State counsel have been reminded that as legal drafters they must promote constitutionalism in Kenya by developing laws that are compliant with the letter and spirit of the Constitution.
The advice by the Chief Executive Officer of the Kenya Law Reform Commission (KLRC), Mr. Joash Dache comes at a time when the country has been commended for having made significant progress in the development of legislation and establishment of institutions to fight corruption.
Dache reminded counsel that high quality legislation remained one of the most fundamental tenets of any modern and civilized democratic society.
“The certainty associated with good quality legislation engenders stability in the legal system thereby promoting the rule of law. The process of developing such legislation is as critical as the product,” he stated during the just concluded annual colloquium for state counsel at the Kenya school of government.
“Legislation is one of the most important instruments of governance in not only organizing society, but also in protecting its citizens. Legislation is also the only means available to states through which the conduct of the major part of society can be regulated. It is therefore imperative that due regard be paid to the development of legislation,” Dache reiterated.
He observed that the current 2010 constitution had heralded various changes in the legislative process with the establishment of the bicameral Parliament and 47 County Assemblies hence the requirement of public participation in policy making and legislation.
Noting the development the law making process had witnessed over the years, the senior lawyer stated that the role of policy makers, legislative drafters and legislators had matured from that of simply following a Drafting Instructions, to that of guarding the letter and spirit of the Constitution.
“Key players in the legislative process are now concerned with not only ensuring technical soundness, but also guarding against the violation of the Constitution and the fundamental rights of Kenyans,” he said.
He noted that the process of reviewing the constitution required constant evaluation of policies and legislation as this was a relatively new and developing field that was gaining more importance in the era of better legislation and regulation.
Dache further challenged institutions to devote greater attention on evaluating legislation after its enactment noting that this wouldhelp ensure more informed decision making in the future about the development of policy and legislation.
He stated that the Kenya Law Reform Commission, in accordance with its statutory mandate to keep under review all laws, had embarked on an impact assessment of the Fifth Schedule legislation in order to ensure that legislation developed remained effective and served the purpose for which it was intended.
According to the policy guidelines, the ideal and recommended position in the legislative process is that policy precedes the formulation of a Bill or any other legislative instrument. Policy allows the executors to determine a clear road map, conduct an assessment of the problem and possible solutions, and define the opportunity to be embraced and the modalities or approaches to realize the benefit prior to proposing the necessary legal framework.
Dache further observed that the challenges hindering the development of quality legislation was the absence of policy to guide legislation which he noted caused both legal and practicality challenges at the implementation stage.
He challenged both governments at the national and county levels to be aware of the need for policy development as the reliance on policy guidelines ensured effectiveness and clarity thereby reducing the number of times that legislation is amended.
The over 360 state counsel attending the colloquium urged to ensure that the laws they developed had received significant input from the public as this was one of the avenues that led to the public being aware and owning the legislation being developed.
On the concern of devolution, Dache observed that county governments were empowered under the Forth Schedule of the constitution to develop their laws relating to their functions. He observed that counties had been strengthening their capacities by hiring County Attorneys who were responsible for legislative drafting within the devolved units.
He however stressed that there was a huge challenge at the county level due to the vast array of poorly drafted laws which weakened the quality of legislation.
He stated there was urgent need to improve the quality of legislation to ensure that it also complied with the letter and spirit of the Constitution. He stated it was equally important that various trainings around the counties be undertaken to enhance the capacity of drafters at the county level.
The sentiments were shared by Mr. Oscar Eredi Senior principal litigation counsel in Kisii who admitted that non-involvement of regional officers in the formulation and implementation of policies at the county levels was a factor that needed to be addressed by both levels of governments.
Attorney General, Professor Githu Muigai in response observed that the strengthening and restructuring the regional offices, creation of a single Attorney General’s office and appointment of regional heads and a county serves department had already commenced in 13 counties.
The Executive Officer at the Law Reform body further reiterated that supremacy battles between the National Assembly and the Senate in the development of County legislation needed to end as it had affected the development of the necessary legislation.
He noted that conflicts that had arisen between various County Executives and their respective County Assemblies which impeded the development of quality legislation at the County level. He challenged the state counsel to advocate for the cooperation between these very crucial institutions in order to ensure the continuous development of quality legislation.