Public Policy Versus The Law

It is important to understand the difference between a policy and a law.

What is Law?

Laws set out standards, procedures and principles that must be followed. If a law is not followed, those responsible for breaking them can be prosecuted in court.
So, policy sets out the goals and planned activities of a ministry and department but it may be necessary to pass a law to enable government to put in place the necessary institutional and legal frameworks to achieve their aims. Laws must be guided by current government policy.

Stages of policy and law-making

Government and parliamentary structures as well as the different branches of government all play very important roles in the making of laws and policies. Below is an explanation of the stages of making policies and laws.

Stage one – Ruling party gives vision, goals and direction which forms the party Policy.

It is now the role of the party’s members in the executive and legislative arms of government at national and County levels to initiate the processes that will lead to the implementation of this policy.

Stage two – Executive draws up policy on an issue

Stage two of the process takes place at national level where the ruling party attempts to convert its party policy into official government policy or law following the procedures prescribed by the Constitution. It is clear therefore that there is a strong political link between key legislative and executive structures and the majority party.
It is the responsibility of the executive branch of government to develop new policies and laws. It is the responsibility of the legislative branch (Parliament) to approve policies and pass new laws to give legal effect to the policies.
But this is a long and slow process during which the policy or law proposed by the ruling party is debated and negotiated with various stakeholders, such as opposition parties, the public, Civil Society organisations, etc. This can take many years to complete.
During this time, the government ministries will draft discussion documents, called Papers and on the policy or law to allow for debate and comment.Various parliamentary and select committees in national Parliament and in the Counties, provide opportunities for public participation in debating the proposed policy or law.
Stakeholders can use different opportunities for input, such as attending parliamentary committee hearings, setting up meetings with department heads or the minister, using the media to put pressure, etc.

Stage three – Finalising a policy

Stage three of the process is when the policy is finalised by the relevant Department and Ministry. Once a policy has been properly debated the Department and Ministry look at the issues and options and draw up a final policy which is published as a Paper. The Paper is a statement of intent and a detailed policy plan which often forms the basis of legislation. It is debated and adopted by Parliament and approved by Cabinet.

Stage four – Passing a law

A Cabinet Paper often forms the basis of legislation. If the Minister or the Department decides that a new law is necessary to achieve its objectives and implement its policy, the Department will begin the job of drafting the new law. In its early stages before a new law has been tabled in Parliament it is called a draft Bill. Once it has been tabled in Parliament it is called a Bill for debate, scrutiny and passage.
Once both houses of Parliament have agreed to a final version of a Bill, it will be sent to the President. The President then signs the Bill and it becomes an Act of Parliament and the Law.

Stage five – Subordinate legislation and implementing the law and policy.

Once Parliament has passed a law, or a policy has been published, it is up to the National and County Government ministries and departments to implement the law and/or policy. If it is necessary That National and County legislatures pass subordinate Legislation, Rules and Regulations that give more detail on matters contained in the original law.

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