Under Sec 30 of the Constitution, the legislative power of the republic is vested in the parliament of Kenya which consists of the president and the National Assembly.
Under Sec 31 of the Constitution, the National Assembly consists of:
a) Elected members
b) Nominated members
c) Ex-officio members
Under Sec 46 (1) of the Constitution, the legislative power of parliament is exercisable by passing Bills in the National Assembly.
A bill is draft law. It is a statute in draft. Bills may be classified as:
a) Government and Private members bills
b) Public and Private bills
a) Government Bill
This is a Bill mooted by the government which it introduces to the National Assembly National
Assembly for debate and possible enactment to law. All government bills are drafted by the office of the Attorney General.
Most bills are government bills.
b) Private Members Bill
This is a Bill mooted by a member of parliament in his capacity as such which he introduces to the National Assembly for debate and passage to law e.g. The Hire Purchase Bill, 1968.
c) Public Bill
This is a bill that seeks to introduce or amend law applicable throughout Kenya. It may be government or private members
d) Private Bill
This is a Bill that seeks to introduce or amend law applicable in some parts of Kenya or it regulates a specific group of persons.
The bill may be government or private members.
LAW MAKING PROCEDURE
The procedure of law-making in Kenya is contained in the Constitution and the National Assembly Standing Orders. A bill passes through various stages before enactment to law.
1. Publication of Bill in the Kenya Gazette
All bills must be published in the Kenya Gazette to inform the public and M.P‟s of the intended law. As a general rule, a Bill must be published at least 14 days before introduction to the National Assembly. However, the National Assembly is empowered to reduce the number of days.
a) 1st Reading
The Bill is read out to members for the 1st time. No debate takes place. This reading is a mere formality.
b) 2nd Reading
The Bill is read out to members for the 2nd time. This is the debating stage. All members are given the opportunity to make contributions. Amendments or alterations may be proposed. After exhaustive debate, the Bill proceeds to the committee stage.
c) Committee/Commital Stage
The bill is committed either to a select committee of members or to the entire National Assembly as a committee for a critical analysis. At this stage, the bill is analysed word for word.
In the case of a select committee, it makes a report for submission in the National Assembly
d) Report/Reporting Stage
The chairman of the Select Committee tenders its report before the National Assembly.
If the report is adopted, the bill proceeds to the third reading
e) 3rd Reading
The bill is read out to members for the third time. Generally no debate takes place. The Bill is voted on by members of the National Assembly and if supported by the required majority, it proceeds to for presidential assent
3. President‟s Assent
Under Section 46 (2) of the Constitution, all Bills passed by the National Assembly must be presented to the president for his assent.
Under Section 46 (3), the president must within 21 days of presentation of the bill signify to the speaker of the National Assembly his assent or refusal.
Under Section 46 (4), if the president refused to give his assent, he must within 14 days thereof deliver to the speaker, a memorandum on the specific provisions which in his opinion should be reconsidered including his recommendations for amendment.
Under Section 46 (5), the National Assembly must reconsider the bill taking into account the president‟s recommendations and must either:
1. Approve the recommendations with or without any amendments and re-submit the bill to the president for assent OR
2. Ignore the president‟s recommendations and repass the Bill in its original state. If the resolution to repass the Bill as such supported by not less than 65% of all the members of the National Assembly excluding the ex-officio members, the president must signify his assent within 14 days of the resolution.
4) Publication of Law in the Kenya Gazette
Under Section 46 (6) of the Constitution, a law passed by the National Assembly must be published in the Kenya Gazette before coming into operation. A statute or Act of parliament comes into operation either on the date of publication in the Kenya Gazette or on such other dates as may be signified by the minister by a notice in the Kenya Gazette.
However, under Section 46 (6), Parliament is empowered to make law with retrospective effects
Under Section 46 (7); all statutes enacted by the parliament of Kenya must contain the words “Enacted by the parliament of Kenya.”
Advantages of Statutes Law
1. Democratic: Parliamentary law making is the most democratic legislative process.
This is because parliaments the world over consist of representatives of the people they consult regularly. Statute Law, therefore, is a manifestation of the will of the people.
2. Resolution of legal problems: Statute Law enables society to resolve legal problems as and when they arise by enacting new statutes or effecting amendments to existing
3. Dynamic: Statute Law enables society to keep pace with changes in other fields e.g. political, social or economic. Parliament enacts statutes to create the necessary policies and the regulatory framework.
4. Durability: Statute Law consists of general principles applicable at different times in different circumstances. It has capacity to accommodate changes without requiring amendments.
5. Consistency/Uniformity: Statute Law applies indiscriminately i.e. it regulates the conduct of all in the same manner and any exceptions affect all.
6. Adequate publication: Compared to other sources of Law, statute Law is the most widely published in that it must be published in the Kenya Gazette as a bill and as a Law. Additionally, it attracts media attention.
7. It is a superior source of law in that only the Constitution prevails over it.
Disadvantages of Statute Law
1. Imposition of Law:Statute Law may be imposed on the people by the dominant classes in society. In such a case, the Law does not reflect the wishes of the citizens nor does it cater for their interests.
2. Wishes of M.Ps:Statute Law may at times manifest the wishes and aspirations of M.Ps as opposed to those of the citizenry.
3. Formalities:Parliamentary Law making is tied to the Constitution and the National Assembly standing orders. The Law making process is slow and therefore unresponsive to urgent needs.
4. Bulk and technical Bills:Since parliament is not made up of experts in all fields, bulkyand technical Bills rarely receive sufficient treatment in the national assembly, their full implications are not appreciated at the debating stage.