The National Transport and Safety Authority (NTSA) recently launched its Instant Fines Traffic Management System, a fully automated platform that issues fines via SMS and enforces a strict 7-day payment window. While the government frames this as a leap forward in transparency and road safety, the system has ignited a fierce legal debate.
The central question: Can an executive agency legally bypass the Judiciary to impose criminal penalties?
1. The right to be heard (Article 50)
At the heart of the objection is Article 50(1) of the Constitution of Kenya, which guarantees every person the right to a fair hearing before an independent and impartial court or tribunal.
Presumption of Innocence: Under the current NTSA system, an SMS notification acts as a conviction. It assumes the vehicle owner is guilty of the offense captured by the camera.
The Right to a Defense: In a traditional court setting, a driver can argue that they were not the person driving, the speed camera was faulty, or they were acting in an emergency (e.g., rushing a patient to the hospital). The automated system eliminates this “day in court” before the fine is imposed.
2. Separation of powers: Executive vs Judiciary
The imposition of a fine for a traffic violation is, by law, a judicial sentence.
- The Judiciary’s Role: Under the Constitution, only the Judiciary has the power to hear criminal cases, evaluate evidence, and determine the appropriate penalty.
- NTSA’s Overreach: As an executive agency, NTSA’s mandate is to regulate and enforce. By determining guilt and setting fines (which then accrue interest), the NTSA appears to be performing a quasi-judicial function without explicit statutory authority to do so in a way that finalizes a criminal matter.
3. Fair administrative action (Article 47)
Article 47 dictates that every person has the right to administrative action that is lawful, reasonable, and procedurally fair.
NTSA’s policy of blocking motorists from their service portal (preventing logbook transfers, license renewals, etc.) until a fine is paid could be viewed as an unconstitutional form of coercion. It punishes the citizen before they have had a chance to challenge the validity of the fine.
Previous NTSA attempts to phase out 14-seaters or introduce similar regulations have been struck down by the High Court (e.g., Justice Weldon Korir, 2020) because the authority failed to demonstrate sufficient public participation, a mandatory constitutional requirement for such far-reaching policies.
4. Legal Precedent: The 2016 & 2020 suspension
This is not the first time NTSA has faced this hurdle. In 2016, and again in 2020, the High Court suspended instant fine regulations.
Justice Roselyne Aburili ruled that the rules were unconstitutional because they violated the right to a fair trial. The court emphasized that a motorist must be given the option to either plead guilty and pay or go to court. NTSA’s current system skips the opt-in phase and treats the fine as an immediate, non-negotiable debt.
The NTSA’s intentions are clear: reduce road carnage and eliminate the culture of bribery during police stops. However, as critics argue, you cannot use illegal means to achieve legal ends.