‘It does not make sense!’ Governance expert Prof. Migai Akech rubbishes stay order on Housing Levy

Governance expert Prof. Migai Akech has labelled the High Court's decision to declare the Housing Levy unconstitutional and then go ahead to issue stay orders restraining the quashing of the tax until January 10, 2024 as unusual.

Speaking on Citizen TV's ‘The Explainer’ show on Tuesday evening, Prof. Akech emphasised that the court's decision to issue conservatory orders is illogical because it contradicts its own ruling that deemed the levy unconstitutional.

"There are no two ways about it; either the levy is unconstitutional or not. You cannot declare the levy as unconstitutional and then issue stay orders on the same. It is logically inconsistent in my view and it doesn't make sense," he said.

While noting that the controversial levy is also discriminatory, Prof. Akech pointed out that the 45-day stay order issued by the High Court still does not provide sufficient time for the government to amend and align it in line with the Constitution.

"The court said that the housing levy is discriminatory, so how do you cure that by the stay? The 45 days will not change the fact that it is targeting those in formal employment. Typically, when a court declares something discriminatory, the person responsible for it will go and rectify it," said the public law scholar.

"That will entail passing a law or amending the law so that it conforms with the Constitution and is not discriminatory. This means we would have to go back to Parliament and amend that law. Can we do that in 45 days? It does not make sense."

After the 45 days lapse, Prof. Akech went on, the government will likely appeal the High Court's ruling to declare the levy unconstitutional.

"These people are going to go to court immediately; I suspect sometime in January they will seek orders from the Court of Appeal, they may not get orders pending the hearing and determination of the appeal, which will be heard sometime in January or February and the usual drama will ensue," he said.