The Kenya Coast Guard Service Bill, 2017 (the Bill) has been published as National Assembly Bill No 45 of 2017. The Bill went through the 14th of February, 2018 and is scheduled to go for its second reading soon. The Bill, if passed would be a significant boost, in Kenya, to the enforcement of maritime law. At present there are several bodes which enforce maritime law in Kenya and all of them do not have the capability of fully enforcing the various laws that should be enforced at sea. The Kenya Revenue Authority, for example, enforces customs and other taxation laws, the Fisheries Department enforces fisheries law etc. All these bodies have, in the end, to seek the assistance of the Kenya Navy in their enforcement role. However, according to article 241 of the Constitution, the Kenya Defence Forces (KDF) was not set up for implementation of the law, but to essentially defend the sovereignty of Kenya from external attack. In order to involve itself in internal law enforcement, the KDF must, inter-alia seek the approval of Parliament. The KDF also has a chain of command and this, chain of command may cause delays in enforcement, especially in fisheries or pollution offenses on the exclusive economic zone. Indeed, Kenya suffers significant loses from illegal fishing by foreign vessels that are not licenced to fish on Kenyan waters, but illegally fish in our exclusive economic zone.
As such the enactment of the Kenya Coast Guard Services Bill is a great boost to maritime law enforcement. However, the said Bill as drafted, comes with some weaknesses which need to be addressed. A few examples, but certainly not all,of the weaknesses are as follows: 1. The definition of the word territorial waters in section 2 of the Bill is not conclusive. It extends the jurisdictional reach of the Kenya Coast Guard Services, which is commendable, but leaves large areas of the exclusive economic zone and the continental shelf unattended. Granted the Kenya Navy would still operate in these areas, but the problems of the set up of the KDF in article 241 and the KDF chain of command will continue to exist in our exclusive economic zone. 2. The establishment of a Council to be the supreme organ of the Kenya Coast Guard Service is a positive move. However, there are too many people in the said Council. Further, the private sector, has been left out of the Council. 3. The creation of a Technical Council to advise the Council, apart from being in violation of good governance principles, probably invites unnecessary gridlock in the operations of the Kenya Coast Guard Service which will be expected to operate expeditiously.
The weaknesses in the Bill notwithstanding there exist, what could be termed as, innovative provisions. For example, the Kenya Coast Guard Service will not be a national security organ. While enthusiasts of the strict application of the law may frown upon this as being possibly in violation of Chapter Fourteen of the Constitution, there already exists several bodies that are not national security organs, but purport to promote national security. As such, the intention to have an independent body should not be seen as a weakness in the Bill, but could possibly be built on to make the Kenya Coast Guard Service stronger. All in all, the enactment of the Bill will be a positive step forward for the enforcement of maritime law. We shall continue to advice the Government on what it should do to make the law useful to Kenya and its people.