AG’s Advisory Opinion On Affordable Housing Plan Bound To Raise Queries

By: Joseph Mutua Ndonga

Worth Noting:

• The state has filed an appeal and aver that they have built a water-tight case. If they win the case, the housing levy will be reinstated.
• However, it will not be reinstated in the current form. The government will be required to fully comply with the orders issued earlier by the two courts.
• Parliament had been directed to initiate a process that would culminate to the amendment of certain provisions of the Housing Act.
• Parliament has already completed the work which started with public participation. The new bill is now before Senate for concurrence.

Sometimes back the Director-General of Kenya Revenue Authority (KRA) wrote a letter to the Attorney General Justin Muturi seeking his advisory opinion on Affordable Housing Plan.

This came in the wake of a decision by the Court of Appeal stopping the government from collecting the housing levy.

The move contradicted the orders issued earlier by the same court. A three-judge bench had upheld the orders issued by the High Court allowing the state to continue deducting levy from payslips of salaried Kenyans until the case is heard and determined.

In his advisory opinion, the AG sided with the Court of Appeal. The housing levy was declared illegal and unconstitutional. This is the correct position. The government should hence forth stop collecting the levy.

The state has filed an appeal and aver that they have built a water-tight case. If they win the case, the housing levy will be reinstated.

However, it will not be reinstated in the current form. The government will be required to fully comply with the orders issued earlier by the two courts.

Parliament had been directed to initiate a process that would culminate to the amendment of certain provisions of the Housing Act.

Parliament has already completed the work which started with public participation. The new bill is now before Senate for concurrence.

In light of this, AG sounded biased in his opinion. He only trained his gun on executive. I would have expected him to equally criticize the decisions of the Court of Appeal.

Initially, you allowed the government to continue collecting the levy. Later, you shifted the goal-posts and suspended deductions.

The matter is still in court. Nothing has changed. So one my pose. Were your decisions based on law or were being dictated and influenced by outside forces. The AG failed to do this. He would not point an accusing finger at the Judiciary.

I had earlier written an article in this column. These were my observations. President William Ruto has once again strongly defended his affordable housing plan vowing to face his opponents head-on.

I know that my critics, particularly those in Azimio La Umoja One Kenya Coalition, have been burning midnight oil trying to sabotage and derail my development agenda.

I want to tell them that they will not succeed. Kenyans have come a long way. They know how to discern and separate wheat and chaff. They fully support this project.

The project is also enjoying the backing of the constitution as Shelter is a basic right.

Speaking in Western Kenya, the President therefore did not mince any word in calling on contractors to continue building affordable houses. This is until the matter in court is heard and determined. He said he was optimistic that the government will win the case.

The judges are Kenyans. They know the housing project have created almost 130,000 jobs for Kenyans. This resonates with our manifesto.

The Azimio leader Raila Odinga and his brigade would on the other hand resort to politicizing the President’s remarks.

The Court of Appeal had stopped the collection of housing levy but they would not want Kenyans to know the same the court had allowed the government to continue collecting the levy.

So, by insisting the building of houses will continue, Azimio wanted Kenyans to believe that Dr Ruto had violated the law. This did not hold any water.

It is worth noting that the President only asked the contractors to continue doing thier job. He did not mention the housing levy because he knew this was main issue cited by those who had moved to court. This showed the President respected the constitution and other laws.

Notably, just like his predecessors, President William Ruto is leaving nothing to chance in building and unveiling his legacy projects.

There is no doubt that the affordable housing plan is his signature legacy project.

As the war between the two arms of government intensified, Dr Ruto always shifted the blame to his political detractors.

The ‘corrupt’ judicial officers were helping them (his critics) to have thier way after ‘bribing and compromising them’.

A few days later, the President held a meeting with Chief Justice Martha Koome and Speaker of national assembly Moses Wetangula. The Speaker joined them later.

Sources indicated that the President took unprecedented move when he declassified some intelligence reports which he shared with CJ. He disclosed that corrupt judges were working hand in hand with corrupt and rogue lawyers.

As the CJ, the buck stops with you. The people of Kenya expect you to tame members of your team. The corrupt riddled judges must be shown the door.

On his part, the President assured the CJ of his commitment to eradicate corruption in the executive.

The three-judge bench of Court of Appeal had earlier ruled in favor of an application filed by Treasury Cabinet Secretary Njuguna Ndungu.

So, the change of heart by the bench was bound to raise queries. Was the decision based on law or it was an escalation of the ongoing war. What has changed?

It is worth noting that when the two bulls fight, it is the grass that suffers. So, in this case, it is the people of Kenya.

The earlier decision of the court of appeal was yet another setback to Senator Okiya Omtata and other activists who had moved to court seeking to stop the government from collecting the housing levy. This is until their case is heard and determined.

The petitioners’ key prayers were. The court should declare the levy unconstitutional and illegal.

They would not however convince the judges that they had a strong and watertight case. This is because the case was not anchored on the provisions of the constitution and other written laws of Kenya that were relevant and well grounded.

I had earlier listened to President William Ruto’s interview when he hosted journalists from different media houses at State House Nairobi. The President minced no word in responding to all the issues and questions raised.

One of the journalist told him. You rode to power on a platform of promising to respect and uphold the constitution and other laws of the land but today you are doing the opposite.

He cited the housing levy. The court declared this law unconstitutional but we have been hearing you maintaining that the levy is there to stay.

The President told him. What you are saying is not true. I have been walking the talk in terms of respecting the constitution and decisions of the courts.

On housing levy, you the people of the media are to blame for misinterpreting that ruling. The problem of unconstitutional was indeed created by you.

That is not what the bench of the three judges stated. The bench only took issue with what they termed as discriminative aspects of the law.

This is because it is only employed people whose salaries were being subjected to a deduction of 1.5 percent.

The Judges heard our prayers and allowed the government to continue collecting the levy until January next year. This will give you an opportunity to review and align this law. You would not have expected the judges to do this if the housing levy is unconstitutional.

It is worth noting the housing levy is a key pillar of the Finance Act of 2023.

When the judges delivered the ruling, President William Ruto stated. We believe in the rule of law. So, my government will fully comply with the orders issued.

We will take the necessary steps to ensure this law is aligned. Dr Ruto reiterated this during interview. He said that the majority leader Kimani Ichungwah have already drafted the bill and presented it to parliament.

The president further stated. The housing plan is a noble idea whose time has come. As I speak, It has created 120,000 jobs. The job opportunities are set to increase to 200,000 and 500,000 in coming days.

The mega project resonated very well with Ruto’s concept of bottom up economic model. It is designed to address two main challenges: joblessness and lack of decent houses.

The President announced that 250,000 affordable housing units will be constructed in the first phase.

At one point during a visit to Busia county, he told the ‘hustlers’.

The housing project is being opposed by those employed who received a payslip every month.

They do not want 1.5 per cent to be deducted from thier salaries.

The same case applies to the top leaders of the Azimio La Umoja One Kenya Opposition coalition.

Each one pockets a pension of more than 1 million from the National Treasury every month.

These are the same personalities who say they love you and were ready to die for you. Really, do they?

When they oppose a deduction of 1.5 percent from their payslips, what message are they sending?

They don’t care. They want you to continue being poor and to live in a state of desperation and hopelessness.

When selling the units, the state will give priority to the hustlers.

President Ruto have been reiterating. This will be a key milestone. For the first time in our history, the sons and daughters of the hustlers will own decent houses.

This will elevate them to the class of the wealthier and rich families.

Listen to the critics. President Ruto’s position is that the deductions are compulsory. He is therefore pushing the levy down the throat of Kenyans.

I totally disagree. The president had no legal mandate to pass this proposal into law. This power is exercised by parliament.

The members will debate and thereafter each vote either in favor or against each of the clauses.

The process starts with the drafting of the Bill which is then presented to the house for the first reading. No debate at this stage.

First, the Bill has to be subjected to public participation. The relevant committees of house organize the forums, collect and collate the views of the people. This was done.

For starters, the government is made up of three main arms: parliament, executive and Judiciary.

Though each is independent, the law requires them to always embrace the principle of interdependence and complementarity.

Majorly, the role of a Member of Parliament is three pronged: Legislation, oversight and representation.

The President was in fore front of drumming support for Finance Bill 2023. Does this amount to overstepping his legal mandate? No, he is not.

I would have expected Raila to be the last person to oppose this proposal. Why? During the campaigns, the house plan proposal stood out as one of his main election pledges.

If elected President, I will rollout a massive affordable housing plan. Majority of our people, who migrated to urban centers, were living in poor and highly deplorable conditions in slums. ‘My government’ will build decent houses for them. This is a commitment I have given to you.

Raila would add: A lion share of housing fund will come from employed, civil servants, state officers and other workers. The Government will deduct 1.5 per cent from the payslip of each. President Ruto’s administration is collecting the same amount.

Joseph Mutua Ndonga is a writer and political analyst based in Nairobi