When President Mwai Kibaki released the list of lawyers to constitute the new face of the Kenya Law Reform Commission, many people thought that a new commission of inquiry had been appointed to review our laws. What people found strange was that this new commission, unlike the others, had too many members and lacked specific terms of reference.
“Many people, even lawyers, don’t seem to know much about the Law Reform Commission, even though it has been in existence for the last 20 years, since 21st May 1982,” Kathurima M’Inoti, the newly appointed chairman of the Law Reform Commission, explains. “The Commission has been treated as the purgatory for judges and lawyers.”
Really, the new chairman will be starting from scratch. The Law Reform Commission, even for those who know it, has done very little and made absolutely no impact on the legal sector in Kenya. Though he says he has yet to do a proper audit of the achievements of the commission since its inception, Kathurima says from the little he knows of its work: “The main project of the Law Reform Commission appears to have been to address defamation laws.”
The Commission was established by The Law Reform Commission Act, Chapter 3 of the Laws of Kenya and came into being on 21st May 1982. Its objective is to keep under review all the laws of Kenya and ensure that they are reformed; through the repeal of obsolete Acts and the propagation of relevant modern laws. The Commission is also meant to ensure that we come up with new laws as they are required and that our laws are user friendly and not contradictory.
A look at the essentials of a proper law reform commission clearly shows the failings of the commission in the past and the challenge that faces the new chairman.
A proper law reform commission cannot be ad hoc. This would make it no different from a task force. It must be permanent. The commission as currently set up is a creature of statute. This does grant it the essential character of permanence. It cannot be disbanded by an executive decision.
However, the term of the commissioners takes away a part of this feature. Commissioners serve for a three-year renewable term. Such a short term creates insecurity in the minds of the commissioners who would normally require a longer period to carry out any comprehensive legal review.
Recognising this shortcoming, the Attorney General on 27th June 2002 published the Kenya Law Reform Commission Bill, 2002, which extended the term of the Chairman of the Commission to six years, renewable. The rest of the commissioners were to serve a five-year renewable term while part-time commissioners were to serve four years, also renewable.
“If the Law Reform Commission is to deliver and inspire confidence, this bill is the place to start,” says Kathurima. “However, I do not believe it is good to have commissioners for life. They should be changed to bring in new ideas.”
FULL TIME ENGAGEMENT
Under the current Act, there is no requirement that commissioners dedicate their full-time professional engagement to the commission. As a result, law reform is a part-time job to which commissioners volunteer their spare time. In the past, the intrinsic value of the time of many of the commissioners, even when given full-time, has been spectacularly worthless.
“One of the core aspects of the law reform commissions in other jurisdictions is that the commissioners are engaged full time,” observes Kathurima. “If the commission is part time, it may not achieve much.”
The Bill on the proposed new commission provides for a chairman, a vice-chairman, not less than two and not more than four full-time commissioners, and six part-time commissioners. Though the Bill is silent on whether the Chairman and Vice-Chairman shall be full-time, it creates a full-time commission from which a definite product can not only be assured, but also demanded. The Bill also empowers the President and the Attorney General to remove from office any commissioner who is absent from three consecutive meetings without good cause satisfactory ti the Attorney General. The Bill also requires the commission to meet at least once a month.
Governments, even when they are democratic and popularly elected by universal suffrage, are viewed with suspicion. The civil society and professional groups are particularly uneasy with any executive initiatives. Law reform commissions that are controlled by the Executive invariably suffer from this misgiving.
The present Kenya Law Reform Commission is a department under the Office of the Attorney General. It relies on the Attorney General for its funding, it has to report to him, he has to approve any of its major reform drives and its entire staff is seconded from that office. “As constituted, our Law Reform Commission is just an extension of the Attorney General’s Chambers with all the attendant civil service problems,” comments the new chairman.
Under the 2002 Bill, the commission is established as a body corporate with perpetual succession and a common seal. In its name, it can sue and be sued, hold movable and immovable property, borrow or lend money, raise money from grants and other gifts and control and administer its own funds. It even has power to invest any funds not required immediately. It is empowered to employ its own secretary and employ any other such person as it requires in its work.
The independence of the commission will determine whether it will receive the necessary public support for its work. Without public confidence in the programmes of the commission, nobody will take the time to give it intellectual support. Until people believe that it is sufficiently independent to giv unbiased recommendations to the government, they will not present petitions, provide evidence, comment on suggestions or attend discussion forums. This would rob the commission of the invaluable intellectual expertise in the professional society and deny it the crucial public acceptance without which the commission’s recommendations could never become law.
A recommendation of a law commission is of little significance. If it is not authoritative. Professional respect is derived from authority and absence of authority is greeted with disdain. Previously, the commission has exhibited no authoritativeness in its recommendations. Its membership and staffing has had no regard to the need for it to attract some measure of professional respect.
The new chairman does command a good professional and intellectual standing in the society. A Masters of Law graduate of the University of Nairobi, he has been a lecturer in public law at the same university and served as a chairman of the Kenya Chapter of the International Commission of Jurists. He chairs the Refugee Consortium of Kenya and has previously served as a council member of the Legal Education and Aid Programme(LEAP). He has been an Associate Editor of the Nairobi Law Monthly and a member of the Editorial Board of The Advocate. Internationally, he has acted as an observer for the International Observer Group, a human rights monitor for Amnesty International and has participated in various workshops and seminars on human rights in various countries. He is also an accomplished legal practitioner.
The new Bill requires that of the part-time commissioners, one must be a judge, another a nominee of the faculties of law in the public universities, two (one of them a woman) must be nominees of the Law Society of Kenya and another a nominee of the National Assembl6. The commission itself is empowered to co-opt two people at any one time as additional commissioners to assist in any specific task.
There were days when lawyers knew it all, but that was eons ago in foreign lands. The reference ‘Learned Friend’ was a recognition of distinction in academia. Law was a multidisciplinary study that took away the best years in one’s life trying to earn the reference ‘Learned Friend’. Today, you can cram it over two to three years as a part-time study. Society sneers at the phrase ‘Learned Friend’.
Undeterred, lawyers often deal with other disciplines as if they were masters in them too. The y explain their ignorance of any situation by the ‘lack of precedence’. Other disciplines participate in the legal field, not as contributors, but as providers of evidence. The results are often unsatisfactory.
An effective law reform programme must be consultative. It must effectively involve the experts in other disciplines. It must rely not just on legal reading but also social research. Law must understand the dynamics of the society if it will become and remain relevant.
The new Bill gives the commission power to solicit funds and conduct public consultations through seminars, workshops, conferences and other public forums. This power will help the commission become consultative with the public and experts in the various fields it will address.
“We should not wait for people to go to court to challenge the constitutionality of laws. We need to have a truly vigorous commission. For instance, we hear that laws hinder business. We need to look at the law and see in what way it does this and change it,” explains Kathurima.
The new chairman wishes to see a commission that operates as a forum for discussion and an open platform for submissions. He hopes to raise the interest of the people in law reform and facilitate their participation in the review of old laws and formulation of new ones. Only then can problems be identified and workable solutions reached.
Combined with the power to employ any persons it requires as its research officers or legal consultants, the new commission would have ample scope in enhancing its authoritativeness in the field of law. However, without this Bill becoming law, the new commission will have to rely on the civil servants seconded to it from the Attorney General’s office. Judging from the laws that the office has produced in recent years, the new commission begins its race with its shoes tied together by their laces.
The new chairman understands these challenges fully. He is conversant with the philosophy of law reform and the benchmarks upon which his success shall be measured. He thus views the enactment of the new Bill into law as the single most determining factor of his success. “Our reforms should start with the reform of the Commission itself,” he states.
We couldn’t agree more.