Parliament will have to pay more attention to the Constitution when making laws and prioritise reviewing dozens of existing ones if harmony in the Kenyan statute book is to be achieved, a Nation Newsplex review of parliamentary business in 2018 shows.
Data from the websites of Parliament (National Assembly and Senate) and the National Council for Law Reporting (Kenya Law), indicate that the 12th Parliament, which began sitting in August 24, 2017, made eight laws last year, a 65 percent slump from 23 in 2017, and the lowest in five years. The number of laws amended during the same period also dropped by 62 percent from 13, passed by the 11th and the 12th Parliament in 2017, to five.
This comes at a time when a report recommending that dozens of laws be amended or repealed, as envisaged in Clause 7(1) of the Sixth Schedule, has been lying on Parliament’s shelves for four years.
The clause provides that each law that existed before the promulgation of the Constitution of Kenya, 2010 on August 27, 2010 ''continues in force and shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution''.
The Kenya Law Reform Commission completed an audit in 2014 of the first 150 chapters of the statute book to identify the laws that were inconsistent with the Constitution and recommended to Parliament those to be amended or repealed. ''It is good practice to have laws that are consistent with the Constitution. As we continue to work with partners to promote that harmony, we can only hope that Parliament, as the constitutionally-mandated law-making body, acts on our report,’’ says Mr Joash Dache, CEO of the Kenya Law Review Commission.
Proposed amendments that have not seen the floor of the House include one meant to elevate local tribunals to be the subordinate courts they ought to be, under Article 169 of the Constitution, by freeing them from the control of the Executive and planting them in the independence of the Judiciary. A bill drafted in 2015 to facilitate the amendment has never been brought before the House.
''Many of these laws are made out of poor concentration and ill-will. We as the practitioners have challenged some of them in court, a few of which have been declared unconstitutional,'' says Vincent Lempaa, a lawyer.
There are also laws that need minor adjustments such as in their wording to capture offices and governance structures created by the Constitution of Kenya, 2010. For example, bringing in ''Office of the Director of Public Prosecution'' in many legislation texts in which reference is made to ''Office of the Attorney General'' even after certain function have since been moved to the ODPP, and replacing the word district with sub-county to reflect devolved governance. Some were amended accordingly by the Statute Law (Miscellaneous Amendment) Act 2017, and more have been capture in the Statute Law (Miscellaneous Amendments) Bill, 2018 currently in Parliament.
According to Vincent Lempaa, a lawyer, the Constitution has the answers to any legal question, but in as much as there is no legal gap or danger in having a pile of legislations potentially lying senile, it is important that Parliament reviews these laws for the sake of ''good order''. ''Parliament ought to have moved with commensurate pace to save judicial officers the problem of always subjecting such legislations to the Sixth Schedule of the Constitution,'' he says.
But even in the backdrop of this call for Parliament to clear the backlog, the quality of some of the laws made after the Constitution 2010 came into place has been questioned.
There are a couple of recently-formed laws that the courts have declared unconstitutional either wholly or in part. On May 29, Justice Chacha Mwita temporarily suspended implementation of 22 sections of the Computer Misuse and Cybercrime Act, found to limit fundamental freedoms, including those of information and expression. The law was to commence on May 30, after receiving the President’s accent two weeks earlier.
Additionally, the Contempt of Court Act that came into force on January 13, 2017, was annulled in November, last year by the Constitutional Court, following a suit by the Kenya Human Rights Commission.
In 2015, the High Court declared that several sections of the Security Laws (Amendment) Act were in violation of the Constitution.
Suba North Member of Parliament, Millie Odhiambo blames the poor quality of laws on ''deal-cutting'' which she says has become popular in Parliament, and lack of due diligence both by Parliament’s legal department and on the floor of the House. ''There is this dangerous trend where sponsors of bills target one key person or committee in the legislation process who then drums the bill down the members’ throats and have it hurried trough,'' she says.
The underhand dealings and the haste, she says, do not only lead to the unconstitutionality of certain laws but also to the general poor quality of legislations because Parliament sometimes ends up passing bills that only serve to duplicate or contradict existing laws.
Kenya Law data shows that it took between two and 99 days to process a bill into law last year.
According to Mr Lempaa, citizens should be worried when any parliament either slumbers or hastily goes through the law-making process, as this translates into low quality laws or a backlog in the legislative process. ''Many of these laws are made out of poor concentration and ill-will. We as the practitioners have challenged some of them in court, a few of which have been declared unconstitutional,'' he says.
Parliamentarians have in the past been accused of making decisions on crucial matters such as House reports, motions and bills based on financial inducements. In August, 2018, information leaked that some MPs received as little as Sh10,000 to shoot down a report on an investigation into how the country lost Sh10 billion through a controversial sugar importation that also exposed consumers to health hazards.
The final report had recommended that three Cabinet Secretaries take responsibility.
The number of bills brought to Parliament (National Assembly and Senate) rose only slightly to 56 from 53 in 2017, with no woman legislator linked to any of the 21 bills introduced in the National Assembly.
Ms Odhiambo considers these statistics not a true reflection of the efforts legislators, especially women MPs, put in last year, and attributes the low numbers to a shift of priority of the House Business Committee and inefficiency in the stage that precedes the publication of a bill. ''Committees are not moving fast on bills, instead prioritising motions. I know of many bills that are stuck in the pre-publishing stage,'' she says. She reports having three bills that are yet to be published, and knows of a few colleagues in similar predicament, including County Woman Representatives Sabina Chege (Murang’a), Florence Mutua (Busia), Gladys Shollei (Uasin Gishu).
However, the Senate seemed to be having less of that challenge, as senators sponsored 63 percent (35) of the bills in 2018, 10 of them being by women legislators.
The comfortable majority in both houses wielded by the party in government, Jubilee Party, has seen it dominate the law making process, a situation that is expected to prevail till the next general elections, unless a serious internal upheaval occurs midway.
The numerical superiority translated into all the bills that were introduced last year and have already become law being those sponsored by Jubilee legislators. The party sponsored 95 percent of the bills in the National Assembly and 46 percent in the Senate.
The data also indicates that certain legislators were more active than others in sponsoring bills. Strategically placed members like Majority Leader, committee chairpersons, who are usually the first port of call for their parties and other entities and interest groups in the law-making process, and in some cases, ordinary members, stood out. Majority Leader, Adan Duale led with 13 bills, followed by Chairperson of the Committee on Finance and National Planning, Joseph Limo, who tied with Senators Aaron Cheruiyot and Ledama Olekina, who have no advantage of special offices in the National Assembly, with four each.
Senators Judith Pareno and Agnes Zani, with two bills each to their name, were the top-performing women legislators in as far as bill sponsorship is concerned.
The Senate saw a bigger share of bills (two-thirds) sponsored by members serving their first term than the National Assembly, where the same category was responsible for a fifth of the bills.
Even though more bills originated from the Senate, the National Assembly had a higher bill-to-law conversion rate, as a quarter (five) of the bills introduced there in 2018 became law within the year, compared with three percent (one) of those introduced in the Senate.