Control over delegated legislation in Kenya

  

Date Posted: 2/19/2013 9:57:00 AM

Posted By: KOROHS  Membership Level: Silver  Total Points: 840

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Judicial control.

It operates under the doctrine of ultra vires where the courts declare the constitutionality of some of the administrative actions made by the executive. The courts are empowered to declare the constitutionality of the parent act. If the parent act is unconstitutional in itself by delegating more powers to the sub delegate or it does not lay down the procedure if it infringes on the fundamental rights and freedom and the extent in which the delegate is to exercise jurisdiction the delegation is unconstitutional and the act is void and any rules or bylaws emanating there from are therefore void and unconstitutional.

Where the delegated legislation goes beyond the scope of the authority conferred by parent statute. Basically delegate cannot make rules outside the scope of which they were allowed in the parent statute. If the delegate keeps within the authority as delegated to him the legislation is valid and has the force of law. The efficacy of the judicial review on the ground of substantive ultra vires depends on the phraseology of the statutory provision delegating rule making power. If power is conferred in too broad terms, the efficacy of the doctrine of substantive ultra vires is very much diluted as in such a case the court may find it extremely difficult to hold a rule as falling outside the scope of the power delegated. A rule may be challenged on the ground of mala fides of the rulemaking authority or on the ground that it has no relation with the purpose for which the rule-making powers has been given but in practice it is extremely difficult to substantiate these grounds before the courts.

In the making of delegated legislation the authority may be required by the statute to follow certain procedures like pre-publication and consultation of affected

interests publication and laying before the legislature.non observance of a mandatory procedural norm would make the rules so made ultra vires and leads to procedural ultra vires.

Legislative control
Since it’s the legislature which delegates the legislative power to the administration it is primarily for it to supervise and control the actual exercise of this power and ensure against the danger of its objectionable abusive and unwarranted use by the administration. The rule is that a bill involving a proposal of delegation of legislative power shall be accompanied by a memorandum explaining such proposals and drawing attention to their scope and state whether they are of normal or exceptional character. The parliament should be well informed of the procedure to be followed during the legislation, the reasons for the legislation and the extent to which the delegate is to exercise the powers as conferred upon by the statute. An act shall be brought within the house as soon as possible within which period the house shall agree on the making of any modifications or annulling the whole act as presented to the house and the act shall cease from having the force of law as soon as the house of parliament has annulled it. The laying force is directory when not coupled with the requirement of laying down the rules in draft form in which case the rules cannot come into force without being laid before the house failure in the laying down formulae does not affect the legality of the act or legislation and it does not make ultra vires legislation valid if they are made according to the laying down rules.

It can also be conducted by parliamentary committees in which case the committees are given power to scrutinize the legislation and provide its report to the house and its recommendations either to annul the legislation or to amend it before having the force of law. The annulment can be wholly or in part and may also examine the representatives of the concerned ministry while considering the rules in regard to the delegation. The committees need to insist on the necessity of providing the procedural safeguards In the rules against abuse of administrative powers and should insist on the observance of the principles of natural justice where the individual is adversely affected by administrative actions under the rules

Publication
As a general rule ignorance of the law is no defense at all. It’s believed that the laws are adequately published in the required channels which are prescribed in which acts are to published. It’s upon the legislature to ensure that the acts enacted into law are well addressed or publicized in order to afford everybody with the time to get well conversed with the said act or law where the act expressly states the mode of publication it must take notice of the specific interest groups which are to be directly affected by the said act of parliament and if those directly affected are well informed of the act, failure of publication may not exempt them from liability because they were adequately informed of the act’s information.

This provision seeks to avoid the danger that a person might be convicted for contravening a rule the existence of which he had no means of knowing and a statute must bear the on its face the date on which it comes into existence. In Kenya the acts enacted by parliament are officially published in the official Kenyan gazette and the government may by notification in the official gazette make rules for the carrying out of the purposes of the act. This makes publication mandatory and failure of publication occasions an injustice and the law has no force of law and the rules have no force of law if not published in the official gazette. Publication of the rules gives authenticity to the and creates certainty in the minds of the individual that rules have been made and provides the individual with easy access to the rules because he will have the knowledge of where they are found and so for efficiency the rules need to be published in one customary channel and not in different channels depending on the sweet will of the concerned authority.

Consultation of interest
The best mode of control is by allowing the participation of the people generally because they are there ones to be governed by the said law or rule and this helps by seeing the different ways through which the ordinary person views a certain law basically the legislature is the one to legislate and the fact that it represents them different interests so if it delegates its duties there need be the various interests that are represented and represent their views and they have the opportunity to impress in the authority their point of view. This ensure that the delegate is passed by the delegated legislation is passed by the authority concerned with adequate knowledge of the problems involved and that it has before it all the relevant materials so that it does not make decisions on insufficient information. Making rules regarding the modern day development in economy, technical and social nature requires expert knowledge and adequate and reliable data. All this need to be collected from outside through consultations with the interest groups who are likely to be affected by the said rules or regulation and grasp and assess their significance, effect and practicability. This dilutes the stigma against delegated legislation of being bureaucratic and non representative.

In conclusion the delegation of powers need to be governed by the necessary procedure which need be expressly stated in the parent legislation which should state the extent in which the powers need to be exercised without it infringing on the fundamental rights and freedoms of the individuals and also it should not go against the principles laid down in the constitution which is the supreme law of the land.

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