The High Court has handed fishermen a lifeline after declaring a section of the law banning traditional fishing methods unconstitutional.
Justice Stephen Githinji, in his judgment, faulted National Assembly for failing to conduct public participation when passing the Fisheries Management and Development Act, 2016, which outlawed traditional fishing methods.
According to the judge, public participation is not a cosmetic exercise where MPs gather views and objections and trash them away. He said they must demonstrate how they arrived at the final bill whenever it is challenged before a court.
“This cannot be a process where the end justifies the means. Every step is important and counts in the ultimate. It was upon the National Assembly to ensure the process was flawless and in line with the provisions of the constitution and the Standing Orders,” ruled Githinji.
He ruled that public participation must include, and be seen to include, the dissemination of information, an invitation to participate in the process and consultation on the legislation and that it has to be proved by the party that there was objective public participation.
Section 42 of the Fisheries Management and Development Act made it a crime to use a seine net, monofilament net, a beach seine net or use of such things as spears to fish. The punishment was three months in prison or a fine not exceeding Sh100,000.
The case was filed by Shalima Mohammed who argued that parliament gave the Department of Fisheries blanket powers to hunt for any artisanal fishers who use the traditional fishing gear.
His lawyer, Ambrose Waigwa, told the court that among those who were affected were fishermen from Lamu when the law was meant to manage fishing in inland waters such as Lake Naivasha, Victoria, Baringo, Turkana, Challa, Jipe, and dams such as Tana and Tarkwell Rivers.
He stated artisanal fishing is the economic backbone for Lamu County, supporting incomes for 80 per cent of the population. However, according to him, fishermen's arrests were not only inhumane but infringed on their rights.
But the state, through the Attorney General, opposed the case arguing the ban was meant to ensure a durable and sustainable fishing system. The AG added that the law was meant to enhance food security and is being enforced countrywide.
At the same time, National Assembly urged the court to dismiss the case. It argued that the law was passed in the best interest of the public. It said there was no justification to invalidate it.
Parliament asserted that the committee undertook public participation and compiled its report having extensively considered the Bill and the report was laid before the National Assembly on April 28, 2015, and approved later.
In addition, MPs stated that the bill was then transmitted to the Senate for consideration and the senators proposed several amendments. On August 11, 2016, the Senate amendments were considered in the National Assembly committee and approved. The bill was then read a third time and passed.
However, the judge dismissed National Assembly’s argument after finding that it could not prove how the public participation was conducted. He however found that Senate had acted within the law.
“It is my finding that National Assembly did not demonstrate that there was public inclusion and participation in the law-making process. The compliance by Senate does not absolve the failure. I am persuaded that the impugned sections in the Act do not meet the Constitutional test of validity for want of public participation as well as the entire Fisheries Management Development Act 2016,” he ruled.
The Fisheries Management and Development Act, 2016 joins a list of laws passed by Parliament that have been invalidated by courts for failure to involve the public and sector players during the legislation process.