LSK condemns Illegal hike of road maintenance levy

Road maintenance going on within Migori town on September 5, 2023, along the Kisii Migori Isebania highways. [Caleb Kingwara, Standard]

The Law Society of Kenya (LSK) has condemned the recent increase in the Road Maintenance Levy (RML), terming the move illegal and a breach of constitutional principles.

In a statement on Monday, the Society highlighted the lack of transparency and public participation in the decision and asked the government to rescind it or face legal action.

On July 14, 2024, the Energy Petroleum and Regulatory Authority (Epra) announced a marginal decrease in petroleum prices, however, the cost breakdown revealed an increase in the RML from Sh18 to Sh25 per litre.

This increment contradicts assurances given by former Roads and Transport Cabinet Secretary Kipchumba Murkomen, that the levy would not be raised.

"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 in an official communication dated July 8, 2024.

The LSK expressed concern over the confusion and lack of transparency surrounding the increase in the levy.

"This action directly contradicts the explicit assurances from Hon Kipchumba Murkomen," the LSK said adding that the move has caused widespread dismay and termed it a betrayal of the people.

The Society said that the Ministry of Roads and Transport had failed to adequately incorporate Kenyans' views during public participation. The public unequivocally opposed the increase, citing fears that it would exacerbate the cost of living in a country already grappling with economic challenges.

"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's statement reads.

"In a landmark ruling last week, the High Court, in the case of Aur v Cabinet Secretary, Ministry of Health & 11 others; Kenya Medical Practitioners & Dentist Council & another (interested parties) [Constitutional Petition E473 of 2023] [2024] KEHC 8255 (KLR) (Constitutional and Human Rights) (12 July 2024), reinforced the necessity for public consultation. The court emphasized, "It is no longer business as usual where the leaders of our country are presumed to know what is suitable for the people. They must consult the people before making decisions that affect them," LSK said.

The LSK highlighted the constitutional requirement that all taxes, including levies, can only be imposed, waived, or varied by legislation from Parliament.

The lawyers further pointed out that the increase had not been properly published in the Kenya Gazette as required under Section 3 of 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, failure to which we will take such measures as may be necessary to ensure full compliance with the law by the Government," reads the statement.

LSK President Faith Odhiambo, reiterated their commitment to uphold the principles of transparency and public participation.

"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," she said.

The unfolding events place a spotlight on Kenya's ongoing struggle with governance issues and the public's growing demand for accountability and transparency from their leaders. As the situation develops, all eyes will be on the government's response and the potential legal battles that may ensue.