Curb abuse of delegated legislation by Executive

By APOLLO MBOYA

Delegated legislation (also referred to as secondary legislation or subordinate legislation or subsidiary legislation) is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation.

Delegated legislation is considered necessary for a number of reasons; one is that Parliament does not have the time available to debate all of the laws necessary, and as such other bodies are needed to make rules, and do so much faster than Parliament, therefore delegated legislation is often used for emergency and urgent problems where legislation is needed quickly and would take too long through Parliament.

Another reason is that some areas of legislation require technical knowledge, and Parliament would not have the expertise to create the necessary legislation. Delegated legislation is used to provide specific details not included within the Act.

There are three types of delegated legislation; statutory instruments which are regulations made by government departments, bye-laws which are made by county governments and local authorities, or public corporations, and Legal Notices issued by Cabinet Secretaries.

Delegated legislation, in the form of Statutory Instruments, is governed by the Statutory Instruments Act (No 23 of 2013) which provide for the making, scrutiny, publication and operation of statutory instruments. The Committee on Delegated Legislation established under the Standing Orders of the National Assembly or the Senate or any other Committee that may be established by Parliament is charged with the responsibility of reviewing and scrutinizing statutory instruments.

Most legislation contains clauses that allow for secondary legislation to be drafted or issued in certain vaguely specified areas at a later stage – a blank cheque, if you like. Eventually these supposedly refined measures are not presented to Parliament but made law with almost no debate. Statutory instruments are legal notices that can take the form of regulations, rules, bye-laws or orders for a wide variety of functions.

They allow persons or bodies to whom legislative power has been delegated by statute to legislate in relation to detailed day-to-day matters arising from the operation of the relevant primary legislation. Statutory instruments are used, for example, to implement environmental, road safety or broadcasting provisions that are contemplated in the governing legislation.

Specified Cabinet Secretaries and other agencies or bodies are authorised to make Statutory Instruments and several hundred instruments are made annually.

After the promulgation of the Constitution of Kenya 2010, statutory instruments have doubled, with a noticeable spike after the 2013 General Elections. Both the National and County Governments have been issuing statutory instruments, regulations and by-laws.

Much of this amounts to harmless regulations but increasingly we are seeing criminal offences created and financial burden imposed by unscrutinised measures that ride into the law on the back of primary legislation. The general point about statutory instruments is that they greatly increase the power of the Executive arm of Government by avoiding unfavourable publicity and critical examination.

According to the Statutory Instrument Act, every Cabinet Secretary responsible for a regulation-making authority is required within seven (7) sitting days after the publication of a statutory instrument, to ensure that a copy of the statutory instrument is transmitted to the responsible Clerk for tabling before Parliament.

In case a proposed statutory instrument is likely to have a direct, or a substantial indirect effect on business; or restrict competition; the regulation-making authority is required to make appropriate consultations with persons who are likely to be affected by the proposed instrument.

This is not currently being done. There are instances where the Parliamentary Committees may exempt certain statutory instruments or class of statutory instruments from scrutiny if the Committee is satisfied that the scrutiny is not reasonably practical due to the number of regulations in that class. The Reports of scrutinizing committees are required to be tabled before Parliament and County Assemblies for the purposes ascertaining their legality or otherwise of the statutory instrument. If the measure becomes law opportunities should be afforded for post legislative scrutiny to see how it is working in practice.

In order to reduce substantially the regulatory burden on the people of Kenya without compromising law and order, essential economic, environmental and social objectives; and to ensure subordinate legislation is relevant to the economic, social and general wellbeing of the people of Kenya, the law provides that a statutory instrument stands revoked on the day which is ten (10) years after its making unless it is sooner repealed or expires; or a regulation is made exempting it from expiry.

Parliamentary and County Assembly scrutiny of statutory instruments is woefully inadequate and urgent measures are required to provide better ways of scrutinising what are essentially ministerial and gubernatorial edicts. 

A statutory instrument should be published in draft form giving MPs, Senators and Members of the County Assemblies the chance to look at the measure on its merits and describe in simple terms what it means to the public.

The writer is Secretary/CEO of the Law Society of Kenya

mboya@lsk.or.ke