LEGAL WRITING AND DRAFTING (DETAILED) NOTES (LWD)

 CHAPTER 1: INTRODUCTION TO LEGAL WRITING

 

1.       LEGAL WRITING AND ITS IMPORTANCE

·       Words are the dominant tool of trade for lawyers

·       Nothing of consequence can be done without use of words

·      

Most important skill that marks out a good lawyer is the ability to communicate à this entails selecting appropriate words orally and even when drafting

·       A lawyer communicates effectively by using words well in different ways:

o   To explain something to a client à put it in a way that the client understands;

o   To get information from a witness à frame the question the right way; and

o   To make a point to the court à express it in the most telling (persuasive) way

·       All the above involve skills in choice of words are applicable for situations governing the order in which the words are put,

e.g. structure of sentences, paragraphs and speeches

·       There is no difference between spoken word skills and written word skills; only the context changes

·       The words used in writing may not necessarily be the same as those used in speech à sentence structure may also change

·       The need for clarity and precision in what you say remains unchanged

·       In drafting, there is need for clarity and non-ambiguity in the way you express yourself

 

2.       QUALITIES OF GOOD WRITING

(i)          Making choices

·       Everything in your final version must be there because you intend it to be

·       Nothing should be in your final version ‘by accident’ (no drafting in a vacuum)

·       Every word should be there because it has been carefully chosen

·       Sentences and paragraphs should be composed as you have designed them

·       Never write down the first thing that comes to mind without critical examination

 

(ii)            Clarity

·       Good legal writing entails total clarity

·       The meaning of your document should spring immediately from the words used

·       The purpose of writing is to clarify that which would otherwise be unclear, e.g. when writing a legal opinion

·       Clarity of expression cannot be achieved without clarity of thought à need to be clear in your mind about what you want to say, in order to write it down clearly

·       All writing must be well planned and thought through before putting it down on paper

 

(iii)            Logical structure

·       This is a build up from clarity in writing

·       Clarity not only depends on choice of words and word order but also on the structure of what is being written

·       The whole piece of writing needs to be composed in a clear and coherent manner

·       Whatever one wants to say can be broken down into smaller pieces of content

·       You cannot make a good point without explaining it

·       You cannot write an opinion without giving reasons for it à reasons given must lead to conclusion expressed

·       The reasoning process is a series of small links in a logical chain

·       Each link must be placed in the right order and connected correctly to the other links

·       This involves: logical thought, logical explanation and logical structure

 

(iv)            Spelling

·       Good writing should be free from spelling errors à errors make you look unprofessional

·       Take all reasonable steps to eliminate spelling mistakes

·       Of professional importance is to ensure names are spelled correctly

 

(v)            Grammar

·       Writing should be free from grammatical errors

·       Rules of grammar dictate: word form, word order and sentence structure

·       Therefore: verbs must be in the correct tense, adverbs in the correct place and sentence properly composed

·       Writing cannot be clear if it is not grammatical

 

(vi)            Punctuation

·       Good writing must be properly punctuated

·       Punctuation is clear to the meaning of a legal document

·       Take care to use all full stops, commas, semicolons and colons properly and in the right places

·       The sense of a sentence can be destroyed by a comma in the wrong place or lack of one where it is needed

·       A full stop in the wrong place can spoil the connection between two linked thoughts and result in a sentence with no main verb

·       Take care of punctuation when drafting, e.g. do not open a bracket and fail to close it

·       The choice of punctuation marks is just as important to drafting as is choice of words

 

(vii)            Precision

·       Everything written should say what the writer intends

·       Do not express your thoughts in a vague or generalised way

·       Words chosen must be chosen for the precise meaning (i.e. for accuracy)

 

(viii)            Non-ambiguity

·       Words may be used which mean precisely what we intend, but which are capable of having another meaning if looked at in a different context

·       In legal writing, be aware of all the different contexts from which your words may be interpreted and try to narrow these down to ensure you convey the right message

 

(ix)            Conciseness

·       Good writing is concise

·       It should be succinct and straight to the point

·       Avoid repetition, long windedness or digression

·       Leave out that which is unnecessary or obstructs flow of meaning

·       Minimum verbosity, and omitting unnecessary words

·       A good piece of legal writing should not be a word longer than it needs to be (beware of trying to be too concise)

·       If what you are writing becomes a mere summary that will not to. Clarity is more important than brevity

·       Purposes of conciseness: efficiency (the reader makes effective use of their limited time to read your time) & it is engaging (the reader will be able to digest your work & will not get bored reading your work)

 

(x)             Completeness

·       This is the quality that must be balanced with the quality of conciseness

·       Writing must express the writer’s ideas completely

·       If the writing only partially expresses those ideas, it is incomplete

·       Where to draw the line between completeness and conciseness is a matter of fine judgment

·       Always be aware of the balance that has to be achieved between the two in a good piece of writing

(xi)            Elegance

·       A good piece must be well written

·       Elegance writing comes with practice

·       Avoid clumsy phrases, tortuous constructions and jarring words

·       Elegance has to do with flow and rhythm

 

(xii)            Shorter sentences

·       Long sentences make legal writing hard to understand

·       They cause the author to distort the logical order of the information he is trying to convey, while straining the

reader’s memory

·       The remedy is, for example, to use 5 sentences containing 1 thought each as opposed to 1 sentence containing all 5 thoughts

·       Keep the average sentence length below 25 words

·       If you have to write a long sentence, make sure that it is not vague and it is easy to understand

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

 

PUNCTUATION EXERCISE
Change the meaning of this sentence by adding different punctuation: “Lawyers who work all the time are chronically depressed.”	Lawyers, who work all the time, are chronically depressed. OR Lawyers (who work all the time) are chronically depressed. OR Lawyers who work all the time are ‘chronically depressed’.
SHORTER SENTENCES EXERCISE
Do not write: “All persons except those eighteen years or older…”	Instead write: “Each person under eighteen years of age…”
Do   not    write:    “Draftaria,    Transyivania    must upgrade”	Write: “Each state except Draftaria and Transyivania must update”

CHAPTER 2: PLAIN ENGLISH

 

1.       INTRODUCTION TO PLAIN ENGLISH

·       This is a concept relating to clarity à simply means English that is clear and well written

·       The narrow meaning of plain English is that it is an alternative to obscure legalistic jargon (legalese)

o   Legalese is a term describing the body of formal and technical legal language that is impossible or difficult for the lay person to understand

o   Plain English is an alternative to the body of formal and technical legal language (this is the preferred mode of Legal Writing)

·       Bryan Garner, when discussing the use of plain English, says:

i.         Plain English should be robust and direct, i.e. the opposite of godly and pretentious language  

ii.        The modern legal writer should aim at using the simplest, most straight forward way of expressing an idea

iii.      The modern legal writer should equally avoid fancy language (i.e. avoid pompous words that have no value and have every-day replacement meanings)  

·       Use of straight forward language which conveys meaning clearly and simply

·       The language of the law is complex; if it is complex to us in the profession, it is extremely intimidating also to the lay person

·       It is replete with technical terms and convolutions

·       These faults have over time been noted by stakeholders in the legal profession, e.g. judges, practising and academic lawyers à this is why a move has been to simple and plain language (i.e. the Plain Language Movement)

 

2.       THE PLAIN LANGUAGE MOVEMENT

·       The Plain Language Movement is led by a group of influential legal scholars, judges, magistrates and practitioners who seek to advance clarity in legal writing by purging it of cumbersome sentence constructions and empty legal jargon

·       The proponents of the movement apply this prescription broadly in 2 thematic areas:

o   Legislative drafting

o   Transactional drafting

·       The movement seeks to change the manner in which we draft legal documents, particularly those used by consumers, in a manner that can be understood, not just by the legal technicians who draft them, but by the consumers who are bound by their terms

·       Legal language is largely unintelligible to most members of the society

·       In many cases, obscurity arises from complexity of the law and its subject matter

·       In other cases, lawyers do not take care to communicate clearly with their audience (“In our attempt to sound intelligent,

we often alienate our audience through the use of empty legal technical words”)

·       The key to effectively using legalese is to be aware when you are using it and ensure that it does not affect your legal writing

 

3.       WHAT IS THE PROBLEM WITH LEGAL LANGUAGE?

(i)             Many legal documents are lengthy, over-written, self-conscious and repetitive

(ii)            They consist of lengthy sentences and involved sentence construction

(iii)            Legal documents tend to be poorly structured and designed

(iv)            They suffer from elaborate and often unnecessary cross-referencing

o   There especially tends to be this unnecessary cross referencing in contract drafting

o   E.g. a contract may have a provision which continuously refers to a previous clause, e.g. ‘without prejudice to clauses 2, 3, 4 and 5, paragraph 6 is subject to paragraph 8’

(v)            They retain archaic phrases

(vi)            They use supposedly technical terms, foreign words and phrases

(vii)            They are unintelligible to the ordinary reader, which means we lose out on the objective of communication

 

4.       WHAT IS BEING DONE TO PROMOTE PLAIN ENGLISH?

·       The legal establishments are becoming increasingly aware of the need to write in plain English, e.g. the judiciary have to undergo trainings at the Judicial Training Institute where there is a course on how to draft in plain English, which is refle cted in how court orders are now drafted

·       Increasingly, court orders, standard forms and regulations are also being drafted in plain English

·       E.g. Children’s matters often involve orders being drafted in plain English because the people coming to court often have

no legal representation

·       Many Acts of Parliament (post 2010) are also being drafted in plain English à this is so because the 2010 Constitution has also been drafted in plain English

·       The move towards plain English is also evidenced by the major revolution in England:

o   Civil Procedure Rules, 1998: all drafted in plain English – specially designed to enable a lay person appear in person

o   Unfair Terms in Consumer Contract Regulations, 1999, Section 7: ‘a seller shall ensure that any written term of a

contract is expressed in plain, intelligible language’

 

5.       WRITING IN PLAIN ENGLISH

·       Aim is to write concisely and clearly so that the reader easily understands

·       What is plain English and the extent to which it is used depends on who the reader is:

o   If the reader is another lawyer, legal terminology and words may be used

o   If the reader is a lay man, it is unwise to use legal jargon

o   If the readership is mixed, you will need to strike a balance (e.g. when you are giving a talk at a conference which is not entirely made up of lawyers; when you are in court and you are cross-examining/re-examining, etc.)

·       Most lawyers are not able to write plainly in their first draft

·       The more one writes many drafts, the more one realises how writing can be made simpler and clearer

·       The more you clarify and simplify your words, the more precise and clear the thought behind them gets à result: plain language

·       It takes longer to write plain English than it goes legalese

 

6.       BASIC RULES OF PLAIN ENGLISH

(i)             Use short sentences:

·       Generally, a sentence of 25 words or less is short

·       Try to write for the most part in short sentences

·       This is achieved by expressing only one thought in each sentence

·       Do not go out of the way to avoid long sentences where they are appropriate

·       Good and elegant writing requires that sentences vary in length rather than all having about the same number of words

 

(ii)            Use correct grammar and punctuation:

·       Use of bad grammar means lack of clarity

·       Always read through the sentences – try to phrase them as you would if speaking

·       Punctuation is important as meaning can be lost if not used properly

·       Punctuation is crucial to plain English since it is part of the structure and clarity of the sentences

·       You can identify need for punctuation marks or remove them if you speak/think your sentence through loud

 

(iii)            Use ‘everyday’ English:

·       There is a place for legal terminology and a time to avoid it

·       Jargon and technical terms should be avoided whenever possible

·       There are many and perfectly clear alternatives to jargon à do not alienate your target audience through the use of legalese

·       Only occasionally is the technical term the only suitable word

·       Legalese at its worst uses obscure and archaic words not used in everyday English

·       There is no excuse for such obscurity or archaism in legal writing

 

(iv)            Use simple structures:

·       Avoid putting an idea in a complicated way when it can be put in a simpler one

·       Everything you write at first attempt can be put more simply and in fewer words

·       Avoid compound structures which use three or four words to express a concept, double negatives and the passive voice

·       This is not an absolute rule à occasionally they may carry some precision which the alternative does not

·       Avoid word-wasting idioms – ‘in the region of’ (about); ‘the fact that it was raining’ (since it was raining)

·       Get rid of redundant words, e.g. ‘null and void’

 

(v)            Use first and second person:

·       It is generally clearer to use the terms ‘I’ and ‘You’ rather than the third person

·       In opinion writing, however, certain formalities do not allow the use of the first or second person

·       But: never be impersonal when you can be personal

 

(vi)            Arrange words with care:

·       A lot of poor English can be improved by simply changing the arrangement of words and phrases

·       When clauses are put in good order the meaning of the sentence becomes clearer

·       Always arrange your material in a way that the reader is assisted through it and it is easy to absorb

·       If the reader has to stop and re-read, then the work is not written in plain English

 

(vii)            Use a good layout:

·       Although lawyers mostly write in conventional paragraphs, on occasion it may be wise to write in numbered paragraphs, clauses and sub-clauses

·       If these are well marked, they will be easier to read

·       Conventional paragraphs are also easier to read if they are numbered and sub-titled

·       Several short paragraphs are easier to read than a few long ones

 

7.       CHARACTERISTICS OF LEGALESE

·       Use of archaic words

·       Use of Latin words

·       Use of a lot of formalism

·       Using a lot of redundancies

·       Very long sentences

·       Use of a lot of weak passive words

·       Use of unnecessary long words and phrases

 

8.       CHARACTERISTICS OF PLAIN ENGLISH IN LEGAL WRITING

1.       Avoid archaic words

o   Do not use ‘lawyerisms’, which are words like: aforementioned, res gestae, hereinafter, etc.

o   Do not/avoid getting too impressed by Latin and archaic English words that you read in law books

o   When you are about to use lawyerisms, see if your meaning can be expressed as well – or better – in a word or two of ordinary English

2.       Use normal English words that are used in day-to-day communication

3.       Use active voice and not passive voice

4.       Omit surplus (i.e. unnecessary) words

5.       Avoid compound constructions

o   Compound constructions use three or four words to do the work of one or two words

o   Example: instead of ‘at that point in time’, use the word ‘when’; or, instead of ‘by means of’, use the word ‘by’

6.       Avoid word-wasting idioms

o   Word-wasting idioms create verbosity

o   Many word-wasting idioms can be trimmed from your sentences with no loss of meaning

 

SENTENCE WITH WORD-WASTING IDIOMS	SENTENCE WITHOUT WORD-WASTING IDIOMS
“The fact that the defendant was young may have influenced the jury”	“The defendant’s youth may have influenced the jury”
“The fact that she died”	“Her death”
“He was aware of the fact that”	“He knew”

 

7.       Avoid redundant legal phrases

o   A great example of a redundant legal phrase is ‘null and void’ à this phrase is an example of coupled synonyms, which is a pair or a string of words with the same or nearly the same meaning

o   More examples include: alter or change; last will and testament; confessed and acknowledged; made and entered into; convey, transfer and set over; order and direct

o   Many of these coupled words have ancient roots – the redundant doubling was sometimes used for clarity, sometimes used for emphasis, and sometimes just because it was the literary fashion

o   Instead, a term of art is a short expression that conveys a fairly well-agreed meaning and saves the many words that would otherwise be needed to convey that meaning

8.       Avoid gender insensitive language

 

9.       HOW TO SPOT BAD CONSTRUCTION

·       Working words carry the meaning of the sentence, while the glue words hold the working words together to form a proper, grammatical sentence

·       When you find too many glue words together in a sentence, take it apart and reshape the pieces to ‘fit together tighter’

·       E.g. ‘A trial by jury was requested by the defendant’ can be changed to ‘The defendant requested a jury trial’

·       One way to remedy a wordy, fogbound sentence is to ask: ‘who is doing what to whom in this sentence?’, then rewrite the

sentence to focus on those three key elements:

o   The actor;

o   The action; and

o   The object of the action

·       For instance: be alert when you find a sentence or clause that begins with ‘it’ or ‘there’, followed by a form of the verb ‘to be’. Ask yourself whether the ‘it’ or ‘there’ refers to something specific, and if not, you may be wasting your words

 

PLAIN ENGLISH EXERCISE
LEGALESE	PLAIN ENGLISH
As stated heretofore, the landlord’s conduct created, caused and resulted in serious bodily harm and massive injuries, to wit: a broken and mangled left leg, lacerations to the aforementioned leg, and several broken digits on the foot attached to the side leg, in witness was the spouse of the injured party.	As we mentioned before, the landlord’s actions resulted in (caused) serious physical injuries, namely: a broken left leg with several cuts, and broken toes on the right foot. The spouse witnessed the injuries sustained.   Final version: The landlord’s actions caused serious physical injuries, namely: a broken left leg with several cuts, and broken toes on the right foot. The spouse witnessed the injuries sustained.

CHAPTER 3: GENDER NEUTRAL (FREE) LEGAL WRITING

 

·       Richard C. Wydick: “the time has passed when legal writers can pretend that the world is inhabited by males only”

·       ‘Gender’ refers to the grammatical grouping of nouns and pronouns into classes which are neither masculine nor feminine

·       ‘Neutral’ is a term used to describe lack of a bias (something that is neutral is something that is not engaged on either side)

·       Therefore, gender-neutral language can be defined as the use of wording that avoids referring specifically to either the male or the female gender

 

1.       INTRODUCTION

·       Gender-biased language, sometimes referred to as sexist language or exclusive language, often represents the male as the norm, exclusively identifies the sex of a referent, or demeans or trivialises women

·       Its opposite – i.e. gender-neutral language – sometimes called non-sexist language or gender-inclusive language, avoids all forms of gender bias

·       These definitions focus on bias in favour of the masculine because, although gender-biased language can be direct against males, it is most often directed against women and its negative effects are typically experienced by women

 

2.       HISTORY

·       An attempt to reconstruct the gender-biased language dates back to the 12th century

·       However, in the recent 1970’s, the feminist movement became the impetus for a renewed look at the non-inclusive language, particularly with regard to women

·       For instance, the elimination of the words Miss and Mrs. in announcing a woman’s marital status, and the change of these words to the word Ms. à The implicit suggestion in the previous terminologies was that a woman’s marital status was everyone’s business, while a man’s is not (considering that they only use the prefix Mr.)

·       In the late 19^th century, Julia Smith and Elizabeth Cady Stanton rewrote the Bible in gender-neutral language

·       In America (1975), the American Psychological Association penned down the first guidelines on non-sexist language, which subsequently motivated other organizations such as the American Medical Association and the American Philosophical Association to follow suit.

·       Also, in 1999, the Oxford American Dictionary and Language Guide adopted the definition of an ‘adult human male’ in place of ‘man’.

·       The latter part of 20^th century saw an increase in the trend toward gender-neutral language in English. As professionals in various fields began to adopt it, gender-neutral language appeared in employment advertising, textbooks, dictionaries and religious publications

·       In 2009, the United States House of Representatives modified its standing to reflect gender neutrality. For example, references to the word ‘chairman’ changed to ‘chair’ and to that effect male-gendered pronouns have been replaced by articles or repetition of the antecedent noun.

·       In Kenya, for instance, our domestic legislation elicits such features of gender neutrality, particularly the Constitution 2010. This change was brought about particularly upon the realization that the law had been used as a tool of discrimination particularly to women. It eliminates the use of masculine generics when referring to persons and adopts a general reference to persons which is not gender tied

 

3.       LEGAL PROFESSIONALS’ VIEW

·       Beginning in the 1980’s, a wave of gender task-force studies appeared in various jurisdictions, both state and federal. These studies examined various aspects of women and the law, including whether women were treated fairly in law schools and the legal system

·       Some of the published reports proposed the use of gender-neutral language in statutes, judicial opinions, and other legal writing

·       Some states adopted gender-neutral language in their constitutions, statutes, or other legal discourse, and sections on gender-neutral language began to appear in legal writing textbooks.

·       These changes were based first on principles of fairness. As Judge William Hill stated, the legal profession “demands of its practitioners a reverence and respect for the power of the written spoken word”. “When lawyers language exclude more than one-half of the population,” Judge Hill argued then, “then surely something is awry.”

·       Numerous legal commentators have urged lawyers to use gender-neutral language, often stressing that law conveys a

society’s norms, which should be fair to all its members

 

4.       PROBLEMS ARISING FROM USE OF THE GENERIC WORD ‘HE’ IN THE LEGAL PROFESSION

·       In State v James, the court held that where the statute about qualifications of petit jurors used the masculine pronoun, he, the reference was to males only, so the sheriff would have exceeded his authority had he summoned women for the jury

·       But in Snyder’s Estate v. Denit, the court stated that in statutory construction, the masculine includes feminine, but the feminine does not include the masculine. The court therefore held that a testator who wrote she must have meant to include only female defendants

·       The Origin of 'He' started to be used as a generic pronoun by grammarians who were trying to change a long-established tradition of using ‘they’ as a singular pronoun à Grammarians regard singular ‘they’ as a grammatical error yet it has been in widespread use in the famous writings of Shakespeare, Austen and other major English authors

·       The pseudo-generic masculine occurs in the gendered third person-singular pronouns he, him, and his, which result in what has been termed "the pronoun problem"

·       When these pronouns refer to identified persons, they are not gender bias because they do not present the masculine as the norm. A problem arises, however, when a writer needs a pronoun to refer to a person of unspecified sex

·       For example, ‘An attorney should present his argument in plain English.’ This use of the masculine pronoun is inaccurate for the legal field, which is now composed of about one-third women, and it illustrates how pseudo-generic terms treat the masculine as the norm by omitting express reference to the feminine

·       Most grammar and writing texts advise writers to avoid the generic use of “he”. However, there is no singular pronoun as a substitute. Until we do, we can rely on ‘they’. ‘They’ is the use of the pronoun they, them, or their to refer to a noun or to certain indefinite pronouns (such as anybody or everyone) also known as unisex ‘they’

·       For example, ‘the holding suggests that a defendant waives his constitutional rights only through an affirmative act’. To

read, ‘the holding suggests that the defendants waive their constitutional rights only through affirmative acts’

 

5.       REASONS FOR USING GENDER NEUTRAL LANGUAGE

(i)             Fairness

o   It connotes equality in speech and writing

o   Use of gender-neutral language avoids discrimination of either gender

o   The Constitution of Kenya, Article 27(5) provides that a person shall not discriminate directly or indirectly against another person on any of the grounds specified in clause 4, including sex

o   Furthermore, not everyone identifies as male or female, thus use of ‘he’ or ‘she’ may be discriminatory to that extent. In such instances, speakers or writers should resort to using the word ‘they’ since it transcends this binary

(ii)            Reader’s reaction

o   Using gender neutral language benefits the writer’s cause

o   Whether or not the legal writer personally sees gender neutral expression as important, the fact remains that many readers, male and female, do notice and do care

o   Many readers, both men and women will be distracted and perhaps offended if you use masculine terms to refer to people who are not necessarily male

o   Use of gender specific terms or pronouns defeats the attempt to capture the reader’s attention and mind at the

first instance

o   If readers think you’re using sexist language—even unconsciously—you risk damaging your credibility and diminishing the effectiveness of your legal writing

(iii)            Clarity

o   Gender biased language often sacrifices clarity

o   When certain words sometimes mean males, sometimes mean females, and sometimes include both sexes, confusion may result, e.g. a statute can be unclear if it uses a feminine pronoun in one part but only masculine pronouns in others.

(iv)            Precision

o   The message conveyed through our written work as well as speech ought to be exact

o   Use of gender biased language when the gender is unknown leads to ambiguity

 

6.       PHRASES THAT MAY BE AVOIDED (AS THEY IMPLY VALUE JUDGEMENT BASED ON SEX)

·       A man- sized job

·       A manly effort

·       Took it like a man

·       A real sob sister

·       An old-maid attitude

·       A member of the weaker sex

·       Man’s basic liberties – (this could be): basic human liberties

·       Reasonable man – (this could be): reasonable person

·       The wisdom of man – (this could be): human wisdom

·       “Man” and words ending in “-man” are the most commonly used gendered nouns in English. These words are easy to spot and replace with more neutral language, even in contexts where many readers strongly expect the gendered noun. For example, Star Trek writers developing material for contemporary viewers were able to create a more inclusive version of the famous phrase “where no man has gone before” while still preserving its pleasing rhythm: Star Trek explorers now venture “where no one has gone before”

·       Sometimes writers modify nouns that refer to jobs or positions to indicate the sex of the person holding that position. This happens most often when the sex of the person goes against conventional expectations. For example, some people may assume, perhaps unconsciously, that doctors are men and that nurses are women. Sentences like “The female doctor walked into the room” or “The male nurse walked into the room” reinforce such assumptions. Unless the sex of the subject is important to the meaning of the sentence, it should be omitted

 

7.       SEXIST MODIFIERS

·       Sexist modifiers are adjectives that specify the gender of the described noun

·       They are commonly used to describe job title

·       Unconsciously, writers sometimes assign needless sexist modifiers to words

·       Avoid modifiers that suggest that it is unusual for either a man or a woman to occupy such a position

·       Some examples of sexist modifiers are: female judge; lady lawyer; male nurse, etc.

·       Using the word ‘lady’ when referring to professions – e.g. lady cop, lunch lady, cleaning lady – generally trivialises women’s work. Adding ‘lady’ to a job title emphasises the gender imbalance across those fields of work and casts doubt upon women’s competence

·       Describing somebody’s occupation with ‘lady’ is condescending as it insinuates feminine stereotypes that would affect

performance

 

8.       STRUCTURAL SOLUTIONS THAT MAY APPLY

(i)             Using neutral words or phrases such as ‘person’ ‘any person every person’ or ‘no person’

(ii)            Using both the pronouns ‘he’ and ‘she’ à Instead of ‘his rights’ or ‘her rights’, use his/her rights.

(iii)            Replacing a possessive pronoun with a definite article. Instead of ‘his’ use ‘the’

(iv)            Using “they” and its other grammatical forms “them,” “themselves,” and “them” to refer to singular indefinite nouns.

(v)            Using plurals. For example, instead of ‘he’, use ‘they’ or instead of ‘him’ use ‘them’

(vi)            If possible, delete the pronoun reference altogether. For example. ‘the director read all the documents as soon as they were delivered to him’ – to make this gender neutral, eliminate the phrase ‘to him’

(vii)            Using the whose solution. Occasionally use the gender free whose. for example, the will confers no immediate authority on the executor. His powers remain dormant until the occurrence of the contingency that awakens them -- the testator’s death and instead say the will confers no immediate authority on the executor, whose powers remain dormant until the occurrence of the contingency that awakens them -- the testator’s death.

(viii)            Re-write the sentence to completely eliminate the pronoun where possible for example instead of writing “No one can be elected to be a judge after he has reached the age of 65,” a writer can say “No one can be elected to be a judge after the age of 65”

CHAPTER 4: EFFECTIVE WRITING

 

·       Legal writing relies on organizational patterns and traditional ways of organising ideas

·       Decisions of the legal writer must depend on the reader, the purpose of the writing, and conventions of the same type of document being written

·       Legal writing differs from other types of writing because it is formal. Due to this formal nature, legal writing avoids: firs t person pronouns; contractions; abbreviations in text; idiomatic phrases; slang, etc.

 

1.       THE PSYCHOLOGY OF WRITING

·       Writing, like all skills, becomes an easier task with experience à experience helps identify the stumbling blocks to writing and how to overcome them

·       The research phase of writing is usually easy to many people, and so the first stumbling block (usually) is moving from researching to writing down what has been researched

·       Waiting to write up until the very last moment carries the risk of desperation and the product being a really tough draft

·       By delaying the writing process, one compromises on quality drafting, revising, editing and proof reading. This can be overcome by developing a schedule for completion of the document

·       In the schedule, provide reasonable time to complete the research: do not delay when to begin writing. Give deadlines for:

a.        Completing an outline;

b.       Producing a first draft;

c.        Revising the draft;

d.       Editing the draft; and

e.       Proof reading the final document

·       In addition to the schedule, it helps if research notes are organized in a way that facilitates writing

·       Organize research around the law or the points you want to make. It is helpful to list the statutes, cases or authorities you seek to rely on under each point, and a quick summary of how each of these supports the point you are seeking to make

 

2.       KEY CONSIDERATIONS FOR EFFECTIVE LEGAL WRITING

 

2.1    OUTLINES AND WRITING PLANS

·       For legal writing, creating an outline or a writing plan at the outset is a key to saving time

·       An outline or writing plan prevents back-tracking, repetition and (accidental) missing of key points

·       The technique to employ when creating a writing plan or outline is:

i.            Read through all your research thoroughly;

ii.            Do not overlook the obvious ways of organising;

iii.            Talk to a colleague about your ideas; and

iv.            Consider the reader and the purpose of the document

 

2.2    TECHNIQUES IN DRAFTING THE DOCUMENT

·       Ensure you work in optimum writing conditions (these vary from person to person)

·       Write what you know best, first

·       Take one step at a time

 

2.3    REVISION

·       Revising a document means coming back to a document with a fresh set of eyes (‘see again’)

·       Step back from the project and give it a new look

·       Rethink the whole document, not just small bits like sentence structure

·       Develop a revision checklist – this checklist helps focus on the large issues of writing

 

2.4    MODEL REVISION CHECLKLIST

·       A revision checklist allows the writer of the document to conduct a self-critique, after which he/she can return to the document and improve upon it

·       It is important to check for unity and coherence – this is in the entire document, and not just individual paragraphs or sentences

·       The appropriate devices for creating coherence are: logical organization (‘IRAC’); roadmaps; signposts; repetitions, etc.

2.5    EDITING

·       This is an examination of the smaller issues in writing

·       Step out of the role of the drafter and look at the writing with a critical eye

·       Look at things such as sentence structure, word choice, punctuation, etc.

·       Pay attention to the subjects and the verbs in sentences

·       Make an extra effort to edit for precision and conciseness

·       Look out for sloppy word choice and unnecessary verbiage

 

2.6    PROOF READING

·       Responsibility for the final product lies with the writer

·       Fault for missed words, format problems or typographical errors lies with the writer

·       Proof reading is therefore essential

·       Remember: this is not the same as revising or editing. It entails reading for errors, and must therefore be done at the slowest reading rate

·       It is also important to proof read all parts of the document: headings, charts, captions, footnotes, etc.

 

2.7    STRATEGIES FOR EFFECTIVE EDITING AND PROOF READING

·       Produce a first draft

·       Distance yourself from the first draft

·       Edit from a hard copy

·       Do not edit and proof read at the same time

·       Pin point specific weaknesses in your writing as you go along

·       Read your draft once for each of the weaknesses identified

·       When proof reading, you can use spell-check (but do not rely on it to capture all spelling errors)

·       Label your drafts carefully

 

2.8    GENERAL PRINCIPLES FOR EFFECTIVE WRITING

·       Good writing is effective in communication

·       Remember your audience and the purpose for your writing

·       Follow the expected format of the document

·       Professionalism and competence are reflected in both the content and presentation of your writing

CHAPTER 5: EFFECTIVE PARAGRAPHS

1.       INTRODUCTION

·        A paragraph is a series of sentences that are organized and coherent and are all related to a single topic

·        A paragraph must support a single idea

·        A paragraph points out to the main point in a subdivision of a piece of writing

·        Paragraphs may contain different kind of information, for instance, a paragraph may give a series of examples, it may give an illustration of a general point, it might describe a place or a character, or a process, it may narrate a series of events, it may compare or contrast two or more things, it may also classify items into categories, it may describe courses and events

·        A well-organized paragraph always develops a single controlling idea, which is known as a topic sentence. A topic sentence has several functions:

o   A topic sentence substantiates or supports the thesis statement;

o   It unifies the content of a paragraph and directs the order of the sentences; and

o   It advises the reader on the subject to be discussed and how the paragraph will discuss that subject.

·        Most topic sentences are placed at the beginning of the paragraph. Occasionally it may follow the sentence paragraph. If this is the case, the paragraph will have started with transitional sentences

 

2.       FUNCTION OF A PARAGRAPH

(i)             Helps writers organize writing;

(ii)            Helps readers see and understand the organization of the writing;

(iii)            Helps writers stay in control of their writing;

(iv)            They are like boxes in which to sort out information;

(v)            They make writing a manageable task;

(vi)            Helps readers absorb information in manageable bits;

(vii)            Allows readers see significant groupings of ideas; and

(viii)            It is more than a matter of logic and organization – it is also a matter of reader comfort and aesthetics

 

Note:

·       It is important to remember that very long paragraphs lose the reader, while very short paragraphs make writing and the thinking behind it inconsequential

·       Paragraphs must be of the right size/length so that reader follows what writer is saying

·       As a significant grouping of sentences, it is a mini-composition on its own with a beginning, middle and end

 

3.       TYPES OF PARAGRAPHS AND STRUCTURE

·       There are two types of paragraphs:

o    Paragraph that narrates a series of events; and

o   A paragraph that gives examples

·       In terms of structure, a paragraph has three parts and each part of the paragraph has a role to play:

i.            Introduction: which captures the topic sentence. It gives a background information or provides a transition;

ii.            Body: it discusses the main idea using facts, arguments, analysis, examples and other information; and

iii.            Conclusion: is the final part of a paragraph. It summarizes the connections between the information discussed in the body of the paragraph and the paragraph’s controlling idea. The conclusion of the paragraph must lead to the final conclusion of the final idea

·       A paragraph must be coherent, i.e.: each sentence should relate clearly to the topic sentence or controlling idea; each sentence must flow smoothly; sentences should be short; sentences must connect new information to the old information

·       If you reach a part in your paragraph and the new sentence doesn’t flow with the paragraph, start a new paragraph

·       The repeat of key words or phrases are important in paragraphs where you have identified a particular idea or theory

à For this ideas or theory, always be consistent by using the same words or the same phrases which describe the theory or idea

·       Create parallel structures in paragraphs

·       Be consistent in point of view, verb tense and numbering

4.       PARAGRAPH PATTERNS

·       Every paragraph needs a focus, i.e. there must be a point being made

·       Every paragraph also needs a shape – a way of moving the sentences to make the shape

·       There are two prominent paragraph patters – the hour glass shape and the V-shape paragraph

 

HOUR GLASS PARAGRAPH	V-SHAPE PARAGRAPH
It begins with a general statement about the topic – this may take one or more sentences. The paragraph then narrows to the specific support for that general statement (explanation). The paragraph then concludes with a more general sentence or two about the topic.	This is the most common type in legal writing. It begins with a general discussion of the topic and then it narrows to a specific support – it does not return to a general statement. Both patters work well in legal writing – what is important is the general opening sentences followed by specific support for the generalisations.

 

5.       UNITY AND COHERENCE

5.1    PARAGRAPH UNITY

·       A paragraph must have its own topic – it must make a point

·       All elements of the paragraph must work together to make that point – when that happens, there is paragraph unity

·       The topic is introduced at the beginning of paragraph by topic sentence, and it is then developed by supporting sentences

·       The concluding sentence follows

·       It is important that the paragraph does not stray away from the topic at hand

 

5.2    PARAGRAPH COHERENCE

·       Coherent paragraph – Its elements must be connected in such a way that the reader easily follows the ideas developed

·       Paragraph coherence can be achieved through:

i.            Using familiar organizational patterns;

ii.            Establishing and using key terms; and

iii.            Using sentence structure and coherence devices

 

6.       FAMILIAR ORGANISATIONAL PATTERNS

·       All readers expect certain patterns:

o   Cause/effect;

o   Problem/solution;

o   Chronological order

·       When these expectations are met, the ideas are easy to follow

·       Legal readers have some additional patterns they expect; for example:

o   Once a rule has been laid out, readers expect it to be applied;

o   They expect a court’s holding to be followed by its rationale; and

o   In legal opinions, the IRAC pattern is expected

·       Repetition of key words is the easiest and most important method of creating coherence. Logical connections between key words to make your point are crucial

·       Coherence can be created through sentence structure and a number of coherence devices. The major devices are:

(i)            Dovetails: beginning a sentence with reference to the preceding sentence

(ii)            Parallelisms: used to show which ideas should be considered together and which should be compared or contrasted

 

7.       PARAGRAPH LENGTH

·       There are no hard and fast rules about paragraph length – the writer simply needs to know if they have finished what they set out to say in the paragraph

·       Sentences should be as many as enable point to be made

·       A reader’s comfort must be kept in mind, e.g. avoid paragraphs that create a solid page – this has negative effect in mind of reader

·       Length of each paragraph should be primarily determined by content, and variety in paragraph length is necessary

·       Short paragraphs work well after an unusually long one to give reader a break

·       Short paragraphs also work well when the writer is making a major shift, change or connection between ideas

·       Short paragraphs usually serve as transitions between sections and as introductions or conclusions

 

8.       TOPIC AND CONCLUDING SENTENCES

·       Not all paragraphs have topic and concluding sentences

·       Many well written paragraphs have neither

·       However, most well written paragraphs have topic sentences and those that don’t have an implied one that governs the

paragraph

·       Concluding sentences sometimes are useful to the reader and at other times they are not and so one has to carefully determine if they need one or not

·       Readers will find concluding sentences helpful after long complicated points

 

9.       PARAGRAPH BLOCK

·       Many paragraphs may not have topic sentences or concluding sentences yet work out well. Why? Because they are part of a larger organizational element – the paragraph block

·       A paragraph block is a mini-composition – it begins with a paragraph or two, followed by the middle which is usually several paragraphs, and the end is a paragraph or two

·       Beginning paragraphs are general statements that introduce the topic of the paragraph block

·       The middle paragraphs contain sub-points – the specifics that support the topic paragraphs

·       The concluding paragraphs bring the discussions back to the broad topic but in a way that advances the line of reasoning

CHAPTER 6: SENTENCE TRANSITIONS [CONNECTIONS BETWEEN SENTENCES]

 

1.       INTRODUCTION

·       These are words or short phrases that link two or more clauses in a sentence

·       They may also be referred to as connecting words or phrases

·       They introduce the flow of activity and ideas, demonstrating where the writer is coming from and where he is going

 

2.       TYPES OF TRANSITIONS

2.1    COORDINATING TRANSITIONS/CONJUNCTIONS

·       The coordinating transitions are represented by the acronym à For, And, Nor, But, Or, Yet, So

·       They connect sentences equally à i.e. when using a conjunction, the idea is that the sentences are independent but linked. When the conjunctions are removed, the independent sentences can stand alone

·       Whenever a coordinating conjunction is used to connect two sentences, then a comma must be placed before a conjunction. For instance: “She is a good lawyer, but she doesn’t like litigation.”

·       When using a coordinating conjunction to connect two phrases or words, then do not use a comma. For instance: “The lawyer and the pupil went to court.”

 

2.2    SUBORDINATE TRANSITIONS

·       The use of a subordinate transition means that the meaning of one sentence depends on another

·       A sentence beginning with a Subordinate Conjunction always depend on another sentence that does not begin with a Subordinate Conjunction. For instance: “I went to court because I wanted to argue a case.”

·       Subordinating transitions are used when reporting facts of a case

·       If the Subordinate Conjunction is between two phrases, which can stand alone as independent sentences after the removal of the subordinate conjunction, then do not use a comma to separate the phrases

·       If the subordinate conjunction is placed in front of the opening phrase, then place a comma between the two phrases that are being connected

·       A comma must not be placed after the subordinate conjunction

 

2.3    CONJUNCTIVE ADVERBS AND TRANSITIONAL PHRASES

·       These explain how two sentences relate to each other. Usually, strong punctuation marks like a full stop or a full colon and at times semicolons separate a conjunction adverb or transitional phrase from both sentences

·       For instance: “I went to court early. Unfortunately, my matter had already been called out”

o   The phrase ‘unfortunately’ in the above sentence shows contrasting relationship

o   The connector ‘unfortunately’ helps the reader to move from one idea to the next

 

2.3.1          EXAMPLES OF TRANSITIONAL PHRASES

(i)            There are transitional phrases which show sequence

o   Examples include; again, in addition, next, first, second, equally important, furthermore et cetera. They are also known as generic

(ii)            There are transitional phrases which introduce comparison

o   Examples include; also, similarly, likewise, in the same way, in the same manner, etc.

(iii)            There are transitional phrases that contrast

o   Examples include; at the same time, on the contrary, even so, in spite of, on the other hand, nevertheless, regardless, still, notwithstanding, however etc.

(iv)            There are transitional phrases which provide examples or they intensify

o   Examples include; indeed, that is, for instance, illustrations include, etc.

(v)            There are transitional phrases which indicate place

o   Examples include; above, beyond, elsewhere, nearby, etc.

(vi)            There are transitional phrases which indicate time

o   Examples include; after a while, immediately, presently, before, in the past, simultaneously, etc.

(vii)            There are transitional phrases which show effect

o   Illustrations include; accordingly, hence, as a result, otherwise, thus, consequently, etc.

(viii)            There are transitional phrases which give additional information

o   Illustrations include; in the first place, otherwise, etc.

(ix)            There are transitional phrases which show logic

o   Illustrations include; consequently, for this reason, therefore, as a result, however, then, etc.

(x)            There are transitional phrases which summarize, repeat or conclude

o   Examples include; all in all, in brief, in particular, in short, to put it differently, in other words, finally, etc.

(xi)            There are transitional phrases which show conditions

o   These include; as long as, if, in case, provided that, in as much as, on the condition that, etc.

(xii)            There are transitional phrases which show or demonstrate purpose

o   These include; in order that, so that, least, that, etc.

CHAPTER 7: EFFECTIVE SENTENCES [& ACTIVE AND PASSIVE VOICE]

 

1.       INTRODUCTION

·       A sentence is effective if it communicates to the reader without ambiguity and without looking for any other explanation or clarification

·       The sentence must pass information without the reader looking for another source for clarification

 

2.       COMPONENTS OF A SENTENCE

·       A sentence normally has three components: a subject, a verb and a predicate

·       As a cardinal rule, a sentence must have a subject and a predicate

·       A verb can express something that is in existence or something that is being in place instead of it being necessarily an action

·       A subject is a noun, or a pronoun paired with a verb. A noun can be a word or a group of words

·       The subject in any sentence identifies the theme, the quality or the person that is the theme or the topic of a given sentence

·       For instance: “The commissioner may be represented by a counsel at the hearing of the application.”

a.        ‘The commissioner’ is the subject in the above sentence

b.       The predicate in the sentence is ‘the counsel at the hearing’ – [group of words]

·       A sentence may also contain an object. This object is a word or a group of words that receives the mental of physical action conveyed by a verb and performed by the subject. For instance; “This act binds the state.”

a.        The verb is ‘act’

b.       The subject is ‘binds’

c.        The object is ‘the state’

·       At times, sentences comprise of phrases – a phrase is a group of related words functioning as a sentence element but without either a subject or a predicate. Examples of phrase: without delay, in accordance with the regulations, in this section or in this Act, etc.

·       Besides a phrase, a sentence may mature into a clause – a clause is a group of related words that contains a subject and a verb. In legislative drafting, a clause in most cases refers to a complete statutory provision divided into components

·       In most sentences, writers use modifiers. Modifiers are also known as adjectives and they can also be adverbs. Adjectives describe or qualify nouns or pronouns or a group of words while adverbs describe or modify verbs. For instance;

a.        “Reasonable grounds for appeal.” à the adjective in the above sentence is ‘grounds for appeal’

b.       “A suspect in a police station.” à the adjective is ‘a police station’

c.        “A person who knowingly or recklessly gives false information commits an offence.” à the adverb is ‘knowingly and recklessly’

·       Sometimes, we use dangling modifiers – a dangling modifier is a phrase or clause in which the doer of the action is not clearly identifiable. In that case, the modifier is misplaced and introduces ambiguity. For instance;

a.        “Public hospital or school.” à ‘Public’ is the dangling modifier. It is not clear whether it modifies the hospital or the school

b.       “A registered dentist or medical practitioner”

c.        “A married woman or man”  

·       Together with dangling modifiers we’ve misplaced modifiers – this is a word placed far from the word which it is supposed to qualify or describe which leads to ambiguity in the sentence. Examples:

a.       “The new recruits were informed that they were accepted by the new officer.”  

b.       “Last night she made meat loaf in her pyjamas.”

 

3.       THE USE OF PARALLEL STRUCTURE [PARALLELISM]

·       This is the use of the same grammatical form or structure for equal ideas in a list or sentence

·       Parallelism is used in contracts and legislative drafting

 

3.1    SUBJECT-VERB DISAGREEMENT

·       The general rule is that the number of subjects in any sentence determines the number of verbs.

·       When drafting, the subject in question will determine whether the sentence will be presented in singular or plural. For instance;

a.        “Each of the hospital boards is required to submit any annual return.”

b.       “A deputy member as well as the appointed members is required to hold a professional qualification.”

 

3.2    AVOID WIDE GAPS BETWEEN SUBJECT, VERB AND OBJECT

·       In seeking to understand a sentence, the reader’s mind searches for the subject, the verb, and the object à If those three key elements are set out in that order and close together in the sentence, then the reader will understand quickly

·       Lawyers like to test the agility of their readers by making them leap wide gaps between subject and the verb and between the verb and the object

·       The best remedy for really wide gaps is to turn the intervening words into a separate sentence

·       Smaller gaps between the subject and verb can be closed by moving the intervening words to the beginning or the end of the sentence

 

[ACTIVE AND PASSIVE VOICE]

 

4.       INTRODUCTION

·       This is one of the ways in which we can improve our work as legal writers as it adds clarity

·       The focus is on 3 ingredients: the subject, the verb and the object

·       The concept of ‘voice’ in legal writing applies to the above 3 ingredients

 

5.       THE CONCEPT OF ‘VOICE’ IN LEGAL WRITING AND DRAFTING

·       The term ‘voice’ applies to the relationship of the subject to the action expressed in the verb

o   We have active and passive voice à in legal writing, a sentence can be written in either active (preferred) or passive voice

o   To distinguish the two, you have to look at the relationship of the subject to the verb

·       This concept is easier to understand in terms of the difference between active and passive voice in legal writing

·       A reader’s eyes automatically search for ‘who did what to whom’ (WDWTW)

·       In legal writing, the following three inform your decision of how to write:

a.        The purpose of why you are writing;

b.       The reader you are targeting; and

c.        The rules that are applicable

 

6.       ACTIVE VOICE

·       In a sentence using the active voice, the subject of the sentence performs the action expressed in the verb

·       Active voice is the preferred mode of writing because it identifies who (subject) is performing the action (and so it satisfies

the reader’s natural curiosity)

·       Active voice is preferred in legal writing for three reasons:

1.       Clarity;

2.       Conciseness; and

3.       Direct and shorter sentences, and hence easier to read

·       In this case, the relationship between the subject and the action is that the subject performs the action expressed in the verb

·       The active voice identifies the actor/subject and the action that the subject is doing

·       In most sentences in the active voice, the subject comes before the action, making it easy to pick out who the subject is

·       Active voice is also preferred in legislative drafting

·       Sentences written in active voice are direct, short and easier to read, hence they are engaging to the reader (hence the clarity and conciseness)

 

6.1 EFFECTIVE USE OF ACTIVE VOICE

(i)             IT IS MORE CONCISE

o   It focuses on the reader’s attention to the doer of the action

o   It involves fewer words. For example: “The Police Officer arrested the man” (6 words), as opposed to the passive voice – “The man was arrested by the Police Officer” (8 words)

(ii)            IT USES A MORE VIGOROUS VERB

o   Example: “Judges must explain the reasons for their decisions” (active), as opposed to: “The reasons for their decisions, must be explained by Judges” (passive)

o   It keeps the energy where you want to maintain it by use of a vigorous verb. With the passive voice, the verb tends to lose its vigour and hence is less engaging

o   The passive voice forces the reader to mentally re-order the structure of the sentence to understand it

 

(iii)            IT ALLOWS INFORMATION TO BE PROCESSED MORE EASILY: this makes the information easy to process mentally

 

(iv)            IT EMPHASISES WHO OR WHAT IS RESPONSIBLE FOR COMMITTING AN ACT

o   Example: “The accused person embezzled over Kshs. 1 million” (active), as opposed to: “Over Kshs. 1 million was embezzled” (passive)

o   The active voice thus strengthens an argument by establishing the responsibility of an action

o   In both objective and persuasive legal writing, active voice is preferred when you want to make a point that someone or something performed a particular action

o   When using the active voice, the actor, act and object are all clear (do not have to be searched for within the sentence)

o   A defence lawyer will normally use the passive voice, and be careful not to mention the actor in the sentences

 

(v)            IT IS MORE ENGAGING, DIRECT AND CLEAR IN COMPARISON TO PASSIVE VOICE WHICH IS WEAK AND DULL

 

7.       PASSIVE VOICE

·       In a sentence written in the passive voice, the subject is acted upon (i.e. receiving the action)

·       In passive voice the subject is passive (it is not acting, it is acted upon)

·       Example:

o   “The police officer arrested the man” à active, because the police officer is acting

o   “The man was arrested by the police officer” à passive, because the man in the sentence is acted upon – he himself is not acting

·       Active sentences are preferred to passive voice because they are direct, usually shorter and easier to read, whereas passive voice is convoluted, ambiguous and long

·       Passive voice is verb-form that disguises who has done the action expressed in the verb

·       The passive voice obscures the subject of the sentence and confuses the reader, and this confuses the ‘lay reader’ who

may expect a sentence where the subject is performing the action

·       For active voice, the subject performs the action. For passive voice, the subject is not acting, he/she is the one acted upon. Thus, the relationship of the subject to the action is the key to determining if a sentence is in active or passive voice.

 

7.1 EFFECTIVE USE OF PASSIVE VOICE

·       In a passive voice sentence, the object is acted upon by the actor (satisfying the reader’s curiosity in reverse order)

·       Active voice is generally preferred to passive voice, however there are several situations in which passive voice is more effective or appropriate:

 

(i)             WHEN THE PERSON (AGENT/SUBJECT) OR THING PERFORMING THE ACTION IS UNKNOWN OR RELATIVELY UNIMPORTANT

o   Commonly used where one wants to describe a condition in which the actor is unknown or unimportant

o   E.g. if a mistake was made when the pleadings were being filed, and you have no idea who made the mistake, then when referring to the mistakes you would ordinarily leave out details of the person making the mistake (for instance: “Mistakes were made when filing the document in the registry” is passive, while, “The Clerk when filing the document in the Registry” is active

 

(ii)            WHEN YOU DO NOT WANT TO EMPHASISE WHO DID THE ACT

o   I.e. de-emphasise the link between the actor and favourable or unfavourable actions. Examples include:

§  “School fees was not paid”

§  “When the lights went out, several punches were thrown”

o   This may be strategically used in litigation, especially when presenting submissions in court

o   When used as a defence strategy, lawyers use the passive voice to de-emphasise the role of their client in the act at the centre of the dispute

 

(iii)            WHEN IT IS THE ACT AND NOT THE ACTOR THAT IS IMPORTANT

o   I.e. the deed rather than the doer of the deed is what you want to emphasise. Examples include:

§  “All the accused persons were convicted of murder” (to change this to the active voice, it would need to be specified which Judge/Magistrate convicted the accused persons of murder)

§  “Insulin was discovered in 1921 by Scientists”

 

ACTIVE/PASSIVE VOICE EXERCISE (1):

·       Passive voice sentence: Extensive training on the new safety procedure was required to be attended by the maintenance staff.

·       To convert this sentence to the active voice, you must establish who did what to whom

® Identify the subject of the sentence: who performed the action

® What did the subject do?

® Then draw a link showing how the subject matter acted on the verb

·       Active voice: The maintenance staff were required to attend extensive training on the new safety procedure.

 

ACTIVE/PASSIVE VOICE EXERCISE (2):

·       The three witnesses were called by the prosecution à written in passive voice

·       The prosecution called the three witnesses à written in active voice (as the prosecution, being the subject, is acting on the verb (by calling) the object (the three witnesses))

 

1.       Which of the following sentences is written in the active voice? (see above)

 

2.       In what situations would the active voice be the better choice? à your answer could circle around the effectiveness of active voice, e.g. when you want to emphasise who is responsible for committing an act. With the second sentence, the emphasis is on the prosecution.

Alternatively, when your intention is to be direct and clear (qualities of good legal writing).

 

3.       In what situations would the passive voice be the better choice? à your answer could circle around the fact that passive voice is preferred when the person or thing performing the action is unknown or relatively unimportant. Alternatively, it could be used when the act is more important than the actor.

Alternatively, when you do not want to place emphasis on who did the act.

It may also be important to emphasise in your answer that the active voice is always the preferred mode of writing in legal writing.

CHAPTER 8: LEGAL RESEARCH AND ANALYSIS

 

1.       LEGAL RESEARCH

1.1    WHY DO ADVOCATES ANALYSE LEGAL ISSUES?

·       The foundation of an advocate’s practice is grounded on the skills of evaluating and solving a client’s problem à issues to do with drafting and writing come later, but you first must be able to ascertain/decipher what exactly the issue the client is facing is

·       The basic problem solving and writing skills enables an advocate to advise prospective clients of their legal rights and duties

and champion the client’s legal rights

·       You cannot research comprehensively if you are unable to accurately determine what issue your client is facing

·       To accurately determine the issue a client is facing, the Advocate must:

(i)            Engage in some preliminary problem solving before communicating their analysis or arguments to a client, opposing counsel, judge or magistrate à there are skills necessary in preliminary problem solving: be a keen listener, having strong social/people skills (i.e. ability to relate to others on a personal or a professional level), good interrogative skills

(ii)            Understand the factual and legal issues involved à factual issues are the narrative that the client will give you, and the legal issues are picked out from the factual narrative (it is also important to clearly analyse all supporting documentation because some factual issues might not be articulated by your client because they did not think that those issues were important)

(iii)            Carefully understand the law and evaluate how it affects your client

·       In identifying the legal issues (which is the first problem a lawyer faces when a legal problem arises):

o   The client relays to the advocate a factual story and requests for legal advice

o   There is a need to study statutes and case law to determine the rules of law that may affect your client’s case

before attempting to advise a client

·       Identifying the legal issues:

o   A legal issue is a question about what the law means or how it applies to the facts of a particular situation

o   The legal issues in respect of your client’s case may be identified from Rules of Law

o   In order to identify the legal issues, it is good to appreciate that sometimes there may be a myriad of facts

pertaining to your client’s situation and how they relate to the relevant rules all of law have to be construed

·       The first question the lawyer is faced with: does your client actually have a legal claim or a valid defence? à This is what results in your research and application of the relevant statutes and case law

·       Identifying rules of law and issues:

o   Some questions have unequivocal answers

o   Some questions can be answered conclusively by:

§  Finding the applicable law; and

§  Understanding how the law applies to the client’s issues

o   But not all questions have definite answers à where there is no definite answer, form a reasoned opinion about

how the law applies to your client’s issues

·       Provide a reasoned opinion and use the doctrine of precedent:

o   Reasoned opinions are best when based on precedent

o   These are decisions by Judges and Magistrates resolving similar legal issues but not necessarily identical

o   Judges use decisions in prior cases with similar facts to resolve present cases

o   Your opinion is therefore a prediction of how a court might apply the law to your client’s situation, based on how

courts have applied it in similar situations

 

1.2    ADVOCATES ARE OFFICERS OF THE COURT

·       Sometimes Advocates are called upon to answers questions in court even on matters that they are not necessarily handling

·       Advocates are expected to act fairly as they are a gateway to justice

·       There is an implied duty that the advocate has a higher sense of transparency and integrity than the ordinary person when submitting documents to the court because the court relies on your documents

·       Advocates are expected to follow procedures and rules of the court (issues of ethics come in to play here as you are expected to assist the court to arrive at a fair and just decision – i.e. do not deliberately mislead the court)

2.       LEGAL ANALYSIS

2.1    WHY DO LAWYERS ANALYSE LEGAL ISSUES?

·       Lawyers are problem-solvers

·       Lawyers are called upon to answer questions à most questions come from clients, while others come from the court

·       Lawyers need to answer questions they themselves raise to achieve a certain result for the client

·       It is important to form a reasoned opinion about how the law applies to your client’s issue, and ordinarily this reasoned

opinion is based on precedent (i.e. decisions by judges resolving similar legal issues, but not necessarily identical)

·       A lawyer’s opinion, based on their legal analysis, is a prediction of how the court may apply the law to the client’s situation, based on how courts have applied it in similar situations

·       Legal analysis is the process a lawyer uses to make those abovementioned predictions

·       This is a highly structured approach for making predictions about how courts are likely to resolve legal questions

CHAPTER 9: CASE BRIEFS

 

1.       INTRODUCTION

·       It is a dissection of a judicial opinion/judicial decision

·       Contains a concise written summary of the basic components of a court’s decision

·       It represents a final product after reading and comprehending a case

 

2.       PURPOSE OF CASE BRIEFING

·       Understand the court’s opinion through a careful and purposive reading à this helps you to:

o   Find the principles of law set forth in the decision

o   Extract from the opinion its future value as a precedent

·       Predict the outcome of the case – this happens when the facts faced by your client are very similar to the facts faced by the parties in the case brief

·       Come up with arguments for a client’s case – it may be hard to draft arguments for your client’s case, especially in new

and emerging areas of law

·       Master new case law in a particular area of expertise

·       Respond to a specific question about a case

·       Reminder of the important details making the case significant in terms of the law

·       It acts as a good reference tool

·       It helps in analysing legal problems

·       It aids your memory

 

3.       BRIEFING A CASE: THE STEPS

(i)             Read through the judicial opinion that you are briefing

(ii)            Identify the facts à name of the case and its parties (look at: amicus, interested parties, etc.), what happened factually and procedurally, etc.

(iii)            Identify the issues à what exactly is at dispute?

(iv)            Identify the law applicable to the dispute

(v)            Decipher the holding (applied rule of law)

(vi)            Identify/decipher the reasons behind the holding (i.e. ratio decideni)

 

3.1    PROCEDURAL FACTS

·       This is the first basic component of a case brief

·       These are procedural events that occur after a lawsuit has been filed à i.e. you have to track what has happened through the case procedurally, right from the time it was given a case number to the time it was filed

o   Which party was aggrieved and why?

o   Which party was given a favourable judgment?

o   Which party won at the court of first instance and why?

o   Who is being sued? By whom? For what? Which court?

·       On appeal, procedural facts include which party won/lost in the trial court and why

·       They are normally found at the beginning of the court opinion since they set out the context for the issues the court will address

·       Remember: these are procedural facts and not substantive facts à they are merely procedural details about how the law suit has moved

 

3.2    SUBSTANTIVE FACTS

·       Referred to as historical or evidentiary facts

·       These describe the factual story underlying the parties dispute à i.e. there is always a narrative before the culmination of a dispute

·       They describe what happened before the parties ended up in court

·       They explain why parties are in court; a court is giving a decision because the parties were unable or unwilling to settle the dispute themselves

·       When judges are determining what triggered the case placed before them, they analyse the substantive facts à the judges anchor their holding on substantive facts, which is why they are extremely important to any legal writer drafting a case brief

 

3.3    STATEMENT OF FACTS

·       These identify the relationship/status of the parties

·       Include more descriptive generic terms to identify the relationship/status at issue, e.g. is it a buyer/seller or landlord/lettee or employee/employer?

·       At this point one may choose to identify the legally relevant facts à facts that either prove or disprove an issue before the court

 

3.4    ISSUES

·       These are legal questions a court must answer to resolve the dispute between the parties in a particular case

·       Identification of the legal questions that must be resolved in order to resolve the dispute between the parties

·       A case may have more than one issue, and in some instances the Court might not be able to discuss all the issues in one place

·       LAW CENTRED ISSUES: à i.e. when the court must interpret what a particular law means, e.g. when the matter is about a particular statute and the Petitioner wants to know whether the particular statute is constitutional or not. Examples:

o   Eunice Nganga v LSK à constitutionality of certain sections of the Advocates Act and LSK Regulations

o   Supreme Court Advisory Opinion No. 2 of 2012 on Implementing the 2/3^rd Gender Rule à in this case the former CJ dissented because he said the rule can and should be implemented immediately, whereas his colleagues said that it needs to be implemented progressively

·       FACT CENTRED ISSUES/FACT SENSITIVE ISSUES: à i.e. when the court must apply a rule of law to the factual dispute between the parties

o   Majority of decisions before the court are fact-centred issues

o   There are instances where a court may be asked to resolve a law centred issue or a fact centred issue or both

o   E.g. in the Presidential Petition, August 2017 they had to deal with both fact and law

·       The court may be asked to either resolve a law centred issue or a fact centred issue

 

3.5    ISSUES

·       Some court opinions will identify the issues in a straight forward manner à ‘The issue before us is whether a business

owner has a claim for slander against a competitor who called him a cheap skate’

·       In other situations, the court might occasionally flag the issues, by reciting what the parties have identified as the issues and then defines the issues in its own language à ‘The sole question for my determination is whether the Petition raises a substantial question of law to warrant a certification and reference of the Petition to the Honourable Chief Justice for empanelment of a bench of an uneven number of judges numbering at least three to hear and determine the Petition’

 

3.6    RULE OF LAW/LEGAL PRINCIPLE APPLIED

·       Court applies rule of law to determine the substantive rights of the parties

·       In every case, the court must decide what law applies to the parties’ dispute

·       The rule of law is derived from the Constitution, Statute, Case law, relevant subordinate legislation, or Common Law

·       May be expressly stated in a ruling/judgement or it may be implied

 

3.7    HOLDINGS

·       A holding is the court’s answer to an issue à this is how the court resolves the issues in the case

·       The number of holdings in a case is dictated by the number of issues the parties in a dispute have raised before the court

·       The issues before the court also dictate whether the holding is law-centred or fact-centred

 

3.8    REASONING/RATIONALE

·       Courts usually state their reasoning, explanation or rationale that justify their holdings

·       The reasoning is the heart of the case brief

·       The court applies the legal principles/rules to the particular facts in the case to reach its decision

·       It includes policy considerations to justify the holdings

·       Rationale often appears directly after a court’s statement of its holding

·       E.g. ‘recognising a claim for negligent supervision by a parent in this matter would open the floodgates to frivolous litigation. Minor childhood squabbles should be settled on the playground, not in the courtroom’ à rationale: some types of cases are very frivolous and do not need to be brought before a court

 

3.9    JUDGEMENT

·       This is the courts final decision as to the rights of the parties

·       This is the courts response to the prayers sought by the petitioners/plaintiffs/applicants

·       That part of the opinion which the court indicates the formal action that is to be taken, once the court has resolved the legal issues before it

·       You always need to conclude your case brief with a description of how the court disposed of the case as a result of its holding

·       E.g. ‘having given due consideration to this matter and considering the circumstances thereof I have come to the conclusion that this is not a proper case for referred to a three-judge bench. Consequently, the notice of motion rated 25^th January, 2017 is declines and is hereby dismissed with no order as to costs’

 

3.10 DISSENTING/CONCURRING OPINIONS

·       A judge may not agree with the majority’s decision, in which case he/she is entitled to write a separate dissenting opinion

·       A judge may agree with the decision but not with the majority’s reasoning, in which case he/she is entitled to write a

separate concurring opinion

 

4.       EXTRA ELEMENTS

·       Obiter dictum à commentary about the decision that was not the basis of the decision

o   These comments/remarks are not the basis of the decision

o   It is a remark in passing which may have a bearing elsewhere

·       Party’s arguments

·       Comments (e.g. personal comments) à must feature in the case brief! à this is the reaction to the decision of the opinion, and if need be then even a critique

 

5.       TIPS AND ADDITIONAL COMMENTS

·       Essence of case briefing is to transfer the case analysis into written form

·       A case brief should be brief

·       Avoid overly long and cumbersome briefs

·       Do not accept the court’s opinion blindly

·       Assess the reasoning in each case

·       Does it sound or is it contradictory? What are the political, economic, social impacts of the decision?

CHAPTER 10: DRAFTING LETTERS [& REPORTS]

 

1.       INTRODUCTION

·       Communication is the core in legal practice à even in the electronic communication environment, legal practitioners would be hard-pressed to communicate without letters

·       A legal letter takes more time to write than an ordinary letter

·       Experience and practice should make this simple and common place

 

2.       LETTERS

·       Before writing a letter, you have to consider: who the recipient of the letter is, and, what is the purpose of the letter being written

·       Letters written by legal practitioners have many purposes. They can:

o   Persuade à e.g. a letter written to opposing counsel to convince them that your Client’s position is legally sound;

o   Inform;

o   Record facts; and

o   Make demand à you can only make a legal demand via a demand letter

·       Such letters can enrage or calm the reader depending on the skill of the writer and the intention of writing the letter

·       Some letters merely have formal purposes, e.g. to confirm an arrangement or notify a client of a trial date

·       Other letters are of such significance that an error in drafting may cause a client to lose his case, e.g. a demand letter will be part of the exhibits during the main trial as this forms the basis of your client’s case (there cannot be inconsistencies between the demand letter and the Plaint)

·       All legal letters should be written in clear and concise language so that it is easy for the intended reader to understand its contents

·       Avoid using old-fashioned, outdated words and phrases à Consider what is appropriate language for your reader

·       The form of the letter should be designed to assist the reader get the intended message

 

3.       FORMAT

·       Information contained in a letter should be arranged in such a way that is both logical and easy to understand

·       A number of conventions have become accepted as forms of letter writing in legal practice

·       In various law firms there may be struct rules about language and format used

·       There may be standard introductory phrases used à e.g. letter from an NGO normally begin with ‘Greetings from [insert name of NGO]!’

·       You need to consider if those conventions attribute to the effectiveness of your communication (e.g. if there is no value added by adding a standard introductory phrase, you may drop it)

·       The best policy is to make the letter simple and easy to understand

·       Avoid unnecessary complications

·       As a drafter of a letter, your duty is to ensure that the letter conveys exactly what you want it to convey (i.e. clear and concise – letter should convey exactly what you want it to convey)

·       This may mean engaging your superior to change the format of letters used in a law firm

·       This is encouraged because it is only through thinking and questioning that you will learn

·       If you have faith in the form of your letter, use it unless otherwise convinced

·       By easily conceding to the demands of those expecting a letter to conform to a rigid formula, you may lose the opportunity to produce clear, concise and easily understandable letters

·       This does not mean that you must always change what is given as precedent

·       Some conventions make perfect sense and it would be difficult to imagine a more effective way of operating

·       A legal practitioner’s letter should follow basic conventions, changing them when necessary to make the letter more

understandable

 

3.1    BASIC FORMAT OF LETTERS

(i)            Address of the sender at the top à Must have a letter-head, even in the final exam. The letter head should capture 3 things: the name of the law firm; the physical address; the postal address (may add an email)

(ii)            Name and address of the recipient on the left-hand side beneath the sender’s address

(iii)            Date at the top directly under the name of the addressee (never forget to date letters)

(iv)            If the letter is sent by registered post, hand or fax, indicate this in bold below the date

(v)            If the letter is sent by ordinary post, do not indicate that fact

(vi)            When sending a letter to a particular person in a large organisation, make that fact clear by indicating: ‘Attention: Mr./Mrs./Ms. [x]’

(vii)            Include references (most organisations have a system of categorising and filing documents. This should be placed before the address of the recipient)

By including the above, you create a record of matters that may later become of crucial importance: when it was sent, to whom it was sent, by what mode it was sent, etc.

 

3.2    OTHER CONVENTIONS IN COMMON USE ARE:

1.       ‘Dear Sir/Madam’ à this is general but if you know the gender of the recipient, use the appropriate word

o   When writing to an organisation and not a particular person, the common phrase is ‘Dear Sir/Madam’

o   In case of specific clients, address them, e.g. ‘Dear Mr. Kamau’

2.       The subject line should appear directly after the salutation. The function of the subject line is to enable the reader identify what the matter is all about

3.       The body of the letter then follows. Effective language must be used here to convey what you want to say

4.       Signing off: ‘Yours faithfully’ is more formal and used by most practitioners as compared with ‘Yours sincerely’

5.       If you use the salutation ‘Dear Sir’ the signing off is ‘Yours faithfully’; if the salutation is ‘Dear Mr. Kamau’ then the signing off is ‘Yours sincerely’

6.       It is a good idea to include the name of the writer at the end particularly if your system of reference does not include this name. It makes it easier for the reader to contact the relevant person

7.       Where the letter is urgent and could not be checked or signed by the writer being posted, use a brief phrase like ‘Dictated by [x] and signed in his absence by [x]’ à If the letter is challenged for error, this phrase may help explain the error

8.       It is the deal and proper practice however, that the legal practitioner is responsible for a letter signed by him/her

 

3.3    BODY OF THE LETTER

·       Letters should be kept simple by using plain language

·       We should move away from jargon in our approach to letter writing

·       Avoid language that has to do with status rather than communication à do not use your status as an Advocate in society to gain an upper hand/intimidate the reader of the letter

 

3.4    PRACTICAL SUGGESTIONS

(i)             Consider the recipient of the letter

·       What is their level of education? à e.g. if you are relaying a court order to your client, do not simply repeat the legalese used by the Magistrate/Judge as the client will not understand

·       What is their ability to read and understand technical language?

·       Choose language that is appropriate and respectful

 

(ii)            Be organised

·       Collect all the information you need before starting the letter. This includes names, addresses and factual details

·       Do your research. If you have to write expressing an opinion, find out the law; form an opinion and then write the letter. Do a first draft then check for errors before sending the letter

·       Arrange the letter so that the most important information is at the beginning and the rest follows in descending order à e.g. a demand letter should be set out in chronological order

·       If the information carries equal weight, set it out in the most logical way, e.g. a demand letter is best done in chronological order

·       A well organised letter should have one idea per sentence and one idea per paragraph. That way the reader follows the writer with ease

 

(iii)            Be clear

·       Use the way you speak as a guide à Most people do not use jargon when speaking

·       Write in the active voice. To avoid confusion, there must be a subject and an object in every sentence

·       Refer to actual names and places in the letter

·       Use short sentences

 

(iv)            Think about presentation and image

·       Image of the letter counts

·       Legal practitioners need not only act professional but also look it

·       Image is reflected in the way the letter looks à All the following are bad for your image as a professional:

i.      Spelling mistakes;

ii.      Untidy layout;

iii.      Unbalanced spacing;

iv.      Illegible or smudged typeface;

v.      Dirty or damaged paper;

vi.      Untidy folding of finished product;

vii.      Mistakes crossed out and re-written in hand;

viii.      Grammatical errors

·       Once the letter is sent out, you will not be able to alter it. To prevent embarrassment, look at the letter as a recipient would before sending it

·       Letters form a big part of the business of legal practitioners; your letter could mean the difference between successful and unsuccessful practice

 

4.    DIFFERENT TYPES OF LETTERS

(i)             Letters to the client

·       Practitioners are under ethical, professional and contractual obligation to keep their clients up-to-date on the progress in their matters

·       These are important letters: you should report to the client regularly

·       You may also need to ask for more information, further instructions, notify clients of a new development, etc.

·       Write to your client in such a way that it is not necessary to explain later what you meant

·       It is bad practice to try to impress the client with legalese at the expense of proper communication

·       Your aim in writing to your client should be to foster and maintain a good client/advocate relationship

·       If you use standard form letters, try to regularly update and improve the original

 

(ii)            Letters to the opponent

·       These are the most common of letters that leave the practitioner’s office

·       If you are involved in litigation, anything sent to the opponent could be used against your client

·       Always be very careful about the contents of the letter and the manner in which it is written

·       In particular, do not use ambiguous language (i.e. write simply)

·       A letter should never be rude or written in anger à rude letters may cause you embarrassment later

·       Practitioners are colleagues and at a later stage you may be in the uncomfortable position of having to ask a favour of that person you were rude to

·       It is unprofessional and inappropriate for law practitioners to be rude in their letters

·       More importantly, do not use defamatory statements in your letters

·       Lord Denning, ‘The Traditions of the Bar’: ‘many cases have been won by courtesy and lost by rudeness’

 

(iii)            Demand letters

·       A demand letter is a letter sent to a possible defendant on the basis of your client’s instructions. It sets out the basis of your client’s claim and informs the addressee that your client will sue unless the defendant does what the letter demands

·       You are demanding: the other party complies with a legal requirement; or that the other party performs a legal obligation; or, you are demanding that they cease forthwith from engaging in certain behaviour

·       A demand letter precedes law suits and sometimes can lead to the settlement of disputes because it gives a chance to probable defendants to settle the claim out of court and avoid the whole litigation process

·       There are serious consequences if this is not done properly

·       A demand letter has cost implications and may affect credibility

·       Guiding rules:

i.      Use same structure and language as any other letter;

ii.      Do not head the letter ‘demand’ or ‘notice’ à this does not add sense to your letter

iii.      The heading should set out your client’s case accurately

iv.      The best heading to use is your client’s name and circumstances that link him to the addressee, e.g. ‘Assault on [X]’

v.      The other details then follow in the body of the letter

vi.      The introductory paragraph should say that you act on behalf of your client and that the letter is being written in terms of his instructions

o   By that you are establishing that you have mandate to write the letter in terms of information given to you by your client

o   That way, only you and not the client may be contacted thereafter

vii.      The next paragraphs should briefly state in chronological order the facts on which your client relies

o   Limit the facts to the absolute minimum necessary (just like in pleadings)

o   It is important that the facts are accurate since inaccuracies may jeopardise your case if litigation follows

viii.      The next step is to draw a conclusion in law from the facts, e.g. ‘These statements are defamatory and our client is entitled to claim damages from you as a result’

ix.      Thereafter make a demand à What relief is your client seeking? Is it a claim for money, specific performance?

o   Usual phrase? ‘Our instructions are to claim the amount of Kshs. 1,000,000 in respect of our clients damages, which we hereby do’

o   This is tired (old fashioned language). Instead try: ‘In terms of our instructions, we demand [X]’

x.      Then explain the consequences of non-compliance with the demand, e.g. your client could sue, cancel a contract etc. à Here you are making a threat, but a lawful one (a threat which your client is legally entitled to make as a result of the facts of the case)

xi.      To write such a letter, you must be absolutely sure that it is correct both in terms of facts and the legal conclusion à understand the law and facts before you begin writing

xii.      The advantages of making proper demand is that your letter may convince the addressee that the best option is to settle the matter than get involved in litigation

CHAPTER 11: DRAFTING A LEGAL OPINION

 

1.       INTRODUCTION – WHY WE WRITE OPINIONS

·       Opinion writing is persuasive – it is fact based and therefore most of the facts will be established at the interview level

·       However, this must be reinforced by an understanding of the law, therefore the need to conduct legal research

·       The legal search aids the lawyer in:

o   Identifying the relevant subject area; and

o   Identifying the area of law that will play a role in your problem-solving mission

·       In the Kenyan context, the following may be the conventional starting points when writing a legal opinion:

o   The Laws of Kenya – ordinarily, the Constitution

o   Case law (i.e. common law)

o   Customary law

o   Commentaries by authoritative writers

 

2.       WAYS OF RENDERING LEGAL OPINIONS

2.1    BY WAY OF LETTER

·       This is when dealing with a client or with a different law firm

·       When doing a letter to the client, keep it simple – written communication must consider the reader

·       When writing an opinion for another lawyer, it is advisable to use a covering letter forwarding the memorandum (i.e. opinion)

 

2.2    BY WAY OF OFFICE MEMORANDUM

·       A memorandum must be headed with the “To: [insert name]’” and “From: [insert name]”, then the date and the subject line. Following this there is the body of the memorandum

·       The first thing to include in the body of the memorandum is a narration of the facts as you understand them from the instructions

·       After, ask yourself the following questions: what are the legal questions arising? Is there a course of action, and if so, what is the course of action? à after this, proceed to answer the legal questions

·       This reflects your understanding of the facts and the law, as well as how you apply the law to the facts

·       At times, people break down memorandums into short answers. When this is done, you must explain it in substance thereafter. There must be evidence of application of the law to the facts

·       The final stage is to summarise the factual analysis, the application of the law, and to make a recommendation. This forms the conclusion and it is critical, since it should persuade the person you are writing to

·       It is advisable also to number the paragraphs for ease of reference/understanding

·       At the end of the memorandum, sign off with your name and signature

 

3.       CONTENT OF A MEMORANDUM/OPINION

·       The element of identifying the facts and the legal principles, then identifying the applicable law and applying those legal principles to the facts, is critical when drafting a legal opinion

·       The writing process is ordinarily referred to as FIRAC

·       It is wise to break a legal opinion into headings – however, this approach would not work in a letter

·       When dealing with a multi-faceted problem, they should each be broken down under each section

·       In as far as rules of law apply, one must to is hierarchically – the principle first and then the application

·       Be very clear on the rules of law, e.g. if you are applying customary law, state this and explain why it is applicable

·       In writing an opinion to your client, it is important to strike a delicate balance between providing coherent advice and keeping the opinion as simple as possible, e.g. avoid loading it with statutory provisions and case law

4.       PREAPARATION OF DRAFT LEGAL OPINION

(i)             What is the purpose of the opinion? – this will help you determine what language to use

(ii)            Understand the facts of the case and the issues arising – what is the (relevant) subject matter?

(iii)            Understand the legal rules/principles governing the subject matter (may include having to undertake some background reading/research)

(iv)            Look at how similar situations have been considered by courts in Kenya

(v)            Consider the client – whom are you advising and what do they want out of the opinion?

 

5.       FORM OF A LEGAL OPINION

·       Always commence the opinion by setting out a brief summary of the facts as presented before you. This will help you to understand and crystallise the issues that need to be dealt with

·       Identify and set out all the issues arising. In other words – what are the issues that you are proposing answers to?

·       Set out the answers to the issues raised. Bring out the legal discussions you rely on and distinguish issues and decisions as the need arises. Discuss all the issues separately and in manageable paragraphs (which advisably should be numbered). For continuation of paragraphs, use transitions so as to have a logical sequence

·       Set out a summary statement of your conclusion

·       Remember that opinions take different forms and each has its own structure and format

 

EXAMPLE: FORMAT OF LEGAL MEMORANDUM
HEADING	Identify the client or give the case number
INTRODUCTION	Identify the client, and state why the matter was referred to you. Set out the basic issues arising, and possibly a short summary of the answers to those issues.
BODY	Start with a detailed statement of the facts. All relevant facts, including facts in dispute and facts relevant to the case, should be included. The facts must be presented in a chronological manner- you may number the paragraphs or use subheadings in different paragraphs
PRECEDENTS	Undertake a survey of the pertinent statutes involved. Identify and briefly describe the statutory provisions relevant to the issues in question. If there are decisions arrived at relating to the facts, use these (and start with the most recent).
DISCUSSION	Undertake a discussion of the issues raised – remember to discuss each issue separately. Discussion of issues is the central part of the memorandum. Do not only give the strong points of your case, bring out the weak points too. Give a dispassionate opinion of the case
CONCLUSION	Remember, you are not making a decision. This is a summary of your predictions about the state of the law and how it applies to the case before you. You should never give an affirmative position
RECOMMENDATIONS	What do you propose to your client?

CHAPTER: POLICY MAKING – THE BASIC PRINCIPLES

 

1.       INTRODUCTION

·       Every person engaged in the legislative process must take into account certain mandatory considerations prior to and during the process

·       These ideals spring form the Constitution of Kenya, 2010 and are essentially the mandatory tenets, values and principles of the Constitution that ought to be applied and considered by all actors involved in one way or the other in the legislative process

·       The considerations are:

(i)            Constitutional issues;

(ii)            International treaties and conventions ratified by the State;

(iii)            Territorial jurisdiction;

(iv)            Conflict of law;

(v)            National law and policy;

(vi)            Policy parameters;

(vii)            Statutory harmony;

(viii)            Ethical and other concerns;

(ix)            Technical soundness or practicality concerns;

(x)            Public participation; and

(xi)            Cost-benefit analysis

 

1.1    CONSTITUTIONAL ISSUES

·       The Constitution takes the form of modern democratic constitutions and makes elaborate provisions aimed at achieving broad national goals

·       Not only does it create mechanisms for its own implementation, it enhances and upholds democratic ideals through democratising electoral and legislative processes and strengthening institutions

·       The Constitution binds all persons and State organs at both levels of Government

·       Specifically, the Constitution creates State organs and other public entities which are dedicated to the legislative process

– every person is obligated to respect, uphold and defend the Constitution

·       Thus, all parties involved in the legislative process must ensure that the instrument in question:

o   Conforms to the letter and spirit of the constitution and promote its purposive interpretation;

o   Respects the functional demarcations in the 4^th Schedule;

o   Respects legislative competencies since the constitution recognises which State organ has what powers to make provisions with the force of law in the Republic;

o   Upholds the values and principles of the Constitution; and

o   Respects and upholds the Bill of Rights and Fundamental Freedoms

 

1.2    INTERNATIONAL TREATIES AND CONVENTIONS

·       The Constitution recognises that all treaties and conventions ratified by the State and the general rules of international law form part of the law of Kenya

·       Consequently, policies formulated and legislation enacted after the promulgation of the new Constitution must respect the general principles of international law

·       Further, such instruments must focus on the implementation of the relevant treaties and conventions ratified by the State

 

1.3    TERRITORIAL JURISDICTION

·       Generally, a State can only legislate to govern matters within its territorial boundaries

·       However, there are exceptions to the general rule – e.g. when dealing with economic and other serious white-collar crimes, crimes against humanity, child trafficking, etc.

·       The legislative drafter must be conscious of possible challenges of implementation or violation of the corpus or the Bill of Rights when formulating policies or a Bill with extraterritorial effects

 

 

1.4    CONFLICT OF LAW

·       Players engaged in the legislative process must respect and uphold the relevant provisions of the Constitution on functional assignment in order to avoid a potential conflict of laws

·       Although Parliament may legislate on any matter for the Republic, either level of Government may ordinarily make law on their respective areas of Constitutional competency

 

1.5    NATIONAL LAW AND POLICY

·       National legislation and policy apply uniformly throughout the country

·       Thus, national legislation is expected to deal with issues that cannot be effectively regulated through individual county legislation, hence the necessity to establish uniformity in the regulation of that particular concern

·       National legislation is primarily concerned with:

(i)            Maintenance of national security;

(ii)            Maintenance of economic unity;

(iii)            Protection of the common market;

(iv)            Promotion of economic activities across boundaries;

(v)            Promotion of equal opportunity or equal access to government services; or

(vi)            Protection of the environment

 

1.6    POLICY PARAMETERS

·       The ideal and recommended position in the legislative process is that policy precedes the formulation of a Bill or any other legislative instrument

·       The importance of developing a policy framework is to allow the executors to determine a clear road map, conduct an assessment of the problem and possible solutions and define the opportunity to be embraced and modalities to realise the benefit prior to proposing the necessary legal framework

·       Players in the legislative process must appreciate the necessity to formulate policy that will guide and clearly set out the best approaches to dealing with the policy challenges at hand

·       A policy maker must satisfy themselves as to the soundness of the legislative proposal in policy terms

 

1.7    STATUTORY HARMONY

·       It is important for persons engaged in the legislative process to undertake detailed research to establish whether:

(i)            A legislative proposal before them has previously been legislated;

(ii)            Who or which entity has been responsible for its execution;

(iii)            Which other existing legal framework can be modified, amended or repealed to allow for the situation at hand to be redressed; and

(iv)            Which other legislative measure can be employed to deal with the matter

 

1.8    ETHICAL AND OTHER CONCERNS

·       There are certain ethical or religious beliefs and practices that a policy maker or drafter or law maker must consider, or where need be, remain silent on or exclude in legislative instruments

·       This may be necessary in order to avert possible legal challenges or public uproar and discontent

 

1.9    TECHNICAL SOUNDNESS OR PRACTICALITY CONCERN

·       When a law, policy or other legislative instrument is technically sound, this means that it can be implemented devoid of any unnecessary or administrative bureaucracy or other hurdles

·       In adopting an administrative mechanism to implement policy frameworks, the persons engaged in the legislative process must consider the most appropriate, cost-efficient, effective and efficient mode

 

1.10   PUBLIC PARTICIPATION

·       The Constitution obligates the State and all State organs to ensure adequate public consultation on all public policies, legislation, or any decision that is likely to impact the people of Kenya

·       Failure to factor in the mandatory requirement of public participation exposes the legislative instrument or policy framework to constitutional challenge of legitimacy, hence making it actionable for unconstitutionality in a court of law

·       Public participation facilitates a two-way flow of ideas between the government and other sectors of society

·       Effective public consultation is based on principles of openness, transparency, integrity and mutual respect

 

1.11   COST-BENEFIT ANALYSIS

·       The Constitution requires all State entities to ensure financial prudence and that public funds are administered and utilised in a sustainable manner which takes into account the needs of future generations

·       It is therefore prudent to conduct a cost-benefit analysis of a proposed piece of legislation, which involves estimating the net economic value of a given policy, law or regulation to see if the benefits outweigh the costs

·       There is also need to make budgetary considerations while seeking to legislate in order not to legislate a law that has onerous monetary implications such that its implementation becomes unsustainable

CHAPTER: THE POLICY FORMULATION PROCESS

 

1.       INTRODUCTION

·       It is best practice for a policy to precede a law

·       As a matter of fact, most legislation, including subsidiary legislation, trace their foundation or anchorage on an agreed policy framework

·       Save for Bills emanating from the respective houses (‘Private Member Bills’), the bulk of other Bills spring from policy proposals of the Executive, Civil Society, Professional Bodies, private sector and individual citizens or other organised groups of people

 

2.       WHAT IS A POLICY?

·       A policy is a course or a principle of action, adopted or proposed by government, party, business or individual

·       Black’s Law Dictionary: policies are the general principles by which a government is guided in its management of public affairs

·       Policy is a document which outlines what the government or an individual aim to achieve for society as a whole

·       Policy discussions resolve whether or not a law is needed to achieve the aims set out in the policy or the most appropriate approach to resolve a problem or embrace the opportunity at hand

 

3.       THE CONSTITUTION AND POLICY MAKING

·       The Constitution recognises in several instances the necessity to formulate, debate, approve and implement policies

·       It recognises the need for all arms of Government to engage the public in the formulation of policies

·       Article 10 also obliges all State Organs, State and public officers and all persons to apply and respect the values and principles as enshrined in the constitution when making and implementing public policy decisions

·       E.g. inclusivity, good governance, integrity, transparency, accountability and sustainable development

 

4.       WHO INITIATES A POLICY?

·       Policy ideas may originate from the Executive and Executive entities, political formations such as parties, business associations, organised groups or individual citizens

·       A person may originate a policy idea since, according to the Constitution, any person has a right to petition Parliament or the County Assembly to consider any matter within its authority

·       It is always recommended for the person who originates a policy idea to prepare a policy brief, which brief combines research synthesis and strategy recommendations

 

5.       PUBLIC PARTICIPATION IN THE POLICY-MAKING PROCESS

·       One of the most salient features of our constitutional framework is the requirement of public participation in governance and other administrative activities

·       Public participation is the premise on which devolution is anchored – Section 87, County Governments Act provides for:

o   Access to information and data relevant to and related to policy formulation;

o   Reasonable access to the process of formulating policy and other government programs;

o   Protection and promotion of minorities within counties; and

o   Recognition of non-state actors in formulation and implementation of policies

 

6.       FACTORS TO CONSIDER IN THE POLOCY MAKING PROCESS

(i)              Formulation of a policy must be based on need, emerging or possible change that may be anticipated

(ii)            How the proposed policy is to be managed and resources from the point of formulation to the point of implementation

(iii)           The time it will take to formulate the policy, work out its means of implementation and develop any necessary enabling legislation

(iv)           Information requirements for the full understanding and implementation of the policy

(v)            The model and process of devolved government as a requirement of policy initiatives

(vi)           Public participation, debate or input and a consideration as to where and how to involve the public in developing policy

(vii)         The practical aspects of policy implementation

(viii)        The connection between the expected outcomes (goals) and the public policy

(ix)           The need to ensure that the policy framework is tailored to local needs

(x)             The constitutional and legal underpinning and authority for whichever level of government to initiate the process of policy formulation

(xi)           The functional assignment of the two levels of government

 

7.       SALIENT FEATURES OF A POLICY FRAMEWORK

(i)              Forward looking – i.e. it must have a long-term view of the problem and offer a long-term solution

(ii)            Benefit from experience of others who have resolved similar situations

(iii)           Seek new solutions to old problems by being clear on objectives and outcomes

(iv)           Be based on a study or current analysis of the problem at hand

(v)            Offer an inclusive solution to all segments of the community in which it will be implemented

(vi)           Fit into the correct policies being implemented by other agencies

(vii)         Borrow from best practice s- i.e. learn from implementation mistakes and successes elsewhere

(viii)        Have an in-built communication strategy for dissemination to the public and all stakeholders

(ix)           Should have an evaluation and review mechanism as one of its features

(x)             Provide a pre-legislation impact assessment statement

 

8.      

STAGES IN THE POLICY FORMULATION PROCESS

 

8.1            POLICY INITIATION

·       Policy initiation is a function of a number of players, e.g. Government Ministries, Department and Agencies; citizens; institutions; stakeholder groups; etc.

·       These players inform the National or County Executive concerned who propel it to the ministerial level

 

8.2            RESEARCH

·       During this stage, it is expected that the proponent of the policy will undertake comprehensive and comparative research on the matter to be regulated

·       The proponent may undertake study visits, within or outside the Republic of Kenya, to ensure that the policy benefits from best national and international policies and practices

·       Expert opinions should be sought

·       Task forces, committees and other consultative machineries may be consulted with a view to ensuring that all entities that are likely to be affected by the policy contribute to the policy process at the formative stages

8.3            NEGOTIATION & PUBLIC PARTICIPATION

·       The substantive contents of the draft policy are debates and negotiated with various stakeholders, e.g. opposition parties, the public, NGOs and all other interest groups

·       This stage is ordinarily the longest one in the legislative process

 

8.4            FINALISATION OF THE POLICY

·       This comes after the draft policy has been properly debated, whereupon the proponent crystallises the issues and options available and draws up a final policy document

 

8.5            CABINET/COUNTY EXECUTIVE COMMITTEE APPROVAL

·       Once the respective Cabinet Secretary (in the case of National Policy) or County executive Committee Member ( in the case of a County Policy) is satisfied that proper analysis has been conducted, different approaches have been identified and discussed, and that the policy document is the best option available to redress a situation, he/she shall submit the policy to Cabinet or the County Executive Committee for approval

·       The Cabinet Secretary or County Executive Committee Member must ensure to highlight salient features of the Bill and bring out all constitutional, fiscal and other implications the policy will/is likely to have

 

8.6            PARLIAMENTARY/COUNTY ASSEMBLY APPROVAL

·       Upon approval by the Cabinet or County Executive Committee, the Policy document is published and tables in the resected Houses for debate and approval

·       The policy document may be approved with or without amendments

·       Where significant changes are likely to be made, the House invites the views of the Executive for value addition and further clarification

·       The House may also subject the policy to public and stakeholder consideration

 

8.7            ASSENT

·       Upon passing by the respective House at either level of Government, the Speaker of the respective House submits the approved policy to the President (in the case of the National Government) or the Governor (in the case of the County Government) to formally endorse by affixing the National or County Seal and signing the policy

·       This is also known as ‘assent’

 

8.8            PUBLICATION

·       Upon assent, the policy is published as a White Paper (i.e. a statement of intent and detailed policy plan, which often forms the basis of legislation)

·       The Executive is expected to widely circulate the policy and keep the public informed of its effects

CHAPTER 12: LEGISLATIVE DRAFTING [INTRODUCTORY]

 

1.       INTRODUCTION TO LEGISLATIVE DRAFTING – HISTORY

·       The discipline of legislative drafting in the Commonwealth can be traced back to England in the 15^th century

·       Barristers in private practice, counsels and officials were chosen to draft statutes upon petition from either House of Commons or the House of Lords. Subsequently the role was assumed by the office of Parliamentary Counsel

·       In Kenya, we currently do not have the title of ‘Parliamentary Counsel’, as the drafters come from various areas, e.g. the

state law office, private practice, academia, etc.

·       There were drafters of laws from as far back as the BC era: Law of Moses, Egyptian Laws, etc.

(i)            E.g. ‘Thou shall not covet thy neighbour’s wife’ from the Law of Moses

§  Neither shall thou desire thy neighbour’s wife (2^nd version)

§  A wife can only be ‘desired’ not ‘coveted’

(ii)            Modern version: ‘A person shall not desire the spouse of a neighbour’

·       In Kenya from the colonial times till recently, the task of drafting laws was placed upon the office of the Attorney General (i.e. the state law office)

·       Times have changed now, i.e. we have 2 dedicated bodies for legislative drafting: Parliament and the Kenya Law Reform Commission undertake drafting of the laws; however, the office of the Attorney General is still the final institution to review the legislation before publishing it

·       The nature of legislative drafting makes it a discipline

·       Legislative drafting may be described as an Art, for the reason that it nurtures abilities of clear, cogent, concise thinking into a habit of restrained writing

 

2.       LEGISLATION – THE DEFINITION

·       Legislation has been defined as the process of making or enacting a positive law in written form, according to some type of formal procedures, by a competent branch of Government constituted to perform this process

(i)            In this context, positive law is identified to mean statutory, man-made laws as compared to natural law (law as is)

à the legitimacy of positive law is derived from civil or political authority

(ii)            This differs from natural law which is a body of unchanging moral principles that are regarded as a basis for all human conduct (law as it ought to be) à the legitimacy of natural law is derived from moral reasoning based on what is believed to serve the best interest or common good of society

·       It is commonly referred to as Law making or Statute making

·       Legislation is the product of a legislative process according to which competent legislative bodies enact rules of law on particular matters

·       The main purpose of the legislative arm of government is to enact laws, however, the legislature should not be used as a

mere ‘rubber stamp’ to legitimise interference with the legal process

 

3.       LEGISLATION – THE BASICS

·       Legislation must be drafted

·       Legislation cannot be verbal

·       There must exist a machinery or institution in and of Government that deals with the drafting of the laws

 

4.       LEGISLATIVE DRAFTING

·       It involves the drafting of binding rules of law for the regulation of society which are to be enacted by government bodies with legislative powers

·       Involves communicating those roles of law to the members of society through the written language/platform which is a legislative instrument

(i)            The drafters must elect a language that they know will communicate to members of society at large

(ii)            Drafters must be deliberate in their word usage to ensure everyone understands the legislative instruments, e.g. your target cannot be Advocates

·       Describes the entire process of taking law ideas, refining them and developing the language to carry them out, organising

the language so as to achieve the sponsor’s objective. This may be broken down into:

(i)            Raw ideas, stemming from a problem in the country

(ii)            Refine the ideas, i.e. make them palatable

(iii)            Organise the language, to ensure the problem and the means to avoid or correct it can be understood by society at large

 

5.       THE ROLE & RESPONSIBILITY OF THE DRAFTER

·       Specialists who weigh the past, consider the present and project into the future to enable a piece of legislation places on the statute book to be of great assistance to the whole society

·       A drafter has to deal with problems of the past and present and also think of the future by laying down the rules that will stand the test of time. Examples of learning from the past:

(i)            Creation of the Supreme Court to deal with presidential election petitions following the 2007 post-election violence

(ii)            Prior to 2006, we did not have any statute that dealt with particular sexual offences (now we have the Sexual Offences Act) and so we had a society in which sexual offences were prevalent à e.g. prior to the SOA 2006, gang rape and HIV offences were not recognised and/or governed by statute

·       Legislative drafting requires constant study and involvement à years of experience and hard work are needed to produce a successful drafter

·       Have basic understanding of the law

·       Pay meticulous attention to detail

·       Ability to supply a systematic approach to solving a problem

·       Have an analytical mind

·       Be well informed and must keep abreast of events in the jurisdiction and the world generally

·       Appreciate the cultural, economic, political and social policies that form the basis of drafting legislation

(i)            E.g. The Prohibition of Female Genital Mutilation Act 2011

(ii)            Was introduced because many girls were dying due to this harmful cultural practice

·       Ready and willing to learn from stakeholders and work with them

·       Show concern with the practical and effective implementation of the Law

·       Accept criticism with tolerance and good humour

·       Ability to carry out extensive legal and factual research into the scope of the problem which it to be dealt with by the legislation

·       Need for clear and comprehensive drafting instructions to the drafter from the policy maker

(i)            Instructions must be clear for the drafter to know what the problem is

(ii)            The instructing client has a set of ideas that are submitted to the drafter in order to convert the ideas into law

(iii)            The ideas may be part of what we call policy à remember: the policy maker and the drafter cannot be the same person; the policy maker should give instructions to the legislative drafter to ensure that the policy maker does not usurp the role of a drafter

·       The general role and responsibility of the drafter is to effectively communicate the intention of the policy maker to those will use or be affected by the legislation

 

6.       PRINCIPLES OF LEGISLATIVE DRAFTING

·       Legislative restraint: stakeholders should approach the enactment of laws prudently and avoid making unnecessary legislation

·       Compatibility and uniformity: new legislation should be harmonised with existing legislation

(i)            It is very important that the legislative drafter ensures that the legislation is compatible with and complies with the constitution, to avoid being deemed unconstitutional and rendered null and void

(ii)            E.g. NTSA Act and the Traffic Act essentially regulate the same thing or the Marriage Act and the Law of Succession

·       Clarity, recognisability, intelligibility and accessibility

·       Simplicity and brevity

·       Accuracy and unambiguity

·       Legal certainty and justice: who does the law apply to and the person responsible for implementing the law, so that there is certainty regarding who that particular law effects

 

7.       THE 7 C’S OF LEGISLATIVE DRAFTING

 

CHAPTER 14: KEY REFERENCE LAWS IN LEGISLATIVE DRAFTING

 

1.       INTRODUCTION

·       The importance of certain key tools to the legislative drafter cannot be over emphasised

·       These laws give the basic principles that inform the art and practice of legislation

·       They include the following:

o   The Constitution of Kenya 2010

o   The Interpretation and General Provisions Act

o   Revision of Laws Act

o   The Public Financial Management Laws

·       The above laws are extremely important to a legislative drafter because they inform the art of legislative drafting

·       The drafter must conform to the principles established in these laws with regard to the principles established in relation to legislative drafting

·       A drafter must be very conversant with these enactments in order to foster the Rule of Law and consistency of language

·       Under the new constitutional dispensation, and 4^th important piece of legislation to consider is the County Government Act à County laws must be in line with the County Government Act à this is because legislative enactment has been devolved in the County Assemblies

·       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

 

1.1    THE CONSTITUTION OF KENYA 2010

·       A draftsperson should use the Constitution as a mirror

·       It is the supreme law of the land/Republic and binds all persons and all State organs at both levels of Government

·       A draft Bill must be in line with the Constitution; it is the cornerstone of the Rule of Law

·       Some of the key reference provisions in the Constitution on which legislative drafting is anchored include:

i.            ARTICLE 2:

o   This article restates the supremacy of the Constitution

o   Article 4, Sub-article (4) makes clear that all legislation must conform to the constitution

o   Do not draft anything inconsistent to the Constitution as the same will be rendered void

o   Sub-article (6) is also important because it links international law to the laws of Kenya à Policies, formulas and legislations enacted after the promulgation of the new constitution must respect the general principles of international law. Such instruments must go further to focus on how such treaties would be implemented by national legislation

 

ii.            ARTICLE 10:

o   This states the national values and principles

o   This section demands transparency, accountability, participation and inclusiveness

o   A drafter must ensure that they should incorporate these national values and principles in the legislation they seek to draft

o   The legislative drafter must be able to look into the past, be guided by the present and be able to project into the future

 

iii.            CHAPTERS 8, 9 AND 10:

o   The constitution provides for the Legislature, the Executive and the Judiciary

o   These 3 arms of government are all important in legislative drafting à while the legislature is the key arm of government that is responsible for legislative drafting and enacting laws, even the Executive and Judiciary are equally important

o   E.g. the Judiciary must give a purposive interpretation to legislation drafted by the legislature, and the Head of the Executive must assent to a Bill before it is passed to become an Act of Parliament

o   The new constitution has also clearly spelt out the separation of powers regarding the 3 arms of government, which is an essential element of any democratic system. This democratic system also facilitates legislative drafting because it makes clear how laws will be enacted and to prevents interference with the process

 

iv.            CHAPTER 15:

o   It provides for Constitutional Commissions and Independent Offices

o   These serve to improve checks and balances over the 3 arms of government

o   These Commissions and Independent Offices ensure that the three arms of government are efficient in terms of their mandate

o   E.g. the Judicial Service Commission is the independent oversight authority over the Judiciary à e.g. the JSC has incorporated values such as transparency and accountability in the manner in which Judicial Officers are recruited, which values were not alive before the new constitutional dispensation was enacted

 

v.            CHAPTER 8:

o   It provides for Legislative authority at both National and County Government

o   The National Government has 2 legislative houses: The Senate and the National Assembly à before this we only had one House of Parliament, but now we are bicameral

o   New Constitution has created 47 County Assemblies in the 47 Counties, in essence the Legislative process is now devolved At the County Government level, we have the County Assemblies (Article 185 + County Government Act à explain the scope of the County Assemblies)

o   The County Assembly’s core mandate includes oversight and passing legislation

o   County legislation is essential to enable full implementation of devolved functions

o   The effective exercise of this legislative function has been hampered inter alia by lack of sufficient technical legislative capacity and lack of clear process of formulating legislation

 

1.1.1       THE LEGISLATIVE ROLE OF PARLIAMENT

·       Power has to be exercised in accordance with the Constitution

·       Other than the Constitution, Parliament is guided by Parliamentary procedures and practice contained in: Standing Orders; Speakers Rulings; and Parliamentary customs

·       Parliamentary authority to make laws is exercised through passage of Bills (Article 109)

 

1.2    THE INTERPRETATION AND GENERAL PROVISIONS ACT

·       Provides the basic rules that courts apply when interpreting the provisions of an Act of Parliament or subsidiary legislation made under an Act

·       It defines certain words and expressions and removes the necessity to repeat the meaning in an Act

·       Apart from definitions and rules of construction, the Interpretation and General provisions Act includes substantive rules of law such as provisions relating to the effect of repealing of an Act

·       In summary, the IGP Act: clarifies the rules of construction; clarifies the effects of amendment, repeals and alterations of an act; and avoids repetition and promotes consistency of language

 

1.3    REVISION OF LAWS ACT

·       Deals with the review of laws to ensure that statutes are up to date

·       Revision of laws and allocation of Chapter numbers (‘Cap numbers’) are done by the Office of the AG and National Council for Law Reporting (NCLR) which exercises delegates authority of the AG’s office to that extent

 

1.4    THE PUBLIC FINANCIAL MANAGEMENT LAWS

·       They are critical in order to ensure that the proposed laws conform to the requirements of public resource management

·       They include:

o   Public Finance Management Act 2012

o   Public procurement and Disposal Act 2015

o   Public Audit Act 2003

o   Statutory Instruments Act 2013

CHAPTER: DRAFTING INSTRUCTIONS AND LEGISLATIVE PLANS

 

1.       DRAFTING INSTRUCTIONS

·       Before embarking on a drafting assignment, the drafter must be clear on the mischief or defect intended to be remedied or the opportunity to be embraced

·       This can only be possible if the drafter is afforded proper drafting instructions

·       Even after getting instructions, the drafter must work in close collaboration with the instructing department and ensure that, as far as possible, legislation is based on sound legal principles, gives effect to the intended policy and is clear, understandable and practicable

·       Thus, drafting instructions are the data provided to the legislative drafter by the policy makers as a means of assisting the drafter to draft effective legislation within the parameters detailed by the policy makers of the government

·       The legislative drafter needs to know:

(a)            What the present state of the law is;

(b)            What the law is to be; and

(c)            Why the law is to be as in (b)

 

1.1    SCOPE OF THE INSTRUCTIONS

·       Drafting instructions should explain the reasons for the proposals, i.e. the problem the proposed legislation is intended to solve, or benefits it is intended to confer

·       They should set out the principal objectives of the proposed legislation, and how the objectives are to be achieved by legislation

·       The instructions should mention any public response which has already been obtained in respect of the proposals, including consultation – e.g. through the Law Reform Commission

·       The drafter is not asked to weigh the responses, but it is helpful to know what the various views were

·       Instructions should deal with the legal aspects of the proposal – i.e. tell the drafter what the present state of the law is, what the law is proposed to be, and why

 

1.2    CONTENTS OF THE INSTRUCTIONS

 

BACKGROUND INFORMATION	·       Instructions should contain sufficient background information to enable the drafter to understand the problem or initiative, how it has arisen, and why it is being proposed ·       This should include issues the legislation is intended to deal with
PRINCIPAL OBJECTIVES	·       The principal objects of the legislation should be clearly and fully stated ·       It is helpful for the drafter to know the purpose of the legislation and for the instruction department to think through its precise purpose, so that the drafter properly understands what it is the legislation is intended to achieve
HOW                   TO ACHIEVE OBJECTIVES	·       The instructions should include an accurate and comprehensive description, in straight forward language of how the objectives of the legislation will be achieved ·       Important issues of policy and administrative details should be included in the instructions ·       E.g. if the power to make Regulations is envisaged, the instructions should identify the kinds of things that are intended to be dealt with by the regulations
TIME FRAMES	·       If the draft legislation is to be the subject of a consultative process, the instructions should describe the nature of the process and the projected timeframes
AVAILABLE INFORMATION	·       The instructions should include information about the availability of all relevant legal opinions and legal research ·       Also, relevant court decisions or an indication of their availability, and legislation in other jurisdictions that might provide assistance
REPEALS                     & TRANSITIONS	·       The instructions should mention any Acts or Regulations to be repealed ·       Also, any transitional or savings provisions needed to deal with issues arising as a result of the repeal of one law and the enactment of a new law ·       The instructions should state the proposed time frame for the coming into force of all or part of the legislation, and/or information about how the law is to come into force

1.3    FORMAT OF DRAFTING INSTRUCTIONS

(i)             Proposed legislation

(ii)            Sponsoring Department/Ministry

(iii)            Department/Ministry contact officer

(iv)            Date of Cabinet approval in principle (copy to be attached)

(v)            Main objectives of the proposed legislation

(vi)            Practical implications of the proposals

(vii)            Unresolved issues

(viii)            Legal advice received

(ix)            Level of penalties (if any)

(x)             Acts to be amended or repealed (if any)

(xi)            Transitional or savings provisions

(xii)            Proposed commencement date

(xiii)            Other departments consulted

(xiv)            Other matters (including relevant background information, reports, etc.)

(xv)            Proposed timetable

 

1.4    WHAT FORM SHOULD THE INSTRUCTIONS TAKE?

·       Most legislative drafters prefer to receive instructions in a straightforward and narrative form – many officers do not object to instructions in the form of a draft, preferably annotated with explanations

·       Departmental drafts are instructions only and legislative drafters will prepare their own draft based on the instructions

·       Consequently, departmental officers should avoid committing to any particular form of words or expression, because they may not survive the drafting process

·       Alternatively, involve legislative counsel early to get their input on proposals

 

1.5    ETHICAL IMPLICATION FOR DRAFTERS AND DRAFTING IMPLICATIONS

·       Drafters should serve as custodians of the Rule of Law to ensure good governance and avoid arbitrary decision-making

·       Drafters should protect public interest, loyalty to the legislative process and the legislature itself

·       Drafters should display competence in translating policies into effectively implementable legislation – must never draft in a way that violates public interest

·       Drafters should refuse to carry out the Ministry/Agency’s instructions if:

o   The instructions do not uphold the Rule of Law; or

o   Drafting the law will violate the constitution

 

2.       LEGISLATIVE PLANS

·       A legislative plan is a document which provides the drafter with the basic outline of the legislation, raising issues and possible content of the proposed legislation

·       This is the drafter’s answer to the drafting instructions, and it includes:

(i)            Objects of the required law;

(ii)            Proposed title;

(iii)            Substantive issues to be covered by the law;

(iv)            Implications of the proposed law, which involves the following considerations:

§  Analysing the existing law to check if the proposed law has any impact thereon, or vice versa;

§  Constitutionality of the proposed law; and

§  Analysis of the required standards of the law, such as the competence of the instructing organisation, effect on fundamental rights and freedoms, retrospective application and introduction of extraterritorial jurisdiction (if permissible)

 

3.       STAGES OF DRAFTING A BILL

A drafter with full drafting instructions from the instructing department follows the path outlined below to prepare the desired draft legislative instrument:

 

(i)             Receives and reviews instructions from the instructing department;

(ii)            Conducts a factual background check into the area of legislation and other related areas;

(iii)            When necessary, seeks clarification from the instructing department on policy issues and any necessary information on the intended legislation;

§  The consultation may go beyond the instructing department to other departments that may be affected by the policy

§  Departments with an implementing role should also be consulted

(iv)            The drafter, arising from the consultation, formulates a draft that is clear on the policy intentions of the drafting department;

(v)            The drafter undertakes comparative research to ensure that the draft legislative instrument benefits from international best practices;

(vi)            The drafter devises ways around any problems that may arise out of the proposal and harmonises any departmental conflicts in content and policy;

(vii)            In case of drafts that are subject to Parliamentary or County Assembly committee’s reviews, draft and incorporate any amendments that the committee’s make and certify that the assent copies are accurate as debated and passed;

(viii)            Certify that the Minister/Cabinet Secretary has powers to make subordinate legislation and that the same is accurate and in line with delegated authority; and

(ix)            Ensure that the draft legislative instrument conforms to the letter and spirit of the Constitution

CHAPTER: SALIENT FEATURES OF A BILL

 

1.       WHAT IS A BILL?

·       A Bill is a formal legislative proposal presented in Parliament on an area identified for legislation

·       The structure of a Bill in our Kenyan system is as follows:

(i)             Preliminary provisions à the introductory provisions

(ii)            Principal provisions à perhaps the most significant part of a Bill because they identify the substantive and administrative parts of a Bill. These provisions (i.e. the substantive and administrative provisions) are what bring out the objects of a Bill

o   Substantive provisions

o   Administrative provisions

(iii)            Miscellaneous provisions à e.g. if there are offences under a Bill, you will find them here. You will also find: applicable penalties, subsidiary legislation, etc.

(iv)            Final provisions à this contains technical aspects, e.g. repealing laws, amending laws, etc. à it also contains the savings and transitional provisions. Schedules are also identified under final provisions

·       The above structure is used for every Bill à it must be followed as it provides the Bill with a logical sequence

·       A Bill may also be divided into parts depending on its length, and the parts may be divided into sections, and the sections are further divided into sub-sections, and the sub-sections are divided into paragraphs and the paragraphs are divided into sub-paragraphs

 

 

2.       PRELIMINARY PROVISIONS

(i)             Arrangement of sections/clauses*

o   When you are drafting a Bill, we say ‘clauses’ and not sections

o   The clauses become ‘sections’ when the Bill becomes an Act of Parliament à this is when it becomes

‘arrangement of sections’

(ii)            Long title*

(iii)            Preamble

(iv)            Enacting formula*

(v)            Short title*

(vi)            Commencement

(vii)            Interpretation provisions*

(viii)            Application

[Provisions marked with * are what examiners look out for]

2.1    ARRANGEMENT OF CLAUSES

·       It gives an indication of the arrangement of the parts, sections and subsections of the Bill

·       They use the same heading contained in the headings and marginal notes

·       They do not form part of the Act but are a useful index for the Bill

·       It is not subject for debate in parliament

·       It is on a separate page immediately before the substantive part of the Bill

·       They are a useful index of the Bill

 

2.2    MARGINAL NOTES

·       All legislative instruments must have marginal notes

·       They are usually found on the righthand side of the section, rule or regulation

·       They offer the user of a legislative instrument a concise indication or synopsis of the content of the section

·       They enable the reader to direct their attention quickly to the portion of the Act which they are looking for

·       Must be accurate and not contradict the content of the section or the Regulation they refer to

·       There is a deliberate objective by the drafter to ensure that the user can easily glance at the marginal note and know what to expect from the section

·       The marginal note should be confined to the clause/section (and not to the subsection)

 

2.3    LONG TITLE

·       This is a description of the Bill

·       This title is to be found at the beginning of the Bill

·       This is done in a very general way, e.g. “A Bill for an Act to provide for the promotion, development and regulation of Micro

and Small enterprises and for connected purposes”

·       It is the starting point of the Act and indicates the general purpose and intention of the legislation

·       It includes the scope and general purpose for which the law is enacted

·       When a Bill receives the Presidential or Governor’s assent and becomes an Act à the words “A Bill for” are dropped from the long title and substituted with an “An act of Parliament”

·       Always make sure to include the words “and for connected purposes” because the legislative drafter must capture all that they can and project into the future à this allows you to include all miscellaneous related matters that are incorporated into that Bill

·       This applies to both County Bills and Bills originating from the National Parliament

 

2.4    SHORT TITLE

·       The name used to refer to a particular Bill or Act of Parliament

·       It basically indicates how a particular Bill should be cited, e.g. Kenya Law Reform Commission Bill 2013 (the year of enactment must be added to the short title but is not included in the long title)

·       The word ‘Bill’ is changed to ‘Act’ once the Bill receives the President’s or Governor’s consent

·       The year in the Act title is the year in which the Act passes Parliament or County Assembly

·       The short title of an Act can be amended by a later Act, e.g. where amendments render the short title incorrect or misleading

·       A drafter would ensure that the name selected for the Bill is as informative as possible and does not necessarily cause confusion to the legislative body or to any other users of legislation

·       The short title is Clause 1 of the Bill, which then becomes Section 1 of the Act when it is passed

 

2.5    PREAMBLE

·       It is an aid to construction – i.e. to explain the reason for the legislative instrument that the drafter is drafting and is presented to parliament

·       It is a recital wherein the objective, intent and purpose of the Act/Bill are given

·       It represents the spirit and principles behind the law

·       They are seldom used nowadays and are limited to Acts dealing with constitutional matters or the application of International Conventions

2.6    DEFINITIONS/INTERPRETATION

·       Important tool in legislative drafting

·       One of the most preliminary sections of the Bill and has traditionally been incorporated as ‘Clause 2’ of any Bill (‘Section 2’

when the Bill becomes an Act)

·       They are useful in making legislation more readable by defining various words and expressions that are used more than once in the Act

·       It is important to ensure that definitions are used carefully to avoid the overuse or misuse of definitions that can reduce the readability of the legislation

·       It helps in conveying to the reader that certain words have a special meaning for the purposes of the Act

·       There are 2 statutes which are important when it comes to determining definitions in a Bill:

o   Interpretation and General Provisions Act (to avoid repetition or duplication of a word which is already defined in this Act)

o   The Constitution, in particular Article 260 (the definitions used must conform to Article 260 of the Constitution)

·       Note: when defining words, you must have an opening statement à For example, under the Constitution: “In this constitution, unless the context otherwise requires…”

·       Words must also be arranged and defined in an alphabetical manner

 

2.7    ENACTING FORMULA

·       A statement indicating which legislative authority enacted the legislation

·       It is a statement in active voice that indicates that parliament or the County Assembly of County X is exercising its constitutional legislative powers, e.g. ‘enacted by Parliament of Kenya as follows – ‘

 

2.8    ACT NUMBERS

·       Each Act is given an Act Number which is made up of the year in which it is given assent and a number based on the order in which the Bills were assented to in that particular year

·       E.g. the 95^th Bill assented to in 2005 would be Act No. 95 of 2015

 

2.9    COMMENCEMENT PROVISIONS

·       Commencement is the day the Act comes into force and ought to be distinguished from the passage of a Bill by Parliament

 

3.       PRINCIPAL PROVISIONS

 

3.1    SUBSTANTIVE PROVISIONS

·       Dependent on the objectives of the legislative instrument

·       This is the crux of the Bill

·       It establishes the body, offers the body corporate statutes and related matters

·       It provides who is involved in the regulation of the matter at hand (determining their powers, duties and functions)

·       It sets out the basic objects and main principles of the Act

·       Involves conferral of rights or duties or regulation of the way citizens may pursue their legitimate interests

·       It also sets out the reasons why the Act was enacted

 

3.2    ADMINISTRATIVE PROVISIONS

·       Provides for the administrative and practical mechanisms to implement the Act

·       It provides for the framework on which the Act is expected to function

·       It provides for provision on establishment of a body or entity, employment of staff and other procedural matters

 

4.       MISCELLANEOUS PROVISIONS

·       Although referred to as miscellaneous, it provides for equally significant matters

·       It provides for the power to make Rules or Regulations (known as subsidiary legislation), penal provisions or other information regarding the enforcement of the law

·       It covers matters arising out of the main objects of the Act

·       These include financial matters, offences and penalties and enabling section for subsidiary legislation

5.       FINAL PROVISIONS

·       They include savings and transitional provisions, repeals, consequential amendments and schedules

·       They cover final matters, such as where the law is changed by a new enactment or by the repeal or amendment of an existing Act

 

5.1    TRANSITIONAL PROVISIONS

·       Direct how to apply the new law to situations already in existence

·       A law changes the existing legal position, hence specific provisions are necessary to regulate the transition

·       The provisions retain the validity of an existing appointment or license by providing that it shall be given the same effe ct as if it was made or issued under the new Act

·       E.g. (1) A person already practicing under a trade or profession has to be registered under a new Act within a specific time

·       E.g. (2) 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 continue pending actions

 

5.2    SAVINGS PROVISIONS

·       Preserve the existing rights that would otherwise be lost when the law is operationalised

·       Whenever its necessary to provide for the temporary continuation of rights, powers and duties, this type of provision is referred to as a savings clause

·       Where an Act is repealed, subsidiary legislation made under that Act ceases to have effect and it may be necessa ry to insert a savings provision in order to preserve subsidiary legislation until it can be repealed by subsidiary legislation made under the new Act

·       E.g. the fact that titles under the repealed LTA, RLA, GLA, etc. are still valid and in effect due to the savings provision under the LRA 2012

 

5.3    SCHEDULES

·       They form part of the Act

·       Used for helpful devices for clearer presentation and more efficient communication of content of legislation

·       The general principle is for matters of principle to remain in the sections of the statute while lesser, procedural matters of machinery or details be arranged in the schedules

·       This ensures that the main sections of a statute are not cluttered by materials of secondary or incidental importance

·       Where part of the schedule contradicts a provision of the main body of the Act, the provision of the main body prevails

·       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’, etc.

·       Common things found in schedules: scientific and arithmetic formulas; applicable forms; rates of tax/manners in which to calculate tax, if you have created a body and there is a Board, the number of meetings and the quorum of meetings will be detailed in schedules, etc.

CHAPTER: THE LEGISLATIVE PROCESS

 

1.       INTRODUCTION

·       Development of legislation is a significant aspect of modern democratic states – it is a process which involves many stakeholders

·       Article 1, Constitution 2010 declares that all sovereign power (including legislative authority) belongs to the people and is delegated to, among others, Parliament and County Assemblies

·       The actors at the national level are:

o   The National Executive;

o   The Cabinet Secretaries or respective MDAs;

o   Parliament;

o   Political Parties;

o   The Public;

o   AG, CIC and KLRC; and

o   The Civil Society and other nonstate actors

·       The actors at the county government level are:

o   The County Executive;

o   Members of the County Executive Committee;

o   County Attorney;

o   County Assembly;

o   The Public; and

o   The Civil Society and other non-state actors

 

2.       MAIN STAGES IN THE LEGISLATIVE PROCESS

 

 

	3.	PROCESS OF PASSING A BILL
	3.1	AT THE NATIONAL LEVEL
(i)		THE PUBLICATION AND CIRCULATION STAGE: ONCE BILLS ARE DEVELOPED; THEY MUST BE PUBLISHED IN THE KENYA GAZETTE FOR A PERIOD OF FOURTEEN DAYS
(ii)		THE 1ST READING:

o   The Bill is then formally presented in the House

o   At this point, the Bill is assigned a tracking number

o   The Clerk of that particular legislative house will read the title of the Bill to the House à (note: A Bill has both a long title and a short title, but the title read out by the Clerk is the short title, also known as the name of the Bill)

o   There is no debate over or voting in favour of the Bill at this stage

 

(iii)              PUBLIC PARTICIPATION ENVISAGED:

o   The Bill is then committed to the relevant Departmental Committee to facilitate detailed debate and report back to Parliament

o   This is the committee that will ensure that public participation has happened

o   This may be done by publishing a draft Bill in a newspaper of national circulation to invite submission of memoranda à the relevant provisions must be quoted

o   Another way in which public participation is facilitated is by holding public hearings, e.g. sometimes member of Parliament may travel to a particular county to get feedback on the same or inviting relevant stakeholder to give their feedback and comments on the same

o   E.g. if there is a Bill that would impact on the legal profession, the Justice and Legal Affairs Committee would be called upon to facilitate public participation

 

(iv)            THE 2^ND READING:

o   Bill is presented for second reading and presented to Committee of the ‘whole House’ for discussions

o   This is the stage where the House debates the Bill à the merits and demerits of the Bill are considered at this stage

o   The debate ought to focus on all aspects of the Bill, i.e. its principles, objectives, etc.

o   This is the stage where we are likely to see the principle of separation of powers being abused à in Kenya we have seen examples of situations where the Executive do not want this Bill to be passed, and so members of Parliament are suspiciously summoned and told not to pass the Bill, e.g. Bills that are not politically friendly are not passed (such as the Security Amendment Bill 2013 and the Election Amendment Bill)

o   Before the 2^nd reading comes to end and after the debate, the Speaker of the House puts the Bill to a vote

o   At the end of the 2^nd reading, the committee of the ‘whole House’ sits à it comprises of the entire membership of the House and sits in the form of a committee to consider a Bill clause by clause

 

(v)            THE 3^RD READING:

o   If the Bill passes the second reading, it is presented for a 3^rd reading and passed by the House

o   This is the final stage involving members of Parliament

o   The Bill is again read out à normally, there is not much debate nor are there substantive amendments (as this has already been done)

o   What is done is that a vote is taken à if it sails through this vote, it may be said with near certainty that this Bill will become an Act of Parliament

 

(vi)            PRESIDENTIAL ASSENT:

o   Within 14 days of receipt of the Bill, the President shall assent to the Bill or refer it back to Parliament for reconsideration

o   This is the formal process by which the Head of the Executive arm of Government completes the legislative process by formally assenting to a Bill

o   The process of presidential assent is governed by Article 115 of the Constitution

 

(vii)            GAZETTEMENT STAGE:

o   Presidential assent does not complete the legislative process

o   An Act must be published for it to acquire the force of law

 

3.2 IN THE COUNTY ASSEMBLY

 

(i)            PUBLICATION AND CIRCULATION – a Bill is published in a special or supplementary issue of the Kenya and County Gazette that may be released occasionally

(ii)            FIRST READING – this is intended to draw the attention of the Members of the Assembly and the public to the Bill. At this stage, the Bill is assigned a tracking number and referred to the relevant Sectorial Committee

 

(iii)            SECOND READING – the Mover introduces and outlines the main purpose and objectives of the Bill, including the details. Members discuss the Bill and the views of the Mover together with the report of the Sectorial Committee. At the end of the Second Reading, the only amendment that could be made is to defer its Second Reading for six months

 

(iv)            COMMITTEE OF THE WHOLE HOUSE – the Bill is considered clause by clause. Members may propose amendments but no amendment is permitted if it implies a direct negative of the original proposal, or elimination of its main purpose or objective. The correct way of expressing a contrary opinion is by voting against the Motion

 

(v)            REPORT STAGE – the Committee informs the Assembly sitting in Plenary of their consideration of the Bill

 

(vi)            THIRD READING – Members may again debate the principles of what is already in the Bill, but further amendments should not be proposed, except to defer its Third Reading for six months

CHAPTER: PUBLIC PARTICIPATION IN KENYA

 

1.       WHAT IS PUBLIC PARTICIPATION?

·       Public participation can be any process that directly engages the public in decision-making and gives full consideration to public input in making that decision

·       It is the process by which public concerns, needs and values are incorporated into governmental and corporate decision making

·       It is a two-way communication and interaction, with the overall goal of better decisions that are supported by the public

·       It is a continuum of participation involving four core activities –

(i)            Inform the public;

(ii)            Listen to the public;

(iii)            Engage in problem solving; and

(iv)            Develop agreements

 

2.       ELEMENTS OF THE DEFINITION OF PUBLIC PARTICIPATION

·       Public participation applies to administrative decisions — that is, those typically made by agencies (and sometimes by private organizations), not elected officials or judges

·       Public participation is not just providing information to the public. There is interaction between the organization making the decision and people who want to participate

·       There is an organized process for involving the public. It is not something that happens accidentally or coincidentally

·       The participants have some level of impact or influence on the decision being made

 

3.       CORE VALUES FOR PRACTICE OF PUBLIC PARTICIPATION

·       The public should have a say in decisions about actions that affect their lives

·       Public participation includes the promise that the public’s contribution will influence their decision

·       The public participation process communicates the interests and meets the process needs of all participants

·       The public participation process seeks out and facilitates the involvement of those potentially affected

·       The public participation process involves participants in defining how they participate

·       The public participation process provides applicants with the information they need to participate in a meaningful way

·       The public participation process communicates to participants how their input affected the decision

 

4.       RATIONALE FOR PUBLIC PARTICIPATION

·       Incorporating public values into decisions

·       Improving the substantive quality of decisions

·       Resolving conflict among competing interests

·       Building trust in institutions

·       Educating and informing the public

 

5.       FRAMEWORK FOR PUBLIC PARTICIPATION IN KENYA

·       The basic framework for public participation is about informing, meaningful consultation, collaboration and empowering the public to assist in decision-making

·       The former Constitution did not have any reference to public participation; however, the current Constitution has a running theme of public participation in recognition of the sovereign power of the people

·       Article 1 of the Constitution provides that sovereign power is derived from the people, and delegated to state organs and that is how public participation flows from this principle

·       In the Constitution, public participation is mandatory especially in public service, public finance, access to information and the procurement process

·       Article 185 of the Constitution provides for the legislative authority of counties and provides that the authority is to be exercised by the County Assemblies and provides that Parliament represents the will of the people

·       In exercising its legislative authority, the County Assemblies represent the will of the people and must therefore involve the people in making its decisions

·       Article 118 of the Constitution sets out the requirement for public participation as well as Articles 174, 176 and 221(5) in the budget making process while Article 232 which sets out the values and principles of public service including public participation

·       Article 196(1) requires a county assembly and its Committees to conduct business in an open manner and its sittings and those of its committees to be open to the public

·       Section 115(2) of the County Governments Act, requires the County Assemblies to develop laws on public participation but most counties have not complied. The section provides that ‘each county assembly shall develop laws and regulations giving effect to the requirement for effective citizen participation in development planning and performance management within the count’

·       Such laws and guidelines should however adhere to the minimum national requirements

 

6.       FORMS OF PUBLIC PARTICIPATION

·       The following are forms of public participation that could be adopted by the county assemblies –

(i)            Members of the public attending the county assembly as observers;

(ii)            Members of the public reading or listening to transcripts of county assembly proceedings;

(iii)            making written submissions or memoranda to the county assembly; and

(iv)            Public hearings through public petitions and the right to observe, give evidence and views to county assembly committees

 

7.       FACTORS TO CONSIDER WHEN CONDUCTING A PUBLIC PARTICIPATION

(i)             Sufficient notice to the public;

(ii)            Form, format and language of the notices;

(iii)             Who and how should you mobilize for public participation;

(iv)             Is there adequate preparation for members of the public or stakeholders;

(v)            Access for persons with disabilities to public hearing venues;

(vi)             Treating the public with decorum;

(vii)            Ensuring quorum of members during public hearings;

(viii)            Proper record keeping of the public hearing documentation;

(ix)            Engaging the media to ensure effective public participation; and

(x)             Formulating a standard model for public participation for the counties.

 

8.       CHALLENGES IN CONDUCTING PUBLIC PARTICIPATION

·       Lack of understanding by members of the public on their role in governance

·       The public being expected to comment on documents they have not seen

·       Some members of the public taking advantage of public participation for their own personal ends

·       Strict timelines within which to conclude public participation

·       Poor feedback mechanisms to the public

·       Non-attendance by members of the public

·       Lack of willingness by the members to engage the public meaningfully

 

9.       PROPOSALS FOR IMPROVING PUBLIC PARTICIPATION

·       Having a larger online presence through the use of social media

·       Publishing pending legislation and other business of counties through a weekly e-newspaper

·       Public hearings to be announced on local radio and vernacular radio stations, local tv stations and free newspapers

·       The use of sub-committees to address the challenge of getting quorum during public hearing sittings

·       Conducting public participation in wards which are likely to be significantly affected by the respective legislation being considered

·       Conducting civic education through county assembly outreach programs

·       Members of the county assemblies should be objective and avoid using public participation to gain political mileage

 

 

 

10.    CONSEQUENCES OF LACK OF PUBLIC PARTICIPATION

 

CASE	HOLDING
Robert N Gakuru & Others v Governor Kiambu County & 3 Others	·       The court declared the Kiambu Finance Act, null and void for lack of public participation in the law-making process ·       County Assemblies ought to do whatever is reasonable to ensure that as many of their constituents, in particular, and the Kenyans, in general, are aware of the intention to pass legislation ·       It is the duty of the County Assembly to exhort its constituents to participate in the process of the enactment of legislation by making use of as many fora as possible where the public are known to converge to disseminate information with respect to the intended action
Doctors for Life International v The Speaker of the National Assembly & 11 Others	Whether a legislature has acted reasonably in discharging its duty to facilitate public involvement will depend on the following factors: ·       The nature and importance of the legislation; ·       The intensity of its impact on the public; ·       The practicalities such as time and expense; ·       What parliament itself considered as appropriate public involvement in the light of the legislation’s content, importance or urgency; and ·       What amounts to appropriate public involvement
Martin Nyaga Wambora & 32 Others v The County Assembly of Meru	·       The court decided that impeachment is like a trial and therefore public participation cannot be the same as that of public participation on legislation ·       Further, the Court held that advertising when the hearings would be done and conducting open hearings amounted to sufficient public participation

CHAPTER 16: GUIDELINES TO DRAFTING DEFINITIONS

 

1.       AN OVERVIEW

·       A Bill contains an interpretation section which sets out the definitions of various words and expressions used on more than one occasion in the Bill

·       It assists in conveying to the reader the intended purpose of the legislation in a simple, unambiguous and consistent manner and to avoid needless repetition

·       It is placed at the beginning of the Bill/Act immediately after the short title (usually placed in Clause 2 of the bill, which then becomes Section 2 of the Act once it is passed)

 

2.       GUIDELINES

(i)             The introductory phrase to the definition clause takes this form: “In this Act, unless the context otherwise requires – ”

(ii)            The words to be defined must be indicated in inverted commas (quotation marks) – every word you define must be indicated in inverted commas, and the inverted commas must be double (e.g. “Book” – an object containing lined pages in which you can write notes)

(iii)            The words that you have selected to define must be arranged alphabetically

(iv)            Only define words that are going to be used in that particular Bill – there is no objective of defining words that are not applicable to or will not be used in that particular Bill

(v)            A word already defined in the Interpretation and General Provisions Act should not be defined, unless it has a different meaning in the Bill which you are drafting à this requirement is consistent with the principle of consistency in legislative drafting generally

(vi)            A definition should not include substantive matters, e.g. “Managing Director” means the person appointed to be the

Managing Director of the corporation appointed by the Minister

o   You should make your definitions as simple as possible

o   The substantive matters should be pushed to the substantive text/substantive provisions of the Bill, because definitions are the preliminary part of the Bill

o                     The objective of the definitions is simply to allow the reader to understand the word

(vii)            A definition should define one word or expression only, e.g. “Coastal ship” and “ship” mean …

 

3.       USE OF DEFINITIONS

(i)             Definitions may be used to delimit à a limit is set to the meaning of a word without altering its normal meaning, e.g.

“Advertisement” means publication through a medium with commercial interest

o   You are therefore not changing the conventional meaning of the word

o   You are placing a limit on the meaning of the word, and this is useful for purposes of assisting the drafter to remove ambiguity and vagueness

o   Therefore, this feature is useful for words which can be construed in numerous ways

o   Over here, you relate the word that you are defining to the subject matter of the legislation

o   E.g. for every Kenyan Bill following 2010, the word ‘Cabinet Secretary’ is defined the same way, but slightly tweaked to fit the subject matter of the legislation

(i)             Definitions may be used to extend à retain ordinary meaning and add a meaning it does not normally have, e.g. “Child”

includes a child born out of wedlock

o   This broadens the scope of the ordinary meaning of the word

o   The above example shows the fact that while it is not denied that a child is defined as a human being under the age of 18, a child also includes one born out of wedlock

(ii)            Definition may be used to restrict à narrow the ordinary meaning of the word by excluding things which are ordinarily included in the definition, e.g. “Organ of the state” includes parliament but not a court or judicial officer

(iii)            A definition should not be far-fetched/outrageous/extravagant, e.g.:

a)       “Land” includes ship

b)       “Motor vehicle” includes a pedestrian

(iv)            A definition may be used to label, e.g. “Corporation” means the corporation established by Section 5

(v)            It is important to make sure that a semi-colon (;) is placed after every single word that is defined, i.e. a semi-colon should be placed between each definition

(vi)            In the conclusion of the definitions, the conjunction ‘and’ should be placed between the second-last word defined and the last word defined  

(vii)            Where a definition is contained in a separate law, either a statute or the Constitution, then the legislative drafter should aim at repeating the definition in full instead of making a reference to it  

o   E.g. if you are drafting a Bill and want to define the word “Advocate”, and the primary statute defining an Advocate is the Advocate’s Act à it would be bad practice to say: “Advocate” has the meaning defined to it in the Advocate’s Act à it would be better practice to simply repeat the definition in full  

 

DRAFTING OF DEFINITIONS EXERCISE (2):

The following text has been drawn from a provision of a legislative document of the Republic of Kenya. However, the section has been altered or reorganised which offends certain basic principles of legislative drafting. Identify the anomaly and rearrange, edit or redraft the section accordingly.

 

2. Interpretation

In this Act, unless the context otherwise requires –

“Adoption Committee” means the committee established under section 155; “Child” means any human being under the age of eighteen years;

“age” where actual age is not known means apparent age;

“education” means the giving of intellectual, moral, spiritual instruction or other training to a child; “Director” means the Director of children’s services established by section 30.

 

ANSWER:

® The words being defined are not arranged in alphabetical order

® The definition of the word ‘Education’ has been delimited in a manner that may be construed in a way which alters the

conventional meaning of the word

® The word ‘child’ is not a noun and so need not begin with a capital ‘C’ à all perfect nouns are to begin with capital letters, this includes: names of places, institutions, individual names, days of the week/months, etc.

® The last and second to last definition have not been separated by a semi-colon

® The definition of “child” should be lifted from the Constitution

 

2. Interpretation

In this Act, unless the context so requires –

“Adoption Committee” means the committee established under section 115; “age” includes apparent age where the actual age is not known;

“child” means an individual who has not attained the age of eighteen years; “Director” means the Director of children’s services established by section 30; and

“education” includes the giving of intellectual, moral, spiritual instruction or other training to a child.