The Engineers Act of Kenya 2011. A regulatory analysis of the impact on institutional structures

Regulatory Impact Analysis of the Engineers Act (No. 43 of 2011)

Developed by the Organization for Economic Cooperation and Development (OECD), Regulatory Impact Analysis (RIA) is a process of systematically identifying and assessing the potential (ex–ante stage) or already created (ex–post stage) consequences – benefits, costs and effects – of a policy or a regulation. Using RIA, one can conduct a systemic analysis of the possible changes that result from the adoption of normative legal acts. RIA aims to support the decision-making process regarding the fate of a new or existing regulation, its positive and negative effects, and whether the regulation is likely to achieve the desired objectives.¹

There is no “one size fits all” when it comes to the application of RIA. The same is also relevant for a RIA methodology. Cost-Benefit Analysis (CBA) is one methodology that has been applied successfully but the complexity of the methodology varies across countries and even within countries. Other methodologies include comparing positive and negative impacts, qualitative and quantitative methods, multi-criteria analysis, partial and general equilibrium analysis, as well as assessing direct and indirect effects. The RIA methodology must first suit the objective of RIA as well as the administrative context and capacity.

Like law and medicine, engineering is a noble profession whose regulation and licensure is established by various jurisdictions to encourage public welfare, safety, well-being and other interests of the general public and to define the licensure process through which an engineer becomes authorized to practice engineering and provide professional engineering services to the public. The Engineers Act (No. 43 of 2011) is the specific legislation which regulates the engineering profession in Kenya.

The objectives of this paper are to:

1. evaluate the regulatory objectives of the EBK;
2. explain the significance of the EBK in the realization of the national and international development goals (government’s constitutional obligations, Vision 2030, Big $ Agenda SDGs etc.);
3. examine the extent to which institutional structures of the EBK positively/negatively contribute to the fulfilment of its mandate;
4. examine how EBK’s legal mandate overlaps with other institutions and what challenges or strengths this poses for the fulfilment of its regulatory objectives;
5. identify the challenges facing the EBK and the necessary regulatory adjustments necessary in view of the regulatory objectives identified in 1 and 2;
6. provide a way forward based on a determination of whether the challenges identified emerge from the EBK’s institutional, statutory, or regulatory structure.

The Engineers Act of 2011 is an Act of Parliament which: provides for the training, registration and licensing of engineers, the regulation and development of the practice of engineers and for connected purposes.²

The Act was assented to on 27 January, 2012 and commenced on 14 September, 2012 through a Special Issue of the Kenya Gazette.³ When it came into effect, the Engineers Act repealed the Engineers Registration Act CAP 530 of the Laws of Kenya – s.53.

Section 3 of the Act establishes the Engineers Board of Kenya (the EBK or the Board), a successor to the Engineers Registration Board (ERB) previously established under Section 3(1) of the repealed Act. The functions and powers of the Board are outlined under s. 7 of the Act. S. 6, on the objects and purpose of the Board, states that:

The Board shall be responsible for the registration of engineers and firms, regulation of engineering professional services, setting of standards, development and general practice of engineering.

Some of the terms which stand out from this description of the Board are: engineer; engineering; firm; and professional engineering services. These are defined under s. 2, Engineers Act, 2011 as thus:

“engineer” means a person registered under this Act as a professional engineer or consulting engineer and who holds a valid licence.

“engineering” means the creative application of scientific principles to design or develop structures, machines, apparatus, or manufacturing processes, or works utilizing them singly or in combination or to construct or operate the same with full cognizance of their design or to forecast their behaviour under specific operating conditions or aspects of intended functions, economics of operation and safety to life and property

“firm” means engineering consulting firm registered under this Act “professional engineering services” means engineering services and advice in connection with any feasibility study, planning, survey, design, sketch, drawing, specifications, construction, commissioning, operation, maintenance, supply of specialized engineering equipment and management of engineering works or projects and includes any other engineering services approved by the Board.

From s.6 of the Engineers Act, we can deduce that the EBK is responsible for two things, the:

1. quantity of engineers and engineering firms in Kenya – registration; and
2. quality of professional engineering services rendered in Kenya – regulation, setting standards, development and general practice of engineering.

So how significant is the EBK in Kenya’s realization of its national and international development goals? In the words of Indira Priyadarshini Gandhi, India’s third and only female Prime Minister to date:

Planners and economists build models of growth, which are useful theoretical concepts. But it is the engineers who mold these models into coherent form... No nation can develop without them.⁴

These sentiments are best validated by first looking at the role of Kenyan engineers and then EBK’s within the context of the Government’s constitutional obligations, Vision 2030, the Big 4 Agenda, and SDGs.

We start by looking at art 43(1)(b) CoK 2010 which entitles every person to “accessible and adequate housing, and to reasonable standards of sanitation”. A house is a structure which, has to be designed and developed using scientific principles (engineering) and in strict adherence to professional engineering services if at all it is to attain the said reasonable standards of sanitation. The same goes for the right to be free from hunger, and to have adequate food of acceptable quality – art. 43(1)(c); to clean and safe water in adequate quantities – art. 43(1)(d); and education – art. 43(1)(f). These examples should not give the impression that engineering, and the EBK by extension, is limited to the actualization of economic and social right alone, no. In fact, on the contrary, I would go as far as to state that the realization of any right and fundamental freedom enshrined in the CoK 2010 requires the input of an engineer, be it directly and/or indirectly.

Vision 2030 is Kenya’s development programme from 2008 to 2030. Its objective is to help transform Kenya into an industrializing, middle-income country with a high quality of life by 2030, in a clean and secure environment. The Vision is based on three “pillars” – the economic, the social and the political – and macro-enablers.⁵

Projects under the Economic Pillar which require the direct involvement of engineers include: (i) the Arid and Semi-Arid Land (ASAL) Development Irrigation Projects – agriculture; (ii) development of Dongo Kundu Freeport – infrastructure; (iii) Mini and Integrated Iron and Steel Mills – manufacturing; (iv) Small and Medium Enterprises (SMEs) Parks – manufacturing; (v) Special Economic Zones –manufacturing; (vi) Konza Technology City – business process offshoring and Information technology (IT) enabled; and (vii) Skills Development for Technical Human Resource – manufacturing. Under the Social Pillar, Engineers are to be involved in (i) Community Based Information Systems; (ii) Constructing and Equipping (560) Secondary Schools and Expansion of Existing Ones; (iii) Housing Technology Centers in each Constituency; (iv) Physical and Social Infrastructure in slums; (v) Regional Sports Stadia; and (vi) Waste Management Systems. Under the Macro Projects and Enablers, professional engineering services, as defined by the Engineers Act, are instrumental in the: (i) Standard Gauge Rail (SGR); (ii) expansion of Road Networks; (iii) generation of 23,000 MW power and its Distribution; (iv) the expansion and modernization of Jomo Kenyatta International Airport (JKIA); (v) installation of Surveillance Cameras in Major Cities; and (vi) Lamu Port Southern Sudan-Ethiopia Transport (LAPSSET).⁶

The Big Four Agenda is an economic blueprint that was developed by the government to foster economic development and provide a solution to the various socio-economic problems facing Kenyans. When H.E. President Uhuru Kenyatta conceptualized the Big Four – (i) manufacturing; (ii) food security, (iii) affordable housing, and (iv) affordable healthcare for all – he did so in appreciation of the fact that for Kenya to accelerate the achievement of Vision 2030 aspirations, we would need to take a new approach to our medium-term planning, and focus on issues that would have the greatest impact on the well-being of the people. The Third Medium Term Phase (MTP3) of Vision 2030 is therefore being driven by the Big Four Agenda, implemented on the foundations that have been put in place during the MTP1 (2008 – 2012) and MTP2 (2013 – 2017).⁷

The role of engineers in the manufacturing agenda includes increasing connectivity through proper infrastructure for transport and communication; design and construction of roads, railways, sea ports and waste treatment systems; and ensuring there is clean energy for manufacturing which is necessary in ensuring environmental pollution is contained. This agenda goes hand in hand with SDG 9: Industry, Innovation and Infrastructure that focuses on the building of resilient infrastructure, promotion of inclusive and sustainable industrialization, and foster innovation.

Achieving 100 per cent Food Security and nutrition requires increasing Kenya’s food production capacity. This is in line with SDG 2: Zero Hunger that includes ending hunger, achieving food security, improving nutrition, and promoting sustainable agriculture. Kenya has an irrigation potential of 1.3 million hectares of land, of which, less than 10 per cent is currently under irrigation. Engineers are capable of designing reservoirs as well as canals for distribution of water for irrigation. The role of engineers in realizing this agenda also includes construction of roads to enable connectivity between farmers in rural areas and the urban population which is their biggest market.

The agenda of 100 per cent Universal Health Coverage domesticates SDG 3: Good Health and Well Being – ensure healthy lives and promote well-being for all at all ages. To achieve this, Engineers are involved in construction of healthcare facilities; engineering and servicing hospitals and supporting equipment; constricting good roads for transfer of patients, waste water treatment to ensure good sanitation among other ways.

The government also intends to construct 500,000 new affordable houses in line with SDG 11: Sustainable Cities and Communities. The role of Engineers in this agenda cannot be overestimated. Engineers design building structures factoring in environmental factors in order to deliver buildings that are safe, functional, durable, sustainable and economical.⁸

Having looked at the role of engineers and their professional services in Kenya’s development agenda, we now refer to the Engineers Act in order to ascertain the significance of the EBK in the same development goals. For this, we refer ourselves back to s.6 of the Act.

On quantity, UNESCO notes that the engineers per capita for rich countries is 500 and 2,000 for poor countries. The average is 770. Therefore, for a population of 40 Million, Kenya should have at least 20,000 engineers if it is to mold its theoretical models of development into coherent forms as Indira Gandhi noted. On 22 Feb 2013, the Business Daily newspaper ran an article titled Shortage of engineers pose challenges to Kenya growth. In it, it claimed that there were 1,323 registered Engineers serving a population of 40 million. The number of Graduate Engineers stood at around 5,000.⁹ Based on the definition of the term “engineer” under s.2, Engineers Act 2011, and the canon of expressio unius est exclusio alterius, Graduate Engineers, though registered by the EBK, are not “Engineers” as per the law. Thus, in early February 2013, Kenya had one Engineer serving 32,000 Kenyans.

Data obtained from the EBK website on 02 March 2020 showed that Kenya has 2,329 Engineer (1,921 Professional Engineers and 408 Consulting Engineers) and 14,243 Graduate Engineers.¹⁰ Kenya had a population of 47.5 million according to 2019 census.¹¹ This translates to one Engineer serving 36,000 Kenyans. Based on these figure, one can confidently conclude that the situation relating to the shortage of registered Engineers in Kenya has since 2013, moved from acute to dire. The consequence of this reality on Kenya’s development is self-evident. Interestingly, Kenya is grappling with a shortage of engineers at a time when Universities are busy churning out hundreds of Engineering Graduates from programmes that have been rejected by the EBK as will be shown in the succeeding paragraphs.

The quality of services witnessed and experienced in a profession, like say engineering, is a direct function of the enforcement of that profession’s code of ethics. A “code of ethics” is defined under s.2 as “sets of standards for engineers’ obligations to the public, their clients, employers and the profession encompassing right conduct.” The EBK is required, under s. 7(1)(u) of the Engineers Act, to develop, maintain and enforce the code of ethics for the engineers and regulate the conduct and ethics of engineering profession in general. But first things first, does Kenya have a code of ethics for engineers? Up until April 2019, there was none. However, today, this can be found under Schedule Six of the Engineers Rules, 2019. The said Code of Conduct and Ethics for Engineers applies to all engineers and firms registered under the Engineers Act, 2011.¹² These are registered Professional and Consulting Engineers (not Graduate Engineers) and firms. It is difficult to ascertain how effective the EBK has been in enforcing the said code of ethics, and its influence of Kenya’s development, considering the same has been operational for less than year.

Still on quality, the Engineers Act, 2011 empowers the EBK to set standards for engineers in management, marketing, environmental issues, safety, legal matters and other relevant fields – s. 7(1)(m). Do such standards exist? No. The EBK also has the authority to enter and inspect sites to verify whether standards and professional ethics are being observed – s. 7(1)(g)(ii). There is no known instance where the Board has been seen to discharge this function. The Board is also mandated to hear and determine disputes relating to professional conduct or ethics of engineers – s. 7(1)(t). Between 2014 and 2019, the Board conducted over 30 inquiries into misconduct by engineers and took/recommended disciplinary action where necessary.¹³

EBK’s legal mandate overlaps with other institutions’ mandates. These include the Companies Act No. 17 of 2015 redefined the framework for incorporation and conduct of companies in Kenya; the Public Procurement and Assets Disposal Act No. 33 of 2015 provides a legal framework for procurement of professional services; the Engineering Technology Act No. 23 of 2016 which provides for the registration of technologists and technicians under a separate legal framework; the Universities (Amendment) Act No. 46 of 2016 limits accreditation of professional programs by professional bodies like EBK; and the Competition (Amendment) Act No. 49 of 2016 has a direct impact on scale of fees for professional services.

Owing to the limited scope of this paper, we will focus on just one: The Commission for University Education (CUE or the Commission) established by the Universities Act No. 42 of 2012 . We start by looking at s. 7(l), Engineers Act, 2011, which gives the Board powers to: approve and accredit engineering programs in public and private universities and other tertiary level educational institutions offering education in engineering; Notably, the Engineers Act does not define the term “accreditation” or “program accreditation”. The said terms, however, are defined under s. 2, Universities Act, 2012 as thus:

“accreditation” means the procedure by which the Commission recognizes an institution as a University and as having fulfilled the prescribed criteria for mounting its academic programmes…

“programme accreditation” means the process by which the Commission formally recognizes an academic programme of a University, including a foreign university…

The functions of the CUE, under s. 5, Universities Act, include, among others, to accredit and regulate university education in Kenya; and to accredit and inspect university programs in Kenya. From the foregoing, we can see that there is a clear conflict with regard to the accreditation and approval of curricula for engineering courses at universities in Kenya, created by Parliament, through the enactment of the two Acts which, mark you, were enacted in the same year, and came into force within months of each other.

When this matter came before the High Court, in the case of Jesse Waweru Wahome & 2 Others V Kenya Engineers Registration Board (2012) , Majanja J found that the ERB had no mandate, under the provisions of the then Engineers Act, Cap 530 of the Laws of Kenya, to approve courses and curriculum.¹⁴ Later on, in Martin Wanderi & 19 others v Engineers Registration Board of Kenya & 5 others (2014) , Mumbi Ngugi fully agreed with Majanja’s sentiments and findings stating that based on the canons of interpretation with regard to the timing of legislation, and the doctrine of implied repeal:

The Universities Act, being a later legislation, impliedly repealed the provisions of the Engineers Act in so far as the accreditation of courses at universities is concerned…¹⁵ Note that Ngugi’s sentiments were issued at a time when Majanja’s verdict was still pending in the Court of Appeal. When the Court of Appeal issued its verdict on the matter, on 12 June 2015 in Civil Appeal No. NAI 240 of 2013 , it found that the Board was well within its rights to accredit undergraduate degree programmes in universities.

It was not until 17 July 2018 that the Supreme Court partially pronounced itself on the matter. In Martin Wanderi & 106 others v Engineers Registration Board & 10 others (2018) , the Supreme Court affirmed Majanja’s decision stating, specifically, that: … the provisions of section 11(1)(b) of the Engineers Registration Act (now repealed) to register graduate engineers did not include the power to accredit and approve engineering courses offered by public universities incorporated under the Laws of Kenya.¹⁶

Insisting that it had the power to accredit engineering courses, the ERB had refused to register thousands of engineering graduates from different universities. This is what gave rise to the suit in the first place. On this, the SCoK issued a declaration that: …in refusing to register the applicants, the Board violated the petitioners’ right to fair administrative action under Article 47(1) of the Constitution and the petitioners’ right to human dignity under Article 28 of the Constitution as read with Article 55 (a) and (c) of the Constitution.¹⁷

The SCoK then went on to issue an order of mandamus directing the EBK to register all Petitioners and second interested Parties as Engineers under the Engineers Registration Act within the 21 days of the judgement. The EBK was also to pay them general damages assessed at KES 200,000. The said sum carried an annual interest rate of 12% from the date of the High Court judgment.

[...]

¹ Ministry of Economy, Manual on Regulatory Impact Assessment: For use in the public service of the Republic of Armenia (2008).

² Engineers Act 2011

³ Franklin Bett, ‘The Engineers Act (No. 43 of 2011): Commencement’ Kenya Gazette (Nairobi, 31 August 2012) 709.

⁴ S. K. Dhawan, Selected Thoughts of Indira Gandhi: A Book of Quotes (Mittal Publications 1985) 103.

⁵ Ministry of Devolution and Planning, Kenya Vision 2030: Second Medium Term Plan, 2013-2017 (2012).

⁶ Ibid.

⁷ Ibid.

⁸ Shammah Kiteme, ‘How engineers help drive Big Four agenda’ (Standard Digital, 03 September 2019) <https://www.standardmedia.co.ke/article/2001340464/how-engineers-help-drive-big-four-agenda> accessed 27 March 2020.

⁹ ‘Shortage of Engineers Pose Challenges to Kenya Growth’ Business Daily (Nairobi, 22 February 2013) < https://www.businessdailyafrica.com/news/Shortage-of-engineers-pose-challenges-to-Kenya-growth/539546-1701570-tjbvl6z/index.html> accessed 02 March 2020.

¹⁰ ‘Members’ (Engineers Board of Kenya) <https://ebk.or.ke/#> accessed 02 March 2020.

¹¹ Kenya National Bureau of Statistics, Kenya Population and Housing Census: Population by County and Sub-County (2019).

¹² Engineers Rules 2019, Sixth Schedule, s 2.

¹³ Engineers Board of Kenya, Draft Strategic Plan 2019/2020-2021/2022 (2020).

¹⁴ Jesse Waweru Wahome & 2 Others V Kenya Engineers Registration Board 2012 eKLR, HC. 149, 2011, 207 2011, eKLR.

¹⁵ Martin Wanderi & 19 others v Engineers Registration Board of Kenya & 5 others 2014 HC 248, 2012, eKLR.

¹⁶ Martin Wanderi & 106 others v Engineers Registration Board & 10 others, 2018 HC 19, 2015, eKLR.

¹⁷ Ibid.