The Star carried a headline a week ago: “400 laws in jeopardy after senators reject 1,700 regulations”. What did it mean?
It refers to a monumental mess-up. Let’s start with “regulations”. This refers to one of four types of law in Kenya. (We don’t have time to look at one type – that made by judges.)
Types of law
First in status is the constitution. This was made by a mixture of commissions and committees, public input, Parliament – and a referendum.
It can be changed by Parliament alone sometimes, or by Parliament and a referendum, or by the people if there is a popular initiative and Parliament does not cooperate in adopting the proposed changes. In which case there must also be a referendum.
No other law is valid if it conflicts with the constitution – and the courts finally decide on this.
Acts of Parliament (or of county assemblies) are made by procedures laid down in the constitution (or in standing orders made by the relevant agency).
Often more detail is needed than can be included in an Act. The most common solution is to allow the relevant Cabinet Secretary to make those detailed rules (usually called regulations).
This is only possible if an Act allows it – the Act delegates the power to make law. Sometimes this is called “delegated legislation”. This must only do what the Act allows.
There are risks. The CS may not get round to making the regulations for a long time, so the law never works properly. The next is that the regulations will go much further than Parliament intended. And there is the process – making an Act is a fairly public process. Making regulations is often very secretive. It’s not democratic.
In the UK, the House of Lords recently said that many Acts of Parliament leave too much to be filled in by rules made by the executive.
“This means that it is increasingly difficult for Parliament to understand what legislation will mean in practice and to challenge its potential consequences on people affected by it in their daily lives.”
You might think “Parliament makes the law” – but the truth is that many laws are drafted by government and it may be hard for Parliament to make radical changes.
Our constitution does set out to deal with some of the most basic issues. It says that when any law gives anyone else the power to make laws (delegated legislation) the main law made by Parliament or a county assembly must be very clear about why the power is given, and the extent of the power to make law (Article 94(6)).
An example
A new Children Act passed last year speaks of “regulations” 53 times. It permits, or requires, regulations about child work, programmes to strengthen families, child charitable welfare programmes and institutions, foster care placement and adoption to be made by the CS or National Council for Children’s Services.
Some are vaguely “to give effect to” a section or Part of the Act – is this constitutional? Clearly this 190-page Act needs many regulations which will greatly affect the lives of children.
The Statutory Instruments Act
This Kenyan Act was made in 2013. It seems to have been copied from or inspired by Australian law.
It does several things. First it requires that all regulations etc., after they are made and published in the government Gazette, go to Parliament to be approved.
Before the Act, the practice was that generally regulations could be fully effective unless Parliament chose to reject them. But now every one must go to Parliament for a positive vote (unless the law that allows the making of the specific regulations says otherwise). In other words, Parliament was taking more power over regulations.
Secondly the Act laid down detailed rules about the process for making regulations. Public participation in making them is generally required, and each set of regulations must be accompanied by a detailed explanation of their expected impact.
And thirdly the Act limits the life of regulations. They will die after 10 years. They could be brought back – the same or with changes – and re-enacted. But they can’t just be left and still remain law.
What is the purpose? Sunsetting provisions of laws like this should force government to study the working of regulations, and ensure that they do not continue if they are not effective – and can persuade Parliament.
What has happened since?
Fairly obviously, if regulations are to die after 10 years, a process of thinking about their future should have begun straight away. But it seems that it did not.
We needed a document like Australia’s “Guide to managing the sunsetting of legislative instruments”. This sets out practical advice for analysing regulations already in force, including a timetable of how long it takes to draft new instruments if that is what is needed. Each ministry or other agency responsible for needs to begin that process in good time.
But in Kenya the first 10 year deadline was in January this year. It is not clear what preparations had been done, but it looks as though panic set in last year. There is a possibility of staving off the death of regulations for a year (once only). This is to be done by a regulation prepared by the relevant CS and sent to Parliament.
Regulations dealing with a large number of existing and about-to-expire regulations were prepared. In March the relevant committee of the National Assembly approved the regulation which suspended for a year the death of a big batch of regulations (some just 10 years old and some much older).
This month the same regulation suspending death was considered by the Senate committee. They refused to approve it because the suspension regulation was supposed to come from the relevant CS, not the Attorney General.
What happens now?
Can the Senate do this? I think the answer must be: the Senate has power to approve or reject only regulations that affect counties. Justice George Odunga decided that a few years ago.
So even if the Senate committee was right about the AG having no power to prepare the suspending regulations, this can only impact regulations affecting counties. All the others have been already given a year’s lease of life by the National Assembly even if that body was misguided.
Presumably lawyers in various ministries are now frantically making suspension regulations for their own CSs to submit affecting regulations for which they are responsible.
Can Acts of Parliament function without regulations? Sometimes yes. And if the Act gives people rights then as far as possible efforts should be made to protect those rights even without regulations. I said last week that courts have held that the National Land Commission can deal with historical injustices cases even without regulations. But some Acts may just be unworkable without regulations.
If the Star was right – that 1,700 regulations should have ceased to be in effect, affecting 400 Acts of Parliament – how can they all be scrutinised within their ministries and if necessary resubmitted, with or without changes, to Parliament within now less than a year?
The remaining questions
The overwhelming question must be – where were the minds of the people who should have been thinking about whether regulations should be continued and how they should be revised for the last 10 years? This must mean civil servants within ministries but perhaps overwhelmingly the Office of the AG – both the current one and the previous.
Did Parliament, when it passed the Statutory Instruments Act, give any thought to the practicalities of what it was doing?
And what can now be done? Clearly there is a real mess. A large number of Acts of Parliament have been thrown into uncertainty. It may be that the only quick solution is to amend the Statutory Instruments Act itself, perhaps to say that its provisions about the expiry of regulations do not become effective until some time in the future. In fact this was done – for two years - for some tax-related regulations in the Finance Act 2022.
