Political analyst Mutahi Ngunyi has criticised Attorney General Justin Muturi for publicly stating that the housing levy is an illegal provision.
The AG in a letter dated February 21 directed the Kenya Revenue Authority (KRA) not to deduct the 1.5 per cent levy proposed under Section 84 of the Finance Act saying it lacks legal basis.
Muturi said the Court of Appeal ruling that dismissed the government’s application to stay a November 28, 2023, High Court ruling that the levy was unconstitutional still stands.
“Therefore, our considered opinion is that as of the date of delivery of the ruling of the Court of Appeal on January 26, 2024, there is no legal provision that enables the collection and administration of the housing levy. Kindly be advised,” the AG said.
The letter was addressed to KRA Director General Humphrey Wattanga, who, in his letter dated February 12, 2024, had sought the government’s guidance on the collection of the levy.
In his opinion, Ngunyi said the AG erred in making his position on the impugned law public saying it goes against the widely practised doctrine of collective responsibility.
“Dear Justin Muturi, have you heard of the Doctrine of Collective Responsibility in Cabinet? You disagree privately, but support the collective Cabinet position publicly,” he said in a statement on X Thursday evening.
“This is a constitutional convention worldwide. If you cannot keep it, you must keep quiet or resign. Simple.”
Politically, Ngunyi’s sentiments would be considered adept but in the corridors of justice, it would be rendered populist by the prevailing laws.
The Office of the Attorney General is established vide Article 156 of the Constitution and the Office of the Attorney General Act, 2012.
The AG’s roles include being a promoter of the rule of law and defender of the public interest.
The law also delegates the AG as the government’s principal legal advisor responsible for representing the national government in court or any other legal proceedings to which the national government is a party.
Other functions include the provision of policy guidance on legal and advisory services under which mandate Wattanga sought Muturi’s guidance regarding the housing levy.
Currently, a new Affordable Housing Bill, 2023, has been sent to the Senate for review and possible adoption after the National Assembly passed it last week.
The proposed law contains amendments to Section 84 of the Finance Act, 2023, correcting the ills pointed out by the court in the original law that established the housing levy.
The court said the levy was discriminatory as it secluded workers in the informal sector from paying the 1.5 per cent levy and that it was implemented without the mandatory constitutional provision of public participation.
