Legal Writing and Drafting- Legislative Drafting

 

WEEK I

 

INTRODUCTION TO LEGISLATIVE DRAFTING

 

(Reading guide)

 

 

1.      General Introduction to Legislative Drafting

 

·        Role of Legislation

 

2.      Legislative Instruments as a source of law

 

·        Section 3 of the Judicature Act (Cap 8)

 

-note the supremacy of written law and its hierarchy (doctrine of ultravires)

 

·        Section 2 of the Interpretation and General Provisions Act (Cap 2)

-definition of written law, definition of subsidiary legislation)

 

3.      Enactment processes for legislative instruments

 

·        Section 47 of the Constitution(process for constitution)

 

·        Section 46-56  of the Constitution(process for Acts of Parliament)

 

·        Section 27 of Cap 2 (process for subsidiary legislation)

 

THE ROLE OF LEGISLATION

 

The role of legislation is to stipulate rights and obligations. It lays down powers, privileges and duties. It states what can and cannot be done.

The rule of law promotes good governance and stimulates development for without law, there is chaos.

High quality legislation is enduring and does not need frequent amendment. It gives effect to government policy and reduces the fiscal risks to the Government. It avoids the courts having to decide on what it means and reduces compliance costs for uses by limiting the scope for avoidance.

High quality legislation should be drafted in accordance with the following general principles.

 

1.      Legislation should be drafted in clear, simple and precise language. Clarity determines ease of understanding and removes ambiguity. Simplicity requires that unnecessary elements are excluded but should not result in legislation failing to have its intended effect. Precision ensures there is certainty in the mind of the reader.

 

2.      Legislation should take into account the end-user of the law to whom the law is to apply and the person responsible for applying the law. Members of Parliament should understand the statutes that Parliament enacts and the Executive should understand the statutory provisions it approves. End users range from the population at large to specialists in specific fields, each should expect that the legislation uses language they can understand. Those implementing the law may range from public servants to scientists and judges. The language of the Act should account for this, where the law includes technical requirements, they must be understood by the professionals who implement them.

 

3.      Acts should be concise and the content should be as uniform as possible. A good legislative style should express key ideas succinctly. The language of the Act should be consistent .A basic law should not contain detailed provisions; these should be included in a Schedule or in subsidiary legislation. Acts should be consistent with other legislation and should not overlap or conflict with other legislation in a given field.

 

4.      The legislative sentence should be simple. Each section should contain a simple provision. Long sentences should be avoided. The sentence may be split into sub divisions that follow the progression of the reasoning, since a compact block of text is hard for the eye to follow and the mind to absorb.

 

5.      The terminology used in a particular legislation should be consistent internally and with other laws, especially in the same field. Identical concepts should be expressed in the same terms as far as possible without departing from the meaning in ordinary legal or technical language. Formal inconsistency requires that the Act does not contain inherent contradictions between any f its provisions. Defined terms must be used in a uniform manner. Definitions only apply to the particular Act in question.

 

6.      Legislation should use gender-neutral language; gender specific words should be avoided. If however the substance of the legislative sentence applies only to one gender, words that identify that gender should be used.

 

7.      When legislation is expressed in different official languages, the different versions should be identical in structure and substantive meaning. Each version of the text should be in correct idiomatic meaning. The structure of the legislative sentence should be the same in each language.

 

8.      There should be good organisation of material.

 

·        The material should be arranged in logical order

 

·        General provisions should be followed by specific provisions and exceptions

 

·        Provisions that relate to the same subject matter should be grouped together.

 

·        Provisions should be arranged in temporal sequence

 

·        Provisions that are significant should come before provisions of lesser significance.

 

·        Sections should be limited in the number of subsections they contain and as a general rule should not have more than six subsections.

 

·        The Act should be divided into groups of sections under headings

 

·        Sections should be numbered.

 

THE ENACTMENT PROCESS

General procedure for the enactment of substantive legislation

The process for the enactment of an Act of Parliament begins with a request for policy approval from the Cabinet for the proposed legislation by the Ministry concerned. The request must be in the form of a Cabinet Memorandum setting out the following:

·        the purpose of the memorandum

·        the background for the legislation

·        issues for consideration by Cabinet

·        inter-departmental or Ministerial consultations that have been held with bodies or agencies of relevance.

·        financial, considerations supported by a statement that the Ministry of 
Finance has been consulted

·        employment considerations, if any

·        whether or not there is existing legislation

·        whether amendment or new legislation is required, and

·         the recommended action to be taken by Cabinet.

The cabinet Memorandum must be presented by the sponsoring minister to Cabinet under cover of a letter to the Secretary to the Cabinet signed by the
concerned.

After consideration of the memorandum, Cabinet approval is communicated in a letter signed by the Secretary to the Cabinet to the sponsoring Minister and copied to the Attorney-General. This letter gives direction for the preparation of the legislation concerned. It is useful if a copy of the Cabinet memorandum is attached the Cabinet approval to the Attorney-General because the explanatory memorandum that goes with each Bill is prepared by the drafter on the basis of  the cabinet  memorandum for policy approval.

The significance of the Cabinet approval is that it authorizes the sponsoring Minister through the schedule officer to issue drafting instructions to the legislative Drafting Division of the Attorney-General’s Department.

The drafting instructions should follow the contents of the Cabinet memorandum and should include the following:

·        objectives intended  to be achieved by the Bill

·        reports on the matter including any relevant legal opinions

·        references to existing legislation

·        indication of any consequential amendments, transitional or savings provisions required

·        prospective commencement date if required, and

·         the name of the schedule officer in the Ministry, Department or Agency who is to liaise with the Legislative Drafting Division of the Attorney- General’s Department.

The draft Bill will be prepared by the Legislative Drafting Division in close collaboration with the sponsoring Ministry through the schedule officer. After consultation between the Legislative Drafting Division and the sponsoring Ministry, the Bill is finalized. Upon finalization, the draft Bill is submitted t the sponsoring Ministry with an Explanatory Memorandum attached.

The draft Bill with the memorandum unsigned is then submitted by The
Minister to Cabinet to seek approval for the Bill to be laid before Parliament. The Secretary to the Cabinet communicates the approval of Cabinet to the Attorney- General and the sponsoring Ministry. After that, arrangements are made by the Legislative Drafting Division for the printing and publication of the Bill in the Gazette for the statutory fourteen day period as generally stipulated in the Constitution.

The Bill is then laid in Parliament by the sponsoring Minister and goes through the Parliamentary process of passage into an Act of Parliament. It is assented to by the President and comes into force after it has been published in the Gazette in   accordance with the provisions in the Constitution.

Where the draft Bill is sponsored by an agency or department which does not fall under a Ministry, the Attorney-General takes responsibility to submit the draft Bill to Cabinet seek approval for the Bill to be laid before Parliament.

The procedure for amendment of an Act of Parliament is similar to that for fresh legislation, it begins with the sponsoring Ministry obtaining approval from cabinet for the policy of the amendment and continues in the same as the enactment of new legislation.

Where it is determined and certified by a Committee of Parliament that
Bill is of an urgent nature, that Bill may be introduced without publication. A Bill may be laid in Parliament after it has been published in the Gazette but before the statutory fourteen day period has elapsed if Parliament considers the matter to be urgent. This often applies to financial legislation.

Procedure for the enactment of subsidiary legislation

Most subsidiary legislation, Orders, Rules or Regulations are procedural in nature and often do not require prior Cabinet approval before the policy proposal are submitted for drafting to the Attorney-General’s Department. However, instruments that have financial implications for the State or are by the nature of  their contents likely to indicate a policy shift or drastic change in an existing situation require Cabinet approval and must therefore be submitted for prior Cabinet approval   before drafting begins.

After the proposals for the subsidiary legislation have been receive from the sponsors, the draft Order, Rule or Regulation will be prepared by the Legislative Drafting Division in collaboration with the sponsoring Ministry through the schedule officer.

In accordance with the provisions in. the Constitution, the draft order.  Rule or Regulation must be published in the Gazette on the day it is laid before parliament and comes into force on the expiration of twenty-one  sitting days unless the parliament  annuls the Order, Rule or Regulation by the votes of hot less than two- third of  the members of Parliament before the expiration of the twenty-one days. The procedure for the amendment of subsidiary legislation is the same as the making of fresh subsidiary legislation.

There is no specific time frame for the completion of making or lending subsidiary legislation apart from the statutory requirements for publication.  It all depends on Parliamentary agenda since the time in Parliament is calculated in sitting days and excludes week-ends and recess periods. The Attorney General Department has to be notified to know when the subsidiary legislation comes into force for the commissioners, to date to be printed on the subsidiary legislation.

Finally, the modality for the publication in the Gazette of executive instruments is that the document to be gazetted must be sent to the Attorney- General with a request for the publication. After vetting, the Notice, Order or Instrument will be sent to the Government Printer under cover of a letter by the Legislative Drafting Division for publication in the Gazette after the payment of the prescribed fee by the sponsor. This is the procedure that generally applies in Commonwealth jurisdiction.

WEEK 2

   THE ROLE OF THE LEGISLATIVE DRAFTER.

Legislative drafting is not just a technical exercise. A drafter is the advisor to the Government in its legislative capacity. The drafter must work in close collaboration with the instructing department and ensure that, so far as possible, legislation is based on sound legal principles, gives effect to the intended policy and is clear and understandable as practicable.

Legislative drafters provide specialist form of advice. The relationship between a drafter and instructing department is similar to that between a solicitor and a client. The drafter must provide advice and drafting services in a professional and impartial manner. It is not the drafter’s role to push through whatever an instructing department wants at all costs. On occasions, drafters have to speak the unpalatable truth or expose the weakness in a legislative scheme. This does not always make them popular with ministers or policy makers but it is a necessary part of their job.

The drafter has a wider responsibility to ensure that, in the public interest, legislation as finally enacted by parliament or made by the Executive

·        Complies with fundamental legal principles including constitutionalism

 

·        Complies with guidelines

 

·        Is workable and effective

 

·        Is clear and unambiguous

 

·        Will withstand challenge or adverse criticism in the courts and in law schools

 

·        Does not impose unnecessary or unreasonable compliance costs

A drafter must thus have a GOOD basic knowledge of the law of the jurisdiction in which he is operating and must be a person who shows the necessary interest in legislative drafting.

 

The scope of the legal problems which will come in the way of the drafter is almost unlimited and the drafter will experience the fascination in the use of words and the correct choice of words for the solution of any particular problem. The work of the drafter must be related to practical goal of preparing laws which can be readily understood and which will carry out the policies of the Government in a form acceptable to Parliament.

 

A meticulous attention to detail and a clear systematic approach to problems are vital. An analytical mind is also essential to good drafting. A drafter must keep up to date with events n his or her country and events in the world generally. The drafter should be in a position to appreciate the political, economic and social policies that will undoubtedly be the background to the drafted legislation.

 

The drafter must be prepared to be a team player both within the legislative Drafting Division and with other public officers.

 

The drafter must be concerned with the practical and effective implementation of the law. This involves a clear understanding of the role of the drafter in the enactment process and the policy objectives and the administrative and other requirements necessary to include in the legislation to implement the policy.

 

A drafter must always be prepared to accept criticism with tolerance and good humour and by so doing, quickly gain a reputation for reasonableness. This is important as on those occasions when the drafter does feel strongly on some matter arising in any drafting instructions or in the wording of a prepared draft. Any views expressed in a reasonable manner will be more readily accepted by those concerned.

 

A drafter is required to undertake extensive legal and factual research beyond the drafting instructions.

 

Typically, the drafter’s work involves-

·        Receiving and reviewing instructions from the instructing department

 

·        Raising issues with the instructing department that arise out of the instructions or seeking clarifications

 

·        Producing drafts that are clearly drafted and that give effect to the policy intent

 

·        Devising solutions to problems that arise during the drafting process

 

·        Assisting in resolving conflicts between departments over the policy or provisions in a draft

 

·        In the case of bills, drafting amendments for select committees incorporating changes made during the parliamentary process and ensuring that the assent copies of enactments passed by parliament are completely accurate

 

·        In the case of statutory regulations, certifying to the responsible minister that the regulations are in order.

The drafter should work constructively with those providing the instructions, seek clarifications where necessary, endeavour to devise solutions to problems that arise during the drafting process and insist in resolving differences of opinion between departments.

 

At the same time, however, if a drafter considers that the policy or some aspect of it does not comply with legal principle, or is or may be unworkable, or that the instructions are to draft something that will not be understood, the drafter must raise the matter with the instructing department and if necessary with the responsible minister and the attorney General.

 

The drafter must attempt to reduce the legislative purpose or intention to simple terms in order to be able to express it simply. As far as possible, everyday language should be used. Where necessary, clarity of expression should take precedence over style. Drafting which is grammatically correct and respects the rules of punctuation makes it easier to understand the text as well as its translation into other languages.

 

Drafters cannot however control everything. They cannot control judges and they cannot control the future. Tying the hands of judges leads to overwriting, archaic expression and headaches for the drafter and the reader. The drafter should accept that interpretation of statutes can produce surprises.

 

WEEK 3

KEY REFERENCE LAWS

The key reference laws for a drafter are the Constitution and the Interpretation Act. A drafter must be very conversant with these two enactments in order to foster the Rule of Law and consistency of language.

The Constitution

The Constitution is the fundamental of the land. A Constitution-

·        Contains the principles upon which the Government is established.

 

·        Regulates the powers of the various authorities that it establishes

 

·        Determines the manner in which the powers it confers are to be confined or exercised

 

·        Confers rights and powers  and privileges to individuals and authorities

 

·        Specifies the limits to which powers are confined in order to protect individual rights and prevent abusive exercise of arbitrary powers

 

A constitution is the cornerstone of the Rule of law. It provides for the Legislature, the Executive and the Judiciary.

 

The Interpretation Act

The Interpretation Act provides the basic rules about how the courts should interpret the provisions of an Act of Parliament or subsidiary legislation made pursuant thereto. It defines certain words and expressions and removes the necessity to repeat the meaning in an Act.

 

Apart from definitions and rules of construction, an Interpretation Act also includes substantive rules of law such as provisions related to the effect of repeal of an Act.

An Interpretation Act therefore clarifies the rules of construction, avoids repetition and promotes consistency of language.

It must be noted however that the meanings in an Interpretation Act can be ousted by a particular definition or provision in an Act.

 

 

OTHER KEY REFERENCE LAWS

•        Other Reference Laws that are important for a legislative drafter are-

–       Public Procurement and Disposal Act.2005 (No 3 of 2005)

–       Government Financial Management Act,2004 (No 5 of 2004)

–       Public Audit Act,2003 (No 12 of 2003)

–       Revision of Laws Act (Cap.2 Laws of Kenya)

–       Standing Orders of the National Assembly

•        These laws are relevant to the drafter because of their cross-cutting nature and supremacy while dealing with the subject matter of the respective statutes.

 

HOMEWORK

The Class is required to familiarize themselves with the provisions of these Statutes (why are they important to a drafter?) together with those of –

–       the Constitution of Kenya; and

–       the Interpretation and General Provisions Act (Cap 2 Laws of Kenya)

 

 

 

WEEK 4

PRIORITIZING DRAFTING PROPOSALS.

 

A.     Drafting Instructions.

 

What are drafting Instructions?

 

·        These are data provided to the legislative drafters by the policy makers as a means of assisting the drafters to draft effective legislation within the parameters detailed by the policy makers of the government.

 

·        They can be brief or detailed but they must provide the drafter with the necessary background information for the comprehension of all aspects of the political decision to proceed with legislation and the choice of the proposed legal means for the achievement of government policy.

 

Four Principles of Drafting Instructions

 

·        Instructions should contain sufficient background information to enable the drafter to see in perspective and in context the facts and problems which the legislative proposal is intended to meet;

 

·        The principle objects of the legislation should be clearly and fully stated so that the drafter is in no doubt as to the spirit and intent of the proposed legislation;

 

·        The means by which the principal’s objects are to be achieved should be set out: how will the legislation work in practice? What is the Machinery envisaged? What powers and duties are considered? Etc;

 

·        The instructions should refer to all known legal implications.

 

Purpose of Drafting Instructions

 

The main purpose of drafting instructions is to determine and limit what the draft Bill is to contain.

 

It also serves other related purposes:

 

·        acts as a key mechanism for Cabinet’s control over the legislative process by giving Ministers a more detailed view of how the policy they are approving will be reflected in legislation;

·        provides an opportunity for other departments to appreciate how, if at all, the proposals will affect them;

 

·        provides an opportunity for the sponsoring department to think through its proposals;

 

·        guides drafters who eventually have to draft the Bill;

 

·        serves as a benchmark for assessing whether the draft bill does what Cabinet authorized, or whether additional authority must be sought for particular provisions of the Bill.

 

Content of Drafting Instructions

 

·        General factual background information on the current legislative solutions to the social problem which the new legislation aims to address and the justification for their characterisation as efficient;

 

·        Legislative priority: indicate the proposal’s priority as given by the government;

 

·        Possible legislative solution as drawn from other jurisdictions, their impact and possibly comments on transferability;

 

·        Procedural background information on policy authority (cabinet approval for major policy initiatives etc;

 

·        Aims of proposed legislation;

 

·        Comments on the possible scenarios for the achievement of these aims, such as possible legislative solutions, any existing impact analyses on the proposed law, thoughts of the policy maker on necessary proposed administrative arrangements to be used and their cost/risk analyses

 

·        Time scale for the required legislative solution: gradual or measured entry into force, retroactive or retrospective effect, transitional arrangements;

 

·        Legal opinions of the Department or other legal officers;

 

·        Detailed instructions on specific politically sensitive issues, ethical issues, any detail which may assist the drafters in their compilation of effective solutions;

 

·        Affected provisions and other consequential amendments: other legislation which will be affected or amended need to be mentioned.

 

·        Administrative or judicial review considerations: is any decision of an administrative character reviewable and by whom?

 

·        Consultations with other departments where necessary;

 

·        Commencement issues, namely the date of entry to force;

 

·        Practical details (name of instructing agency, contact details etc).

 

 

Quality of Legislative Instructions

 

·        Should set out the requirements in plain language;

 

·        Give as fully as possible the purpose and background of the proposed law and should state what existing legislation affects the subject;

 

·        They must not take the form of a layman’s draft Bill; ( this point is contentious. In some jurisdictions, the drafting office may require a layman’s draft).

 

·        Where a proposed legislation is a based on an existing legislation whether internal or external, this fact must be stated. There may even be need to attach the existing legislation.

 

Style of Drafting Instructions

 

·        Clear narrative form;

 

·        Avoid technical language; where it is necessary, explain it.

 

·        Be systematic;

 

Ø  Use consistent language for the same concept;

 

Ø  Present instructions in logical sequence;

 

Ø  Present amendment and repeal of existing legislation in clear way, perhaps in tabular form;

 

Ø  Do not present drafting instructions in the form of draft legislation.

 

 

How Do Drafting Instructions Serve the Drafter?

 

·        They reflect Government policy;

 

·        They provide alternative scenarios for policy solutions;

 

·        They provide background research on current and proposed policy;

 

·        They may raise legal ethics issues;

 

·        They provide the political and, the legal framework for the legislation to be drafted.

 

B. Designing a legislative solution

 

What is it?

 

l  This is the compilation of a legislative plan, also known as legislative scheme or legislative research report. It involves a brief or long report on the basic elements of the drafter’s response to the drafting instructions.

 

Advantages of Designing a Legislative Solution

 

l  Ensures that the end result of legislation is what is expected from the policy makers; the design act as a Bill’s quality control.

 

l  Helps identify all elements of the proposed legislation thus preventing the disruption of drafting;

 

l  A complete design identifies elements of the proposed draft and allows the drafter to analyse each one separately and in turn thus encouraging logical structures and complete solutions;

l  Ensure that the drafter examines all relevant evidence and facts and that these facts are classified logically;

 

l  Designing a legislative solution assists the drafter to estimate a realistic time-scale;

 

l  It facilitates delegation within the drafting team and management of the drafting office.

Elements of Analysis of Legislative Proposal

 

(a)    Analysis of the existing law;

 

(b)    Evaluation of the constitutional context of the legislative solution;

 

(c)    Evaluation of the legal context of the legislative solution;

 

(d)    Evaluation of the parliamentary context of the legislative solution;

 

(e)    Analysis of the necessity of legislation;

 

(f)     Analysis of potential danger areas;

 

(g)    Analysis of practical implications of the legislative proposal including an analysis of matters for which secondary legislation is likely to be needed to implement the draft law

 

 

(a)        Analysis of Existing Law

 

For purpose of analysis, all legislation must be considered as an amending law. This rule ensures that drafters focus on the legal implications of the proposed legislation exercising acute alertness with regards to the analysis of existing law. This analysis must reply to the following questions:

 

l  What must be amended?

 

l  What must be repealed and how? Express or implied repeals?

 

l  What must be preserved?

 

l  What must be added?

 

 

(b)   Evaluation of the constitutional context of the legislative solution;

 

The legislative solution must be in compliance with the constitution. It is the duty of the drafter to ensure that the legislative solution offered to policy makers complies with whichever constitutional provisions. Where constitutional issues arise, the drafter may:

 

l  Persuade the policy makers that the proposal be dropped for unconstitutionality;

l  Seek an amendment to the constitution where feasible;

 

l  Proceed with the proposals risking legal challenge.

 

l  Find an alternative means whereby the proposals can be implemented;

 

l  Or simply decline to proceed.

 

 

(c)    Evaluation of the legal context of the legislative solution;

 

The drafter needs to ensure that the new provisions fall into place within the legal system. This is better achieved when they are externally consistent even from the linguistic point of view

 

(d)   Analysis of potential danger areas;

 

 

l  Competence issues

 

l  Proposals affecting personal rights;

 

l  Proposals affecting private property rights;

 

l  Proposals to introduce powers to the government without necessary parliamentary authority;

 

l  Proposals for retrospective legislation

 

l  Proposals for extra-territorial legislation

 

l  Proposals which are not compliant with international law;

 

l  Proposals with doubtful territorial or constitutional competence;

l  Proposals which are unnecessarily beauracratic;

 

l  Proposals affecting interests of other governmental departments or public

 

 

(e)        Analysis of the necessity of legislation as a solution to the identified social need

 

Legislation must be viewed as a solution of last resort. It is necessary for the drafter to assess whether the identified social need can be addressed by reference to self regulation, agreements between employers and employees or other innovative solutions.

 

Methods of problem-solving in the analysis of the legislative solution

 

l  End-means analysis (the drafter invents as many routes to the objectives of the proposed legislative text as possible and selects the most socially cost-effective solution; as a result of the drafter’s response to the social need is limited to solution conforming with the values of those powers.

 

l  Incrementalism ( it accepts that the drafter cannot ensure knowledge of all possible situations, solutions and implications and proposes that the drafter moves gradually and with extreme caution; it is useful only in cases where there is serious gap)

 

l  Reason informed by experience: developing new ways of doing things by reflecting on the facts presented by experience.

 

Problem-solving in the Design of the legislative solution

 

l  Identify the difficulty in the drafting instructions;

 

l  Identify the reasons behind the problematic behaviours which cause the social need which the proposed legislative text aims to address;

 

l  Design solutions which address the problematic behaviours behind the social need which the proposed legislative text aims to address

 

l  Identify the monitoring and implementation mechanisms which will ensure that after enactment the proposed legislative solution will be controlled for effectiveness and adjusted if and when necessary.

 

The principles of a Good Design; Introducing the Structure of an Act

 

l  Objectives of the law should be stated at the beginning, since they set the context in which the provisions that follow must be read;

 

l  Definitions of terms used in the law should be set out before those terms are used (the meaning of any term in the law should be evident from the first occasion on which the term is used.

 

l  Provisions describing application of the law should come before provisions that apply to those cases;

 

l  Primary provisions should come before subsidiary provisions that develop, expand or depend upon them.

 

l  Provisions of universal application should come before those that deal with specific or particular cases only;

 

l  Provisions creating bodies should come before those that regulate their activities and the exercise of their functions

 

l  Provisions creating rights, duties, powers or privileges should come before those that state how things are to be done;

 

l  Provisions that will be frequently referred to should come before those that will not be used regularly;

 

l  Permanent provisions should come before those that will operate for a limited period of time;

 

l  Provisions affecting a series of events or actions should be set out in the chronological order in which those events or actions usually occur;

 

l  Provisions setting out powers to make secondary legislation should be dealt with after substantive provisions they are to implement;

 

l  Related provisions should be grouped together in the same place in the law, and distinct groups or related provisions should form separate parts of the Bill;

 

l  Parts should be ordered according to the same principles that govern individual provisions

 

 

EXERCISE

 

Prepare the design for a legislative solution to the drafting instructions for the legislation to make sale of human organs an extraterritorial criminal offence.

 

(Note: this assignment will be discussed in class)

 

 

 

GENERAL READING

 

 (Extract From “Legislative Drafting Manual for African Commonwealth Jurisdictions” A Drafting manual by the Commonwealth Secretariat)

 

1.      DRAFTING INSTRUCTIONS AND POLICY

 

Acts of Parliament are based on policy. An objective leads to policy. The objective may be political, social or economic. The initiator of policy may be.

 

·        the Executive

·        a political party

·        a pressure group

·        departmental or agency officials

·        Commission of Enquiry

·        Parliamentary Committee

·        public or  private organization, and an

·        international organization

A legislative gap analysis determines researchers and lobbyists attached to think tanks as well as other concerned persons who may engage in public debate through the media to generate policy. Most jurisdictions recognize that non-governmental organization  have a legitimate policy role to play to help to guide Government policy especially  in social field  to protect the interest of marginalized groups such as the disabled. As the development and implementation of new legislation involve considerable cost, the establishment of a subverted agency for example, other means of achieving the policy objective should be identified.

 

The options to achieve a policy objective may include:

 

·        no government intervention, reliance rather on administrative methods

 

·        maintenance of the current situation because legislation may not  lead to correction

 

·        use of existing law and the preparation of subsidiary legislation

 

·        increased enforcement

 

·        information and education campaigns

 

·        economic instruments such as taxes and subsidies

·        voluntary standards or codes of practice to achieve acceptable practice

 

·        self regulation driven by peer pressure and common interest, and

 

·        co-regulation shared., between the Government and an industry body for certain persons such as a group of professionals, the Bar Association or Law Society for example.

 

Inter-governmental consultation on policy

Consultation with other Government departments and agencies is the next step and a very important part of the overall process. It reflects the collective responsibility of Cabinet. It is an efficient use of time and resources. It can avoid piecemeal reform. It ensures that possible problems are identified early in the development of a proposal. It may reveal to the initiating department that there are possible conflicts or inconsistencies with legislation being prepared by another department. In this way it can help to produce a positive and constructive approach towards the proposal on the part of those consulted. This can be important in the search for solutions to any problems that subsequently emerge. Conversely, a failure to consult appropriately with other relevant departments and agencies can lead to substantial loss of time and unnecessary work to resolve problems and disagreements that could have been avoided at an early stage before the initiating department became committed to a particular approach.

Another advantage of early consultation with other departments and agencies  is that it can help to identify the groups and organizations outside the Government that should be consulted about the proposal.

 

Consultation with stakeholders

A key aim of systematic public consultation is to listen to a wide range of interest, to obtain more and better information from affected parties and be responsive to what is heard This allows for better information and more efficient decision-making.

Consolation permits and promotes the two-way flow of ideas and information among all sectors of society and between them and the Government. Effective consultation is based on principles of openness, transparency, integrity and mutual respect. It requires that:

 

·        key information be provided to those being consulted

·        those being consulted are in a position to influence policy formulation

·        sufficient time is allowed for a considered response to be comp -. by those being consulted

·        the agency undertaking tile consultation has the capability to interpret and use the information derived correctly, and

·        the information gained is considered in good faith, that is, the advice obtained cannot be discounted without good reason and must be sought prior to final decisions being taken.

Consultative processes include public discussion, workshop, discussion papers and the use of the print and mass media.

A well designed and implemented consultation programme can contribute to higher quality legislation, identification of more effective alternative, lower administration costs, better compliance and faster regulatory responses conditions. Just as important, consultation can improve the credibility of Government action, win the support of groups involved in the io, and increase acceptance by those affected.

Effective consultation is difficult to carry out and can be costly it and resources. Less well organized, diffuse, or smaller interests can easily be left out. Information received from stakeholders may be one-sided, at our quality or  irrelevant to the issues at stake. Consultation can also occur to ensure to all affected groups influence key decisions such as problem definition and whether legislation is needed.

Invariably, costs of consultation are incurred in the short -term while the benefits emerge in the long-term.

The role of the drafter in policy formulation

Technically, the drafter is not concerned with policy formulation in an official capacity. However, as a person who perhaps is the most conversant with the statute book. in the Attorney-General’s Department, the drafter may b .o identify legislative gaps. It then becomes incumbent on the drafter to brim to comings to the attention of the Attorney-General as the principal advisor to the Government.

 

 

2. CONTENT OF DRAFTING INSTRUCTIONS

Once Cabinet approval has been given for the legislative framework of a
policy, drafting instructions  can be issued to the Attorney-General by the sponsoring
Minister or the public agency  concerned such as one established by the Constitution.

The instructions should set out:

 

·        sufficient background information to enable the drafter appreciate the
jute facts and problems the Bill is to deal with

·        the objectives of the Bill, with accurate information on the necessary
details, including those of a technical nature

·        the consultations which have taken place on the proposed legislation,
either within or outside the Government and the advice given at the
consultations

·        references to relevant court decisions on the matters at issue
time

·        references to the reports of any Commission or other body that has
left considered the matter

·        the administrative provisions needed to implement the Bill and the
allow manner in which the Bill is to be enforced

·        the extent to which existing laws may have to be amended or repealed
cid whether transitional provisions may be needed to deal with matters
which have arisen before the Bill comes into operation

·        the procedure and manner of appeals against Ministerial decisions
where, as a matter of policy, those appeals are considered desirable

·         any special provisions on commencement of the Bill, and

·         the contact particulars of the schedule officer responsible for the Bill.

 

Often times, instructions are incomplete and further consultation with the sponsors may be required. In these consultations the drafter should try and visualize the situation which will arise when the law is implemented and ensure that the implications of the Act have been fully appreciated by the stakeholders. The drafter
should raise administrative concerns and be satisfied that the proposed legislation can be adequately enforced and will bring the desired result.

The drafter should raise the following matters of legal significance:

 

·        retrospective legislation

 

·        the extra-territorial effect, if any, to be given to a Bill

 

·        whether the Bill is to bind the State

 

·        savings provisions for persons already engaged in a trade or profession  which is to be regulated by legislation for the first time, and,

 

·        Special provisions concerning evidence and the onus of proof.

The drafter should study all the relevant laws including amendments and subsidiary legislation and also be aware of case law which may have a bearing on  the  subject matter. Legislation from other jurisdictions may also be useful for reference.

The responsibilities of the schedule officer who is the instructor, apart from preparing the drafting instructions are to:

 

·        explain the instructions

·        respond to issues raised by the drafter

·        read the drafts prepared by the drafter carefully

·        check them for consistency

·        test the draft against scenarios to make sure it is robust and will achieve its objective

·        consider, from the standpoint of the user, whether the draft is clear  and understandable

·        Provide comments on the draft promptly

 

 

WEEK 5

 

THE STRUCTURE OF A BILL

 

After the drafting instructions have been fully understood, the next step is the legislative scheme which is the plan for the Act following the practice of the jurisdiction. The drafter puts in logical sequence the provisions of the law. This can be done by listing the head notes and may reveal gaps in the instructions.

The broad framework is as follows:

Preliminary provisions

·        Arrangement of sections

·        Long Title

·        Preamble

·        Enacting formula

·        Short Title

·        *Commencement

·        *interpretation provisions

·        *Application

In some jurisdictions the asterisked provisions come at the end of the Act.

 

Principal provisions

·        Substantive provisions

·        Administrative provisions

 

Miscellaneous provisions

·        Miscellaneous and supplementary provisions include financial matters, offences, power to make regulations, search, seizure and arrest.

 

Final provisions

·        Savings

·        Transitional provisions

·        Repeals and consequential amendments

·        Schedules

 

1.      PRELIMINARY PROVISIONS

 

(a)    Arrangement of sections

The arrangement of sections is on a separate page immediate before the Act. The wording is the same as that used for the head notes or marginal notes in the Act and serves as a useful index to the Act. It does not form part of the act and is not the subject of debate in Parliament. After enactment, a further checking is needed to ensure that the arrangement of sections is an accurate reflection of the action its final form and that account has been taken of any amendments which have been made in the course of enactment.

 

(b)   Arrangement of Parts

 A Bill should only be divided into Parts when each Part standard alone to form the subject of another Act, otherwise headings should be used provisions

 (c) Head notes or marginal note

Each section is given a head note or marginal note and this provides a guide to the contents of the section, it must be short and accurate and no attempts should, be made to set out a summary of the whole contents of the section. The appropriate head note or marginal note is often difficult. This occurs when the section is over-loaded and is best solved by spreading the contents of the section over two or more sections which can be given the appropriate head note marginal note.

(d) Long title

This is the starting point of the Act and indicates the general purpose an intention of the legislation. It is a useful aid to ascertain the scope of the new and should be wide enough to embrace the whole content of the Bill. Lon with general words such as “related matters”, “connected purposes the place of preambles.

 

(e) Preamble

The preamble is an aid to construction to explain the reasons for an enactment. They are’ seldom used nowadays and are limited to Acts dealing with constitutional matters or the application of international conventions.

(f) Enacting formula

This is generally provided for in the Constitution, the Interpretation Act or other legislation dealing with this and other matters concerned with the procedure of Parliament.

(g) Short title

This is a convenient means of identifying and citing an Act. It should be informative and, brief. The year of enactment is added to the short title. Where the scope of the legislation is restricted to a sector, a general topic may be followed by of reference to the particular topic in brackets. An example is the Road Traffic (Towing of Vehicles) Act, 1999.

Where the purpose is to amend another Act, this can be captured in brackets. An example is the Road Traffic (Amendment) Act, 1995.

 

Where there is more than one amending Act in a year, the short title will be numbered Road Traffic (Amendment) (No.2) Act 1999.

(h) Commencement

Commencement is’ the day the Act comes into force and is to be distinguished from the passage of a Bill by Parliament. It may take four forms:

 

·        The date of entry into force may be in the Constitution or Interpretation Act  and may apply on the assent of the Head of State, or the date of en publication in the Gazette

 

·        Where the legislation specifies a particular date which may even be before passage of the Bill by Parliament in which case a legal  fiction- is created

 

·        Where the legislation empowers an individual to fix the date

 

·        Conditional based on occurrence of an event.

 

 

 

(h)   Interpretation

 

An Act often contains an interpretation section which sets out definitions of various words and expressions used on more than one occasion in the Act. This section assists in conveying to the reader the intended purpose of the legislation in as simple, unambiguous and consistent a manner as possible and also to avoid needless repetition. This section is sometimes placed at the beginning of the Act immediately after the short title to inform the reader if any words are to be given special meaning but in some jurisdictions it is placed at the end of the Act where a definition is intended only to affect one Part or one section, it should be placed in that Part or section. The drafter will find it better to leave the detailed drafting of this section until the draft of the Act, has been completed making a note o any words and expressions which can usefully be included in the interpretation section as the drafting progresses.

 

Definitions are used a by drafter to avoid ambiguity and to avoid tedious repetition.

 

This is done by using the word “means” or “includes”.

 

There are three main groups of definitions

 

·        Delimiting

·        Extending

·        Narrowing

 

 

(i)              Delimiting definitions

 

Do not alter the definitions conventional meaning but provide a degree of definiteness. These are useful for vague and ambiguous words were separates meaning. They set the limits of meaning without altering the normal meaning.

 

Example

 

“Contract” means contract executed on January 1^st.

 

“Advertisement” means publication through a medium operating with commercial interest.

 

Without  deviating  from normal meaning ,delimiting  definitions  may be used  to  relate  a word of general  significance  to the subject  matter of  the  legislation.

 

 

 

Example

“private practice” in relation to a nurse or midwife, means practice a nurse or midwife outside Government employment.

 

“application to own use” in relation to goods, means applying on goods for personal use  and use by a  relative.

 

Delimiting definitions can be used to deal with difficulties of classification.

 

 Example-

 

“employment agent” means a person who for a fee, assists another personnel  and employment.

 

(ii)             Extending definitions

 

An extending definition broadens the scope of the ordinary or common use of the term.

 

Example

 

“vegetable” includes cabbage, carrots  and onions;

 

“constable” includes a police  officer or  any rank;

 

“animal” includes a bird;

 

“branch” includes the head office of  a business;

 

“child” includes a child born out of wedlock

 

(iii)             Narrowing  definitions

 

A definition of this type stipulates a meaning which is narrower that common usage of the term.

 

Example

 

“aircraft” means military aircraft

 

“animals” means  cattle and  horses;

 

“milk” does not  include condensed milk;

 

“fruit” means oranges, tangerines, lemons, limes and bananas;

 

“accounting period’ means one  calendar month;

 

“authorized officer” means the officer appointed under section 10; and

 

“deposition” means summary of  evidence

 

Apart from these main groups, definitions may also be used to

·        Particulars

·        Settle doubts

·        Abbreviate

 

Particularize definitions restrict the word to a particular thing without changing its normal meaning.

 

 

Example

“African” mean citizens of Gambia, Ghana of Nigeria

 

Settle doubts definitions remove doubts as to whether a word means a particular thing.

 

Example

“African” includes a person one of whose parents is a citizen of Gambia, Ghana and the other parent a person of European descent.

 

 They can also be used to give meaning to new words

 

Example

“highjack” means to take over a means of conveyance by force;

 

 “gay person” means a person ma same sex relationship;

 

Abbreviation definitions avoid repetition,

 

Example 

“Movement” means the Movement for the Restoration of Democracy

 

(iv)            Definition dangers

 

It is possible for a statute to contain a definition which creates more problems than it solves

 

Not every technical, scientific or similar term of art needs to be defined if the meaning is clearly understood such as “decentralization” for example.

It is necessary for the drafter to check and check again if the meaning of the definition is constant throughout the draft. The stipulated definition should not be forgotten and at the drafting stage, a defined word can be distinguished by different coloured ink or italics.

 

Vagueness in definitions which may lead to the court interpreting the drafter
definition should be avoided. A drafter should not rely on other definitions in another
enactment in a definition. A definition should be self-contained.

Example
”Legal practitioner” means a person admitted as a legal practitioner under the Legal Practitioner’s At 1970 (Act 560). It is generally better to repeat a definition full so that the draft is self-contained.

A drafter should be aware that language is dynamic and should u
contemporary terminology.

 

Example

Lunatic asylum, mental hospital psychiatric hospital

 

The meaning of family has changed overtime as seen in decisions in the US and Americans courts where a family can now mean a same ex couple. The draft should be mindful of this.

 

A drafter should avoid over stipulation which can lead to absurdity for example a definition that “table” includes a “chair” It is better to define ‘‘furniture” to include tables or chairs.

A drafter should not interpret terms included in the Interpretation Act which the master definition reference point for legislation. A drafter should not use Latin expressions where English phrases will do.

 

(v)             Placement of definitions

Definitions are placed either at the beginning or the end of the Bill depending on the practice in the jurisdiction.

Introductory words of an interpretation section in an Act take this form
“In this Act unless the context otherwise requires…….”

 

The word to be defined should be indicated in inverted commas. Unless the word ordinarily begins with a capital letter, a small letter should be used immediately after the stipulating verb “means” or “includes”.

Definitions may be used negatively

 

Example
”court” does not include court-martial

 

Semi-colons should be used between each definition and the conjunction “and” should be placed between the penultimate definition and the final definition. The drafter should arrange definitions in alphabetical order. It is preferable place all definitions in one place rather than under the headings of an Act.

 

(vi)            Principles of definitions

A definition should not include substantive matter.

 

Example

“managing director” means the person appointed to be managing director by the Minister.

This cannot empower the Minister to make the appointment. The power to appoint should be included in the substantive text. The definition can be re-phrased:

“managing director” means the managing director appointed by the Minister under section 7.

Any reference in a definition to legislation should be precise and specific.

 
Example
Do not write: “appointed member” means a member of the Council appointed by the President under this Act.

 

Write: “appointed member” means a member of the Council appointed by the President under paragraph (2) (f) of the Fourth Schedule.

 

A word that is not used in an enactment should not be defined in it for obvious reasons. Sometimes definitions are no removed from the draft after the draft has been changed.

A definition should not be defined in an Act if it is in the Interpretation Act except if different stipulation is required.

The drafter should not use definitions in referential legislation although there are exceptions.

Example
Veterinary surgeon” means a person for the time being licensed to practice veterinary surgeon under the Veterinary Surgeons Act 1949.
If necessary, the definition should be repeated rather than reference being made to another Act.

The drafter should not make specific mention that the definition of a word applies iko the grammatical variations.

Example
A declaration that sale means sells and that public notice means public notified

 
A definition should be complete in itself. Where a word or an expression is defined, it should never be used in a different sense in the same Act. Different words or expression should not be used to express the same thing in the same Act.

A drafter should not use “means” and ‘includes” in the same” reference as this is contradictory: one restricts and the other extends, but there are exceptions to this rule. The two may be used in a compound definition but the including clause should not go beyond the means clause.

 

Example
“nurse” means a nurse for the sick and includes a medical nurse, surgical nurse and psychiatric nurse. When formulating a definition, it is necessary for the drafter to refer to a dictionary to clarify the ordinary meaning of the word.

2. APPLICATION

 

This provision gives an indication of the application of the Act to remove uncertainties and may be used in the following circumstances:

 

·        where the Act is to extend to circumstances arising before or pending  at the date of commencement for example, in matters related to taxation or pensions

 

·        the geographical area, where only part of the country is to be affected.

 

·         the particular class of persons or things to be affected

 

·        whether the Act or part of it is to be given extra-territorial effect and

 

·        whether the Act is to bind the State

 

 

3. PRINCIPAL PROVISIONS - SUBSTANTIVE PROVISIONS

These sections set out the basic objects and main principles of the Act.

 

4. ADMINISTRATIVE PROVISIONS

These sections provide for administrative and practical problems to implement the Act.

 

5. MISCELLANEOUS PROVISIONS

These sections cover matters arising out of the main object of the Act. These include offences and penalties and the enabling section for subsidiary legislation.

 

6. SAVINGS, TRANSITIONAL PROVISIONS AND REPEALS

 In practice, savings and transitional provisions are dealt with together. These matters become relevant where the law is changed either by the enactment of a new that Act or by the repeal or amendment of an existing Act.

Savings preserve an existing law or existing rights which would otherwise disappear when the law is changed. A savings provision can be inserted to show that a new Act is not intended to derogate from or impliedly repeal another existing Act. Where an Act is repealed, subsidiary legislation made under that Act ceases to have effect and it may therefore be necessary to insert a savings provision in order to preserve subsidiary legislation until it can be replaced by subsidiary legislation made under the new Act.

Transitional provisions are inserted in order to apply the provisions of a new Act to situations already in existence when the Act comes into operation. These provisions retain the validity Of an existing appointment or licence by providing that it shall be given the same effect as if made or issued under the new Act, Other examples occur where:

 

·        a person, already practicing a trade or profession, has to be registered under the new Act within a specified time

 

·        a new body corporate is to take the place of an existing body and provisions are needed to vest the assets and liabilities of the existing body in the new body, to retain staff and to continued pending actions.

The interpretation Act generally sets out the legal position arising on the repeal of an Act, sometimes the Interpretation Act provides that subsidiary legislation made under the repealed ct and not inconsistent with the new Act, continues in. force as if made and until revoked under the new Act. Where the Interpretation Act does not appear to cover the position adequately, or where the intention of the legislation is not clear, specific savings provisions should be inserted in the Act.

 

Where a repeal of legislation is needed, a specific section to this effect should be inserted. A repeal provision should not be mixed up with other provision and if there are many, it is convenient to insert them in a specific Schedule this purpose. Repeal by implication should be avoided.

7. SCHEDULES

Schedules deal with matters of detail or procedure to make an A. readable and simplify interpretation. They may be used for:

·        repeals of several Acts

·         a number amendments

·        transitional provisions, if they are long or complicated

·        constitutional and procedural matters in relation to a statutory corporation

·         the text of international conventions and agreements

·        rates of taxes, duties or other charges.

·        Forms

·        An agreement intended to convey statutory’ validity.

There should be consistency between an Act and its Schedule and reference should be to First Schedule, Second Schedule and not Schedule 1, Schedule 2.

 

 

WEEK 6

 

THE LEGISLATIVE SENTENCE, LANGUAGE AND SYNTAX

The legislative sentence is the means the drafter uses to translate policy into law. In each sentence there must be:

·        the legal subject — the person to whom the law is to apply

·        the legal action — the law which is to apply, and

·        the circumstances in which the law is to apply.

The legislative sentence is an arrangement of words to express a command or state a prohibition. It confers a power or imposes an obligation. It states:

 

·        how, the manner in which the law is to operate

·        what, the nature of the legal action

·        when, the conditions under which the law is to operate

·        where the circumstances in which the law will operate

·        who, the legal subject, the person given responsibility or on whom is placed an obligation or prohibition

·        why, the policy considerations of the law.

 

A drafter should use:

 

·        short familiar words and phrases

·        short sentences which state only one thing

·        use the same word to express one meaning

·        consistent spelling

·        the standard form language of the drafting office

A drafter should not use:

·        archaic words such as said, same, aforesaid, before- mentioned, herein before- mentioned, whatever, whatsoever, whomsoever, and similar words

·        Latin expressions.

·        More words than necessary

 

Tense
Laws are meant to be of continuing application and should be written in the present tense. This avoids complicated and awkward verb forms. The active voice should be used instead of the passive.

Example

Do not write: The function of the board will be or will include or
shall include.

Write: The function of the board is…………………. or inc1udes

Do not write: A contravention of a provision of this Act shall be an offence

Write: A contravention of a provision of this Act is an offence

Use of the passive voice should be avoided because:

 

·        a sentence in the passive voice does not assign responsibility clearly

·        the passive voice places the receiver of the action before the main person, and

·        passive construction is confusing when used in legislation.

Exceptions where the passive voice may be used are:

 

·        when the person to carry the act is unknown, unimportant or obvious

 

Example
The letters have been dispatched

·        to avoid the use of gender specific language

 

·        to put old or repeated information at the beginning of a sentence new information at the end of the sentence to stand out.

Shall
The drafter should use “shall” to impose a duty or an obligation.

Example
A driver shall provide a licence on demand

“Shall” should not be used to predict the future. Where the intention is to predict future action, the word to use is “will”

A drafter should avoid the use of “shall” to confer a right.

Do not write: You shall receive

Write: You are entitled to

Do not use “shall’ to state a rule of law or how it applies. This creates a false imperative.

Examples
Do not write: A person shall be eligible to apply for………………….

Write: A person is eligible to apply for …………………………

Do no write: A person who commits an offence shall be liable ………………

Write person who commits an offence is liable……………

Do not write: It shall be unlawful,

Write: if is unlawful.

Any
Any’ means one or some. It is often misused in a legislative sentence when one person or thing is being referred to. It can often be replaced by “a”

Each and Every

“Each” refers to two or more in a numerical context where there has been previous identification

Example

There are ten attorneys in the Division

Each is a lawyer often years standing

Every” implies a class

Example
Every attorney is a lawyer

The reference in this example is to each attorney of an identified class lawyers in the Attorney-General’s Department, the reference here is to the number.

                                                        

As there are seldom references to number in legislation, it is generally better
to use “each’ instead of “every”.

 

All
The word ‘all” is a spurious form of emphasis and should not be used,

 

Such and Same

“Such” is misused in legislation and creates ambiguity. It should be substituted with the word “the”, “a” or “that’.

 “Same” is used as a preceding noun or phrase in legal jargon and does not add to a legislative meaning.  It should not be used as it creates ambiguity. The word “it” or ‘them” can be used as a substitute

And/ or

“And” is usually construed conjunctively and connotes togetherness while “or” is construed disjunctively and suggests a choice between two or more options.

A drafter should use “and” to connect two or more phrases, conditions or events, all of which must occur while “or” should be use to connect two or more phrases events, conditions, when only one or more but not all need occur. Never use “and/or”, rather use “A or B or both”.

Example

The register includes;

each person who is seventy years or older,

each person who is permanently physically disabled, and

each person who. has been declared mentally incompetent.

Or this rendition;

The register includes each person who

Is seventy years or older,

Is permanently physically disabled, or

has been declared mentally incompetent.

A, An, The

“A” is used as an indefinite article in legislative drafting to denote the singular, often as part of a general statement. “An” is used before a vowel. “The’ is used as the definite article, It is placed before a noun.

Example

A citizen  shall posses an identity card

The citizen shall possess an identity card before applying for a passport

The identity card must always be carried.

 

Example
An entity that is required to be licensed must submit an application to the Commissioner

 

Deem
Deeming clauses should only be used to create a legal fiction. It may be used to provide for the retroactive operation of an Act.

Example

This Act is deemed to have come into force on the first day of January 2000.

In order to avoid a legalism, “consider” or “thinks” can’ be used instead of “deem’ in situations where a legal fiction is not being created.

Example
A doctor shall be registered to practise medicine if the Registrar considers the doctor to be qualified.

Before and after

 

“Before’ and “after’ exclude the specified day. “After” is better than  “from” because “from” is equivocal.

Example.

After 13th March excludes March 13th.

From 13^th March is debatable although 13th March is probably excluded,.

 

The phrase “on” and ‘after” should be used when the specified day is to be included.
Example

 

The phrase between 1^st January and 1^st March is ambiguous.

After 1st January and before 1sf March is preferable.

Where
The use of the word “where” conveys a description of a factual situation

Example
where dogs are running at large.

 

When

The use of “when” in legislative drafting is to indicate a single or rare concurrence of a contemplated event;

 

Example
When the fee has been paid ……………………………….

The drafter may use “if” to state a condition in a legislative sentence.

 

Which and that.

“Which is non-restrictive, “that” is restrictive. If the insertion of a comma in the phrase does not change the meaning use “which”, otherwise use “that”. A non-restrictive clause is one which can be omitted or placed between brackets without destroying the meaning and is set off by commas.

Example

Section 10 which was amended in 1956 was repealed in 1966.

 

A non — restrictive clause  goes not need to be set-off by commas.

 

Punctuation
Punctuation is used by the drafter to assist the reader of the law to understand the text easily. There are general rules about punctuation as follows:

 

·        Punctuate sparingly and with purpose-Unnecessary punctuation can be very distracting, the drafter should ensure that every punctuation mark must serve a purpose.

 

·        Punctuate for structure and not for sound-A drafter should test every punctuation mark to see whether it assist in explaining the structure of the sentence.

 

·        Be conventional-While most other forms of prose writing admit a measure of individuality legislative drafting does not. The drafter should adhere to the conventional use of punctuation marks.

 

·        Be consistent-Inconsistency is the most common error in the area of punctuation. A haphazard use of punctuation marks, especially the comma can destroy the value of punctuation.

The comma

A comma may be used to separate items in a series of words, phrases or clauses

Example
Livestock means cattle, horses, goats, sheep and pigs.

 

By, until, till

Where action is to be taken by a stated date or until or till a date, action on that day is permitted. It is better to say “not later than” or “before”.

Apostrophes
Apostrophes are used to mark the singular and plural possessive terms.

 

·        to separate long and independent clauses joined by co-ordinating conjunctions such as and, but, for, nor, or and so,

 

·        to separate words or numbers in order to aid communication

Example

In 2005, one hundred chickens were sold.

The colon

A colon is placed after an expression that introduces a series of items.

 

The semi-colon

The function of the semi-colon is to show a relationship between elements of a sentence which a complete break into separate sentence may obscure. The semi-colon is also used to co-ordinate a series of paragraphs, subparagraphs or listed items.

Example
The Commission shall be the co-ordinating agency for the enforcement of:

a)      the Anti- Money Laundering Act, 2003 (Act 102);

b)      the Proceeds of Crime Act, 1995 (Act 103);

c)      the Miscellaneous Offences Act (Act 104); and

d)      any other law or Regulations related to economic and financial crimes.

 

Hyphen
The hyphen should generally only be used when the word’s proper spelling includes d hyphen. The following are exceptions to this rule:

·        Hyphenate if the second element of the word is capitalized or a figure

Example
Anti-Semitic

Pre 1914

They may also be used where reference is being made to important officials, statutory bodies or administrative bodies. The names of private organisations can be capitalized.

A drafter should state a rule or category directly rather than ‘ the rule or category by stating its exceptions.

Example
Do not write: All persons except those eighteen years or older ……

Write: Each person under eighteen years of age ………………

When exceptions are used, the rule or category should be stated first before the exception.

Do not write. Draftaria, Transyivania must upgrade

Write: Each state except Draftaria and Transylvania must upgrade.

The proviso

Phrases with the words “provided that” should be avoided because  they create ambiguity, they can often be removed or substituted by the word “if”,

Example
Do not write: Provided that the fee is paid

Write: if the fee is paid

Split infinitives

A split infinitive is a grammatical construction where a word phrase, usually an adverb or adverbial phrase occurs between the maker “to” -‘ and  bare infinitive form of the verb. In English, an infinitive verb fulfils the function a noun and is formed with ‘to”; for example, to take, to laugh and to be. An example  of a split infinitive is” .... to boldly go

where no man has gone before”.

The infinitive is “to go” and it is split by the adverb “boldly”.

 

Example

The courts intention

Children television

Farmers co-operative association (plural)

 

Positive writing

The drafter should write positively; if an idea can be expressed either positively or negatively, it should be expressed positively.

 

Example

Do not write:  the panel may not consider candidates other than those with second - class upper degrees

 

Write:  the panel will only consider candidate with second – class upper degrees

 

The use of several negatives in one sentence should not be used.  A negative can be expressed in positive form such as:

 

Did not remember                                forgot

Left out                                               omitted

Did not pay attention to                        ignored

 

Capitalization

The drafter should use capital letters sparingly. Capital letters should be used for proper names.

 

Example

Ghana

Lesotho

 

The use of capital letters should be restricted to cased where special attentions is drawn to particular circumstances.

 

Example

Minister may be legislative instrument make regulation.

Example
Do not write: Be sure to promptly attend to the clients...

Write: Be sure to attend promptly to the clients; or be. to attend to the clients promptly

Nouns: singular or plural

The singular includes the plural and the plural in the singular. Use a singular noun instead of a plural noun. This will avoid the problem of whether the rule applied to each member of a class or to the class as a whole.

 

Example

Do not write: The doctor will treat each patient suffering from typhoid fever malaria fever.

Write: The doctor will treat each patient suffering from typhoid fever and each patient suffering from malaria fever.

If the plural must be used in a compound word, the significant word takes the plural as shown below:

Do not write:                                                                 Write:

Attorney-generals:                                             Attorney general

Notary publics                                                    notaries public

Director – generals                                             directors general

 

Abbreviations

The drafter should avoid abbreviations and acronyms.

Example

The acronym should be written in full as non-government organisation
which can be shortened in the definition section to:

“organisation” means a non-governmental organization

An exception is where the acronym has become familiar to the public.

Example

AIDS rather than acquired immune efficiency syndrome

DNA rather than deoxyribonucleic acid

Couplets
Where words have the same effect or the meaning of one word includes
the other, the drafter should not use word pairs.

 

Do not write                                                                                Write:

Order and direct:                                                order or direct

Authorize and direct                                            authorize or direct

Means ad includes                                              means or includes

Each and every                                                  each or every

Null and void                                                                    Null or void

Full and complete                                               full or complete.

Listing
When listing membership of a body, use commas as the sentence is r
continuous. Use a colon at the end of introductory words and semi-colons at the end L
of each paragraph when listing objects and functions in tabular form. After the
penultimate item, use “and” or “or” as appropriate.

Paragraphs
Short paragraphs improve the clarity of a provision. Each paragraph should
deal with a single, topic. Lengthy, complex or technical provisions should be split into
a series of related paragraphs.

Gender — neutral language

The use of gender neutral language is best practice in legislative drafting;
The reflection of male dominance in the legislative sentence should be avoided.
Examples of alternatives and the use of alternate words generally can be
found in Appendix 3. Gender specific pronouns should not be used.

 

Example
Do not write: An employee must wear his identification card

Write: Employees must wear their identification cards

Do not write: He must present his application to

Write: Each application must be presented to

Do not write: The supervisor or his representative must ins. he work done

Write: The supervisor or the representative of the supervisor must inspect the work done.

Do not write: The director shall hold office until his success;: appointed.

Write: The director shall hold office until a successor is appointed.

It is often necessary to repeat words to achieve non-sexist: engage where a

Nominalization is placed with a verb form, for example.

Do not write: a person who has stolen goods in his possess

Write: A person who possesses stolen goods commits a crime.

 

Archaic words

Legalese in archaic words should be avoided as it mystery “heretofore” or other similar words should not be used; a possible word “hereby’ although the phrase “by this Act” can be used as institute.

Expressing numbers

In legislation, numbers should be expressed in words to**** wrong figures can be typed accidentally if figures are used. In Schedules however, figures may be used.

 

Word economy

Verbosity should be avoided and legal language should be as direct as
possible.

Sections and subsections

An Act of Parliament is divided into sections which contain one idea. If the
sentence is long, it should be divided into subsections, when these are read together they should convey the same idea. ‘Sections are numbered in Arabic numbers consecutively and subsections are also numbered consecutively but in brackets.

Where the section subsection is long, it is best to divide it into paragraphs 1 to create a full sentence when read with the introductory words and possible including words. Paragraphs are numbered with lower case letters of the alphabet in bracket.

Further sub-divisions of paragraphs are sub-paragraphs numbered with small L in numbers. The legislative sentences of a Constitution are called articles. The divisions are called clauses. In subsidiary legislation the sentences are referred as to regulations and the sub-divisions as sub-regulations.

 

The family tree of sub-divisions be found in legislation is in Appendix 4.

The numbering in. legislation takes this form:

 

Referential legislation

Where reference s made in one legislation to another, it is important to ensure at the imported legislation fits in. There may be problems with the meaning of words where this has changed due to judicial precedent. In order to avoid the situation where reference is made to another enactment to determine meaning, the provision from the referred text should be repeated.

Uses of precedents

Very few things are novel, the drafter can benefit from information game from the laws of other jurisdictions, more especially with the access information communication technology has provided. This reference should however be handled1 with c. on since the circumstances in each country differ. It may be better to base a draft on precedent within the jurisdiction than to modify foreign legislation carelessly.

 

 

WEEK 7

SUBSIDIARY LEGISLATION

Subsidiary legislation, also referred to as delegated legislation or subordinate legislation, occurs when Parliament gives legislative power to another person, generally Minister to deal with administrative or procedural matters to implement the objectives of an Act.

 

This may be due to pressure on Parliamentary time, the technical character of modern legislation, the need for flexibility and emergency situations.

The subsidiary legislation may be regulations, rules for procedural matters, in the context of a local authority, bye-laws, orders and notices for specific places, person and matters.

 

Under section 3 of the Interpretation and General Provisions Act (Cap 2)-

 
"subsidiary legislation" means, any legislative provision (including a transfer or delegation of powers or duties) made in exercise of a power in that behalf conferred by a written law, by way of by-law, notice, order, proclamation, regulation, rule, rule of court or other instrument;

                                            

The drafter must ensure that the regulations to be made are within the scope of the enabling power.

 

The subsidiary legislation may be considered to be outside the enabling power on the following grounds:

 

·        failure to comply with legal rules that control the making of the subsidiary legislation;

 

·         the subsidiary legislation is not authorized by the empowering provision the subsidiary legislation contains an unlawful sub-delegation;

 

·        the subsidiary legislation is inconsistent with Acts other than the empowering Act;

 

·         the power to make the subsidiary legislation has been exercised for an improper purpose;

 

·         the subsidiary legislation is uncertain in its application;

 

The drafter must ensure that the empowering provision and the general law have been complied with If there are preconditions to be satisfied before the delegated power is exercised, the drafter must check that the consultation between the relevant parties has occurred.

 

Example

The Minister, on the recommendations of the Board, may make regulations:

The empowering provision must be in force before the subsidiary legislation is made.

If the Minister is empowered to make regulations to regulate an activity, this does not permit, the Minister to prohibit the activity.

Regulatory provisions generally list the matters on which regulations can be made and conclude with a general provision or omnibus clause.

Example  

……….and provide for any other matter necessary for the effective -
of the provisions of this Act”….

These general words cover matters incidental or ancillary to what is enacted in the statute itself. They will not support a widening of, or departure from the general ** and purpose of the Act.

 

The drafter should ensure that the person given the delegated power does ** sub-delegate it. An example where the power is given to the Rues of Court committee to make Rules signified under the hand of the chairperson but the Rules are made by the Attorney-General instead.

Before the power to make subsidiary legislation is exercised, the drafter should check that the proposed regulations are not inconsistent wit; any other enactment, particularly the Constitution.

The drafter should ensure that the obligations to be imposed under subsidiary legislation are certain and understandable.

 

Words and expressions in subsidiary legislation have the same meaning as in the substantive legislation and should not be defined again except if the word or expression is to have a different meaning.

Subsidiary legislation is considered differently in Parliament from substantive legislation. The Parliamentary sub-Committee accepts or rejects the subsidiary legislation. Where there is a consensus however, between opposing members of the committee, changes can be made. If the subsidiary legislation is flawed, the sponsoring Minister may withdraw the enactment for review and re-submission.

 

Subsidiary legislation comes into force after it has been laid in Parliament for the requisite number of sitting days after which it will be considered to have come into force by “effluxion of time”.

 

Problems related to subsidiary legislation-

·        there is no effective control by the Executive;

 

·        wide discretion is given to the Minister;

 

·        there is a possibility the subsidiary legislation may extend to matters of policy, and too much power may be given to the Minister;

 

The drafter should consider these potential problems and advise himself or herself he sponsoring Minister accordingly.

 

The Interpretation and General Provisions Act (Cap. 2)

 

Part III if the Interpretation and General Provisions Act (Cap 2) sets out the broad principles governing subsidiary legislation in Kenya.

 

Publication and commencement of subsidiary legislation

27. (1) All subsidiary legislation shall, unless it is otherwise expressly provided in a written law, be published in the Gazette, and shall come into operation on the day of publication, or, if it is enacted either in the subsidiary legislation or in some other written law that the subsidiary legislation shall come into operation on some other day, on that day, subject to annulment where applicable.

(2) Notwithstanding anything in sub-section (1), where a written law contains a power to prescribe forms then, unless it is otherwise expressly provided therein, those forms need not be published in the Gazette.

 

Retrospective operation of subsidiary legislation.

28. Subsidiary legislation may be made to operate retrospectively to any date, not being a date earlier than the commencement of the written law under which the subsidiary legislation is made, but no person shall be made or become liable to any penalty whatsoever in respect of an act committed or of the failure to do anything before the day on which that subsidiary legislation is published in the Gazette.

 

Construction of subsidiary legislation.

29. Where an Act confers power to make subsidiary legislation, expressions used in the subsidiary legislation shall, except where a contrary intention appears, have the same respective meanings as in the Act conferring the power, and a reference in the subsidiary legislation to "the Act" shall mean the Act conferring the power to make the subsidiary legislation.

 

Exercise of powers between publication and commencement of Ac

30.Where an Act is not to come into operation immediately on the publication thereof and confers power to make an appointment, to make subsidiary legislation, to prescribe forms or to do any other thing for the purposes of the Act, the power may, unless a contrary intention appears, be exercised at any time after the publication of the Act, so far as may be necessary or expedient for the purpose of bringing the Act into operation on the day of the commencement thereof, but an instrument made in exercise of that power shall not, unless a contrary intention appears in the Act or the contrary is necessary for bringing the Act into operation, come into operation until the Act comes into operation.

 

General provisions with respect to power to make subsidiary legislation.

31.Where an Act confers power on an authority to make subsidiary legislation, the following provisions shall, unless a contrary intention appears, have effect with reference to the making of the subsidiary legislation—

(a)    when subsidiary legislation purports to be made or issued in exercise of a particular power or powers, it shall be deemed also to be made or issued in exercise of all other powers thereunto enabling;

(b)     no subsidiary legislation shall be inconsistent with the provisions of an Act;

(c)    subsidiary legislation may at any time be amended by the same authority and in the same manner by and in which it was made; but where the authority has been replaced wholly or in part by another authority, the power conferred hereby upon the original authority may be exercised by the replacing authority concerning all matters or things within its jurisdiction as if it were the original authority;

 

(d)    where an Act confers power on an authority to make subsidiary legislation for a general purpose and also for special purposes incidental thereto the enumeration of the special purposes shall not be deemed to derogate from the generality of the powers conferred with reference to the general purpose;

(e)     there may be annexed to the breach of subsidiary legislation a penalty, not exceeding six thousand shillings or such term of imprisonment not exceeding six months, or both, which the authority making the subsidiary legislation may think fit.

References to written laws to include subsidiary legislation thereunder.

32. A reference to a written law in another written law shall include a reference to subsidiary legislation made under the written law to which reference is made.

 

Acts done under subsidiary legislation deemed done under Act which authorizes it.

 

33. An act shall be deemed to be done under an Act or by virtue of the powers conferred by an Act or in pursuance or execution of the powers of or under the authority of an Act, if it is done under or by virtue of or in pursuance of subsidiary legislation made under a power contained in that Act.

 

Rules and regulations to be laid before National Assembly.

34.(1) All rules and regulations made under an Act shall, unless a contrary intention appears in the Act, be laid before the National Assembly without unreasonable delay, and, if a resolution is passed by the Assembly within twenty days on which it next sits after the rule or regulation is laid before it that the rule or regulation be annulled, it shall thenceforth be void, but without prejudice to the validity of anything previously done thereunder, or to the making of any new rule or regulation.

(2) Subsection (1) shall not apply to rules or regulations a draft of which is laid before the National Assembly and is approved by resolution before the making thereof, nor to rules of court.

(3) In this section, "rules" and "regulations" mean respectively those forms of subsidiary legislation which may be cited as rules or regulations, as the case may be.

 

Fees.

35.(1) Where an Act confers power on a person to make subsidiary legislation, and provision may be made by that subsidiary legislation in respect of fees or other charges, the subsidiary legislation may provide for all or any of the following matters—

(a)    specific fees or charges;

 

(b)    maximum or minimum fees or charges;

 

(c)    maximum and minimum fees or charges;

 

(d)    the payment of fees or charges either generally or under specified conditions or in specified circumstances; and

 

(e)     the reduction, waiver or refund, in whole or in part, of any such fees or charges, either upon the happening of a certain event or in the discretion of a specified person.

 

(2) Where a reduction, waiver or refund in whole or in part, of a fee or charge is provided for, the reduction, waiver or refund may be expressed to apply or be applicable either generally or specifically—

 

(a)     in respect of certain matters or transactions or classes of matters or transactions;

 

(b)     in respect of certain documents or classes of documents;

 

(c)     when an event happens or ceases to happen;

 

(d)      in respect of certain persons or classes of persons; or

 

(e)    in respect of a combination of those matters, transactions, documents, events or persons,

and may be expressed to apply or be applicable subject to such conditions as may be specified in the subsidiary legislation or in the discretion of any person specified therein.

 

STRETCHING THE CONCEPT OF SUBSIDIARY LEGISLATION

 UNDER THE CONSTITUTION?

 

1. Acts of Parliament- Legislative power of Parliament.

 

30. The legislative power of the Republic shall vest in the Parliament of Kenya, which shall consist of the President and the National Assembly.

46. (1) Subject to this Constitution, the legislative power of Parliament shall be exercisable by Bills passed by the National Assembly.

(2) When a Bill has been passed by the National Assembly, it shall be presented to the President for his assent.

(3) The President shall, within twenty-one days after the Bill has been presented to him for assent under subsection (2), signify to the Speaker that he assents to the Bill or refuses to assent to the Bill.

(4) Where the President refuses to assent to the Bill he shall, within fourteen days of the refusal, submit a memorandum to the Speaker indicating the specific provisions of the Bill which in his opinion should be reconsidered by the National Assembly including his recommendation for amendments.

(5) The National Assembly shall reconsider a Bill referred to it by the President taking into account the comments of the President and shall either-

(a)    approve the recommendations proposed by the President with or without amendment and resubmit the Bill to the President for assent; or

(b)     refuse to accept the recommendations and approve the Bill in its original form by a resolution in that behalf supported by votes of not less than sixty-five per cent of all the Members of the National Assembly (excluding ex officio members) in which case the President shall assent to the Bill within fourteen days of the passing of the resolution.

(6) A law made by Parliament shall not come into operation until it has been published in the Kenya Gazette, but Parliament may postpone the coming into operation of a law and, subject to section 77, may make laws with retrospective effect.

(7) A law made by Parliament shall be styled an Act of Parliament, and the words of enactment shall be "Enacted by the Parliament of Kenya".

2. Standing Orders-Regulation of procedure in National Assembly.

56. (1) Subject to this Constitution, the National Assembly may—

(a)    make standing orders regulating the procedure of the Assembly (including in particular orders for the orderly conduct of proceedings);

(b)     subject to standing orders made under paragraph (a), establish committees in such manner and for such general or special purposes as it thinks fit, and regulate the procedure of any committee so established.

(2) Subject to this Constitution, the National Assembly may act notwithstanding a vacancy in its membership (including a vacancy not filled when the Assembly first meets after a general election), and the presence or participation of a person not entitled to be present at or to participate in the proceedings of the Assembly shall not invalidate those proceedings.

3. Rules by the Chief Justice

65. (1) Parliament may establish courts subordinate to the High Court and courts-marital, and a court so established shall, subject to this Constitution, have such jurisdiction and powers as may be conferred on it by any law.

(2) The High Court shall have jurisdiction to supervise any civil or criminal proceedings before a subordinate court or court-martial, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of ensuring that justice is duly administered by those courts.

(3) The Chief Justice may make rules with respect to the practice and procedure of the High Court in relation to the jurisdiction and powers conferred on it by subsection (2).

 

WEEK 8

AMENDING LEGISLATION

There are two ways of drafting amendments; the textual direct method or the non-textual method.

Textual amendments

 

These may take three forms

 

(a)    substitute ‘a’ for ‘b’ where one word is being replaced;

(b)     redraft the whole provision stating that where ‘a’ appears put “b”;

(c)    reproduce the whole Act where several amendments are to be made

 

The following may be done in an amending Bill

(a)    delete

(b)     substitute

(c)     repeal

(d)    revoke

(e)    insert

(f)     add

 

“Delete” and “repeal” have similar meanings but the term “repeal” is used with reference to the whole Act.

 

The word “revoke” is used in subsidiary legislation.

 

Where a section is being extensively amended or where a number of previous amendments have been made to it, the drafter should consider whether the meaning of the section can be clarified by the repeal and re-enactment of the whole section. In taking a decision on this point, the drafter must not forget that the reengagement of the section may invite further debate in Parliament on a matter that may be controversial and politically undesirable.

Non-textual amendments

A non-textual amendment does not become part of the amending Act. It stands on its own and amends the text by implication. This type of amending legislation is not commonly used in Commonwealth jurisdictions.

 

Principles of amending legislation.

(a)    The principal (original) and amending legislation must always be constructed to form one coherent whole. The draftsperson must take great care to acquaint himself comprehensively with the law he or she is instructed to amend.

(b)    The Language and Style of the amending Act must be consistent with that of the principal Act; This rule should be adhered to even if the drafter considers the language of the principle act to be archaic.

 

(c)    The original numbering should not be disturbed in an amending enactment. If a new section is to be added it will be 2A after section 2.

 

(d)    The effect of the instructed amendment on other legislation must be studied and all necessary consequential amendments made.

 

 

Study the drafting techniques in the following statutes-

 

(i)     The Constitution of Kenya (Amendment) Act, 2008 as read against the Constitution of Kenya.

 

(ii)    the Constituencies Development Fund (Amendment) Act, 2006 as read against the  Constituencies Development Fund Act, 2003

 

THE EXPLANATORY MEMORANDUM,

 

Each Bill is published with an explanatory memorandum. It provides the summary of the contents of the Bill in prose.

 

The memorandum is expected to state clearly and succinctly as possible the purpose and reasons for the introduction of the Bill, the current legal status and the rationale for the introduction of the Bill in Parliament.

In some jurisdictions the memorandum is placed at the end of the Bill whilst in others, it is placed at the front.

The material for the memorandum is provided by the sponsor of the Bill and the Cabinet memorandum for policy approval is useful for this purpose. It is best for the drafter to prepare the memorandum as he or she will be familiar with the style of preparation in the Drafting Office.

The memorandum does not form part of the Bill but may be used for statutory interpretation.

After the drafter has obtained the necessary approval for a Bill to be laid n Parliament and the Minister sponsoring the Bill has signed the memorandum, the next stage is the printing of the Bill.

Each drafting office should have a focal person responsible: The liaison with the Government printer. It is the responsibility of the drafter to request a printed proof of legislation from the Government printer.

After the proof copy has been received, it must be checked several times, preferably by different persons to detect errors. Successive proofs should be requested until a copy is received without errors.

The conversion of a Bill to an Act involves meticulous checking against the Votes and Proceedings to ensure that the amendments of Parliament have been reflected.

 

It is advisable to adopt a system whereby the “marked up” copy is sent to the Clerk of Parliament for verification before the Government printer is requested to provide a printed proof of the Act.

After a printed proof of the Act without errors has been produced by the Government printer, a select number of copies of the Act are printed on vellum paper for the assent of the President. At this stage the Clerk of Parliaments office liaises with the Office of the President for the assent of the President to be obtained.

The commencement date of the Act is in accordance with the enactment process.