Introduction
Statute Law (Miscellaneous Amendments) Bill (or omnibus bills as referred to in other jurisdictions) is a type of a Bill that contains amendments to several Acts of Parliament. Traditionally, these amendments originate from the Executive through the Office of the Attorney General. They ordinarily contain minor amendments to various Acts of Parliament and they are preferred because their major role is to clean-up the Statute Book. Therefore, these Statute Law(Miscellaneous Amendments) bills would correct typographical errors, mistakes in cross-referencing, terminologies which are no longer applicable such as Minister instead of Cabinet Secretary (in Kenya, post-2010 Constitution), National Assembly instead of Parliament (if the sense is that pre-2010 Constitution, we had the National Assembly and post-2010 Constitution we now have Parliament of Kenya), and so on.
The Black’s Law Dictionary defines an omnibus bill as:
(1) A single bill containing various distinct matters, usually drafted in this way to force the executive either to accept all the unrelated minor provisions or to veto the major provision.(2) A bill that deals with all proposals relating to a particular subject, such as an “omnibus judgeship bill” covering all proposals for new judgeships or an “omnibus crime bill” dealing with different subjects such as new crimes and grants to states for crime control.
The benefit of having this omnibus bill is that it is expedient unlike if there were to be separate amendment bills which would consume more parliamentary time. In the case of Okiya Omtatah Okoiti v Communications Authority of Kenya & 21 others [2017] eKLR, the purposes of omnibus bills are quoted from Western Australia, Legislative Council, Standing Committee on Uniform Legislation and Statutes Review:
According to the Western Australia, Legislative Council, Standing Committee on Uniform Legislation and Statutes Review, Report 21, October 2007, pp. 5-6:
“An omnibus bill is an avenue for making general housekeeping amendments to legislation. It is designed to make only relatively minor, non-controversial amendments to various acts and to repeal acts that are no longer required. Omnibus bills assist in expediting the government’s legislative program and parliamentary business by reducing the number of separate amendment bills that deal with relatively minor amendments and repeals. They also help to weed out spent or redundant legislation from the statute book. The Department of the Premier and Cabinet has overseen the preparation of the bill to try to ensure that amendments about which there is some contention or complexity, or that make some substantive change to the law, are not included”.
In Canada, they have the Miscellaneous Statute Law Amendment Program which was established in 1975. For a proposed amendment to qualify inclusion into the Miscellaneous Statute Law Amendment bill, it must satisfy the following criteria:
- not be controversial
- not involve the spending of public funds
- not prejudicially affect the rights of persons; or
- not create new offences or subject a new class of persons to an existing offence
According to the Justice Laws Website:
The document containing the proposed amendments is tabled in the House of Commons and referred to the Standing Committee on Justice and Human Rights. It is also tabled in the Senate and referred to the Standing Committee on Legal and Constitutional Affairs. Those committees will review the proposed amendments in the document and will each prepare a report of their findings which will be presented to their respective Houses.
Perhaps the most important feature of committee review is that, since a proposed amendment must not be controversial, approval of a proposed amendment requires the consensus of the committee and therefore, if a single member of a committee objects to a proposed amendment, that proposed amendment will not be included in the Miscellaneous Statute Law Amendment bill.
Omnibus Bills in Theory and Practice
Massicotte in Omnibus Bills in Theory and Practice , Canadian Parliamentary Review, has interesting perspectives on the subject of omnibus bills. For instance, he points out that 42 States in the US have a provision in their constitutions along these lines: ““a statute shall embrace but one subject, which shall be expressed by its title. If a statute embraces a subject not expressed in its title, only the part not expressed is void”. And why is this so? To understand this, you go back to 1901. The case is Commonwealth vs. Barnett(199 US. 161). These are the memorable words given in that court, reproduced by Massicote:
“Bills, popularly called omnibus bills, became a crying evil, not only from the confusion and distraction of the legislative mind by the jumbling together of incongruous subjects, but still more by the facility they afforded to corrupt combinations of minorities with different interests to force the passage of bills with provisions which could never succeed if they stood on their separate merits. So common was this practice that it got a popular name, universally understood, as logrolling.
A still more objectionable practice grew up, of putting what is known as a rider (that is, a new and unrelated enactment or provision) on the appropriation bills, and thus coercing the executive to approve obnoxious legislation, or bring the wheels of the government to a stop for want of funds. These were some of the evils which the later changes in the constitution were intended to remedy.”
Massicote gives two reasons as to why omnibus bills are preferred by the Executive and legislatures. First, because it is easy to pass them since they include “the outcome of complex negotiations between self-interested legislators”. Thus one member would have one item that favours him or her, another would be wooed by another measure and so on. Secondly, because “omnibus bills generate embarrassment within opposition parties by diluting highly controversial moves within a complex package, some parts of which are quite popular with the public or even with opposition parties themselves.” So the dilemma is this: Is the whole bill so abhorrent that you want the whole Bill rejected yet there are some parts that are beneficial?
But why are omnibus bills bad? Massicote writes that “when a bill deals with topics as varied as fisheries, unemployment insurance and environment, it is unlikely to be examined properly if the whole bill goes to the Standing Committee on Finance.” In the Kenyan context, this may not be wholly applicable since the Statute Law (Miscellaneous Amendments) Bill is submitted to the respective Departmental Committees so that they may deal with proposed amendments to Acts of Parliament that fall within their mandates. But the danger still remains that there will be amendments to various Acts of Parliament and that the Committee may not examine properly the amendments since the bill does not deal with one subject.
In conclusion, Massicote writes, “…omnibus bills have become a slippery slope now generating high controversy. In my view, they do little to improve the already low esteem in which legislators are held by the Canadian public.”
Newspaper articles on the subject
In his 2015 article in the Daily Nation Newspaper titled Abuse of Statute Law Amendments, Apollo Mboya faulted the two Statute Law (Miscellaneous Amendments) Bills, 2015 for not having been subjected to public participation and stakeholder consultation. He observed that “Statute Law (Miscellaneous Amendments) is to be used to correct anomalies, inconsistencies, outdated terminology or errors which are minor, non-controversial amendments to a number of statutes at once, in one bill, instead of making such amendments incrementally, when a particular statute is being amended in the context of a separate legislative initiative.”
Jill Cottrell Ghai in her 2018 article in The Star Newspaper titled Law making and importance of transparency in amendments writes:
Statute Law (Miscellaneous Amendments) Bills are another opaque device. In theory, they deal with minor, non-controversial matters that do not merit individual amendment Bills for each Act. Fair enough, if it is to change Independence Day to Jamhuri Day, or ‘minister’ to Cabinet Secretary’. But many of these Bills contain controversial or policy issues that should be openly presented and discussed. At least one is passed each year.
She further writes:
[Statute Law (Miscellaneous Amendments) Bills] is an underhand way of changing the law, and one that makes it hard for the changes to receive careful consideration in Parliament. Five Kenyan judges observed that “It is clear that both on policy and good governance, which is one of the values and principles of governance in Article 10 of the Constitution, … omnibus amendments in the form of Statute Law Miscellaneous legislations ought to be confined only to minor non-controversial and generally house-keeping amendments.” One judge said in another case that a change that impacts on the letter or the spirit of the Constitution cannot be termed minor, non-controversial or house-keeping. Clearly a (probably unconstitutional) change to vetting of JSC members is not minor.
Her article contains worthy proposals that Parliament may consider. One of them is to have detailed explanatory memoranda and having a website page for each Bill linking to documents on the Bill, reports of committee proceedings and Parliament (Hansard), indicating what stage discussion has reached. You will recall that this is one of the proposals I suggested in the revamped Parliament of Kenya website.
Cases
In Okiya Omtatah Okoiti v Communications Authority of Kenya & 21 others [2017] eKLR the subject of Statute Law (Miscellaneous Amendments) Bills came up. The Statute Law (Miscellaneous Amendment) Bill 2015 sought to amend the Kenya Information and Communications Act. The Bill was published on 18th September 2015 by the National Assembly and the House debated and passed the Bill on 1st December 2015. The court quashed all amendments made on 15th December 2015 to the Kenya Information and Communications Act by the Statute Law (Miscellaneous Amendments) Act 2015. GV Odunga, J held on 6th June 2017 that, “In my view the amendments introduced to Kenya Information and Communications Act through the Statute Law (Miscellaneous Amendments) Act had an impact on Article 34(5) of the Constitution. In my view an amendment that has an impact on either the letter or the spirit of the Constitution however remotely cannot be termed as “minor non-controversial and generally house-keeping amendments.” Article 34(5) of the Constitution provides that Parliament shall enact legislation that provides for the establishment of a body which shall- (a) be independent of control by government, political interests or commercial interests; (b) reflect the interests of all sections of the society; and (c) set media standards and regulate and monitor compliance with those standards.
What were these amendments to the Kenya Information and Communications Act by the Statute Law (Miscellaneous Amendment) Bill 2015 ? Generally, they were seeking to introduce the aspect of consultation between the Cabinet and the Communications Authority in making regulations under various parts of the Kenya Information and Communications Act.
It is therefore clear that both on policy and good governance, which is one of the values and principles of governance in Article 10 of the Constitution, which values and principles form the foundation of our State and Nation as decreed in Article 4(2) of the Constitution, omnibus amendments in the form of Statute Law Miscellaneous legislations ought to be confined only to minor non-controversial and generally house-keeping amendments.
245. Whereas it is true that what were introduced on the floor of the House were amendments as opposed to a fresh Bill, it is our view that for any amendments to be introduced on the floor of the House subsequent to public participation, the amendments must be the product of the public participation and ought not to be completely new provisions which were neither incorporated in the Bill as published nor the outcome of the public input.
The Judges indicated that the scope of the published Bill as stated in its Memorandum and Objects was to deal with “timelines for transmission of names to the President.” The amendments debated went further to a different subject , contrary to Standing Order 133 by introducing over and above the subject of timelines the contentious issue of the number of names to be submitted to the President by the Commission.
The court held in paragraph 250 of their Judgement that:
Therefore by introducing totally new and substantial amendments to the Judicial Service Act, 2011 on the floor of the House, Parliament not only set out to circumvent the constitutional requirements of public participation but, with due respect, mischievously short-circuited and circumvented the letter and the spirit of the Constitution. Its action amounted to a violation of Articles 10 and 118 of the Constitution.
The findings of the Court in this case were as follows:
- It was improper for the amendments affecting the manner of appointment of the Chief Justice and the Deputy Chief Justice, the top most positions in the Judiciary, an arm of the Government, to be effected in a Statute Law Miscellaneous Amendment legislation.
- To the extent that the amendments to section 30(3) of the Judicial Service Act compelled the Judicial Service Commission to submit three names to the President for appointment of the Chief Justice and the Deputy Chief Justice respectively, the said amendments violated the letter and the spirit of Article 166(1) of the Constitution.
- By introducing the said amendments on the floor of the House when the same were not the subject of the Bill that was published and was subjected to public participation, that action was contrary to the letter and spirit of Article 10 as read with Article 118 of the Constitution.
In Law Society of Kenya v Attorney General & 2 others [2013] eKLR, by a petition dated 25thJuly 2012, the Law Society of Kenya challenged the constitutionality of various sections of the Statute Law Miscellaneous (Amendments) Act, 2012, No. 12 of 2012 which amended certain sections of the Advocates Act, (Chapter 16 of the Laws of Kenya) with some consequential amendments being made to the Law Society of Kenya Act. The petitioner in particular took issue with sections 13(1)(e), 32A, 32B, 55 and 57(1) of the Advocates Act which were amended. The Statute Law Miscellaneous (Amendments) Act, 2012, which according to its long title is “An Act of Parliament to make minor amendments to statute law” was assented to on 6th July 2012 and came into force on 12thJuly 2012.
A brief look at the amendments that were proposed:
- Section 13(1) (e) of the Advocates Act – To bring the advocates practising in Rwanda and Burundi on board in cross-border practice
- Section 32A– On employment of in-house advocate;
- Section 32B– the CJ with the recommendation of LSK to prescribe the standard of work and remuneration of in-house advocate
- Section 55– Replacement of Disciplinary Committee with Disciplinary Tribunal; Section 55 provides for the avenue for discipline of advocates
- Section 57(1)– It established the Disciplinary Tribunal
The amendment to section 23(2) of the Vetting of Judges and Magistrates Act, 2011 (No. 2 of 2011) was as follows-
S. 23(2) Delete and substitute therefor the following new subsections –
(2) the Board shall be divided into three panels for purposes of vetting, and the three panels shall vet the judges simultaneously while the Judicial Service Commission shall vet the Magistrates,
(3) The vetting process once commenced shall be concluded not later than the 28th February, 2013, and any review of the decision of the Board or of the Judicial Service Commission shall be heard and concluded within the above specified period.
The LSK’s contention was that the effect of the amendments was to transfer the vetting of magistrates from the Vetting of the Judges and Magistrates Board to the Judicial Service Commission (JSC). The LSK condemned the amendment as unconstitutional as it undermined independence of the judiciary. It also argued that by allowing sitting judges and magistrates who are members of the JSC to sit in their own vetting or that of their colleagues undermined the spirit of vetting of the judicial service and violated the rules prohibiting conflict of interest under Articles 73 and 75 relating to leadership and integrity. It argued that the amendment was discriminatory in as far as it was likely to give unequal standards, process and differentiated outcomes in the vetting process.
However, Parliament was swift. It remedied this through the Vetting of Judges and Magistrates (Amendment) Act, No. 43 of 2012. The court had to take judicial notice of this in paragraph 12 of its judgement:
12. I take judicial notice that this submission has now been overtaken by events as the amendment has since been repealed by section 8 of the Vetting of Judges and Magistrates (Amendment) Act, No. 43 of 2012. The amended section now reads as follows:
23. (1) The vetting process once commenced shall not exceed a period of one year, save that the National Assembly may, on the request of the Board, extend the period for not more than one year.
(2) The vetting process, once commenced, shall be concluded not later than the 31St December, 2013 and any review of a decision of the Board shall be heard and concluded within the above specified period.
(3) Despite subsection (2), the Board shall conclude the process of vetting all the judges, chief magistrates and principal magistrates not later than the 28th March, 2013 and any review of a decision of the Board shall be heard and concluded within the above specified period.
D.S. Majanja, J, in his Judgement delivered on 19th March 2013 held in paragraph 54 as follows:
54. I have come to the conclusion that the provisions of the Statute Law (Miscellaneous Amendments) Act, 2012 amending the Vetting of Judges and Magistrates Act, the Law Society of Kenya Act and the Advocates Act are not inconsistent with the Constitution as alleged by the petitioner.
It is instructive to note that the court was satisfied that there was adequate public participation and save for the amendments to the Vetting of Judges and Magistrates Act which would been constitutional (but which was overtaken by events) the Constitution was not violated.
In Josephat Musila Mutual & 9 others v Attorney General & 3 others [2018] eKLR , in 2016, the National Assembly through the Statute Law (Miscellaneous Amendment) Act 2016, amended various statutes one of them being The Auctioneers Act (No. 5) of 1996. Various provisions of the Auctioneers Act were amended including introduction of subsection (3) to section 3, section 4 11(2) which made significant changes to the Act which caused disquiet within the Auctioneers fraternity who felt aggrieved and contended that the amendments were unconstitutional. In a judgement delivered on 23rd February 2018, Mwita, J declared sections 3(3) and 11(2) of the Auctioneers Act (No. 5 of 1996) to be inconsistent with and in contravention of the Constitution and were therefore unconstitutional.
Allow me to reproduce paragraphs 54, 55 and 56 of the Judgement because they speak to our subject:
54. In that regard therefore, statute Law (Miscellaneous Amendments) Act, cannot be used to make serious or substantial amendments to a statute or legislation as parliament did in the case of the Auctioneers Act, (No.5 of 1996.) Looking at the amendments effected through this Statute Law (Miscellaneous Amendments) Act, they were quite substantial and affected the composition of the Auctioneers Board at any one time should circumstances necessitate change of status of a member or members of the Board as contemplated by section 3(3) of the Act. The introduction of section 11(2) in particular, affected rights and fundamental freedoms of citizens yet it was done as though it was a minor and inconsequential amendment, and without engaging the public and more so those who would be affected by the new sub section.
55. Sections 3(3) and 11(2) could only be introduced through a normal Bill and after being subjected to public participation. The National Assembly could not introduce substantive amendments that violate rights of individuals in the manner it was done to the Auctioneers Act. They were not correcting an error, inconsistency or anomaly. The amendments were critical and affected rights and fundamental freedoms of auctioneers who were not consulted as the class of persons to whom the amendment was directed. They needed to give their in -put before the amendment was effected.
56. To that extent, the amendments and more particularly section 11(2) limited the right of auctioneers in violation of Article 24(1) of the Constitution. The amendment is not only unreasonable but also unjustifiable in an open and democratic society based on human dignity, equality and freedom.
In Pharmaceutical Society of Kenya v National Assembly & 3 others [2017] eKLR ,Constitution Petition 557 of 2015, the Petitioner was aggrieved by the amendments introduced through the Statute Law (Miscellaneous Amendment) Bill 2015 which amended section 3 of the Pharmacy and Poisons Act. They also claimed that the impugned amendments were done without inviting PSK.
The amendment below is the one that caused grief to the Pharmaceutical Society of Kenya. The amendment was contained in the Statute Law (Miscellaneous Amendment) Bill (National Assembly Bill No. 57 of 2015) , now an Act. It amended section 3 of the Pharmacy and Poisons Act.
s.3 (1) Delete paragraph (d) and substitute therefor the following new paragraph—
(d) three pharmacists representing the categories specified in this paragraph and appointed by the Cabinet Secretary from nine names competitively nominated by the Pharmaceutical Society of Kenya with due regard to gender, in which case the Society shall submit three names in respect of each of the following categories —
(i) the public service;
(ii) the community pharmacy; and
(iii) the Pharmaceutical industry.Delete paragraph (e) and substitute therefor the following new paragraph —
(e) two persons representing the faculty boards of the departments of pharmacy in universities of whom—
(i) one shall be nominated by a forum of public universities teaching pharmacy; and
(ii) one shall be nominated by a forum of private universities teaching pharmacy.
Thus, the Pharmaceutical Society of Kenya contended that it had lost one of its slot in the Pharmacy and Poisons Board, which was given to a new entrant, private Universities and that the the Petitioner had been given fresh demands, to issue 9 names, which requirement was not made in reference to the other nominating bodies.
Previously, section 3(1) (d) and (e) of the Pharmacy and Poisons Act provided as follows-
d) four Pharmacists appointed by the Minister from a panel of names submitted by the Pharmaceutical Society of Kenya of whom—
(i) one shall be from the Civil Service;
(ii) one shall be from the community pharmacy; and
(iii) one from the pharmaceutical industry;
e) one representative of the Department of Pharmacy of the University of Nairobi nominated by the Faculty Board; and
The court said this in paragraph 129 of the Judgement:
129. As to whether there was adequate opportunity for public participation with respect to Statute Law (Miscellaneous Amendment) Act, 2015, a three judge bench of this Court in Law Society of Kenya vs Attorney General & 2 Others [2013] eKLR disagreed with the contention that the opportunity provided did not lend itself to meaningful public participation. In that case however, the Court faulted Parliament for having debated a different Bill from the one that was subjected to public participation. In this case there is no such allegation. What is alleged is that there was no meaningful public participation at inception and this Court having found that that contention was not correct, the challenge, based as it is on public participation must fail.
The petition was dismissed for lack of merit. GV Odunga, J indicated that:
149. Having considered this petition, it is my view and I so hold that the issues raised herein do not meet the threshold for declaration of unconstitutionality of legislation. I agree with the decision in petition No. 72 of 2011 – Mt Kenya Bottlers Ltd & Others vs. The AG and Others, that the court will not nullify legislation because it thinks that such law was enacted in bad taste, unconscionable or inconvenient.
In Mercy Munee Kingoo & another v Safaricom Limited & another [2016] eKLR , Constitutional Petition 5 of 2016, SJ Chitembwe, J held that to the extent that section 30A of the Copyright Act, Cap 130 Laws of Kenya limited the artists’ right to choose how their royalties were to be paid, that section was unconstitutional as its effect was to limit the petitioners’ freedom of association. He further held the section was also unconstitutional because it was enacted without public participation and its effect was to be applied retrospectively without regard to existing arrangements between artists and their contracted Premium Rate Service Providers.
The court pointed out the following:
On the issue of public participation before the introduction of section 30A, it is my finding that there was no public participation. The stakeholders were not engaged. The section does not introduce minor amendments to the Act and ought to have been subjected to public participation. The assumption was that the amendments on the affected statutes were minor. However, drastic changes were made to the Copyright Act.
Conclusion
From the emerging jurisprudence from our courts, Statute Law (Miscellaneous Amendments) Bills should be to minor and non-controversial matters. From our discussion, a Bill that has an explanatory memorandum that indicates that it is for “minor amendments” invites the court to prod further whether the amendments are “minor” and are for “housekeeping”. This is a mutating subject and we await to see what the courts would say on this subject. Perhaps the most important thing is that courts are keen to ensure that there was adequate and reasonable public participation when Parliament was considering a Statute Law (Miscellaneous Amendments) Bill. From the Constitutional Petition No. 3 of 2016, floor amendments are a red flag.
Kenya’s Parliament may interrogate and borrow the criteria used by Canada’s Miscellaneous Statute Law Amendment Program before inclusion of a proposed amendment into the Miscellaneous Statute Law Amendment. The criteria is that the amendment should:
- not be controversial
- not involve the spending of public funds
- not prejudicially affect the rights of persons; or
- not create new offences or subject a new class of persons to an existing offence
These and other reforms may help in ensuring that Statute Law (Miscellaneous Amendments) Bills are used for the purpose they are intended, that is, “make general housekeeping amendments to legislation”. Substantive amendments may then be initiated individually to enable proper interrogation of the matters before the Committee and to facilitate public participation which is made easier since a Bill would be dealing with one subject.
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