Business people should pay close attention to politics

The decision issued by the High Court last week that nullified several laws passed by the National Assembly lays bare the inherent problems of ignoring politics.  

The Senate had sued the National Assembly over laws passed between 2017 and 2019, and which the Senate argued should also have sought their approval.

The genesis of the case was a debate a day after the President signed the Health Laws Amendment Bill at State House. When the Senate resumed on May 14, 2019, the then Senate Majority Leader, who had appeared in a photo of the signing ceremony, told members that he was at State House on a different matter and that he had protested signing of the Bill but was ignored.

The Senators vowed to protect their legislative mandate from being eroded at a time when some Cabinet Secretaries were ignoring their summons. 

They went to court and challenged Bills that had been passed on issues like the management of insurance companies, cybercrimes, capital markets, National Youth Service, betting taxes, and sacco supervision.

The court directed that the laws be subjected to the Senate over the next nine months. Already the Kenya Revenue Authority had rushed to secure some tax revenue that it was collecting but which now fall under the nullified laws.

The court declined to rule on the Senate’s plea on the constituencies development fund (CDF), which has itself been declared illegal in the devolved government structure. But the National Assembly repurposed it as the “National Government CDF” and continues to fund it while also denying Senators’ demands to have their own fund of largesse to spend in the counties.

Several times there have been calls, even by President Uhuru Kenyatta, asking the two Houses to work together. But the splits sometimes became vicious.

While expediting government business, several Bills have only been introduced to the National Assembly with the statement that they were “money bills” or that they did not concern counties, which meant that they should not be routed through Senate. The two Houses have also conducted parallel investigations into matters, with the Senate shining a spotlight on the management of Kenya Airways and the Ruaraka schools land case. 

The Senate has had its low moments too: some governor impeachment processes seem choreographed, and two much-talked about committee reports on Ruaraka land and the medical equipment scheme were both shot down in November 2018 and September 2020, respectively. 

Costly and unnecessary

There is a need for harmony between the two houses and sponsors and promoters of bills should ensure that all processes are covered, including getting concurrence from the Senate, and that there is adequate public participation. Last month there was a discovery that there were three different Bills on public participation rules and two on reproductive rights. This duplication is costly and unnecessary. 

Many Kenyans only think of politicians during elections, but it should be a never-ending, year-round process. The Constitution provides for public participation as a necessary part of making laws. Some MPs may want to wish this away but the courts have again affirmed, this role by nullifying some laws passed by Parliament on grounds that there was no public participation.  

Parliament has also used a lack of public participation to shut down some unpopular proposals by different government departments such as mandatory solar water heaters for buildings and astronomical fees for operating drones.  

Another challenge for businesses is in the large omnibus Bills that Parliament passes to amend several laws. 

MPs do not have time to adequately understand and pass these, while sometimes making confusing amendments to clauses without fully addressing the consequences. One of these was a requirement that all foreign companies in Kenya, such as Facebook and Google, should have 30 per cent local shareholding. 

Chances are Senate will approve these laws without much of an issue, but a precedent has been set.  

Senators may now be emboldened to tackle other grievances such as the comical transfer of management by Governor Mike Sonko of Nairobi City County functions to the Nairobi Metropolitan Services which now runs programmes and has initiated infrastructure projects that are worth billions of shillings.

The intentions are well-meaning, but if the foundation is shaky, so will the future be.