Plastic bags and subcounties may seem to have little in common. What links them is our governmentâs tendency to think it can govern by pronouncement â including banning the former or creating the latter.
THE NON-EXISTENT PLASTIC BAG BAN
Reading newspaper reports that using a plastic bag after the end of August could mean a minimum sentence of a year in prison, I thought, âThat canât be rightâ. This led me to a
Cabinet Secretary for Environment Judi Wakhungu says she has banned plastic bags. She published something she calls a âdirectiveâ in the Kenya Gazette in March. It says:
IN EXERCISE of the powers conferred under Section 3 and 86 of the Environmental Management and Co-ordination Act, it is notified to the public that the Cabinet Secretary for Environment and Natural Resources has with effect from 6 months from the date of this notice banned the use, manufacture and importation of all plastic bags used for commercial and household packaging â¦
Dated the 28th February 2017.
Letâs get something straight: The government has no power to tell us what to do (at least cannot compel us to do it) other than by law.
So what do Sections three and 86 of that Act allow Wakhungu to do? Section three says, âEvery person in Kenya is entitled to a clean and healthy environment in accordance with the Constitution and relevant laws, and has the duty to safeguard and enhance the environmentâ and various other things: Nothing specific about the Cabinet Secretary. Section 86 allows the CS to do certain things (mostly about waste), including identifying materials that are dangerous to human health and the environment, and issuing guidelines and prescribing measures for managing them.
I am afraid that the Gazette notice does not do what Section 86 requires, if the idea is to change the law. The notice does not pretend to be a guideline, but a ban. To compel people to do something â such as not using or producing plastic bags â guidelines would not be enough. Law is needed.
Law is made either by passing an Act of Parliament, or by making what is called âsubsidiary legislationâ, such as regulations, made by authority given by an Act. When Section 86 says the Cabinet Secretary may âprescribe measuresâ, it is giving the CS authority to make such law. In fact, the Interpretation and General Provisions Act says just that: âPrescribedâ means stipulated by the Act in which the word occurs or by subsidiary legislation made thereunderâ.
That Gazette notice is not subsidiary legislation. You canât make law by issuing a Gazette notice. In fact, Gazette notices do not have to go to the Government Printer through the Attorney General â precisely because they are not law.
The Statutory Instruments Act lays down the procedure for making subsidiary legislation. First, any regulations or other legal instrument made under an Act must be subjected to public participation.
Second, if regulations are likely to impose significant costs on the community the regulation making authority must prepare a âregulatory impact statementâ explaining and justifying those costs. Wouldnât banning plastic bags impose costs?
Third, regulations must be laid before Parliament within seven parliamentary working days â otherwise they cease to have any legal effect. I am unable to find that this âdirectiveâ ever went before Parliament in the formal way this is done.
Does the government seriously believe that it can ban production of something and stop us from using it by an 88-word statement in the Gazette?
Donât get me wrong: I am in favour of plastic bags (and indeed many other uses of plastic) being phased out.
But I care about the rule of law. This is not even an attempt to make law. And why donât MPs take their responsibilities seriously â which include vetting law made under an Act of Parliament?
THE DRACONIAN PUNISHMENT
Where did this idea about a minimum sentence of one year come from? The Environmental Management and Coordination Act says that anyone who âcontravenes any measure prescribed under this Actâ commits an criminal offence. The sentence is not less than one year and not more than four in prison, or a fine of two to four million shillings, or both fine and imprisonment. The same penalty applies to anyone who commits any offence under the Act, or under regulations, if no other penalty is fixed.
But the Act does not mention plastic, and there are no regulations, nor prescribed measure, on the subject. Just that âdirectiveâ.
Even if the penalty did apply, would it not be unconstitutional? The Constitution says that no one can be subject to cruel and inhuman punishment. Isnât a minimum of one year or Sh2 million fine for carrying a plastic bag cruel and inhuman?
THE CREATION OF SUBCOUNTIES
Presidents Daniel Moi and, especially Mwai Kibaki, loved creating districts. It was popular with voters. It was an election gimmick. You may remember that a court decided in 2009 that only changing the relevant Act of Parliament could create districts.
President Uhuru Kenyatta may realise he canât create counties, but The Star recently reported, âThe Jubilee administration has established new administrative units including eight subcounties, a number of divisions and locations across Kenya.â
Subcounties are geographically the same as parliamentary constituencies. The County Governments Act says county government functions and provision of services must be decentralised to urban areas and cities, âthe subcounties equivalent to the constituencies within the county established under â¦ the Constitutionâ, and wards and smaller units. Subcounties are to be county planning units.
It is true that subcounties are also administrative units of the national government, each having a âa deputy county commissionerâ. This is part of what used to be called âProvincial Administrationâ. The name has gone, but much of the structure survives, though now under an Act of Parliament. The Constitution says that it had to be restructured âto accord with and respect the system of devolved governmentâ. Please note: The national government system must accord with the county system, not the other way round.
The National Government Co-ordination Act is clear that when national government service delivery co-ordination units are established the Cabinet Secretary must ârespect the county government decentralised unitsâ established under the County Government Act â such as the subcounties. The national government can establish its own units only if the county has not done so.
I read this to mean that, if a subcounty is a functioning unit of county government administration, it is against the law for the national government to carve out a new subcounty.
What is more, there seems little doubt that this exercise is a vote-seeking device, just as the creation of districts was for President Uhuruâs predecessors. Dispensing money to voters for their votes is a crime. It is prohibited for any government to publish any advertisement of its achievements in any way during the election period. Clearly other governmental acts of what might be viewed as âlargesseâ, designed to entice people to vote in a certain way are, even if not crimes, equally improper. Dishing out title deeds, or creating âsubcountiesâ are examples. This violates the principle of the âlevel playing fieldâ for elections, which is one of the elements envisaged in Article 81 of the Constitution, which speaks of âfree and fair elections, which are â free from violence, intimidation, improper influence or corruptionâ.
RULE OF LAW 101?
Article 2 (2) of the Constitution says, âNo person may claim or exercise State authority except as authorised under this Constitution.â Action purporting to be state action must be authorised by the Constitution or by law (under the Constitution). Cannot someone instruct our current President, and his Cabinet Secretaries, in the elements of the Constitution and the Rule of Law? Clearly the Attorney General, who must know this is all wrong, has been unable to do so.
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