upepo
Elder Lister
The court case against the tolling of the Rironi-Mau Summit Highway has a great chance of success due to the following reasons;
1. Lack of a credible toll-free alternative - The options being provided by KeNHA as an alternative, such as Ngong-Suswa-Narok-Mau Summit-Nakuru Route and Nairobi-Thika-Magumu-Njabini-Ol Kalou-Narok Route, aren't realistic at all. The only tolled road, the Nairobi Expressway, provides a toll-free option along its exact route.
As I have explained in the past, if KeNHA leaves the existing road as a toll-free alternative, the project's commercial viability as a PPP will just collapse. Creating a toll road without a free alternative is a big economic infringement which can't be entertained. The economic rights of people living along this route must be protected
2. Discrimination - the Kenol-Marua Road, which is a national highway dualed by KeNHA, is toll-free. Charging tolls to Western Kenya-bound road users is an outright discrimination and is unconstitutional
3. Double taxation - toll fees were replaced by Fuel Levy, and reintroducing them without an alternative amounts to double taxation unless the fuel levy is removed. Furthermore, the public pays taxes for road construction and charging them for the construction costs is double taxation
4. Public participation - during public participation, KeNHA lied that the current road would be left as a toll-free option. This has now been vacated, turning the public participation exercise into a deception campaign contrary to the constitution, which demands effective public participation
5. Excessive intermediation - the government is supposed to construct roads using taxes or loans. A government that borrowed KSh 1.25 trillion in the last financial year can't justify using PPP for a KSh 175 billion road. The brokers introduced via PPP are just beneficiaries of criminal arbitrage. They must be stopped
6. Economic justification - tolling the road will increase the cost of living and doing business, turning Kenya into an uncompetitive investment destination. There is no economic feasibility study undertaken to demonstrate that these risks outweigh the benefits
7. Transparency - there are no disclosures on the extent to which the public is exposed in case of the PPP failure. If a credible toll-free alternative is provided and the SGR is extended to the border, the commercial viability of the PPP will cease. The PPP is exposed to risks such as resistance to tolls by citizens. Will they be compensated should such risks materialise? What guarantees and assurances has the government provided, and at what cost?
8. Involvement of NSSF - use of workers' retirement contributions for such a massive project without their permission is contrary to the Retirement Benefits Act. NSSF is behaving like a government agency, yet it is a retirement benefit scheme owned by the contributors. The relationship between NSSF and the government in the project constitutes a conflict of interest, given the government's overbearing influence on NSSF. There is no evidence that the investment is a financially sound decision, not procured through the government's coercion, thus risking workers' contributions
I know regime digital goons will descend on me with insults, but these are valid concerns that need substantive responses. There is no evidence that the government can't fund this project using the usual budget mechanisms that would be way cheaper and not subject users to tolls. Nobody is against the dualing of the road. We are opposed to the defective mechanisms being employed.
