Lessons from a saga of law making and unmaking

Among familiar problems with our law making is that too often Acts passed by Parliament are held unconstitutional, some for inadequate public participation. Others are inconsistent with the constitution – which means they were not scrutinised carefully enough in Parliament.

When courts direct, or advise, Parliament to pass laws, because there is a gap or a law has been declared unconstitutional, too often Parliament (and the Attorney General) seem to take little notice. Last week Emily Kinama wrote about the FGM law, unchanged three years after a court direction.

Neither the Contempt of Court Act nor the section of the Elections Act about recall of MPs, both declared unconstitutional years ago, has been replaced with any law at all, let alone improved law. Do MPs perhaps not want good law about recall, nor, as they see it, any law about disobeying court orders?

Last week I was surprised, reading a case about the reaction to TV stations broadcasting live coverage of Azimio demonstrations, to find this statement from the judge: “At the time this suit was filed, the Statutory Instruments Act had not been repealed by the Finance Act 2023”.

What business would the Finance Act (about taxes) have repealing the Statutory Instruments Act? From the Finance Act I found that the judge actually meant that it had repealed section 21 of the Act only. My research revealed an interesting story.

The Statutory Instruments Act

This Act – mostly copied from Australia – became law in 2013. The expression “statutory instrument” (SI) was not I think previously used in Kenya. It means regulations and other documents with legal force made by somebody (like a Cabinet Secretary, the Chief Justice or a statutory corporation) under authority given by Parliament in an Act.

There is a democratic deficit issue about this. A case in Nigeria even challenged (unsuccessfully) the whole idea as unconstitutional because law was to be made by Parliament. Our constitution recognises, and guides, the idea specifically. And in reality it would be hard to function without a system of such laws.

Regulations are very common, and are often longer than the Act authorising them. In 2023 the relevant National Assembly Committee dealt with 30 SIs called “regulations” so probably long, and many shorter. Last year Parliament passed just 13 new Acts (excluding Acts only altering existing law).

The SI Act has good ideas. It requires public participation in making SIs – though only of “persons or stakeholders that the statutory instrument may directly or indirectly apply to”. However, the Constitution requires wider public participation.

The Act also requires each SI to have a memorandum explaining what it is about, and also a “regulatory impact” statement about its purpose, likely effects and alternatives. Though this is only if the document “is likely to impose significant costs on the community”. Some of these statements are detailed – more so perhaps than information Parliament gets before passing a Bill.

Traditionally Parliament did not consider most regulations. It could do so and even reject them. Occasionally an Act would require a set or regulations to have positive approval from Parliament to become effective. The SI Act made this the general rule.

The committee does work hard. A rough count from the “Statutory Instruments Tracker” on Parliament’s website indicates that in 2023 it proposed changes and then approved 11 documents, met with the agency drafting the document and finally approved it in 10 cases, approved without a meeting in 10, rejected three, and had met the relevant agency but made no final decision in two cases. The Senate is involved in issues that affect counties. Their tracker does indicate that they recommended rejection of one, with which the House then agreed. It was (guess what!) regulations making law the decision of the Salaries and Remuneration Commission – something Parliament cannot change.

It’s disappointing how often Parliament’s decisions are self-centred.

The issue

The Kenyan SI Act adopted a rule based on an Australian one: that regulations would expire after 10 years unless Parliament passed a resolution to extend them. The mover of the Bill, Amina Abdulla, MP, said, “We realised that there are a lot of outdated statutory instruments and some of them have been overtaken by amendments to the parent Act.”

The Act said that the object was to reduce the burden imposed by unnecessary regulations, and to ensure that those that remain are relevant to the needs of Kenya, that law retained is of the highest standard, and that these laws are kept under continuous review. The first three come from the Queensland (Australia) Act.

Apparently Parliament (and the office of the AG) promptly forgot about this particular issue. But 10 years ended for some regulations. Some awareness dawned. In June 2022, the Finance Act 2022 extended the life of various finance related regulations for two years.

Lesson: the expiry idea was not fully understood or explored.

Then realisation dawned that hundreds of instruments would soon expire because of the SI Act (actually 1764 of them). This was because a rather unclear section in the Act seems to say that all existing SIs were regarded as affected by the new Act – so would expire after 10 years.

Lesson: language in Acts must be clear.

Two Statutory Instruments (Exemption from Expiry) Regulations were made, one by the Parliamentary Service Commission about five relevant Acts and the second by the Attorney-General about 400 other Acts. Both said that instruments made under one of those Acts would continue for 12 months from the 25th January, 2023, but only if they “have a continuing purpose”. What a mess! Who was going to decide if a document had a continuing purpose? And the SI Act said that there could be only one extension. So within a year 1700 instruments had to be reviewed, maybe changed, and readopted if they were to survive.

Lessons: hurriedly made laws are likely to be ill-thought through. And procedures for making laws work must be developed (Australia has done this for this issue in detail).

The solution decided upon was simply to do away with the automatic expiry provision.             

The parliamentary committee that looked at the Finance Bill proposed not repealing section 21 of the SI Act. Apparently they thought it would remove all powers of Parliament over SIs, even repeal the whole SI Act. Why they thought this is unclear. The Bill as published just proposed to repeal section 21 – just about automatic expiry.

Lesson: people involved in law making must read it, and suggestions for change, very carefully and think.

The true situation (or fiasco) was really not aired in Parliament. The reason given was that the AG can already omit regulations – if and when he publishes a compilation of the Laws of Kenya. This has not happened since 2017 I think. And the AG’s only power is to not publish some regulations. He cannot change them or repeal them. Anyway, most people use the online version that he does not edit.

Sneaking in amendments

This amendment should not have been in the Finance Act. How many people even noticed it? A decade ago Speaker Marende make rulings on this issue, quoting with approval the standard English work on parliamentary procedure, Erskine May: “Provisions not essentially connected with national finance or not incidental to the taxing or administrative provisions of a Finance Bill are outside the scope of a Finance Bill.” A few other amendments had no business in this Act, including on pensions of state officers.

Lesson: Parliament’s understanding of its own procedures is a bit shaky.

Final lessons

The result of the whole saga was that a potentially useful section of an Act was never considered properly when passed, and has been removed without proper discussion. And section 20 is left stating the objects of section 21 that no longer exists.

Law making must be taken more seriously.

Maybe MPs should spend less time on CDF and the like and more on what we pay them for, like making law.

This article was first published by the Star Newspaper https://www.the-star.co.ke/siasa/2024-02-25-ghai-lessons-from-a-saga-of-law-making-and-unmaking/

Image: FILE


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