Fees for government services demand public participation

Passport applicant is taken a photo at the Immigration Department at Nyayo House, Nairobi on August 31, 2023. [Boniface Okendo, Standard]

Recently a large number of fees were increased for government services like passports, visas, land, and agricultural matters. Then immediately, many of them were revoked.

One suspects that the revocation arose from threats by other governments to reciprocate by imposing the same amounts on Kenyan applicants to their embassies. This would punish Kenyan students the most.

These Gazette Notices have made Kenya the laughing stock of the Commonwealth. One example is the increase in ‘passports/ visas’ under the heading of “Queries’.

The new provision was that any foreigner making a query about their visa application would have to pay Sh1,000 for making the query. The following scene would arise at the Inquiries CounterForeigner: ‘Is my Visa ready?’ Kenyan Official: ‘Before I answer you, kindly go to the Cashier there, pay KSh1,000, and bring me the Official Receipt. Then I’ll answer you.’

The Kenya Gazette shows these fees were introduced by persons unfamiliar with Rule-Making, with the Rule of Law and with the Legislative Draftsman’s Department in the Attorney-General’s Chambers. They did not consult the Legislative Draftsman at all.

Most of the notices were illegal and void anyway. There are two sets of principles by which the fees on government services are tested. The first set arises from the Constitution. Some government services are so fundamental to national goals and means, that the Constitution actually forbids the levy of any fee for those services. An example is where court cases are filed in respect of any violation of the Bill of Rights. Article 22(3)(c) provides that: “No fee may be charged for commencing [such] proceedings.”

But normally, where charges may properly be raised, Article 48 is the guide: “48. The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.” Three principles may be extracted: 1. The fee shall not impede access to the service. 2. The fee must not defeat, deny, violate or infringe any other constitutional right. 3. The fee must be reasonable.

The second set of principles emerges when such fees are imposed not by Parliament but by lesser individuals or offices like Cabinet Secretaries or specific authorities, to whom Parliament delegates its law-making power through the principal Act of Parliament. This is therefore delegated legislation, formerly also called Subsidiary Legislation, and now made under Statutory Instruments.

The tests applicable to all delegated legislation are in addition to the constitutional tests set out earlier, and are as follows. 1. Is the person delegating the power empowered by the Principal Law to delegate? 2. Is the person imposing the fees in the Gazette, the correct person to whom the Principal Act has delegated the power? 3. Are the fees and the delegated legislation reasonable? 4. The fees or delegated legislation must be capable of being complied with. 5. The delegated legislation must not be vague or ambiguous. 6. The fees or delegated legislation must be made for only the purposes set out in the Principal Act. 7. The fees or delegated legislation must not be an abuse of power. 8. The power to delegate must be expressly set out in the Principal Act. There is no implied power to delegate or to issue delegated legislation. If any of these are not complied with, the fees and or the subsidiary legislation itself are void and unenforceable. Very often delegated legislation creates minor or even serious criminal offences. It is all the more necessary then for these tests to be satisfied. These recent Gazette Notices fail these tests. They are invalid and void at law. 

Additionally, they do not meet a major concern of our Constitution. It is this: There has been no public participation in the raising of these fees. (See Article 10.)

Firstly, the areas of the increases, are so wide that they affect several distinct sets of citizens from agriculturists to students, to small scale businesses, and to those in the tourism industry. All these have different concerns to bring to the attention of the Cabinet Secretaries involved. Without their participation, this is reckless taxation, like the Finance Bill is.

Secondly, the increase multiple times over the existing fees, gives the impression that the new fees are, even approximately, not the actual cost to the Government of providing these services. The impression given is rather of a bankrupt Government desperately scrabbling for even Sh1,000.

The writer is senior counsel