State defends convenience fee charged on eCitizen
Attorney General Justin Muturi.
What you need to know:
- Attorney General Justin Muturi says Sh50 eCitizen ‘convenience fee’ does not contradict any law.
- He was making submissions in a case where Senate minority leader Stewart Madzayo is challenging the fee arguing that it is illegal.
- The AG says that a Gazette Notice in relation to the convenience fee does not contradict any statutory or constitutional law.
Attorney General Justin Muturi has defended the government’s move to charge Sh50 convenience fees on Kenyans for using the eCitizen platform.
While making submissions in a case where Senate minority leader Stewart Madzayo is challenging the fee arguing that it is illegal, the AG says that a Gazette Notice in relation to the convenience fee does not contradict any statutory or constitutional law.
The AG told the High Court in Malindi that the Gazette Notice was lawful and constitutional.
Through lawyer Ruth Lutta, the AG said that a Gazette Notice on the implementation does not provide timelines but states ‘immediately’.
“Effecting of the Gazette Notice is progressive, the government is rolling further services on the platform, it needs time to fully implement,” said Ms Lutta.
Ms Lutta further told Justice Mugure Thande that the AG was not responsible on the issue of procurement of the services of Pesaflow Ltd.
According to the AG, the petitioner had failed to demonstrate the willful neglect on the part of the state regarding protection of rights under the constitution.
“I urge the court to recognise the transition, only recently the government had taken over the management of the eCitizen, the transition is going on to enable it to have all government services and make it efficient,” said Ms Lutta.
Ms Lutta urged the court to look at the issue of public interest on whether stopping the operation of the system will tilt in favour of the people.
Through lawyers Erick Muriuki and Barry Sande, Mr Madzayo told the court that the respondents had not shown the court any statutory instrument to support payment of the convenience fee.
Kilifi Senator Stewart Madzayo.
They further argued that a Gazette Notice is not a statutory instrument to levy charges but serves as a notice and that the use of convenience fee is not based on any law.
In his petition, Mr Mazdayo argues that it is unfair and unconstitutional to burden taxpayers with the convenience fee, which is channeled to a third party, Pesaflow Ltd whose role and ownership remain unknown.
The senator argues that the convenience fee is in essence an illegal tax imposed on people seeking government services, yet the money seems to be flowing to a private entity, as evidenced by the issuance of two separate invoices and two separate receipts.
Mr Madzayo argues that any payments made through the eCitizen.go.ke platform are subjected to a Sh50 ‘convenience fee’ and for all payments made through the platform, two invoices are issued.
He says an invoice is issued on the government agency’s letterhead, indicating the service fee being paid for and a second invoice is on Pesaflow’s letterhead which is charged at a cost of Sh50.
Mr Madzayo says that the fee is charged at a flat rate for all transactions, including transactions where the service fee paid to the government is Sh50, making the user pay the convenience fee at a rate of 100 percent of the service fee.
“Clearly, the levying of this convenience fee is unconscionable and oppressive to the petitioner, citizens, and all persons as consumers of government services,” said Mr Madzayo adding that just as with the convenience fee itself, the formula used to arrive at the rate remains shrouded in mystery.
Mr Madzayo is seeking an order compelling Kenya Commercial Bank (KCB) and Equity Bank to publish details of the amounts paid to Pesaflow Ltd since the government commenced the use of the eCitizen.go.ke platform.
The petitioner also wants Pesaflow Ltd to surrender all the monies it has collected as ‘convenience fee’ to the Kenya Revenue Authority (KRA).
According to Mr Madzayo, the fee paid to Pesaflow is shrouded in mystery, opacity, and it is unknown in law as there is no legal basis for charging it especially given that he and all persons as consumers of government services already make payment for the services sought from the government.
“It is not known what exactly the impugned convenience fee caters for given that the 1st Respondent (Pesaflow) does not appear anywhere in the two gazette notices and in any event, eCitizen.go.ke is a wholly owned domain and portal of the Government of Kenya,” he said.
Mr Madzayo argued that in essence, the user pays thrice for the same service, that is, the substantive fees for the service, which is paid to the government, the mysterious convenience fee paid to Pesaflow and whatever transaction costs that are levied by Safaricom through the MPesa service.
The petitioner says that instead of charging a nominal administrative fee that would be a percentage of the payment made, Pesaflow, which is not mentioned in the gazette notice, has been charging the ‘convenience fee’ regardless of the payment made.
The court will deliver its judgment on April 4.
