By Derrick Makhandia
Last week, parliament called for submission of memoranda for two Bills proposing to amend a staggering 83 laws, and the public had only one week to give their views. Never mind some of these amendments touch serious fields; from land, to fisheries to energy to advocate practice, etcetera.
Forget that we might have needed possibly a month to review all the amendments proposed in the Statute Laws (Miscellaneous Amendment) Bill No 12 of 2018 and Statute Laws (Miscellaneous Amendments) Bill no 13 of 2018. The real problem, is that the bills are fundamentally flawed, and in legal terms, should fail ab initio.
First, let us address the historical roots of the concept. Omnibus bills also known as “Statue Law Amendment Bills” is a concept born in the United Kingdom and heavily adopted world over as a practical and efficient way to amend, repeal or enact several Acts. If there are two or more Acts all of which need to be amended to respond to a certain legal or environmental change, then it makes sense to have one Bill amending all of them.
Ideally, omnibus Bills were meant to be interrelated, like the land Laws Amendment Act of 2016 that amended 3 land statutes. The idea is, rather than amend each statute, one Bill is tabled to amend all the Acts within the same field. That way, if public participation is called for, the participant submits on the singular issue.
On the other hand, sometimes government would need to make slight amendments on unrelated statutes which would thereby require a new type of concept – Miscellaneous amendments.
Miscellaneous amendments in legal terms means a change of several, different things but “confined only to minor non-controversial and generally house-keeping amendments.”
For instance, Parliament may pass a Bill that replaces the word “District” with the word “County” to reflect the new constitutional dispensation. This is a minor amendment that does not raise pertinent issues in the functionality of the government or any impact on the parent statute. It can amend several bills which necessarily need not be related but in very minor ways.
A Statue Law (Miscellaneous Amendment) Bill in simpler terms, it is an omnibus bill whose purpose is to make small amendments to various statutes. The challenge however is that, omnibus bills are a two edged sword. On one hand, they save time and shorten the legislative process by doing away with numerous repetitive bills that have the same end game while on the other hand, they can be abused by the executive by “sneaking” controversial amendments with the intention of passing them without sufficient scrutiny.
The two Bills put up last week for public participation had nothing miscellaneous about them despite being presented as such. One was proposing to amend 68 statutes, the other 15 statues. All with far reaching proposals.
One provision, for instance, proposed to amend the Lands Act to require licenses and leases for private land to be issued by the Lands Cabinet Secretary. Ideally, if you want to lease out your land, the CS has to approve of it. Another proposal on the NHIF Act proposes removal of Kenya Medical Practitioners and Dentists Board (KMPDB) representatives from sitting in the NHIF board. Further, the Bill makes over 20 amendments each on several statues. It even goes further to introduce a clause on the Advocates Act. And these are but examples.
What is horrifying about these type of omnibus bills is that it’s not just the public who are unable to efficiently critic it such a voluminous bill, but even our MPs are unable to make sober contributions because of time constraints as well as the rigidity of the voting process.
In short, an MP has only one option-to vote for or against the bill. Often, if an MP considers 99% of the bill to be good and only 1% is contentious; he or she often votes in favor of the bill despite the 1% having far reaching consequences.
Worse still is that, there’s no law in Kenya regulating and guiding the use of omnibus bills. The practice was merely adopted from our colonial masters and mutated into the ugly nature it is today.
Since no legal constraints exists, the only hurdle is finding sufficient political will to ensure such a bill goes through the floor. And since after the “handshake” we have all become government, we cannot confidently assume that there is an opposition that will jump up and make noise. We must therefore remain vigilant. Kaa chonjo!