Senator Omtatah Files Fresh Suit to Quash Ruto’s Housing Levy
A team headed by Senator Okiya Omtatah from Busia has filed a legal action requesting the annulment of the recently enacted Affordable Housing legislation.
The petitioners have termed the new law as unconstitutional and illegal.
Senator Omtatah, along with seven other advocates for human rights, informed High Court Judge Justice Enock Chacha Mwita that the Affordable Housing legislation aims to enforce housing retroactively, which has previously been deemed unconstitutional.
Specifically, they have contested a provision within the recent legislation that aims to designate the Commissioner General of the KRA as the administrator of the affordable housing levy, along with clauses 4 and 5 of the legislation that enforces the levy.
The petitioners contend that the Commissioner General of the Kenya Revenue Authority is not eligible to collect the Affordable Housing Levy since his duties are confined solely to the affairs of the authority.
“The Commissioner General is not the KRA. It is the authority, not its Commissioner General, that is mandated by Section 5 of the KRA Act to collect and account for revenue by specified laws,” the petitioners said in their submission in court.
On March 19, 2024, President William Ruto approved the Affordable Housing Bill 2023, thereby facilitating the reinstatement of the contentious housing levy deductions.
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To comply with the Supreme Court ruling that declared it unconstitutional last year, the new legislation includes workers in the informal sector.
Under the new law, Kenyans will now have 1.5 percent of their gross monthly salary deducted.
However, the petitioners have asked the court to set aside the imposition of the levy at the rate of 1.5 percent as provided for in the Affordable Housing Act, 2024.
They are also seeking an order suspending Section 2(1) of the Affordable Housing Act, 2024, insofar as it appoints the Commissioner-General of the KRA as the collector of the Affordable Housing Levy, and Sections 4 and 5 of the Act, which impose the levy.
The petitioners are also seeking an order restraining the National Assembly and 11 other respondents from further implementing Section 60 of the Affordable Housing Act, 2024, to the extent that it seeks to retroactively address issues previously declared unconstitutional by the High Court.
Further, the petitioners want the matter referred to Chief Justice Martha Kooke because the matter raises substantial questions of law that should be heard by an uneven number of judges.
They have also asked the court to restrain the National Land Commission, the Ministry of Housing and Urban Development, and any other state organ or agency from approving or using public land for the construction of houses to be privatized under the Affordable Housing Act 2024.
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According to the evidence submitted to the court, the petitioners contend that no money can be lawfully raised from the public until the Affordable Housing Fund is fully operational.
Since the board of the fund has to be operational before the board can “approve the estimates of revenue and expenditure of the fund for each financial year, there was no basis to start collecting funds when the Affordable Housing Act, of 2024 was signed into law”, the petitioners said.
In his affidavit in support of the case, which has been certified as urgent, Senator Omtatah contends that any collection of funds must await the operationalization of the board.
“Furthermore, such monies collected outside the law by the Commissioner General will be exposed to theft as they cannot be secured by being lawfully kept in any of the existing funds, including the Consolidated Fund,” Omtatah says.
The respondents in the case are the National Assembly, Senate, Attorney General, Ministry of Lands, National Housing Corporation, Kenya Slum Upgrading, Low-Cost Housing and Infrastructure Fund, Commissioner General, Kenya Revenue Authority, the Revenue Allocation Commission, the Controller of Budget, the Attorney General, the National Land Commission and the Council of Governors.
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Justice Mwita directed that the writs be served on the respondents immediately as he will give further directions on 10 April 2024.
The petitioners contend that no funds can be raised under the Act unless and until Part III of the Act on the establishment and management of the Affordable Housing Fund is operationalized.
Otherwise, the national values and principles of governance in Article 10, including good governance, integrity, transparency, accountability, and sustainable development, cannot be upheld.
The petitioners also state that the right to fair administrative action that is expeditious, efficient, lawful, reasonable, and procedurally fair in Article 47(1) and the principles of public finance in Article 201, including openness and accountability, and the requirement that public funds be used prudently and responsibly have been violated.
They have also argued that the values and principles of public service in Article 232, including the efficient, effective, and economical use of resources, transparency, and accountability for administrative acts, will be negated if the contested law is implemented.
They are also seeking to establish whether the failure of the Senate to conduct and/or facilitate adequate public participation in the Affordable Housing Bill, 2023, before its enactment, invalidated the entire process of enacting the Bill into law and, therefore, the resulting Affordable Housing Act, 2024, is unconstitutional, null and void ab initio?
The petitioners state that they and the High Court have a right to protect the rights and fundamental freedoms of Kenyans and the national values and principles of governance which have been, are being, and are in danger of being further violated if this controversial law is allowed to come into force.
Senator Omtatah Files Fresh Suit to Quash Ruto’s Housing Levy