Lawyers go for the jugular as crisis looms over expired laws

Kenya is on the edge of a major legal crisis due to government officials’ sloppiness in anchoring at least 400 Acts of Parliament in the 2010 Constituion.

The Law Society of Kenya (LSK) has now moved to the High Court seeking to have 1,764 rules and regulations contained in the pieces of legislation declared illegal.

The laws that are now at the heart of a legal battle between LSK, Parliament and the Attorney General touch on the Judiciary, security agencies, the Office of the President, Treasury, doctors, financial institutions and education.

Other affected areas include the media, health sector, aviation, and transport.

The affected rules and regulations were supposed to expire on January 23 last year in accordance with the Statutory Instruments Act, which provides for automatic revocation of statutory instruments 10 years after their commencement.

LSK, in its case, claims Attorney General Justin Muturi and MPs sneaked in an amendment in the Finance Act 2023 and extended the life of the contested laws by repealing Section 21 of the Statutory Instruments Act.

However, their treachery ended when the High Court declared Sections 88 and 89 of the Finance Act 2023 unconstitutional, null and void.

Undeterred, the MPs again went back and came up with Statutory Instrument (Amendment) Bill 2024.

“If no conservatory order is issued, the President will assent to the Bill essentially repealing section 21 of the Statutory Instruments Act 2013, which provides for automatic revocation of statutory instruments 10 years after their commencement. This petition would be rendered moot despite this court’s jurisdiction and power,” LSK says in its petition.

“Under that section, statutory instruments automatically lapse after ten years unless Parliament extends their life by a period not exceeding twelve months,” LSK chief executive Florence Wairimu said in a sworn affidavit.

According to the CEO, the Senate debated the report by the committee on May 2, 2023, and unanimously adopted it on May 4, without amendments.

The adoption gave life to the said rules until January this year.

“All the 1,764 rules and regulations from the 400 Acts of Parliament listed in the Statutory Instruments (Exemption from expiry) Regulations Legal Notice No.217 of 2022 automatically lapsed on 23 January 2023 and have no force of law in Kenya,” Wairimu said.

Katiba Institute is listed as an interested party.

The case also lifts the veil of Kenya’s reliance on laws enacted by the British colonial government more than 60 years after independence and even after the enactment of the 2010 Constitution.

According to the court documents, at least 176 rules and regulations were enacted into law before 1963. Some of the regulations cover local loans, distress for rent, Mutongwe Ferry Services, probation of offenders and the trustee, which were enacted in 1948. Others are on advocates' practice and advocate accounts, which were enacted in 1952.

In addition, there are the Asian Officers’ Family Pensions Act determination as public service (1959) and the Asian Officers Family Pensions Act (1960), which perhaps are not applicable in today’s Kenya but still remain in our statute books.

During the first year of President Jomo Kenyatta’s reign, at least 51 regulations were enacted.

They include The City of Nairobi Taxi Cab by-laws, Local Government Regulations and Delegation of Powers.

Meanwhile, the Acts of Parliament at the heart of the case include the National Assembly Remuneration Act (Cap 5), Appellate Jurisdiction Act (Cap 9), Advocates Act (Cap 6), Age of Majority (Cap 00), Witchcraft Act (Cap 67) and Defamation Act (Cap 37).

There are also Public Holidays Act (Cap 110), Law of Succession Act (Cap 160), Constitutional Offices (Remuneration) ( Cap 423), Bretton Woods Agreements Act ( Cap 464), Banking Act (Cap 488), Central Bank of Kenya Act (Cap 491), and Presidential Retirement Benefits Act (No 11 of 2003), among others.

Muturi, in his explanatory memorandum requesting for extension of the regulations, said that owing to the volumes and the transition in government, and the lack of resources, his office had a huge law revision backlog.

In the memorandum addressed to the National Assembly Committee on Delegated Legislation, he sought for an ‘instant blanket extension’ of all the affected regulations.

LSK, however, accused Muturi and the National Assembly of fixing the problem in an unrelated issue by repealing section 21 of the Statutory Instruments Act, 2013 in the Finance Act, 2023.

When the Finance Bill 2023 was challenged in court among the issues Busia Senator Okiya Omtatah challenged was sections 88 and 89, which repealed the Statutory Instruments Act.

In its reply, the government said that the move was aimed at avoiding the complex, time-consuming and expensive process of reviewing the regulations.

According to the government, the process fell within the Finance Bill whose object was to amend laws relating to various taxes and duties.

However the High Court found that there was need for public engagement to bring the regulations into conformity with changing circumstances.

“The rationale behind the expiry period is the necessity for reviewing statutory instruments through public engagement to bring them into conformity with changing circumstances,” said Justices David Majanja, Christine Meoli and Lawrence Mugambi.

The government appealed this decision at the Court of Appeal seeking a stay order, which was rejected. The matter is yet to be heard.

Majority Leader and Kikuyu MP Kimani Ichung’wa introduced the Statutory Instrument (Amendment) Bill 2024, which was passed on March 21, 2024.

Clause 7 of the Bill amends the principal Act by repealing Section 21.

“The result of this amendment is that all statutory instruments that were due to expire on their 10th anniversary are saved and shall remain operational in perpetuity without any modality for review,” said Wairimu.

She argued that this move defeats what was noted by the High Court that the 10-year expiry period was to allow a review through public engagement and into conformity with changing circumstances.

According to the CEO, the amendment violates several constitutional provisions including the rule of law, public participation, inclusivity, transparency and accountability.

She faulted Ichung’wah of inserting a new subsection stating, “Any Statutory Instrument that was in operation on or before the 24th January 2024, shall continue to operate and to have effect as if the instrument had not been automatically revoked on that date.”

“These clauses retroactively abrogate the constitutional protections and principles of good governance as expressed in a previous decision of this court: contrary to the rule against derogation,” argues Wairimu.

Committee on Delegated Legislation is chaired by Ainapkoi MP Samuel Chepkonga with his Gichugu counterpart Robert Gichimu deputising him.

Members include Robert Mbui (Kathiani), Joseph Kamau (Kigumo), Samwel Gonzi (Kinango), Gideon Kimaiyo (Keiyo South), Julius Sunkuli (Kilgoris), Geoffrey Ruku (Mbeere North), John Mwirigi (Igembe South), Kibet Kirui (Bureti), Joyce Kamene (Machakos), Jared Okello (Nyando), Pauline Lenguris (Samburu), Tindi Mwale (Butere) and Charles Onchoke (Bonchari).

Others are Linet Chepkorir (Bomet), Paul Chebor (Rongai), Yakub Adow (Bura), Amina Mnyanzi (Malindi), Abullahi Sheikh (Mandera North) and Mugabe Maino (Lugari).

“The committee noted that the regulations had no financial implication on the government and no expenditure of public funds shall be incurred in its implantation,” reads their report.

The committee noted there was need to extend the term of the instruments to ensure that ministries, departments, agencies and other State organs continue to operate for a period of one year effective January 24, 2023.

LSK wants the court to find that Clauses 7 and 9 of the Statutory Instruments (Amendment) Bill, 2024 offends the constitutional principles of the rule of law, separation of power, judicial authority, public participation, good governance, transparency and accountability.

“The exigencies of this case is that the 1st Respondent is misusing retroactive legislation to abrogate vested litigation rights and unsettle obligations imposed by not just this Court by also as guided by the Constitutional principles. Those obligations included the need to engage the public and key stakeholders while undertaking their legislative functions, the need to review existing laws with a view to measure and meet the changing societal dynamics,” the lawyers lobby argued.