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Why doctor wants court to declare housing levy illegal
Nakuru-based surgeon Dr Magare-Gikenyi has moved to the Court of Appeal over the Affordable Housing Act, maintaining that it is unconstitutional and ought to be quashed.
In October, a three-judge bench of the High Court ruled that the Act was constitutional as it intended to protect, promote and fulfil the right to adequate housing, a socio-economic right to which all persons in Kenya are entitled.
Justices Olga Sewe, Josephine Mong’are and John Chigiti further ruled that the mandatory 1.5 levy imposed on the total gross monthly salary of every employee, cannot be said to be unconstitutional.
The judges held that the Act is meant to fulfil the constitutional duty of the State to provide housing.
But in the appeal, Dr Gikenyi argued that forcing employed Kenyans to give out their hard-earned money towards the levy without assurance of getting a house is illegal.
He further argued that it is wrong for the government to force those in formal employment to contribute, regardless of one’s true status in relation to housing.
“In addition, forcing people to contribute for affordable housing units against their wish so that others can get houses is repugnant to morality and the constitution,” Dr Gikenyi submitted.
Dr Gikenyi said the legal framework does not consider those already servicing mortgages as well as those who own a house, or the issue of preference, timing, and style, among others.
“From the foregoing, we submit that the affordable housing legal framework is faulty due to among others burdening citizens who are not benefiting from the housing programme in a discriminatory manner,” he submitted.
The medic added that the Act does not specify the procedure for collecting the levy from non-employed individuals.
He added that while the levy is mandatory for those in formal employment, it does not apply to those in informal employment.
“By failing to provide a procedure for collecting the levy from the informal sector, the Act effectively excludes them from its application. This differential treatment of classes of citizens is not only discriminatory, irrational, and arbitrary but also unconstitutional,” he added.
Dr Gikenyi further pointed out that section 54 of the Act purports to limit or restrict ownership and use of a fully owned house.
The section, he said, unconstitutionally limits what the owner of the housing unit can do with it by bringing in a precondition of getting the consent of the affordable housing board, yet he has absolute ownership.
The section states that, “Except with a prior written consent of the board, a purchaser of an affordable housing unit under this act shall not by contract, agreement or otherwise, sell or agree to sell his or her unit or any interest therein to any other person.”
Dr Gikenyi said a sectional owner has the same right as other property owners and that their restrictions are not justiciable as provided in Article 24 of the Constitution.
The government defended the Act saying it was enacted and passed in accordance with the requirements of the constitution and in fulfilment of the State’s obligation to provide accessible and adequate housing as outlined in Article 21 and 43(1) (b) of the constitution.
The government added that the Act was an effort by the government aimed at realising the right to adequate housing, as the State is obligated to ensure that every citizen has access to adequate housing.
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