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Kenya Finance Bill (2019) - ARTICLE 19 and KICTANET Joint Submission.pdf

The Finance Bill 2019 currently being considered by the Finance Committee of the National
Assembly needs significant revisions to ensure that its protections are in harmony with those of
fundamental rights of freedom of expression (or FOE) and the right to information (or RTI) as
recognized by the Constitution of Kenya and international law.
The current draft fails to recognise that the Kenyan jurisdiction has a nascent digital economy
whose dynamism will be stifled via the imposition of onerous taxation burdens which are not
adequate to protect freedom of expression and no provisions on ensuring that the law is consistent
with the Access to Information Act and the Constitution. Instructively, Uganda’s failed imposition
of Over the To (or OTT) taxation not only led to declining internet penetration rates, but also
denied existing, vulnerable and marginalised communities their rights to access information and
freely express themselves.
Recommendations:
1. The Finance Committee of the National Assembly should re-define its definition of a ‘digital
marketplace’ which is vague and may impact FOE and RTI disproportionately.
2. The Finance Committee of the National Assembly should postpone the imposition of
taxation on Kenya’s nascent digital economy1
until a thorough cost-benefit assessment has
been conducted and takes account of the difficulty latent in determining economic presence
in dynamic digital transactions.

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