BY SAM ALFAN.
A group of lawyers from Mount Kenya have moved to court to block the adoption of a joint report of the National Dialogue Committee.
The group under the Mount Kenya Jurist Association said the report dated 25 November, 2023 should not be adopted by Parliament unless a Bill to address the run-way cost of living problem is presented alongside the report.
The association further seeks a conservatory restraining the Government from inventing, prescribing, imposing, enforcing new taxes, levies or charges pursuant to its powers to tax and impose levies and charges under Article 209 and 210 of the Constitution.
Through lawyer Kibe Mungai the group includes Fanya Kinuthia, Kenneth Njiru, Peter Kiora , Charles Mabiru, Ishmael Ngurung’a, Jackline Mwangi and Lempaa Suyiaka.
They are also seeking orders to restrain the Revenue Service Assistants from entering private businesses and homes unless and until they serve the owners and occupants a notice of minimum 14 days specifying the purpose of their visitation.
” The court be pleased to issue a conservatory order to restrain the Government of Kenya through its agencies, servants and agents from carrying out eviction of Kenyans from any occupied land in the name of or purpose of building high rise ghettoes popularly christened as affordable housing scheme pending hearing and determination of this Petition,” seeks petitioners.
The petition also wants the court to restrain the National Assembly of Kenya from considering, debating or passing The Affordable Housing Bill, 2023.
Apart from the adoption of the Nadco report and blocking the Affordable Housing Bill, the group wants the court to block the government and it’s agencies from evicting residents of Juja Farm, Gikumani Farm and any other land in Kiambu County for purposes of implementing the Affordable Housing Scheme.
The group argues that the political class through Nadco has failed to address, recommend, formulate and implement practical or effective solutions to the ever rising cost of living largely fueled by abuse of the Government’s power to tax and impose levies and charges.
They claim that the failure of the Kenyan State and organs to secure and realize the social and economic rights of Kenyans under Article 43 of the Constitution, the people of Kenya can only fend for themselves and their families through the income derived from employment or business activities.
“Whilst the Kenya Kwanza Government was elected based on promises made by its leaders during the campaign to stop abuse of the government’s powers to tax and impose levies on one hand and to lower the cost of living and create jobs on the other hand, the reality after about 16 months in office is that it has adopted an imperial and condescending mindset in which the income of citizens and corporate entities are viewed as Government property or any so long as the rubber-stamp National Assembly of Kenya passes some laws or regulations to justify expropriation of such private property,” the petition reads.
Although Articles 10, 24, 40, 43, 95 and 201 of the Constitution cast an obligation upon the National Assembly to protect the citizens of Kenya from excessive and indiscriminate taxation, the current Parliament, ye group says, has abdicated its mandate and opted to grant authority to the Government to finance an emerging Robin Hood economic system.
It is petitioners’ case that whilst citizens have a constitutional obligation to pay taxes from their income, the same Constitution prohibits the Government from depriving the citizens of their entire income in the names of taxes, levies, charges and other contributions.
“Consequently, as a matter of legal logic and necessity, there is a constitutional threshold beyond which deductions from income by way of taxes levies and charges cease to be legitimate and turns into sovereign robbery akin to a slave society which is absolutely prohibited by Article 30 of the Constitution,” says the group.
The petitioners argue that even taxes and levies imposed in accordance with the law are unconstitutional in the current economic context in Kenya if they exceed the 20 per cent capping for citizen taxpayers and 30 per cent for corporate entities.
They said the ‘tax militia’ operated by the Kenya Revenue Authority under the designation of Revenue Service Assistants have been operating outside the existing framework of tax laws and regulations.
The assistants can enter business premises and private homes without notice and begin to interrogate business and home owners on matters that invariably require advice and assistance from accountants or tax experts.
“Accordingly, pending the determination of the constitutionality of the existence and operations of the Revenue Service Assistants (RSA) it is crucial that the KRA should be compelled to give business and homeowners a notice of a minimum of 14 days prior to such visitation,” urges the lawyers.
They argue that there are numerous cases known to the petitioners where many citizens have been complaining that the Revenue Service Assistants have been displaying aggressive behavior and occasional harassment and intimidation of tax payers thereby raising the question of a threat to human dignity in the course of tax collection in Kenya.
As detailed in the Petition, The Affordable Housing Bill, 2023 is grossly unconstitutional, inter-alia because in the context of Article 43 of the Constitution the State is effectively transferring the responsibility of providing housing from itself to tax paying citizens in order to benefit another section of hitherto unknown citizens.
The Petitioners aver that such schemes as the Affordable Housing Scheme are unconstitutional on the basis of ideology and foundational principles that should be adjudicated before Parliament can lawfully consider passage of The Affordable Housing Bill, 2023.
“It is socially untenable and a perversion of public morality to require citizens who cannot afford food and school fees for their families to contribute into a program to build high rise flats to house strangers,” they argue.
They also adds that it is only fair that pending the enactment of The Affordable Housing Bill, 2023 and the hearing and determination of this Petition the Government should be restrained from evicting Kenyan citizens from their homes to pave way for the building of high-rise ghettoes for strange persons.
“Given that the Report of NADCO has not given proposals on how to reduce the cost of living, Parliament should be restrained from adopting it unless and until the Parliament and the political class drafts a Reduction of Cost of Living Bill, 2024 to address the concerns of the Kenyan people,” says the petitioners.
Jackline Mwangi has commenced preparation of such a Bill for presentation to the leaders of Azimio La Umoja One Kenya Coalition and the Kenya Kwanza Coalition.
