Article 73 of the Constitution.

In their reply, SRC maintained that the role of MCA had consistently been evaluated and graded at Job Grade D4 over the years and at no particular time has it been elevated to Job Grade D5.

SRC said that DSA is a facilitative allowance and the same amount may be paid across a number of job grades as it happens in Job Grades D4, D5, E1 and E2 (Job group P, Q, and R).

The salaries regulator said the same DSA happens to Job Grades E3, E4 and E5 (Job Groups S and T) and also in Job Grade F1 and F2 (Job Group U and V) respectively.

SRC maintained that its circulars dated December 18 2014 never changed the grading for MCA to D5 but merely harmonized the DSA rates for MCA with those of officers in Job Grade D5 (Job Group P).

It said that as such, the MCA retained job grade D4 but became entitled to the same DSA with officers in Job Grade D5.

SRC said that all MCAs countywide were placed on an allowance of sh14,000 same as all state officers after it was corrected from sh.11,200 meant for lower job group N.

READ: Court rules SRC has say on public officers salaries

SRC denied that it failed, without justification, to approve payment of Non-practicing allowance to professionals in the County Assembly public service when it approved payment to their fellow professionals in the County and National Government public service who are rendering similar services.

In his verdict, Justice Makau said that the MCA failed to provide any evidence to prove that they were demoted from Job Grade D5 to D4 by SRC.

"On the contrary, I hold that there is evidence to prove that the role of MCA has consistently been graded D4 in the SRCs 1st, 2nd and 3rd review cycle and the County Assembly Forum welcomed that grading in all its correspondences cited above," said Justice Makau.

The judge said that consequently, the MCAs did not suffer any loss or violation as a result of the said circular.

The judge said there was no evidence to show SRC failure to approve payment of Non-practicing allowance for professionals in the County Assembly public service
without any basis or justification.

"Having considered the material before the court, I find that the petitioner (MCA) have failed to prove by evidence that the respondent (SRC) has by the impugned circulars violated the Constitution and the rights of the petitioner’s members," said Justice Makau.

The judge said that it was not proved that SRC has refused to approve payment of non-practicing allowances to professionals in the County Assembly public service without any basis or justification.