Listen to This Article Enhance your reading experience by listening to this article.

President William Ruto’s Kenya Kwanza administration is currently trying to amend the Constitution through backdoor, legal experts have warned.

Stung by the courts in his attempt to appoint the Chief Cabinet Secretaries (CAS), Kenya Kwanza has since introduced the National Government Administration amendment Bill 2023.

Besides that, after courts ruled that the housing levy being taxed from employed Kenyans is unconstitutional, the government has again drafted the Affordable Housing Bill 2023 that is currently before the National Assembly.

In addition, the Kenya Kwanza regime has also drafted various amendments to the Lands Act, which according to legal experts will change mandate of the National Lands Commission (NLC).

NLC is among the constitutional commissions whose mandate is ring-fenced and protected in the Constitution. It may require an amendment to the Constitution to transfer the valuation role from NLC to the Ministry of Lands.

Article 67 (g) of the Constitution gives the commission the mandate to assess tax on land and premiums on immovable property in any area designated by law.

Legal experts are now warning that the piece-meal amendments to various laws will ultimately change the Constitution through the backdoor without a referendum.

The lawyers contend that any review of the mandate of any constitutional commission requires a constitutional amendment. Former Committee of Experts and Constitutional lawyer Bob Mkangi argues that the courts primarily exist to interpret the law and will make its pronouncement over the pieces of legislation passed by Parliament if they are unconstitutional.

“Anything that contradicts the Constitution is null and void to the extent of the inconsistency. Courts primarily exist to affirm this,” said Mkangi.

Yesterday, Law Society of Kenya (LSK) President Eric Theuri charged that the Lands Act amendment is poorly thought out and intends to create a situation where the government can collect unwarranted taxes against the title whose defining feature is a freehold.

“This goes against centuries old categories of land and further demonstrates government attitude to tax each and every sector increasing burden on tax payers,” said Theuri.

In his memorandum to the National Assembly, NLC chairman Gershom Otachi charged that the mandate of the commission in as far as valuation is concerned should be left as already prescribed in the Lands Act 2012.

Same organisation

Otachi argues it is fair that the same organisation that assessed the rent, created the conditions of use and interest on the land to again look at the extension of the same by either doing variations of the conditions and also create new guidelines on the same.

“The commission reiterates that the preparation of leases for or on extension of lease be vested in the Commission as provided in the Land act, 2012 which is also supported by Section 43 and 44 of the Land registration act, 2012 that provides for an instrument that is registrable concerning any land transaction conferring interest,” said Otachi.

Last year, President William Ruto ordered that the land valuation mandate be domiciled at the Ministry of Lands in order to deal with graft at the commission.

“I have already commanded NLC people that they will no longer do the valuations for land compensation. The Ministry of Lands will carry out the valuation so as to ensure every Kenyan get their equal share,” said the President.

Constitutional lawyer and political analyst Dr Martin Oloo held that the Kenya Kwanza regime wants to rule by law and not to follow the rule of law.

According to Dr Oloo, the anticipated amendment on the Land Act will be measured against the provisions of the Constitution and if there will be any inconsistency, then it will be declared unconstitutional.

“The problem with Kenya Kwanza administration is that they want to rule by the law. They want to create laws to enable them rule but do not want to follow the rule of law. Any amendment to the various laws or acts of Parliament will be measured against the provision of the Constitution,” said Oloo.

He went on: “Can a statute amendment go against the Constitution and is left unchallenged? Any clause that will violate the mandate of the National Lands Commission is outright unconstitutional.”

Katiba Institute Constitutional lawyer Dudley Ochiel warned that they will go through all the proposed amendments with toothcomb and will challenge any law that is unconstitutional.

“We will be going through every amendment that has been drafted with a toothcomb. Any clause that we feel is offending the Constitution will certainly challenge. We will not allow any law that is unconstitutional to be passed,” said Ochiel.

According to Ochiel, Kenyans have become aware of the provisions of the constitution and no amount of intimidation or threats will stop them from going to court to seek interpretation.