Abuse of the Statute Law Miscellaneous Amendments

Statute Law (Miscellaneous Amendments) is to be used to correct anomalies, inconsistencies, outdated terminology or errors which are minor, non-controversial amendments to a number of statutes at once, in one bill, instead of making such amendments incrementally, when a particular statute is being amended in the context of a separate legislative initiative.

However what the two Statute Law (Miscellaneous Amendments) Bills, 2015 proposes far reaching amendments to statutes.

Article 118 of the Constitution states that Parliament shall facilitate public participation and involvement in the legislative and other business of Parliament and its committees.

Generally public participation seeks and facilitates the involvement of those potentially affected by or interested in a decision.

The two Statute Law (Miscellaneous Amendments) Bills, 2015 have not been subjected to public participation and stakeholder consultation.

Constitutional audit by the responsible institution such as the Commission for Implementation of the Constitution (CIC) and Kenya Law Reform Commission is necessary to ensure that the proposed amendments to the law are in compliance with the constitution.

The same has been inhabited due to the short period availed from the date of publication Statute Law (Miscellaneous Amendments) Bills taking into account several laws to be impacted by the proposed amendments to the law.

Statute Law amendments has become the avenue for sneaking in offending clauses in the law as demonstrated in several instances such as in the case of security laws and now the proposed amendments to the Independent Policing Oversight Authority Act (Ipoa) to give the President powers to remove from office a member of the Board.

POLITICAL MANIPULATION

Ipoa was created because police could not investigate themselves hence the need of a body that is independent and with powers to investigate.

To insulate its mandate from political manipulation, the process of appointment and dismissal from office was entrusted to independent organs.

Leaving the President with the discretion to remove the Chairperson or a member of Ipoa when he deems necessary without recourse to an independent body such as a Tribunal defeats the whole purpose of having the Authority in the first place.

Then we have proposal by the Attorney General to amend Kenya Law Reform Commission Act with respect to the appointees and representatives of various institutions including that of the Law Society of Kenya and the Judiciary without take notice that the proposal is discriminatory contrary to Article 21 (3) of the Constitution which imposes all State organs and all public officers the duty to address the needs of vulnerable groups within society, including youth.

The Law cannot operate retrospectively but even where the Attorney General desires to make changes to important institutions in pursuit of hidden agenda, the laws are drafted without transitional provisions to take into account the tenure for the serving officeholders engaged in critical stages of their mandates.

Statute Law (Miscellaneous Amendments) Bills, 2015 proposes to amend among others the Kenya Information and Communications Act, 1998(Kica) by attempting to define dominance in telecommunication sector and transfer of regulation from the Communication Authority of Kenya to Competition Authority of Kenya.

AG OFFICE INFILTRATED

Even if there are compelling reasons for the proposed amendments, the Cabinet Secretary for Ministry of Information, Communications and Technology by a letter dated 27th October 2015 disassociated himself from the proposed amendments and took exception that such far reaching amendments can be proposed without the courtesy of according the line Ministry any opportunity for consultations.

Article 132(3) (c) of the Constitution states that the President shall by a decision published in the Gazette, assign responsibility for the implementation and administration of any Act of Parliament to a Cabinet Secretary, to the extent not inconsistent with any Act of Parliament.

Hence the enquiry by the Cabinet Secretary to the Attorney General as to who is the originator of the amendments to Kica.

This clearly shows that office of the Attorney General has been infiltrated by individuals and interest groups who by unknown means are able to ensure that they insert legislative proposals in Statute Law (Miscellaneous Amendments) Bills without the knowledge of Cabinet Secretaries of the line Ministries.

Most of the proposed amendments are not miscellaneous but substantial and should not be contained in the Statute Law (Miscellaneous Amendments) Bills.

SOURCE: DAILY NATION