The place of delegated legislation: Regulating dealings in scrap metal in Kenya
The trade in scrap metal has received publicity in Kenya in the recent times. This intensified after the President issued a directive freezing dealings in scrap metal. According to government authorities, the suspension was occasioned by increased acts of vandalism on key infrastructural projects such as the Standard Gauge Railway, power transmission lines, road rails and bridges.
The growing demand for scrap metal coupled by huge profits from the booming trade in scrap metal may have fueled these acts of vandalism. Proponents of the directive lauded the moratorium decrying the huge losses the county incurs due to vandalism while persons whose livelihoods are dependent on the trade in scrap terming it as economic sabotage. Some local firms that recycle old batteries into pure lead have warned of imminent closures due to lack of raw materials if the moratorium subsists.
Despite the hue and cry from affected quarters, the Government is not relenting on its resolve to decisively deal with acts of vandalism. Through a press statement dated 16th March 2022, the government indicated that it had through its Ministry of Industrialization commenced the process of formulating regulations to operationalize the Scrap Metal Act of 2015.
Going by the reaction of government, it appears as though the Act has in its current form done little in deterring acts of vandalism. The fact that vandalism continues unabated despite the existence of a legal framework that proscribes the offence of vandalism is worrisome. The Act at section 24 makes it an offence to destroy infrastructure; one found culpable of the offence may be liable to a fine not exceeding ten million shillings; or a term of imprisonment not exceeding three years or in some instances both.
This tussle between government authorities and dealers of scrap metal is characteristic of a normal relationship between the regulator and the regulated. In the absence of a post-impact regulatory evaluation report on the implementation of the Act, it is difficult to tell whether we are dealing with a failure of implementation of the legislative framework in place. We can only speculate given the government’s proposal to come up with a regulatory proposal to deal with the problem of vandalism.
A grave concern for policy and law makers should be why it took almost seven years for the line Ministry to develop regulations to operationalize the Act. A cursory glance at the Act indicates that it was assented to on the 7th of January 2015 and commenced application on the 23rd of January 2015. Throughout the Act’s application, incidences of vandalism continued to be reported in our media from various utility companies. Yet at no time did the line ministry suggest further measures to operationalize the Act.
The Committee on Implementation in Parliament should have in the seven years examined and obtained reports from the executive on the extent to which operationalization of the Act had taken place as well as practical difficulties. There is a definitive failure of responsibility on implementation of the law.
A brief overview on what regulations constitute is important prior to delving into the substance of the matter. Regulations form part of what is commonly known as delegated legislation or subordinate legislation.
Section 3 of the Statutory Instruments Act No.23 of 2013 defines statutory instruments to include regulation made or established in the execution of a power conferred by or under an Act of Parliament under which that statutory instrument or subsidiary legislation is expressly authorized to be issued.
Delegated legislation is made by persons or bodies to whom parliament has delegated law-making authority. They must conform to the supreme law of the land and must relate to the parent legislation allowing for its making. In our present case the regulations must conform to both the Constitution of Kenya 2011 and the Scrap Metal Act of 2015. Since they seek to operationalize, provisions contained in the Act, they cannot introduce provisions which are not in the parent Act.
Proponents of the doctrine of separation of power have time and again argued against delegated legislation terming it as an overreach by the executive arms of government. It is equally an uncomfortable pill for proponents of the principles of delagatus non potest delegare (a delegate cannot further delegate) who posits that it amounts to parliament abdicating its responsibilities.
In the United States of America (USA), the Congress does not delegate any of its legislative power. They argue that congress is an agent of the people; their legislative power having been derived and donated from people and thus cannot delegate that power further. England’s parliament on the other is supreme and has unlimited law-making powers which it can delegate to the executive.
Back to Kenya, our Constitution at articles 94(1) and 185(1) vest legislative authority at the national and county levels to Parliament and County Assemblies respectively. Giving due regard to the doctrine of separation of power espoused by the Constitution in great measure, only those two bodies have authority to make laws.
The debate on whether delegation amounts to abdication of responsibility or interferes with separation of powers is an issue we shall discuss in upcoming papers. Perhaps an appreciation of the huge demands placed on law makers’ shoulder by their tripartite role of legislation, representation and oversight will suffice as reason for delegation. Of the three roles, representation takes primacy and is the indicator on which lawmakers ‘s performance is measured.
As per the article 94 (5) of the Constitution, Parliament and County Assemblies are allowed to confer their power of law making to the executive arms of governments through specific provisions contained in primary legislation. They retain the ultimate power of approval of laws made under delegated power based on an intensive and extensive criterion for scrutiny provided for in existing laws. The Statutory Instruments Act, 2013 and the House Standing Orders of the Bi-Cameral House and County Assemblies constitute such laws.
The Act provides rules for the making and revocation of Statutory Instruments made directly or indirectly under Acts of Parliament or any written law. It calls for an all- inclusive regime for the making and promulgation of statutory instruments whose objectives include: –
(a) enabling appropriate consultation before enacting Statutory Instruments.
(b) fostering adherence to high standards in drafting of Statutory Instruments to promote their effectiveness.
(c) improving access by the public to Statutory Instruments.
(d) establishing improved mechanisms for parliamentary scrutiny of Statutory Instruments; and
(e) establishing mechanisms to ensure that Statutory Instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed.
The Act also provides for the making of regulatory impact statements borne out of regulatory impact analysis (RIA). RIA is a tool regulators utilize to guide them through the decision-making process before promulgating regulations. The objective of RIA is to assess whether a problem that is systemic in nature exists, if it requires intervention, the desired outcome sought through intervention, the various alternatives that might address the problem and bring about the desired outcome, and a comparison of the benefits and costs of each alternative.
If the regulations being developed are likely to impose significant costs on the community or a part of the community, the regulator is also required to carry out a RIA. This assessment helps to inform the regulator’s choice of regulations as the best alternative in resolving the problems experienced in the scrap metal industry.
The power to formulate regulations should be donated to the executive by parliament through express provisions of the Act. A careful reading of the Act reveals that no express provision exists authorizing the formulation of regulations by the executive. Are we staring at a problem of executive overreach in this matter? Under what authority is the Ministry of Industrialization making regulations to the Act?
Keep it here for our next article in which we discuss at length the questions posed above and provide possible solutions.
