Published on July 22, 2024 by Kariuki Mwangi
Last Updated on 2 years by Kariuki Mwangi
The Law Society of Kenya has termed the Sh7 per litre Road Maintenance Levy (RML) hike as unconstitutional. The LSK demanded an immediate reversal of what it called an unconstitutional and procedurally flawed action by the Ministry of Roads and Transportation.
In a statement on Monday, LSK President Faith Odhiambo said they are concerned about the confusion surrounding the increase in the levy.
The LSK’s statement follows the Energy Petroleum and Regulatory Authority’s (EPRA) announcement on July 14, 2024, which included a marginal decrease in petroleum prices.
However, a closer examination of EPRA’s cost breakdown revealed that the RML had increased from Kshs. 18 to Kshs. 25 per litre, contrary to previous assurances.
Odhiambo expressed concern about the lack of transparency and disregard for public participation in this decision.
Odhiambo said the move directly contradicts assurances from the former Roads and Transport CS Kipchumba Murkomen, who reassured Kenyans that the levy would not be increased.
“The LSK calls for the immediate reversal of this unconstitutional and procedurally action, failure to which we will take such measures as may be necessary to ensure full compliance with the law by the government,” the LSK President said.
Odhiambo said the revision of RML without proper Parliamentary scrutiny constitutes a blatant breach of constitutional provision.
“Furthermore, we note that the RML was increased without the proper procedural publication in the Kenya Gazette, as required under Section 3 of the Road Maintenance Levy Fund Act, 1993,” she added.
She stated that the increase in the levy is yet to be issued publicly by the Government Press.
The LSK President alleged that the RML increase is illegal.
“Moreover, even if a Gazette Notice was issued in accordance with Section 3 of the Roads Maintenance Levy Fund Act, there is no proof or indication that the amendment to the Road Maintenance Levy Fund (Imposition of Levy) Order, 2016, has to date been laid before Parliament as required by the Statutory Instruments Act,” she said.
She said the LSK finds the development to be in bad faith and not founded on proper law.
According to LSK, the move undermines the principles of transparency, accountability and public participation enshrined in the Constitution.
“The Ministry of Roads and Transport has failed to adequately incorporate the public’s comments and feedback, which were solicited during the consultation period,” she stated.
She said public participation must be substantive and not merely a procedural formality.
According to her, effective public participation must ensure that the views of the public are considered and where they are to be rejected or declined, reasons for such rejection and dismissal should be clearly stated.
The LSK President said the public viewed that an increase in the RML would further exacerbate the cost of living in the country.
“This omission constitutes a total disregard for and neglection of the public’s role in governance and policy-making processes, as outlined in Article 10 of the Constitution, which emphasizes public participation as a fundamental component of the national values and principles of governance binding all state organs, state officers and public officers.”
The LSK also cited a recent High Court decision in the case of Aura v Cabinet Secretary, Ministry of Health, and 11 others, which emphasised the importance of public consultation in the legislative process.
The court stated, “It is no longer business as usual where our country’s leaders are presumed to know what is best for the people.” They must consult the people before making decisions that affect them.”
LSK contends that all taxes, including levies, must be imposed or varied by Parliament through legislation, as required by the Constitution.
According to LSK, unilateral increases in the RML without proper parliamentary scrutiny constitute a clear violation of this provision.
