It is just a matter of time before the return of breathalysers on our roads, if the proposed amendments to the Traffic Act of 2013, which also seek to clear ambiguities on the interpretation of what constitutes violation of speed limits, becomes law.
The Traffic (Amendment) Bill 2021, by Tiaty MP Kassait Kamket currently before the National Assembly, may have sobering effects on those who take one too many for the road.
If passed, those found guilty will pay a fine not exceeding Sh100,000 or go to jail for not more than two years, or both.
“A person who, when driving or attempting to drive, or in charge of a motor vehicle on a road or other public place is under the influence of an alcoholic drink or a drug beyond the prescribed limits, shall be guilty of an offence,” the Bill reads in part.
The proposed amendment is an improvement on the parent law as directed by the Court of Appeal that declared it illegal in 2017.
Mr Kamket argues that the law contains subjective tests, which may not be easily implemented with such words “as to be incapable of having proper control of the vehicle”, in reference to a drunken driver.
“The amendment shall ensure that this test be an objective one by providing for such measurable and scientific applications such as prescribed limits to be provided in the regulations,” says Mr Kamket.
The use of breathalysers, also known as breath alcohol tester, by the Multi-Agency Team (MAT) of the police and the National Transport and Safety Authority (NTSA) was outlawed in 2017 on the basis that the execution of the rules establishing its use were inconsistent with the Traffic Act.
A three-judge bench of the Court of Appeal- Justices GBM Kariuki, Fatuma Sichale and Festus Azangalala directed Parliament to review the law after a petitioner challenged the use of breathalysers.
Before the court judgment, the alcoblow had been in force for more than three years, after it was introduced in 2014.
The Bill also wants section 70 (5B) of the Act repealed to cure misinterpretations that have often seen violators of speed limits let off the hook.
The section provides that a person who violates a speed limit prescribed for a road by more than 20Km/h commits an offence and shall be liable, on conviction, to imprisonment for a term of not less than three months, or a fine of not less than Sh20,000 or both.
“This is meant to cure the frequent misinterpretation of the section which provides that a person who violates the speed limit prescribed for a road,” says Mr Kamket.
He argues that some entities interpret the section to mean a person does not commit an offence unless the speed limit is exceeded by more than 20km/h.
NTSA has previously argued that the section creates a minimum penalty for persons who violate the speed limit by more than 20km/h.
The driving licence of a person who has been convicted for the violation of a speed limit shall be invalidated for a period not less than three years if the violation of the limit is by more than 20/km/h and the violation is repeated three or more times.
The requirement that every driver of a public service vehicle undergo compulsory testing every two years to check competence will be repealed, to provide for practicability in operation of the transport industry and ease implementation of the Act.
The Bill further seeks to amend the law to anchor the outsourcing of inspection of motor vehicle services into law.
This will be done by providing that inspection can be done by NTSA or persons authorised by the authority and to provide the frequency within which the inspection shall be done.
Drivers and conductors of a public service vehicle will, however, continue to wear a special badge and uniform prescribed by the Registrar of Motor Vehicles.