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Busia Senator Okiya Omtatah has slammed a request by the Clerk of the National Assembly to participate in the National Assembly’s Public Participation on the new Affordable Housing Bill introduced by President William Ruto’s administration. 

In a letter seen by People Daily, Omtatah has declined an invitation by the clerk to engage in a public participation meeting that was scheduled for yesterday and today on the new housing bill citing lack of adherence to proper legal procedures while requesting him to attend.

“I regret to inform you that I must decline the invitation because it was made without leave granted by the Senate. As a Senator, I cannot be summoned or invited to appear before the National Assembly or any of its committees without express leave of the Senate,” Omtatah states in the letter to the Clerk of the National Assembly.

According to the Omtatah, Order 252 of the Standing Orders of the Senate stipulates the process to be followed where the National Assembly requires a Senator, the Clerk, or an officer of the Senate to attend before the House.

“Therefore, I will not, whether in person, through legal representation, or vide written submissions, attend or appear before the National Assembly or any of its committees in response to your invitation,” he says.

Omtatah declined to participate in the meetings being conducted by a joint committee of the National Assembly that is expected to collect views from the various stakeholders on the Affordable Housing Bill 2023 and report back to the House before February 12 when MPs are set to resume.

Among the stakeholders who were invited to participate in the process include Omtatah, Central Organisation of trade unions (COTU) Secretary General Francis Atwoli, President of Law Society of Kenya Eric Theuri, Habil Olaka, the President of National Federation of Kenya employees, Institute of Certified Public Accountants of Kenya (ICPAK), Deloitte and Touche, PriceWaterhouseCoopers limited (PWC) Westminster consulting, Ajenda Kenya, Muslims for Human Rights, Architecture Association of Kenya Among others.

Legal framework

The Finance and Housing, Urban and Public Works committees says they are holding meetings with the said stakeholders for two days on the affordable housing bill, 2023 with an aim of seeking to provide a legal framework for the establishment of the housing fund, access to affordable housing and in particular give effect to Article 43(1)(b) of the constitution on the right to accessible and adequate housing.

The views being collected comes after the government tabled a revised Affordable Housing Bill seeking to regularise illegalities pointed out by the constitutional High Court.

The bill which went through the first reading on December 7,2023 also seeks to establish a board that will manage the fund.

The Kenya Kwanza administration move to introduce the bill comes after on November 28 last year, Justices David Majanja, Christine Meoli and Lawrence Mugambi declared the Housing Levy unconstitutional and its continued implementation a contravention of the constitution. The judges declared the programme unconstitutional for being discriminatory and creating unequal principles.

The three judges ruled that Section 84 of the Finance Act, which amends the Employment Act to introduce the Housing Levy violates the principles of taxation for making distinction between formal and informal sectors, thus creating unequal and inequitable principles.

The court added that the enactment of laws must be supported with a rational explanation but in the case of the Housing Levy, the government failed to provide an explanation for the imposition of the levy or a legal framework to anchor the fees.

In what appears to be a race against time to regularise the levy Majority Leader and Kikuyu lawmaker Kimani Ichung’wah tabled a bill to create a legal framework to oversee the Affordable Housing Levy.

The bill has retained the 1.5 per cent deductions from employees’ salaries and an additional 1.5 per cent from the employers for every employee on their payroll.

The three-judge bench had raised issues on the management of the fund. Now the bill makes it express that the monies collected will not be deposited in the consolidated fund and will only be used to set up affordable houses.