INTRODUCTION TO LEGISLATIVE DRAFTING
Legislative drafting is a
component of legal writing. It is the process of converting policy statements/
pronouncements/ declarations into legislative provisions/ statements.
The law follows policy: Who
generates policy? Any person or organization that wants a law generates policy.
The exception is a private
members’ bill [PM1] which
does not have to follow policy.
HISTORY OF LEGISLATIVE DRAFTING
Historically, it is said that
the first drafts were the Mosaic laws, i.e. 10 commandments. The first drafters
were mostly scribes/ people affiliated to religious institutions. Initially,
people who advised kings on legal matters were religious leaders who were very learned. That explains why many laws have religious
leanings. There was the Roman Code, the code of Hammurabi, Sharia Law,
Continental law (Greek), Church of England developed canons borrowed from the
Roman Code, then the Common law.
Common law drafting style is
usually very detailed. It prescribes almost everything. Kenya, being a British
colony adopted the common law drafting style.
With the advent of regional integration,
there’s a merger between the continental drafting style and the common law
drafting style. This is due to the advent of the European Union.
By and large, Kenya uses the
common law drafting style.
ROLE OF THE LEGISLATIVE DRAFTER
1. A drafter
is the principal adviser of the government on legislative matters. A drafter
provides the technical drafting service. The drafter is the one who produces
the document.
2. The
drafter has the responsibility of ensuring that public interest in legislation
is taken care of. This the drafter does by;
a.
Making
sure that the law being drafted complies with the fundamental legal principles
and constitutionalism.
b.
Ensure that he law complies with guidelines, i.e.
the required structure of legislation in a given jurisdiction.
3. Ensure
that the law is workable and effective. This is both in terms of institution
and representation and meets the intended objectives.
4. Ensure
that the law is clear and unambiguous. The language of the law must be easily
understood and the legislative sentences can be easily followed and applied
without issue. E.g. the conflict of the election dates in the constitution.
5. Ensure
that the law withstands challenge and adverse criticism by the court.
6. Ensure
that the law does not impose unnecessary or unreasonable compliance costs.
7. A drafter
must have good basic knowledge of the law of the jurisdiction in which they are
operating.
8. A drafter
must pay meticulous attention to detail and have a clear systematic approach to
problems.
9. A drafter
must have an analytical mind. They must be able to analyze every provision.
10. A drafter
must keep up with events in the jurisdiction. This is because the law comes in
to solve issues.
11. A drafter
must appreciate the political, economic and social policies in their
jurisdiction. This is because the law is supposed to further the ideals of
political, economic and social development.
12. A drafter
must be a team player.
13. A drafter
must be concerned with the practical implementation of the law.
14. A drafter
must be able to accept criticism. I.e. what were you smoking?
KEY REFERENCE LAWS
There are certain laws that form
part and parcel of the drafting instrument. They give the basic
outline/principles that inform drafting in a jurisdiction. These include;
1.
The
Constitution
Article 2
of the Constitution 2010 restates the supremacy of the Constitution.
The
Constitution provides for the structure of governance in the state. The
Constitution regulates power and determines the manner in which the powers
conferred have to be exercised.
It is
therefore imperative for a drafter to take all this into consideration when
their piece of legislation allocates duties, powers and instructions on how to
exercise these powers.
2.
Interpretation
Act Cap 2 of the Laws of Kenya
1.
This gives the basic style and structure of
drafting in this country.
2.
The Act clarifies on the rules of construction.
3.
The Act promotes consistency in language by
defining certain words/ statements that are used time and again.
4.
The Act deals with issues of amendments and
repeal of legislation. It also gives a guideline of what is supposed to be
done.
5.
It provides a guideline on how to draft
subsidiary or delegated legislation.
3.
Public
Procurement and Disposal Act No 3 of 2005
Where you
are drafting a law relating to the procurement or disposal of public assets, it
must conform to this Act. The jurisdiction of this Act cannot be ousted.
4.
Government
Financial Management Act No 5 of 2004
5.
Public
Audit Act No 12 of 2003
This lays
the procedure for auditing public accounts.
6.
Revision
of Laws Act Cap 1
This
deals with the revision of laws to ensure that the statutes are up to date.
This work is done by the AG’s office and the National Council for Law
Reporting.
Cap
numbers are allocated by the Attorney General.
7.
Parliamentary
Standing Orders
They
govern the processes and procedures that bills must go through in parliament.
LEGISLATIVE PROCESS
Article 109 provides that
Parliament shall exercise legislative power through bills passed by parliament
and assented by the President. The word parliament refers to the national
Assembly and the Senate.
Therefore a bill must pass
through both the National Assembly and the Senate before assenting.
A bill is a legislative
proposal. The Constitution requires that every legislative proposal must be
introduced in parliament in the form of a bill.[1]
All bills commence with the
opening statement “A bill for AN ACT of Parliament”. This remains the position
until the bill is enacted.
A bill can originate from either
house, i.e. the national assembly or the senate.
A bill not concerning the county
government will go through the usual procedure. Once it is passed in one house,
the speaker of the house in which it was introduced sends it to the next house.
This must be done in accordance with the standing orders.
Any member or the relevant
committee of any house may introduce a bill. A chairperson of the relevant
committee may also introduce it. The executive and the legislature must work
together.
All
money bills must start their life in the National Assembly and not the
Senate. This is I accordance with Article 114 of the constitution. Money
bill is defined in the Constitution. They are bills with provision
affecting powers of the county governments, relating to election
Bills concerning county
government i.e. their provisions affect the powers, elections or finances of
county government, starts its life at the point of resolution. This is where
the speakers of both houses meet and jointly agree that the bills deal with
county governments. They also have to determine whether the bill is an ordinary
one or a special one.
If it is an ordinary bill, it
can start its life in either house and go through the usual process. If both
houses pass it in the same form, the speaker of the house in which it
originates will refer it to the president.
For special bills concerning
county government, it starts its life in the Senate and is therefore forwarded
to the National Assembly. A veto for amendment must however be supported by 2/3
of the National Assembly. If the veto fails, it must be forwarded in the form
that the Senate passed it for assent.
If the Senate or the National
Assembly amends an ordinary bill and the two houses can’t agree on the
amendments, under Article 113, the bill is referred to a mediation committee
appointed by speakers of both houses. If the committee agrees on the form of
the bill, it is sent back to both houses as is and if both houses accept, it is
then forwarded for assent. If the amendments of the committee are rejected, the
bill faces its natural death.
The president has 14 days after
receiving the bill to return it to parliament for consideration or assent it.
If it is sent back, the house has the option to amend it as per the president’s
proposal. If they reject the changes, by a 2/3s majority they can opt to
forward it again as is and then the president has 7 days to assent it or else
it automatically becomes law. Article 115 of the Constitution.
Initially the bill had to be
cleared by the AG before it’s taken to the President for assent. He forwards it
to the Government printers for publication. Now it’s the Speaker of Parliament
who forwards the Bill to the President.
It’s taken to the clerk of the national Assembly who forwards it to the
Government Printers. In counties, the
governor assents the Bill.
There is the county gazette and
the national gazette .
NB:
anybody can originate a bill but only a member of parliament can present the
bill. The rest of you are just random civilians.
DRAFTING INSTRUCTIONS
The person giving instructions
is not the person drafting.
Drafting instruction refers to
data provided to the legislative drafter by the policy makers as a means of
assisting the drafter to draft effective legislation covering the policy
directions as determined by the policy makers.
The instructions define the
parameters of the content of a proposed legislation and the limit within which
the legislation should operate.
Instructions can be brief or
detailed but they must provide the drafter with necessary background
information to enable the drafter comprehend all aspects of the proposed
legislation.
There are four principles that
govern drafting instructions;
1. The
instructions must contain sufficient background information highlighting the
facts and problems which the proposed legislation is intended to address or
meet;
2. The
instructions must set out clearly the principal objects of the proposed
legislation, highlighting the spirit and intendment of the proposed legislation[PM2] ;
3. The
instructions must set out clearly the means by which the principal objects are
to be achieved;
4. The
instructions must set out all the known legal implications of the proposed bill[PM3] ;
Purpose of drafting instructions
The primary purpose of drafting
instructions is to determine and limit the content of the proposed legislation.
1. They
serve as the primary mechanism for the cabinet to control the legislative process[PM4] .
2. It
provides an opportunity for other government agencies and stakeholders to
appreciate how the proposed legislation will affect them, if at all.
3. To
provide an opportunity for the sponsoring agency to think through the proposals
made.
4. To
eventually guide the drafter in
preparing the draft bill.
5. They
serve as a benchmark for assessing whether the draft bill captures the policy
pronouncement as given by the instructing agency or the cabinet.
NB: Drafters never accept drafting
instructions in oral form.
CONTENT OF DRAFTING INSTRUCTIONS
1. The critical
component is the general factual
background information identifying the problem that the proposed legislation
is supposed to address i.e. how has it arisen, and why is it being proposed.
Empirical data may be necessary to express the magnitude of the problem. This
will justify the enactment of the legislation[PM5] .
2. The
principal objective of the legislation must be clearly and fully stated. He
should know the purpose of the legislation and for the instruction
department/agency to think through the its precise purpose, so that the drafter
clearly understands what it is the legislation intended to achieve.
The
instructions should include an accurate and comprehensive description, in a
straightforward language of how the objectives of the legislation will be
achieved. Important issues of policy and
administration details should be included in the instructions. A good example is who is assigned to make
regulations.
1.
Do they want to form a commission, commission,
service or authority. E.g. why isn’t there an independent Kenya Airport
Commission but Authority?
2.
In the process of drafting, primary legislation
covers the body of the legislation whereas subsidiary legislation covers the
rules to be followed.
3. One must
give possible legislative solution as drawn from other jurisdictions;
comparative analysis. The impact must also be brought out.
4. If the
drafter legislation is to be subject to a consultative process the instructions
should be describe the nature of it and the projected timeframe. There must be
availability of relevant legal opinions, and legal research. Also court
decisions that are relevant or an indication of their availability, and
legislation in other jurisdictions that might provide assistance.
5. The
instructions should mention all statutes that are to be repealed or amended.
The amendment must be express.
6. Need for
express timeframe as to when the law is to be implemented.
NB. Provisions of a Bill are not sections
but are referred to as clauses.
7. The
detailed aims of the proposed legislation; in the instructions, the detailed
aims must be given and supported with examples.
8. Need to
know whether other institutions or departments or agencies are affected by the
proposal. There is need to indicate if there have been consultations and what
were the outcome and note the outstanding issues
9. Comments
on the possible scenarios for the achievement of these aims.
a.
You must undertake a cost-risk analysis[PM6] ;
b.
Impact assessment of each proposed solution;
c.
The time scale for the required solution[PM7] ;
d.
Detailed and specific instructions on sensitive issues[PM8] ;
e.
Identify other legislations that will be affected
by the proposed law, including the specific provisions and the manner in which
they will be affected. This is presented in a tabular form.
f.
Take note of any administrative or judicial
review considerations[PM9] .
g.
Consultations with other department must be
stated in the instructions. This must be supported by reports and letters. This
is especially important if those instructions affect another department.
h.
They must capture practical details, i.e. the
contact person with whom the drafter will be consulting in drafting the bill;
the contact person must also be a person senior enough to make decisions
binding the agency. This should ideally be the PS, the MD or the head of the
legal department.
FORMAT
1.
Proposed Legislation i.e.title (short/long)
2.
Sponsoring department/Ministry e.g. FIDA. To
know whether the sponsoring institution has the mandate to give such
instructions.
3.
Department/Ministry contact officer, name,
phone, fax……
4.
Date of cabinet approval on principle(copy
to be attached)
5.
Main objective of the proposed legislation.
6.
Practical implications of the proposal; will
it increase no. of road accidents.
7.
Unresolved issues resulting from
consultations with other agencies or departments.
8.
Legal advice received. Is it from lawyers,
the AG, attach it.
9.
Level of penalties if any.
10.
Acts, or statutes to be amended or repealed.
Identify specific provisions to be amended. If the amendment is taking away a
specific right give reasons
11.
Transitional or saving provisions, important
where its taking an existing function and what happens to the staff, documents
under it assets and liabilities.
12.
Proposed commencement date
13.
Other department consulted
14.
Other matters (including relevant background
information reports, etc.
15.
Proposed timetable.
STYLE/FORM OF DRAFTING INSTRUCTIONS
1. Instructions
must be drafted in clear narrative form.
2. Avoid
technical language, and where technical terminologies are used, they must be
defined in plain language.
3. Each
statement must have an explanation
4. The instructions
must be presented in a systematic manner;
a.
Taking into account the logical flow
b.
Using consistent language for the same concept
c.
Do not present drafting instructions in the form
of a draft bill, unless specifically requested to do so, i.e. where a qualified
consultant was used.
ETHICAL
IMPLICATIONS FOR DRAFTERS AND DRAFTING INSTRUCTIONS
1. There is
need to ensure good governance and avoid arbitrary decision making. The drafter
is the custodian of the rule of law.
2. Protect
public interest, loyalty to legislative process and legislature. Everyone is
subject to the constitution.
3. Need for
competence in translating polices into effectively implementable legislation.
He law binds everyone.
4. You must
never draft in ways that violate public interest
5. Drafters should
refuse to carry out Ministry/Agency instructions if;
· Instructions
do not uphold the rule of law
· Drafting
the law will violate the constitution
Qsn.
Should a drafter draft a law that will violate personal conviction?
DESIGNING A LEGISLATIVE SOLUTION
This is done by preparing a
legislative plan or scheme; this provides the basic outline of the legislation,
raising issues and possible content of the proposed legislation.
This is like a research paper in
response to the drafting instructions.
The Legislative Plan takes the
following form;
1. Objects: Addressing the aim and
objects of the bill. This will inform the long title of the bill. This guides
the reader to understand the overall purpose of the legislation.
2. Title: usually the instructing
agency provides the title to the bill. However, the title, as developed by the
drafter, must capture the overall objectives of the bill. The short title
therefore will form the first clause in the bill.
3. Substantive issues:If
setting up a body, you must propose the relevant body, the qualifications of
people serving in the body, the procedures, etc. the substantive law must also
be discusses, i.e. the functions of the institution, the powers, etc.
4. Implications of the proposed law:
As you prepare the LP, there are
elements of analysis that you will use;
1. Analysis
of the existing law; is there an existing legislation that affects this bill or
this subject area? If so, how are we to deal with that law[PM10] ?
2. Undertake
and evaluation of the constitutional context of the proposal; the proposed
solutions as given in the drafting instructions must be constitutional. If
constitutional issues arise, then;
a.
The drafter must advise the policy makers to drop
the bill;
b.
Ask them to seek an amendment to the
constitution;
c.
Ask them to find alternative means to implement
their proposals; and if all else fails,
d.
Decline to proceed with the draft.
3. Analysis
of potential danger areas; there are certain standards by which any legislation
if measured;
a.
Competence issues; this is in regard to the functionality
of the instructing agency as well as organization.
b.
Proposals affecting personal rights;
c.
Proposals affecting property rights;
d.
Proposals to introduce powers to the government
without necessary parliamentary authority;
e.
Proposal for retrospective legislation; this is not permissible in criminal matters. in
civil matters it may be permissible but is ill advised.
f.
Proposal for extraterritorial jurisdiction; this
is not permissible.
g.
Proposals which are not compliant with
international law; Constitution Articles 2(5) and (6).
h.
Proposals which are unnecessarily bureaucratic;
these make it difficult for people to enjoy the provisions of the law.
i.
Proposals affecting interests of other government
departments or the public generally; there must be strict proof of consultation
with the stakeholders.
j.
Analyze the necessity of the legislation as the
best solution to the identified social problem.
NB: legislation must be viewed as a last
resort.
TECHNIQUES
1.
END MEANS
ANALYSIS
The
drafter determines the socially cost-effective solution. All possible solutions
are identified and considered. The social need is then identified and solved in
a cost-effective way.
1. Identify
the problems/ social need
2. Identify
all possible solutions.
3. Identify
the most socially cost effective solution
2.
IMPLEMENTALISM
The
drafter designs the solution and thereafter acknowledges that as a human being,
their ability to determine possible future challenges is limited. Therefore the
solution designed is implementalism
3. REASON
INFORMED BY EXPERIENCE
The
drafter designs new solutions but based on previous experiences. Identify past factual experiences and
determine how they were solved. The new solution is then tailor-made to the
situation. Reason must be informed by experience.
Legislative
solution is a compilation of a legislative plan known as legislative research
report
It
involves a brief or longer report on the basic elements of the drafter’s
response to the drafting instructions. It contains some of the critical
provisions that will go to the main draft of the Bill.
Advantages of designing a
legislative solution
1.
The end result of the legislation is what is
expected from the policy makers.
2.
Assist drafter identify all the elements of the
legislation. There is prominence to the central elements of the legislative
solution.
3.
Gives drafter an opportunity to analyze each
element separately and thus in turn
encourage logical structure and complete solutions; thus a design before
drafting begins result to a logical sequence.
4.
By identifying the elements, it gives drafter an
opportunity to examine all relevant evidence and facts and that these facts are
classified logically.
5.
It facilitates delegation and management of the
drafting within the office.
Elements of analysis of legislative
proposals
1.
Analysis
of the existing law
The instructing agency must
disclose the current law. How has it bee implemented, what have courts said,
decision on that law. Rules and regulations on that law.
From the existing law;
· What is
being amended and why
· Interrogate
the qsn on what is to be repealed. Is it the entire statute or specific
provision and if it’s some provisions what is the policy shift. There is the
rule of express repeal i.e specific provisions to be repealed and implied
repeal
· What is being
retained from the existing law?
· What is
being added?
If the
changes are less than a 1/3rd there is no need to redraft a new law
but need for an amendment. There is the statute miscellaneous law for amendment
If the
changes are going to change the policy shift there is need for a repeal and
reenactment of a new law instead.
2.
Necessity
of the legislation
Is the new legislation
necessary? One has to look at the social need and the social problems to
necessitate a new law. Law is the last resolution/resort. They can be addressed
administratively.
3.
Analysis
of potential danger areas.
Competence issues. Proposals
affecting personal issues/right i.e. affecting social benefits, pensions,
access of citizens to activity regulated by statutes, etc.
Proposal affecting private
property rights, e.g. proposals granting powers of access to private property,
search, seizure, detention, forfeiture etc.
Proposals to introduce power to
the government without necessary parliamentary authority (such as proposals to
introduce taxation legislation without specific parliamentary authority.
Legislation of retrospective
nature should not be taken especially in the fields of criminal law if allowed
there is need for good reasons. In civil it is allowed if it is conferring a
benefit. It should not target an individual it should target an office or a
Extra territorial legislation in
principle extraterritorial legislation is a shock to the legal system, however
it may be imposed in the case of transnational social needs, such as for the
regulation of transnational legislation.
Proposals not in compliance with
international law e.g. expropriation of the property of individuals without
compensation.
Proposals of doubtful
territorial constitutional competence.
Proposals which are
unnecessarily bureaucratic e.g. proposals, introducing complicated licensing or
permit system).
Proposals affecting interests of
other government departments or public bodies.
4.
Analysis of the practical implication of the
legislative proposal e.g. secondary
Analysis is not enough, it needs
to be practical. The s need for preference of the specific solution to be
included in the drafting instructions.
The drafter must conduct this
analysis on rder to supplement incomplete instruction and verify complete
instructions.
Practicability refers to the
identififcation of matters for which secondary legislations.
Content
and design
1.
Identification of causes
2.
Preliminary choices
3.
Scope of legislation
4.
History of social problems as a means of
understanding
Conformity
inducing measure. Types of measures to be take e.g. damages.
5.
Description of the proposed solutions and how
they are to work.
6.
Analysis of the effectiveness of the proposed
legislative solution
7.
Analysis of the bill’s probable cost and
benefits.
8.
Identify monitoring and feedback system from the ground if law is
effective or not
9.
Justification of the bill’s implementing
provisions.
Format of the design
1.
Executive summary.
2.
Use sign posts to guide reader
A map of designs logic. Outline
Connectives
Mini introduction and mini
conclusions
Transitional phrases between
sections
3.
Use clear language
4.
Use reference to sources of information.
PRINCIPLES
OF A GOOD LEGISLATIVE DESIGN
1.
The objectives of the law should be stated at the
beginning since they set the context in which the provisions must be read.
2.
Definitions of the terms used in the law should
be set out before those terms are used. The meaning of any terms used should be
evident from the first occasion when the reader encounters the word.
3.
Provisions describing application of the law
should come before provisions that apply to those cases.
4.
Primary provisions should come before subsidiary
provisions that develop, expand or depend on them. Enabling provisions should
come first before any provisions dependent on them.
5.
Provisions of universal application should come
before those that deal with specific or particular cases.
6.
Provisions creating bodies or institutions should
come before those that regulate the activities and the exercise of functions of
the bodies being created.
7.
Provisions creating rights, duties, powers or
privileges should come before those that state how things are to be done.
8.
Provisions that will be frequently referred to
should come before those that will not be used regularly.
9.
Permanent provisions should come before those
that will operate for a limited period of time.
10.
Provisions affecting a series of events or
actions should be set out in the chronological order in which those events or
actions usually occur.
11.
Provisions setting out power to make secondary or
subsidiary legislation should be dealt with after substantive provisions that
they are to implement.
12.
Related provisions should be grouped together in
the same place in the law and distinct groups of related provisions should form
separate parts of the bill.
THE
STRUCTURE OF A BILL
There
are five stages in the drafting process;
1.
The understanding stage: this stage calls upon
the drafter to understand the nature of the instructions given, the sort of
legislation being envisaged, the language envisaged.
2.
The analysis stage: this is where the drafter
analyses the proposal, looks at it vis-Ã -vis the existing law, the potential
danger areas and its practicability.
3.
The design process: the drafter looks at;
a.
Trying to achieve the greatest level of
simplicity that is compatible with the objects of the proposed legislation.
b.
Adherence to the conventional drafting style of
the jurisdiction.
c.
Recognition of the political realities and be
prepared to draft a legislation that will pass through the legislative process
without the objects being watered down.
4.
The composition and development stage:
5.
Scrutiny and testing:
A
bill is a proposed legislation. It must be represented in a particular manner
and a format.
1. Preliminary
provisions
a.
This has the arrangement of clauses (not
sections).
b.
The long title contains the objects of the bill.
c.
Some legislation contains the preamble. This is
not encouraged in normal legislation as it is more fitted to international
legislation.
d.
The enacting formula must be contained and it
acknowledges that the enacting agency has the power to do so.
e.
The short title
f.
Commencement date. Ideally, this should be
combined with the short title.
g.
Interpretation clause, which defines the words
and terms as used in the bill.
h.
Application clause; this is only used where the
law is applicable in a specialized are, otherwise, it is not necessary.
2. Principle
provisions
This contains the substantive
aspects in the legislation. It covers;
a.
The substantive provisions; and
b.
The administrative provisions.
3.
Miscellaneous provisions/ supporting provisions
This provides for miscellaneous
and supplementary provisions, e.g. financial matters, process of accountability,
offences and the relevant penalties. If the offences are already covered under
another law, there is no need to repeat them. It also outlines powers to make
regulations, powers to arrest, search and seize property.
4. Final
provisions
a.
Saving provisions: This deals with savings and
transitions where a law or an existing law is being changed. Saving provisions
are used to preserve or “save” a law, a right, a privilege or an obligation. If
not preserved, these components will be repealed once the new law comes into
operation.
b.
Transitional provisions: these apply to
circumstances which exist at the time when the new legislation comes into
force.
Both savings and transitional provisions are used to
ascertain, clarify or establish between reasonable doubt components that are
being transferred to the new legal regime.
Components
of the law that need to be preserved:
i. Obligations:
If these are not preserved, there remains a vacuum as to who will meet them.
They include tax obligations and statutory obligations.
ii. Compensation
claims: There is a need to preserve these claims so that those making the
claims may continue to do so as though under the old legislation.
iii. Proceedings:
These need to be preserved in order to ensure that they are not time barred in
case there is a need for re-application e.g. under the Civil Procedure Rules.
Proceedings relating to offences should also be preserved, along with the
penalties that go with them. This is in order to avoid injustice to litigants.
iv. Exemptions:
This is in order to avoid criminalizing actions that were previously not
criminal, or creating obligations that were previously not a requirement.
v. Licenses
and permits:
vi. Benefits
and allowances:
vii. Forms:
For applications that are to be made in a prescribed form, the forms should be
saved, pending the development of new forms.
viii.
Appointments: Officers appointed under the
previous legislation must be preserved pending the appointment of new offices.
ix. Employments:
This extends to staff and employment contracts and employees who are appointed
from other agencies. The employees should also be given options in operating
under the new legislation. An office can be saved to serve for the remainder of
the term, or to serve until appointments are made under the new legislation.
Components that need to transit:
i. Licensing
and registration: Activities that were taking place under the previous
legislation must continue under the new legislation pending the development of
new rules.
The provisions to transit include the issuance of first
license, time for application for the license and sanctions for
non-application.
ii. Boards of
commissions
Existing assets and liabilities
of corporate bodies
Ownership of property and title
Existing offices
Pending proceedings
iii. The
continuity of tax: this is in order to ensure continuity and avoid
circumstances where previous payments would have been viewed as unlawful and
subject to refunds.
Example:
Notwithstanding the provisions of this Act,
any passport, travel or other document issued according to the rules, circulars
and procedures in force before the enactment of this Act shall be deemed to
have been issued under this Act.
c.
Repeals[2]
and consequential amendments
The Interpretation Act sets out the implications of the
repeal of an Act. The general rule is that when you repeal an Act, subsidiary
legislation made under the repealed Act and that is not inconsistent with the
new Act continues to be in force.
Those subsidiary legislations will continue being in force
until they are formally revoked by gazette notice.
Where a repeal of legislation is needed, then a specific
section/provision repealing that legislation must be made.
At times only certain provisions of an Act are repealed.
Where this is done, the specific provisions/sections of the Act that are being
repealed must be specifically stated and repealed. There must be express, and
NOT implied or consequential repealing.
Example:
Repeal of Caps.170, 172 and 173.
65. The
Kenya Citizenship Act, the Immigration Act and the Aliens Restriction Act are
hereby repealed.
5.
Schedules
These deal with matters of
detail or procedure and they assist in making the Act reader-friendly. They are
used in the following instances;
a.
To repeal several Acts; in tabular form
b.
To make a number of amendments to different
legislations; in tabular form
c.
To deal with transitional provisions if the
provisions are long and complicated.
d.
Procedural matters in relation to statutory
bodies.
e.
To incorporate texts of international conventions
and agreements.
f.
To provide for rates of taxes, duties and other charges.
E.g. VAT Act
g.
To provide forms.
h.
To attach agreements intended to convey statutory
validity.
Presentation
of Schedules
Schedules
are presented as:
FIRST
SCHEDULE ……………………………………………………………………………… (S.3)[3]
ARRANGEMENT
OF CLAUSES
This
is usually on a separate page, immediately before the Act itself. Usually the
words that appear here are normally the marginal notes in the bill/Act with the
sections.
Once
the bill is passed, a valium copy is prepared for presidential assent. In the
process of preparing this copy, the arrangement of clauses should be reviewed
to ensure it reflects the information in the bill.
Head
notes/ Section heads are used to give part headings while marginal notes give section
headings.
Provisions
dealing with similar matters should be placed in the same parts. This is for
ease of reading and clarity of presentation.
HEAD
NOTES AND MARGINAL NOTES
Marginal
notes
Generally
each section is given a marginal note which gives a guide as to the contents of
the section of the clause in question. The marginal note must be accurate and
is not an attempt to set out a summary of the provisions of the section.
Where
the section appears too long to allow for the generation of a short, accurate
marginal note, break it up into several sections.
The
overall purpose of the marginal note is to give an indication of the contents
of the Act.
They
are not part of the act and are not considered by parliament in debating the
bill.
Each
marginal note is placed opposite the first line of the section.
Marginal references
They
provide the reader with reference to another piece of legislation stated in the
Act. The Cap number of these other acts is stated in the marginal notes.
Example:
Repeal
of The XYZ Act is repealed
Cap
X
THE LONG
TITLE
This
is the proper starting point of the act and indicates the general purpose and
intention of the legislation.
It
should be wide enough to embrace the entire content of the bill.
Long
title is part of the act and is used to interpret the act.
Example:
A Bill
for
AN Act of
Parliament for…and for connected purposes
The
enacting formula
This
is a requirement. It acknowledges the authority of parliament as the sole law
making body in Kenya.
Example:
ENACTED by
Parliament of Kenya as follows –
NB: The
titles are centered and DO NOT have a marginal note.
THE SHORT
TITLE
This
is the title by which the Act is to be known. It must be shorty, catchy and to
the point.
It
is the first clause and reads;
Short
title 1. This Act may be cited as…, (the year of enactment)
We
use the word “may” to give discretion to the AG, where necessary, to change the
title and give the Act a Cap number to eliminate the year of enactment.
This
is the title by which an Act is known. The year in which the Act is enacted is
usually in the short title.
Selecting
the short title
Where
you have two legislations dealing with the same thing, the second which is a
derivative of the first must have the short title variations expressed in
brackets; e.g. Road Traffic Act 2012, and Road Traffic (Motorbike) Act 2012.
When
preparing an amending legislation, the term “amendment” must also appear in
brackets, e.g. Road Traffic (Amendment) Act 2012
Road
Traffic (Amendment) (No. 2) Act 2012[PM11]
COMMENCEMENT
Passing of an act
is a technical process that begins and ends with the entire legislative
process. This however does not denote that the act is operational, i.e. has
come into force.
Commencement date is
therefore the date the Act comes into force, it takes four forms;
1.
It may be defined in the Constitution or in the interpretation
Act.
2.
The legislation itself may specify a commencement
date. This is because sometimes there is need for time before the Act can come
into force. E.g. the Limited Liability Partnership Act
3.
Legislation may empower an individual to fix a
commencement date. This power is however prescribed in the Constitution as
being for a period of six months with a possible extension of another six
months. This is to deter indeterminate suspension of legislation.
4.
A commencement date may be based on the occurrence
of a particular event. E.g. when the commencement is based on the date of the
next election.
Alternative
commencement date
Where
there is an aspect that is central to the commencement of the legislation, the
Act may be given alternative commencement dates, e.g. at the next elections or
upon the election of the president.
PREAMBLE
This
is the part of the legislation that principally gives some historical or
conceptual declarations about the document. They explain the background to the
statute or to the document.
Today,
they are only used on constituting or constitutional documents, or
international agreements. They are otherwise relegated to legislation with
historical or ceremonial purpose. They are also used in legislation used by
military governments.
The
aspects of the preamble are either captured in the long title or a substantive
section of the Act.
Preambles
begin with the term ‘WHEREAS’.
ENACTING
FORMULA
This
states that the legislative authority has agreed to the measures as provided
for in that law. The appropriate enacting formula depends on the constitution.
The requirement must be followed strictly.
This
appreciates/acknowledges the authority of parliament.
The
enacting formula is imperative to the legislation.
Example:
ENACTED by
Parliament of Kenya as follows –
In
light if the new governmental system in Kenya, the enacting formula in Kenya is
going to have to change to reflect which government enacted the particular
legislation, i.e. the County Assembly of …
The Enactment formula always appears just below
the long title.
Example of arrangement:
TITLE TO
THE BILL (LEGISLATION)
A BILL
FOR
Long
title
(Preamble,
if necessary)
|
Enacting formula |
|
|
Part I - Preliminary |
|
|
Marginal
notes |
1.
This
Act may be cited as the Export Promotion Act, 2012 |
|
|
2.
(1)
… |
|
|
|
If you do not wish to use the preamble, bring those aspects in as the Object of
the Act, which is a clause within the bill.
INTERPRETATION
CLAUSE
Every
legislation should contain an interpretation section which sets out the
definition of various words.
This
section encourages consistency and allows for avoidance of unnecessary
repetition.
For
purposes of definition, two recurrent words are ‘means’ and ‘includes’.
Types of
definitions
1.
Delimiting
definitions
1.
These are definitions which do not change or
alter the conventional meaning of words but provides a definite meaning in the
circumstances. They set the limits of the meaning of the word without altering
the conventional or the normal meaning.
e.g. “Contract” means contract executed on January 1st”.
“Advertisement” means a publication through a medium
operating with commercial interest”.
2.
They are also used to relate a word of general
significance/use to the subject matter of the legislation. E.g. In this act,
unless the context otherwise provides, this word shall mean…
“Private practice” in relation to a nurse or a midwife, means
practice as a nurse or midwife outside Government employment.
“Application to own use” in relation to goods means applying
of goods to personal use or use by relative.
3.
It is also used to clarify classification of
words in legislation.
2.
Extending
definitions
This is a definition which
broadens /widens the scope of the ordinary usage of the term.
3.
Narrowing
definitions
It stipulates a meaning that is
narrower than the common use of the term.
E.g. In this act fruit “means”
oranges, lemons and bananas.
This does not change the meaning
of the term “fruit” but merely restricts it to particular fruits.
These are used to particularize
subjects, i.e. restrict a word to a particular thing without changing the
original meaning.
They are used to remove doubt as
to whether the word has a particular meaning. E.g. “Gay” means a person in a
same sex relationship.
It also gives new meaning to words. E.g.
“Hijack” means to take over any means of conveyance.
Definition
dangers
1.
Words which are clearly understood should not be
defined unless being given a different meaning.
2.
Avoid vagueness in definitions.
3.
Always be aware of dynamism in language.
4.
Avoid splitting hairs when defining. E.g. a table
includes chair. Avoid absurdity.
5.
Definitions are placed at the beginning of the
bill.
Definition
clause begins with the words, “In this Act…”
6.
Definitions should not include substantive
matters, e.g. a managing director means a person appointed as managing director
by the minister.
7.
A word not used in the legislation should not be
defined.
8.
A word should not be defined in an Act if that
word has already been defined in the interpretation Act, unless it is being
given a different meaning.
9.
There should be semi-colons at the end of every
definition as they are all essentially part of one sentence.
10.
Definitions should be presented in alphabetical
order.
11.
Any wording that is not a title, e.g. job title,
names, etc., should be in lower case.
12.
For the marginal notes in sections referring to
other legislation, the Cap Number should be on the same line as the legislation
referred to.
|
Cap 10 |
“Authority” means the
Kenya External Trade Authority established under Section 4 of the Kenya Revenue Authority Act. |
APPLICATION
CLAUSE
This
is included to give an indication of the area/circumstance under which the Act
is to be applied.
It
is used to ensure that any uncertainties are removed at the circumstance where
the Act applies to.
1.
It is used where the Act extends to circumstances
arising before the date of commencement.
2.
To circumstance s existing prior to or pending
enactment.
3.
It addresses statutory benefits.
4.
Where you need the law to apply to a specific
territorial area/ jurisdiction.
5.
It is also necessary of the law has some
extra-territorial application.
6.
It is used if the law applies to specific persons
or things.
7.
It is applied where the intention is for the
legislation to bind the government or state.
DURATION
OF LEGISLATION
Legislation
is supposed to be perpetual. It is supposed to continue until it is repealed.
However, if the intention is to have a law that is temporary, there are
techniques that are available for enacting temporary statutes.
Temporary
statutes must state the period after which the Act will lapse. E.g. this Act
shall lapse after 2 years from the date of commencement.
The
duration can also be based on parts, i.e. some parts are temporal while some
are perpetual.
Sunset
and review provisions
When
drafting legislation, the drafter may provide for a review provision which states that the Act must be reviewed after
every period of time. This is to ensure that the legislation is in tandem with
time.
A
sunset clause is whereby a statutory
body is set up for a period of time. The other clauses in the Act may be
perpetual.
Therefore,
something is provided for for a period of time, after which the sunset clause
becomes operational to end the tenure.
Substantive
and administrative provisions
There
are the core parts of a bill. This is because they give you the architecture of
the bill. They set out the basic objects and main principles of the Act whereas
the administrative provisions provide for the administrative and practical
provisions of the Act.
Allocation
of powers and duties is critical under the substantive provisions. Before the
powers are allocated, it is important to establish whether such allocation is
necessary. This is in order to avoid duplication of the powers. Whenever such
allocation is being done;
1.
Determine whether the power has to be performed
occasionally, or from time to time;
2.
Who is to exercise the power, for instance, a
statutory function may be performed by a person occupying an office or a person
in an acting capacity.
3.
Determine that the validity of that power is not
affected by the absence of the occupant of the office.
4.
Note that every time a power is allocated to act,
by extension, that person also has power to revoke.He who has power to appoint, also has power to revoke.
5.
Every time the power to appoint has been
allocated, consider suspension, removal and re-appointment provisions.
6.
Drafting of the power:
a.
It must be drafted clearly such that the nature
and the extent of the power must be manifest.
b.
The circumstances under which the power is to be
exercised must also be clear.
c.
Power should be granted subject to explicit
controls, explicit limitations or explicit conditions.
7.
Who should be given the power?
a.
The holder of a statutory power must be
identified precisely. Therefore
legislation must have been drafted using the active language/ voice. E.g. “The
minister shall…” as opposed to “this shall be done by the minister”
8.
Power should be conferred on an individual, as
opposed to a body.
9.
The procedure to be followed in the exercise of
powers must be stated.
10.
State whether the holder of the power is required
to seek advice or engage in consultation.
11.
State the provision for a review or appeal
process.
12.
State whether the person to whom power is
allocated may delegate the power and to what extent. NB: A delegate cannot
delegate. A power of delegation should not be left to become a matter of
doubtful inference. E.g. The minister may delegate to any person any power or
duty conferred or imposed on the minister[PM12] by this Act.
Aspects
of administrative provisions
They
are used for the creation of administrative bodies. In doing this, there are questions that must
be addressed;
1.
What body are you setting up? An authority, a
service, an agency, a directory, or a commission?
This depends on the nature of
functions or powers that you are allocating to the body in question.
All these however fall under the
ambit of statutory bodies.
2.
The first step is to ascertain the intended
purpose of the body.
3.
Are the functions advisory, administrative or
judicial?
4.
Is the body under the executive, legislature or
judiciary?
5.
Should the proposed body be a corporation?
6.
What is the degree of independence to be given to
the proposed body?
LEGISLATIVE
SENTENCE, LANGUAGE AND SYNTAX
1.
Legal subject: Every legislative
sentence must have a legal subject. The subject refers to who is acting. The
arrangement should therefore be proper in order to avoid ambiguity.
E.g. the
licence shall be issued by the minister: In this scenario, the subject may
correctly be either “licence” or “minister”.
2.
Legal action: The legal action must
be identified. The legal action is the
basis of the supporting actions.
3.
Circumstances/ case: these create
rooms for qualifications.
[1]
Article 109 of the Constitution 2010
[2]
Interpretation and General Provisions Act Cap 2
[3]
This is done to show that the schedule is pursuant to Section 3
[PM1]What
is a private member’s bill?
[PM2]The
principle objects are what form the long title of the bill.
[PM3]For
instance, if the enactment of that legislation may lead to the amendment of
other legislation.
[PM4]Before
the instructions are sent to the drafter, ideally the policy document and the
summary of the drafting instructions must have been tabled before the cabinet
especially if it is a government bill for them to give their input.
[PM5]Ref:
The Uganda dress bill
Kenya amendment to the traffic bill proposing that the traffic department of the police be
disbanded.
[PM6]will
it lead to increased expenditure? Will the goals be achieved?
[PM7]How
soon do you want the law to be in place?
Retrospective legislation must be justified;
Transitional provisions must be there.
[PM8]For
example, matters of reciprocal treatment.
Ethical and medical issues also require specific
instructions.
[PM9]E.g.
Case law on the same matter
[PM10]Express
v Implied repeal
[PM11]And
so on for subsequent amendments
[PM12]This
is repeated to eliminate gender specific words and for purposes of clarity.
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