Nairobi — The Kenya Country Bus Owners Association has vowed not to comply with new Public Service Vehicle (PSV) regulations that are set to come into effect on Tuesday next week, saying they have not been consulted.
Their lawyer Harrison Kinyanjui on Thursday stated that Transport Cabinet Secretary Michael Kamau has not initiated public participation before he gazetted the regulations.
Kinyanjui said that the High Court had nullified the speed governors that the National Transport and Safety Authority wanted fitted and says any move to enforce it would be unlawful and tantamount to impunity.
"No Cabinet Secretary in charge of defence or whatever can wake up one morning and say I have passed the regulation, legal notice number such and such... that all of you tomorrow should kill your mothers. Everybody will be in outrage and ask where do you get your powers to do that. But here we are! We want to justify an illegal action," he said.
The bus operators argued that the government will be infringing on Kenyans' right of movement by imposing the ban on night travel and ordering buses to remove their top carriers which he says is convenient for long distance travellers.
"The Cabinet Secretary cannot lawfully enforce such regulation and I am afraid Article 2 of the Constitution will have found him guilty. Article 232 (a) and (f) will have found him afoul and in this day and age, a Cabinet Secretary must be accountable to Parliament," Kinyanjui stated.
He emphasised the need for Kamau to take time and follow laid down procedures before enforcing the regulations.
"There can be no crisis at all. There are no wrongs that we are not going to correct. We are people who follow the rule of law and that is why we are also asking that the rule of law be followed. In the media there is all this hullabaloo of false information. False Information is a violation of section 19 of the Public Officers Ethics Act," he said.
He said should the NTSA go ahead to enforce the regulations it will be disseminating wrong information to the public contrary to the law.
"It states, 'A public officer shall not knowingly give false or misleading information to members of the public or to any other public officer. If the Cabinet Secretary insists that legal notice no 219 of 2013 published on 17th December 2013 should be complied with, he will be giving false information. Let us not mislead the members of the Public. Let us not get into dramatics for nothing," he said.
"Standing order No 211 of the Senate states that all delegated legislation must be laid before the Senate. It must be taken to the delegated legislations committee and that is why we have the statutory instruments Act No 23 of 2013 was passed by Parliament saying that no subsidiary legislation shall come into force until it is taken before Parliament."
He further pointed out that the notice should have been discussed by Parliament which includes both the National Assembly and the Senate.
"If such an instrument is not laid within seven days of its publication before Parliament, not the National Assembly, it shall be null and void. Therefore until the Senate passes a resolution of accepting and validating the inception of those regulations through standing order number 211, they are not available for enforcement," he said.
"Until the National Assembly also passes a resolution under Standing Order number 210, they are still not available for enforcement. The stakes are very high in public transport in this country. We cannot afford to gamble with the lives of Kenyans, we cannot afford to gamble also with the economy."
He stressed that any rules or regulations that are made by a Cabinet Secretary must meet the requirement of public participation.