The Law Society of Kenya issued a statement on Monday condemning the government’s recent increase in the road maintenance levy, labeling the Ministry of Roads and Transport’s conduct as “unconstitutional and procedurally flawed” (see the official statement on X/Twitter).
The society’s critique is based on an analysis of technical documents released by the Energy Petroleum and Regulatory Authority (EPRA) last week, which indicated that the road maintenance levy has increased by 7/= KES ($0.061 USD) per litre for the period of July 15 – August 14.
The Law Society of Kenya argues that the ministry’s actions contravene Article 10 of the Kenyan Constitution, which enshrines national values and principles of governance such as “participation of the people” and “good governance, integrity, transparency, and accountability.” These principles, articulated in Article 10 (2)(a) and (c), require legislators to engage the public in their decision-making processes (The Constitution of Kenya).
Relevant case law has reinforced this requirement. For instance, in Aura v Cabinet Secretary, Ministry of Health, the court outlined six minimum standards for public participation, emphasizing that decision-makers must justify deviations from public opinion. Similarly, the decision in British American Tobacco Kenya v Cabinet Secretary for the Ministry of Health also highlighted pivotal guiding principles for public participation.
Furthermore, the levy increase may violate the Kenya Gazette publication requirements specified under Section 3 of the Road Maintenance Levy Fund Act, as per the society’s interpretation.
The society referred to explicit assurances against levy increases previously made by Cabinet Secretary Hon. Kipchumba Murkomen. On July 8, Murkomen posted on X/Twitter that any increase resulting in a higher cost of living had been ruled out (Murkomen’s statement on X/Twitter).
The Law Society of Kenya has indicated that if the Ministry of Roads and Transport does not retract the levy increase, they will “take such measures as may be necessary to ensure full compliance with the law by the Government.” For further details, visit the JURIST article.