Senator Okiya Omtatah and fellow Azimio Senators have petitioned the High Court to examine the constitutionality of the newly enacted Affordable Housing Act, 2024.
The petition, supported by an affidavit, contends that several provisions of the Act are in violation of the Kenyan Constitution, raising critical questions about the distribution of powers between national and county governments, public participation in legislative processes, and the legality of taxation measures.
At the heart of the petition lies the contention that the appointment of the Commissioner General of the Kenya Revenue Authority (KRA) as the collector of the affordable housing levy, as stipulated in Section 2(1) of the Act, is unconstitutional.
Omtatah Raise 25 Questions for the High Court to Determine
The petitioners argue that such a mandate exceeds the statutory authority of the Commissioner General and undermines the principle of separation of powers.
They further assert that the Act’s imposition of a 1.5% levy lacks a proper basis and could lead to over taxation of citizens without adequate justification.
In their petition, Senator Omtatah and his colleagues raise a total of 25 questions for the High Court to determine.
These include inquiries into the legality of the Senate’s failure to conduct public participation on the bill before its passage, the potential duplication of existing housing legislation, and the constitutionality of using public funds for institutional housing projects.
Central to the petitioners’ argument is the assertion that the Affordable Housing Act, 2024, may be operating outside the bounds of the Constitution, particularly with regards to the principles of good governance, transparency, and the equitable distribution of resources between the national and county levels of government.
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Summary List of 25 Questions Raised in Senator Okiya Omtatah’s Petition
- Public Participation: Whether the failure of the Senate to conduct public participation on the bill before passing it voided the entire legislative process.
- Distribution of Housing Function: Whether the Act violates the distribution of the housing function between national and county governments as outlined in the Fourth Schedule to the Constitution.
- Duplication of Legislation: Whether the Act is void for duplicating the Housing Act, Cap 117.
- Government Financial Management Regulations: Whether the Government Financial Management Regulations pertaining to slum upgrading and low-cost housing have been rendered unconstitutional or lapsed.
- Constitutionality of the National Housing Policy: Whether the National Housing Policy is unconstitutional.
- Failure of Revenue Allocation Commission: Whether the failure of the Commission on Revenue Allocation to consider financial matters concerning county governments in the Affordable Housing Bill voided the resultant Act.
- Senate’s Failure in Public Participation: Whether the Senate’s failure to conduct adequate public participation on the Affordable Housing Bill nullifies the legislative process.
- Constitutionality of the Act in its Entirety: Whether the Act is unconstitutional in its entirety for violating the distribution of housing functions between national and county governments.
- Validity of Specific Sections of the Act: Whether specific sections of the Act are void for contravening the Constitution.
- Duplicity with Housing Act: Whether the Act is void for duplicating the Housing Act.
- Protection of Devolution by Senate: Whether the Senate failed to protect devolution by passing the Affordable Housing Bill.
- Council of Governors’ Role: Whether the Council of Governors failed to protect devolution regarding housing functions.
- Inclusion of Institutional Housing in Constitutional Rights: Whether the inclusion of institutional housing within the constitutional right to housing is lawful.
- Personal Benefit from Contributions to the Fund: Whether contributors to the Affordable Housing Fund will personally benefit directly from their contributions.
- Designation of Commissioner General as Levy Collector: Whether the Commissioner General of the Kenya Revenue Authority can be the designated collector of the affordable housing levy.
- Constitutional Amendment by Ordinary Legislation: Whether the national executive can use ordinary legislation to amend the Constitution.
- Taxation for Institutional Housing: Whether it is legally and constitutionally proper to tax citizens separately to finance institutional housing.
- Use of Public Land for Housing Projects: Whether the national executive can constitutionally use public land for housing projects that will eventually be privatized.
- Protection of Public Land by National Land Commission: Whether the National Land Commission failed to protect public land from misuse in ongoing housing projects. This question examines the regulatory oversight of public resources and the obligations of governmental bodies in safeguarding public assets.
- Oversight of Public Funds by Controller of Budget: Whether the Controller of Budget failed to protect public funds in ongoing housing projects.
- Arbitrary Levy Rate: Whether the 1.5% levy rate prescribed in the Affordable Housing Act is arbitrary and unconstitutional.
- Retrospective Application of the Act: Whether the Act can be applied retrospectively to previous deductions of the housing levy.
- Refund of Deductions: Whether the national government should refund deductions made under previous legislation.
- Commencement of Fund Operations: Whether funds can be raised under the Act before the Affordable Housing Fund is fully operational.
- Legality of Ongoing Projects: Whether ongoing housing projects are lawful under existing legislation.
According to the petitioners, the matter is urgent because the Act was assented to into law on 19th March 2024, which could pose violations and threats to the Constitution.
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On March 19, President William Ruto officially endorsed the Affordable Housing Bill 2023, which consequently revived the controversial housing levy deductions.
Following the enactment of the bill into law, Justice Chacha Mwita issued a directive for the pleadings to be promptly served on the respondents involved in the legal challenge.
This directive sets the stage for further proceedings in the case, with Justice Mwita scheduled to provide additional instructions on April 10.
