Stop rent-seeking in private Bills

There is a nasty little game that goes on with private member’s Bills, based on a loophole that opens the potential for extortion.

The nub of this sits with public participation, and a handy tool called a regulatory impact assessment.

Kenya is not well covered on these protections — which are put in place to stop ‘bad laws’ being passed, specifically as laws that harm society or people they are designed to help.

To this end, the 2010 Constitution enshrined the right of public participation in law-making. However, it offers no process to secure that. So, for instance, it states that anyone has the right to petition Parliament to consider enacting, amending or repealing any legislation.

But it doesn’t lay out what Parliament must do in the face of petitions — beyond saying it must endeavour to ensure public participation.

That’s pretty flaky as protection goes, which is why not one, but several, public participation Bills have been on the drawing board over the last 11 years. No joy yet. We have no enshrined right to be considered, only an enshrined right to ask to be considered.

The country’s gap around regulatory impact assessments (RIAs) is more universal. Under its Statutory Instruments Act 2013, all regulations issued under an act of Parliament must be assessed for their impact.

This must show the costs and benefits, who will be helped, hurt, and how. It’s a fairly effective way to end dud rules.

But parliamentary Bills themselves are not necessarily subject to an RIA. The person backing the legislation can, if they wish, undertake an RIA, or affected parties can ask for one. But, yet again, no rules exist on what must follow.

Thus, we see a breed of strange private member’s Bills regularly popping up with the industry horrified, but with no actual recourse except if the private member withdraws the Bill — in which regard, let’s look at the concept of ‘rent seeking’.

This is where someone holds professional power which means they can take personal payments from the affected parties, to head off trouble or gain advantage. It’s called rent-seeking in academia and graft in everyday language.

I have even seen this kind of ‘rent-seeking’ in news, with at least one powerful blogger, threatening to run with terrible allegations unless financially ‘encouraged’ not to.

That said, with these kinds of private member’s Bills, where the industry is saying the member is asking for payment, or suchlike, to withdraw the offending Bill, I haven’t been in the room when the payment request arrived, so it’s hearsay.

However, I have seen previous private member’s Bills where the industry was horrified, and then the private member withdrew the Bill. And I have seen several private member’s Bills that are just nonsense.

A case in point, published with only every second page in the draft, is the ICT Practitioner’s Bill. Now you may have read in this very newspaper many times about innovation competitions, start-ups, new and amazing apps: almost all of them would be illegal under this new Bill, and if that youth or group or even university department tried to code any app they would be liable to a half a million shilling fine.

Nor could they do it without an ICT degree. So, no mathematicians, engineers, ICT diploma-holders, or self-taught geniuses here. In fact, this Bill prevents way more than app developers: the list goes on, a long way, and my column doesn’t.

But it’s a dead hand. So the industry petitioned Parliament to have it scrapped. There was never a response. The relevant committee won’t consider it.

So, is that legal under the Constitution? Well, maybe a court case ahead. But all the private member’s Bills of this genre move like this.

They move nowhere until they disappear. We should just, instead, ensure rent-seeking could never work — by considering petitions as an obligation and running RIAs.

In Kenya, the Statutory Instruments Act, 2013, requires regulatory authorities to prepare a regulatory impact statement for every statutory instrument (rule, order, regulation, form, by-law, resolution, etc.) that is likely to impose significant costs on the community.