Reviewing Rule-Making What type of DOGE Kenya Requires
Category: Efficiency
By: Leo Kipkogei Kemboi,
Introduction: The Issue of Unelected Rule Makers
Vivek Ramaswamy’s proposal for a Department of Government Efficiency (DOGE) in the United States offers a compelling lens for examining regulatory overreach globally. He advocates eliminating up to 75% of federal regulations, arguing that rules like OSHA safety mandates and environmental restrictions stifle economic growth by burdening businesses and individuals. [1] Drawing from his entrepreneurial experience, Ramaswamy highlights Donald Trump’s policy of cutting two regulations for every new one as a model, envisioning DOGE auditing regulations to repeal those with weak justification or high economic costs through executive action and congressional support. Inspired by this vision, this analysis explores Kenya’s rulemaking framework under the Constitution of 2010, assessing whether unelected bureaucrats similarly undermine democratic accountability and economic efficiency.
Unelected bureaucrats pose significant democratic and economic challenges when they create binding rules without direct electoral accountability. Often part of a managerial class, these officials derive authority from legislative delegations rather than voter mandates, raising questions about legitimacy and governance outcomes. This tension is evident in the gap between constitutional ideals and practical rulemaking in Kenya, where delegated powers sometimes exceed their intended scope.
Constitutional Framework: Parliament’s Legislative Authority
The Constitution of Kenya, 2010 establishes a clear framework for rulemaking, vesting legislative authority in Parliament to reflect the people’s will (Article 94(1)). While Parliament is the primary lawmaking body (Article 94(5)), it may delegate rulemaking to state organs or officers, provided the Constitution or legislation explicitly authorizes such delegation. Article 94(6) imposes strict controls, requiring delegated authority to have a defined purpose, scope, and standards, ensuring alignment with constitutional principles and preserving Parliament’s oversight. This structure aims to limit bureaucratic overreach, enhancing accountability and economic efficiency.
The Constitution reduces regulatory uncertainty and business transaction costs by restricting rulemaking to Parliament or its authorized delegates. Predictable laws foster a stable climate for economic growth, minimizing rent-seeking—where agencies with unchecked discretion craft rules favoring incumbents over the competition. Such regulatory capture stifles innovation, increases compliance burdens, and undermines market efficiency. Explicit delegation constraints also curb agency self-interest, aligning regulatory incentives with societal needs and reducing deadweight economic losses.
The principal-Agent Problem
Delegated rulemaking creates a principal-agent problem, where Parliament (the principal) grants authority to unelected agencies (agents). These bureaucrats, unaccountable to voters, may pursue goals that conflict with public preferences, resulting in excessive regulation, rent-seeking, and regulatory capture. By examining the subsidiary legislation portal on https://new.kenyalaw.org/legislation/subsidiary and using artificial intelligence to estimate the total number of pages of subsidiary legislation, I found an estimate of 28,000 pages.[2] This shows the extent of such rules and how difficult it is to comply with them. In Kenya, this issue is seen in tax policy, exemplified by the VAT Act, where delegated powers exceed constitutional limits.
Case Study 1: Overreach in the VAT Act
The Value Added Tax Act 2013 exemplifies bureaucratic overreach conflicting with constitutional norms. Article 210 (1) of the Constitution of Kenya mandates that taxes be imposed, waived, or varied only through legislation, reinforcing Parliament’s authority under Article 94. Section 5(2)(b) of the VAT Act sets the tax rate at 16% of the taxable value of supplies or imports. However, Section 6(1) permits the Cabinet Secretary to adjust this rate by up to 25% via a Gazette notice, a delegation that tests constitutional boundaries. While the VAT Act is legislation, this broad authority allows significant tax changes without Parliament’s complete legislative process, undermining the accountability in Articles 94 and 210.
A stark example is the Value Added Tax (Amendment of the Rate of Tax) Order, 2020. Effective January 1, 2021, this order raised VAT from 14% to 16%, amending Section 5(2)(b) through a Gazette notice on November 25, 2020. Passing comprehensive parliamentary debate and approval, this adjustment shifted a core legislative function to the executive, violating the spirit of Article 94(6)’s requirement for defined limits on delegated power. Such actions erode democratic legitimacy and impose unpredictable tax burdens on businesses and citizens, contradicting the economic efficiency the Constitution seeks to protect.
Conclusion
Kenya’s rulemaking framework, while constitutionally designed to balance legislative authority and delegated power, has devolved into a breeding ground for bureaucratic overreach, as evidenced by the estimate of a sprawling 28,000 pages of subsidiary legislation and the VAT Act’s excessive delegation. This regulatory excess imposes significant deadweight losses on the economy through compliance costs, rent-seeking, and market distortions that stifle entrepreneurship and deter investment. A Kenyan equivalent of the Department of Government Efficiency (DOGE),, could address these inefficiencies by systematically auditing and slashing redundant or overly burdensome regulations, such as the Cabinet Secretary’s unchecked power to adjust VAT rates. This DOGE equivalent would enhance allocative efficiency by enforcing stricter adherence to Article 94(6)’s delegation limits, reducing transaction costs and regulatory uncertainty that hamper business dynamism. In addition, it would realign incentives in the principal-agent dynamic, curbing agency capture and ensuring rules are transparently developed and reflect public preferences rather than bureaucratic self-interest. In a resource-constrained economy like Kenya’s, where growth hinges on market fluidity and innovation, the DOGE equivalent offers a mechanism to unlock productive capacity, boost GDP potential, and restore democratic accountability to a system bloated by unelected rule-makers.
References
[1] FLAGRANT. “Vivek: Kicked out of DOGE? Elon Beef? Trump Relationship and More.” YouTube, January 29, 2025. https://www.youtube.com/watch?v=6dOfkRLWD7M.
[2] https://new.kenyalaw.org/legislation/subsidiary
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Reviewing Rule-Making What type of DOGE Kenya Requires
| Post date: Wed, Apr 2, 2025 |
| Category: Efficiency |
| By: Leo Kipkogei Kemboi, |
Introduction: The Issue of Unelected Rule Makers
Vivek Ramaswamy’s proposal for a Department of Government Efficiency (DOGE) in the United States offers a compelling lens for examining regulatory overreach globally. He advocates eliminating up to 75% of federal regulations, arguing that rules like OSHA safety mandates and environmental restrictions stifle economic growth by burdening businesses and individuals. [1] Drawing from his entrepreneurial experience, Ramaswamy highlights Donald Trump’s policy of cutting two regulations for every new one as a model, envisioning DOGE auditing regulations to repeal those with weak justification or high economic costs through executive action and congressional support. Inspired by this vision, this analysis explores Kenya’s rulemaking framework under the Constitution of 2010, assessing whether unelected bureaucrats similarly undermine democratic accountability and economic efficiency.
Unelected bureaucrats pose significant democratic and economic challenges when they create binding rules without direct electoral accountability. Often part of a managerial class, these officials derive authority from legislative delegations rather than voter mandates, raising questions about legitimacy and governance outcomes. This tension is evident in the gap between constitutional ideals and practical rulemaking in Kenya, where delegated powers sometimes exceed their intended scope.
Constitutional Framework: Parliament’s Legislative Authority
The Constitution of Kenya, 2010 establishes a clear framework for rulemaking, vesting legislative authority in Parliament to reflect the people’s will (Article 94(1)). While Parliament is the primary lawmaking body (Article 94(5)), it may delegate rulemaking to state organs or officers, provided the Constitution or legislation explicitly authorizes such delegation. Article 94(6) imposes strict controls, requiring delegated authority to have a defined purpose, scope, and standards, ensuring alignment with constitutional principles and preserving Parliament’s oversight. This structure aims to limit bureaucratic overreach, enhancing accountability and economic efficiency.
The Constitution reduces regulatory uncertainty and business transaction costs by restricting rulemaking to Parliament or its authorized delegates. Predictable laws foster a stable climate for economic growth, minimizing rent-seeking—where agencies with unchecked discretion craft rules favoring incumbents over the competition. Such regulatory capture stifles innovation, increases compliance burdens, and undermines market efficiency. Explicit delegation constraints also curb agency self-interest, aligning regulatory incentives with societal needs and reducing deadweight economic losses.
The principal-Agent Problem
Delegated rulemaking creates a principal-agent problem, where Parliament (the principal) grants authority to unelected agencies (agents). These bureaucrats, unaccountable to voters, may pursue goals that conflict with public preferences, resulting in excessive regulation, rent-seeking, and regulatory capture. By examining the subsidiary legislation portal on https://new.kenyalaw.org/legislation/subsidiary and using artificial intelligence to estimate the total number of pages of subsidiary legislation, I found an estimate of 28,000 pages.[2] This shows the extent of such rules and how difficult it is to comply with them. In Kenya, this issue is seen in tax policy, exemplified by the VAT Act, where delegated powers exceed constitutional limits.
Case Study 1: Overreach in the VAT Act
The Value Added Tax Act 2013 exemplifies bureaucratic overreach conflicting with constitutional norms. Article 210 (1) of the Constitution of Kenya mandates that taxes be imposed, waived, or varied only through legislation, reinforcing Parliament’s authority under Article 94. Section 5(2)(b) of the VAT Act sets the tax rate at 16% of the taxable value of supplies or imports. However, Section 6(1) permits the Cabinet Secretary to adjust this rate by up to 25% via a Gazette notice, a delegation that tests constitutional boundaries. While the VAT Act is legislation, this broad authority allows significant tax changes without Parliament’s complete legislative process, undermining the accountability in Articles 94 and 210.
A stark example is the Value Added Tax (Amendment of the Rate of Tax) Order, 2020. Effective January 1, 2021, this order raised VAT from 14% to 16%, amending Section 5(2)(b) through a Gazette notice on November 25, 2020. Passing comprehensive parliamentary debate and approval, this adjustment shifted a core legislative function to the executive, violating the spirit of Article 94(6)’s requirement for defined limits on delegated power. Such actions erode democratic legitimacy and impose unpredictable tax burdens on businesses and citizens, contradicting the economic efficiency the Constitution seeks to protect.
Conclusion
Kenya’s rulemaking framework, while constitutionally designed to balance legislative authority and delegated power, has devolved into a breeding ground for bureaucratic overreach, as evidenced by the estimate of a sprawling 28,000 pages of subsidiary legislation and the VAT Act’s excessive delegation. This regulatory excess imposes significant deadweight losses on the economy through compliance costs, rent-seeking, and market distortions that stifle entrepreneurship and deter investment. A Kenyan equivalent of the Department of Government Efficiency (DOGE),, could address these inefficiencies by systematically auditing and slashing redundant or overly burdensome regulations, such as the Cabinet Secretary’s unchecked power to adjust VAT rates. This DOGE equivalent would enhance allocative efficiency by enforcing stricter adherence to Article 94(6)’s delegation limits, reducing transaction costs and regulatory uncertainty that hamper business dynamism. In addition, it would realign incentives in the principal-agent dynamic, curbing agency capture and ensuring rules are transparently developed and reflect public preferences rather than bureaucratic self-interest. In a resource-constrained economy like Kenya’s, where growth hinges on market fluidity and innovation, the DOGE equivalent offers a mechanism to unlock productive capacity, boost GDP potential, and restore democratic accountability to a system bloated by unelected rule-makers.
References
[1] FLAGRANT. “Vivek: Kicked out of DOGE? Elon Beef? Trump Relationship and More.” YouTube, January 29, 2025. https://www.youtube.com/watch?v=6dOfkRLWD7M.
[2] https://new.kenyalaw.org/legislation/subsidiary
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Introduction Imagine paying the same fare to travel at 6 a.m. as you would at 6 p.m., even though the matatu is half-empty in the morning and packed in the evening. At 6 a.m., there may be more seats available than passengers willing to pay for them. By 6 p.m., the situation is reversed. Hundreds […]
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Absurd hypotheticals are useful precisely because they stress-test a system until its constraints become visible. This note asks what would break first if SpaceX, now a public company following its record-breaking Nasdaq debut in June 2026, with a post-IPO market value of approximately US$ 2.5 trillion, sought a secondary cross-listing on the Nairobi Securities Exchange. […]
The Arithmetic of Ambition: What Kenya’s First-World Dream Really Requires?
Kenya’s proposed post-2030 Vision commits the country to high-income status “within a generation.” One positive issue that should be emulated is that the document seeks to solve the most important policy decision and the foundational problem in economics, which is to expand output and labour. Skeptics ask the most important question, why would this plan […]
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According to the Annual Debt Report 2024/25, as shown in Chart 1 below, Kenya today is such that for every one hundred shillings the Kenyan government raises in tax revenue, approximately ksh71 goes directly into servicing existing debt before a single hospital is staffed, a classroom is built, or a kilometre of road is constructed. […]