Law Reform and Development Commission: Analytical Essay

Introduction

Due to the society changes the laws are bound to change.[footnoteRef:1] Law reform is a way of updating laws so that they reflect the current values of the society people change and, an example is the gay marriages, back in the years gay marriage way was a punishable penalty in some countries where as today this is now a norm and gay marriage is legalized.[footnoteRef:2] The law reform can simplify the law by making it simpler or eliminate some faults in the law.[footnoteRef:3]The law reform and development commission in Namibia is a legal organization for researching and recommendation for changing of laws in Namibia.[footnoteRef:4] [1: Butt ,P : Nygh P et al,2002.Enyclopaedic Australian legal dictionary. Available at WWW.2.lexrsnexis.com.au:2002] [2: (ibid.).] [3: (ibid.).] [4: 1999.Hubbard,D .Gender and law reform in Namibia]

Establishment of the law reform commission in Namibia

The law reform and development commission act is a government commission established in 1991 and brought into force on the fifteenth of July 1992 in Namibia, which creates reports making recommendations for legal reforms. [footnoteRef:5]It was established to do away with the policies, red lines and other legacies of the apartheid government.[footnoteRef:6] The law was to undo the definitions and divisions of the past.[footnoteRef:7] The required construction of a fair society that called for laws that needed to be responsive to the needs of historically disadvantaged Namibians.[footnoteRef:8] This is how the law reform and development commission came about.[footnoteRef:9] The LRDC was an acknowledgement that any meaningful change and fulfilment of constitutional values and aspirations will have to be addressed through an institutional mechanism for changing laws that cause inequality and division before independence.[footnoteRef:10] The LRDC, however is not a law maker.[footnoteRef:11] The power to make law belongs the national assembly.[footnoteRef:12] [5: 1991. Law Reform and Development Commission Act 29.] [6: 3 November 2017. The Namibian Newspapers, Column 3.] [7: (ibid.).] [8: (ibid.).] [9: (ibid.).] [10: (ibid.).] [11: (ibid.).] [12: (ibid.).]

Composition

According to the Law reform and development commission act 29 of 1991 document

The Commission consist of-

• a) A chairperson appointed by the president after consultation with the Minister[footnoteRef:13] [13: 1991.Law Reform and Development Commission Act 29]
• b) The Ombudsman;[footnoteRef:14] [14: (ibid.).]
• c) One legal practitioner as defined in section 1 of the legal practitioner Act 1995(Act No.15 of 1995),appointed by the consultation with the law society of Namibia established by section 40 of that Act;[footnoteRef:15] [15: 1991. Law Reform and Development Commission Act 29.]
• d) One staff member of the ministry of justice nominated by the Minister and appointed by the President.[footnoteRef:16] [16: (ibid.).]
• e) One person who is in full-time employment in a lecturing capacity at the faculty of law of the University of Namibia ,appointed by the President after consultation with the vice-Chancellor of the University;[footnoteRef:17] [17: (ibid.).]
• f) Not more than three persons appointed by the president after consultation with the Vice-Chancellor of the University.[footnoteRef:18] [18: (ibid.).]

• (A) the commission shall elect one of its members to be the deputy chairperson of the commission.[footnoteRef:19] [19: (ibid.).]
• (b) the deputy chairperson shall exercise all the powers and perform all the and functions conferred or imposed upon the chairperson by or under this act during a vacancy in the office of the chairperson or during any period when the chairperson is absent or is otherwise unable to perform his or her duties as chairperson.[footnoteRef:20] [20: (ibid.).]

The chairperson of the commission:

• (a) Holds office and performs his or her functions under this act in a full time capability and [footnoteRef:21] [21: (ibid.).]
• (b) Shall not hold or be engaged in any other remunerative employment or occupation while serving on the commission.[footnoteRef:22] [22: (ibid.).]

Amongst The Powers and Duties Of The Law Reform Commission According To The Law Reform And Development Commission act

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May invite and receive any suggestion relating to its objects from any person or body and may include such suggestions in programs.[footnoteRef:23] [23: 1991. Law Reform and Development Commission Act]

The commission shall, as far as possible in order of priority, examine the matters appearing on any program as approved or amendedent by the ministers and may for that purpose consult any person or body, whether by submission of study documents prepared by the commission or in any other manner.[footnoteRef:24] [24: (ibid.).]

If after examining any matter the commission is of the opinion that legislation ought to be enacted with regard to the matter, the commission shall prepare draft legislation for that purpose[footnoteRef:25] [25: (ibid.).]

Functions of the law commission

Provide secretarial and functional support to the law reform and development commission (LRDC) who has the mandate to recommend, the repeal of outdated and unnecessary laws.[footnoteRef:26] The consolidation and/or organization of branches of Namibian law.[footnoteRef:27]The enactment of laws that promotes Human Rights.[footnoteRef:28] The harmonization of customary law and common law with statutory law and the constitution provides technical advice and assistance to O/M/A/s on their law reform initiatives and undertake research on all branches of law.[footnoteRef:29] They make the law accessible conduct public and stakeholder’s consultations on law reform projects, prepare reports on recommendations made by the LRDC on reform of the law to the Minister of Justice Submit LRDC activity reports to the National Assembly through the Minister of justice.[footnoteRef:30] [26: Development commission. Available at http://www.moj.gov.na/law-reform] [27: (ibid.).] [28: (ibid.).] [29: (ibid.)] [30: (ibid.).]

Stages of law reform

LRDC initiates the project or the project is referred to the LRDC and it is approved by the Minister of Justice. [footnoteRef:31] The project is then drafted, and then the issue paper is becomes developed[footnoteRef:32] Furthermore, There will be Consultation on the issue paper, and then the working paper will be developed.[footnoteRef:33] There will be Consultation on the working paper and then there will be a proposed Draft Bill, if a draft post will be proposed.[footnoteRef:34] Lastly, there will be drafting of the Final Report with the proposed Draft bill if they will be any Draft bill.[footnoteRef:35] The final report will then be submitted with the attended of the final Draft bill to the Minister of Justice.[footnoteRef:36]The law reform Commission will then wait for a response from the government. [31: 2017. Law Reform and Development Commission. P 11.] [32: (ibid.).] [33: (ibid.).] [34: (ibid.).] [35: (ibid.).] [36: (ibid.).]

Policies that were proposed by the Law Reform And Development Commission

Divorce law reform

The divorce laws in Namibia were strict in terms of getting a divorce ,couples had to find faults in each other to be granted a divorce, there was also cases of when there was a community of property signed between the divorcing couples the one party would be left with nothing because of this agreement signed, the other law concern in divorce was the custody of the children, primary custody was given to the mothers, the Law reform and development commission than adopted a policy that both divorcing couples can agree on the divorce without stating their reason of the failed marriage[footnoteRef:37] In terms of separation of properties and custody of children the court shall decide based on circumstances to fit everyone, the LRDC also proposed the information of divorce cases not be published in newspapers as this is private information.[footnoteRef:38] [37: 2005. Hubbard D. Divorce law reform: A Summary Of The Law Reform And Development Commission Proposals,P4] [38: 2005. Hubbard D. Divorce law reform: A Summary Of The Law Reform And Development Commission Proposals,P14]