The National Transport Safety Authority (NTSA) in conjunction with the Traffic Department of the Kenya Police Service has of late been mounting operations to reign in on motorists who allegedly flout the speed limits, especially in urban areas. But what is the position of the law?
Driving and other offences relating to the use of vehicles on roads are provided for in Part V of the Traffic Act (Chapter 43 of the Laws of Kenya).
For ease of understanding, the relevant Sections are reproduced hereunder: Section 42 Speed of motor vehicles:
42 (3) No person shall drive, or, being the owner or person in charge of a vehicle, cause or permit any other person to drive, any vehicle at a speed exceeding fifty kilometers per hour or any road within the boundaries of any trading centre, township, municipality or city:
Provided that the highway authority shall erect and maintain traffic signs as prescribed so as plainly to indicate to drivers entering or leaving such roads or areas where the fifty kilometer per hour speed limit restriction begins and ends.
42 (4) Notwithstanding subsections (1) and (3), it shall be lawful for the Minister—
(a) to impose on any road such lower limit of speed as it considers necessary in circumstances when, by reason of repairs, reconstruction or damage to the road or the condition of the road, any lower limit of speed is necessary for the public safety or to prevent damage to the road: Provided that such lower limit shall be imposed only for such period as is necessary to carry out repairs or reconstruction or until the condition of the road is satisfactory.
(b) to impose on any road or area, either permanently or for such time as he considers appropriate, such lower limit of speed as may be necessary to prevent damage to the road or for the safety of the public having regard to any permanent or temporary hazards, the alignment or characteristics of the road, the width of streets, nature of traffic or general development of the area:
Provided that, in any case whilst such lower limit is in force under this subsection, indication of the maximum speed permitted shall be given by prescribed traffic signs erected and maintained so as plainly to indicate to drivers entering or leaving such restricted road where the lower speed limit begins and ends.
From the above, the following elements/conditions have to be satisfied:
1. Erection of traffic signs as prescribed so as plainly to indicate to drivers entering or leaving such roads or areas where the fifty kilometer per hour speed limit restriction begins and ends. The use of the word ‘shall’ makes it mandatory and not discretionary or optional.
2. Traffic signs should clearly indicate the beginning and end of speed restriction. Having signs just indicating the beginning doesn’t satisfy this requirement.
3.The traffic signs including their color, size and shape are prescribed in law hence any other signs purporting to be traffic signs should be rejected.
4. The above elements cannot be satisfied through public notices in newspapers or advertisements.
So how then can NTSA and the Traffic department enforce such speed limits in the absence of this element?
One cannot break the law in the guise of enforcing the law. Just like Equity demands of those who seek it, one needs clean hands. It is unfortunate that this is done in the back-drop of the Inspector General’s unrlawful order on tinted windows on private motor vehicles.
I therefore urge motorists and everybody at large to know the law and stop being harassed by law enforces who do not know the law. The Judiciary should also take action against judicial officers passing sentences on non-existent offences and non-existent sentences.
Last but not least, Section 43 (Penalties in relation to speed) provides that a person charged with the offence of driving a motor vehicle of any class or description on a road at a speed greater than the maximum speed allowed shall not be liable to be convicted solely on the evidence of one witness to the effect that in the opinion of the witness the person charged was driving the vehicle at such greater speed.
Meanwhile, Cofek should take an active role in ensuring the rule of law especially in such cases affecting the public. (By Maina Roy)