The Law-Making Process In Kenya: From Bill To Law

The legislative process in Kenya has undergone various changes since the 2010 Constitution. This includes the establishment of a Bicameral Parliament, the creation of 47 County Assemblies, and the requirement for public participation in policy-making and legislation. The legislative process is devolved, with the Senate and National Assembly at the national level, and the County Assemblies at the county level, serving as the primary legislative organs. This process can be broken down into several stages, from the introduction of a bill to its final approval, and it involves the participation of various actors, including legislative drafters, committees, and the Executive arm of the government.

The legislative process in Kenya

Legislative Proposal

The legislative process begins with a legislative proposal, which should emanate from a public policy. This policy-making process sets the government's objectives and strategies. Some policies only require minor administrative measures, while others need new legislation. Policy ideas can originate from the Executive, political parties, business associations, organised groups, or even individual citizens. The decision to initiate a new legislative process depends on factors such as the cost-benefit analysis of the proposal, consistency with the constitutional framework, and the existence of similar applicable laws.

Legislative Drafting

Legislative drafting is the process of converting policies into legislative instruments. A legislative drafter translates the agreed policy framework into a draft bill or legislative proposal presented to the Assembly. Drafters should use simple and unequivocal language, considering the practicality of implementing the law. They also ensure the bill's conformity with the Constitution and existing statutes.

Review, Debate, and Approval

Once tabled in the Assembly, the legislative proposal becomes a bill. It undergoes review by relevant committees, plenary readings, and debates according to the Standing Orders. After approval, the bill is forwarded to the Governor for assent. The Governor has fourteen days to assent or request specific changes. If the Governor requests changes, the Assembly can consider them or resubmit the original bill with the approval of at least two-thirds of the members. Once assented to, the bill becomes a law and is published in the county and national gazettes. It comes into force fourteen days after publication.

Readings

The legislative process involves three readings:

• First Reading: A bill is introduced to the legislature and assigned a tracking number and a committee.
• Second Reading: The draft bill is read a second time, and a vote is taken on the general outlines before sending it to the designated committee.
• Third Reading: The bill is read with all amendments and given final approval after being reviewed by the designated committee.

Bicameral Parliament

Kenya has a Bicameral Parliament, consisting of the National Assembly and the Senate. Both houses must consent before an Act becomes a law or statute. This ensures that the legislation passes through a rigorous process and is thoroughly reviewed before being enacted.

Presidential Assent

The legislative process is completed with Presidential Assent, where the Head of the Executive formally assents to the Act of Parliament. The President's consent is required for the law to come into effect. An Act of Parliament may provide that it will come into force on a notified date, which is usually announced by the relevant Minister.

The role of the National Assembly

The National Assembly is a key legislative body in Kenya, and it plays a crucial role in the process of a bill becoming a law. Here is a detailed overview of its functions and responsibilities in this process:

The National Assembly, along with the Senate, forms the bicameral Parliament of Kenya. This legislative body holds the power to make, amend, or repeal laws. The National Assembly is responsible for initiating, debating, and reviewing proposed legislation in the form of bills. It serves as the primary platform for introducing and discussing legislative proposals.

During the legislative process, a bill undergoes several readings in the National Assembly. In the First Reading, a bill is introduced to the Assembly, assigned a tracking number, and referred to the relevant committees. This initial stage sets the bill on its legislative journey. The Second Reading involves a more detailed examination of the bill's content. A vote is typically taken on the general outlines of the bill before it is sent to the designated committee for further scrutiny and potential amendments.

The committee plays a vital role in the process, as it reviews and analyses the bill, considering its potential impact and ensuring its conformity with the Constitution and existing statutes. This stage may involve expert input and public participation to gather diverse perspectives. The committee may propose amendments to the bill, addressing any concerns or inconsistencies identified during the review process.

After the committee has completed its work, the bill returns to the National Assembly for the Third Reading. At this stage, the bill is presented with all the amendments incorporated. The Assembly engages in a final debate and deliberation on the amended bill, providing an opportunity for members to raise any remaining concerns or highlight its merits. A final vote is conducted to give the bill its final approval.

It is important to note that the National Assembly's role in law-making extends beyond just passing bills. Members of the Assembly are also involved in policy development and ensuring public participation. They represent their constituents' interests and ensure that the laws enacted align with the needs and aspirations of the Kenyan people. Additionally, the National Assembly works in collaboration with the Senate, and both houses must consent to an Act for it to become a law, demonstrating a spirit of cooperation and consensus-building in the legislative process.

The Senate's function

The Senate consists of 68 members, with 47 elected directly from each county and 20 nominated by political parties based on their share of seats in the body. The primary function of the Senate is to protect the interests of the county governments within the national government. This is reflected in the types of bills they consider.

Bills concerning county governments, including those affecting their functions and powers, elections, and finances, are considered by the Senate. These are divided into ordinary and special bills. Ordinary bills are any that do not affect the election of members of county governments or annual revenue allocations to counties. If the Senate passes an ordinary bill, and the National Assembly rejects it, the bill is referred to the Mediation Committee. If the National Assembly then passes the bill with amendments, it returns to the Senate for reconsideration.

Special bills are those related to the election of county government members or revenue allocations. If the National Assembly wants to change or reject a special bill passed by the Senate, it requires the support of at least two-thirds of its members.

The Senate's role in the legislative process ensures that county interests are considered and protected in law-making. This contributes to harmony between national and county-level laws.

County Assemblies' legislative authority

County Assemblies Legislative Authority

The legislative authority of a county is vested in, and exercised by, its county assembly. A county assembly may make any laws that are necessary for, or incidental to, the effective performance of the functions and exercise of the powers of the county government.

The process of law-making in the County Assembly in Kenya takes place in several stages, from the first reading to assent by the County Governor. A Bill is a proposal for a new law or a proposal to change an existing law presented for debate before the County Assembly.

A Bill may originate from a political party, the County Executive, individual members of the County Assembly, a Committee of the County Assembly, or a member of the public. The first reading of a Bill involves the Assembly Clerk introducing the Bill to the Assembly for the first time by reading its title. No voting or debate occurs at this stage.

The Bill is then assigned a tracking number and sent to the relevant Departmental Committee of the Assembly for consideration. The Committee facilitates public participation through inviting submissions, holding public hearings, and consulting relevant stakeholders and experts on technical subjects. The Committee considers the views and recommendations of the public when preparing its report to the Assembly.

The second reading is when members of the County Assembly debate the main purpose and principles of the Bill. The member responsible for the Bill opens the debate by setting out the case for the Bill and outlining its provisions, while another member seconds it. If a Bill is not seconded, it is withdrawn. The discussion covers all aspects of the Bill, including its goals, principles, and how its passage will affect the general public.

The third reading involves a general discussion of the Bill immediately after the report stage. Amendments cannot be made at this stage, although 'tidying up' amendments might be acceptable. 'Tidying up' a Bill ensures the eventual law is effective and workable without loopholes. Debate is usually short and limited to what is in the Bill.

At the end of the debate, the Assembly takes a final vote on the Bill, deciding whether to approve the third reading. Once the Assembly passes the Bill, the Speaker presents it to the County Governor, who may refer it back to the County Assembly with a memorandum of reservations. If the County Governor assents, the Bill becomes law.

The legislative process in County Assemblies is designed to ensure public participation and transparency. The public can petition the Assembly to legislate on a matter, and members of the public may forward legislative proposals to Members of the County Assembly. Additionally, the relevant Departmental Committee facilitates public participation through various means during the consideration of a Bill.

Presidential Assent

The President has 14 days to either assent to the Bill or refer it back to Parliament for reconsideration, noting any reservations. If the President refers the Bill back, Parliament may amend the Bill to accommodate the President's reservations or pass the Bill a second time without amendment. If the Bill is amended to accommodate the President's reservations, it is then resubmitted to the President for assent. If the Bill is passed a second time, with or without amendments that do not address the President's reservations, it must be supported by two-thirds of the members of the National Assembly and two-thirds of the delegations in the Senate. The Speaker will then have seven days to resubmit the Bill to the President, who must assent to it within seven days. If the President does not take any action within the prescribed time frame, the Bill is taken to have been assented to upon the expiry of that period.

Once a Bill has received Presidential Assent, notification of the date of its coming into effect is given through a legal notice, usually by the Minister in charge of the matters with which the Act is concerned.

Frequently asked questions