The Kenyan pride is to be among the league of countries with the best laws in the world, we borrow and modify from the best democracies, however in the recent days that’s debatable we see a rise of very controversial and unfair laws bring the urge to question;
Why the new laws?
Unlike humans who were ordered by Elohim the Almighty to multiply and fill the earth, Laws are not born of this order by Elohim, they are meant to be born as per need and not to fill any library.
In a normal state laws are made, set and publicized to regulate interactions between persons, persons and state. They ought informed by a societal need.
A birth of a law is informed by sober principles set which are ;
The Harm principle, laws born from this principle protect persons from dangerous acts or omissions caused by other persons or the state, they also protect properties and animals from the cruelties of persons.
They include laws against murder, rape, animal brutality, vandalism and all other acts against humanity.
Then there is the Morality principle,
Which force bearing of Laws that protect the erosion of societal norms and cultures. This is the principle that prohibits benefiting from proceeds of prostitution in Kenya while at the same time making prostitution a legal in Costa Rica and Canada, the laws here protect what the society endorse as good and acceptable.
Sociologist Thomas Hobbes(1673) would then study human beings and finally conclude that in a state of nature(no laws) life would be short, nasty and brutish, humans can not be left on their own, they can’t even be trusted with themselves hence the Parental Principle Which informs laws that discourage persons from infringing on the well being of themselves and the vulnerable in the society,
Simply the laws informed by this principle try to mother everybody.
Not even the state is safe the Statist Principle protect the state from hurt, damage or any detriment caused by persons. The Statist Principle informs laws such as laws against espionage and treason just to protect the state.
All above principles are well adhered to in Kenya, nothing so questionable can be said about the laws informed by the listed principles until I mention this;
The Donation Principle-
The principle that inform birth of laws that control behaviors, acts and omissions bringing forth unfair advantages over others.
The laws that control relations and competitions between ‘wanjiku’ ,businessmen, corporate and governments. Laws to ensure fair competition.
The recent days have been characterized by debates on unfairly drafted bills. First it was the Kenya Dairy Board’s proposed Dairy Industry Regulations of 2019 which was later revoked by a letter signed by KDB Managing Director Margaret Kibogy after public outcry.
On section (2) of sale contract regulations, the draft proposed that sale and consumption of raw milk be prohibited.
Raw milk explained as the unprocessed milk.
Stop there! Let’s consult the harm principle.
Does it mean the milk we have been consuming from our neighbors can cause us any harm? Is it poisonous? Maybe..
Then the proposal by this body mandated to protect the well being of the Dairy industry went further,
on another section it said that no person shall operate as a producer unless the person holds a licence issued by the Board, and further install annual fee of between KSh 3,000 and 25,000 depending on the capacity of the producer per litres.
Maybe this was meant to regulate unfair advantages, maybe as per the principle of donation?
At the lowest, small scale Farmers ought to be protected but where would this have left the farmer?
Before more questions arise from the revoked unfair bill let’s play fast forward, tugange yajayo.
Exit the Dairy Industry Regulations of 2019 by Kenya Dairy Board enters The Crops (Food crops ) Regulations of 2019 by The Agriculture, Livestock, Fisheries and Irrigation ministry, the Agriculture and Food Authority (AFA) and the county governments.
Section 30(1) of the proposed regulations says, “A grower shall not use raw animal manure for the production of food crops.”
Now we have jumped From the Raw milk into Raw Manure.
This means a prohibition of Farmers get animal dung from their cattle shed into their farms to plant food crops, further meaning a farmer must go nearest nearest agro-shop for fertilizer whenever need to plant some mboga and kales for family arises.
A typical Kenyan would ask, how will enforcement and punishment be done in contradiction of above section?
sorry no loop holes were left.
“A person who obstructs an inspector from carrying out the required inspection commits an offence and shall be liable on conviction, to imprisonment for a term not exceeding three years or to a fine not exceeding two million shillings or both” . Section 42 (3) of the same draft.
The big question now arises, What informs the drafting and making of our policies and laws?
Do we observe the principles of law making with a clear mind? Are we driven by some hidden benefits agendas? Or Are our laws being born out of genuine need?
These are questions that need to be answered before Kenya grow any older.
The Author is a Criminologist and Security Expert based in Kenya.