The Case for a Regulatory Policy Framework in Kenya: Insights from Overlaps and Conflicts in the Regulation of Engineering Professions

I. INTRODUCTION

The Institute of Civil Engineers (ICE) has modified Thomas Tredgold's classical definition of engineering into: "the art of working with the great sources of power in nature for the use and benefit of society" . This definition places civil engineering, or any other engineering for that matter, at the centre of economic development. Nonetheless engineers themselves are a resource that a country must develop and manage to realize national developmental aspirations. Development and management of this critical human resource entail professional regulation.

Engineering's role in transformation of societies is indisputable. For instance, Kumar (1995) saw engineers as the main agents of development in colonial India. According to the Association of Professional Engineers Australia, human progress relies fundamentally on engineering (APEA n.d.). engineering is regarded as fundamental to almost every national goal. Cebr (2016 p 4) in a report to the Royal Academy of Engineering noted that: "With half the world living in poverty and millions of people without sufficient food or sanitation, engineering continues to have a key role to play in helping countries to progress across the world". The Cebr Report has given detailed overview of the role of engineering in economic development including the achievement of the Sustainable Development Goals (SDGs). This position has been reiterated by UNESCO (2021).

Kenya has a national development blueprint in the form of vision 2030, that seeks to transform the country into "a newly-industrializing, middle income country providing a high quality of life to all its citizens in a clean and secure environment" (Republic of Kenya 2007a). The blueprint identifies strategic elements in terms of foundation for socio-economic development and economic and social pillars of development as summarized in Table 1.

Table 1: Strategic features of vision 2030

From the Table we can see that engineers will be involved directly in some of the items like technology and innovation, agriculture, manufacturing, water and sanitation, housing and practically in all of them through provision of infrastructure. This makes engineering a critical profession for national development in Kenya.

However, engineering like professions such as accounting, architecture and medicine require high degree of integrity and accountability. Since we cannot move forward without the professional input of engineers, their practice must be regulated for better outcomes in society and economy. According to Naiyaga (2011) there are three basic objectives for regulating engineers:

• Legislative Efficiency; to have a comprehensive, consistent statutory registration system for engineers that would alleviate inconsistencies across jurisdictions

• Professional Recognition; so that the set of standards and skills expected of the engineers are maintained

• Industry/Consumer Efficiency; to provide consumers with the level of experience and skills that is required of the engineer.

This study deals with the legislative efficiency of the regulation of engineering professions in Kenya. It examines the actual and potential conflicts entailed in the jurisdictional overlaps of the agencies and statutes involved in the regulation of engineering professions in Kenya. After highlighting this regulatory inefficiency (or inconsistencies) it proceeds to propose a policy remedy in the form of a regulatory policy framework.

II. REGULATORY OVERLAP AND CONFLICT

It is important to note that much of the studies in regulation concern industry regulation. This primarily involve competition and sector regulatory laws. Hence regulatory conflict literature is dominated by studies of conflict between competition agencies and sector regulators or competition and economic regulation. The grounding treatise on the theory regulatory overlap and conflict was written by Haines and Gurney (2003): The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict. This work pointed out that conflict between sector regulators is also possible; arising from differing regulatory ideologies attributed to different regulatory regimes or bodies. It is this kind of conflict that this study deals with albeit in the lesser studied field of professional regulation.

Haines and Gurney (2003) made a strong case for bringing regulatory conflict to the centre stage of regulation studies because conflict had remained undertheorized. Their study did this demonstratively, by considering the ideological conflicts between the Trade Practices Act and the Occupational Health and Safety Act in Australia after reckoning that regulatory scholarship mainly focused on:

• Improving compliance at the generic level

• Maximizing compliance with a single regulatory goal e.g. improved environmental standards

• Occupational health and safety

• Competition and economic regulation

In this context, conflict when considered, was understood to be between compliance and self-interest or profit, with the assumed moral rightness of improving compliance. The study further noted that regulation scholars tended to avoid the study of conflict because its nature was politically problematic and instead shifted attention to regulatory competition rather than harmonization whenever regulatory overlaps occurred. Therefore, it underscored the need for scholars of regulation to research on conflicts, their impacts on regulatee and methods of resolution of such conflicts.

It is in the light of this that we consider overlap in the regulation of engineering professions in Kenya and the regulatory conflict it generated, how the conflict affected the engineering schools, graduates and students and a proposal toward resolution of such conflicts. The solution to such conflicts entails regulatory reforms. Regulatory reforms have been pushed through "better regulation" which is associated with the New Public Management (NPM) paradigm (see Radaelli and Meuwese 2009) and "quality regulations" associated with Whole-of-Government (WOG) paradigm (see OECD 2011). According to Christensen and Lægreid (2006a, 2007) the global trend of regulatory reform has moved from the NPM to the WOG paradigm. Therefore, this study embraces the WOG paradigm to be up to date in the reform considerations.

In the next two sections we consider two vignettes of regulatory overlaps and conflicts experienced in the regulation of engineering professions in the recent past. Thereafter we shall use the WOG/regulatory quality approach to advance a solution to such conflicts in the form of a regulatory policy framework.

III. VIGNETTE I: LEGAL WRANGLES IN THE REGULATION OF ENGINEERS

Two fundamental issues were raised in the litigations. The first one concerns the petitioners' and the universities' argumentation that ERB had no mandate to accredit university programmes. CHE on the other hand absolved itself by arguing that it only regulated private universities. Public universities were autonomously regulated each by its own incorporating statute. These two positions led to interesting statutory developments and litigations regarding the regulation of engineers.

In order to implement Section 7 (1) (l) the regulators had shored up EBK's position. For instance, at section 46 the Act criminalized the "statutory independence" of universities by making it an offence to teach engineering courses without accreditation by the EBK. It stated that: "A person who, being in charge of a training institution which is not recognised by the Board as an institution registered or seeking registration [...] commits an offence and is liable on conviction to a fine of five million shillings or to imprisonment for a term not exceeding five years, or both" (Republic of Kenya 2012a p E9—21).

In this case amendments were made stating that: "If there is a conflict between the provisions of this Act and the provisions of any other Act in matters relating approval or accreditation of academic programmes offered by universities, the provisions of this Act shall prevail". Further on it criminalized the accreditation activities of the EBK by making provisions that: "A person who without the authority of the Commission under this Act purports to license, accredit, recognise, audit, inspect, index students or collect a fee or a charge from a university or a student commits an offence and shall be liable on conviction to a fine not exceeding two million shillings or imprisonment for a term not exceeding two years or both" (Republic of Kenya 2016 p. 1187).

This legal wrangle exposes Parliament of Kenya as a chaotic and inconsistent house that passes any law brought to its floor without regard to any entailed incoherence. In 2011/2012 it passed two contradictory laws regarding the regulation of engineers: Engineers Act no. 43 of 2011 and the Universities Act no. 42 of 2012. According to the OECD (2009 p 32) Parliament "can play a key role in helping strengthen regulatory quality". As the institution that approves regulatory legislation it can "exercise oversight and control over the application of better regulation principles for new and amended regulation" (OECD 2009 p 32). However, the Kenyan Parliament seems to be making uncoordinated legislative decisions.

IV. VIGNETTE II: STATUTORY OVERLAPS IN ENGINEERING REGULATION

The judicial conflict discussed in Vignette I was based on the Engineers Registration Act that created the ERB. Before it was repealed in 2011, it formed the legal basis for the regulation of both engineers and technician engineers. Its repeal led to the commencement of two separate statutes, one regulating engineers, the Engineers Act no. 43 of 2011 and the other regulating technician engineers, Engineering Technology Act No 23 of 2016 (Republic of Kenya 2016b). The former

Table 2: Regulatory overlaps and the engineering professions

From the Table we may observe that the regulatory powers read the same in most cases. Take for instance entry number 1 for both boards. They are given regulatory power to do the same thing which already constitute an overlap in their regulatory jurisdictions. At a. they are supposed to inspect construction sites to ensure that the workers involved are registered by respective board. In the near past, it was reported in one of the dailies that KETRB is seeking funding to enable it to achieve what it considers its mandate, regulation of the construction industry . According to the Chairperson of the board the major challenge of the housing sector was the employment of unregistered technicians, technologists, and artisans that made it impossible to prosecute those at fault in the case of a building collapsed. Although from a technical point of view, the collapse of a building cannot be attributed solely to poor workmanship but to many factors including quality of materials (regulated by the Kenya Bureau of Standards), the contractor (regulated by National Construction Authority) and the Building Code implemented by a city or town's building regulations inspectorate.

At b. there is an overlap between the two boards too, and an overlap between them and other regulatory institutions. In the instance of the Occupational Safety and Health Act that RBK implicitly and KTRB explicitly seek to enforce, its descriptive title says that it is "an Act of Parliament to provide for the safety, health and welfare of workers and all persons lawfully present at workplaces, to provide for the establishment of the National Council for Occupational Safety and Health and for connected purposes" (Republic of Kenya 2007b). This description implies that the legislation is meant to deal with all work environments even where no engineering practice is taking place which puts it outside the jurisdiction of regulation of professions. Additionally, from the described scope, the legislation created its own regulatory agency, the National Council for Occupational Safety and Health (NCOSH), to oversee its implementation. This means, therefore, that the operations of EBK, KETRB and NCOSH are going to clash. Section 23 of the Act has clearly stated that:

• There shall be a Director of Occupational Safety and Health Services who shall be responsible for the administration of this Act,

• The Director shall be, (a) an ex officio member of the Council but shall have no right to vote; and (b) the secretary of the Council.

So here is a case where the drafters of the engineering regulation law did not consider the provisions of other sector Acts to eliminate overlap and potential regulatory conflicts.

Number 2 for both bodies is to do with assessing and approving foreign qualifications. This will overlap with the mandate of Kenya National Qualifications Authority (KNQA) set up to coordinate and harmonize education, training, assessment, and quality assurance. The overlap in number 3 and number 6 for EBK, has been removed by the settlement of the regulatory conflict that had erupted between ERB and the regulators of university education as has been discussed in the preceding section.

Number 4 for EBK and number 3 for KETRB, also number 5 for EBK and number 4 for KETRB are regulatory ambitions that will lead to straying into the jurisdictions of many agencies as they tend to cut across two major sectors of the economy i.e. the construction and manufacturing sectors. Furthermore, the boards should be concerned with the regulation of engineering practice, not products. They should set standards for practice of engineering not for production of goods. Product standards are the jurisdictions of other relevant agencies. In the instance of the construction sector, some of the agencies that regulate the construction product are shown on Table 3.

Number 5 for KETRB and number 7 for EBK are legitimate regulatory duties but taking control of internship creates a monopolistic management of the qualification process that may then create conflicts with actors in other jurisdictions.

Table 3: Regulatory agencies in the construction sector

Whereas the overlaps in Vignette I reveal inconsistency in the development of regulatory law, the overlaps in Vignette II expose duplicity. For instance, in the case of occupational safety and health three agencies (EBK, KETRB and NCOSH) will draw money from the exchequer to implement the requirements of the Occupational Safety and Health Act. In Vignette I, inconsistency led to legal wrangles, here inconsistency has led to duplicity and potential waste of public funds.

V. THE CONCEPT OF REGULATORY QUALITY

From the empirical evidence on the practice of implementation of engineers' regulation, it is possible to evaluate the regulatory framework and establish its quality mark. Arndt et al. (2016) see regulation as an essential instrument for governments to attain policy objectives. In the case of regulation of engineering professions in Kenya, the positive premise is that the government wants to achieve public interest by ruling out market imperfections and presenting the consumer of engineering services with a standardized service. This will ensure a series of public benefits.

According to Arndt et al. (2016), if regulation is designed and implemented well, it can promote economic growth, increase social welfare, and enhance the quality of life. This would engender high quality; conversely low quality is associated with regulation that is not well designed and implemented. Therefore, quality matters in regulation. Quality is associated with the notion of good governance.

What is regulatory quality? This term was introduced in the literature of regulation by the OECD. According to OECD (2015) regulatory quality concerns "enhancing the performance, cost effectiveness, and legal quality of regulation and administrative formalities". From this definition we can see regulatory quality as a policy concept that can be applied as a guiding principle in the reform of regulations. Our scope here is limited to the last aspect of quality. Nevertheless, the notion of regulatory quality covers process, concerned with how regulations are developed and enforced, and the outcomes. Under outcomes regulatory quality seeks to achieve:

• Regulations that are effective at achieving their objectives,

• Regulations that are efficient (do not impose unnecessary costs),

• Regulations that are coherent (when considered within the full regulatory regime)

• Regulations that are simple (regulations themselves and the rules for their implementation are clear and easy to understand for users).

In this context we are focusing on the aspect of coherence in evaluating the quality of regulation of the engineering professions in Kenya.

The principles of regulatory quality were first laid down in the 1995 OECD's Recommendation of the Council on Improving the Quality of Government Regulation that provided a Reference Checklist for Regulatory Decision Making where the principle of consistency was included (see OECD 2021). One of the stated attribute quality regulation should have is to be "consistent with other regulations and policies". Since then, regulatory quality has featured a lot in many OECD documents on regulation and governance where the principle of consistency has been underscored. Follow up documents include:

• The 1997 OECD Report on Regulatory Reform (OECD 1997)

• The 2005 Guiding Principles for Regulatory Quality and Performance (OECD 2005)

• The 2012 Recommendation of the Council on Regulatory Policy and Governance (OECD 2012)

In the 2012 Recommendation of the Council on Regulatory Policy and Governance, for instance, recommendation number 10 calls upon OECD countries to identify cross-cutting regulatory issues at all levels of government and "promote coherence between regulatory approaches and avoid duplication or conflict of regulations". This is a reiteration of the principle of consistency.

The principle of consistency has been replicated elsewhere. For instance, the principle of consistency is included in the Regional Charter for Regulatory Quality for the Middle East and North Africa (MENA) region. The charter is a non-binding set of policy framework that MENA countries may rely on to integrate principles of regulatory quality into their policy-making process. One of the principles included in the 8 points document is that regulations must be "consistent with other regulations and policies".

The principle of consistency is one of the things lacking in the design of regulatory tools in Kenya as demonstrated by the empirical evidence above. It is one of the items that must be mainstreamed in the regulatory policy making in the country.

VI. WHOLE-OF-GOVERNMENT APPROACH

Whole-of-Government Approach (WGA) is one of the contemporary reform initiatives that seek to improve performance of public management institutions, especially in Anglo-Saxon countries (see Christensen and Lægreid 2007). In its E-Government Survey of 2012, the UN defined whole-of-government as "the movement from isolated silos in public administration to formal and informal networks". On the other hand, Hood (2005) see whole-of-government concept as a new label for the old doctrine of coordination in public administration.

According to Ling (2002) whole-of-government is an umbrella term referring to government's initiatives meant to address the problem of increased fragmentation of the public sector with the main objective to increase coordination among other things. Further WGA can be used for boundary management in the policy sector. Colgan, Kennedy and Doherty (2014 p 5) in their primer on implementing whole of government approaches noted that:

"In complex policy implementation, the boundaries between Government departments, between policy-makers and implementation bodies, and between levels (national and local, policy-makers and front-line personnel, administrative and professional personnel) must be managed if implementation is to be effective".

WGA is one of the administrative procedures that can be used to mainstream consistency in the construction of regulatory statutes in Kenya since it engenders coordination and boundary management that seem to be lacking in government institutions. WGA has been applied to regulatory reforms (see Christensen and Lægreid 2006b). For instance, when Mexico was facing inconsistent and overlapping regulations (Malyshev n.d.), it applied WGA to resolve this problem by developing a regulatory policy framework (OECD 2014).

VII. CONCLUSION: TOWARD REGULATORY POLICY FRAMEWORK

Regulatory policy refers to the rules, processes, and institutions put in place for designing, implementing, and evaluating regulations (OECD, 2015). Regulatory policy has been championed as key element of public sector reform in the OECD countries. Its objective is to ensure that regulations and regulatory frameworks are: justified, of good quality and fit for purpose (OECD 2014). This would ensure regulations achieve public interest and support economic development. In terms of public governance, regulatory policy helps shape the relationship between the state (regulator), the citizen (consumer) and businesses (regulatee) (OECD 2014).

Mexico is one of the OECD countries that has developed a formal policy on "better regulations" by enacting administrative procedure law (OECD 2014). This law established a national agency to oversee regulatory reform. The policy defines the responsibilities of the national oversight body, the line ministries and the regulators. Additionally, it established tools for regulatory improvement including the regulatory impact assessment. Ex ante regulatory impact assessment would be instrumental in bringing up and eliminating potential areas of inconsistency, overlap and fragmentation (Malyshev 2006).

In Kenya the act of deregulation and re-regulation of engineers' practice may be construed as regulatory reform. Therefore the repeal of the existing engineers Act and replacement by two new Acts was an attempt at regulatory improvement that was being conducted without the guidance of any policy framework. Guided by the principles of regulatory quality, the practice of whole-of-government approach and the experience of Mexico, Kenya can now develop its own regulatory policy framework that would help in ruling out inconsistency, overlap and fragmentation and hence achieve coherence, and coordination of its regulatory governance. This would be instrumental for achieving its developmental goal of becoming "a newly-industrializing, middle income country providing a high quality of life to all its citizens in a clean and secure environment".

Conflict of Interest Statement

Author wishes to state that there is no conflict of interest.