On 1st December 2102 certain provisions of the Traffic Amendment Acts No. 37 and 38 of 2012 came into effect. The provisions prescribe heavy fines and penalties for dangerous and careless driving; overloading by Public Service Vehicles (PSV); unauthorized or “squad” driving; obstructive parking; over-speeding; failure to wear uniform by PSV crew and failure to wear protective gear by motor-cyclists; overlapping; driving on pavements and failure to carry a driving licence  among other violations.

The new laws are aimed at regulating the chaotic public transport sector in Kenya but their implementation is already facing stiff opposition from public transport (Matatu) operators who view the new rules as a ploy to kick them out of business. But will the new laws make a difference in the transport sector? History shows otherwise.

In March 2004, the late Hon. John Michuki, then Minister for Transport, enacted the famous Michuki Rules to enforce mandatory installation of speed governors and safety belts in PSV matatus in a bid to enhance safety and instill order into the sector. In July 2008 the City Council of Nairobi attempted to effect the City Council of Nairobi (Omnibus Stations) Amendment By-laws, 2008 intended to decongest the Central Business District (CBD) by restricting matatus operating in certain parts of the City to designated Bus Termini. The Council failed in its quest after sporadic hitches in urban public transport occasioned by spirited protests by matatu operators.

The need for proper regulation of the public transport sector in Kenya cannot be over-emphasized. In a research carried out by the UK Transport Research Laboratory (TRRL), Kenya ranked the 5th highest number of accidents per licensed motor vehicles out of 29 selected countries worldwide. The exchequer, the general public and private business pay heavy costs for the hospitalization, treatment and rehabilitation of accident victims. They also bear the high price of material damage to motor vehicles, mobile plant equipment, damaged merchandise and lost man hours. This is without counting the cost of fuel wasted in incessant traffic jams and the ever rising premiums of underwriting the high risks associated with public transport. This is all due to selective application and laxity in the enforcement of traffic laws. 

Notably, 3 months after the promulgation of the Michuki Rules, road accidents declined nationally by 74% while accidents involving urban transport buses fell by a whopping 93%. This is no longer the case and every passenger or motorist will attest that only a few matatu operators are still complying with the Michuki Rules. Consequently, disorder has crept back into the sector and new rules notwithstanding, public transport in the country is still bedevilled with incessant turmoil. The problem therefore lies in enforcement rather than propriety of the law.

The Traffic Department of the Kenya police is conferred with the power to enforce the Highway Code and other traffic laws. This is where the structural weakness in the management of the public transport sector begins. Shortage of manpower in the Traffic Department has often been cited as a contributory factor. The amended Act now puts the Officer Commanding Police Division (OCPD) in charge of traffic matters and makes all Police Officers responsible for enforcing Traffic Laws. This may not solve the problem either.

The Police have repeatedly featured in the top ten bracket of the Transparency International Bribery Index mainly due to corruption within the Traffic Department. Their lethargic indifference, conflict of interest, selective application of the law and outright incompetence has left the fairly lucrative public transport industry to be invaded by cartels that have little regard for law and order, safety, comfort and the business interests of their clientele. It is the police who have over the years allowed matatu operators to become reckless merchants of death; licensed to kill and maim their own customers. The new laws may just give the police greater opportunity to propagate devious conduct in the enforcement of the Highway Code.

Parliament should never formulate laws in vain. Uniformity, clarity and certainty are the hallmark of any good regulatory legislation. The new rules are likely to be challenged before the Constitutional Court for criminalising inadvertent conduct such as forgetfulness as well discrimination against PSV Matatu and commercial vehicle drivers by selectively creating offences and imposing heavier fines and penalties that specifically target them as a group.

The law is obeyed not because it has some mystic powers behind it, but because it elicits voluntary compliance from the citizenry and/or is backed by the coercive machinery of the state. The new rules will only make sense if they are coupled with lasting reforms in the National Police Service and a clear enforcement strategy agreed upon by all stake-holders. 

By Capt.(Rtd) Collins Wanderi
Advocate, Commissioner for Oaths, Notary Public.
CHAIR-Kenya Institute of Forensic Auditors (KeIFA).