Ghai: How should our laws be made?

“Parliament warns ministries over half-baked bills taken to House”. That was the Star’s headline on Monday this week. And the story was that the House Business Committee had stopped processing the Livestock Bill until the Ministry of Agriculture deals with their objections.

What’s it all about?

Let’s start with that Bill. The main part is 75 pages long. It does three main things. It sets out the division of responsibility for livestock between the national and county government. It also creates or adapts various bodies to regulate and oversee livestock keeping and breeding. And it regulates, or sets some framework for regulating, various livestock-related businesses and activities, such as production of livestock feed, and includes requirements of compliance monitoring.

The implications of this Bill are enormous, although some of the work is already being done under existing laws.

The argument between the House and the ministry seems to be about public participation. The Ministry says the Bill is “a product of structured and extensive consultation”. The majority leader (whose name ironically appears as the person proposing the Bill to Parliament, because this is the way government Bills are presented to Parliament) suggests public consultation has been inadequate.

It seems Parliament has got worried (after what happened to the Finance Act 2024 and the way in which some MPs were grovelling to their constituents) about passing unpopular laws. Mr Inchun’gwa tweeted: “It is essential to recognise that Parliament DOES NOT AUTHOR these bills but often bears the brunt of public criticism.”

Who should be doing public consultation? I suggest both. In fact, it seems to me that our law-making processes need a radical overhaul.

Policy first

There are lots of documents called “Policy” in Kenya. Often done by consultants. Not all are preludes to laws. But important laws should definitely be preceded by, and be intended to carry out, policies. A policy document that analyses what the problems are, what needs to be done to put the problems rights, and only then discusses whether a law is among the solutions.

Policies should be prepared on the basis of information from a variety of sources: researchers and analysts who can identify and unpack the problem, including its causes, which is not always done; experts who have wisdom, learning and experience to propose solutions; and lawyers to show how effective (or not) the law may be in the situation. And public input, both those particularly affected (usually called stakeholders) and the broader public.

When a Bill gets to Parliament, it is certainly not the time to start asking whether the fundamentals of the Bill are a good idea. (There is, in fact, a 2020 Livestock Policy document that deals with some of the Bill’s issues.)

In fact, effective public and stakeholder input should be possible at various stages. The public should be involved in analysing the problems, proposing solutions, giving feedback to the Ministry on the Bill and being consulted by Parliament.

Briefing Parliament (and people)

I am always rather depressed by the inadequacy of the documents Parliament receives about the laws it is asked to pass. At the end of a Bill, you will find an “Explanatory Memorandum”. This rarely explains why the law is being proposed. Sometimes it just summarises each clause in the Bill. One would expect MPs to have to get to grips with quite a volume of background paperwork.

A summary is needed and in language that people will understand. But so is a clear explanation of the reasons. There should be a cost-benefit analysis of the proposals: how much will it cost and what will be the corresponding benefits? Take the Livestock Bill. How much would it cost to restructure various existing agencies, and is this necessary? It seems that not only does 30 per cent or more of our money go missing, but we don’t even bother to work out, and publicise, how much our laws are going to cost us.

And in Kenya, in light of Article 10 of the Constitution, one would expect a document from the relevant ministry setting out what they had done as public participation. And as the court said in the case this column examined last week, “The constitutional requirement for transparency and accountability imposes an obligation upon State organs to inform the general public and stakeholders why their views were not taken into account and why the views of some of the stakeholders were preferred over theirs.” That includes ministries.

Ministries tend to approach businesses, bodies and people particularly affected for input but do not have real public involvement. Yet it is at that stage that input would be most useful. Once a Bill gets to Parliament, it is quite hard to persuade MPs to make any major changes.

And Parliament?

Of course Parliament (and county assemblies) must also ensure public participation. The Constitution is particularly clear on this in Article 118. Parliament shall “facilitate public participation and involvement in the legislative and other business of Parliament and its committees”.

They don’t have a great record on this. Various Acts have been held unconstitutional because of inadequate public involvement. As recently as July 31st, the Court of Appeal declared the Finance Act unconstitutional for inadequate participation. And Parliament went on, the very next day, to vet Cabinet Secretaries, ignoring the views of the majority of Kenyans in submissions to them (the media told us). Vetting nominees is “other business of Parliament”.

Private members’ Bills can be a problem. They don’t come via a ministry or affected government agency. Some are well prepared and have a lot of input. I can tell you that the Access to Information Bill (now Act of 2016) moved by then MP Priscilla Nyokabi, was much scrutinised, debated and amended before ever reaching Parliament.

But senators love introducing Bills telling counties what to do. In May, Samburu Senator Steve Ltumbesi produced the Livestock Protection and Sustainability Bill. It imposes duties on the CS and county governments to develop polices and strategies to deal with droughts and other risks. It requires counties to set up a fund to support livestock business, and requires each to set aside 0.5 per cent of its budget for a drought resilience fund. It is due for its Second Reading debate next month. Where have counties been involved in this?

Not the first Bill

A similar Bill was published in 2021 but was withdrawn before being introduced into Parliament because of public outcry, especially from beekeepers. Beekeepers are again vocal.

They have good reason. The 2021 Bill had a detailed part about keeping bees. Six whole clauses, mostly quite detailed. Presumably it has not been possible to consult and reach agreement with the sector. The 2024 Bill says simply that the Cabinet Secretary may, in consultation with the Council of Governors, make regulations about the areas the 2021 Bill dealt with in detail.

There is always a risk with regulations that they will be made by the Cabinet Secretary or other authority and passed by Parliament without anyone taking much notice. Under the Statutory Instruments Act, public participation is supposed to happen. And an Impact Statement must be prepared to explain the effect of the regulations, which is rather better than the memoranda that usually accompany Bills. So the Cabinet Secretary does not have a free hand. And consulting the Council of Governors would not be enough.

Or maybe, since the Bill has been sent back to Kilimo House, they may carry out proper consultation with the public, including affected beekeepers.

Finally

Nine years ago, the Law Reform Commission published a sensible guide to law making. It includes some of the comments I have made here, and others. It should be on the desk, or computer, of every policy maker, drafter, MP and anyone else involved in making laws.