8/6/2019 cic 4

1/5

1

COMMISSION FOR THE IMPLEMENTATION OF THE CONSTITUTION

DELTA HOUSE, WAIYAKI WAY WESTLANDS

P. O. BOX 48041-00100

Tel. No: 0202323510, 0204443216, 0732000313,

Email: manager@CICKenya.org , info@CICKenya.org, cickenya2010@gmail.com

CIC/CONF./2/3VOL.I/27 8th

July, 2011

Amb. Francis K. Muthaura, EGH

Permanent Secretary, Secretary to

the Cabinet and Head of Public Service

Office of the President

Harambee House

NAIROBI

Dear

REMUNERATION PACKAGE FOR THE CHAIRPERSON AND COMMISSIONERS OF

CONSTITUTIONAL COMMISSION FOR THE IMPLEMENTATION OF THE

CONSTITUTION

Thank you for your letter Ref.OP.CAB.17/125A of 7th July, 2011 the contents of

which the Commissioners of CIC have noted.

Whilst the Commission reserves its position on the next action to take in the

circumstances, and which position will be communicated presently both to your

office and to our ultimate employers, the people of Kenya, we wish at this stage

to respond to your letter as follows:-

1. The Commission for the Implementation of the Constitution is anindependent constitutional Commission which is governed by the

provisions of The Constitution of Kenya, 2010, as well as The Commission

For The Implementation Of The Constitution Act, 2010.

2. In your said letter, you refer to your Circular Ref.OP.CAB.2/23A of 25th May2010, as directing among others, that newly constituted Commissions

CI

8/6/2019 cic 4

2/5

2

and Independent Offices will adopt the salary structure given in the

Constitutional Offices Remuneration Act, 2009 while awaiting the setting

of Salaries and Remuneration Commission.

3. With respect, to the extent that your Circular purports to so direct asregards the terms and conditions of service of Commissioners of CIC,

including the salaries and allowances of the Commissioners, it is a nullity

and of no legal effect, in the face of the clear provisions of Section 17(1) of

The Commission For Implementation Of The Constitution Act, 2010, which

provides as follows:-

The salaries and allowances payable to, and other terms and

conditions of service of the chairperson and the members shall,

pending the establishment of the Salaries and Remuneration

Commission, be determined by the Public Service Commission in

consultation with the Treasury.

4. The Commission accepts, appreciates and lauds the responsibility of theGovernment to ensure that public resources are applied prudently. Such

purported prudence however, or any policy on which the same is derived is

unsustainable without constitutional or legal foundation. In particular, nosuch policy can be valid where it purports to contradict the unequivocal

provisions of the law. To state therefore that ultimate responsibility

includes pay and benefits applicable to all levels of employees in the public

service, including constitutional office holders, in complete disregard of

the clear statutory provisions, is false as a matter of law.

5. It is a matter of fact, that, pursuant to their statutory obligation, The PublicService Commission (in consultation with Treasury) already determined theterms of service of the Commissioners, and communicated the same to the

Commissioners. In their turn, the Commissioners already accepted the

terms. What remains since such acceptance, is effecting of the same. That

too is underway, in that Treasury and The Minsitry of State for the Public

8/6/2019 cic 4

3/5

3

Service have confirmed in correspondence that the process of effecting

payment to the Commissioners of the arrears done to them, is underway.

It is with respect, legally untenable therefore, that the terms having been

determined by the offices mandated by law, any other office, notwithstanding theseniority in the public service structure, can purport to reverse or resist that

process.

We also note that the statement that The Public Service Commission is expected

to exercise this responsibility within prevailing Government Policy and it is

therefore expected to consult the relevant agencies of Government that have the

mandate of providing guidelines on Pay Policy, runs perilously close to violating

Article 249(3) of The Constitution.

In your letter, in purported justification of the Circular referred to above, you

state that the current salary structure for constitutional office holders as

approved by the Cabinet and Parliament would be a rational basis on which to

start off the office holders in the new Commissions and that it should also be

clear to all concerned that this is an interim measure to facilitate payments to the

new office holders while awaiting determination of their pay and benefits levels

by the Salary and Remuneration Commission as provided by the Constitution.

This is a curious statement!

It is precisely because of the necessity for an interim measure pending the

Salaries and Remuneration Commission, that Parliament in its wisdom, included

the clear and unequivocal provisions of Section 17 of the CIC Act 2010. In any

event, and again with respect, it is simply untenable that The Constitutional

Offices Remuneration Act, 2009, can have any application to the Commissioners

of CIC. Apart from the fact that, as stated above, the CIC Act has its own clear

provisions, the 2009 Act is specific in terms of the constitutional offices to whomit applies. They do not include independent constitutional commissions

established under the Constitution of Kenya, 2010. They certainly do not include

CIC Commissioners.

The two penultimate paragraphs of your letter are curious in that:-

8/6/2019 cic 4

4/5

8/6/2019 cic 4

5/5

5

Copy to:-

Hon. S. Amos Wako, E.G.H, F.C.I.Arb, S.C, M.P

Attorney-General

The State Law Office

Attorney-Generals Chambers

NAIROBI

Mr. Titus J. K. Gateere, CBS, MBS

Chairperson

Public service Commission (K)

NAIROBI

Mr. Joseph K. Kinyua, CBS

Permanent Secretary/Treasury

Office of the Deputy Prime Minister and

Ministry of Finance

NAIROBI

Mr. Titus M. Ndambuki, CBS

Permanent Secretary

Ministry of State for Public Service

Office of the Prime MinisterNAIROBI

Amb. Amina C. Mohamed, CBS

Permanent Secretary

Ministry of Justice, National Cohesion and

Constitution Affairs

NAIROBI