Law is society’s tool in enforcing ethical paradigms within the realm of technology. The goal is not to stifle innovation but rather to ensure that whatever genies are summoned out of the bottle do not become a violation of values that society considers ‘sacrosanct’.
Approaching the sciences, and technology shows that these areas of human progress are structured around exponential growth and change. Whatever is regarded as monumental today is suddenly dwarfed by the next discovery.
Science and technology are forever in the business of shedding their outer flesh and growing anew. The law on its part, moves almost at the pace of the slowest yet it is the tool that society relies on to voice and enforce its ethical considerations.
The conundrum that emerges in this interplay is between the slow-paced laws versus the fast-paced sciences.
To avoid making the law on invention behind reality, attempts have been made to regulate science and technology through soft law and self-regulation rather than hard law in the form of statutes.
Generally, the use of soft law in regulation of matters in Kenya is not a card played within science and technology alone. It is a tool used cross-sectorally through the customary delegation of powers by statutes to Cabinet Secretaries.
Statutes assign the power to issue regulations and such other instruments to the Cabinet Secretaries in order to ensure that anything not covered by the statute will be canvassed in the regulations. For instance, the communications sector has guidelines, regulations and codes of practice.
The Working Paper by Maria Eduarda Gonçalves and Maria Inês Gameiro, posits that the importance of soft law and self-regulation lies in the twin feet of science and technology – flexibility and autonomy, and their non-binding nature is better than black letter law which could become a relic before it regulates the uncertainties and potential developments of the field.
The general assumption and rationale of using soft law instruments in the Kenyan context coincides with the realisation that the field of technology is always in a constant state of change and growth.
In this regard, the Draft National Information and Communications Technology (ICT) Policy states that ‘…the ICT sector is dynamic and the Government will regularly review ICT policies to resonate with the rapid technological advances, changing public needs and evolving public trends…’
The national policy on science and technology is reviewed periodically in order to bring it into the most recent version of affairs. To this extent, the European paradigmatic plane espoused in the Working Paper is also true in the Kenyan context in two ways: firstly, soft law instruments are a preparatory measure for subsequent legislation.
Secondly, soft law instruments owe their operative competence to existing legislation. In other words, soft law instruments are only forged due to delegation of power to the relevant authority through specific hard law.
Therefore, soft law in Kenya is used in regulating emerging sciences and technologies.
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