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THE REINTRODUCTION OF CHARGES FOR MOBILE MONEY WALLET AND BANK ACCOUNT TRANSACTIONS; DEEP CONVERSATIONS ON THE PROTECTION OF THE WIDE PUBLIC INTEREST

Introduction.

The Central Bank of Kenya recently reintroduced mobile banking charges which were suspended at the onset of the coronavirus pandemic. The reintroduction of the charges is part of the Central Bank of Kenya’s attempt to increase revenue.

The Central Bank of Kenya via a press release stated that the goal of the reintroduction of charges was to build on the gains realized during the pandemic, to facilitate a transition toward sustainable growth of the mobile money ecosystem, and to ensure affordability of the payment services.

Key stakeholders in the banking sector loud this action. However, considerable outcry has been heard from a significant fraction of the public; despite the fact that the reintroduced charges were reduced in a noteworthy fashion. Are the actions of the Central Bank of Kenya averse to the public interest? Are they in praiseworthy fidelity to the CBK’s mandate outlined in the Constitution and all ancillary laws? Well, these are sedate conversations worthy of a public discourse.

What is public Interest?

The Black`s Law Dictionary 9th Edition defines public interest as: “…the general welfare of the public that warrants recognition and protection, something in which the public as a whole has stakes, especially that justifies Governmental regulation”.

The superior Courts in the Republic have reiterated this definition to a point of nausea. An example is the case of Danila Ntalason Lenatimayama v Independent Electoral and Boundaries Commission & another [2021] eKLR.

The Court noted that in litigating matters of “general public importance”, an understanding of what amounts to ‘public’ or ‘public interest’ is necessary. It was held that “Public” is thus defined: as concerning all members of the community; relating to or concerning people as a whole; or all members of a community; of the state; relating to or involving government and governmental agencies; rather than private corporations or industry; belonging to the community as a whole, and administered through its representatives in government, e.g. public land.”

IS THE CBK MOVE PRO-PUBLIC INTEREST?

Arguments against the CBK’s decision.

Some have argued that the reintroduction of the charges collides with the protection of public interest; an argument premised on an interpretation of the CBK’s mandate espoused in article 231 of the Constitution of Kenya. The provision tasks the bank with the obligation of formulating monetary policies affecting the nation. It has been argued that this mandate must be exercised within the principles of public finance and that public participation is an imperative principle espoused in article 201(a) of the Constitution.

Critics of the CBK’s decision go on to argue that all state organs in Kenya are bound by the national values and principles of governance whenever they make or implement public policy decisions. This means that inclusiveness, participation of the people, and sustainable development ought to be considered.

It is worth noting that the Central Bank of Kenya consulted payment system providers and banks regarding the reintroduction of charges. The report does not mention the citizenry among the consulted stakeholders, hence the critics’ static position that the inclusiveness and participation of the people were not factored in during the process of reintroducing the charges.

It has also been argued by commentators and legal pundits that the Central Bank of Kenya is bound to ensure the policies it makes or implements contribute to sustainable development. The contribution towards sustainable development at any point ought to factor in; the equitable use of the financial resources and the exploitation of the financial resources in a way that is prudent, rational, wise or appropriate. Additionally, the financial resources ought to ensure that environmental considerations were integrated into economic and other development plans, programs, and projects (the principle of integration).

Based on the above metrics, critics feel that the Central Bank of Kenya has not availed any information showing adherence to the metrics; alluding to the failure in transparency on the part of the Central Bank of Kenya.

Arguments in Support of the CBK’s decision

The subject of public participation has been one of the most radioactive matters in the Superior Courts in Kenya.

Patrons of the Central Bank of Kenya’s decision make specific reference to the case of Republic vs The Attorney General & Another ex parte Hon. Francis Chachu Ganya (JR Misc. App. No. 374 of 2012). The High Court was categorical that there is no steady test for public participation. The Court went ahead to outline various considerations that should be taken into account any time a tribunal is called upon to determine whether or not public participation was sufficiently carried out.

One of the outlined elements that align well with the promoters of the central decision is that In determining inclusivity in the design of a public participation regime, the government agency or public official must take into account the subsidiarity principle: those most affected by a policy, legislation or action must have a bigger say in that policy, legislation or action and their views must be more deliberately sought and taken into account.

The Court went on to say that the right of public participation is not meant to usurp the technical or democratic role of the officeholders but to cross-fertilize and enrich their views with the views of those who will be most affected by the decision or policy at hand.

The endorsers of the CBK’s decision are convinced that the CBK exercised its mandate within the defined legal parameters by carrying out consultations amongst key players; in other words, those most likely to be affected by the decision.

Conclusion.

In an unbiased assessment of the arguments reproduced in this article, one thing is evident. Essentially, these are conversations that merit discussion on a national scale. Maybe it’s time the nation held conferences, symposiums, and other forums to ensure that policies, guidelines and legislation, in general, are intellectually cross-fertilized to address the thoughts and concerns of the citizenry in an adequate manner.

The information provided in this article is intended for general legal advice and does not constitute legal advice for a specific transaction or case. Since each transaction represents a unique legal context, it is advisable to retain a legal adviser for specific transactions.

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