Activist Okiya Omtatah can be quite the gadfly considering his frequent court cases that often provokes criticism. Indeed, his petition seeking the High Court to declare Section 29 of the Prevention of Torture Act 2017 unconstitutional was not just important but also revealed a dangerous trend that calls for vigilance as the life of the 11th Parliament draws to an end.
The world over, the government of the day takes advantage of an election year to pass bills they don’t want scrutinized towards the end of the life of Parliament because of the possible lack of attention by MPs due to campaigns. Also the fact that the citizens are engrossed in the campaign promises and intrigues to pay close attention to bills before the House.
Last month the British Parliament passed 13 bills on the last sitting day of Parliament. In actual fact throughout the life of Parliament only 24 bills were successfully passed including the thirteen. Meaning nearly half of all the successful bills were passed on one day-the last day! Back in Kenya, Parliament appears to be doing the same thing. Rushing bills with controversial amendments at this last stage to avoid scrutiny.
That explains why this case filed by Okiya Omtata asking the Court to determine the constitutional validity of amendments brought to Section 129 of the Environmental Management and Co-Ordination Act 1999 through the Prevention of Torture Act 2017 was so important. The amendment was brought at a very late stage in the Bill- way past the public participation stage by none other than the National Assembly Majority leader Aden Duale.
The controversial amendment changes the law that prevented abuse of the environment by way of stop orders that maintained status quo provided there was an appeal lodged at the National Environment Tribunal against any project which the aggrieved party normally would file under Section 129 of the EMCA. What critics find most disturbing about this amendment is that it applies retrospectively-meaning previous stop orders become null and void upon enactment of the law, which by-the-way was assented to by the President on 13th April.
Natural Justice who were also keen on the petition filed at the High Court by virtue of their work around environmental law, wondered why that particular amendment was not included in the original form of the Prevention of Torture Bill, 2016. Also the fact that this particular amendment has no relationship to the objectives of the Act yet it waltzed through made the whole thing stink with suspicion.
It turns out the bill was very strategic and the government used the Prevention of Torture Act to circumvent the stop order issued by NEMA against Amu Power with regard to the construction of the 1050 Mega Watts Lamu Coal Plant that’s been a national debate for some time now. And just like that nothing stops this firm from going ahead to begin constructions of the Coal plant unless those aggrieved apply for the issue of fresh orders.
The allegation we’re implying here is not idle chatter. Activist Omtatah submitted to the Court that it was not a coincidence that the amendment was brought on 6th April, exactly one day after the National Environment Tribunal had issued him with stop orders suspending the construction of the Nairobi-Naivasha Section (Phase 2A) of the Standard Gauge Railway through the Nairobi National Park.
The ramifications of this move is enough to sound alarm to all conscious citizens to be wary of the bills coming before Parliament between now and its dissolution. Of interest is the Omnibus bills that make several changes to existing laws that don’t warrant drafting of a new Bill. The attempts to reward MPs with hefty pay in 2009 through Statute Law (Miscellaneous Amendments) Bill serves as a reminder that we need to be extra vigilant.
As we rush to the campaign grounds to listen to campaign promises from politicians, let’s think deeply about the implications of bad laws that might be passed because we’re too excited by the political climate to call out the MPs for failing to represent us adequately including blocking suspicious laws.