The Law Society of Kenya (LSK) has expressed concerns over the recent increase in the Road Maintenance Levy (RML), citing a lack of transparency and failure to follow legal procedures.
In a press statement on Monday, July 22, 2024, the LSK highlighted the confusion and lack of transparency surrounding the levy increase.
According to LSK, on July 14, 2024, the Energy, Petroleum, and Regulatory Authority (EPRA) announced a slight decrease in petroleum prices, but the cost breakdown in Annex II of the EPRA’s press release revealed an increase in the RML from Ksh18 to Ksh25 per litre.
The LSK pointed out that this increase goes against the promises made by the former Cabinet Secretary for Roads and Transport, Kipchumba Murkomen. On July 8, 2024, Murkomen had assured that the RML would only be raised once the government was confident that any new revenue measures would not lead to a higher cost of living.
“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,” Murkomen said.
The LSK criticized this development as being in bad faith and not based on proper law.
The society argued that it undermines the principles of transparency, accountability, and public participation enshrined in the Constitution.
The Ministry of Roads and Transport has been accused of failing to incorporate public comments and feedback, which were collected during the consultation period.
“The public was unequivocal in its views that an increase in the RML would further exacerbate the cost of living in the country. 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 stated.
Public partcipation
LSK noted that public participation is a fundamental requirement in the law-making process in Kenya and must be substantive.
They pointed out that the High Court, in a recent judgment on the Social Health Insurance Fund (SHIF) case, emphasized the importance of consulting the public before making decisions that affect them.
The LSK also noted that all taxes, including levies, can only be imposed, waived, or varied through legislation by Parliament, a constitutional requirement.
According to LSK, the increase in RML without proper parliamentary scrutiny constitutes a breach of this provision.
“The revision of RML without proper parliamentary scrutiny constitutes a blatant breach of this 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.
“To date, the order for the increase of RML has yet to be issued publicly by the government press, begging the question as to whether a gazette notice in fact exists,” LSK noted.
Additionally, the LSK said that the RML increase was not properly published in the Kenya Gazette, as required by 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 LSK stated.