Delegated legislation is also referred to as sub-ordinate, indirect or subsidiary legislation. It is law making by parliament indirectly. These are by laws, orders, rules, regulations, proclamation, made by subordinate competent bodies e.g. local authorities, professional bodies, government ministers and statutory bodies in exercise of delegated legislative power conferred upon them by parliament through an enabling or parent Act.
By-laws are operational within the administrative area of a local authority. Ministers, statutory boards and professional bodies makes rules, regulations, order or proclamations.
Characteristics of delegation legislation
• All delegated legation is made under the express authority of an Act of parliament
• It is a written source of law of Kenya.
• Delegated legislation must be consistent with the enabling or parent Act.
• It must be published in the Kenya Gazette before coming into force.
Advantages of delegated legislation
• Compensation of lost parliamentary time:
Since members of parliament are generally busy, law making time not made use of by parliament is made use of by the delegates when they make law.
If law is urgently required, the same may be made by a Governmental Minister or Professional body delegates are responsive to urgent needs.
It is relatively easy to make and unmake delegated legislation. Delegates are not generally subjects are not generally subjected to rigid and binding procedures.
• Technicality of subject matter:
By delegating legislative power, rules and regulations are made by experts in the particular field. Delegates are free to consult experts on various issues.
• Less democratic: delegated legislation is not as democratic as statute law as it is not always made by representatives of the people.
• Difficult to control: neither parliament nor court of law can effectively control delegated legislation.
• Inadequate publicity: delegated legislation receives minimal publicity and in most cases the rules or regulations are unknown.
• Sub-delegation and abuse of power: delegates often sub-delegate law making power two other persons. This compounds to problem of control and may lead to abuse of power by the sub-delegate.
• Detail and technicality: Rules or regulations made by professional bodies or experts are often detailed and technical for the comprehension of ordinary citizens.