It is astounding to this writer that in the aftermath of the decision in TJN-A v KRA, the Petitioner chose to wave the victory flag, rather than challenge this problematic judgment in the Court of Appeal. It is difficult to see how a judgment that nullifies a Statutory Instrument intended to bring the DTA into effect, on the basis of a procedural error, and does not nullify the DTA itself, represents a “a win for Kenyans in keeping more revenues from bilateral treaties”. In fact, this judgment has introduced undesirable complexity by holding that double tax agreements are not treaties, and do not have to be ratified, a position that is untenable in light of the governing international law principles. Further, the Court failed to issue a definitive, or at least an indicative judgment, on how courts should approach constitutional challenges to substantive provisions of double tax treaties; such a judgment would have been very useful in similar cases in other developing countries in the Commonwealth. Finally, the judge missed an excellent opportunity to shape the emerging jurisprudence on public participation, in so far as it applies to public finance legislation in general, and negotiation of double tax treaties in particular.
Daisy L.A. Ogembo – DPhil in Law, University of Oxford.
Post comment: The problem may lie in the fact that the judiciaries in some of the African jurisdictions are not experienced and qualified enough to deal with these complex issues. This is an area of great development that will require much education. The issues raised in the matter deserve better exposure and analysis. But one African court will not achieve this. Academics and related tax practitioners will need to analyse and publish much more on this area of development.
It took over 10 years of research and putting education out there with developments in analogous areas before a tax court threw out a SARS assessment based on procedural transgressions without even considering the merits of the case: