Prime Minister Raila Odinga paid his tax bill publicly a few days ago and did so in order to put pressure on other MPs to do the same thing, especially given almost all MPs are hunkered down in their position they don’t have to pay the taxes. A couple of other MPs, including Peter Kenneth also paid their taxes at the same time and a couple other have paid since. Kibaki apparently paid his, quietly.
Should the PM have paid his taxes quietly, too?
A number of the usual suspects have gone on attack, condemning the Prime Minister’s action as a self-serving publicity stunt.
What the PM has done, however, is leadership by example and, despite what naysayers say, it is a commendable act.
Now, let all the other MPs follow his lead in paying their taxes rather than stalling as they are.
I address each of these bogus accusations against the PM and his publicly paying of his taxes below but let me first address the legal questions in the issue.
The question of MPs paying the taxes as the taxman (KRA) has demanded, simply boils down to this:
Should MPs who were elected with a law in the books exempting them from paying certain taxes, now be forced to pay the taxes under the new constitution, even though legislation to operationalize the provision that removes the exemption in question, is yet to be passed and signed into law?
Put another way, should the MPs be forced to pay taxes mid-stream, before the end of their term or even before all the regulations and procedures are in place to collect and pay the taxes to KRA?
This is a valid legal question, whose answer shall determine whether the MPs of the 10th Parliament are required to pay taxes as the taxman demands, or not.
There is no dispute, however, that MPs of the 11th Parliament will be required to pay, regardless of how the courts rule on this issue regarding the 10th Parliament.
As noted above, the question is whether sitting MPs in the current 10th Parliament should be required to pay the taxes or wait until after legislation is passed to require them to do so, or until after the new elections, whichever occurs first.
The relevant provision in dispute, is Article 210, which provides in pertinent part,
(1) No tax or licensing fee may be imposed, waived or varied
except as provided by legislation.
(3) No law may exclude or authorise the exclusion of a State
officer from payment of tax by reason of—
(a) the office held by that State officer; or
(b) the nature of the work of the State officer.
MPs have always paid taxes on their basic salary; however, until the new constitution was passed, their allowances, which amount to close to Ksh1 million each month, were exempt from taxation, meaning, MPs did not have to pay taxes on these allowances.
By removing this exemption from payment of taxes on allowances, which is exactly what Article 210(3)(b) cited above does, the new constitution essentially imposes a new tax on MPs.
Under Article 210(1) cited above, however, “No tax or licensing fee may be imposed …except as provided by legislation,” thus the MPs argument they cannot be forced to pay the new taxes when there is no legislation on the books operationalizing the provision.
Very clever argument, especially when it’s Parliament itself that must pass the legislation!
On the other hand, there is a generally accepted principal in law that laws are not supposed to be ex post facto, meaning, laws should not be passed that punish or alter status of something or conduct that has already occurred.
MPs of the 10th Parliament were elected in 2007 and were sworn in January 2008. At the time of swearing, every MP was assured by the law existing at the time that their allowances will not be and accordingly relied on that assurance in making decisions, including what repayment based financial obligations and liabilities to incur.
Things changed midstream, however, with passage of the new constitution, which erased the tax exemption that existed at the time they were sworn in therefore they are arguing this law on their tax exemption should not apply to them until they finish their term.
Strictly as a matter of law, MPs making these arguments are on solid ground and the court may ultimately rule in their favor.
As a matter of public mood, however, the words “do not vote for me” are written all over the face of any MP who attempts to make that case to his or her constituents.
The better thing to do, thus, is for these MPs to pay the taxes as the PM and a handful other MPs have done.
Having paid his taxes, rather than wait for the matter to be resolved one way or another by either Parliament or the courts, one would expect everyone to commend the PM for doing the right thing.
One would be wrong in so expecting; this is, Raila we are talking about who to some never has and never will do anything for its own good sake.
I addressed one such person who took issue with Raila’s publicly paying his tax bill and I reproduce my response below for the benefit of those who have not seen my posting:
This is a classic straw man argument: set up a false premise, destroy the premises in your argument and voila, you won!
Congratulations but you have not addressed and neither can you disprove the premise and conclusion that, when KRA told MPs they need to pay their taxes and the MPs raised valid, legal and factual objections, Raila, as the leader he is, did the right thing in choosing to pay his taxes publicly so as others can follow as an example.
Rant and rave all you can, but that’s the fact and truth you cannot change regardless of how many times and how much you try.
BTW, you did not even destroy your false premises to make this a true straw man argument and here is why:
You ask, “was Raila the first one to pay taxes?”
You did not provide one but the answer is no; Raila was not the first person to pay taxes in Kenya and if you must know, the first Kenyan to pay taxes was the Sultan of Malindi in 1502, according to Attiya Waris, an assistant lecturer at UON School of Law and specialist on such matters.
I know yours was a cynical rhetorical question but it still misses the point in that you are trying to insinuate or imply something wrong, and have actually stated as much, regarding Raila’s commendable act of leadership.
Your rhetorical but cynical question is also ill-advised for another reason and that is, Raila did not say and neither was he trying to say that he was the first Kenyan to pay taxes; rather, he was publicly paying his taxes as an example for other MPs to follow.
In other words, Raila did not say and neither was he saying, “there, I have paid my taxes; now all of you Kenyans need to pay yours” in which case your rhetorical question would have made sense but I doubt even the Sultan of Malindi ever said so therefore your insinuation is without merit.
You say, “millions of us Kenyans have been paying taxes and we continue to do so,” this is true but as to your question, “what is the big deal when Raila pays his?” the answer is, the big deal is, the MPs are likely to follow, despite their current objections because the PM has led by example and made it virtually impossible to avoid paying.
Conversely, had Raila not paid or simply took the position the MPs are taking, the Taxman would likely not seen a penny from any of the MPs now hunkered down.
You ask, “why for instance do you guys loose sight of the fact that this guy has been sitting pretty without paying taxes for the last 10 months.”
Raila said he did not previously pay his taxes because it is the responsibility of his employer to withhold and pay the taxes to KRA.
Please note the PM did not advance the legal arguments I have laid out above.
You say, “don’t you realize the guy is playing to the gallery when forced by circumstances?
No; Raila either paid his taxes when he concluded it was the right thing to do, given the circumstances as they evolved or he was forced to do so by the circumstances but the net outcome is the same, namely, he has led by example.
Which one of these propositions, (evolving or forced circumstances) is true and explains Raila’s motivation, depends on who is judging: someone who likes or supports Raila or someone who does not; I need not say who would choose what.
You say, “lets be honest, Raila has been a tax cheat for the last 10 months, he is a tax defaulter and no amount of explanation will change that fact!!”
A tax cheat is someone who culpably evades paying taxes. When the taxman said MPs needed to pay taxes under the new constitution, the MPs balked and say they want legal interpretation of the applicable provision, arguing the new law does not apply to them or alternatively, their employer, PSC has not put in place procedures to collect the taxes.
Rather than await the courts to settle these valid legal challenges, Raila opted, and wisely so, to pay the taxes publicly so as to put pressure on the other MPs to do the same thing, which they are likely to do.
No one can be accused to be a tax cheat until and unless this issue is resolved one way or the other therefore Raila is not a tax cheat as you wish to brand him.
You say, “otherwise turning a distress moment to a publicity stunt is playing cheap!!”
A publicity stunt that is good for the country, is a good thing.
You say, “this is one of those things Raila is good at.”
You are right; Raila is good at rallying people behind his cause and, if that includes paying his taxes publicly as he did, so other MPs can do the same thing, so be it.