PRESENTATION ON

LAW REVISION IN KENYA

BY ANN ASUGAH

HEAD OF DEPARTMENT, LAWS OF KENYA

AT THE AFRICANLII TRAINING IN JO’BURG

SOUTHAFRICA

30TH-2ND AUGUST 2012

WHO WE ARE

The National Council for Law Reporting is a corporate body established by the National Council for Law Reporting Act, 1994 and given the exclusive mandate of:

"publication of the reports to be known as the Kenya Law Reports which shall contain judgments, rulings and opinions of the Superior Courts of record and also undertake such other publications as in the opinion of the Council are reasonably related to or connected with the preparation and publication of the Kenya Law Reports" [Section 3].

HISTORY OF LAW REVISION IN KENYA

Law revision is a statutory power conferred on the Attorney General of Kenya by the Revision of Laws Act Cap. 1.

The Attorney General can delegate this power to any body to carry out the revision under S. 38 of Cap 2.

Where by an Act the exercise of a power or the performance of a duty is conferred upon or is vested in the President, the Attorney-General or a Minister, the President, the Attorney-General or the Minister, may, unless by law expressly prohibited from so doing, delegate, by notice in the Gazette…………

HISTORY OF LAW REVISION IN KENYA

Due to capacity constraints, the Attorney General delegated the power to revise the laws to the National Council for Law Reporting in 2007 through Legal Notice No. 29 of 2009.

Prior to this, revision of Laws of Kenya had not been done for over 20 years.

This backlog created an industry that is still thriving called cut and paste

LAW REVISION MANDATE LEGAL NOTICE NO. 29 of 2009

HISTORY cont.

For a long time, Kenyans relied heavily on paper based laws and the possibility of digitized laws had not been explored or envisioned.

When NCLR started its work of publishing electronic law reports, there was realization that law reports must go hand in hand with Statutes for easier reference

This led to the digitization of Laws of Kenya by NCLR and deployment of the same on the internet to facilitate easier access.

Official status.

Some of the issues that arose from this digitization process is if the electronic laws were official or authentic

Parliament amended the Revision of Laws Act in 2007 through the Statute Law (Miscellaneous) Amendment Act, 2007 to accommodate electronically published laws in Kenya and make them official.

S. 6 (3) of cap 1 states; In addition to the publication of the Laws of Kenya in the manner prescribed in foregoing provisions of this section, a Printer, referred to in subsection (2), may also publish the Laws of Kenya in electronic form.

Any time there is a discrepancy between the written and electronic format, the written law shall always take precedence.

Powers of law revision.

The powers of revision given to the Attorney General are very wide.

He has powers to alter numbering, consolidate laws, omit certain laws, supply marginal notes and alter their arrangement etc. [ see Section 8 of Cap. 1].

S. 8 (4) however prohibits the Attorney General from making any alteration or amendment in the substance of any law.

STATISTICSKenya has over 600 statutes running into over 28,000 pages of Legislative text including subsidiary legislation.

The Kenyan laws have not been revised for over 20 years.

There are just about 15 legislative drafters in Kenya and only about 6 of them in the Legislative Drafting Department of the State Law Office.

A statistical analysis of the NCLR website as at June 25 2012 showed that ,(www.kenyalaw.org) shows the Laws of Kenya segment as one of the most visited segment of the site with over 2650 hits per day

LAWS OF KENYA DEPARTMENT

At NCLR, the task of law revision is executed by the Laws of Kenya Department (LoK) whose major mandate is comprehensive revision and updating of the of Laws of Kenya both in electronic and print form.

FUNCTIONS.

1.Copy reading/proof reading of the Laws of Kenya;

2.Preparing the annual supplement to the Laws of Kenya;

3.Updating of Laws of Kenya online using a content management system (Back-end process);

4.Uploading of Bills and Legal Notices;

5.Repository for the index of all amendments of Laws of Kenya.

PROGRESS OF REVISION SINCE THE DELEGATION

NCLR has so far revised over 500 statutes since the delegation of the power of law revision including some specialized editions

Some of the Specialized Revised Volumes include:

Grey Book

Family and Gender Law

Commercial Law vol. 1 and 11

Land Law

Public Finance and administration volume

PREVIOUS MODE OF AMENDMENT OF STATUTES: ‘CUT AND PASTE’

‘CUT AND PASTE’ cont…

Universal AccessibilityThe Constitution of Kenya is now very clear that we have two languages; English and Kiswahili. At Article 7, it states

7. (1) The national language of the Republic is Kiswahili.

(2) The official languages of the Republic are Kiswahili and English.

(3) The State shall––

(a)promote and protect the diversity of language of the people of Kenya; and

(b) promote the development and use of indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities. .

Universal AccessibilityIn Kenya, in most cases, public legal information has been produced through hard copy and when produced in soft copy, it has been deployed in formats that may not be accessible to persons with disability and more so visual disability

The Laws of Kenya in particular have been published exclusively in the English language.

No laws have been produced in Braille language for persons with visual impairment to have access

NCLR is partnering with the Rockefeller foundation to implement an initiative called PRIDE (Poverty Reduction through Information and Digital Employment) which aims to create jobs through what is called impact sourcing

Universal Accessibility

Further, Kenyans have a basic right under the Constitution to access public information. At Article 35, the Constitution states;

(1)Every citizen has the right of access to— (a)information held by the State; and

(b) information held by another person and required for the exercise or protection of any right or fundamental freedom.

(2) Every person has the right to the correction or deletion of untrue or misleading information that affects the person.

(3) The State shall publish and publicise any important information affecting the nation.

Universal AccessibilityImpact Sourcing refers to the employment of individuals with limited opportunity for sustainable employment as principal workers in Business Process Outsourcing (BPO) centers to provide high-quality, information-based services to domestic and international public and private-sector clients.NCLR has already received a grant from Rockefeller as a test case for business models in government on job creation through impact sourcing to benefit socially disadvantaged groups

The grant will facilitate the translation of laws of Kenya from English to Kiswahili and convert it to formats that are accessible to persons with disabilities; Braille and audio

So far, we have converted the Persons with disabilities Act 2003to Braille and the Constitution to Audio

REVISION OF LAWS: The Processes

BASIC RULES OF REVISION (COPY READING) OF LAWS OF KENYA

The Guidelines on law revision are spelt out in the Revision of Laws Act, Cap. 1 (see Section 8).

Copy reading is one of the key stages in the law revision process.

Copy reading involves the physical comparison of text between one copy and another. In our case, comparison relates to checking for conformity between the government copy (Act of Parliament) and the Extracted Copy of our online laws.

Copy reading was previously done in pairs with one person reading out aloud and distinctively the content of the government copy; word for word, while the other one checks for any corrections.

With the workload on amendments having drastically reduced, they read individually the copies with minimal amendments

CHECKLIST IN COPY READING

Content: Spellings, placing of diagrams, etc

Amendments: Insertion of amendments is critical and has to be up to date. One has to manually go through the hard copy editions of amendments to see if the statute they are working on is up to date.Obvious errors are rectified and a matrix drawn up for onward transmission to the legislative drafting department for their information

Format: NCLR has an in house format of laws that mirrors the government copies. However, there is a policy shift with regard to the marginal notes (side notes). We are moving towards section headings to ensure that the laws are universally accessible even to persons with disabilities especially visual impairment

Headers must correspond with the Act name and year of revision

Cover page must reflect the Act inside

Revised edition on the cover page must show year of last revision

ACCEPTABLE CHANGES DURING LAW REVISION

Re-arrangement of ‘Arrangement of Sections’ part;

Insertion of new sections when an Act is amended;

Correction of obvious grammatical errors;

Renumbering of sub-sections

.

AmendmentsTo amend includes repealing, revoking, rescinding, canceling, replacing, adding to or varying, and the doing of any two or more of those things simultaneously or in the same written law or instrument.

Amendments to the principal part of an Act may come in form of ‘Amendment Acts’, Miscellaneous Amendment Acts, Finance Acts, other substantive Acts or even Corrigendum.

The copy read Act must reflect all the amendments to date, otherwise it will not be up to date and will be misleading to the ‐ ‐reader. All the historical amendments must be indicated.

AmendmentsRepeal is to do away with completely

Repeal is for sections, whole acts and parts or chapters

Delete---is for sections annd new insertions or subsections or sub paragraphs, or provisos or for a single regulation

Revoke is for subsidiary legislation only; you revoke the entire body of the subsidiary legislation

Insertion is for the any new additions

AMENDMENTS BY REPEAL

AMENDMENTS BY DELETION

Deleting a section

AMENDMENTS BY REPLACING/SUBSTITUTIN

GAmendment by substitution

THE TRACKED CHANGES IN A STATUTE DURING COPY READING

LAY OUT OF STATUTES USING INDESIGN SOFT WARE

Placing of marginal

notes in the statutes from

the word document

THE FINSIHED PRODUCT AFTER CONSOLIDATION OF AMENDMENTS

The Laws of Kenya department partners with the the office of the Attorney General Legislative Drafting Department through the Chief Parliamentary Counsel to have statutes certified after revising a volume of for final quality checks

All revised statutes must be certified before publication. Incase of any corrections/suggestions at this stage, they must be considered before publication;

Once revision of any volume is complete, NCLR may outsource printing of the volume or pass it to Government press for printing.

Certification and Publication

LAWS OF KENYA MATERIALS AT THE GOVERNMENT PRESS

PRINTED WAITING FOR CUTTING

A FINISHED VOLUME: THE GREY BOOK VOLUME

ONLINE UPDATING OF THE LAWS OF KENYA: THE BACKEND

PROCESS

To amend the Constitution,

click on it

One may type the no.

of the Act they want to

work on inside the

box

ONLINE UPDATING OF THE LAWS OF KENYA: THE BACKEND

PROCESS

Click ‘update record’

Type a new section

BACKEND OUTPUT

The new section appears

SEARCHING THE LAWS OF KENYA PAGE

Searching using the Act Name e.g. National Council for Law Reporting Act;

Search using the Act no. or Chapter no. e.g. 11 of 1994;

One can also scroll the whole Table of Contents;

One may use a Key Word; e.g. Law Reporting.

SEARCHING USING ACT NAME

Type the name of the Act inside the box and click

search

SEARCHING BY ACT/CHAPTER NO.

Enter the No. of the Act inside the box and click search

SEARCHING BYKEYWORD

The Different Categories/Branches of

Law

SEARCHING USING TABLE OF CONTENTS

One can choose from the categories and expand the categories by clicking on the +

sign on the side

THANK YOU

BILLS, LEGAL NOTICES AND ACTS OF PARLIAMENT UPLOADING

WORK FLOW

BILLS TRACKER PAGE

LEGAL NOTICES PAGE

A LEGAL NOTICE AS IT APPEARS

LAWS OF KENYA LAWS OF KENYA PRINTPRINT VOLUMES VOLUMES

LAWS OF KENYA LAWS OF KENYA CDCDVOLUMESVOLUMES

LAWS OF KENYA LAWS OF KENYA CDCDVOLUMES cont…VOLUMES cont…

OPPORTUNITIES

Delegation of authority for law revision by the Attorney General;

Donor goodwill to support law revision;

Capacity building from exchange of knowledge between countries with institutionalized law revision mechanisms;

Existing gap in law revision in Kenya (do away with cut and paste process).

CHALLENGES

Financial limitations;

Lack of retention of qualified staff;

Human resource capacity: understaffing;

Limited working facilities: office space, computers.

THANK YOU