Busia Senator Okiya Omtatah has made true his threat to challenge the Finance bill in court terming it unconstitutional.
In an application filed at Milimani High Court, Omtatah together with four other activists say the proposed bill by President William Ruto amounts to forcing Kenyans to pay taxes irregularly without justification.
Omtatah, Eliud Matindi, Micheal Kojo, Benson Otieno and Blair Oigoro want the court to issue conservatory orders barring the National Assembly from debating on the proposed Finance Bill 2023 arguing that apart from the bill being unconstitutional, there are obvious threats to human dignity and socio-economic rights that will result to high cost of essential products if it becomes law.
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"The Honourable Court should invoke its mandate and duty to restrain the House from
debating proposals that have the potential of breaching or in any way undermining
the Constitution and the principles of natural law," the petitioners urged.
The Senator and his co-petitioners contend that Section 76 of the Bill threatens the freedom to own property as per Article 40(1) of the constitution by proposing to compel civil servants to participate in a mandatory tax scheme disguised as a means to facilitate property acquisition.
"The government’s intention to forcibly deduct a substantial 3% of an employee’s basic salary, with the purpose of facilitating the employee’s property acquisition, is unjust and morally repugnant as it imposes a one-size-fits-all approach to property acquisition. Over and above, it disregards the diversity of individual needs and preferences, denying employees the opportunity to allocate their resources according to their own priorities and circumstances," they state in the petition.
Omtatah on housing levy
The five activists further claim that the move to introduce mandatory deductions at the rate of 3% of an employee’s monthly basic salary to be paid by employees and a 3% contribution by employers respectively into the National Housing Development Fund is aimed at subjecting the workers to deductions which will impact their net take-home income.
"Hence, the bill if allowed will interfere with the net salaries of judges, members of constitutional commissions, and holders of independent offices, the proposed law will contravene Articles 160(4) and 250(8) of the Constitution of Kenya, 2010, which forbid such interference with the salaries of those
State officers," the petitioners state.
Further, he claims that the financial bill also threatens the right to freedom of association as enriched in Article 36 of the constitution to the extent that it will force people to join a savings vehicle or a SACCO.
Omtatah says that unless the court intervenes, the National Assembly will pass the provisions of the Finance Bill 2023 which he says are outrightly unconstitutional.
According to them, they are aggrieved that the Treasury has not itemised the public debts proposed to be paid vide the Finance Bill 2023.
Further, the petitioners want the government to make public the actual debt for audit otherwise Kenyans will be taxed to pay private debt.
"At the very least, the Treasury should publish and publicise these debts and the development projects they financed, given that the law only allows borrowing to finance development," they state.
In an affidavit filed in court, Senator Omtatah says that the figures being circulated in the public domain show that the national debt stands at Ksh8.7 trillion.
"Kenya’s public debt has not been audited to ferret out odious debts from sovereign debts, the blanket use of taxes to pay public debts is without due process of law and is unacceptable as it will see the irregular transfer of public funds to private entities," he claims.
The petitioners reiterate that taxes must not be used to repay odious debts which illegally acquired for the enrichment of individuals.
"Odious debts or regime debts which were incurred without the approval of Parliament, or which did not benefit the people but benefitted regime owners who were in power and their buddies, must not be repaid using public funds. Hence, it is a great threat to the rights of Kenyans for public funds to be used to repay debts whose acquisition and use have not been validated as having been done in compliance with the law," they argue.
The petitioners seek various other orders including stopping the speaker of the National Assembly from transmitting to the President the approved Finance Bill 2023.
"That pending the hearing and determination of the application and/or the petition, the honourable Court be pleased to issue a temporary order of prohibition prohibiting the Speaker of the National Assembly from transmitting to the President the approved Finance Bill 2023," they seek.
In the petition, those sued are Cabinet Secretary National Treasury, the Attorney General and National Assembly while the Commissioner General of Kenya Revenue Authority has been listed as an interested party.
