BY SAM ALFAN.
Activist Okiya Omtatah has moved to court seeking to suspend a decision by Retirement Benefits Authority, reminding schemes to file their financial statements and payment of levy ahead of the March 31 deadline.
Omtatah argues that with the on-going enforcement of the countrywide lockdown and social distancing orders to contain the spread of COVID-19 virus pandemic, no meetings can be held.
He said trustees, scheme administrators and other service providers who are observing government directive banning meetings, cannot report to work or meet to deliberate and take measures to comply with the two deadlines.
The Activist said to comply with the demands as advertised by RBA, trustees, scheme administrators, and other service providers of retirement benefits schemes have to break the Government’s stay-at-home order and social distancing directives to convene meetings, which must be quorate, to discuss, approve and sign their audited accounts.
The advertisement was published in local newspapers on March 11,2020, reminding the schemes the March 31, 2020 for submitting financial statements, and April 30 for paying of the Levy as required by law.
Omtatah said filling incorrect accounts is criminal and attracts very harsh penalties. He wants the court to an order suspending the advert and prohibiting RBA, Treasury CS or their agents from giving effect to the advertisement.
“Pending the inter-partes hearing and determination of this application or the petition court to issue a conservatory order suspending the application of sections 16 and 34(4) of the Retirement Benefits Act, 1997; Regulation 39 of the Retirement Benefits (Occupational Retirement Benefits Scheme) Regulations 2000; Regulation 32 of the Retirement Benefits (Individual Retirement Benefits Scheme) Regulations 2000; and Regulation 46 of the Retirement Benefits (Umbrella Retirement Benefits Scheme) Regulations 2017″, Omtatah urge the court.
He said RBA and CS issued the notice or reminder with full knowledge of the ban on meetings, yet there is no mention of any of those measures in the advert.
He said RBA and the CS ought to be cognisant of the challenges posed to trustees, service providers, and members of retirement benefit schemes in complying with statutory deadlines given the current situation.
“I had legitimate expectations that, pursuant to their duty of care towards the schemes, the 1st and 2nd respondents would be responsible enough to postpone compliance with the statutory obligations until matters normalised in the country”, adds Omtatah.
He argued that other regulators such as the Capital Markets Authority (CMA), the Insurance Regulatory Authority (IRA), and the Central Bank of Kenya (CBK), have without any prompting intervened to cushion their sectors from the adverse effects of the lockdown imposed by the Government.
“It is also noteworthy that the judiciary itself, which is the custodian of the Constitution of Kenya, 2010, has scaled down its operations to the irreducible minimum to comply with the Government directives on combating the spread of the COVID-19 virus, and to minimize the effects of the pandemic on its workers. Hence, it would be unreasonable for anybody, to demand that the workers in the pensions industry continue with life as usual, including by doing whatever is necessary to comply with the statutory deadlines highlighted in the impugned advertorial”, adds Omtatah.
The obligation to protect life is a constitutional imperative under Article 26 of the Constitution, on the right to life, as read together with Article 20(1), which states that, “The Bill of Rights applies to all law and binds all State organs and all persons.”
He adds that it is unreasonable and, therefore, constitutionally and legally invalid to demand that trustees, service providers, and members of retirement benefit schemes endanger life so as to comply with statutory deadlines given in the Retirement Benefits Act, 1997 and the Regulations therein, for filing of scheme accounts and payment of the retirement benefits levy during the current countrywide lockdown to combat the COVID-19 virus pandemic.
By demanding that the retirement benefits schemes comply, during the countrywide lockdown, with the statutory deadlines under the Retirement Benefits Act and Regulations therein for the filing of scheme accounts and payment of the retirement benefits levy, the 1st and 2nd respondents failed in their duty of care to the pensions industry and violated Articles 10, 24, 40, 47, 73 and 259(1) of the Constitution.
He adds that RBA and treasury CS ought to have but failed to cushion the pensions industry from adverse effects of the countywide lockdown by invoking their powers under Section 59 of the Retirement Benefits Act to exempt the retirement benefits schemes from compliance with statutory deadlines until matters return to normal.
