Kenyans at risk of paying i*****l levies

Kenyans could be making illegal payments to ministries, independent bodies and constitutional commissions following the expiry of 1,764 regulations.

The National Assembly last year approved the extension of the expiry period of the regulations under 400 different Acts of Parliament. The regulations, however, remain illegal after the Senate refused to approve them.

Statutory regulations mean the process of checking by the government organisation that a business is following official rules.

The MPs voted for the Statutory Instruments (Exemption from Expiry) Regulations 2022 to shield the 1,764 pieces of regulations that were set to expire eight years ago. However this required the concurrence of the Senate.

While passing the bill, MPs gave the government a one year opening to republish the regulations which ministries and independent bodies have been operating with.

The Senate committee had called a meeting with the Prime Cabinet Secretary Musalia Mudavadi to deliberate on the continued enforcement of the instruments against the public, particularly those that levy fees, charges, impose criminal penalties and establish institutions that draw from the exchequer.

Among the areas where Kenyans are making illegal payments included in the land transactions where several Acts are affected. They include, Survey, Land Consolidation, Land Adjudication and Trusts of Land Acts.

You could also be making illegal rent payments since regulations on the Landlord and Tenant (Shop, Hotels and catering Establishments) Act have not been approved.

Other illegal payments are those made to the National Hospital Insurance Fund (NHIF), Higher Education Loans Board (Helb) and the Media Council of Kenya, National Social Security Fund and the Kenya Medical Supplies Authority.

Following the stalemate, senators say they will mobilise Kenyans not to make the payments until after the regulations are approved in line with the law.
Constitutional crisis

Members of the committee on Delegated Legislation of the Senate have expressed concern that Cabinet secretaries were reluctant to appear before them to explain the void in the law in relation to the expiry of the instruments yet Kenyans are being subjected to comply with the instruments.

“There is a huge problem with this state of affairs, we are in a constitutional crisis which the government is not addressing” said Machakos Senator Agnes Kavindu.

“As representatives of the people, we should not allow people to pay levies or taxes where there is no law,” she said.

The lawmaker argues that Kenyans should be advised not to comply with any provisions of expired instruments where the executive has opted to ignore the law.

Committee chairperson Mwenda Gataya said the committee will be issuing a statement on Monday on the next move since Kenyans should not continue to make illegal payments.

Attorney General Justin Muturi has declined to appear before the committee on two occasions, sending a junior officer who was turned away by the committee.

“As the chief legal advisor, Muturi should have explained why the state allowed the time instruments to expire,” noted Gataya.

Mudavadi also gave the committee a wide berth on Tuesday and sent a letter saying he was out of the country.

“We had invited Mudavadi since his mandate cross cuts all ministries, we needed him to explain why the government is reluctant to act on this piece of legislation,” Gataya said.
Automatically revoked

He continued: “We need to take drastic action so that the executive can wake up.”

Senator Mohamed Faki said the committee should rise and advise Kenyans not to comply with the provisions of the expired in instruments. Senator Betty Montet (nominated) supported the proposal.

Section 21 of the Statutory Instruments Act, 2013 provides that statutory instruments are automatically revoked ten years after their making unless a sooner expiry date is provided or if such regulation is made exempting it from expiry.

The Act, having been enacted in 2013, with a commencement date of 25th January, 2013 gave Statutory Instruments which were in existence at the time of the commencement a 10-year lifeline up until 25th January, 2023.

The Attorney General in 2022 published and tabled in the Senate and the National Assembly, the Statutory Instruments (Exemption from Expiry) Regulations, 2022 (Legal Notice No. 217 of 2022 and Legal Notice No. 218 of 2022 respectively).