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Busia Senator Okiya Omtatah Files Petition Challenging the Finance Bill 2023

Nairobi – Kenya, The first budget of President William Ruto’s tenure as head of state faces a significant obstacle. Sen. Okiya Omtatah of Busia, who filed a lawsuit challenging the Finance Bill that will enable the budget to function, claimed that several of its components are unconstitutional. Omtatatah Petition

13 sections of the bill are being challenged by Mr. Omtatah in a lawsuit filed before the Constitutional and Human Rights Division of the High Court in Nairobi. If Mr. Omtatah’s appeal is successful, President Ruto’s plans to deploy crucial measures to finance a Sh3.64 trillion budget for the upcoming fiscal year will be nullified.

Mr Omtatah is the first petitioner in a suit that has a total of five petitioners. The four others are Mr Eliud Karanja Matindi (who is based in the United Kingdom), Mr Michael Kojo Otieno, Mr Benson Odiwuor Otieno, and Mr Blair Angima Oigoro.

The Attorney General, the National Assembly, and the National Treasury Cabinet Secretary are the defendants in the lawsuit. One of the interested parties is the Kenya Revenue Authority’s (KRA) commissioner-general. Omtatatah Petition

Read Also: Media Owners Association Reject Tax on Betting, Alcohol and Advertising

According to the petitioners, President Ruto is pressuring the Finance Bill, 2023, through which Kenyans are allegedly being forced to pay taxes in an unlawful manner. More than 30 articles of the Constitution have been listed as being violated if the bill is passed. Okiya Omtatatah Petition

Mr. Omtatah claims that the suit should be certified as urgent since Kenyans stand to suffer greatly if it is not.

Unless the application is urgently heard and determined, (Mr Omtatah) and the people of Kenya will suffer great loss and damage as the impugned excise duties will continue to be imposed on Kenyans.

he states in his affidavit.

Additionally, he requests that Chief Justice Martha Koome assemble a bench with an uneven number of judges “being not less than three” on a priority basis.

The petitioners are asking the court to order the National Assembly Speaker not to send the Finance Bill 2023 to the President if it contains 13 parts they want to be removed. One of these is the 76th paragraph, which mandates that 3% of every employee’s monthly wage be withheld in support of the National Housing Development Fund. Omtatatah Petition

Socio-economic rights

It threatens socio-economic rights (Article 43 of the Constitution) to the extent that, if made law, the fund will … reduce workers’ purchasing power as it increases business operating cost.

There is no public purpose or public interest being served by requiring a three percent reduction in basic salary for employees and a three percent contribution from employers to an amorphous fund to hold private and not public funds. Okiya Omtatatah Petition

they add.

The petitioners also demand the repeal of Finance Bill 2023 Section 52, which gives KRA the authority to register a security interest against a taxpayer’s property without alerting the taxpayer.

The provision is contrary to Articles 48 and 50 of the Constitution of Kenya 2010 and international human rights standards which provide for the right to a fair hearing and have access to information necessary to defend oneself.

the petitioners argue.

The 28th provision of the law, which aims to raise the value-added tax on petroleum goods from 8% to 16%, is also challenged by the petitioners. Omtatatah Petition

(The) increase will impact and further push up the already high cost of living. And that poses a threat, resulting from ripple effects of the high costs of essential products, to the right to live a humanly dignified life (per Article 28 of the Constitution) and to socio­ economic rights (per Article 43 of the Constitution). The tax will also lead to very high costs of production in the country which will lead to deindustrialization due to investors moving to invest and grow their monies in more competitive economies.

the petitioners argue.

Additionally, the petitioners want section 56 of the bill to be ruled out since it gives KRA the authority to retain overpaid taxes in order to deduct them from upcoming fees.

If enacted into law, it will arbitrarily deprive taxpayers who have overpaid their taxes a right to their property. It is unacceptable that KRA is not under obligation to pay interest on the overpaid tax amounts it holds for future tax liabilities.

argue the petitioners.

In addition to asking the court to strike down all 13 parts of the Finance Bill 2023, the petitioners also demand the Executive audit the public register.

The audit, they argue, will “separate genuine sovereign debts which were authorized by Parliament and should be repaid by Kenyans from odious debts which were incurred without parliamentary approval and/ or benefitted private entities who should repay them”. Omtatatah Petition

Following the filing of the lawsuit, Mr. Omtatah stated that the actual national debt data should be made available for auditing.

“Otherwise, Kenyans will be taxed to pay private dates,” said Mr Omtatah. He claimed that monies borrowed overseas are stashed in private offshore accounts and now “Kenyans are being asked to pay those debts which financed non-existent development projects “.

If the petitioners’ case succeeds, a declaration will come from the court that there are natural law and constitutional limitations on the power of the political arms of the government to impose taxes. These limitations, they argue, protect taxpayers from unconstitutional taxation. Omtatatah Petition

Additionally, it will be stated that by publishing the Finance Bill, the National Assembly violated its obligation to preserve the Constitution. Additionally, if the petition is granted, it will be determined that it is no longer a “money bill” due to some of the changes it proposes to the Statutory Instruments Act of 2013 and the Employment Act of 2007.

Additionally, it will be stated that the Senate, as well as the National Assembly, must both agree on the part on gambling and betting. Omtatatah Petition

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