4delegated Law Making

DELEGATED OR SUBSIDIARY LAW MAKING
There has been a proliferation of administrative agencies to address various economic and
social problems e.g. provision and regulation of health care, education, water, electricity,
telecommunications, transport, labour, social security, immigration, economic competition,
physical planning, land use et.c. Typically, such agencies are creatures of acts of the
legislature. However, the complexity of the matters they deal with ordinarily means that
members of the legislature may lack the technical know-how required to enact good and
precise legislation. Again, the complexity of modern government usually means that
members of the legislature will be required to attend to numerous matters, and they may
therefore not have the time to devote sufficient attention to any particular piece of legislation.
The complexities of modern government and the limitations of the legislature have therefore
led to the acceptance of administrative rule making as an instrument of public administration.
These complexities mean that the legislature will not have time to legislate on all matters or
properly scrutinize legislation.
So what tends to happen is that administrative agencies will be given vague statutory
mandates. The result is that administrative agencies are often the recipients of broad
discretionary powers and functions. In order to realize their statutory mandates,
administrative agencies need to figure out how they are to carry out the said broad mandates.
They make rules –that is –develop sets of generalised administrative standards in the form of
regulations, policies, guidelines, and manuals. While regulations (or rules) are formal (that is,
they are enacted and promulgated in the form of what are variously termed delegated,
subsidiary, or subordinate legislation,) policies, guidelines and manuals tend to be informal
instruments meant for internal application.
Subordinate legislation is a common feature of Kenya’s legal system. Many administrative—

and state—officers have the power to make regulations (they might be called rules or some
other name) under an Act. They range from Cabinet Secretaries (many), through the Chief
Justice to independent commissions or other authorities. These Acts involve Parliament (or a
county assembly) allowing some officer or body to make law by an essentially administrative
action.
The Constitution takes a cautious approach to this possibility. It says (Article 94(6)) that
when an Act delegates such power it must be very clear about the purpose of delegating it,
what the scope of the power to make such delegated legislation is, and “principles and
standards that apply to that delegated legislation”. However, the response to this seems to
have been a meaningless ritual incantation of what is becoming a standard set of statements,
referring to various external documents such as the Statutory Instruments Act (SIA) and
international law. Almost certainly, what the constitution makers meant was that the Act that
allows delegated legislation must include clear guidance about the scope of that delegated
law. The idea is that Parliament (or county assembly) must make it clear what the policy of
the Act is, and that delegated legislation is only to fill in the details.
Parliamentary scrutiny of subordinate legislation takes place in the form of a requirement in
the empowering legislation of the need for laying before parliament of the subordinate
regulation. This requirement makes it possible for parliament to be informed of the existence
and contents of the existence and contents of a subordinate legislation.
Parliament also has put limits on this power in the SIA, which says how delegated legislation
is to be made: there must be public participation, and the delegated legislation must be sent to
Parliament, which may revoke the legislation (ss. 10-12). In addition if the legislation is
likely to impose significant costs on the country or part of it a “regulatory impact statement”
must be prepared by the body making the legislation, explaining why it is necessary
and what its impact will be (ss. 6-9).
From the Constitution and the SIA, the following principles, and rules,
apply to delegated legislation:
• The power to make the regulations must be within the power conferred
by the Act giving the power
• The regulations must not conflict with the Constitution, including the
distribution of power between counties and national government, and
human rights
• The regulations must not conflict with any other law—because only
Parliament can amend laws it has passed
• Any penalty in regulations for breach must not be more than
KShs20,000 or six months in prison
• The correct procedure must be used for producing and presenting the
legislation to Parliament.
Parliament will look carefully at delegated legislation if it does any of

several things that might be problematic, including (SIA s. 13):
• Affecting the public’s fundamental rights and freedoms or the rule of law
• Dealing with something that ought to be in an Act rather than mere
regulations
• Imposing taxes
• Preventing/trying to prevent the courts dealing with the issues in the
regulations
• Applying retrospectively (affects things that have been done in the past)
• Will involve expenditure of public money.
These provisions promise to enhance parliamentary scrutiny of subsidiary legislation.
REFLECTIONS: Read Ken Ochieng’ Opalo ‘Constrained Presidential Power in Africa?

Legislative Independence and Executive Rule-Making in Kenya, 1963-2013’ on the
practice of legislative control over executive rule making in Kenya and contrast with the
position with the position in the 2013 Constitution of Zimbabwe where the
Parliamentary Committee on delegated legislation has been constitutionalised, do you
think Kenya needs to follow the Zimbabwean example?
Supervision of Subordinate legislation by courts

Courts have developed two doctrines to help them regulate subordinate legislation: the sub-
delegation doctrine, and the doctrine against the fettering of discretion.
1) The Sub-delegation doctrine
The sub-delegation doctrine (or delegates non potest delegare in its Latin rendition) requires
that where parliament has conferred the power to make a subordinate legislation to a
particular agency, that agency cannot delegate that power to another entity.
Justice JLO Onguto in Anthony Otiende Otiende v Public Service Commission & 2 others
[2016] eKLR noted thus in this respect:
“It is true that the promulgation of regulations or forms for purposes of effecting registration was delegated to
the 3rd Respondent by Parliament. It is also true that there is a common law presumption against sub-
delegation, expressed in the latin maxim delegatus delegare non potest (a delegatee cannot delegate). This
maxim, in context, is no doubt based on the assumption that where the legislature has delegated powers
and functions to a subordinate authority, it intends that authority to exercise those powers and functions and
not someone else. I understood the 3 rd Respondent to argue; that it should not delegate powers to
promulgate forms to the NLC.”
2) The Doctrine against fettering discretion

The doctrine against fettering discretion holds that where parliament has conferred
discretionary power on a public agency, that agency must exercise its discretion a new
whenever the power itself is brought to bear on a specific individual. This doctrine therefore
precludes agencies from declining to exercise their discretionary powers on the basis of
internal policies.
The United Kingdom Supreme Court in R (on the application of Sandiford) (Appellant) vs. The Secretary of
State for Foreign and Commonwealth Affairs (Respondent)[2014] UKSC 44 observed that a public body
may not unlawfully fetter discretion by whimsically failing to take into account or consider other circumstances
already provided in law or policy by stating that:
“It is clearly established that a public body may not unlawfully fetter the exercise of a discretionary
statutory power: see, for example, British Oxygen Co Ltd v Board of Trade [1971] AC 610. But where a
policy is made in the exercise of prerogative or common law powers (rather than a statutory discretion),
there is no rule of law which requires the decision-maker to consider the facts of every case with a view to
deciding whether, exceptionally, to depart from the policy in a particular case. This is because ‘it is within
the power of the decision-maker to decide on the extent to which the power is to be exercised in, for
example, setting up a scheme. He can decide on broad and clear criteria and either that there are no
exceptions to the criteria in the scheme or, if there are exceptions in the scheme, what they should be’: R
(Elias) v Secretary of State for Defence [2006] 1 WLR 3213, para 191.”
Other mechanisms of oversight by courts
In addition, courts will generally overturn subordinate legislation if it is evident that the
enabling statute does not authorise it, or if it is unreasonable that the legislature could not
have contemplated it in granting the power to make it, or if it is not sufficiently clear or
certain.

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DELEGATED OR SUBSIDIARY LAW MAKING

Subordinate legislation is a common feature of Kenya’s legal system. Many administrative—

Parliament will look carefully at delegated legislation if it does any of

These provisions promise to enhance parliamentary scrutiny of subsidiary legislation.

REFLECTIONS: Read Ken Ochieng’ Opalo ‘Constrained Presidential Power in Africa?

Supervision of Subordinate legislation by courts

2) The Doctrine against fettering discretion

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