Azimio la Umoja leader Raila Odinga led a team of civil society and activists to reject the Finance Act and pleaded with judges not to be intimidated by the Executive.
Others who made a case against President William Ruto’s new taxes were the Law Society of Kenya while the Attorney General led government defence supported by Treasury Cabinet Secretary Njuguna Ndungu, National Assembly, Senate, and the Kenya Revenue Authority. They accused the petitioners of turning a political contest into a legal battle.
The opposition shelled out five key points before justices Justice David Majanja, Christine Meoli and Lawrence Mugambi.
“What we are asking is for the court to be bold and not be intimidated by the fear-mongering from the Executive. The Finance Act has various provisions which are unconstitutional and violate human rights which cannot be allowed to stand,” said lawyer Otiende Amollo, the Rarieda MP.
He argued that the entire process leading to the enactment of the Act was illegal as independent offices who could have advised the government were subdued and forced to support an illegality.
He singled out the housing levy which introduced a mandatory 1.5 per cent deduction of employees’ salary which he claimed is discriminatory and unconstitutional since it was passed without involving the Senate.
In addition, the lawyer accused the National Assembly of sneaking in 22 new provisions in the final draft which were not subjected to public participation and makes the entire Act unconstitutional.
“National Assembly has even conceded that they introduced the new clauses which constitute 25 percent of the Act. It is not open for the National Assembly to introduce everything strange which made the act unconstitutional,” he said.
Raila, who was represented by lawyer Arnold Oginga, asked the judges to declare that the Finance Act, 2023 was promulgated unconstitutionally as it involved and concerned county government functions but was not referred to Senate for debate.
He further argued that Section 2 of the Act which imposes tax on entertainment and Section 33 which imposes Value Added Tax on insurance compensation are unconstitutional since it is only the county governments which can impose taxes on entertainment.
“The role of the national government is only to provide policy regulations to be used by the counties and not to impose taxes. The Act does not consider the plight of those who produce digital content by imposing the punitive taxes,” said Oginga.
On claims by National Assembly Speaker Moses Wetang’ula and Senate Speaker Amason Kingi that they concurred the Finance Bill did not concern counties, the Azimio leader accused the speakers of treating the matter as if it was a personal affair between them without following the law.
Senior Counsel Okong’o Omogeni, the Nyamira Senator, reiterated that the Act was passed without involving the Senate despite having several provisions touching on County Governments.
He was supported by Busia Senator Okiya Omtatah who told the three-judge bench that the Senate cannot be treated as a bystander in matters touching on finances affecting the entire country.
“Some of the taxes like the housing levy were introduced in a blanket manner which creates a clear case of budgeted corruption,” said Omtatah.
Lawyer Eric Theuri for LSK, submitted that there was no meaningful public participation as many proposals and recommendations they made were rejected without any explanation.
According to LSK, the Act illegally amended the Employment Act and created unfair labour practices by adding additional taxes to employees, and that the provision for housing levy creates uncertainty on who is eligible to benefit from the funds.
Lawyer Elisha Ongoya argued that the Act is oppressive to workers who not only have to put up with the high cost of living but has their salaries drastically reduced through high taxation.
“The employment Act provides that an employees’ salary should not be less that one third after deductions but the new taxes means that some of them with other commitments will be getting a salary less than what the law provides,” he said.
On the housing levy, lawyer Mahat Somane submitted that the levy was justified since the government has a duty to ensure the citizens have decent housing in line with the constitution.
According to the lawyer, it does not matter who will benefit from the affordable housing programme since the collected money is being used for the purpose for which it is taxed and also defended the none involvement of counties in passing the Act.
“None of the 47 county governments has come to court claiming that they are against the taxes to build affordable houses. It means that they are happy and also want to help their people have decent housing,” said Somane.
Lawyer Kiragu Kimani accused the petitioners of creating fallacies about the Finance Act to confuse the public when every provision was subjected to public participation before MPs considered the views and passed the final Act.
The lawyers pleaded with the court not to interfere with the government’s legitimate mandate to impose taxes so as to generate revenue to support its projects and defended tax on insurance claims and entertainment as justified and within the law.