This is no longer noise in some opposition circles but every indication now is we are headed to a showdown in Parliament to test if Ruto has the votes to block or defeat his impeachment.
The first salvo is fired by bringing up a motion in the National Assembly supported by one-third of all members, or 116 MPs. A motion to impeach Ruto has been drafted and is currently supported by 106 members (see below).
It is curious the draft motion is circulating with only 106 members as one would think the movant would want to have the requisite one-third of the members before having it leaked for public consumption or support but I am sure they have their reasons, probably believing they only need 96 votes, which is theoretically possible but I doubt that’s the reason.
Be that as it may, impeachment showdown is looming and those baying for Ruto’s impeachment and removal can smell victory and thus this escalation in the efforts.
The motion, if brought up in the National Assembly will require two-thirds approval by all members to proceed to the Senate where the impeachment must be upheld by two-thirds majority there as well.
Not an easy task in both cases, to say the least, but it is also entirely possible, especially given recent developments that show Ruto does not have the numbers in supporters we thought he has in Parliament.
Prime Minister Raila Odinga paid his tax bill publicly a few days ago and did so in order to put pressure on other MPs to do the same thing, especially given almost all MPs are hunkered down in their position they don’t have to pay the taxes. A couple of other MPs, including Peter Kenneth also paid their taxes at the same time and a couple other have paid since. Kibaki apparently paid his, quietly.
Should the PM have paid his taxes quietly, too?
A number of the usual suspects have gone on attack, condemning the Prime Minister’s action as a self-serving publicity stunt.
What the PM has done, however, is leadership by example and, despite what naysayers say, it is a commendable act.
Now, let all the other MPs follow his lead in paying their taxes rather than stalling as they are.
I address each of these bogus accusations against the PM and his publicly paying of his taxes below but let me first address the legal questions in the issue.
The question of MPs paying the taxes as the taxman (KRA) has demanded, simply boils down to this:
Should MPs who were elected with a law in the books exempting them from paying certain taxes, now be forced to pay the taxes under the new constitution, even though legislation to operationalize the provision that removes the exemption in question, is yet to be passed and signed into law?
Put another way, should the MPs be forced to pay taxes mid-stream, before the end of their term or even before all the regulations and procedures are in place to collect and pay the taxes to KRA?
This is a valid legal question, whose answer shall determine whether the MPs of the 10th Parliament are required to pay taxes as the taxman demands, or not.
There is no dispute, however, that MPs of the 11th Parliament will be required to pay, regardless of how the courts rule on this issue regarding the 10th Parliament.
As noted above, the question is whether sitting MPs in the current 10th Parliament should be required to pay the taxes or wait until after legislation is passed to require them to do so, or until after the new elections, whichever occurs first.
The relevant provision in dispute, is Article 210, which provides in pertinent part,
(1) No tax or licensing fee may be imposed, waived or varied
except as provided by legislation.
(3) No law may exclude or authorise the exclusion of a State
officer from payment of tax by reason of—
(a) the office held by that State officer; or
(b) the nature of the work of the State officer.
MPs have always paid taxes on their basic salary; however, until the new constitution was passed, their allowances, which amount to close to Ksh1 million each month, were exempt from taxation, meaning, MPs did not have to pay taxes on these allowances.
By removing this exemption from payment of taxes on allowances, which is exactly what Article 210(3)(b) cited above does, the new constitution essentially imposes a new tax on MPs.
Under Article 210(1) cited above, however, “No tax or licensing fee may be imposed …except as provided by legislation,” thus the MPs argument they cannot be forced to pay the new taxes when there is no legislation on the books operationalizing the provision.
Very clever argument, especially when it’s Parliament itself that must pass the legislation!
On the other hand, there is a generally accepted principal in law that laws are not supposed to be ex post facto, meaning, laws should not be passed that punish or alter status of something or conduct that has already occurred.
MPs of the 10th Parliament were elected in 2007 and were sworn in January 2008. At the time of swearing, every MP was assured by the law existing at the time that their allowances will not be and accordingly relied on that assurance in making decisions, including what repayment based financial obligations and liabilities to incur.
Things changed midstream, however, with passage of the new constitution, which erased the tax exemption that existed at the time they were sworn in therefore they are arguing this law on their tax exemption should not apply to them until they finish their term.
Strictly as a matter of law, MPs making these arguments are on solid ground and the court may ultimately rule in their favor.
As a matter of public mood, however, the words “do not vote for me” are written all over the face of any MP who attempts to make that case to his or her constituents.
The better thing to do, thus, is for these MPs to pay the taxes as the PM and a handful other MPs have done.
Having paid his taxes, rather than wait for the matter to be resolved one way or another by either Parliament or the courts, one would expect everyone to commend the PM for doing the right thing.
One would be wrong in so expecting; this is, Raila we are talking about who to some never has and never will do anything for its own good sake.
I addressed one such person who took issue with Raila’s publicly paying his tax bill and I reproduce my response below for the benefit of those who have not seen my posting:
This is a classic straw man argument: set up a false premise, destroy the premises in your argument and voila, you won!
Congratulations but you have not addressed and neither can you disprove the premise and conclusion that, when KRA told MPs they need to pay their taxes and the MPs raised valid, legal and factual objections, Raila, as the leader he is, did the right thing in choosing to pay his taxes publicly so as others can follow as an example.
Rant and rave all you can, but that’s the fact and truth you cannot change regardless of how many times and how much you try.
BTW, you did not even destroy your false premises to make this a true straw man argument and here is why:
You ask, “was Raila the first one to pay taxes?”
You did not provide one but the answer is no; Raila was not the first person to pay taxes in Kenya and if you must know, the first Kenyan to pay taxes was the Sultan of Malindi in 1502, according to Attiya Waris, an assistant lecturer at UON School of Law and specialist on such matters.
I know yours was a cynical rhetorical question but it still misses the point in that you are trying to insinuate or imply something wrong, and have actually stated as much, regarding Raila’s commendable act of leadership.
Your rhetorical but cynical question is also ill-advised for another reason and that is, Raila did not say and neither was he trying to say that he was the first Kenyan to pay taxes; rather, he was publicly paying his taxes as an example for other MPs to follow.
In other words, Raila did not say and neither was he saying, “there, I have paid my taxes; now all of you Kenyans need to pay yours” in which case your rhetorical question would have made sense but I doubt even the Sultan of Malindi ever said so therefore your insinuation is without merit.
You say, “millions of us Kenyans have been paying taxes and we continue to do so,” this is true but as to your question, “what is the big deal when Raila pays his?” the answer is, the big deal is, the MPs are likely to follow, despite their current objections because the PM has led by example and made it virtually impossible to avoid paying.
Conversely, had Raila not paid or simply took the position the MPs are taking, the Taxman would likely not seen a penny from any of the MPs now hunkered down.
You ask, “why for instance do you guys loose sight of the fact that this guy has been sitting pretty without paying taxes for the last 10 months.”
Raila said he did not previously pay his taxes because it is the responsibility of his employer to withhold and pay the taxes to KRA.
Please note the PM did not advance the legal arguments I have laid out above.
You say, “don’t you realize the guy is playing to the gallery when forced by circumstances?
No; Raila either paid his taxes when he concluded it was the right thing to do, given the circumstances as they evolved or he was forced to do so by the circumstances but the net outcome is the same, namely, he has led by example.
Which one of these propositions, (evolving or forced circumstances) is true and explains Raila’s motivation, depends on who is judging: someone who likes or supports Raila or someone who does not; I need not say who would choose what.
You say, “lets be honest, Raila has been a tax cheat for the last 10 months, he is a tax defaulter and no amount of explanation will change that fact!!”
A tax cheat is someone who culpably evades paying taxes. When the taxman said MPs needed to pay taxes under the new constitution, the MPs balked and say they want legal interpretation of the applicable provision, arguing the new law does not apply to them or alternatively, their employer, PSC has not put in place procedures to collect the taxes.
Rather than await the courts to settle these valid legal challenges, Raila opted, and wisely so, to pay the taxes publicly so as to put pressure on the other MPs to do the same thing, which they are likely to do.
No one can be accused to be a tax cheat until and unless this issue is resolved one way or the other therefore Raila is not a tax cheat as you wish to brand him.
You say, “otherwise turning a distress moment to a publicity stunt is playing cheap!!”
A publicity stunt that is good for the country, is a good thing.
You say, “this is one of those things Raila is good at.”
You are right; Raila is good at rallying people behind his cause and, if that includes paying his taxes publicly as he did, so other MPs can do the same thing, so be it.
I watched earlier this afternoon live the somewhat contentious debate in Parliament regarding the CIOC report on the nomination of Dr. Willy Mutunga, Ms. Nancy Baraza and Mr. Keriako Tobiko as Chief Justice, Deputy Chief Justice and Director of Public Prosecutions, respectfully, and have the following observations:
We are first of all witnessing history in all of these happenings since passage of the new Constitution so, as Hon. James Orengo and Hon. Abdikadir reminded the members, the debate about these nominations was historic and so was the vote on the motion to approve the nominations.
Our children and their offspring will never know, other than reading in history books, that our Parliament was once before just rubber stamp for what the President wanted done.
That’s all changed now and so much the better for our country.
Having said that, however, the debate and vote on the nominees has revealed something of a surprise to me and that is, Parliament is proceeding with the exercise of its newly reconstituted powers without aligning its procedural rules with the new Constitution, with the net outcome being its voting and approving of Mr. Tobiko can be persuasively argued to be at least inconsistent with the new Constitution.
More specifically, in proceeding to approve the nomination of Mr. Tobiko in the manner it has, Parliament has essentially defied the requirements of Chapter Six of the Constitution, for all practical purposes and intent.
First, it goes without saying, and one need not be a genius to conclude it is a mistake to bundle three candidates in one basket and ask Parliament to accept none or reject all.
This just does not make sense at all, unless, of course, it was the specifically intended that way, in which case the latter would have been and has turned out to be a brilliant scheme, if rejecting or approving all three candidates as bundle was the objective.
Either way, this procedure of vetting and voting on the nominees in Parliament was inappropriate and amounts to the same thing as the tactics past presidents utilized in shoving down our collective throats, people the public did not want serving in these important positions, less worse only in the appreciable and saving difference those previously appointed by fiat were wholly unqualified in every respect, in comparison, including academically and intellectually.
But this need not be; we have certainly reached a point in our maturing democracy where thoroughly vetting candidates for these important offices, indeed, to all offices should not be something to shy away from, regardless of how much we admire the individuals in question, or how stellar their resumes may otherwise be.
The allegations raised about Mr. Tobiko may or may not be true.
However, by confirming Mr. Tobiko without even as much as interrogating the evidence put forth as to these allegations, Parliament has essentially said it’s okay to serve with a cloud hanging over your head regarding your integrity, which is clearly in contravention of Chapter Six of the Constitution.
Second, even though it’s understandable and, indeed, it is desirable that CIOC be vested with complete authority, other than the final up or down vote, of guiding Parliament in the process of vetting of nominees, among other things, the manner in which the committee handled these nominations leaves a lot to be desired.
Having been evenly divided—and I have something to say below about the one member who abstained—the best thing CIOC should have done, given these circumstances, was to unbundle the nominees, with the Speaker’s approval, if necessary, send the two nominees with a majority support (Mutunga and Baraza) to the full house for an up or down vote but seek further vetting of Mr. Tobiko.
It could not have taken but a day or two to investigate the allegations made against Mr. Tobiko and, if upon such investigation the committee concluded there is nothing to the allegations, then the committee would have forwarded his name with its findings to the full house for approval or rejection, complete with its own findings as to the allegations.
Parliament would then have had an informed vote about Mr. Tobiko.
It would have been that simple but Parliament chose a path that leaves us with either a very clean DPP with nothing to be concerned about his integrity, as he embarks on the important task of leading the fight against corruption and impunity, or he is not and therefore setting the stage to second-guess him on everything he does from the day is sworn to the day he completely dispels such a concern, which may not be possible at all.
Third, no member of a committee should ever be allowed to abstain on a vote; that’s an abdication of responsibility.
A perfect example of this, is the 11-11 tie in the committee vote on the nominees, which was the result of one member abstaining. Had the member voted either way, the committee would have either rejected the nominees or approved and sent to the full house a report less confusing as to what it meant or said as it did.
Given its conflicting message, an amendment was promptly adopted that striped the report of its recommendation for Mr. Tobiko to be further investigated before taking office, which (the recommendation) in by itself made no sense.
How do you say to someone, “you are hired but before you assume office, I need to investigate to make sure you are not all these bad things I am told you are?” Doesn’t common sense dictate this is something you need to do before extending the offer of employment?
Yet, this is precisely what CIOC recommended, namely, approve Mr. Tobiko but let’s investigate him further after you approve him to determine if the allegations made about him are true or not.
Again, it is understandable time is of the essence in approving these nominees but one cannot ignore provisions of the very Constitution we are trying to implement just because there is a deadline to meet; yes, deadlines must be adhered to in implementing the Constitution but not at the expense of the quality of what is produced in the process.
A few days’ delay would not in the end make a difference, if such delay removes the doubts over Mr. Tobiko’s appointment as DPP.
Third, the committee should not have submitted its report when it was so evenly divided with one member abstaining. The member should have been forced to vote one way or another and have the committee take whichever position called for by his or her vote.
That’s what being a committee voter means in an important committee such as COIC; you exercise your right to vote one way or the other and let the chips fall where you wish they fall, abstaining only means you are afraid and can’t take a position because you wish not to be associated with it, one way or the other, which in turn defeats the whole purpose of you being there as a member of that committee.
I was, however, not sure how to react other than being genuinely surprised when the abstaining member, Hon. Rachel Shebesh, disclosed in parliament she was the abstaining vote and offered the reason was because she “had no reason to vote for or against” Mr. Tobiko and was thus counting on the rider recommending further investigation in the final vote.
The rider was, of course, promptly stripped from the report as surely Hon. Shebesh should have anticipated; or did she not?
Hon. Shebesh did say after the amendment was introduced, that she will vote “no” against Tobiko but as she has now found out, if she did not anticipate this in committee, her one vote on the floor almost means nothing especially on a voice vote like the one done in the final vote unlike in committee where the vote of each member counts more than on the floor.
Had Shebesh cast her “no” vote in committee, we’ll have likely had an outcome more consistent with the Constitution than what we have now, especially as it regards to further vetting of Mr. Tobiko to confirm or reject the allegations made against him.
She did not and therefore hers may as well be the historic vote that confirmed Mr. Tobiko as is.
Third, the voice vote taken on this historic vote was inappropriate. I cannot think of something more undemocratic than a voice vote. I know it’s a stable and favorite in almost all parliamentary schemes but it is nonetheless undemocratic.
Members should be forced to take a yes or no vote and be counted as to which, especially on an important vote such as this, rather than having everyone hiding under a voice vote they cannot be held accountable to, unless they are on the record one way or the other.
Finally, but not least, Parliament having approved these nominees, the nominees are all but certain to be appointed by the president.
That being the case, I congratulate Dr. Mutunga and Ms. Baraza and wish them well as they embark on this historic journey of reforming the judiciary.
I also congratulate and accept the nomination of Mr. Tobiko, with reservation, only because of the concerns that have been made against him that even he would agree would be better for everyone if cleared before he assumes office.
All is not lost, though.
Now that he has been approved for nomination, and assuming the president goes forward and appoints him as DPP as is expected, Mr. Tobiko will serve himself and the country well and remove any doubts as to his commitment to ending corruption and impunity by taking the fight against corruption and impunity to those some believe are quietly and behind the scenes, heavily pushing for his appointment in hopes he spares them the might of government power in punishing these evils, if and when brought to bear.
In sum, save for those who for obvious reasons wish he does not succeed or if he does, to do so negligibly, we all hope and pray that Mr. Tobiko is successful in carrying forth his duties and responsibilities notwithstanding the manner in which he has been nominated.
In other words, let Mr. Tobiko prove his critics wrong by doing the job we expect our DPP to do, consistent with the Constitution and our desire to rid the country of corruption and impunity.