Motorist seeks court order to abolish breathalyser

By ISAIAH LUCHELI

Kenya: Motorists who love their drink are holding their breath after one of them moved to court seeking the abolition of the breathalyser, commonly known as Alcoblow.

Richard Ogendo submits in his petition that the rules that came into force in 2011 violated and were inconsistent with the provisions of the Constitution.

“The said Traffic (Breathalyser) Rules are contained in Legal Notice No 138 of 2011 which is void as it has not been tabled before the National Assembly as is required under the Interpretation and General Provisions Act,” he submitted through lawyer Gitobu Imanyara.

Imanyara added that there are no provisions in the Traffic Act declaring an intention not to table the regulations in Parliament, noting that even if there was, such a section would be contrary to public policy and interest.

“The petitioner has perused the Parliamentary Hansard in which debates of the National Assembly show which papers are laid before Parliament and has not found any evidence of the rules or their drafts having been tabled before the National Assembly,” submitted Imanyara.

 He added that the petitioner therefore avers that Legal Notice No 138 of 2011 has never been tabled before the National Assembly or its draft and was therefore invalid.

Values and principles

He added that the traffic rules were not consistent with Article 10(1)(b) of the Constitution which requires that all State organs, State officers, public officers and all persons whenever any of them enacts, applies or interprets any law be bound by the national values and principles of governance including “participation of the people”.

“In enacting the said rules, the Ministry of Transport did not provide for participation of the people as it was required to and hence the rules must be read subject to Section 7(1) of the Sixth Schedule of the Constitution,” said Imanyara.

The sixth schedule states: “All laws in force immediately before the effective date shall continue in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution”.

Ogendo is seeking a declaration that the Traffic Rules, published in the Kenya Gazette under Legal Notice No 138 of 2011 dated September 27, 2011, were null and void.

The petitioner has noted that the manner in which the rules have been enforced include; ordering a driver out of a car by force and without regard to sensitivities of gender, calling the media to be present to publicly record the usage of the breathalyser which he termed as unconstitutional.

Other actions he points out, include not informing the driver of the reason for ordering him or her to stop at a police roadblock.