NO TAXATION

NAIROBI, Kenya, May 17 - Commissioners of the State-funded human rights watchdog have gone to court over the taxation of their allowance since last July.

The Kenya National Human Rights Commission’s (KNCHR) Chairperson Florence Simbiri-Jaoko and her fellow commissioners complained that they enjoyed the status of constitutional office-holders who were exempted from taxation of their allowances.

The KNCHR wants the High Court to intervene and stop the Deputy Prime Minister and Finance Minister Uhuru Kenyatta, the Finance Permanent Secretary, and the Kenya Revenue Authority (KRA) from imposing the tax deductions. They also accused Treasury Permanent Secretary Joseph Kinyua of breaching their terms of appointment.

They also want the court to compel the respondents to abide by their terms of service recommended and approved by the Parliamentary Committee on the Administration of Justice and Legal Affairs on December 18, 2003. KNCHR commenced its operations on March 12, 2003 and effectively replaced the Standing Committee on Human Rights that had been established on June 21, 1996.

The aggrieved panel is seeking orders to force KRA to refund all money deducted from their pay since last July. The team is also urging the court to suspend any further taxation of their allowances pending the hearing and determination of the dispute.

High Court Judge Roselyne Wendoh directed Senior Counsel Paul Muite and lawyer Harrison Kinyanjui to provide the documents to the Treasury Permanent Secretary, the Finance Minister, KRA, the Minister responsible for Justice, National Cohesion and Constitutional Affairs and the Attorney General.

The Clerk of the National Assembly and the Permanent Secretary in the Ministry of Public Service, who are named as interested parties, should also be served with the papers to facilitate the expeditious hearing of the matter on June 2, Justice Wendoh directed.

The KNCHR Chairperson and commissioners said they had a legitimate expectation that their status as Court of Appeal and High Court Judges, respectively, would be upheld. The decision by the Treasury Permanent Secretary to have their allowances taxed ostensibly because they were part of the Executive was illegal and did not have the blessings of the Parliamentary Departmental Committee responsible for Administration of Justice and Legal Affairs, they said in their petition.

“The Treasury PS did not have power to single-handedly alter the terms of service of the KNCHR leadership and his decision, which had already been implemented by KRA was unreasonable, arbitrary, oppressive and discriminatory and should be quashed through the court's intervention,” they argued.

In her 10-point verifying affidavit, the KNCHR Chairperson said the equation of her team to that of Appeal and High Court Judges - among other constitutional office holders - was clearly intended to offer the institution “the highest possible guarantee of functional independence.” “It was malicious and discriminatory to impose the taxation on my team yet such a draconian action was not taken against my predecessor, Maina Kiai and his team,” she complained

She recalled that the confusion regarding the proposed controversial taxation of Members of Parliament boiled over to KNCHR when the Financial Secretary at the Treasury confirmed in writing on September 17, 2008 that its commissioners were among constitutional office holders and there was no legal requirement for them to pay taxes on their allowances.

But the Treasury PS made an about-turn on July 2, 2009 when he declared that KNCHR was part of the Executive and the salaries and emoluments of its commissioners were subject to taxation, the chairperson said.