The Law Society of Kenya’s attention has been drawn to the press release dated 13th May 2019, issued by the Ministry of Interior and Co-ordination of National Government.
The same seeks to inform Kenyans that the deadline for the mass registration exercise for Huduma Number is Saturday 18th May, 2019. We also make reference to the notice issued by the Ministry of Transport, Infrastructure, Housing, Urban Development and Public Works in conjunction with the Kenya Revenue Authority via the Daily Nation on 16th April, 2019 informing employers that the first contribution for the Housing Fund Levy is due by 9th May, 2019.
The Society is concerned with the misleading information issued to the members of the public through various media platforms in line with the notices issued by the Executive on these two key issues and particularly on the purported consequences of failing to abide by the directives on the particular timelines.
In light of the foregoing and in execution of its mandate under Section 4 (e) of the Law Society of Kenya Act “to protect and assist the public in Kenya in all matters touching, ancillary or incidental to the law;” the Society therefore seeks to proffer some much-needed clarity on the legal position on these two critical issues of Public Interest.
HOUSING LEVY
On the issue of the Housing Levy, the Society, in exercising its mandate under Section 4 (d) of the LSK Act, moved to the High Court on 28th September, 2018 to challenge the constitutionality of a number of sections in the Finance Act 2018.
Among the provisions challenged were Sections 85 and 86 introducing a mandatory employer contribution at the rate on 1.5% of an employee’s monthly basic salary which contribution is to be paid to the National Housing Development Fund.
On the issue of the Housing Levy, the Society, in exercising its mandate under Section 4 (d) of the LSK Act, moved to the High Court on 28th September, 2018 to challenge the constitutionality of a number of sections in the Finance Act 2018.
Among the provisions challenged were Sections 85 and 86 introducing a mandatory employer contribution at the rate on 1.5% of an employee’s monthly basic salary which contribution is to be paid to the National Housing Development Fund.
The Ministry of Housing issued a notice in the Daily Nation stating that the first contribution for the Levy shall be due by 9th May, 2019.
The Society immediately made an application to the High Court under a Certificate of Urgency, seeking conservatory and injunctive orders prohibiting the Ministry from effecting the payment of the Housing Levy pending the hearing and determination of the matter, relying on among others, the following grounds;-
- That there are several Constitutional Petitions in Court challenging the implementation of the Housing Levy none of which are yet to be determined. 2. That the prejudice would be occasioned by the collection of this levy on employers and employees is grave and irreparable. 3. That the regulations on how the levy will be applied are ultra-vires the Employment Act, the Housing Act and violate fundamental rights and freedoms. 4. That the collection of the Housing Levy threatens the right to enjoyment of property as well as freedom from discrimination among other constitutional rights afforded to the people of Kenya. 5. That it is in safeguarding public interest that the collection of the Housing Levy be halted until the hearing and determination of all the Petitions in Court challenging its implementation.
HUDUMA NUMBER
The Law Society of Kenya applied and was enjoined as an Interested Party in the case where Kenya National Commission on Human Rights and two others moved to Court to challenge the assent and coming into effect of the Statute Law (Miscellaneous Amendments) Act 2018 which was assented by the President of the Republic of Kenya on 31st December, 2019.
The Act introduces amendments to the Registration of Persons Act, Cap 107 which infringe on the privacy rights of citizens through introduction of the National Integrated Identity Management System (NIIMS).
The Petitioners moved to Court to challenge the assent and coming into effect the Statute Law (Miscellaneous Amendments) Act 2018 that effectively introduced the ‘Huduma Number’.
The Petitioners filed applications seeking the following conservatory orders; –
I. The amendments to the Registration of Persons Act be suspended pending the hearing and determination of the petitions; II. The Respondents be restrained from installing and implementing NIIMS pending hearing and determination of the petitions.
The Court comprising of Hon. Justices P. Nyamweya, M. Ngugi and W. Korir made the following orders among others in their ruling issued on 1st April 2019; –
I. Collection of DNA and the use of the Global Positioning System (GPS) as identifiers are suspended pending hearing and determination of the petitions.
II. Collection of personal information and data under the NIIMS is allowed pending hearing and determination of the matters in Court.
III. Respondents were however barred from:
a). Making registration of NIIMS mandatory.
b). Setting any time restrictions or deadlines for registration.
c). Denying any unregistered person access to any Government services.
d). Sharing/disseminating any personal information collected with any third parties.
CONCLUSION
Members of the Public are advised that based on the Court Orders, registration for Huduma Number is not mandatory and the Government should not force any one to acquire the Number. No one should be denied any government services for failing to register. In addition, the Government should not set any deadlines for registration.
Further, members of Public are urged to take note that the matter on the remittance of the Housing Levy is still subject of Court proceedings and that they should not be threatened, harassed, penalized or victimized in any way, shape or form for failing to remit the same.
The Law Society of Kenya urges the Government to fast track the finalization of the Data Protection Bill 2018 that is long overdue and further encourages the use of public
