On 16th February 2015, The Attorney General wrote a letter on publication of County Bills. The letter, addressed to the Chairperson of the Kenya Law Reform Commission and the Government Printer, detailed the procedure to be followed in publication of County Bills in the Kenya Gazette. The Protocol captured in the letter required that Bills be passed to the Kenya Law Reform Commission (KLRC) to technically review and thereafter issue a certificate of clearance.
Despite its issuance, challenges continue to dog the process of publication. Counties raised concerns about the requirement of obtaining clearance from KLRC as this would offend the Constitutional requirement of devolution. Many counties, therefore, did not adhere to the provisions of the Protocol. In addition, delays continued to dog the publication process. Consequently, in June 2018, the Attorney General directed KLRC to review the Protocol.
As part of the review process, an assessment has been undertaken on the implementation process thus far, the roles of various stakeholders in the implementation process, the challenges faced, and comparative experiences from other countries.
The study reveals that although the rationale for development of a Protocol on publication of county legislation was the need to enhance clarity of procedure and efficiency in the publication process, the publication process continues to be dogged with numerous challenges. Legally, two problems arose. First, the legal basis on which the Protocol was developed is both unclear and questionable. Despite the provisions of the Constitution vesting legislative authority at the county level on County Assemblies, the Protocol attempted to require clearance from the KLRC, implying that exercising of this legislative authority was subject to oversight by KLRC. Secondly, controversies also surrounded the publication process arising from the implications of Section 25 of the County Government Act which seemed to suggest that county legislation could come into effect even if not published in the Kenya Gazette despite the clear provisions of Article 199 of the Constitution.