A newspaper on Monday reported that MPs were attacking Uhuru era “laws”.
Their complaints related to what can be called “delegated legislation”. This is made when an Act of Parliament gives an office or institution the power to make what are usually called regulations – to flesh out the details required to make the law fully effective.
In fact, it is common for the volume of regulations made in a year (measured in words or number of pages) to be greater than the volume of Acts of Parliament for the year. You can imagine why they cause some concern. Here is a large body of law made not by the people’s representatives in Parliament (or other assembly) but by Cabinet secretaries who (in Kenya) are not elected, or other non-elected bodies.
Indeed in some countries. there has been much controversy, even court cases, over whether delegated legislation is even constitutional. In Kenya, we have no such doubt because the Constitution clearly anticipates the possibility of Acts that give power to make regulations and Article 94 sets out requirements for any Act that does this.
Examples of regulations etc. made last year are: Intergovernmental Relations (Alternative Dispute Resolution) Regulations, 2021 made by the relevant Cabinet Secretary.
Four sets of regulations under the Land Use and Physical Planning Act made by the Cabinet Secretary for Lands and Physical Planning
Amendment to the Police Service Standing Orders by the Inspector-General National Police Service.
But the sense that this is non-democratic remains. There was a long tradition that such regulations must be put before Parliament. Usually Parliament would be able to object to regulations. Occasionally an Act that gave the power to make regulations would say that they required the positive approval of Parliament.
But in 2013 Kenya’s Parliament passed an Act to regulate this power. The Act was modelled on one in Australia, and rather unthinkingly uses the same title – The Statutory Instruments Act”, thus using a phrase that we have not used in Kenyan law before.
It sets out the procedure for getting Parliamentary approval, and requires that every example of regulations gets positive approval – not just being exposed to the risk of being picked up and nullified by the MPs.
What is more, the Act says that every document that an Act authorises must be sent to Parliament for approval, including every “rule, order, regulation, direction, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution, guideline”. The relevant committee is very busy!
The Act sets out reasonable procedures for making these various documents, including public participation, and the preparation of a regulator impact statement setting out what the effect of the document will be.
And it should serve the useful purpose of discouraging government from making a lot of the law as regulations to in the hope that it will not receive rigorous scrutiny by Parliament – a problem in some countries.
I think, however, that some of the MPs’ claims about failures to involve them are unwarranted, or at least dubious.
CBC
They say the Competency Based Curriculum Policy was not brought before that committee. But a policy is not law. And it is not something prepared under a power given in an Act of Parliament.
Normally formal policies are taken as to Parliament. And this was actually done: In 2019 a Sessional Paper on a policy framework for reforming education was presented to Parliament and commented on by the relevant committee. Admittedly this was rather late in the day – the CBC curriculum was already in use. The committee said there should be a legal framework – and if any is developed it must go before Parliament either as a Bill or as a set of regulations.
I won’t go further into this – there is a court case soon to be heard that includes the issue whether the CBC ought to have been based on law –which would of course have involved Parliament.
SRC
The MPs have apparently complained that regulations made by the Salaries and Remuneration Commission about MPs salaries and sitting allowances had not come to the Parliament. Readers will, I am sure, say to themselves, “Of course not”! The SRC was created in part to take away from MPs the power to set their own salaries. They cannot be allowed to do it by the back door of vetting regulations that do this.
The document that set those salaries and allowances, in August this year, was made under Article 230 of the Constitution – not under an Act of Parliament. It is not, therefore, covered by that Statutory Instruments Act.
For the MPs to be able to vet such a document would also violate the Constitution’s provisions on conflict of interest. But anyway an ordinary Act of Parliament cannot be used to frustrate a constitutional function.
The MPs must know this – but it is their constant hope that they may somehow reclaim the power to set their own salaries.
CBK
Another complaint is that the Central Bank of Kenya has published what ought to be regulations in the form of a circular, which does not come before the National Assembly. This is part of a long-running feud between the National Assembly and the Bank. In March 2019, the House attacked the governor on the same issue, threatening him with dismissal proceedings (although, under the Central Bank Act, dismissal of the Governor does not seem to be a matter for the House).
The Governor explained to the House the difficulties in the new section of the Banking Act about these regulations. These included that the Bank had been presented with an impossibly tight timetable for the regulations.
Since that earlier confrontation between the House and the Governor, that section of the Banking Act has been declared unconstitutional by the High Court – for want of adequate public participation, particularly because it was introduced in the closing stages of passing of another Act, and was not something anticipated by anyone reading the original Bill.
The Constitution sets up the Central Bank as an independent institution that “shall not be under the direction or control of any person or authority in the exercise of its powers or in the performance of its functions”.
The judge in that case said this does not prevent Parliament from passing a law to say that the Bank must pass regulations. But for Parliament to be able to approve (and therefore to reject) regulations made by the Bank seems remarkably like Parliament directing the Bank.
MPs complain that bodies making regulations often send them to Parliament when it is not sitting. But under the Statutory Instruments Act, time limits are specified as “sitting days”. The Regulations once made must be laid before Parliament within seven sitting days and Parliament must make a decision within 28 sitting days. Sitting days would mean not during recess, and indeed not weekends and other days when Parliament does not sit. There should be no problem.
A final point: Under the Constitution, any Act of Parliament that gives a power to make regulations must be clear about how that power is to be used, including “the principles and standards applicable to the law made under the authority”. Many Acts of Parliament do give such a power, but few have made any attempt to make sense of this provision. However, to be fair, Acts are tending to give examples of the reasons why regulations might be made.
It is worrying to see MPs lashing out like this, when any problem should be resolvable by discussion. It gives the impression that once again Parliament’s preoccupation is with its own status.
It does not help for MPs to insist they have the exclusive power to make laws when it is clear that many other people have that power – with power actually granted by Parliament itself. And Parliament’s role is not then to make that law in regulations etc but only to check that it is properly made, constitutional and meets certain other standards.
