Listen to Sen Moses Kaajwang's Powerful submission on the Statutory Instruments(Ammendment) Bill

Added: 2026-06-03

[00:00:01]Mr. Speaker, I rise to comment on this amendment, the Statutory Instruments Act. And Mr. Speaker, um it's just that members of the committee are the ones who have contributed to it largely. They would have also benefited from the views of those who don't sit there on a regular basis. Mr. Mr. Speaker, the role of parliament is clearly defined in the constitution and the constitution says in article 945 that no person or body other than parliament has a power to make provision having the force of law in Kenya except an authority conferred by this constitution or by legislation.

[00:00:45]The primary body to which legislation law makingaking has been delegated by the people is parliament. Mr. Speaker, over the years and this is a problem that uh applies across the Commonwealth.

[00:00:59]A lot of parliaments have become lazy and they've opted for skeleton legislation and to fill the gaps they have resorted to subsidiary uh legislation or statutory instruments.

[00:01:15]Statutory instruments have a place in terms of efficiency and providing further details on matters that cannot be captured in the constitution or matters that cannot be captured in statute. But over the years it has been abused. Mr. Speaker, that problem is in Kenya. That problem is in many parliaments across the Commonwealth.

[00:01:37]Ultimately, article 945 vests that responsibility in parliament not in the executive.

[00:01:47]We have created a system where most of the times parliament legislates only one/3 and the other two/3 is done by the executive through statutory instruments.

[00:01:59]Mr. Speaker, I share the concern that has been raised by the chair and other members of the statutory uh the delegated legislation committee with regards to statutory instruments that were in operation on or before 21st of January 2024.

[00:02:17]Mr. Speaker, I find this to be a very curious um way of legislating that we are amending section 27 of the Statutory Instruments Act to say that any statutory instrument that was in operation on or before 21st of January 2024 shall continue to operate and to have effect as if the instruments had not been automatically revoked on that date. Mr. Speaker, the instruments that were in operation on or before 21st of January 2024 perhaps could have been 10 years old as compared to the constitution that we currently have.

[00:02:56]There shouldn't be any difficulty for the executive to resubject those statutory instruments to public participation to resubject them to parliament and get parliamentary approval for them to continue being in force. Mr. Speaker, not too long ago, we had a meeting with um the prime cabinet secretary and Mr. Speaker, I do recall um I believe you must have chaired that meeting where Madame Orurelia Renault, who is a PS in the office of the prime cabinet secretary appeared before the Larsson committee. Mr. Speaker, I am convinced that the executive has the capacity to resubject all these statutory instruments to public participation and to the provisions of the stat statutory instruments act and therefore I join my colleagues in saying that that amendment of section 27 is mischievous and this house must vote against it. Mr. Speaker, if we wanted to do a proper amendment to the Statutory Instruments Act, there are a few things that have been of concern over the years which must be dealt with. I can see that this particular amendment was to deal with that section 27 so as to allow the attorney general and the executive to have a free ride. Mr. Speaker, a few things that I would have wanted that we look at when it comes to statutory instruments and when it comes to amendment of this particular act is number one if law making is the exclusive domain of the legislature or parliament and if statutory instruments still form part of our laws and regulations. Mr. Speaker, should Parliament concern itself with substance or form when considering statutory instruments? Right now, the Statutory Instruments Act requires of Parliament that when a statutory instrument is laid on the table that the relevant committee shall consider it and only bring back a report if it wants that statutory instrument analled. It does not have to report back on its approval on its observations. In fact, sometimes committees do nothing and I'm not talking about this particular committee. This committee has been very industrious. But we have seen delegated legislation committees that decide to do nothing on the statutory instruments that have been presented to them. Then they become law in 28 days because that is the provision. there's an automatic um effectiveness in 28 days if the committee does nothing. Mr. Speaker, at the tail end of the last parliament, the regulations on equalization fund were brought to this house. Mr. Speaker, they are bad. Those regulations are bad.

[00:05:54]And every member who debated on the floor of this house agreed that they were bad. But the problem was these regulations had been pending for a very long time. and counties that had been marginalized for a long time felt like the center was holding on to money that should have gone to them. A promise was brought to this house and I wish Senator Faky was here because he was then the chair of the delegated legislation committee. A promise was conveyed to this house from the national treasury that honorable members please just pass these regulations to allow the money to trickle to counties but we give you the undertaking that we shall be bringing amendments to the regulation. We refused we refused to uh aced to to that request but however Mr. Speaker, what happened is that the committee failed to report back uh to uh the house and so the regulations took effect automatically.

[00:06:53]Can the delegated legislation committee scrutinize the substance of regulations?

[00:07:01]Right now, what the delegated legislation committee is required to do is to look at the regulations to confirm whether it is in accordance with the constitution of Kenya. To look at it to confirm whether it infringes on rights and freedoms of citizens. To look at it to confirm whether or not it infringes on the rule of law. to look at it to confirm whether the matters there cannot be better uh you know uh taken care of by statute to look at it to confirm that it is not imposing taxation but it does not go into the minute details. The other day I saw published in the newspapers draft regulations to do with renewable energy particularly on solar water heating systems. Mr. Speaker, the proposal was that every plan approval across the country, there must be provision for a solar water heating uh facility or solar water heating solution. And as good as that is, Mr. Speaker, as good as that is in Nairobi in this month of June when it is extremely cold, it might not be practical in Mombasa. It might not be practical in Turkana. It might not be practical in certain parts of Yanza. So if you get regulations of that nature that makes it mandatory to have a solar water heating solution in every corner of the country, you are opening the door for rent seeking because someone will come to your little shack in the village and tell you that we shall not approve until we see solar water heating in it.

[00:08:36]If such regulations came to the house, is parliament hand the hands of parliament bound that they cannot get into the substance if public participation was done if it ticked all the other boxes. Can parliament say that this is an impractical regulation? Mr. Speaker, I want I I would like that if you want to give good effect to the statutory instruments act, we look at that aspect. Number two is on the issue of mediation. We have situations where the National Assembly has considered regulations concurrently with the Senate and arrived at different results and that Mr. Speaker came out clearly in the first in the 11th parliament. The then senator for meu, Senator Kir Murongi proposed some amendments to the parliamentary service commission act and in those amendments he proposed that the commission could set up a subcommittee to look at the affairs of the senate because the act was written with a unicameal parliament in mind and Mr. Speaker, many of us supported the amendment and we thought that it was a good idea so that there's focus. We are not splitting the commission. We were just bringing focus on matters to do with the Senate so that there's also focus on matters to do with the National Assembly. Afterwards, we were required to come up with regulations to give effect to the thinking and to give effect to some of the things that nowadays we enjoy like the oversight funds. Mr. Speaker, we were taken round and round in circles. We came up with draft regulations. The other house rejected those regulations and that was the end of it. We do not have a procedure for mediation when the two houses failed to agree. That in my view should have been the urgency that the honorable Kimmani Chunga who is the promoter of this bill from the National Assembly should have looked at. Mr. Speaker, the issue of expiry of statutory instruments, we had put it in law that they shall expire in 10 years and I do agree with my colleagues who say that we will not support that inclusion of the amendment of section 27 that wants to revive to exume and bring back to life regulations that expired on the 24th of January 2024.

[00:11:03]The other one, Mr. speaker is on the date on which statutory instruments take effect. There are certain statutory instruments that have been crafted in such a way that the effective date is clear, but there are those that require uh publication in the gazette for them to take effect. And Mr. Speaker, sometimes you find very funny games being played at the government publisher that it takes forever for regulations to be published in the gazette and therefore even when all the processes people have gone through them those regulations cannot be effected and I think one of one of the cases you have had in the past was a public benefit organizations regulations. Mr. Speaker, it took forever for them to be published and it threw that sector in a limbo. Mr. Speaker, can Parliament consider having the power to review or to nullify regulations suamoto without being prompted or even on the basis of a petition. Regulations originate from the executive. They are drafted by the executive and once we approve them, they take effect. Mr. Speaker, what is the process of annelling a regulation that perhaps was approved by parliament but which has turned out to be a national pain which has turned out to be impractical which has turned out to be inconsistent with the policy and the aspirations of the people. Can we grant ourselves that power? Yes, we have the power to amend legislation. We have the power to amend statute. Do we have the power to propose an amendment to regulation once it's in force? Uh perhaps Senator Mugatana will educate us on that. But it is extremely dangerous if parliament has the power to amend the uh parent you know act but then the regulations that give effect to it then seems to be something that we cannot touch unless it's it it originates from the executive. Those are some of the things that we need to look at to amend in the statutory um instruments act.

[00:13:14]Again, uh Mr. Speaker, we must address the failure to bring regulations in the climate change space. We came up with the climate change act. We established a climate change fund. Way back in 2016, Mr. Speaker, today the climate change fund has not been established. Why?

[00:13:35]because the regulations have never been brought to parliament and that is 10 years 10 years. No one wants to do it because they want the money to remain in the parent ministry because they know that the minute you establish a fund it is reinfensed there is greater scrutiny.

[00:13:52]Mr. Speaker, as someone within that space, it would be my desire for us to push for the actualization of the climate change fund. There's a lot of money this country is committing to climate change adaptation and mitigation and uh that is why we are a leader in Africa whenever we go for those meetings out there. Kenya has got a lot of case studies, a lot of good examples. If you look at FOCA, it is something a model that is being studied by many other countries. If you look at our 47 counties, each county has got a climate change fund. Each county has got a climate change fund regulation, but we have failed to come up with a national climate change fund regulation. As a result, climate change money, some of it is at the national treasury, some of it is in the relevant ministry, some of it is in the presidency. It is scattered all over the place. I believe that if you are able to consolidate and provide good clarity, it would even be possible, Mr. speaker that out of this climate change fund we can come up with a green bank and that green bank can be the prime sponsor the prime uh financia of climate adaptation and climate mitigation efforts in this country but what do we do with the CSS who have failed to bring those regulations to this house those are the consequences that we must put in the act to ensure that we compel them to do so Mr. Speaker, I want to conclude by reminding uh my fellow colleagues that we have a very very sacred duty which is only granted to this parliament. Let us not give our responsibility, let us not yield our responsibility to the executive. There are certain executive directions, Mr. Speaker, and if you go to the strict definition of statutory instruments, Mr. Speaker, it includes even tariffs and taxes and proclamations. And sometimes you wake up and you find that the National Transport and Safety Authority is coming up with new fines, is coming up with new instant fine solutions without subjecting those matters to Parliament. Mr. Speaker, recently we visited South Africa with a public accounts committee and we sat through the inter interrogation of uh the books of accounts of one of the big metropolitan cities in South South Africa. Mr. Speaker, it turned out that the management of the of the metropolitan city decided to turn off the instant fines. Out of instant fines, that city was generating 2 billion rands annually. They turned it off and so they were now writing fines on paper and you would know the kind of rent seeking that would be because if your fine was a,000 rand someone would uh write 100 runs on paper and pocket the rest.

[00:16:50]Those things like tariffs, penalties, fines, those are statutory instruments in the strict definition of statutory instruments in this act. They should come to parliament. they should come to parliament for consideration. And Mr. Speaker, we must find a way of getting into the substance because it's not just a matter of NTSA convincing us that they did public participation. It is not just NTSA giving us a list of participants.

[00:17:16]We must also be able to look at those matters to confirm that indeed whatever they proposing is something that is reasonable. And in any case, Mr. Speaker, in my view, if counties like Nairobi City County wanted to increase their own source revenue, they could set up an effective traffic management system, which other cities have done.

[00:17:37]Mr. Speaker, it is embarrassing.

[00:17:39]Whenever we travel, you go to Cape Town, you go to Abhjan, you go to even Adis, even if you are in an Uber in the middle of the night, they will stop at the light because they know you jump the light, there's a fine that will follow you. Governor Sakaja could do that. And I can tell you, Mr. Speaker, with our driving habits, if it's properly enforced, if the roads are properly done, if we have a proper public transport system, that instant fines or traffic fines alone could yield enough money to enable Nairobi to develop her markets, her hospitals, and other facilities. So, Mr. Speaker, um I I I I reject the amendment of section 27. uh but I also would pray that um this amendment let it be taken back so that we have a much more comprehensive uh assessment of that space so that we do not take away or we do not donate the power of parliament to the executive.

[00:18:38]Thank you Mr. Speaker.