Although Section 30 of the Constitution rests the legislative power of the republic in parliament, parliament delegates its legislative power to other persons and bodies.
Delegated legislation is also referred to as subsidiary (subordinate legislation). It is Law made by parliament indirectly.
Delegated legislation consists of rules, orders, regulations, notices, proclamations e.t.c. made by subordinate but competent bodies e.g.
1. Local Authorities
2. Professional bodies such as ICPA(K)
3. Statutory boards
4. Government ministers
These bodies make the laws in exercise of delegated legislative power conferred upon them by parliament through an Enabling or Parent Act.
Delegated legislation takes various forms e.g.
1. Local Authorities make by-laws applicable within their administrative area
2. Government ministries, professional bodies and others make rules, orders, regulations, notices e.t.c.
CHARACTERISTICS OF DELEGATED LEGISLATION
1. All delegated legislation is made under the express authority of an Act of Parliament.
2. Unless otherwise provided, delegated legislation must be published in the Kenya
Gazette before coming into force.
3. Unless otherwise provided, delegated legislation must be laid before parliament for approval and parliament is empowered to declare the delegated legislation null and void by a resolution to that effect whereupon it becomes inoperative to that effect
WHY DELEGATED LEGISLATION?
Delegated legislation is described as a “necessary evil” or a Constitutional impropriety”. This is because it interferes with the doctrine of separation of powers which provides that the Law-making is a function of the legislature.
Parliament delegates Law-making powers to other persons and bodies for various reasons:
1. Parliament is not always in session
2. Parliament is not composed of experts in all fields
3. Inadequate parliamentary time
4. Parliamentary Law-making is slow and unresponsive to urgent needs. Additionally it lacks the requisite flexibility
5. Increase in social legislation
ADVANTAGES OF DELEGATED LEGISLATION
1. Compensation of last parliamentary time: Since members of parliament are not always in the National Assembly making Laws, the Law-making time lost is made good by the delegates to whom legislative power has been given hence no Law-making time is lost.
2. Speed: Law-making by government Ministers, Professional bodies and other organs is faster and therefore responsible to urgent needs.
3. Flexibility: The procedure of Law-making by delegates e.g. Government Ministers isnot tied to rigid provisions of the Constitution or other law. The Minister enjoys the requisite flexibility in the Law-making process. He is free to consult other persons.
4. Technicality of subject matter: Since parliament is not composed of experts in all fields that demand legislation, it is desirable if not inevitable to delegate Law-making powers to experts in the respective fields e.g. Government Ministries and local authorities.
DISADVANTAGES OF DELEGATED LEGISLATION
1. Less Democratic: Compared to statute law, delegated legislation is less democratic
in that it is not always made by representatives of the people affected by the law. E.g. rules drafted by technical staff in a government ministry.
2. Difficult to control: In the words of Professor William Wade in his book “Administrative Law” the greatest challenges posited by delegated legislation is not that it exists but that it‟s enormous growth has made it impossible for parliament to watch over it. Neither parliament nor courts of law can effectively control delegated legislation by reason of their inherent and operational weakness.
Inadequate publicity: Compared to statute law, delegated legislation attracts minimal publicity if any. This law is to a large extent unknown.
4. Sub-delegation and abuse of power: Delegates upon whom law making has been delegated by parliament often sub-delegate to other persons who make the law. Sub-delegation compounds the problem of control and many lead to abuse of power.
5. Detailed and technical: It is contended that in certain circumstances, delegated legislation made by experts is too technical and detailed for the ordinary person.
CONTROL OF DELEGATED LEGISLATION
Both parliament and courts of law have attempted to control delegated legislation, however neither can effectively do so.
A) PARLIAMENTARY OR LEGISLATIVE CONTROL
Parliament has put in place various mechanisms in its attempt to control or contain delegated legislation:
a. Parliament delegates law-making power to specific persons and bodies e.g. government ministries, local authorities, professional bodies, chief justice e.t.c.
b. The Enabling or Parent Act prescribes the scope and procedure of Law-making.
The delegates can only make law as defined by the scope and must comply with the procedures prescribed.
c. The Enabling or Parent Act may require the draft rules to be circulated to interested parties for comments e.g. By-law.
d. The Enabling or Parent Act may provide that the delegated legislation made be laid before the concerned minister for approval e.g. By-laws made by local authorities. This is political control and is largely ineffective.
e. Under Section 27 (i) of the Interpretation and General Provisions Act6, unless otherwise provided, delegated legislation must be published in the Kenya Gazette before coming into force.
f. Under Section 34 (i) of the Interpretation and General Provisions Act, unless otherwise provided, delegated legislation must be laid before parliament for approval and parliament is empowered to pass a resolution declaring the Law null and void where upon it becomes inoperative.
Legislative control of delegated legislation is by and large ineffective by reason of the operation and inherent weakness of parliament.
B) JUDICIAL CONTROL
This is control of delegated legislation by courts of law. Courts of Law attempt to control delegated legislation through the doctrine of ultra vires (beyond the powers). A court of law declares delegated legislation ultra vires thereby rendering it null and void.
Delegated legislation may be declared substantively or procedurally ultra vires.
a) Substantive Ultra Vires
A court of law on application by a party declares delegated legislation substantively ultra vires if satisfied that:
a. The delegate exceeded the powers prescribed by the Enabling of Parent Act.
b. The delegate exercised his powers for a purpose other than for which the power was given. This is abuse of power.
c. The delegate acted unreasonably. What amounts to an unreasonable act is for the court to decide on the basis of the facts before it.
b) Procedural Ultra Vires
A court of law may declare delegated legislation procedurally ultra vires on application if satisfied that the Law-making procedure prescribed by the Enabling or Parent Act was not complied with by the delegate in the law-making process.
Delegated legislation made in contravention of the procedure prescribed by parliament has a procedural defect. In Mwangi and Maina v. R. (1950) the appellants were convicted and sentenced by the Resident magistrate‟s court in Nairobi for overcharging a haircut contrary to the defense (Control of Prices) Regulations 1945. Under these regulations, the Price controller was empowered to fix the price of certain services including a haircut. He had fixed the price at
50 cents but the appellants had been charging 1 shilling. On appeal, the appellants argued that the regulation fixing the price at 50 cents not been published in the Kenya Gazette as required by the law. As this had not been done, the court declared the rules procedurally ultra vires thereby setting aside the conviction and sentence of the appellants.
Judicial control of delegated legislation is ineffective for two reasons:
1. Courts are in their nature passive. A court of law will only act when a case is brought before it.
2. The party seeking judicial redress must discharge the burden of proof.