Since its establishment over two decades ago, the Kenya Law Reform Commission has been unable to realize its full potential. Consequently, it has not influenced the process and pace of law reform in Kenya to a marked degree. Indeed, its voice has not been heard in the major discussions and debates that have occurred with regard to the reform of law in Kenya in the last decade or two.

Contrary to the statutory requirement that the Commission advise departments and ministries with regard to amendments to any branch of the law relevant to them. appropriate to that ministry, departments and ministries have routinely engaged consultants whenever they wish to reform their statutes. .

Similarly, contrary to the legal requirement that the Commission examine particular branches of the law and formulate draft Bills and proposals for reform, the Attorney General has commonly established task forces with a law reform mandate outside of the ambit of the Commission.

These processes have culminated in a state of affairs in which the Commission has not been able to realize its potential as the premier institution in charge of law reform in the country. In this respect the Commission compares unfavourably with other law reform Commissions in the Commonwealth. Law Reform Commissions elsewhere tend to be the principal Governmental institutions in charge of law reform, devising programmes for law reform, carrying out the research and making proposals for reform.

There is need for amendments of the constitutive statute, the Law Reform Commission Act, to provide measures that would enhance the autonomy and authority of the Commission vis-à-vis other institutions engaging in law reform.

The KLRC shall thus, during the plan period augment its legal research capability in the direction of computer-based research, for which the Commission needs to develop capacity.

The other institutional challenges facing the KLRC are the overlapping, lack of clarity and  functional roles of its Chairman, the Commissioners and the Secretary:

a) The Chairman formulates policies and guidelines for the Commission and is appointed by the President for a three year renewable term
b) The Commissioners hold and / or attend meetings on law reform, assist the Chairman in Policy Formulation, give direction to state counsel on matters of law reform and Formulate Work Programmes
c) The Commission Secretary acts as the Chief Executive Officer, Accounting Officer and is appointed by the Attorney General

Although under the Act the Commission may receive reform proposals from diverse agencies and may initiate proposals on its own, Section 3(1) (c) of the Act obliges the Commission to first obtain the approval of the Attorney General before examining any branch of the law and formulating reform proposals.

In this regard therefore, KLRC shall initiate a process of reviewing this relationship with the AG so as to develop a phased approach of ensuring that the true purpose of a national law reform agency can become a reality.  Indeed, the constraint has been acknowledged in government’s performance of this critical component.  The opportunity is timely as is reflected by the political will of the Ministry of Justice and Constitutional Affairs.

Ordinarily Bills and reform proposals generated by the Commission tend to be the non controversial type or those that do not have a high political premium. Hence they are easily placed lower down in the Parliamentary business calendar. At the end of the day whether the Commission’s work results in legal changes depends on other institutions, like the office of the Attorney General and Parliament.

As the Law Reform Commission Act makes amply clear, the mandate of the KLRC in law reform is very broad. The rationale behind a permanent Law Reform Commission created by statute is to ensure systematic development and reform of the law. The Commission is supposed to ensure that all branches of the law develop in tandem and systematically. Where reform of law is undertaken by or under the direction of one institution, it is possible to monitor the status and changes in all the laws and more importantly to make proposals for change, amendment and reform that are coordinated and consistent. On the other hand where law reform is undertaken by different and unrelated agencies or institutions, there is a real danger that the reform and development of the law will be haphazard, contradictory, disjointed and uncoordinated.

One of the main reasons why the reform and development of the law in Kenya has not been efficient and consistent is precisely because in practice, the task of law reform has been left largely to individual Government ministries, departments and agencies to the exclusion of the Commission.  While it is a generally accepted fact that many other institutions do and must initiate and spearhead law reform in one form or another, it is acknowledged that Law Reform must be coordinated under the mandate of the Law Reform Commission. Universities, research institutions, Bar Associations, judges, Non Governmental Organisations, Government Departments, Ministries, Commissions of Inquiry etc. all initiate law reform proposals. Indeed, even the Law Reform Commission Act itself contemplates many situations where other bodies and institutions submit law reform proposals to the KLRC for consideration.

It is therefore inevitable that other institutions in society will be actively involved in law reform. Such involvement is desirable in the sense that such institutions or government departments and ministries which are directly involved in the implementation of specific laws or in monitoring their application and operation are best placed to make proposals for amendments and reforms.  However, many Government departments and ministries carry out their own law reform initiatives, sometimes completely independent of the KLRC. The concerned ministries and departments appoint ministerial or departmental task forces to study specific aspects of the law and make reform proposals. They then revert to the Attorney General for drafting purposes. Others hire the services of independent legislative drafting experts to reduce their proposals into Bills, before they are submitted to the officeof the Attorney General.   The critical issue for KLRC is to present itself with the capability and capacity to develop clear and workable mechanisms of engaging the government ministries and departments either individually or separately.

There are many compelling reasons why all law reform initiatives should be coordinated under the Commission. The following are some of the fundamental ones.

(i) Unlike Commissions of inquiry, ministerial or departmental committees and Task Forces which are single issue oriented, the KLRC is mandated to deal with all aspects of the law. Moreover, the KLRC enjoys continuity of existence and membership which is critical for follow up action on law reform proposals. When it has considered a law for reform, it prepares a report and with the advantage of continuity, it is able to monitor the implementation of the reforms and to make further proposals and adjustments as the need arises. Commissions of inquiry and ministerial or departmental committees set up to initiate reforms come to an end with preparation of their reports and are not able to monitor implementation and future developments.

(ii) From its broad mandate covering reform of all laws, the KLRC is well placed to ensure that all the law develops in a systematic and coordinated fashion. Government departments and ministries which conduct their own internal reforms are likely to overlook the linkages between the laws relating to their departments and those of the other ministries and the entire legal system. Legal reforms conducted in that fashion lack proper coordination and consistency.

(iii) In conducting law reform, the KLRC has the capacity to play a consultative role. It is capable of consulting widely with various stakeholders and experts. It is capable of taking advantage of the media for wide public discussion, exchange and in-put. It is also able to reach wider sections of the society through formal and informal hearings, surveys, seminars and workshops. In the final analysis, the KLRC proposals will be authoritative as the product of widespread consultation and input.

(iv) Unlike government ministries and departments, the KLRC has a capacity to develop expertise in many areas of the law. It is capable of carrying out authoritative, exhaustive and quality legal research on reform proposals resulting in formulation of effective laws. In addition, when making reform proposals, the KLRC would be in a better position to undertake a comparative analysis of the laws of Kenya and those of other jurisdictions to ensure that the proposed laws take into account the latest legal developments in other jurisdictions similar to ours.

(v) The government stands to save on costs if law reform initiatives are undertaken through the KLRC. Presently, each Government ministry and department has to hire its own consultants and experts separately and individually for purposes of law reform. If this work was undertaken by or through the KLRC, the Government would save much.

(vi) The present practice has a great capacity for wastage and duplication of tasks. For example, in some instances where task forces have been used for law reform, the task forces have ended up producing reports which are then handed over to the KLRC for refinement. The problems are compounded because upon submission of their reports, the task forces are disbanded and are unavailable for further clarification of their reports. The KLRC ends up redoing most of the work thus wasting time and resources.