By Musyoki Kimanthi

Q Some of the laws which the city council purports to enforce are so ridiculous they cannot possibly have survived the rigours of debate in Parliament. Where do these laws come from and why should city residents be forced to observe them?

A:To the mind of the common man, Parliament has the traditional and all-important responsibility of making laws and it becomes inconceivable that another person or body or authority should take over that responsibility.

Nairobi City Council askaris arrest a man allegedly for spitting on the streets. If a citizen feels that some laws are ridiculous he may challenge them in court. Photo/ Mbugua Kibera/ Standard

However, it is conceivable that Parliament may not be able to pass all the laws that are necessary for running the country, the various bodies or departments, local authorities or even professional associations. This limitation of Parliament provides room for what is referred to as delegated, secondary or subordinate legislation.

This is law made by an executive authority under powers given to them by primary legislation in order to implement and administer the requirements of that primary legislation.

Statutory instruments are created by Government departments for areas under their responsibility. The parent or primary law gives the department permission as well as guidance about how the new piece of legislation is to be written and processed. A common example in our Kenyan circumstances is the famous ‘Michuki Rules’. Those regulations have the force of law and are binding just like laws passed by Parliament.

By-laws are created by local authorities to cover matters in their own area. These by-laws must be approved by the Central Government. Examples are rules that govern public behaviour like a smoking ban, spitting in public areas or hawking. Delegated legislation is necessary for a number of reasons. Parliament does not have time to contemplate situations and debate every small detail of complex regulations. Delegating this responsibility allows thoroughly debated regulations.

Members of Parliament also do not usually have the technical expertise required to pass certain legislation. Delegated legislation allows use of experts who are familiar with the relevant areas. Parliament debates the main principles thoroughly but leaves the detail to be filled in by those who have knowledge of it.

Another argument in favour of delegated legislation is that Parliament may not always be the best institution to recognise and deal with the needs of the local people. As a result, the local people elect councillors who in turn pass legislation in the form of by-laws to satisfy their needs.

Another question may arise, how then can we trust these different people to pass reasonable laws especially when the councilors, for example, cannot even have peaceful elections amongst themselves?

Certain controls exist over the exercise of delegated legislation. Under parliamentary control, delegated legislation can only become law through one of two ways — the negative resolution procedure, where the proposed legal instrument is shown to Parliament and if within 40 days there are no objections it immediately becomes law, or through the affirmative resolution procedure where the proposed law may not become law unless specifically approved by Parliament.

Under judicial control of delegated legislation, the High Court is moved under the Judicial Review Procedure and asked to review the decisions of policy bodies and officials. This allows the courts to also supervise the workings of a very wide range of decision making processes, making sure they are fair and provide access to justice, as well as making sure powers are not abused.

Where a citizen feels that some laws are ridiculous he may challenge them through the courts.