Let’s try green and white papers in crafting our laws

Let’s try green and white papers in crafting our laws

By Edwin Musonye

An important tenet in democratic governance is allowing public participation in decision-making. Our constitution recognises this and encourages citizens to exercise this civic liberty. Despite some progress achieved, there is need to entrench the practice further.

This can be done through adopting a tradition of preparing green papers and white papers before embarking on a policy or law-making processes. This means that proponents of ideas need to be sensitised on the importance of producing pilot information of their proposed viewpoints.

Green papers announce government proposals on particular issues and are meant for general discussion. These come in handy when engaging the citizenry in national dialogues that may not necessary lead to enactment of laws. For instance, there was a time we had a conversation on our national dress. The fact that the project failed is a testimony of consequences of neglecting green papers. White papers on their part announce government plans to introduce a new law or regulation.

Information that provides background, descriptive aspects of the issue, appropriateness of the suggested action plan and the alternative actions, anticipated results, and the remedial measures would serve all eventual participators well.

This new culture serves four useful purposes. The first is that a motion is enriched at an early stage and therefore the tabled bill presents a reputable document worth debating.

Whereas the bill or proposal will pass through the normal routine and procedures, it will also have earned inputs from varied sources and therefore be plush in content.

Circulating the preliminary paper delivers a public pronouncement for the intent. Minds are alerted on an upcoming deliberation. More findings come up on an idea when people sleep on them and think them over. There is no reason why thought processes of the potential participants should be ambushed by the unannounced surprises.

It is appreciable that some decisions are seemingly urgent and must be made as quickly as possible. Unfortunately, it is this justification for haste that undermines the principle of public participation. There are instances in which a bent for not anticipating needs is normalised and a wait for last minute fixing is pursued as the ‘rescuer’ option.

The second significance is that it slows down the activity of law or policy making. Most of our laws and rules are made in hurriedness. This is because they are mostly motivated by a reactionary response to situations. Such rules are definitely of low quality. We should start cultivating a culture of thinking ahead.

The evidence of this is found in laws that are created and later withdrawn or remain unenforced because they are later found impractical or untenable.

An example is in the capital gains tax that was activated and deactivated severally since nobody seemed to understand it. Another is in some provisions in the constitution itself that so far have proved problematic – operationalisation of the two third gender rule is a case in point.

A concern that an idea may be hijacked and killed by forces opposed to it plays a part in accelerating passing them with minimum deliberations and in-depth thought. The proponents hold the view that ends justifies means and therefore once a regulation or guideline has been enacted it will naturally work out regardless of its hollowness.

This hollowness is more likely when the promoters come from a common background, such as a shared profession or field of learning. The practice of incorporating ideas from diverse contexts makes for the best results.

A proposal may be sound from a legal viewpoint but be unsustainable from an economic perspective. Similarly a policy can be economically correct but a psychological or moral headache to implement. For instance, the ‘Buy Kenya Build Kenya’ clarion call has become nothing but big talk.

When law or decision making is slowed, we avoid unnecessary slip-ups such as duplications. The focus then switches from making quantity legislation to making quality legislation. Kenya Law Review Commission constantly revises existing laws and sifts out plentiful repetitions and obsolesce.

Thirdly, credibility and ownership is enhanced when documentation is produced to support the proposals, lines of actions, or programmes to be implemented. The culture of presenting these papers before tabling of the actual bill in parliament or other legislative assemblies, or issuing of executive orders, allow for more depth in articulation and raises the quality of product.

When people are engaged from the onset, they develop a sense of ownership for the idea. This is vital for public governance and democracy even though it may serve less value in private sphere. There is a caveat in law that states, ‘ignorance is no defence’, and how else is this ensured if the citizenry are not involved?

Historical traditions in which leaders decided unilaterally what was good for their people is a major backer for the slow transition. Another is when a proponent of a suggestion feels he is well educated or competent in the given field and therefore see no need to consult with anyone.

Again, the initiator may fear losing proprietorship of the idea, especially when members of the public come up with more practical solutions. Naturally, one may refuse to let go of the prestige of having one’s name associated with a vital bill.

The forth benefit is generation of documentation. Vigorous debates create pools of knowledge that can be relied upon or referred to in future similar situations. Of course, in parliament the records are captured through the Hansard. However, partisan interests dilute objectivity on most issues.

When sovereignty is invested in the people, it is upon them to debate and come to a consensus and their elected representatives to simply formalise those decisions in Acts of parliament.

However all is not grim, there have been cases of public involvement in some situations. An illustration is in the public inquiries such as the TJRC which received quality input from the citizenry.

Despite all the countering views, floating new ideas formally in a structured, painstaking, and inclusive manner is the way to go. (

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