On the Irrigation Act, Attorney General Githu Muigai is correct

On March 22, this year by a legal notice which was published in a Kenya Gazette Supplement, Attorney General Githu Muigai effectively reversed an earlier Kenya Gazette notice which had repealed the Irrigation Act, Chapter 347 of the Laws of Kenya.

The Attorney General (AG) termed the earlier repeal of the Irrigation Act “an error” and by publishing this notice he, in effect, restored the repealed Act back into the statute books. That means that the Irrigation Act, under which the National Irrigation Board (NIB) operates, is still in existence.

A number of legal commentators, including some who are very widely read, have argued that the AG had no powers to reverse a notice which had been procedurally printed by the Government Printer and that, therefore, his action was null and void.

Acted prosessionally

But there are others, including Mr John Mututho, who was then the MP for Naivasha and the Chairman of the Agriculture, Livestock and Co-operatives Committee in the 10th Parliament, who have maintained that the AG acted both professionally and within the law when he moved to de-gazette the repeal of Chapter 347 of the Laws of Kenya.

This dispute raises one very basic question which calls for much wider public participation: What is the law? Is it what is actually passed by Parliament or what is finally put out by the Government Printer? Or, to paraphrase this question, are our laws made by Parliament or by the Government Printer?

The facts of this matter are very simple. The Irrigation Act had, indeed, earlier been repealed by Parliament during its initial deliberations which finally led to the enactment of the Crops Act, 2013. But at the Committee stage, this Act was then spared and in effect retained in our statute books through an amendment which was moved by Mututho.

According to the Hansard records of December 13, 2012, the proposed repeal of the Irrigation Act was itself reversed through an amendment which was proposed by Mututho and passed unanimously by all the MPs who were present under the chairmanship of Mr Ekwe Ethuro who was then serving as the Temporary Deputy Chairman.

The section which Mututho sought to delete was worded like this: “The National Irrigation Board established under the Irrigation Act, Cap. 347, shall continue carrying out its functions as set out under the Act for a period of one year from the date of commencement of this Act.”

Mututho then moved to delete this sentence which appeared as clause (c) of the relevant section. From the chair, Ethuro then asked him the following question: “So, you are proposing that your proposed amendment will have (a) and (b) and then (c) is to be deleted in its entirety?” To which Mututho replied “Yes, Mr Temporary Deputy Chairman, Sir ” And there the matter was concluded and the Committee moved on to discuss other business.

The net effect of this amendment was that the earlier amendment had been cancelled and that, among other things, the National Irrigation Board would continue operating as it had been doing under the Irrigation Act, Cap 347 of the Laws of Kenya.

Own laws

But when the Crops Act, 2015 was finally printed by the Government Printer, this final amendment which Mututho had proposed and Parliament had passed was not included. The clause (c) which was supposed to be deleted in its entirety had not been deleted.

In effect the Government Printer was making its own laws by ignoring or deliberately omitting some legitimate amendments which Parliament  had passed. It is at this point that the AG came into the picture.

Following a letter which was written to him by Mututho himself and copied to the Clerk of the National Assembly pointing out this howling anomaly, the AG then moved to correct the “error” so that what Parliament actually passed could be reflected in the Crops Act, 2013. That, very briefly, was the genesis of the AG’s legal notice published on March 22, this year.

If one considers the substantive matter which was the issue here, there can be no doubt that the AG was correct. He did indeed move to correct an error and thus to ensure that the real will of Parliament was reflected in the Crops Act, 2013.

Finally, just two more issues. First, who is policing the Government Printer? How many other Acts has it printed which do not reflect or capture what was actually passed by Parliament?

Second, as the new government moves to implement its policy of irrigating at least one million acres over the next five years, it would appear that not only should the National Irrigation Board be retained but that it should also be strengthened so that it can execute its core mandate more effectively.

With its institutional memory, its technical expertise and its national reach, it seems uniquely placed to push the national irrigation agenda forward. Little wonder then that Parliament moved to keep the Irrigation Act intact.

The writer is a lecturer and consultant in Nairobi.

[email protected]