Parliament shouldn’t pass statute law

By Eliud Owalo

Parliament needs to thoroughly interrogate The statute Law (Miscellaneous Amendments) Bill, 2013 for its efficacy in terms of constitutionality and effects on the People of Kenya.

The Bill in its “Memorandum of objects and reasons’’ is expressed to be a Bill “in keeping with the practice of taking minor amendments which do not merit the publication of separate Bills and consolidating them into one Bill’’. The entry point to critiquing this approach to the making of law our legislators have a remarkable record of passing laws whose contents they have neither read nor understand. A good example is the VAT Bill and the Media bill which they passed and later some disowned following public outrage. Secondly, an omnibus Bill carrying a raft of amendments contemplates minor changes, however a cursory look at some of the proposed changes reveal a complete overhaul of the Act, which calls for thorough scrutiny and public participation before enactment or amendment.

The proposed amendments to the NGO Act, now to be called the Public Benefits Organisation is the most drastic and left in its wake a civil society on the brink of being muzzled and gagged like was the intention with the Media bill. The proposed amendments inter alia seeks under section 27 (A) (1) to limit foreign funding to NGO’s to a maximum of 15 per cent, establish a “Federation’’ under section 27 (A) (2) and under section 10 A give sweeping powers to the “Authority’’ to from time to time impose terms and conditions for the grant of certificates of permits including powers for revocation.

Left unchecked this Bill could be the avenue to strangle the voice of the Civil Society and the Human Rights organisations largely responsible for some of the freedoms and liberties we enjoy today. The script seems to be that after the media, go for the civil society and who knows who is next, maybe the Church will have to start preparing for the era of state regulation, at this rate.

Other proposed changes which must be debated include the changes to the Criminal Procedure Act, which under the Bill purports to establish limitations to the rights to bail under the Constitution, which if not properly scrutinised may be a back door way to sneak in the era of holding persons for political reasons without bail.

This proposal must be scrutinized for compliance with Articles 19, 20, 21, 24, 47, 29 and 259 all of which call for the enjoyment of fundamental rights and freedoms to the greatest extent possible. An amendment to an Act should not be used to sneak in a police state and take away express provisions of the Constitution.

A proposal has also been sneaked in to the Director of Public Prosecutions Act which will move the process of extradition from the office of the Director of Public Prosecutions to that of the AG, a fact that has already created friction between the two offices.