A petition has been filed challenging the new Affordable Housing Act, 2024 which President William Ruto enacted on Tuesday.
Ruto signed the controversial bill into law after the Senate and National Assembly passed it last week, paving the way for the return of housing levy deductions.
Benjamin Magare, a Nakuru-based doctor, together with Pauline Kinyanjui, Philemon Nyakundi, Shallum Nyakundi and Jamlick Orina who identify themselves as Nakuru residents have moved to court to oppose the law on grounds that it attempts to introduce communist ideologies.
“The Affordable Housing Act 2024, essentially tries to introduce communist ideologies yet, there is nowhere in the constitution which allows the government to introduce communist ideologies. Kenya is not a communist state and the constitution does not envisage it,” the petitioners submit.
Communism is a socialist ideology which seeks to create a social order centred around common ownership of the means of production, distribution, and exchange that allocates products to everyone in the society based on need.
Communist governments are characterised by one-party rule, rejection of private property and capitalism, state control of economic activity and mass media, restrictions on freedom of religion, and suppression of opposition and dissent.
In their suit, the petitioners argue that the national government has now taken over the housing function from county governments and that the new law has introduced “a shadowy entity, the ‘collector’ which collects funds,” instead of the Kenya Revenue Authority.
Lands Cabinet Secretary Alice Wahome, her Treasury counterpart Njuguna Ndung’u, Attorney-General Justin Muturi, the National Assembly and the Senate are listed as respondents in the suit.
In the matter filed as urgent, the petitioners accuse the government of violating the constitution on the distribution of functions between the national and county governments, imposing a tax with a faulty legal framework and blatant dismissal of the results of the public participation process.
“The Affordable Housing Act has proceeded to impose a levy which was rejected by the majority during public participation hence rendering public participation a cosmetic procedure and a waste of public resources,” read court papers.
‘LOW PENALTIES FOR STEALING’
The petitioners argue that the Housing Fund has been established with a faulty legal framework and structures for implementation, making its application a matter for the executive’s discretion and, therefore, making it susceptible to abuse.
Further, they say there are no guarantees to contributors of benefits and that “there are very low penalties for stealing from the fund/board.”
“For all practical purposes, the fund subjects employees and other income earners to cruel, inhuman and degrading treatment, which is tantamount to servitude,” the suit reads.
According to the petitioners, the new housing law is discriminatory because it outlaws corporations from owning a house under the affordable housing program yet they pay taxes and contribute to the economy.
They further submit that an individual’s salary is their private property and that the tax is unreasonable and unconstitutional because “it amounts to condemning workers to service mortgages for unknown houses they don’t need and will never own.”
“Some of the employees already own houses or are servicing mortgages, or they stay in staff houses provided by their employers, or they earn housing allowances paid by their employers,” the petition reads.
LOOMING EVICTIONS
The petitioners now want the court to suspend the commencement, levying, obligations and operationalisation of the Affordable Housing Act.
They also want the government barred from evicting Kenyans from public land for purposes of the act.
The housing levy will see employed Kenyans remit a deduction of 1.5% from their monthly salaries. Employers will also remit an equal amount to the housing fund.
The levy had been declared unconstitutional by the High Court in 2023 and then the Court of Appeal upheld the decision, maintaining that the levy was introduced without a legal framework.
But Ruto’s government holds that the suspension provided room for restructuring the bill and now provides a new legal framework for the levy.
Already, hundreds of families have been evicted from their residences in Uasin Gishu County to make way for the construction of the housing units while several others in Nairobi, Trans Nzoia, Nakuru and Kericho counties are on the brink of eviction.
