Law is Made For, Not Against the People

Posted by on 18th November 2019

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Inclusiveness in the Kenyan legislative process is attainable after all if the outcome of the public hearings on the two Kenya Information and Communications Bills (KICA Bills) is anything to go by. At the end of the deliberations between the stakeholders (both institutions and individuals) and the Communication, Information and Innovation Committee there was a consensus that the Moses Injendi-sponsored Bill was unconstitutional and should be withdrawn in totality.

The hearings that had a significant youth representation brought to fore gaps that have severally excluded Wanjiku in law-making.

“I don’t think the Committee would be proceeding in the right direction by discussing something unconstitutional,” said Nominated MP and Committee member Godfrey Osotsi who flagged the Bill for not having been subjected to pre-publication scrutiny as is expected in the legislative process.

A document by the Kenya Law Reform Commission (KLRC) details the legislative process from the genesis to the presidential assent stage, highlighting the requirements and relevance of each phase. Under the pre-publication scrutiny stage, policy is analyzed based on; the practicality of implementation, technical soundness, statutory harmony and conformity to the letter and spirit of the Constitution.

The last factor was the hanging noose that the KICA Bill No. 61 of 2019 died on as it spoke against Article 31 which guarantees the right to privacy, Article 32 which guarantees the freedom of belief and opinion, Article 33 that guarantees the freedom of expression, Article 34 that gives the people freedom of the media and lastly Article 35 that guarantees us access to information. The concern raised by Osotsi over an attempt to sneak in such a backward Bill into the floor of the House, reveals a worrying trend by the Executive and Parliament who are constitutionally mandated to represent and champion for the public’s interest.

The electorate has on numerous occasions been left out in the law-making process, rendering the famous quote “Government of the people, by the people and for the people” pointless. Despite public participation being enshrined in the Constitution, it is yet to be fully actualized.

Recent months have seen Kenyans waking up to ill-informed bills that are largely inaccessible, not conscious to language barriers and daily citizens’ commitments while threatening their freedoms and rights. This long-standing antagonistic law-making relationship between MPs and their electorate is what has necessitated a Public Participation law that has been long over-due.

Coincidentally, National Assembly last week invited views from the public regarding two Public Participation Bills. The Bills provide a framework and requirements that Parliament and State Organs should adhere to in order to achieve inclusive and holistic public involvement in the law-making.

The onus will, therefore, be on the originators of any form of legislation to facilitate civic awareness through proper channels of relaying information and use of local dialect, provide reasonable time for participation, provide a feedback mechanism and document proof of the consideration of views submitted by the public. Further, the Bills note that decisions made by state organs or any public office without public participation shall be invalid. Had these laws been in place, perhaps the Huduma Namba registration would have taken a different course. Had these laws been in place, perhaps the controversial Crops Regulations 2018 that came to light earlier this year would not have had a chance to threaten farmers’ rights.

These Bills not only put a stop to draconian laws like the KICA Bill but also enhance accountability by enforcing transparency in the legislative process.

If assented to, these laws shall be a call to state officers to rise to the occasion, quit advancing personal, political and commercial interests through legislation at the detriment of the citizenry that they serve.