CORD petitions court to suspend new Excise tax

NAIROBI: The war between the Jubilee Government and the Opposition surrounding increased taxes on fruit juices, cigarettes, motorcycles and cars has spilled over to the corridors of justice.

The Coalition for Reforms and Democracy (CORD) wants the High Court to suspend the entire Excise Duty Act on account of breach of the Constitution.

The Opposition in its application, which is asking High Court Judge Isaac Lenaola to suspend the Act on temporary basis, argues that President Uhuru Kenyatta went beyond the limits of his powers when he made reservations and deletions of the contested piece of law.

“Pending the hearing and determination of the main petition, a conservatory order does issue staying or suspending the operation or coming into force of the first schedule paragraph one as far as it relates to the items,” the application filed by Anthony Aluoch read in part.

The law that came into effect on December 1, 2015 was to see Kenyans pay Sh10 more in tax per litre of fruit juices, un-fermented and not containing added spirit, whether or not containing added sugar or other sweetening matter.

Motorcycles, commonly known as boda boda, attracted Sh10,000 tax per unit, while second-hand cars of less than three years got Sh150,000 tax, and those above three years from the date of manufacture will cost Sh200,000 more. There’s also a tax of Sh2,500 for every 1,000 sticks of cigarettes.

The Opposition complained that the changes made by the President defeated legislators’ goodwill to protect consumers, especially the poor and those who are trying to quit smoking. “The effect of the Act is that the President reversed the attempt by Parliament to protect persons consuming electronic cigarettes who are trying to quit smoking while charging less rates for those consuming cigarettes,” the application filed before the court also reads.

“The Presidential memorandum was therefore unconstitutional as it purported to or had the effect of amending the intention of Parliament,” Aluoch said.

The lawyer argued that the Act discriminates against the common man as it had raised the ceiling for consumer goods to suit only the money-rich class of the society.

“The effect of the operationalisation of the Act and in particular the provisions relating the items listed in part one of the first paragraph of the first schedule has an adverse effect on common and ordinary Kenyans and ought to be stayed to the extent that it was enacted in a procedure that is unconstitutional,” the court heard.

The Opposition also took issue with the way the Speaker of the august House, Justin Muturi, settled its complaints on the contested law, arguing that he misdirected himself and the legislators as it amounted to allowing the President to participate in the legislation process, which is against the law.

On June 25 last year, Rarieda Member of Parliament Nicholas Gumbo had sought the Speaker’s guidance on whether the President, when sending back a bill to the House, can make proposals for amendments and he ruled that there were no barriers in law prohibiting changes by the Head of State. Attorney General Githu Muigai was allowed to respond to the case during the hearing on February 18.