By Kelvin Njuguna
The ruling coalition must by now have lost count of accusations that have been levelled against it; they range from runaway corruption to their atrocious penchant to disregard the rule of law, as well as abject failure in most aspects of their leadership, among others. Opinion polls – the issues of their financing and motive aside – have not offered much consolation. Studies have repeatedly painted a bleak picture of the state with most Kenyans polled feeling that the country is headed in the wrong direction. It cannot be gainsaid that the Jubilee government faces massive shortcomings; unfortunately, its leaders simply refuse to learn.
The Jubilee government not only ascended to power against all odds but also attained majority members in both Houses of Parliament. This exceptional turn of events left them in the enviable position of advancing transformative legislation with utmost ease. However, the unquenchable thirst to advance and safeguard self-interests took precedent and most laws passed by the current House are anything but commendable. The passage of some laws, or amendments to laws, has been characterised by knee-jerk reactions to challenges that have faced government. The government has successfully cultivated a delusion that new laws are a panacea to all existing and arising challenges. This piece seeks to expound on some of the unnecessary legislations that have been undertaken in Parliament as well as proposed laws that have been sounded in different forums, dressed as absolute remedies to the said problems. These enactments and proposals have at times been made in total disregard of the existence of other laws and at times this has subjected the government to the ignominy of passing unconstitutional laws.
There can be no better point of departure in demonstrating this unusual malady than the statements made by the Leader of Majority in the National Assembly Aden Duale after Chase Bank was put under receivership. Duale, rather insensitively, propounded that Parliament shall enact laws that would insulate depositors from the anguish occasioned by indefinite closure of banks. The execution of this proposal would result in duplication of laws since there are necessary legal safeguards to adequately address the predicaments that dawn upon depositors. It is perplexing that Duale appears to live in oblivion of the provisions of Section 36 of the Banking Act. This section creates the Kenya Deposit Insurance Corporation (formally the Deposit Protection Fund Board (Fund), tasked with the salient objective of providing a deposit insurance scheme for customers of member institutions, and liquidates the operations of any institution. The Fund is constantly replenished as Section 38 of the Act requires that every institution which is licensed to carry on banking business in Kenya shall be a regular contributor to the Fund.
Section 39 of the Act enunciates in lucid terms how depots are protected. It provides that a customer of an institution may, upon the institution becoming insolvent, lodge a claim with the Board, in such form as the Board may approve, for payment to him out of the Fund. The protection accorded to depositors under the Act cannot be said to be insufficient. It is trite knowledge that engagement of fraudulent deals by any institution ultimately results to undesired consequences. Customers are bound to experience inconveniences, and it is inconceivable for them to enjoy absolute protection upon untimely closure of banking institutions. The statements made by the Majority Leader are of zero value other than to make him sound politically correct – and understandably so seeing as the Jubilee government needs such in their desperate attempt to save face.
These unreasoned proposals by Duale came hot in the heels of the novel but infamous regulations aimed at streamlining religious institutions such as churches. The government was forced to beat a hasty retreat in light of the uproar that followed. The laws would have affected all faiths, including mainstream Christian, Hindu and Islamic institutions, as well as numerous small denominations. They were predicated upon accusations of conning and brainwashing followers or engaging in radicalisation. In their flawed wisdom, the government saw it fit to demand that all Christian preachers in Kenya must hold theological certificates from accredited theological institutions. Also, religious organisations had to be registered and open to the registrar’s inspection. The rules introduced umbrella bodies that were to promote self-regulation and require a declaration of sources of income.
Livid Christian evangelists and their Muslim counterparts cited breach of Article 10 of the Constitution, which safeguards the salient right of public participation, claiming that they had not been consulted. Besides, the ills that were to be cured by the regulations are appropriately dealt with under the existing laws. The Penal Code explicitly illegalises false pretence and cheating under Sections 312 and 315. Those found culpable of such offences are liable to imprisonment for three years. Sections 44 and 77 of the Code are just a light illustration of how the abhorrent act of radicalisation can be sufficiently prosecuted. In essence, there are a plethora of provisions that deal exclusively with most of detestable practices that have been engaged by a select group in the religious organisations. Regarding the requirement that pastors had to have theological certificates, former Prime Minister Raila Odinga, while expressing support for the religious organisations, could not have offered a better response when he quipped, “Who trained John the Baptist? Who trained Paul? Religion is a calling.”
The epitome of enacting unnecessary legislation under the Jubilee government evidenced itself during the passing of the Security Laws (Amendment) Bill (SLAA) that amended twenty two other Acts of Parliament concerning national security. These amendments attracted a court petition in which a whole eight sections were declared unconstitutional. In an act of treachery against the tenets of the Constitution, the legislators made amendments that were in blatant breach of the Constitution of Kenya. Section 16 of the SLAA, for instance, was an affront against the right to fair trial which is classified unequivocally as a right that cannot be subjected to derogation. The court, under Paragraph 68 of the ruling, was particularly critical of Section 26 of the SLAA. The section purported that an accused person’s non-reaction or silence in relation to what the prosecution or prosecution’s witness(es) said in relation to his indictment meant that the statement was to be admitted in evidence. This section trampled shamelessly on the provisions of Article 50(2) (k) which safeguarded an accused person’s right to remain silent.
These and other squalid amendments, coupled by the manner in which they were passed would form an impeccable thesis of how not to enact legislation. Jubilee supposedly envisaged that the SLAA would end insecurity. It is not in dispute that security in the country has stabilised commendably but there is total dearth of evidence that this was achieved by means of the draconian laws. More competent honchos who replaced the previously inept heads of security agencies and notable improved intelligence would appear to be the reasons attributable to the improvement in the country’s security situation. However, the proposed cure, the SLAA, was repulsive at best and diabolical at worst.
Corruption is the other major challenge that has consumed the Jubilee government. It has been an albatross around its leaders’ necks and remains an indelible stain on its administration. The proliferation of corruption cases has led government to deploy dynamic approaches in an attempt to vanquish it but with little reprieve. The President has been extremely passionate in his speeches when addressing matters corruption, and took the unexpected decision, during the State of the Nation address in 2015, of tabling what has come to be known as the “list of shame”. The President said he “had drawn the line” on matters corruption and demanded that those named should step aside. Fast forward to weeks before the 2016 State of the Nation address and you conclude that the president must have realised his otherwise painstaking decisions had amounted to zilch; corruption, just like Pharaoh in the Bible, remains stubbornly entrenched. It is on this premise that he probably reverted to Jubilee’s aped medication of legislation in the form of the Bribery Bill, 2016.
Contrary to most of the aforementioned legislations, the Bribery Bill has received accolades, albeit with a few reservations and misgivings. The most praiseworthy inclusion in the Bill is in regard to the targeting of givers of bribes – hitherto, receivers have been the focus of existing laws. However, just like other Jubilee government’s legislations, one need not break a sweat to find fault in the Bribery Bill. Former anti-graft czar and public governance expert, John Githongo, while acknowledging that the Bill, if fully implemented alongside other laws, offered promise, lambasted the total absence of political goodwill in fighting corruption.
Speaking to The Standard, Dr Godwin Murunga, a senior research fellow at the University of Nairobi, stated that the laws were purely a hullabaloo. He further pointed out that new laws were only a façade that something was being done. He posed the question: “Is it a deficit of laws or the unwillingness to implement the existing laws” that plagues us? It is a foregone conclusion that the ineptitude displayed in the execution of existing corruption will certainly be proliferated when implementing any other subsequent laws.
Parliament is rightly bequeathed with the responsibility of enacting laws under Article 94. However, strict adherence to the Constitution, respect and implementation of other existing laws and reasonability are of paramount importance when enacting legislation. Without this, preposterous legislation will continue finding their way to the floor of the House. This absurd propensity to respond to crisis with legislation seems greatly entrenched in our society; it is not thus surprising that suggestions have been made in some quarters that new construction laws should be enacted as a response to the continued collapse of buildings, despite it being known that corruption is the force behind this malaise.