The enforcement of the so called Michuki rules for Public Service Vehicles (PSV) may be unlawful, according a new legal analysis made for RoGGKenya. While the rules themselves are valid, it is the abrupt implementation of the rules that can be challenged by the matatu businesses, the analysis by constitutional lawyer Steve Ogolla says.
The reason why the sudden enforcement of the rules may be unlawful, are to be found in Article 47 of the constitution. It requires the public administration to fair administration. It reads in (1):
Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
Everybody, including the police, knows that the matatu owners were not following the rules, but the goverment was sleeping, says Ogolla: “It can not be reasonable and procedurally fair to require compliance with a notice of less than two weeks, because it is impossible to equip all busses with what is required. Instead it would have been reasonable to consult with the transport business first about the earliest possible date from which the rules can be followed and start fining violators of the rules from that date on.”
It was on October 25, 2018, when the Minister for Transport, James Macharia, and Interior Minister Fred Matiang’i had noticed the public that from this Monday, Nov. 12, 2018 on the “provisions … will be firmly dealts with in accordance to the law.” But traffic police had started enforcement in some cities much earlier.
What the Michuki Rules entail
- Speed Governor – Every PSV which is not a taxi or privat hired vehicle shall have a built-in speed Rgovernor that limits its speed to 80 kph. Trucks with a tare weight of mor than 3,084 kg shall have the same kind of speed governor.
- Seat belts for each single seat
- Signs with the route number the vehicle operates on
- Uniforms for the drivers
- Badges for the drivers and conductors as provided by the Registry of Motor Vehicles for a fee
- Testing of the drivers every two years to ascertain their competence
- At least one conductor and one driver for each vehicle – and they must be vetted
- Permanent salary for the conductors and drivers
- Clearly visible yellow bands painted on both sides of the vehicles (note: reportedly there is a conflicting other rule requiring to paint the vehicle in one color only)
- A photo of the driver exhibited in the vehicle with the approval and signature of a senior police officer (signed by Assistent Superintendent or above)
The Text of the Michuki Rules
The original text of the Michuki Rules can be downloaded here (pdf files):
The notification by CS James Macharia and Fred Matiang’i
The List of some maximum Penalties:
The list of fines can be found here, in the Traffic (Minor Offences) Rules, 2016:
Summary of the Penalties
- Driving a PSV while being unqualified or unlicensed to do so: 5,000 KSh
- Employing an unlicensed conductor or driver: 10,000 Ksh
- Driving a PSV without being the designated driver or letting an unauthorized person drive: 3,000 Ksh.
- Failure to fit prescribed speed governor: 10,000 Ksh.
- Lack of proper seat belts: 1,000 Ksh. for each unequipped seat
Fine for keeping seat belts in unclean, wet or generally unwearable condition: 500 Ksh.
More background by Steve Ogolla
History of the Provisions
The government has a legitimate need to ensure general road safety, and orderliness in the public transport sector. Section 4 of the National Transport and Safety Authority Act mandates the National Transport and Safety Authority, (NTSA) to develop and implement road safety strategies. This provision of the law empowers NTSA to incorporate and enforce public transport road safety measures initially developed in 2004, by the then Minister for Transport, Hon. John Michuki.
The government has argued that the Michuki Rules were never suspended, but admitted that there has been laxity in strict enforcement. As a consequence, the government issued a two weeks notice to Matatu owners and operators to ensure full compliance with the Michuki Rules ahead of enforcement effective from November 12, 2018.
The Matatu owners and operators have protested the abrupt notice, arguing the timeframe is too short to ensure full compliance. This analysis therefore presents the law, process and prelude to enforcement of Michuki Rules. The analysis also suggests what public transport sector players can do to ensure smooth implementation of Michuki Rules without disruption of public transport, and unnecessary litigation.
While the NTSA Act provides the pathway for enforcement of Michuki Rules, Article 10 of the Constitution privileges an approach to enforcement that is inclusive, consultative, and deliberative. This is especially so, when determining the timelines for implementation. The timelines must be reasonable and sufficient notice for compliance.
Whereas the government can argue that the Michuki Rules have been in force, and therefore Matatu owners and operators cannot cite lack of enforcement for failing to comply with the Rules, a practical sense observation mitigates against such an abrupt move. The purpose of the road safety measures is to improve order and safety on the roads, not precipitate public transport crisis.
Where the notice for compliance is too short or insufficient, the unintended consequence is that most non compliant Matatus will be withdrawn from the roads for fear of arrest and harassment by police officers.
Further, the abrupt implementation of the Rules may outrightly be challenged in court.
Final Assessment by Steve Ogolla
The government needed to show that it has engaged the Public Service Vehicle operators, and settled on a timeline that is reasonable and workable. It is not safe for government to wave the sanctity of the law while disregarding procedural concerns and safeguards. The courts will have to balance the sacrosanct law, as against the social purpose of the law. While the law requires strict compliance at all times, regardless of the history of weak enforcement, the social function of the law is to ensure safety and security of road users without crippling the public transport in its entirety. This is the dilemma that could be resolved through consultation and coordination.