The impugned Miscellaneous Amendment Bill, 2022 read for the first time in the House on Thursday, May 26, 2022 is, and need to be declared, unconstitutional on the following grounds;
Many Court findings have ruled against substantive matters being amended via the ‘omnibus’ Bills within the meaning of the word ‘miscellaneous’.
The proposed impugned amendments occasion violation of the Constitution either through form or content. Whether the violation is one of form or content, any such violation is sufficient for the Honourable Speaker to find that a proposed impugned law is unconstitutional.
The petitioner is persuaded that the impugned amendments are substantive in nature since they were fashioned to overhaul the manner in which affected Acts of the Law will operate.
An example is the purported, unexplained, unwarranted, mischievous and unlawful proposed removal of the Petitioner (Consumers Federation of Kenya – COFEK) from the Scrap Council Act for personal reasons.
Removal of a Council member, in light of constitutional consumer rights at Article 46 of the Constitution, cannot be ‘a miscellaneous’ amendment but most substantive.
In such cases where an institution (Petitioner) is purportedly to be removed from the board membership, the Cabinet Secretary for Trade and Industrialization Ms Betty Maina acted in excess of her limited powers to either direct and or purport to direct the Attorney General, Suo Moto, to publish a Bill purporting to remove an institution from an Act of Law established by Parliament without showing cause, substance and basis.
This alone implies that the proposed amendment is not a miscellaneous one. Ideally such an amendment if it has gone through Cabinet will be debated by the House and amended accordingly from the context of the parent Act, not an Omnibus Bill.
Having 56 key Bills under an Omnibus Miscellaneous Laws ought to be committed to the respective line Committees of the National Assembly to reach the threshold of public participation. Not a single Committee can and should handle all Bills that affect different Committees.
The timing is suspect. Amending key laws, a few weeks when the House is about to adjourn Sine Die would have challenges of quorum both at the Committees and the Plenary for reasons that MP’s are busy clearing with the IEBC ahead of the August 9, 2022 elections.
That if the impugned Bill were to proceed to the Second Reading as is, the public interest will be irreparably lost.
We are hoping that Majority Leader Amos Kimunya can either recall the offending Bill and or advise the Speaker to step it down.
Laws are for posterity. They are not about certain individuals and or settling political and other personal scores.
As chief legal adviser, the Attorney General has failed to ensure the spirit and letter of constitutionalism is fully and strictly adhered to.
The Miscellaneous Amendments Bill should not be abused to give Cabinet Secretaries legislative powers through the backdoor.