Plastic bags and sub-counties may seem to have little in common. What links them is our government’s tendency to think it can govern by pronouncement—including  to ban the former or create 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 “That can’t be right”. This led me to a different line of thought and an unexpected conclusion.

The Cabinet Secretary, Environment, says she has banned plastic bags. She published something she calls a “directive” 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 …

Dated the 28th February, 2017.

Let’s 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 3 and 86 of that Act allow Ms. Wakhungu to do? Section 3 says “Every 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 environment” and various other things: nothing specific about the Cabinet Secretary. S. 86 allows the Cabinet Secretary 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—such as not using or producing plastic bags—guidelines would not be enough. Law is needed.

Law is made either by passing an Act of Parliament, or by making what is called “subsidiary legislation”, such as regulations, made by authority given by an Act. When s. 86 says the Cabinet Secretary may “prescribe measures”, it is giving the Cabinet Secretary authority to make such law. In fact the Interpretation and General Provisions Act says just that:

“’prescribed’ means prescribed by the Act in which the word occurs or by subsidiary legislation made thereunder”.

That Gazette notice is not subsidiary legislation. You can’t make law by issuing a Gazette notice. In fact, Gazette notices do not have to go to the Government Printer through the Attorney General – precisely because they are not law.

The Statutory Instruments Act lays down the procedure for making subsidiary legislation.  Firstly, any regulations or other legal instrument made under an Act must be subjected to public participation.

Secondly, if regulations are likely to impose significant costs on the community the regulation making authority must prepare a “regulatory impact statement” explaining and justifying those costs. Wouldn’t banning plastic bags impose costs?

Thirdly, regulations must be laid before Parliament within seven parliamentary working days—otherwise they cease to have any legal effect. I am unable to find that this “Directive” 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 using something, by an 88 word statement in the Gazette?

Don’t 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 do MPs not take seriously their responsibilities—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 “contravenes any measure prescribed under this Act” 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 “Directive”.

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. Isn’t  a minimum of one year or two million shillings for carrying a plastic bag cruel and inhuman?

The creation of sub-counties

Presidents Mo and, especially, Kibaki, used to like to “create” districts. It was popular with voters. It was an election gimmick. You may remember that a court decided in 2009 that districts could be created only by changing the relevant Act of Parliament.

President Kenyatta may realise he can’t create counties, but The Star recently reported that “The Jubilee administration has established new administrative units including eight sub-counties, a number of divisions and locations across Kenya.”

Sub-counties are geographically the same as parliamentary constituencies. The County Governments Act says that county government functions and provision of services must be decentralized to urban areas and cities, “the sub-counties equivalent to the constituencies within the county established under … the Constitution”, and wards and smaller units.  Sub-counties are to be county planning units.

It is true that sub-counties are also administrative units of the national government, each having a “a deputy county commissioner”. This is part of what used to be called “Provincial Administration”.  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 “to accord with and respect the system of devolved government”. 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 establishing national government service delivery co-ordination units, the Cabinet Secretary must “respect the county government decentralised units” established under the County Government Act – such as the sub-counties. The national government can establish its own units only if the county has not done so.

I read this to mean that, if a sub-county is a functioning unit of a particular county government administration, it is against the law for the national government to carve out a new sub-county.

What is more, there seems little doubt that this sub-county creating exercise is a vote-seeking device, just as the creation of districts was for Uhuru’s presidential 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 “largesse”, designed to entice people to vote in a certain way are, even if not crimes, equally improper. Dishing out title deeds, or creating “sub-counties” are examples. This violates the principle of the “level playing field” for elections, which is one of the elements envisaged in Article 81 of the Constitution, which speaks of “free and fair elections, which are—free from violence, intimidation, improper influence or corruption”.

Rule of Law 101?

Article 2 (2) of the Constitution says, “No person may claim or exercise State authority except as authorised under this Constitution.”. 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.