Flaws in law making must be addressed

There is a flaw in our constitution that surprises me. It’s just so big, and so entirely runs against the intent and efforts that went into drawing up the Constitution in the first place – however did all those brilliant minds let it through?

For it’s about power and the public and control.

Embedded in our legislative process, now, is the right to public participation in the formulation of new laws. Indeed, so thorough have been the efforts to make sure we only end up with good laws that legislative drafters must deliver a row of proofs from the start, even before public participation opens.

We have a whole law on it, the Statutory Instruments Act, 2013, which lays out what must be delivered with any proposed law, and it all makes so much sense.

For considering, and I only mention this in passing, that Transparency International rates us one of the most corrupt countries in the world, there are those who will try to seize our law making to put in place positions, or processes that ‘make money’.

So, legislation must be presented nowadays with a cost benefit analysis, showing not only what the law will cost and the benefits it will accrue, but the same for alternative rules or solutions. The sponsors must also provide a regulatory impact assessment that looks more widely at potential impacts.

In fact, many of our laws still fall short in observing their own legal requirements: it may take our ministries some time yet to move to legal law making according to the SI Act.

But here’s the thing, there is anyway another way. Post a bill as a private member’s bills and nearly all of these hurdles simply disappear. The burden of proof is gone, the analyses aren’t required, the public participation is vanished, except for a single review by the relevant parliamentary committee.

So, if you were in power, and you wanted to get a law through that you knew the case was weak for, and was going to meet a lot of opposition, what would you do? I just ask.

You can sweat it out through unfavourable impact assessments, and opposition lobbies. Or you can interest a private member in tabling it and reduce all to one moment of committee scrutiny.

Indeed, the reason I have come to realise what a tool has been left open with this private members’ route, is this strange legislative path for Kenya’s drug approvals process.

Currently, drugs are approved by the Pharmacy and Poisons Board. It has flaws, needs some institutional upgrading and investment, but its flaws are at the margins and are about continuous improvement.

But somewhere, someone has decided that Kenya needs a whole new authority approving drugs and food too. On the surface of it, the someone is an MP from Trans Nzoia. And his Bill wants drugs approved differently, by politicians, in fact, rather than doctors, and in a way that everywhere else in the world reports harms consumers.

But his Bill is hopping over every SI Act hurdle. It already had a first reading in parliament without a single stakeholder knowing it even existed. A bit of a ‘stealth’ health bill, all told.

But here’s the funny thing. In December 2018, the president’s office announced that it wanted the very same thing, a Food and Drugs Authority Bill, from the government, and that it was being fast tracked onto the 100-day legislative fast track.

That process had begun, there were ministry drafts. It had met some outspoken opposition, and was just reaching the formal ‘public participation’ stage, when, apparently, it simply stopped existing. Suddenly, a new private member’s bill appeared instead, in almost the same week the ministry bill was due for engagement. Funny how these things go.

I knew several of those who were engaged in drafting our constitution. Why did they think private MPs could not be enjoined to table bills to get around every check and balance? Why did they remove the burden of proof from private members’ bills? We need a good law from ministries, but MPs can give us laws with no impact assessment at all? Just too odd.