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Reforming Tribunals In Kenya - Concept Paper by Joash Dache

Reform of Tribunals Examples

Reform of Tribunals in the United Kingdom

We have already noted the work of the Franks Committee in the United Kingdom in the quest to reform Tribunals. As a result of the report of the Committee, various reforms were initiated to improve operations of Tribunals in UK.

Chief among these reforms was the enactment of the Tribunals and Inquiries Act, 1958. The Act created the Council on Tribunals as an advisory body with oversight over specified Tribunals and Inquiries. It was made up of lawyers and non lawyers, the latter being in the majority to ensure that “the guiding principles shall be the ordinary man’s sense of justice and fair play, freed so far as possible from legal technicality” . Its powers did not extend to appointing members of Tribunals but it was empowered to keep under review the constitution and working of the specified Tribunals and to report on any other question touching on Tribunals referred to it. It could make general recommendations on the membership of those Tribunals and more importantly, it had to be consulted before new procedural rules or regulations were made for the Tribunals. This was a big step towards standardization of Tribunals. Its annual reports are tabled in Parliament.

Another important change brought by the Act was the requirement that members of specified Tribunals be appointed by their ministries only from panels nominated by the Lord Chancellor and could not be terminated without the consent of the Lord Chancellor, who was constituted one of the Ministers responsible under the Act. The specified Tribunals became obligated to give reasons for their decisions if requested. In addition, the right of appeal to the High Court on points of law was guaranteed to the specified Tribunals and a power to bring other Tribunals under the Act by ministerial order was granted.

It has been noted that these reforms did go a long way in standardizing the work of tribunals, they not go as far as the Franks Committee had recommended. They did not for example allow appeals on questions of fact and merit, but restricted the right only to questions of law .

More recent steps have been taken in the United Kingdom to further reform Tribunals. In May 2000 the Lord Chancellor appointed a committee under Sir Andrew Leggatt inter alia to review the delivery of justice through Tribunals to ensure that they are fair, timely, proportionate and effective arrangements for handling disputes and further that performance standards of tribunals are coherent, consistent, public and with effective measures for monitoring and enforcing standards.

The Committee reported in March 2001 and made recommendations which sought to attain four main objectives. The first was to make the different tribunals into one Tribunal System, the second to render tribunals independent of their sponsoring ministries and departments through administration by one Tribunal Service, third to enhance the training of members of tribunals and lastly to enable unrepresented users to participate effectively in the Tribunal proceedings .

Reform of Tribunals in New Zealand

Similar recommendations have been made in New Zealand for Reform of Tribunals. In its March 2004 Report entitled Delivering Justice for All, The New Zealand Law Commission made recommendations for a unified tribunal framework entailing the rationalisation and integration of tribunals and their membership and processes.

The unified structure would have judicial leadership by being headed by a judge as President, with two legally qualified deputies. The system is expected to build up a core of experienced tribunal members who could sit in the various constituent tribunals, with others possessing particular skills and expertise in specific areas. It recommended further that “future Tribunals should be established only in accordance with principle and in conformity with fixed guidelines” and save in exceptional cases new ones should be integrated in the unified structure.

To ensure independence, all Tribunals in the unified structure would be administered by the Ministry of Justice. Appeals from the unified tribunals would to go to a panel made up the president or Deputy President, a member of the Tribunal in question and a member from another Tribunal. The appeal would be on matters of fact and/or law and a further appeal only by leave of the High court on a mater of law only.

Reform of Tribunals in Western Australia

Western Australia, a state within the Commonwealth of Australia has also in recent years made far-reaching proposals for reform its Tribunal System . The basic reform proposal is the establishment of a general administrative Tribunal to be known as the State Administrative Tribunal.

In March 2001 the Attorney General for Western Australia appointed a Task force to examine and develop a model of a civil and administrative tribunal for consideration by the Government. The Task Force was specifically requested to consider the structure of the tribunal, its scope or jurisdiction and its relationship with the Courts and other tribunals separate from it.

The Task Force submitted its report on the establishment of a State Administrative Tribunal in May 2002. It recommended among other things the establishment of a new State Administrative Tribunal to exercise original jurisdiction of many of the existing decision making boards and tribunals and to assume the administrative review functions of the various tribunals, ministerial and public officials and some of the courts. The Task Force enumerated various advantages of a generalised tribunal which would address structural deficiencies in the existing ad hoc system. These included:

  1. access by citizens to a single one-stop tribunal instead of a variety of existing tribunals
  2. an easily identifiable point of contact for all citizens on review of administrative decisions instead of the existing plethora of boards, tribunals, courts etc.
  3. easily available information to citizens on making of applications, hearings and reasons for decisions
  4. development of a more flexible and user friendly system
  5. availability of a wide range of experts and experienced members serving in various panels
  6. more effective and systematic recruitment and training of members of the Tribunal
  7. original decision making and administrative review decision making would be conducted on a more cost effective basis
  8. administrative review functions would be easily assigned to an existing and experienced tribunal instead of creating an ad hoc review body.

On the structure of the Tribunal, the Task Force recommended senior judicial leadership, with the President being a Supreme Court Judge and two Deputy Presidents being District Court judges. Other members were to have legal and other specified qualifications or experience so that the tribunal would have a membership of persons with judicial experience, general legal experience and special qualifications and experience relevant to the various areas of jurisdiction of the tribunal.

On powers, practice and procedure of the Tribunal it was recommended that the Tribunal should be guided by the need to advance the interests of the people, the right of the people to know the reasons for decisions, speedy and correct resolution of matters and the duty to act fairly in all proceedings. Specifically it was recommended that the Tribunal:

  1. should be bound by the rules of natural justice and procedural fairness
  2. should be unfettered by rules of evidence, practice and procedure applicable to courts
  3. should conduct and determine proceedings with little formality and technicalities and with promptness
  4. should regulate its own procedure.

Arising from these recommendations of the Task Force, the State Administrative Tribunal Bill 2003 was published seeking to implement the above recommendations.

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