NAIROBI, Kenya — The Law Society of Kenya (LSK) has vehemently condemned the recent increase in the Road Maintenance Levy (RML), labeling the move as illegal and a breach of constitutional principles. In a detailed statement released on Monday, the society highlighted the lack of transparency and public participation in the decision-making process, calling for immediate reversal and threatening legal action if the government fails to comply.
On July 14, 2024, the Energy Petroleum and Regulatory Authority (EPRA) announced a marginal decrease in petroleum prices. However, a closer examination of the cost breakdown revealed an increase in the RML from Kshs. 18 to Kshs. 25 per litre. This increment directly contradicts assurances given by Hon. Kipchumba Murkomen, former Cabinet Secretary for Roads and Transport, who had, just days earlier, reassured the public that the levy would not be raised.
“As suggested by Kenyans, we will only make this decision (to increase the RML) when we are certain that any revenue measures adopted will not result in a rise in the cost of living,” Hon. Murkomen had stated in an official communication dated July 8, 2024.
The LSK's statement expressed profound concern over the confusion and lack of transparency surrounding the levy increase. “This action directly contradicts the explicit assurances from Hon. Kipchumba Murkomen,” the LSK noted, emphasizing that the move has caused widespread dismay and betrayal among the Kenyan public.
The society underscored that the Ministry of Roads and Transport had failed to adequately incorporate public comments and feedback solicited during the consultation period. The public had been unequivocally opposed to the increase, citing fears that it would exacerbate the cost of living in a country already grappling with economic challenges.
“This omission constitutes a total disregard for and neglect of the public’s role in governance and policy-making processes, as outlined in Article 10 of the Constitution,” the LSK’s statement read. The constitution emphasizes public participation as a fundamental component of national values and principles of governance.
In a landmark ruling just last week, the High Court, in the case of Aur v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (interested parties) [Constitutional Petition E473 of 2023] [2024] KEHC 8255 (KLR) (Constitutional and Human Rights) (12 July 2024), reinforced the necessity for public consultation. The court emphasized, “It is no longer business as usual where the leaders of our country are presumed to know what is suitable for the people. They must consult the people before making decisions that affect them.”
The LSK highlighted the constitutional requirement that all taxes, including levies, can only be imposed, waived, or varied by legislation from Parliament. The revision of the RML without proper parliamentary scrutiny was deemed a blatant breach of this constitutional provision. Additionally, the LSK pointed out that the increase had not been properly published in the Kenya Gazette as required under Section 3 of the Road Maintenance Levy Fund Act, 1993.
“For the reasons outlined above, the LSK calls for the immediate reversal of this unconstitutional and procedurally flawed action by the Ministry, failing which we will take such measures as may be necessary to ensure full compliance with the law by the Government,” the statement concluded.
Faith Odhiambo, President of the Law Society of Kenya, reiterated the society's commitment to upholding the principles of transparency and public participation. “We, as the LSK, remain vigilant and stand firm in our commitment to uphold the principles of transparency and public participation, and will not tolerate any action that undermines these fundamental values,” she asserted.
The unfolding events place a spotlight on Kenya's ongoing struggle with governance issues and the public's growing demand for accountability and transparency from their leaders. As the situation develops, all eyes will be on the government's response and the potential legal battles that may ensue.