The Kenyan Legislative Tsunami and the Looming Legal Showdown of Mammoth Proportions

The Kenyan Legislative Tsunami and the Looming Legal Showdown of Mammoth Proportions

Pursuant to a three – Judge bench Constitutional Court judgment delivered on 29th October, 2020 in the Consolidated Human Rights High Court Petitions 284 and 353 of 2019 by the Hon. Justices Ngaah Jairus, Anthony Ndungu and Mumbua T. Matheka, 23 Acts of Parliament were declared unconstitutional, null and void. The Acts declared unconstitutional are… Continue Reading →,

Pursuant to a three – Judge bench Constitutional Court judgment delivered on 29th October, 2020 in the Consolidated Human Rights High Court Petitions 284 and 353 of 2019 by the Hon. Justices Ngaah Jairus, Anthony Ndungu and Mumbua T. Matheka, 23 Acts of Parliament were declared unconstitutional, null and void.

The Acts declared unconstitutional are enumerated thus:-

  1. Public Trustee Amendment Act, (No. 6 of 2018)
  2. The Building Surveyors Act, (No. 19 of 2018)
  3. Computer Misuse and Cybercrime Act, (No. 5 of 2018)
  4. Statute Law Miscellaneous Amendment Act, (No.18 of 2018)
  5. Kenya Coast Guard Service Act, (No. 11 of 2018)
  6. Tax Laws Amendment Act, (No. 9 of  2018)
  7. Statute Law Miscellaneous Act, (No. 4 of 2018)
  8. Supplementary Appropriation Act No. 2 of 2018 (No. 13 of 2018)
  9. Equalization Fund Appropriation Act, (No. 3 of 2018)
  10. Sacco Society Amendment Act, (No. 16 of 2018)
  11. Finance Act, (No. 10 of 2018)
  12. Appropriation Act, (No. 7 of 2018)
  13. Capital Markets Amendments Act, (No. 15 of 2018)
  14. National Youth Service Act, (No. 17 of 2018)
  15. Supplementary Appropriation Act, (No. 13 of 2018)
  16. Health Laws Amendment Act, (No. 5 of 2019)
  17. Sports Amendment Act, (No.7 of 2019)
  18. National Government Constituency Fund Act, 2015
  19. National Cohesion and Integration Commission Amendment Act, 2019
  20. Statute Law Miscellaneous Amendment Act, 2019
  21. Supplementary Appropriation Act, (No. 9 of 2019)
  22. Appropriation Act, 2019
  23. Insurance Amendment Act, 2019

The magnitude of the declaration of annulment goes well beyond the aforementioned Acts declared unconstitutional. In the enumerated list, there are three “Statute Law (Miscellaneous) Amendment Acts” which had amended various laws. These “Miscellaneous” Acts amended other laws as outlined hereunder.

A. Under Statute Law (Miscellaneous Amendments) Act, No. 4 of 2018:

  1. The Pension Act (Cap.189)
  2. The Pharmacy and Poisons Act (Cap.244)
  3. The Clinical Officers (Training, Registration and Licensing) Act, (No. 20 of 2017)     
  4. The Environmental Management and Co-ordination Act, 1999 (No. 8 of 1999)
  5. The Salaries and Remuneration Commission Act (No. 10 of 2011)
  6. The Statutory Instruments Act, (No. 23 of 2013)
  7. The Occupational Therapist’s Training, Registration and Licensing Act, 2017 (No. 31 of 2017)

B. Under Statute Law (Miscellaneous Amendments) Act, No. 18 of 2018 the following laws are affected:

  1. The Anti-Counterfeit Act, 2008 (No. 13 of 2008)
  2. The Biosafety Act, 2009 (No. 2 of 2009).
  3. The Proceeds of Crime and Anti-Money Laundering Act, 2009 (No. 9 of 2009)
  4. The National Youth Council Act, 2009 (No. 10 of 2009)
  5. The Alcohol Drinks Control Act, (No. 4 of 2010).
  6.  The Competition Act, 2010 (No. 12 of 2010)
  7. The Judicial Service Act, 2011 (No. 1 of 2011)
  8. The Tourism Act, 2011 (No. 28 of 2011)
  9. The Independent Police Oversight Authority Act, 2011 (No. 35 of 2011)
  10. The National Construction Authority Act, 2011 (No. 41 of 2011)
  11. The Engineers Act 2011 (No. 43 of 2011)
  12. The Land Act, 2012 (No. 6 of 2012)
  13. The Land Registration Act, 2012, (No. 3 of 2012)
  14. The National Authority for the Campaign against Alcohol and Drug Abuse,2012, (No. 14 of 2012)
  15. The Kenya Defence Forces Act, 2012 (No. 25 of 2012)
  16. The Kenya School of Law Act, 2012 (No. 26 of 2012)
  17.  The Legal Education Act, 2012 (No. 27 of 2012)
  18. The National Transport and Safety Authority Act, 2012 (No. 33 of 2012)
  19. The Universities Act, 2012 (No. 42 of 2012)
  20. The Treaty Making and Ratification Act, 2012 (No. 45 of 2012)
  21. The Office of the Director of Public Prosecutions Act, 2013, (No. 2 of 2013)
  22. The Kenya Institute of Curriculum Development Act, 2013 (No. 4 of 2013)
  23. The Kenya Agricultural and Livestock Research Act, 2013 (No. 17 of 2013)
  24. The Kenya Law Reform Commission Act (No. 19 of 2013)
  25. The Nairobi Centre for International Arbitration Act, 2013, (No. 26 of 2013)
  26. The Science, Technology and Innovation Act, 2013 (No. 28 of 2013)
  27. The National Social Security Fund Act, 2013 (No. 45 of 2013)
  28. The Wildlife Conservation and Management Act, (No. 47 of 2013)
  29. The Retirement Benefits (Deputy President and Designated State Officers Act, 2015 (No. 8 of 2015)
  30. The Companies Act, 2015 (No. 17 of 2015)
  31. The National Drought Management Authority Act, 2016 (No.4 of 2016)
  32. The Protection of Traditional Knowledge and Cultural Expressions Act, 2016 (No. 33 of 2016)
  33. The Forest Conservation and Management Act, 2016 (No. 34 of 2016)
  34.  Bribery Act, 2016 (No. 47 of 2016).

C.  Under Statute Law (Miscellaneous Amendments) Act No. 12 of 2019 the following further acts were amended.

  1.  Districts and Provinces Act, 1992 (No. 5 of 1992)
  2. The Public Finance Management Act, 2012 (No. 18 of 2012)
  3. The Prevention of Terrorism Act, 2012 (No. 30 of 2012)
  4. The Kenya Law Reform Commission Act, 2013 (No. 19 of 2013)
  5. The Value Tax Added Tax Act, 2013 (No. 35 of 2013)
  6. The Wildlife Conservation and Management Act, 2013 (No. 47 of 2013)
  7. The Companies Act, 2015 (No. 17 of 2015)
  8. The Insolvency Act, 2015 (No. 18 of 2015)

The National Youth Services Act 2009 (No. 10 of 2009) had been repealed and replaced with a new Act, The National Youth Service Act (no. 17 of 2018). Another law affected is The Kenya Information Communication Act, (Act No.2 of 1998). What happens now? Does the old law stand “unrepealed” or reinstated?

The Computer Misuse and Cybercrime Act, it must be noted, amended the Sexual Offences Act, which had created new criminal offences of child pornography and sexual communication with a child.

Having declared the 23 Acts of Parliament as unconstitutional, the Judges suspended the order in the following terms:-

“…we note that the Petitioners themselves sought an alternative order which in effect would suspend the order for nullification of the impugned Acts for a period of 6 Months and we are also aware of the Supreme Court decision on this point in Suleiman Shahbal vs Independent Electoral and Boundaries Commission and 3 others [2014] eKLR. In that case, the Supreme Court stated as follows:-

“[42] The lesson of comparative jurisprudence is that, while a declaration of nullity for inconsistency with the Constitution annuls statute law, it does not necessarily entail that all acts previously done are invalidated. In general, laws have a prospective outlook, and prior to annulling-declarations, situations otherwise entirely legitimate may have come to pass, and differing rights may have accrued that have acquired entrenched foundations. This gives justification for a case-by-case approach to time-span effect, in relation to nullification of statute law. In this regard, the Court has a scope for discretion, including; the suspension of invalidity; and the application of “prospective annulment” Such recourses, however, are for sparing and most judicious application – in view of the overriding principle of the supremacy of the Constitution, as it stands.

We are properly guided, and in the circumstances of this case, we shall suspend our orders nullifying the impugned Acts for a period of 9 Months from the date of this judgment within which period the Respondents ought to have complied with the provisions of Article 110 (3) of the Constitution and regularized these Acts and in default, they stand nullified. Orders accordingly”

All the profound and unusual developments in the law-making process is a recipe for inevitable showdown between the state agencies and the legislature.

The uncertainly of what the law is can be exemplified by posing some pertinent questions.

  1. Will the legal defects and constitution short comings be rectified within the 9-month period? (In the case of Community Lands Act, a similar deadline to amend the laws was given and nothing was or is being done).
  2. How will this mammoth task be accomplished?
  3. What will happen in the interim if an Appeal is lodged by a party as threatened or a second Appeal ensues?
  4. What law is applicable to any given situation during the 9-month period? (Some accused have been charged under the impugned/repealed Computer Misuse and Cybercrime Act). Was the offence in existence in law when the alleged offence took place?
  5. On rectification, will the laws be backdated or will they apply retrospectively and in criminal matters at least, is that legally possible to create an offence retrospectively?

Lawyers, litigants and ordinary citizens can and will pose hundreds of questions in their given factual situations. The Courts are likely to be inundated with more constitutional applications.

Mammoth food for thought then for looming showdown of tsunamic proportions in which the Attorney General, The Chief Justice, The Speakers of the National Assembly and the Senate, The Law Reform Commission, the entire Judiciary, the Law Society of Kenya and Parliamentarians will all be entangled.

By Pravin Bowry.

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