The Law Society of Kenya issued a statement on Monday condemning an increase in the government’s road maintenance levy, calling the Ministry of Roads and Transport’s conduct “unconstitutional and procedurally flawed.”

According to the society’s analysis of technical documents released by the Energy Petroleum and Regulatory Authority (EPRA) last week, the road maintenance levy has increased by 7/= KES ($0.061 USD) per litre for July 15 – August 14.

Claims about the nature of the ministry’s actions pertain to Kenya’s national values and principles of governance contained in Article 10 of its constitution. “Participation of the people” and “good governance, integrity, transparency and accountability”, in Article 10 (2)(a) and (c) respectively, impart obligations on legislators to involve Kenya’s citizens in the execution of their roles.

Recent case law has affirmed this constitutional principle, such as the case of Aura v Cabinet Secretary, Ministry of Health, which concerned the due process of three statutes enacted during Kenya’s 2023 health reforms. The judgement set out six minimum standards for decision-makers to follow to fulfil their obligations of public participation, including providing clarification when a decision is contrary to the public’s views. Guiding principles for public participation are also articulated in the noteworthy privacy case of British American Tobacco Kenya v Cabinet Secretary for the Ministry of Health.

Additionally, a levy increase may be legally at odds with the Kenya Gazette publication requirements under section 3 of the Road Maintenance Levy Fund Act, according to the society.

The society called the increase a contradiction of “explicit assurances,” referring to an official statement posted on X/Twitter in response to a proposed review of the levy on July 8, where Cabinet Secretary Hon. Kipchumba Murkomen ruled out a levy increase in all cases where it would “result in a rise in the cost of living.”

If the Ministry of Roads and Transport does not withdraw the levy increase, the Law Society of Kenya has indicated they “will take such measures as may be necessary to ensure full compliance with the law by the Government.”