Mandate and Methods of Work
The mandate of the Commission as set out in section 3 of the Act is to "keep under review all the law of Kenya to ensure its systematic development and reform, including in particular the integration, unification and codification of the law, the elimination of anomalies, the repeal of obsolete and unnecessary enactments and generally its simplification and modernization". In this regard the Commission is expected to:
- Receive and consider any proposals for the reform of the law that may be made or referred to it;
- Prepare and submit to the Attorney-General programmes for the examination of different branches of the law with a view to reform, including recommendations as to the agency by which that examination should be carried out;
- Undertake, pursuant to any programme approved by the Attorney-General, the examination of particular branches of the law and the formulation, by means of draft Bills or otherwise, of proposals for reform therein;
- Prepare, at the request of the Attorney-General, comprehensive programmes of consolidation to facilitate the exercise by him of his powers under the Revision of the Laws Act, and to undertake the drafting of Bills pursuant to any programme of consolidation approved by him;
- Provide advice and information to ministries and departments in the Government with regard to the reform or amendment of a branch of the law appropriate to that ministry or department.
This mandate has since been expanded by the New Constitution which under Clause 5(6) (b) of Sixth Schedule requires the Commission for the Implementation of the Constitution to coordinate with the Kenya Law Reform Commission and the Attorney-General to prepare for tabling in Parliament legislation required to implement the Constitution.
The implication here is that other than its statutory and ongoing role of keeping under review all the law of Kenya, the Commission now has an onerous constitutional mandate of not only preparing all the new legislation required to give effect to the Constitution within specified timelines, but also to undertake a detailed audit of all the existing over 700 pieces of legislation and harmonize them with the Constitution.
Methods of Work
A. Review of Legislation
- A Reference or Proposal for Reform may ordinarily originate from the Attorney-General or any other person or institution.
- The Commission may also on its own volition conduct an enquiry.
- A Reference or Proposal for Reform should be as concise as possible, disclose a cogent legal problem that necessitates reform and delineate the affected legislation.
- A Reference or Proposal for Reform from any other person or institution other than the Minister or the A-G may require the Commission to seek and obtain approval of the A- G before embarking on the necessary enquiry.
- A decision by the Commission on whether or not to prioritize Reference or Proposal for Reform of the nature described under [iv] will be dependent upon the urgency of the proposed changes, the running programmes of the Commission especially as determined by the obligations in the extant Performance Contract and the available resources including research personnel.
- Where the Commission is for any reason unable to take on board such Reference or Proposal for Reform, it will as soon as practicable, advice the person or institution originating the proposal and the reasons thereof.
B. Project Committee
I. Where the Commission takes up a Reference or Proposal, a Project Committee comprising a Commissioner and one or two legal research officers is constituted.
II. In assembling the Project Committee, regard is had to specialization, experience and interest.
III. It is the responsibility of the Project Committee to: manage and undertake comprehensive research to determine the prevailing legal position and the deficiencies in the law that may require rectification; set time-frames for the review; receive, collate and analyze views [including peer review by other legal staff and Commissioners], organize the requisite consultative fora; prepare the necessary reports and draft bill.
IV. A key product of the Project Committee's initial research is an Issues or Position Paper which must generally include the background information and specifically issues identified for examination.
- The Issues Paper is routinely circulated to all Commissioners for discussion and input which may generate further research on particular issues.
- For purposes of adopting best practices, comparative study of the position in other jurisdictions is undertaken. It is after such excursions that concrete proposals for reform are formulated.
- A Discussion Paper which entails the products of the detailed research that has been taken up to that point is prepared next. It reveals a range of arguments that may exist on any issue and provides an outline of likely proposals for reform.
- It is the Discussion Paper that normally forms the basis of consultations with external Stakeholders.
- These consultations may take the form of workshops, seminars, retreats, or regional public meetings.
- The stakeholders are also encouraged to make written submissions or memoranda.
- The views emanating from these stakeholder consultations constitute the framework for the proposals for reform.
D. The Law Reform Report
- After considering and analyzing the views and inputs generated as a consequence of stakeholder consultations and conducting further research where necessary, the Project Committee prepares a Report outlining the proposed recommendations for reform and in the interest of transparency, the reasons underlying those recommendations.
- For purposes of efficiency, the Commission ordinarily formulates the recommendations or proposals for reform by means of Draft Bill.
The Final Report together with the Draft Bill are eventually subjected to Stakeholder validation and then submitted to the Attorney-General for the requisite action.