Friday, May 31, 2013

Do you trust Parliament to get it right?

The legislative process is about to get very interesting. The Members of the Tenth Parliament, in one of their more egregious moments of sheer lunacy, enacted the Statutory Instruments Act, which came into force in the beginning of 2013. In effect, it gives Parliament and oversight role in the process of drafting, approving and interpreting all subsidiary legislation published to give better effect to principal Acts of Parliament. This is not a minor professional quibble with Parliament, but a reasoned examination of the effect that a large bunch of inexperienced and untrained "drafters" will have on the administration, including drafting, proofing or interpreting, of the law of Kenya.

The experience with Parliament regarding the still-knotty problem of their salaries and remuneration proves the point.  On Thursday 30 May 2013, they promised to hold the national Financial estimates hostage unless their demands are met. The national Executive and the Salaries and Remuneration Commission have called the threats by Parliament unconstitutional. it seems this showdown is going down to the wire. But it is in how Parliament reacted that is instructive.

Instead of taking an objective look at the Constitutional powers of Parliament, theirs has been highly subjective - and selfish. Gwassi representative John Mbadi, who should know better after five years in the National Assembly, argues that "Parlliament can make any law; if the law is not there, we will enact it." He echoes the sentiments of the MPs who support the calls for higher pay for MPs. What he refuses to acknowledge, or actively turns a blind eye to, is the fact that Parliament is not the final word on the constitutionality of any law any more. So while Parliaent "can make any law" the High Court can declare the law or any part of the law to be unenforceable by reason of being unconstitutional. It is not the business or place of Parliament to rule on the constitutionality or otherwise of legislation.

If on a matter that affects parliamentarians so intimately they are incapable of drawing the proper interpretation of their powers, or options, from the Constitution, then it is doubtful that the "routine" business of law-making will be intelligently conducted. The Tenth Parliament was notorious for lack of quorum and poor debate. If we now saddle the parliamentarians and their staff with the additional task of not just enacting but drafting legislation, ensuring that the niggly bits of the proposed law are smoothed out and that all angles are covered, we cannot be sure that in emulation of their predecessors in the Tenth Parliament scrutiny of the Bills will be left to the Committees, many of which operate as vehicles for earning sitting allowances rather than conducting serious parliamentary business, or whether Parliament will do the needful and catch the anomalies before they become law. I am not confident that mistakes such as the Statutory Instruments Act, 2013, will not become the law of the land.

What is certain is that Parliament, just like many other parts of the government, prioritises capital and recurrent expenditure in very unusual ways. Parliamentarians may have the power to"make law", but elementary research would tell them that it is prudent to make law in partnership with the Executive; after all it is the Executive that would implement these laws enacted by Parliament. In their zeal to stamp their authority in government, parliamentarians risk alienating an arm that is crucial to their achieving their ends, whether politically or personally. More practically, the poor capacity in drafting expertise, whether in MPs offices or the Clerks', means that the quality of Bills will be even lower than what we have gotten used to over the past three years in our haste to "implement the Constitution." Poorly drafted Bill that are enacted into law will compromise the proper governance of Kenya and place even constitutional goals in jeopardy. they may even re-introduce government excess, exacerbate corruption and lead to the dark days of human rights violations. Who trusts Parliament to get this process right?



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