BY Celia Becker
New Mauritius/Kenya tax treaty signed
During President Uhuru Kenyatta of Kenya’s state visit to Mauritius from 9 to 12 April 2019, a new double tax agreement (treaty) was signed between the two countries.
In terms of the Kenyan High Court decision of 15 March 2019, in the case of Tax Justice Network Africa (TJN-A) v. Cabinet Secretary for the National Treasury, The Kenya Revenue Authority and The Attorney General (Petition No 494 of 2014), the previous version of the treaty did not have legal effect in Kenya and the cabinet secretary was tasked to issue a new legal notice and to ensure full compliance with the Statutory Instruments Act, including presenting it, with all the required information, on time to parliament.
TJN-A argued that the treaty was unconstitutional on the basis, inter alia, that it failed to follow the required ratification process and limited Kenya's taxing rights under various articles, including reducing the withholding tax rate on fees from 20% to zero and relinquishing Kenya’s right to tax capital gains on the disposal of shares, thus undermining Kenya's ability to attain sustainable development.
The new treaty has not yet been made public and it remains to be seen whether the disputed provisions have been amended in the new treaty.