On July 14, 2024, the Energy Petroleum and Regulatory Authority (EPRA) announced a marginal decrease in petroleum prices.
The Law Society of Kenya (LSK) on Monday, July 22 slammed the government over the move to increase the Road Maintenance Levy (RML) from Ksh18 to Ksh25 per litre and gave an ultimatum for it to be reversed.
On July 14, 2024, the Energy Petroleum and Regulatory Authority (EPRA) announced a marginal decrease in petroleum prices. However, an analysis of the cost breakdown in Annex II of EPRA’s press release revealed that the increase in the RML had taken effect at the same time.
In a statement, LSK President, Faith Odhiambo revealed that the action had directly contradicted the explicit assurances from the former Cabinet Secretary for Roads and Transport, Kipchumba Murkomen, who, in an official statement dated July 8, 2024, reassured Kenyans that the RML would not be increased.
Aerial view of Nairobi Expressway along Waiyaki Way, Westlands in this photo taken on April 16, 2022. /NATION MEDIA GROUP
“The LSK finds this development to be in bad faith and not founded on proper law. It undermines the principles of transparency, accountability and public participation enshrined in our 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.
“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 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,” stated LSK in part.
According to the society, public participation is a fundamental requirement in the law-making process in Kenya and must be substantive and not merely a procedural formality.
Furthermore, effective public participation must ensure that the views of the public are considered and where they are to be rejected or declined.
Odhiambo also cited a High Court ruling in the case of Aura versus Cabinet Secretary, Ministry of Health, and 11 others where the court ruled leaders must consult the people before making decisions that affect them.
Further, the LSK President observed that the RML was increased without proper Parliamentary scrutiny.
“In addition, it is a trite law that all taxes (including levies) can only be imposed, waived or varied by way of legislation by Parliament. This is a Constitutional requirement. 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 is yet to be issued publicly by the Government Press, begging the question as to whether a gazette notice in fact exists. This would mean that the RML increase is manifestly illegal,” LSK accused the government over the move to hike the RML.
Odhiambo added that even though a Gazette Notice was issued in accordance with Section 3 of the Roads Maintenance Levy Fund Act, there was 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.
“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,” vowed the society.
“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.”
LSK President Faith Odhiambo during a past meeting. /FILE