Statute Miscellaneous Bill 2018 is Unconstitutional

Pic National Assembly
The National Assembly, Kenya (Photo: Courtesy)

There before the National Assembly, there has been tabled the Statute Law (Miscellaneous Amendment) Bill 2018 (National Assembly Bills No 12 and 13) (the Bill). As it is the case with such omnibus bills, the miscellaneous Bills seek to amend an array of statutes.

In our analysis in this blog, we shall not delve on the content of the Bill. We are alarmed at how the omnibus bill is being misused to further illegal and mischievous objectives.

The memorandum of objects and Reasons of the Bill states that “it is a Bill for making minor amendments to the Statute Law which does not merit the publication of a separate Bill.”  This statement is not only misleading, but false.

It is as a practice within the commonwealth jurisdictions, as well as a tradition of Kenyan legislative making history, to have Statute Laws (Miscellaneous Amendment) legislation, also known as omnibus bills, that deal, and are supposed to deal, with minor and non-controversial amendments.

Generally, omnibus bills are designated as avenues for making general housekeeping amendments to legislation, including making relatively minor, non-controversial amendments to various acts and to repeal acts that are no longer required in order to help to weed out spent or redundant legislation from the statute book.

Unfortunately, the Bill before the National Assembly does not adhere to this dictum. Even after having stated in its memorandum of reasons that its purpose was to make minor amendments to various laws, contain numerous amendments that are substantial and arguably controversial, in their nature.

The Bill contains that touches on constitutional issues, restructures boards of numerous state organization, contains mischief of number of state organizations trying to apportion mandate, among others.

It is the view of this blogger that a legislative proposal that involves the spending of public funds, has prejudicial effects on the rights of persons, or creates new offences or subjects a new class of persons to an existing offence, irrespective of the number of provisions, should be subject through a different amendment Bill.

The Kenyan Courts have held as much.  In the Law Society of Kenya v Attorney General & another [2016] eKLR, (Constitutional Petition 3 of 2016), a bench of five judges rules stated as follows,

“It is therefore clear that both on policy and good governance, which is one of the values and principles of governance in Article 10 of the Constitution, which values and principles form the foundation of our State and Nation as decreed in Article 4(2) of the Constitution, omnibus amendments in the form of Statute Law Miscellaneous legislations ought to be confined only to minor non-controversial and generally house-keeping amendments.”

In this judgement, the court eventually held that, it was improper for the amendments affecting the manner of appointment of the Chief Justice and the Deputy Chief Justice, the top most positions in the Judiciary, an arm of the Government, to be effected in Statute Law Miscellaneous Amendment legislation.

The Miscellaneous Bills before the house, if challenged in court, the court will declare them unconstitutional on the basis of this Constitutional Petition 3 of 2016.

As stated, they contain substantial and controversial issues, on array of laws.

This is a culmination of a bad trend that has recently emerged.

When the executive arm of the government want to sneak through a legislation, further a mischief, play political games of poker, or actualise a vendetta, they hide such heinous proposals in omnibus bills.

This has made such bills to be a crying evil, meant to create confusion and to distract the legislature. This is by way of jumbling together numerous incongruous subjects in order to force the passage of heinous provisions which could never succeed if they stood on their separate merits.

Again, they want to avoid public participation. They do not want Mwananchi to interrogate them.

When a bill deals with topics as varied as fisheries, unemployment, marine insurance and environment, it is unlikely to be examined properly. It is a bad practice and trend that should stop.

The National Assembly should reject the Statute Law (Miscellaneous Amendment) Bill 2018 before it. Otherwise, the bill will be declared unconstitutional on account of lack public participation if challenged in court, hence, a waste on legislature’s time.

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