Post-Legislative Scrutiny in a Decentralized Setting

• A Introduction

  There are generally 6 approaches¹xD.A. Brand, et al., ‘Comparative Analysis of Alcohol Control Policies in 30 Countries’, PLoS Medicine, Vol. 4, No. 4, 2007 (April), p. 0753. to alcoholic drinks regulation: (1) regulation of availability, (2) regulation of the drinking context, (3) regulation of affordability, (4) regulation of marketing, (5) regulation of the minimum drinking age, and (6) regulation of behaviour. A quick review of Kenya’s alcoholic drinks control history shows that Kenya has applied all six, with mixed results.
  Kenya’s experience with alcohol regulation stretches back to the colonial days.²xC.H. Ambler, ‘Drunks, Brewers and Chiefs: Alcohol Regulation in Colonial Kenya, 1900–1939’, in S. Barrows & R. Room (Eds.), Drinking Behavior and Belief in Modern History, Oxford, University of California Press, 1991, pp. 165-183. The country’s post-independence alcohol consumption has risen exponentially, with the exception of the period between 1980 and 2003 when there was a drop.³xWorld Health Organization, Global Status Report on Alcohol and Health, Geneva, WHO Press, 2014. pp. 1-9. Following independence in 1963, the country enacted the Chang’aa Prohibition Act (Cap. 70) and the Liquor Licensing Act (Cap. 121), which prohibited the production, sale and consumption of indigenous liquor while providing for licensing requirements for modern alcohol. Four key statutes currently regulate alcoholic drinks at the national level, while 27 county governments have also passed laws to regulate alcoholic drinks at a sub-national level.
  The Alcoholic Drinks Control Act (No. 4 of 2010) repealed the Chang’aa Prohibition Act and Liquor Licensing Act and consolidated the laws for the “control of production, manufacture, sale, labelling, promotion, sponsorship and consumption of alcoholic drinks”. The Act provides agency powers to National Authority for the Campaign Against Alcohol and Drug Abuse (NACADA), including the power to advise the relevant Cabinet Secretary and implement the Cabinet Secretary’s directives. It also establishes an Alcoholic Drinks Control Fund to finance the implementation of the regulatory purposes of the law. The manufacture and trade in alcoholic drinks is legally restricted and can be conducted only under licence by the relevant agency upon meeting legal conditions. Promotions and advertisements are also strictly regulated. Powers of enforcement⁴xAlcoholic Drinks Control Act (No. 4 of 2010), s. 52. include the power to analyse products, enter premises, seize products, or to use force. Certain conduct (e.g. being drunk and disorderly or production or sale without a licence) is criminally punishable. NACADA also has broad research, education and information functions under the Act.
  The National Authority for the Campaign Against Alcohol and Drug Abuse Act (No. 14 of 2012) established NACADA as the agency responsible for the control of alcohol and drug abuse and for the formulation and implementation of policies for the control of alcohol and drug abuse. Its mandate therefore covers both alcohol and other drugs (e.g. narcotics).
  The Standards Act (Cap. 496) provides the benchmarks for the regulation of (among others) alcohol quantity and quality (e.g. permitted potency, components etc.). To this end, it establishes the Kenya Bureau of Standards to enforce standards.⁵xKenya Bureau of Standards Act (Cap. 496), ss. 3-5. The Act also establishes the National Standards Council to oversee the Bureau’s work and advise the relevant Cabinet Secretary on any matter under the Act.
  The national government also has wide-ranging taxation powers that it also applies to regulate the alcoholic drinks sector.⁶xThese include the Excise Duty Act (No. 23 of 2015) and Tax Procedures Act (No. 29 of 2015). Over the years, the government has targeted the sector with a variety of sin taxes (more recently excise duty). The aim of sin taxes is to make alcoholic beverages more expensive and thereby limit their consumption through the creation of elasticity in demand. They are also a source of revenue for the government. Since the advent of county governments in 2013, 27 out of 47 (57.5%) have passed legislation to regulate the alcoholic drinks sector. Modelled largely on the Alcoholic Drinks Control Act (No. 4 of 2010), they also mirror its objectives.
  

  Table 1 Number of Counties with ADC Legislation

  	Years
  	2013	2014	2015	2016	2017	2018	Total
  Number of Counties	0	20	3	4	0	0	27

  There are generally four regulatory tools in county government alcoholic drinks legislation. The first is the administration of a licensing regime for products and premises by agencies established under the various laws. A single agency is responsible for the overall regulation of the sector in each county. It facilitates sub-county committees to regulate the manufacture, advertising and sale of alcoholic drinks within the county. A review mechanism, including recourse to courts of law, ensures that the system is run in an administratively fair manner. Second, the levying of charges for the manufacture and trade in alcoholic products not only raises revenues for the counties but also introduces barriers to entry that control the number of people engaged in the alcohol business. Public information and rehabilitation investments are intended to promote responsible consumption and mitigate the injurious effects of those who may fall into harmful consumption patterns. Last, the regulation of the hours of business is intended to limit the amount of the time the products are available for sale to consumers.
  However, the current regulatory framework has largely been unsuccessful. For instance, illicit drinks are still sold in the country and anecdotal evidence suggests that they may be on the rise. Drunk driving is still a significant cause of accidents on the country’s roads. Underage drinking is also rife, especially among high school and college students. Consequently, both the national and county governments have resorted to crackdowns of the kind witnessed in early 2015. The Cabinet Secretary for Interior and Coordination of National Government has recently ordered the resumption of these crackdowns, conducted by the country’s security agencies.⁷x See https://www.capitalfm.co.ke/news/2018/01/matiangi-takes-charge-interior-docket-orders-crackdown-illegal-drugs-brews (last accessed 5 June 2018). Some governors are also taking a similar approach: the Kiambu governor, for example, recently ordered all bars closed and demanded that operators apply for fresh licences. The operators thereupon sued the county government and the matter is pending in court.⁸x See https://www.standardmedia.co.ke/business/article/2001281352/bar-owners-contest-new-alcohol-law (last accessed 5 June 2018).

• B Post-Legislative Scrutiny in Kenya: Practice and Prospects

  Kenya’s Parliament traditionally had a very low legislative throughput.⁹xJ.D. Barkan & F. Matiangi, ‘Kenya’s Tortuous Path to Successful Legislative Development’, in J.D. Barkan (Ed.), Legislative Power in Emerging African Democracies, London, Lynne Rienner, 2009, pp. 33-72. There has been an improvement since 2001, with an average of 28 laws passed per year.¹⁰xAuthors’ analysis based on review of Parliament’s Bill Trackers between 2001 and 2017. Debates are robust, the quality of laws is also improving, and many analysts argue that it is one of the more assertive legislatures in Africa. Regulatory impact assessments are nonetheless rare,¹¹xSome recent work provides promise in this area. See, for example, Competition Authority of Kenya, Assessment of Regulatory Impact Assessment on Competition: Guidance for Policy Makers, Nairobi, CAK/IFC/Kingdom of the Netherlands/DFID, November 2015; and Energy Regulatory Commission, Regulatory Impact Assessment of the Kenya National Transmission Grid Code and the Kenya National Distribution Code, Nairobi, ERC, 2016. in spite of the clear provisions of the Statutory Instruments Act (No. 23 of 2013), and despite its opportunities for the evolution of Kenya’s post-legislative scrutiny (PLS) practice. There is no evidence of PLS practice at the county level either.
  Debates on new laws are not preceded by an analysis of the weaknesses of the preceding laws.¹²xFor example, debate in the National Assembly on the Bribery Bill. National Assembly, Parliamentary Debates, Wednesday, 10 August 2016. Examples include the country’s dead-letter law against bigamy,¹³xPenal Code (Cap. 63), s. 171. ineffective anti-corruption laws,¹⁴xAnti-Corruption and Economic Crimes Act, 2003 (No. 3 of 2003). and continuing challenges with negative ethnicity.¹⁵xEstablished under the National Cohesion and Integration Act (No. 12 of 2008), s. 15. The stock legislative response to institutional failure has been to pass more laws or establish more institutions. There is growing evidence that passing laws without analysing the impact of preceding laws is not consistent with good legislative practice. Based on these challenges, we proffer some suggestions of the weaknesses of Kenya’s alcoholic drinks regime that future PLS practice can address.
  First, the legal framework for the regulation of alcoholic drinks is unclear, incoherent, and ineffectively in force. Alcoholic drinks are not clearly defined in many laws. Inept taxation “has driven the approved booze out of reach of the poor”, while the trade in native liquor has “gone underground and become more dangerous”.¹⁶x See https://www.theelephant.info/features/2017/04/07/kenyas-alcohol-problem-the-govt-needs-to-sober-up/ (last accessed 5 June 2018). In 2003, East African Breweries Limited (EABL) produced a low-cost un-malted drink, Senator Keg, targeting drinkers of low economic status (at the time estimated at 60% of alcohol consumers).¹⁷x See https://www.businesstoday.in/magazine/lbs-case-study/diageo-success-in-kenya-case-study/story/189547.html (last accessed 5 June 2018). Without excise duty, it initially retailed for KSh. 20 a glass (about US$ 0.2). Excise tax later imposed by government¹⁸xAccording to EABL, the initial KSh. 5 rise in price “hit sales tremendously, a clear indication that the brew’s future is dependent on EABL maintaining costs at a minimum and the government retaining and the government retaining the current 100% duty remission”. has since raised its retail price to KSh. 60 (approx. US$ 0.6), seriously eroding the original benefits to low-income drinkers.
  Second, enforcement of restriction of promotions and advertisements has proved unsuccessful in light of a sizeable middle class with significant disposable income to spend on alcohol. Testing blood alcohol content of drivers has suffered successful court challenges to the legality of the breathalyser devices due to communicable disease fears and the lack of a precise threshold for the minimum level of impairment for criminality.¹⁹x See https://www.the-star.co.ke/news/2017/04/07/court-stops-use-of-alcoblow-to-charge-offenders-says-law-contradicts_c1539958 (last accessed 5 June 2018). Alcohol consumers have relocated to non-policed areas, where alcohol-related traffic crashes continue unabated. As a result, the targets of regulation are seemingly unaffected by it, and hitherto ineffective command and control approaches are making a comeback.

• C Conclusions and Recommendations

  The effectiveness of alcohol control measures ultimately depend on the extent that they alter the decisions made around manufacture, marketing, sale, and consumption of alcohol and the behaviour of drinkers. Put differently, if either the national or sub-national legislatures begin to practice PLS, lessons or good practices for future replication could emerge.
  This article makes a case for the better utilization of the law as a tool for regulating alcoholic drinks. Before the existing laws are amended, or replaced, or additional ones passed, a regulatory impact assessment(s) of the existing legal frameworks will be necessary. The national government, with its research funding and institutional expertise, should lead the way. If analysis suggests that implementation is the problem, adapting existing regulatory tools to the market responses seems a better solution than the promulgation of new legal frameworks.
  Going forward, the taskforce appointed by the Cabinet Secretary will need to look into the coordination of enforcement, guided by PLS principles. To begin with, clarifying the division of labour between the national government and the county governments will be necessary. A likely organizing principle, based on the principle of subsidiarity, should be for national government institutions to play a role that is consistent with its overall policy and law-making function while local enforcement action should mainly be left to county governments.
  There should be a limit to the use of taxation as a regulatory tool. It is time for the Treasury to draw a line on additional ‘sin taxes’ targeting the sector. The Parliamentary Budget Office (PBO) should subject these taxes to an analysis of the macroeconomic effects on the sector before legislators pass even more taxes and levies.
  Finally, the country’s legislatures should take up their obligation to conduct PLS as good practice in policy and law making. A likely starting point would be to at least comply with the requirements of the Statutory Instruments Act (No. 23 of 2013) in at least two ways. Either parliament or county assemblies should require the Executive to submit a legislative impact assessment to precede any considerations of a new law or amendments to existing law or commission such assessments as a means to independently engaging the Executive on new legislative proposals.

Noten

• 1 D.A. Brand, et al., ‘Comparative Analysis of Alcohol Control Policies in 30 Countries’, PLoS Medicine, Vol. 4, No. 4, 2007 (April), p. 0753.

• 2 C.H. Ambler, ‘Drunks, Brewers and Chiefs: Alcohol Regulation in Colonial Kenya, 1900–1939’, in S. Barrows & R. Room (Eds.), Drinking Behavior and Belief in Modern History, Oxford, University of California Press, 1991, pp. 165-183.

• 3 World Health Organization, Global Status Report on Alcohol and Health, Geneva, WHO Press, 2014. pp. 1-9.

• 4 Alcoholic Drinks Control Act (No. 4 of 2010), s. 52.

• 5 Kenya Bureau of Standards Act (Cap. 496), ss. 3-5.

• 6 These include the Excise Duty Act (No. 23 of 2015) and Tax Procedures Act (No. 29 of 2015).

• 7 See https://www.capitalfm.co.ke/news/2018/01/matiangi-takes-charge-interior-docket-orders-crackdown-illegal-drugs-brews (last accessed 5 June 2018).

• 8 See https://www.standardmedia.co.ke/business/article/2001281352/bar-owners-contest-new-alcohol-law (last accessed 5 June 2018).

• 9 J.D. Barkan & F. Matiangi, ‘Kenya’s Tortuous Path to Successful Legislative Development’, in J.D. Barkan (Ed.), Legislative Power in Emerging African Democracies, London, Lynne Rienner, 2009, pp. 33-72.

• 10 Authors’ analysis based on review of Parliament’s Bill Trackers between 2001 and 2017.

• 11 Some recent work provides promise in this area. See, for example, Competition Authority of Kenya, Assessment of Regulatory Impact Assessment on Competition: Guidance for Policy Makers, Nairobi, CAK/IFC/Kingdom of the Netherlands/DFID, November 2015; and Energy Regulatory Commission, Regulatory Impact Assessment of the Kenya National Transmission Grid Code and the Kenya National Distribution Code, Nairobi, ERC, 2016.

• 12 For example, debate in the National Assembly on the Bribery Bill. National Assembly, Parliamentary Debates, Wednesday, 10 August 2016.

• 13 Penal Code (Cap. 63), s. 171.

• 14 Anti-Corruption and Economic Crimes Act, 2003 (No. 3 of 2003).

• 15 Established under the National Cohesion and Integration Act (No. 12 of 2008), s. 15.

• 16 See https://www.theelephant.info/features/2017/04/07/kenyas-alcohol-problem-the-govt-needs-to-sober-up/ (last accessed 5 June 2018).

• 17 See https://www.businesstoday.in/magazine/lbs-case-study/diageo-success-in-kenya-case-study/story/189547.html (last accessed 5 June 2018).

• 18 According to EABL, the initial KSh. 5 rise in price “hit sales tremendously, a clear indication that the brew’s future is dependent on EABL maintaining costs at a minimum and the government retaining and the government retaining the current 100% duty remission”.

• 19 See https://www.the-star.co.ke/news/2017/04/07/court-stops-use-of-alcoblow-to-charge-offenders-says-law-contradicts_c1539958 (last accessed 5 June 2018).