Transparency is a national value. In fact, ‘transparent’ or ‘transparency’ appears 13 times in the Constitution, in relation particularly to elections and management of public money, but also to land and judicial administration, and the general operation of the public service and the police.
IMPORTANCE OF TRANSPARENCY
Law directs people — including the public, not just people in public service — how to behave. It’s not just a question of criminal law. Most people know about many crimes in the Penal Code, even if they would not know in detail the possible consequences of committing them. Murder, offences of dishonesty, sexual offences and so on are against morality as well as law. But there is a great deal of law, even criminal law, which is not so clearly related to morality.
In 2017, Parliament passed 32 Acts. Several related to allocation of funds, three related to particular professions, three were about how counties operate and one was a new law for the Public Service Commission. Three related to trade and commerce, while the others covered a variety of topics. Twelve Acts amended existing law. One was the Election Laws (Amendment) Act, passed by Parliament but not signed by the President, so it became law automatically two weeks after he received it. It has since been declared partially unconstitutional by the courts. A Statute Law (Miscellaneous Amendments) Act changed 34 other Acts.
Among the 2017 Acts, several created new bodies, meaning new jobs — full- or part-time — new burdens on us the taxpayers. The Kenya Trade Remedies Agency, in an anti-dumping Act, the Occupational Therapy Council, the Hydrologists Registration Board, the Board of Trustees for the President’s Award, the National Coroners Service, with a Coroner-General, and the Kenya Health Professions Oversight Authority under the Health Act — and the Kenya Health Human Resource Advisory Council.
Other important things are done in these Acts. Several create crimes and impose considerable penalties.
“Ignorance of the law is no excuse.” So we must be able to know what the law is. With modern communication facilities this ought to be no problem. And we are fortunate because we do have a body that publishes laws on the internet (if you have never used it – go to www.kenyalaw.org).
Law is made — particularly by Parliament and county assemblies — by people we elect, or those supposed to act on our behalf. A lot is in the form of regulations, by Cabinet secretaries and various institutions. Regulations are supposed to go through public consultation and be presented to Parliament (or county assembly) for approval.
LACK OF TRANSPARENCY
It is not easy to know what Parliament is doing. You need to go both to Parliament’s own website (www.Parliament.go.ke) and that of Kenya Law to get both reasonably up to date information on Bills (proposed laws) and the text of the Bills.
Worse is the lack of good information about why new laws, or changes, are proposed. The public, and parliamentarians, should be able to understand what the current law is, why change may be needed, what the change will achieve, and perhaps what other countries with similar circumstances do. Though each Bill does have an ‘Explanatory Memorandum’, this usually explains little, and compares unfavourably with the detailed background material you will find in some other jurisdictions.
To know when an item is coming up for discussion is not easy. Order papers (agendas) for each day are created and published just a day in advance. But could Bunge not learn from some other jurisdictions and have a website page for each Bill, linking to documents on the Bill, reports of committee proceedings and Parliament (Hansard), indicating what stage discussion has reached?
Kenya prides itself on its IT skills, and Bunge does not lack resources — it costs us more than the entire Judiciary. As it is, connecting the various bits of relevant information is difficult.
When a Bill for a new law is nearing the end of the process, the order paper will indicate any changes the relevant committee proposes in it. But there are no explanations for these proposals. These are not really reports — more like shopping lists.
Indeed, parliamentary committees are even more of a closed book than Parliament itself. This very week, three committees were to consider Bills, but all decided to sit in closed meetings. Why should consideration of Bills be secret? The Constitution says private sittings must be held only in exceptional circumstances. The Departmental Committee on Agriculture and Livestock did not even reveal which Bill/s it was to discuss.
Very few committee reports are made public (at least on Bunge’s website). The Committee on Transport, Public Works and Housing has produced some — though not very informative. There was a fairly detailed committee report on the infamous Election Laws (Amendment) Bill.
The Constitution says a law passed must be published in the Gazette, and comes into legal effect 14 days later, unless it gives a different date itself. Last week, the Gazette announced the publication of three ‘legal notices’: One set of regulations, and two Bills. By Tuesday this week, none of these was actually available at the Government bookshop. It is normal for publication to be delayed for 10-14 days. Yet, regulations are supposed to become effective on the day they are published in the Gazette. If listing them on the contents page of the Gazette is the ‘publication’ date (and it is hard to say what other date can be) they become law before anyone reads them, a gross violation of the rule of law.
Statute Law (Miscellaneous Amendments) Bills are another opaque device. In theory, they deal with minor, non-controversial matters that do not merit individual amendment Bills for each Act. Fair enough, if it is to change Independence Day to Jamhuri Day, or ‘minister’ to Cabinet Secretary’. But many of these Bills contain controversial or policy issues that should be openly presented and discussed. At least one is passed each year.
Recently, two were published on the same day (officially April 10 but in reality later) — one for law changes affecting counties and one for others. Between them they contain 170 pages of amendment and amend 80 Acts. Some changes for a single Act cover several pages. These Bills have no effective contents list showing which laws are to be changed. Among the proposed changes is to give Parliament power to vet members of the Judicial Service Commission elected by the various courts (a current controversy).
The Explanatory Memorandums do not necessarily explain every change — omitting, for example, the mysterious one that removes the Anti-Corruption Commission from the category of ‘investigative agency’ in the Act on the DPP (see Wednesday’s Star). The DPP is currently able to direct the EACC to investigate, and cooperate with it, while it is supposed to supply the DPP with all relevant material collected during an investigation. It seems the plan is to remove these requirements. Why?
This is an underhand way of changing the law, and one that makes it hard for the changes to receive careful consideration in Parliament. Five Kenyan judges observed that “It is clear that both on policy and good governance, which is one of the values and principles of governance in Article 10 of the Constitution, … omnibus amendments in the form of Statute Law Miscellaneous legislations ought to be confined only to minor non-controversial and generally house-keeping amendments.” One judge said in another case that a change that impacts on the letter or the spirit of the Constitution cannot be termed minor, non-controversial or house-keeping. Clearly a (probably unconstitutional) change to vetting of JSC members is not minor.
Some might blame pressure of time and resources, but, in reality, the lack of transparency reflects an unreformed attitude of both politicians and public service that treats the people as not really needing to understand state policy and practice nor to be involved. Such violation of a major constitutional principle undermines other principles, like democracy and accountability of government.