Kenya’s Legislative Chokehold: Legislating for Relevance or for Service?

Law-making is a central function of government because it provides the rules, structure, and authority needed for fair and predictable governance. In Kenya, this mandate rests primarily with Parliament, with the National Assembly and the Senate exercising legislative authority at the national level under the bicameral system introduced after the 2010 Constitution. The National Assembly’s Factsheet No. 2 explains how Bills move through Parliament and how legislation is enacted[1]. Yet while that framework sets out the procedure, it does not clearly answer a more fundamental question: when is legislation actually necessary? This article argues that Kenya needs clearer thresholds for determining when a policy problem requires a Bill and when it can be addressed through policy, administration, or enforcement within existing legal frameworks.

This principle is already recognised in Kenya’s own legislative guidance. The Guide to the Legislative Process in Kenya published by the Kenya Law Reform Commission (KLRC) makes clear that not every policy problem requires a legislative solution[2]. Before a Bill is developed, policy should first be clearly defined so that legal, institutional, and practical issues are addressed in advance. In other words, legislation should be a tool of last resort, not a first instinct.

Comparable approaches can be seen in other jurisdictions such as the United States, the United Kingdom, and Australia, where legislative proposals are often tested against an alternatives threshold before they proceed. That threshold requires decision-makers to assess whether the objective can be achieved through non-legislative means, including improved enforcement, administrative action, regulatory instruments under existing laws, public education, or voluntary industry standards. In many cases, this assessment is supported by a regulatory impact analysis that requires sponsors to justify why new law is necessary rather than merely desirable.

In Kenya, however, legislative proposals are increasingly introduced for matters that could often be addressed through existing legal frameworks, policy direction, or better administration. The result is a growing tendency toward over-legislation and overregulation, with the executive’s capacity to respond flexibly and reasonably to emerging issues becoming more constrained. Part of the problem lies in a regulatory culture that favours detailed rules over broader principles. Unless this changes, the country risks treating legislation as the default answer to every public problem, even where it is the least effective one.

This concern is illustrated by the Artificial Intelligence Bill, 2026, which was recently circulated for public participation. On review, the Bill appears to offer little justification for creating a stand-alone legal regime and an independent commission to oversee its implementation. The question, therefore, is not whether artificial intelligence requires governance, but whether a new Act of Parliament is the most appropriate way to achieve it.

First, artificial intelligence falls within the broader field of information and communications technology and, at least in its technical and infrastructural dimensions, may be more appropriately addressed within existing frameworks such as the Kenya Information and Communications Act, 1998. Creating an entirely new statutory architecture should therefore require a clearer explanation of why current law is insufficient.

Second, AI is not confined to a single sector. Its use cuts across finance, health, education, security, agriculture, transport, and many other fields. That makes it difficult for one commission to regulate it meaningfully in all its applications. A more practical approach would be a coordinating mechanism anchored within the Ministry of ICT, supported by sector-specific regulators and ministries that already understand the operational realities and risks within their respective domains.

Third, the Bill appears more restrictive than enabling. It focuses heavily on control without giving equal attention to the developmental and innovative potential of AI for Kenya’s social and economic transformation. A framework built primarily around restraint may prove either unenforceable in practice or ignored altogether.

Finally, artificial intelligence remains an evolving technology, and its uses across sectors are still developing. That reality calls for adaptive governance grounded first in national policy, institutional coordination, and evidence gathering. Kenya currently lacks a comprehensive AI policy, yet such a policy should logically come before a stand-alone statute if the country is to identify national priorities, define safeguards, and determine whether legislation is truly required at all.

Kenya’s growing tendency to treat legislation as the solution to policy, administrative, and social challenges is becoming a constraint on national development rather than a driver of it. When every issue is answered with a new Bill, the legal system becomes heavier, compliance costs rise, and institutions lose the flexibility needed to govern effectively. Businesses, in particular, are pushed to operate in an environment of expanding regulation rather than one that supports productivity and innovation. What Kenya needs is not fewer laws for their own sake, but a clearer legislative necessity test—one that requires policy clarity, impact assessment, and proof that non-legislative alternatives are inadequate before a Bill is introduced.

[1] The Legislative Process: https://www.parliament.go.ke/sites/default/files/2022-08/FS02%20The%20Legislative%20Process.pdf

[2] A Guide to the Legislative Process in Kenya: https://klrc.go.ke/images/images/downloads/klrc-a-guide-to-the-legislative-process-in-kenya.pdf