By Kelvin Mugwe
The Kenyan society has perfected the art of “touch and go”. Political, social and economic occurrences are at times received with insurmountable excitement and at times utter disgust. However, the emotions instigated by these occurrences quickly subside upon the emergence of new incidents. The opinions and feelings of the hoi polloi immediately shift to the latter incident and the former becomes almost non-existent. Despite this penchant to briskly indulge in new issues and turn a blind eye to the older ones, there are matters that have become inherently attached to Kenyans. One such matter is betting, which shall form the subject of this discourse.
A sizeable number of the Kenyan populace has lately been engrossed in the novel and at times lucrative art of betting. This practice, which has been embraced whole-heartedly by most, has even attracted greenhorns who have hitherto wandered in the sport’s wilderness. Save for a few dissenting voices, there is general consensus that betting currently forms a core part of the lives several people, especially the youth. Nevertheless, most participants are oblivious of the legal regime under which it falls – The Betting, Lotteries and Gaming Act of 1966, CAP 131.
The Act was assented to on March 11, 1966, and came into effect eight months later. Negligible amendments have been made in the Act to date, and this is probably as a result of the industry being in a state of stagnation. The industry has in recent times sparked into life, and thus ignited calls for significant changes to be made on the Act. Prof Musili Wambua, the immediate former chairman of the Betting Control and Licensing Board (BCLB), once stated that the industry has gone well ahead of the regulator in terms of enforcement. He further added that there is need for the Act to reflect technological advancements, noting that the BCLB had made a raft of proposals that would ensure the Act is effectively upgraded. The board suggested that the Government should start charging a gaming tax as the current tax model does not secure funds for the Kenya Revenue Authority (KRA), other than withholding tax on winnings. The board also called for regulation of the players in the betting sector who enjoy unfettered discretion with regard to how they choose to deploy the money collected. The desire to change the Act by the Board is also shared by the betting operators, with most calling for a level playing field.
In light of the foregoing, Parliament heeded to the calls to amend the Act through the Betting, Lotteries and Gaming (Amendment) Bill, 2015. While salient amendments have been included in the bill, it still fails to address pertinent concerns. One, the Bill addresses matters pertaining to taxes only by introducing four different kinds of levies: it establishes a betting tax chargeable at the rate of 7.5 per cent of the gross betting revenue, a lottery tax chargeable at the rate of five per cent of the lottery turnover, a gaming tax chargeable at the rate of 12 pc of the gross gaming revenue and a prize competition tax chargeable at the cost of entry to a competition, which is premium rated at the rate of fifteen per cent of the total gross turnover. It is indisputable that these taxes are of fundamental importance to the government, especially taking into consideration that it has been grappling to raise funds to fulfil election pledges and drive its development agenda. This, however, does not negate the fact that the amendments are indiscriminately insufficient.
The Act needs further changes so that it may cease being in the archaic state it is presently. There has been no attempt to upgrade the Act to mirror the immense technological advancements as was proposed by the board. The Act, under section 2, limits the instruments of gaming to cards, dice, counters, coins, tickets, gaming tables, boards, boxes, or other things devised, or birds and animals used, for the purpose of gaming.
Furthermore, it recognises gaming premises, to which the public has or may have access for the playing therein of a game of chance. These provisions clearly illustrate deficiency in technological input. The scope of the instruments of gaming has expanded to comprise computers and mobile phones with the use of internet being sine quo non so as to facilitate gaming. This has, in turn, had the effect of rendering gaming premises irrelevant.
It is therefore imperative that the Bill should incorporate these advancements to befit the contemporary world. Failure to do so will leave the Act greatly perverse and antiquated as a result of various reasons.
Firstly, Section 29 of the Act provides that a person who frequents or loiters in a street or public place, on behalf either of himself or of any other person, for the purposes of bookmaking, betting, agreeing to bet, or paying, receiving or settling bets shall be guilty of an offence and liable to a fine not exceeding five thousand shillings or to imprisonment for a term not exceeding six months, or to both. It in essence outlaws betting in public places. The enforceability of this provision under the current tech-savvy dispensation is a herculean task. The Act is regrettably out of touch with the technological advancements alluded to earlier as online betting can be executed with ease regardless of the location.
Secondly, section 28 of the Act prohibits betting with persons below the age of eighteen years. The section intimates that such an offence shall lead to a fine not exceeding three thousand shillings or to imprisonment for a term not exceeding three months, or to both.
The general public, including the young, currently have almost unlimited exposure to gadgets with internet access. This online platform allows the non-adults to engage freely and undetected in betting as the tools to do so are at their disposal at all material times.
Thirdly, lack of technological safeguards in the law compromises the sanctity of the sports subject to betting. This is informed by the fact that online betting can easily breed match-fixing. The players and stakeholders of these sports can participate in the process of online betting and this would erode the purity of the games. According to SportPesa, one of the licensed bookmakers in Kenya, the phone numbers of players and officials have been de-registered as a first step towards curbing march-fixing. This solitary step is laughably deficient since, on its own, it cannot effectively curtail the involvement of the players and the officials. They can easily acquire new phone numbers or, alternatively, use the numbers of their friends and acquaintances to place bets. This state of affairs can easily lead to unjust enrichment of the players as well as derogate partiality among the officials.
It is clear that there is desperate need for the Act to have a facelift. It is reprehensibly devoid of technological input, which makes it unpalatable. There is an unassailable gulf between betting recognised in the Act presently and the betting that has taken Kenyans to a frenzy recently. More, specifically-tailored amendments need to be included in the Bill.
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