Lawyers Petition Parliament to Fast-Track Law Punishing Agencies That Sit on Regulations

 
Lawyer Ekaterina Handa from Gitonga, Kinyanjui & Co Advocates when she presented the Statutory Instruments (Amendment) Bill at the National Assembly at Parliament Buildings on September 3 / HANDOUT

By Maximilla Wafula Sub Editor, The County Diary

Lawyers have petitioned the National Assembly to urgently pass legislation that would give Kenyans power to petition Parliament when public bodies fail to make regulations required to implement laws.

In a memorandum to the Clerk of the National Assembly, the lawyers led by Advocate Ekaterina Handa, said the Statutory Instruments (Amendment) Bill, 2024 was necessary to curb institutional inertia and prevent public bodies from frustrating Parliament’s legislative intent.

The Bill has been passed by the Senate and is currently undergoing public participation by the National Assembly.

Handa singled out the Judicial Service Commission, accusing it of failing for years to formulate and gazette regulations governing complaints against judges and judicial officers despite a statutory obligation to do so.

She said the failure had created a dangerous legal vacuum in which complaints could be handled through procedures that were neither predictable nor known to the parties.

“This is not merely a procedural nicety. It is a fundamental safeguard against the atrophy of legislative will and the subversion of Parliament's intent by administrative inertia,” Handa said.

The memorandum, dated September 3, was submitted in response to a media notice inviting views on the Bill.

The proposed legislation seeks to impose time limits within which regulation-making authorities must make regulations required to operationalise Acts of Parliament.

It would also allow ordinary citizens to petition Parliament where an authority has failed, neglected or declined to make the required statutory instrument within the prescribed period.

The Bill further proposes criminalising such failure by the responsible authority.

Handa argued that the JSC’s conduct provides a compelling case for the legislation, pointing to Section 47 of the Judicial Service Act, which requires the Commission to make regulations for the efficient and transparent administration of its functions, including the handling of petitions against judges.

She cited the High Court’s decision in Lubengu v Judicial Service Commission & another; Ojiambo t/a Acorn Law Advocates LLP (Interested Party), in which a three-judge bench examined the absence of formal rules governing complaints against judicial officers.

According to Handa, the court found that the absence of gazetted rules had left the JSC relying on ad hoc procedures, creating uncertainty for judges facing disciplinary proceedings.

She said the court’s findings raised fundamental questions about fair administrative action and natural justice.

“Without clear, pre-ordained rules, a judge is exposed to the possibility of being judged by standards and procedures devised ex post facto or, worse, tailored for the specific case at hand,” the memorandum states.

Handa also invoked the Supreme Court’s decision in Shollei v Judicial Service Commission & another, which she said directed the JSC to gazette rules and regulations governing complaints against judges and judicial officers within 90 days of the judgment delivered on February 17, 2022.

She said nearly five years later, the directive remained unimplemented.

“This is not a matter of interpretation or legal complexity; it is a simple, direct, and binding order that has been ignored,” Handa said.

She warned that the absence of clear procedures affected both complainants and judges.

Members of the public, she argued, lacked a transparent and predictable mechanism for pursuing complaints, while judges could be exposed to processes they might perceive as arbitrary or unfair.

Handa rejected the argument that parliamentary intervention would undermine judicial independence.

Instead, she said the proposed law would strengthen judicial independence by ensuring disciplinary proceedings operate under clear, predetermined rules.

“This legislative proposal is not an intrusion into judicial independence; it is a vital mechanism for its preservation,” she said.

She wants MPs to receive and consider the memorandum and the cited court decisions as part of the public record on the Bill.

She further urged Parliament to pass the Bill urgently and specifically take note of the JSC’s alleged failure to comply with the Supreme Court directive.

Handa also wants the relevant National Assembly committee to ensure that regulations governing complaints against judges are formulated and gazetted without further delay, either by the JSC or through the mechanism proposed in the Bill.

She said Parliament had a duty to ensure that no institution was allowed to operate beyond the reach of the law.