Attorney-General Justin Muturi has suffered a major blow in his bid to extend the life of 1,764 expired government regulations.
This is after senators overwhelmingly voted—33 against two—in favour of the Committee on Delegated Legislation’s report rejecting the request by the AG to extend the validity of the regulations for a year. The development means that more than 400 Acts of Parliament have been rendered invalid.
Some of the Acts of Parliament whose regulations are affected are the Terrorism Act, Births and Deaths Act, Advocates Act, Prisons Act, The Evidence Act, Parliamentary Pensions Act and Public Roads Toll Act.
Mr Muturi, through legal notice No. 217 of 2022, had published the Statutory Instruments (Exemption from Expiry) Regulations, asking the two houses of Parliament to extend the validity of the Regulations by one year to January 24, 2024.
However, the committee chaired by Tharaka-Nithi Senator Mwenda Gataya rejected the request describing the move by Mr Muturi as unlawful and a misinterpretation of the procedure laid out in the Statutory Instruments Act.
Consequently, the committee recommended to Parliament that the legal notice be annulled. In its report tabled before the Senate, the committee argued that the 1, 764 regulations stand revoked by the operation of the law.
“The Statutory Instruments Act does not give the Attorney-General the power to make a regulation extending the operation of a statutory instruments rule on behalf of a responsible Cabinet secretary,” said Mr Gataya.
While moving the motion on the rejection of the legal notice, Tana River Senator Danson Mungatana argued that the matter of extension of such a large number of instruments is weighty and requires thorough scrutiny in consultation with the relevant regulation-making authorities.
Under Kenyan law, it is the regulations that operationalise Acts of Parliament. The Statutory Instruments Act designates Cabinet secretaries as regulation-making authorities in their ministries.
Section 21 provides that responsible CSs may, in consultation with the Delegated Committee of Parliament, make regulations under the Act extending the operation of a statutory rule that would otherwise be revoked by virtue of the section as specified in the regulation not exceeding 12 months.
The committee noted that Mr Muturi should have advised CSs responsible for making the regulations to seek extensions themselves in line with the provisions of the Act. This would involve the CSs affected by the revocation republishing and submitting the regulations to the Senate for scrutiny and adoption.
Further, the committee argued that it would have been important for them to scrutinise the instruments and understand whether the regulations were still relevant and ensure there was proper justification and well-grounded legal reasoning for the extension of their life.
“It is also not clear why the CSs waited until the instruments automatically ceased to exist before seeking extension. This is a cause for concern because the provisions of the Act on automatic revocation are clear,” reads part of the committee’s report.
