LEGAL AND LEGISLATIVE DRAFTING

 *DISCLAIMER*

The notes below are adapted from the Kenyatta University,UoN and Moi  Teaching module and the students are adviced to take keen notice of the various legal and judicial reforms that might have been ocassioned since the module was adapted. the laws and statutes might also have changed or been repealed and the students are to be wary and consult the various statutes reffered to herein

 

INTRODUCTION TO LEGAL DRAFTING

Words

Meaning

• Until recently, Aristotle’s definition of words as the smallest significant units of speech was accepted by linguists.

• However, word can be defined today as follows: -

a)      A conventional or arbitrary segment of utterance, a minimum free form, consisting of one of more morphemes.

By minimum free form is meant a form which can stand by itself and yet act as a complete utterance.

b)      A unit of meaning, a distinct unit in the system of symbols that is language.

c)      Words are units of language.

What is meaning

• Communication of meaning is an essential function of language and it is natural to ask what is meaning.

• Meaning refers to ideas or concepts capable of being transferred in the form of language from the mind of the source to the mind of a receiver.

Morpheme

• Are semantic units at or below the level of words

• A morpheme is the minimum meaningful unit of speech.

•  Morphemes are of two kinds: -

i)                    Free morpheme

ii)                  Bound morpheme

• A morpheme is known as a free morpheme if it is capable of standing alone as an independent form or word.

• A morpheme is known as a bound morpheme if it cannot stand alone as an independent form or word.

Language

Introduction

• Communication is of the essence of every society.

• A society cannot exist as a social community unless its members can communicate with one another.

• So far as human societies are concerned, language is the most important medium of communication, particularly so far as the regulation and control of the society itself are concerned.

• The regulation of society is the field in which the legislative drafter toils; the task is to frame the communication of policy decisions having legal consequences to members of society.

What is language?

• Language is a system of vocal or linguistic symbols used in a particular society of humans as a means of communication.

• Language may be contrasted with speech which is the actual use at a particular time of vocal symbols by an individual for the purpose of conveying information or expressing some other image from the mind of the speaker.

• Language is the system or the code. It goes beyond the individual to the society as a whole and is essentially an institution, because unless the verbal images are stored away in the minds of the individual members of society are substantially the same, they cannot communicate.

• The symbols are arbitrary in that they have no relation to what they signify yet they are conventional in the sense that they are accepted by the speech community. Language is a set of useful symbolic conventions.

• Language is personal.

• Speech is the act of the moment, the response of the moment to stimuli acting upon an individual, but language has not this ephemeral character. Language is a system which does change, but changes more slowly.

• There is a relationship between thought and language and thought and language are not distinct and separate.

Users of language

•  A written law is the concern of four separate groups of people and should be comprehensible, or at least capable of explanation, to all of them.

• These are: -

i)                    The individuals who comprise the legislature

ii)                  The persons whose duty it is to administer the law

iii)                The members of that section of society which is to be regulated by the law

iv)                The members of the judiciary who may have the final duty of interpreting the law

• If the drafter and the members of all the four groups are not members of the same speech community and do not share the same, or substantially the same, culture, the possibility of failure of communication is real.

• Language is a system of signs consisting of vocal or linguistic symbols, but most people think of language as consisting of words rather than other linguistic units.

Functions of Language

• T

PRINNCIPLES OF DRAFTING

•  

SYNTAX & SEMANTICS

Definition of Syntax

• Syntax is the study of sentence patters, the study of words working in association with one another.

• Syntax can also be described as the order of words in which they convey meaning collectively by their connection and relation.

Sentence

Definition: -

• A sentence is a structure or pattern in which the component words are grouped in a particular way.

• A sentence can also be described as the largest unit to which we can assign a grammatical structure.[i]

• It is a sentence that is recognized as a complete thought or statement able to stand independently in speech or writing.

Legislative Sentence

• Legislative sentence is structurally not different from a sentence in any other domain.

• The framing of legislative sentences offers the same possibilities for communication and is subject to the same limitations as other sentences.

Subject-predicate relationship

• The core of all sentence patterns is the subject-predicate relationship.

• To descriptive terms describe the subject-predicate relationship: the topic and the comment on it.

• The subject is the text while the predicate is the sermon, comment.

• The subject may not always be readily apparent in a complex sentence, particularly when one or more modifying elements that precedes it.

• In such a case it is necessary to first find the verb and any phrase that contains the verb.

• The predicate is associated with the verb and the phrase that contains it.

• The subject is associated with the noun, or word or a group of words performing the function of a noun.

• In cases where the verb is an active form, the subject may be identified by questioning ‘what’ or ‘who’ in front of the verb. The answer will be the subject.

• A sentence may have more than one subject and more than one object or complement but the predicate must always contain a verb.

• Both the subject and the predicate are subject to modification in many ways.

• Modifiers are secondary constituents consisting of words, phrases or clauses describing or qualifying other elements of the sentence.

• An understanding that the basic subject/predicate structure constitutes the core of the sentence is of immeasurable importance; it is the gateway to successful sentence construction.

Elements of the Sentence

Subject

• The subject of a sentence is the noun, or word or group of words performing the function of a noun, about which something is stated in the predicate.

• The subject identifies the thing or quality or person that is the theme or topic of the sentence.

The Minister may be represented at the meeting by his Permanent Secretary.

The University Calendar affects all students.

Predicate

• The predicate of a sentence is a statement about the subject or the subject’s action, experience or state of being.

• A verb is the central necessary element of a predicate and the predicate may contain an object or a complement or more than one object and compliment.

This statute binds the state.

The Registrar must keep a register of al co-operatives registered under the Act.

Object

• The object of a sentence is a word or a group of words that receives the mental or physical action conveyed by the verb and performed by the subject of a transitive verb.

            This Act binds the Minister.

            These Regulations binds the Vice-Chancellor.

Complement

• A complement is a word or a group of words that adds meaning or completes the sense of a subject or verb.

This Act commences on 1^st January 2012.

Phrase

• A phrase is a group of related words functioning as a sentence element but without either a subject or a predicate or a subject and a predicate.

Without delay

Without much ado

In this section

In accordance with the regulations

Clause

• A clause is a group of related words that contains a subject and a verb.

• A clause may or may not be a sentence.

• For instance, a subordinate clause is incomplete in itself and must be combined with another clause to form a sentence.

• A clause is said to be subordinate if it begins with a word indicating that the clause has a subordinate relationship to another clause.

• A subordinate clause can never stand alone.

If a suspect so requests, the police officer must provide a cup of tea.

• Classification of words depends on function not form for one word may perform different functions and be classified differently according to the context.

Verb

• A verb states the action or state of being of a subject.

The student informs the teacher of time.

The Bio-Safety Act is amended.

Noun

• A noun indicates persons, places, things, qualities, feelings and ideas.

Lawyer, Nairobi, vehicle, joy, happiness and dictatorship.

Pronoun

• A pronoun functions in the same way as a noun but refers back to a noun without naming it.

• The noun to which it refers is called ‘its antecedent’.

She, they their, this, everyone, it.

Adjectives

• Adjective describe or modify nouns or pronouns.

• A phrase or a clause may also perform an adjectival.

Reasonable grounds for appeal.

A suspect in a police station.

A suspect who has been arrested.

Adverbs

• Adverbs describe or modify verbs, adjectives or other adverbs or groups of words.

A person who knowingly or recklessly gives false information commits an offence.

The suspect must be given such information as is reasonably necessary in the circumstances.

Preposition

• A preposition relates the noun or pronoun which it introduces to other words.

• It is always part of a phrase.

An exercise of the power to defer

An entry in a record book.

Except for an appeal made orally.

Conjuctions

• Conjuctions join elements of a sentence.

• They serve a connective purpose and may be coordinating such as and, or, but or subordinating such as if, unless, after.

An inspector or a health officer may intervene.

If an arrested person is granted bail, that person must report when required.

Coode’s Analysis

• George Coode’s reference

Sentence Problems

Problems with Modifiers

• T

Punctuations

• Punctuation is now recognized as a mechanical aid serving to make the relationship of the parts of a sentence more readily apparent to a reader.

• It is a devise of syntax-a means, supplementary to word order, of suggesting the groupings of words in a sentence and thus revealing its structural pattern.

• The purpose of punctuation is to assist the reader to comprehend more quickly the intended meaning by providing sign-posts to sentence structure.

• Punctuation developed because of the inability of written language to indicate certain qualities of speech.

• The role of punctuation has changed through a process of development.

• Punctuation for sense has replaced punctuation for sound; and today it is generally accepted that the function of punctuation is to ‘denote quality of connection, rather than length of pause’.

Four general Rules of Punctuation

• Exact principles cannot be described for punctuation practice, but the following four general rules should normally be followed.

i)                    Punctuate sparingly and with purpose

Every punctuation mark must serve a purpose or be discarded. Unnecessary punctuation is a distracting irritant.

ii)                  Punctuate for structure and not for sound

The only question to be asked when sitting in judgment on a doubtful mark is whether it assists in illuminating the structure of the sentence.

iii)                Be conventional

Although a measure of individuality is permissible in the punctuation of most forms of prose writing, the drafter should adhere to conventionally accepted usage.

In drafting legislation there can be no place for the virtuoso of the comma.

iv)                Be consistent

Punctuation can only assist the reader to recognize structural patterns quickly if usage is consistent.

This is particularly with respect to commas. A haphazard and inconsistent approach to the use of commas can very easily destroy all the value of punctuation.

It is also very desirable that practice should be consistent regarding marks which are to introduce and separate series of paragraphs.

Inconsistency is certainly the most common error in the field of punctuation.

•  

Semantics

• Refers to the scientific study of the meaning of words and word combinations.

STYLE AND ARCHITECTURE

Purposes of Legislation

• Legislation has as its purpose the establishment in written form of rules for the regulation and control of future social conduct.

• In particular restraints are imposed on individuals and groups of persons and the exercise of various freedoms is regulated.

• On the other hand, important rights and benefits are conferred or protected.

• In essence, the principal purposes of legislation are: -

i)                    to establish and delimit the law

ii)                  to communicate the law from the lawmaking authority to society and in particular to the persons affected by it

Communication of Legislation

• Legislation is communication of a very special kind.

• The framework of society depends in large measure on it and much that is dear to the heart is frequently affected-liberty, perhaps even life, commercial and industrial relations between persons, property, marriage, taxes, indeed all aspects of human conduct within society.

• Communication cannot be considered in a vacuum; it occurs only where the substance of the communication is transmitted to some person or persons.

• Successful communication depends on the reception of what is transmitted and for this reason one purpose of legislation is stated to be the communication of law to society.

• The people to whom communication of law is relevant may be classified into three (3) broad groups and drafters cannot afford to lose sight of the interests and standpoints of any of them.

• These three (3) broad groups are: -

a)      The lawmakers

b)      The persons who are concerned with or affected by the law.

c)      The members of the judiciary

Communication to the Lawmakers

• The principal members of this group are the members of Parliament or other lawmaking authority.

• The term ‘lawmaker’ is used in a wide sense to include all who have a hand in the preparatory and legislative process i.e. those officials who participate in its development and other persons to whom the legislation in draft form is submitted for consultative purposes.

• In a very practical sense, the draft is communicated to these persons.

• On enactment the law may be said to be communicated by the lawmakers.

Communication to Persons Concerned or Affected

• This group may be said to receive the communication transmitted by the lawmakers.

• Its members are concerned to construe the law but do so non-definitively.

• This group contains three distinct sub-groups: -

a)      The persons who are personally affected by the law e.g. persons obliged by law to pay tax.

b)      The persons who advise and assist those persons affected by the law e.g. accountants, tax consultants, legal advisers etc

c)      The persons, usually public officials, who are charged by the law with the duty of administering and enforcing it e.g. the officers of the tax department or the police.

Communication to the Judiciary

• This group may also be said to receive the communication.

• Its members are concerned to construe the law definitively, although the construal made by a particular court may be subject to review or appeal and possible reversal by a higher court.

Pursuit of Clarity

• The purposes of legislation

Interpretation and General Provision Acts

Principal Objects

1)      To shorten and simplify written laws by enabling needless repetition to be avoided.

2)      To promote consistency of form and language in written laws by including standard definitions of terms commonly used.

3)      To clarify the effect of laws by enacting rules of construction.

Application of Interpretation Legislation

• Interpretation legislation must state clearly the scope of its application.

• The broad application to ‘every enactment’ is subject to two limits: -

a)      Any enactment may provide ‘otherwise’, e.g. by including a definition that is inconsistent with that in the interpretation provision or enacting provisions about the effect of repeal which differ from those in the interpretation Act.

b)      An enactment might state explicitly that a particular provision of the Interpretation Act does not apply.

• It is desirable that a definition in interpretation legislation should not stipulate a sense which is substantially different from conventional usage.

Definitions of Words and Expressions

• Definitions of words and expressions are suitable to be included in an interpretation Act if: -

1)      The words and expressions are demonstrably of general application to a reasonably broad range of legislation, and

2)      The definitions conform to the criteria applicable to all statutory definitions.

• Statutory definitions need to cover other parts of speech as well as other grammatical forms of the term defined.

• In the absence of some contrary indication in usage, statutory definitions need not pose a problem.

Primary Legislation: Nature and Process

Role of the Legislative Drafter

a)      To convert a developed legislative policy to legislative shape.

b)      To develop a harmonious and cooperative working relationship with the instructing officer. This is critical for successful completion of the drafting process.

c)      To analyze and advise on the proposals, implications and consequences of policies.

Drafters have knowledge, skills and expertise that should be used by policymakers.

Should a Drafter Become Involved in Legislative Proposals?

• The drafting process begins with the receipt of instructions by the drafter from the instructing officer.

• This formal receipt of instructions take place long after the legislative proposals have been developed by the policymakers.

• The question that normally arises is whether or not it is desirable to engage or involve the drafter during the early stages when legislative proposals are deliberated.

• The earlier involvement of drafters in the legislative process is important because: -

a)      It helps to avoid delays during the drafting process.

b)      Reduces the need for supplementary drafting instructions.

c)      Makes it less likely that the drafting instructions will need to be varied extensively in the course of the drafting process.

d)     Avoids wastage of time and effort on the part of the policymakers as a result of their being steered away from blind alleys and dangerous precipices.

The drafter also benefits for his involvement in these early stages and the knowledge gained at this early stage about the underlying principles and the technicalities of the proposals is likely to have two results: -

i)                    The legislative purposes are likely to be more clearly and intelligibly expressed both in the submission of policy approval and also in the drafting instructions.

ii)                  The drafter is likely to be able to produce a draft more quickly and more in harmony with the thinking of the policymakers.

There have been contrary arguments to the early involvement of and consultations with the drafter. The reasons advanced are that: -

1)      It is time consuming and drafters spend valuable time on matters which are of little concern to them. It is likely to be a waste of the drafter’s time to sit through long meetings at which different policymakers thrash out their differences.

2)      Leads to waste of human resource. Drafting offices are usually short of staff. It may be impractical as well as wasteful of a drafter to be made available to engage in preparatory consultations and provide advice regarding a project that may fall in an irredeemable heap at the first hurdle.

The Role of the Instructing Officer

a)      To provide such explanations, responses to queries and information as the drafter requires in order to achieve an adequate understanding of what the legislation is intended to do and how it is intended to do it.

b)      To consider, comment on and criticize drafts developed during the drafting process.

c)      To coordinate the respective interests and contributions of the various divisions of the instructing ministry of body and those other interested ministries or bodies that are consulted or otherwise involved.

d)     To develop a harmonious and cooperative working relationship with the drafter.

Qualities of Instructing Officer

i)                    Sufficient seniority.

ii)                  Sufficient knowledge.

iii)                Sufficient experience to be completely familiar with the background of the issues concerned and with the attitudes and inclinations of the relevant minister or CEO.

iv)                Sufficient authority to be able to make decisions and give instructions on day to day points arising in the course of the drafting process.

v)                  Ability and capacity to obtain further instructions and decisions for the drafter from the appropriate persons.

Basic Equipment for a Drafter

• Access to a fine library is highly desirable but in many jurisdictions that may not be possible or inadequate.

• Availability of as many statutes as possible and an effort to keep them up to date is also desirable.

• The following books might prove useful to a drafter: -

a)      The Fundamentals of Legal Drafting, Reed Dickerson (2^nd Edition)

b)      Legislative Forms and Precedents, Driedger (2^nd Edition)

c)      The Composition of Legislation, Driedger (2^nd Edition)

d)     Statutory Interpretation, Bennion (2^nd Edition)

• Every drafting office needs a practice or style manual and a mechanism to keep it under review.

• Production of such a manual requires a careful and critical review of existing practices and this exercise is itself likely to result in improvements.

• The existence of a practice or style manual promotes stylistic consistency within a jurisdiction and consistency is helpful to those who use statutes.

• Every drafting office also needs a system for noting useful precedents and other helpful material.

• An established procedure for sharing experience and knowledge can contribute hugely both to the effectiveness and to the contentedness of the office.

The Five Stages of the Drafting Process

• There are five (5) in the drafting process. These are: -

1)      Understanding

2)      Analysis

3)      Design

4)      Composition and Development

5)      Scrutiny and Testing

• The drafter endeavours to move in logical progression from stage 1 through to state 5.

• The drafter begins by trying to understand fully the instructions and their background, continues by analyzing the implications of the instructions, then designs the legislative scheme, proceeds to draft, revise and develop the draft and fully tests the draft and has it scrutinized by at least one other drafter.

• These five stages do not consist of five watertight compartments.

• The stages are better regarded as recognizable areas of the process as a whole and progress from stage 1 to stage 5 is usually neither smooth nor regular, and frequently it is necessary to return to an earlier stage and try again.

• Drafting legislation is a game of skill.

Stage 1-Understanding

•  The first task for the drafter is to understand what he or she is about to do.

• It is vital to gain a thorough understanding of the purposes of the required legislation.

• The drafter must be certain as to the ‘mischief and defect’ intended to be remedied.

• To gain this necessary understanding may require time, patience, great care and tact.

• The drafter may have to work very hard to achieve an accurate and complete understanding of the goals of the sponsors of the proposed legislation.

• The drafter to whom the drafting instructions must be communicated has a paramount interest in doing everything possible to promote a complete and successful communication.

• To this end the drafter can do two things: -

a)      The question of drafting instructions-guidance must be available to those who prepare drafting instructions. It is desirable that every drafting office should have information available for distribution to prospective instructing bodies. It is in the drafter’s interest that the manual or other guidance should highlight the point that the better the instructions the better the Bill is likely to be.

b)      The question of consultation-a drafter needs to consult with the instructing officer at an early stage after receipt and preliminary digestion of the drafting instructions.

Drafting Instructions

How to write drafting Instructions

• Instructions should be written in narrative form in clear, straightforward language that is as free from jargon and technical language as the substance allows.

• They should be complete and comprehensive.

• Detail may be presented in tabular form if that seems to aid communication.

• Language must be used carefully and consistently. If the same thing is meant in more than one place, the same words should be used.

• If different words are used, the drafter will assume the intention is different.

• Topics should be dealt with in logical and, if appropriate, chronological sequence.

• The relative importance of different issues should be made clear.

• If technical language is necessary, the instructions must take into account that the drafter almost certainly lacks specialized knowledge of the subject.

• A glossary or other explanatory material should be provided where necessary.

• Drafting instructions should not be written hastily.

• It is desirable that drafting instructions should not take the form of a draft bill.

What to put in drafting instructions

• Good instructions will illuminate or indicate the following: -

a)      The nature of the problem by providing background information.

b)      The purposes of the proposed legislation.

c)      The means by which those purposes are to be achieved.

d)     The impact of the proposals on the existing circumstances and the law.

Background Information

• To understand and attempt to perfect a solution to a problem, the drafter must understand the problem.

• Drafting instructions need to contain sufficient background information to enable the drafter to see in perspective and in context the circumstances and problems which the legislative proposals are intended to meet.

• It often happens that legislative proposals have a history and the drafter needs to be acquainted with that.

• Information should be provided as to consultations that have taken place within and without government and the results of those consultations.

• Reference should be made to any papers, documents or other desirable reading for the drafter and copies should be provided.

• If the proposals have stemmed from or been considered by a commission or other advisory body, the proceedings and report of that body should be annexed to the instructions.

• If the proposal is a consequence of a judicial decision, a copy of the judgment or a reference to it should be given.

• If the subject is a technical one, the instructions or accompanying material must educate the drafter to a level sufficient to provide an adequate understanding of the technicalities and technical terms involved.

• The drafter should be informed of the extent to which consultation has taken place within the various branches of government.

• If not informed, the drafter should seek confirmation that necessary consultation has in fact taken place.

Purposes

• It is fundamental to appreciate the necessity of what the legislation is intended to achieve.

• The drafter must be introduced to the very heart of the proposals so that there is no doubt as to the ‘spirit and intent’.

• The drafter must absorb the objects of the exercise exactly and comprehensively.

• Unless the drafter’s appreciation of the governing purposes of the legislation is both accurate and complete, the structure of the Bill will be at risk and the balance and emphasis given to different provisions may mislead users as to the primary purposes of the legislation.

Means

• The instructions should provide the drafter with a total picture of how the purposes of the legislation are to be achieved.

• The drafter must know how the scheme will actually work in practice.

• The important issues of principle must be declared and the proposed administrative machinery must be described inn detail.

• Matters of administrative detail, including structures and administrative powers and duties, and also matters intended to be dealt with in regulations should be outlined.

• A drafter can only draft an adequate clause empowering the making of subordinate legislation if aware of the scope of the regulations that will be required.

• If power to delegate any function is required that should be stated.

• The drafter should be informed if power to impose fees or charges is needed.

• Conduct that is to be prohibited or regulated in some way should be described fully, carefully and the nature of any proposed sanctions stated.

• The consequences of breaches of proposed obligations should be dealt with.

• The instructions must make it clear who is to have the function of making any administrative decisions or exercising discretions provided for.

• In the case of decisions or discretions of importance, the question of review or appeal provisions must be dealt with.

• Provisions for an appeal or review must specify the nature of the appeal or review, which body or person is to hear or otherwise determine it, and the procedure to be followed.

Impact on Circumstances and Law

• No new law can stand alone-it must be crafted to fit into the whole fabric of law, both statute law and common law.

• The impact of the proposals on existing law must be stated and the extent to which existing laws need to be repealed or altered, either to achieve the objects of the proposals or as a consequence of those objects, must be set out.

• In the case of amending law, every provision which appears to require amendment should be identified.

• Proposals for the commencement of the new legislation should be specifically indicated and explained.

• Any proposals intended to have retrospective operation should be specifically indicated and explained.

• The impact on people and circumstances when the proposed law first comes into force must be given careful and fair treatment.

• If the proposed law is to replace an existing one, savings and transitional provisions must be instructed in respect of powers, rights and duties existing under the old law.

• If an activity is to be regulated for the first time, the rights of the people lawfully carrying on that activity before the law comes into force must be taken into account and dealt with fairly.

• The instructions must refer to any constitutional obligations or standards that might be affected by the proposals.

• Similarly, the instructions must refer to any relevant international obligations under a convention or otherwise.

• Financial considerations should also be dealt with where they exist and the drafter should be made aware of action within government to obtain the necessary approvals.

• The drafter must know how the costs of administering the proposed legislation are to be met.

Consultation

• A thorough and wide-ranging discussion with the instructing officer is a necessary part of the understanding stage of the process.

• Such a discussion gives the drafter an opportunity to clarify points that are unclear and also provides a check on how successfully the legislative proposals in the instructions have been communicated to the drafter.

• Time spent in preliminary consultations before drafting begins may result in the saving of much time later on.

• It is at this stage that the skill and experience of a really competent drafter are apparent as he or she builds on the foundations laid by the written instructions by questioning the instructing officer.

• The drafter should concentrate on gaining a comprehensive understanding of what the client has in mind and wants.

• The drafter should prepare carefully and thoroughly before engaging in consultations.

State 2-Analysis

• Legislative proposals should be subjected to careful analysis in relation to:-

i)                    Existing law

ii)                  Special responsibility areas

iii)                Practicality

Legislative Proposals and Existing Law

• If the written law and the common law in force at a particular time in a society are regarded as a coherent whole, every additional new law is properly regarded as amending in nature.

• Once every new law is regarded as an amending law, the need to be aware of all relevant existing law becomes very clear.

• The drafter must take pains to know what is being amended and relevant written law, common law and cases must be studied.

Legislative Proposals and Special Responsibility Areas

• The drafter’s position is one of responsibility and independence from the instructing officer or department or familiarity with the law as a whole enables the drafter to see a legislative proposal in a wider and more balanced context than is possible for others.

• It is the ability to see the legislative proposals against the background of the whole structure and panoply of the law that gives the drafter both an advantage and a special responsibility.

• The drafter has a clear responsibility or duty to society to see that the freedom of the individual is interfered with no more than is absolutely demanded to achieve the desired purpose.

• Both the drafter and those who instruct must be concerned to consider whether every element of the proposed legislation complies with basic principles of the legal and constitutional system.

• Proposals within areas of potential danger include the following: -

i)                    Those affecting personal rights e.g. infringing on the rules of natural justice.

ii)                  Those affecting private property rights e.g. right of entry upon private property or power to search private property without a warrant.

iii)                Those delegating to the executive a power to impose taxation.

iv)                Those for retrospective legislation.

v)                  Those inconsistent with international obligations and standards.

vi)                Those of doubtful territorial or constitutional competence.

vii)              Those which are unnecessarily bureaucratic.

viii)            Those affecting prerogative powers.

Legislative Proposals and Practicality

• A drafter should study the practical aspects of legislation proposed and be satisfied that the scheme will work, that the machinery proposed is practical and that the legislation will be capable of enforcement.

Stage 3-Design

• This is also called the planning stage.

• The drafter should consider whether further legislation is necessary or whether the desired ends might not be capable of achievement wholly or in part either by administrative means or under existing legislation.

• If a new statute is necessary, it is essential that its structure should be designed before textual drafting begins.

• The principal purpose is to design a structure that facilitates communication of the content at the same time as it achieves the objects of the instructions.

• The design stage should be regarded as an opportunity to look at the material as a whole, to weigh up the relative importance of topics, to bring together in the mind those elements that are related, and to consider how the material can best be presented.

• An outline or framework should first be prepared so that the drafter can visualize the shape and broad contents of the finished product.

• There is no settled practice as to the degree of particularity with which form and substance should be sketched at this stage, bur experience will guide each drafter as to the procedure he or she finds most helpful.

• The preliminary design of a statute must take into account four important factors: -

i)                    Simplicity: The design must aim at the greatest level of simplicity that is compatible with the achievement of the objects of the proposed legislation. Simplicity should focus on the interests of users.

ii)                  Conventional practice: Conventional practice as to the position in the statute to be occupied by various formal technical provisions must be adhered to. The short title, commencement, application, definitions, interpretations, repeal and saving provisions should be arranged consistently in accordance with the practice of the jurisdiction.

iii)                Political realities: If the policy is controversial, the drafter must be able to recognize political realities and be prepared to compromise over the arrangement of the material. Consultations with the minister who would introduce it to the legislature should be made.

iv)                Existing statute: A new separate statute should not be contemplated if the proposed legislation coheres with an existing statute. The statute law on a subject should form a coherent whole not an untidy, dissipated mess.

The Design of Legislation not Directly Amending in Character

• Where the proposed legislation does not directly amend other legislation, except consequentially, a start is best made by preparing in précis or heading form a statement of the basic objectives and principles to be contained in the legislation and then a statement of the principal means devised for the attainment of those objectives and principles.

• The next stage is to develop this statement of headings by taking each topic and planning the number and content of clauses considered necessary to deal with that topic adequately.

• Once each topic is developed, the drafter is able to envisage more accurately the range of the statute and can then turn to reflect on the design of the structure of the Bill.

• Order is in part governed by convention but the traditional rule is that the main principles to be established by the law should be laid down first.

• Sequence should be logical. A series of procedural steps should be expressed in the order of occurrence.

• The general should precede the particular; the permanent should appear before the temporary and the more important before the less important.

• To be considered at this stage also is what matters of detail or procedure, if any, should be kept on one side as more suitable for subordinate legislation.

• A further point to the design of a statute is the rule that distinct and different matters should not be combined in one Act.

The Design of Amending Legislation

• The design of amending legislation depends on which technique of amendment is followed.

• Three courses of action are generally open: -

i)                    The amending law may amend the principal law directly by deletions, substitutions and insertions.

ii)                  The new law may repeal and replace the old –consolidating new provisions, amended versions of old provisions and re-enacted unamended old provisions.

iii)                The new law may stand separately on enactment, but may be expressed to be construed and perhaps cited as one with the law it amends.

• Political and technical considerations are relevant to the choice of which technique is to be adopted in a particular case.

• If the amendments are both minor and numerous, it may be desirable to present them in a schedule.

Stage 4-Composition and Development

The Composition Process

• The composition stage of the drafting process is itself a process- a process of development.

• During the process of development, a considerable degree of mental discipline is called for.

• The degree of mental discipline increases, rather than decreases, as the drafter becomes more experienced because greater confidence tends to seduce him or her from the work habits of patience and care which have been carefully cultivated.

• There is need for each draft produced to be subjected to searching scrutiny and that this scrutiny and the resulting redrafting and polishing lead to a number of revisions being produced until the drafter feels unable to improve the product.

• In the production of the first draft and in the earlier stages of developing the draft, the emphasis is on essential matters of substance rather than form and the drafter has foremost in the mind the need to give effect accurately to the drafting instructions.

• It is important to concentrate first on achieving a design and an approach both at the level of the Bill and the clause that will answer all the needs of the drafting instructions with precision and clarity.

• The drafting process often makes a positive contribution to the development of policy as the experience and the skill of the drafter disclose weaknesses or problems in the proposals or matters that have not been but should be dealt with.

• The development of a close and positive liaison between the drafter and the instructing officer is an important necessity if the inadequacies and ambiguities of both the drafting instructions and the draft are to be detected and remedied.

The Use of Definitions

• The kind of definition commonly found in legislation explicitly assigns a meaning to a word, phrase or other symbol and stipulates that throughout the law, or some specified part of the law, that symbol is to be construed as bearing the meaning assigned to it.

• Definition of this kind may be classified as stipulative definition and contracts with lexical definition which is concerned with actual usage at some time in the past by some group of people.

• Stipulative definition is not bound by past usage or the limits which conventional usage has placed on the term defined.

• It stipulates for the future, free from the restrictions of the past.

• Freedom to stipulate definitions at will is, however, largely theoretical because definition in legislation is only useful so long as it serves the essential purposes of determining and communicating the legislation.

• To serve the purpose of easy communication, a definition must follow customary usage as closely as possible.

•  A definition which places a completely forced and artificial meaning on a term is a bad definition.

The Functions of Definition

• In legislation, definition performs two functions: -

a)      the avoidance of ambiguities,

b)      the avoidance, by means of abbreviation, of tedious repetition.

First Function: the avoidance of Ambiguities

• The first and principal function is to shear away some of the vagueness and ambiguity which would otherwise surround the term defined.

• The process is one of delineation, the drawing of boundaries around the stipulated meaning of the term.

• Definitions having as their purpose the avoidance of ambiguity are of three (3) broad classes: -

i)                    Delimiting

ii)                  Extending

iii)                Narrowing

Delimiting Definitions

• A delimiting definition determines completely the limits of the significance to be attached to the term defined.

• The purpose is not to alter conventional significances but to provide a desirable degree of definiteness.

• This form of definition may be of value not only in the case of vague words with a core of essential meaning and blurred edges of fringe meaning but also in the case of ambiguous words having a number of different meanings.

• Difficulties of classification may often be reduced in scope by the use of delimiting definitions.

• For example: -

Vessel means any kind of vessel used or capable of being used in navigation by water, however propelled or moved, and includes a barge, lighter or floating restaurant.

• Delimiting definitions may, without deviating from the customary meaning of a term, be used to relate a word of general significance to the smaller world pf the subject-matter of the legislation.

• For example: -

Operator, in relation to an aircraft at a particular time, means the person who at that time has the management of the aircraft.

Extending Definitions

• An extending definition stipulates for the defined term a meaning that in some respect goes beyond the meaning or meanings conveyed in common usage by the term.

• Such a definition usually adds to the conventional meaning an element of assigned meaning.

• For example: -

Constable includes a police officer of any rank.

Animal includes a bird.

Narrowing Definitions

• A definition of this type stipulates a meaning narrower in some respect that the meaning commonly conveyed by the term.

• For example: -

Animals means cattle and horses.

Aircraft means any aircraft that is not a military aircraft.

Second Function: the avoidance, by means of abbreviation, of tedious repetition

• The second function of definition in legislation is to abbreviate a group of words by stipulating that one word or phrase is to signify the longer group of words.

• Such definitions are sometimes referred to as labelling definitions.[ii]

• The purpose of the devise is to avoid cumbrous and unnecessary repletion and thus promote easier understanding by reducing the quantity of verbal symbols required to convey the intended meaning.

• Many definitions of this type are simple, and to some extent self-evident, but can nevertheless be useful.

• On the other hand care is necessary to avoid including definitions where the meaning of the term defined is obvious and unambiguous.

• For example: -

EAC means the East African Community

Drafting Definitions

• A definition may be of great value but, on the other hand, if it has no clear function it may only add to the difficulties of construction.

• Before drafting a definition, the drafter must be quite sure of the intended purpose of the definition.

• The word or expression to be defined should begin the definition and should be identified clearly.

• Many jurisdictions do this by means of inverted commas but printing the term in bold face without the use of inverted commas is an effective alternative that is recommended.

• One recommended possibility is to print the defined term in bold letters and italics.

• The word or expression should not e encumbered by any prefixed word such as ‘the’ or ‘the term’ or ‘the expression’.

• Immediately after the subject of the definition should follow the verb of stipulation, generally ‘means’ or ‘includes’, and then should follow the stipulated meaning.

Ten Practical Rules for Drafting Definitions

Rule 1-A word or expression should be defined only if the definition will assist readers

• Inexperienced drafters are apt to define every term in sight but in some circumstances the definition does not achieve anything.

• Definitions should not state what is obvious.

Rule 2-A definition should not include substantive matter

• A reader expects a definition to stipulate a meaning and is entitled to assume it will do no more.

• The definition is made worse where the definition is ambiguous and may or may not be construed so as to confer a power or impose a duty.

Rule 3-A definition should not stipulate an outrageous or extravagant meaning

• A definition should be conventional and include what is known or expected by the reader in common usage.

Rule 4-A definition should, if possible, be complete in itself

• An intricate too-clever interlocking web in which the content of definitions can only be understood by reference to other definitions is to be avoided.

• The reader should not have to dodge from definition to definition in order to comprehend a definition.

Rule 5-A definition should not indulge in avoidable and unjustifiable referential legislation

• If a term is to be defined in the same way as it is already defined in another law, it is better as a general rule to repeat the text of the definition rather than to refer to it.

• This ensures that the reader does not dart to other quite separate legislation to discover the meaning of a term defined.

Rule 6-A term manufactured for the purposes of a definition should be as descriptive and helpful to readers as possible

• The Act should define the exact word that is used and not a portion or section of it.

Rule 7-A definition of a term that is already defined in the interpretation legislation should not be included.

• Contravention of this rule negates the purpose of interpretation legislation.

• The position is of course different if the term is required to carry a different meaning.

Rule 8-A definition need not state that it is to apply to grammatical variations and cognate expressions of the term defined.

• In the absence of some indication to the contrary, it is surely sensible and indeed indisputable that the definition would apply.

• For instance, a definition of ‘sale’ need not declare that ‘sells’ has a corresponding meaning.

Rule 9-A definition should define one word or expression only

• Multiple definitions make it more difficult for readers to find definitions.

• Definition should be singular, simple and precise and not convoluted and referential.

Rule 10-A word or expression that it not used in an enactment should not be defined

• This rule is of course unashamedly obvious.

• However, it is not uncommon for alterations made in the course of the drafting process to remove a defined word from the text of the draft, thus depriving the definition of its reason for existence.

• This is a matter to be checked when the draft is complete.

Arrangement of Definitions

• As a general rule all definitions contained in the Act should be assembled where they may easily be found by the reader.

• A series of definitions should be introduced as follows: -

In this Act, unless the context otherwise requires

Or

In this Act, unless the contrary intention appears

Or

In this Act

• A more recent development is the presentation of the assembled definitions in a ‘dictionary’.

• The dictionary may be presented as a schedule in which case, a section is included in the Act along the following lines: -

Schedule I contains a dictionary of words and expressions used in this Act

Or

Words and expressions that are used in this Act and defined in the dictionary in Schedule 3 have the meanings given them in the dictionary.

• An alternative is for the dictionary to be presented at the end of the Act following the schedules.

• The claimed advantage of this practice is that users can always access the dictionary easily by turning to the end of the Act.

•  A section in the Act should provide along the following lines: -

In this Act the words and expressions defined in the Dictionary at the end of the Act have the meanings given to them in that Dictionary.

• Each definition of a series should be placed in a separate paragraph and the paragraphs marshaled in alphabetical order.

• A definition should not be hidden away.

• If a defined word is used only in one section, the definition may be presented in that section.

• The principal purpose of the section should be attended to first in the most prominent position in the section and so the definition is best presented as the final subsection of the section.

• A definition presented in the section to which it relates should also be referred to in the general assembly of definitions, whether definitions are presented in a section or in a dictionary in a schedule

• If a defined word is used in two sections, the definition should be placed in the general series of definitions.

• If a defined word is used only in one Part, the question arises whether the definition should be presented in the general assembly of definitions or inthat Part with other definitions that relate only to that Part

• Where a definition is limited in its application to a section or Part, it is important to determine whether the word used elsewhere in the Act, and if so whether in the same sense.

• If a word is used in different senses in different pars of an Act, a compound definition may be necessary.

• In considering the arrangement of definitions, the drafter must be primarily concerned with ease of communication.

Definition Dangers

• The supreme rule of stipulation, according to an authority on definition, is to stipulate as little as possible.

• This rule applies particularly, but not exclusively, to stipulations which extend or narrow conventional usage.

• An unnecessary definition wastes the reader’s time.

• Unnecessary definition may also confuse or introduce an ambiguity.

• It should not be assumed that every technical, scientific or similar term of art needs to be defined.

• Definition is always a risky business and the following dangers might arise: -

i)                    Having stipulated a meaning for a word it is extraordinarily, almost uncannily, difficult to use it only in that sense.

At the time the definition is stipulated for a particular purpose, instances when the word might be used in another sense are not contemplated.

However, inconsistency in the use of language is one of the most serious pitfalls in the drafting of legislation and great emphasis must be placed on the necessity to check and check again that words are used only as they are defined.

ii)                  They tend to deceive or mislead the reader, particularly in lengthy legislation.

Unless a procedure for sign-posting is adopted, a definition is easily overlooked or forgotten and if it stipulates an artificial meaning the reader will very probably gain quite the wrong impression on a first reading. Communication is likely to fail.

iii)                A careless definition will have precisely the opposite effect and may serve only to add further problems of vagueness and ambiguity arising from the words used in the definition.

A definition which equates one term with another of like imprecision doubles the difficulties.

There may be two problems of classification instead of one. Remember that definition in legislation uses words to define words.

THE USE OF PURPOSE PROVISIONS

• Since a purposive approach to statutory construction is routinely taken by the courts, there is an increased obligation on drafters to make the aim and object of legislation clear on the face of it.

• The readiness of courts to look at the Hansard and other legislative materials increases the need for drafters to make the purposes of legislation clear in the legislation itself.

• A clear statement of the overall purpose of an ACT facilitates the communication of the detailed provisions that follow.

• A reader who is aware of the objects that a law is intended to achieve is better able to comprehend the means by which those objects are pursued.

• An understanding of the totality of what a law is seeking to do helps a reader to discern the significance of the parts of the law both in relation to the law as a whole and in relation to one another.

The Functions of Purpose Provisions

• Purposive provisions performs the following functions: -

i)                    Establishes a context clarifying the scope and intended effect of the law.

It illuminates the principles on which the law is based, whether those principles are explicitly stated in the law or not, and it provides a guide for the interpretation of provisions where there is doubt or ambiguity.

ii)                  Declares the purpose of the whole Act, but in some context it may achieve greater usefulness it is more limited in scope and refers only to the purpose of a Part, a section, or some other specified element of the law.

A purpose clause that relates to an identified element of an Act has the advantage of a capacity for greater particularity and its content can be more clearly defined and informative than one relating to the whole Act.

Greater specificity can reduce the level of vagueness that depreciates the value of many purpose provisions.

Criticisms of Purpose Provisions

• The experience of many drafters has been such that they are not great enthusiasts for purpose provisions.

• The criticisms have been as follows: -

1)      It is extremely difficult to draft a really useful purpose provision.

      There is always a tension between generalities and particularities.

2)      It is very easy to produce a string of rather grand phrases of the kind that would fit well into a party policy document or amount to sanctimonious inanity.

3)      It is easy to err by drafting a purpose provision that goes too far and extends beyond the substance of the provisions of the law.

In such circumstances, the law does not deliver what the purpose provision promises.

4)      It is not easy to compress into few words a summation of the problems sought to be addressed by legislation and the remedy prescribed.

5)      The purposes of a well-drafter Act need to be and are apparent from the substantive provisions themselves without the need for a specific purpose clause and the inclusion of such a clause will do no more than introduce unnecessary and possibly inconsistent and confusing words.

6)      In some cases, the aims of a law are so extensive or diffuse than no useful summary of purposes is possible.

• Purpose provisions can do harm and need to be skillfully and carefully crafted.

• Purpose provisions should be included only in circumstances where the drafter has an understanding of the purpose and likely effect of the purpose provision.

• Unless the provision is in such terms that it will be of assistance both in communicating the message of the law and in relation to the interpretation of any provision of the Act that may turn out to be ambiguous, it will be at best redundant and at worst misleading.

• It is recommended that a purpose provision should be included in every Act unless the drafter considers such a provision will mot be of assistance.

• Not every Act requires such a provision.

Five Rules for Drafting Purpose Provisions

Rule I- A purpose provision should be drafted early in the drafting process

• Compliance with this rule assists both drafters and policy makers to refine clarify their objectives.

• It is desirable that the provisions implementing the purpose of the Bill should be drafted in the light of the purpose clause rather than the other way round.

• Early drafting of the purpose clause helps the drafter to keep the objectives of the exercise in mind as the draft is composed and developed.

• It establishes a kind of benchmark against which the draft can be measured and tested.

Rule 2-A purpose provision must state accurately and unambiguously the purpose and objectives of the provisions to which it relates

• Purpose provisions should be that and nothing else.

• The means of attaining the objectives are distinguishable from the objectives themselves and, in most circumstances, a purpose clause should not deal with the means of attaining those objectives.

• The principles on which a law is to be based are generally distinguishable from the purposes and should not be included in the purpose clause.

• It may be desirable to state those principles in the legislation separately.

Rule 3- The language of a purpose provision must be consistent with the language of the substantive provisions of the Act.

• The heady scent of lofty politically-charged sentiments must not waft the drafter’s feet above the ground so that words are used in the purpose clause that are not followed in the later text.

• The product must not be oversold.

Rule 4-The specificity of a purpose provision must be clearly stated and appropriate.

• It may be more helpful to legislators and later users to draft one or more purpose clauses with greater specificity than just one clause purporting, perhaps inaccurately, to refer to the whole Act.

• The advantages of greater particularity affecting a narrower context are particularly apparent in complex and lengthy legislation.

Rule 5-A purpose provision and the later text of a law should not say the same thing in different words

• This rule is easily adhered to if the drafter keeps in mind the essential distinction between purpose provisions and those that follow.

• It may be simply stated as the distinction between ‘why’ and ‘what’.

• The purpose provision states ‘why’ the law is to be enacted while the remainder of the text which implements that purpose states ‘what’ the law is.

The Use of Supplementary Aids

• Clear English and a logical and observable structure can contribute mightily to comprehensibility but they certainly cannot achieve the miracle of trouble-free communication and ease of use.

• It is not only the complexity of subject-matter but also length that makes many laws difficult to use.

• Complicated processes and procedures are difficult to grasp quickly for most readers and the task becomes even more formidable when the practicalities of those processes or procedures depend on, and perhaps only make sense after references to, various other parts of the statute.

• Supplementary ads can provide potent assistance to make it easier for readers to find their way around and to use a statute.

• The pursuit of clarity and the desire to communicate successfully must not be permitted to cloud the fact that the actual text of the statute is and should always be recognized as being in a special and powerful position.

• Supplementary aid may or may not form part of the legislation and it is critical that drafters leave no possible doubt in this area.

• Some aids might be part of the legislation or not according to the manner and position in which they are presented.

• Supplementary aids may take one or more of the following forms: -

i)                    explanatory and signposting provisions

ii)                  other explanatory notes

iii)                examples

iv)                flow charts

v)                  graphics including formulas, diagrams, pictures, maps, charts and graphs

vi)                indexes

Referential Legislation

The nature of referential legislation

• The expressions ‘referential legislation’ and ‘legislation by reference’ are used loosely to describe several different legislative techniques whereby two laws are bound together or the provisions of one are incorporated in the other.

• The first technique is the direct amendment of a principal law by another law which refers to it.

• This is the ordinary, recommended technique for amendment and cannot seriously be challenged.

• The second technique consists of legislating to extend the scope of an existing statute to make it applicable to additional circumstances specified in the new legislation.

• Although the method amounts in effect to an expansion of the existing law this effect is achieved by reference in the later legislation and not by directly amending the earlier legislation.

• The third technique consists of legislating to adopt or incorporate in a statute provisions of an existing statute not be re-enacting those provisions but by referring to them.

• An example of this technique is the very common practice of adopting existing statutory definitions by reference only.

Criticisms of Referential Legislation[1]

• The case against legislation by reference alleges that: -

i)                    legal complications and puzzles inevitably arise in construing legislation in relation to facts and situations it was not designed for

ii)                  further complications arise where the legislation incorporated is subsequently amended or repealed

iii)                the technique may be employed by unscrupulous legislators or civil servants to conceal rather than reveal the substance of what is being enacted

iv)                it imposes too great a burden on the reader who must find another written law and it communicates as best inefficiently

Defense or justifications of referential legislation

• Justification of the practice of legislation by reference commonly include the following points: -

i)                    it avoids proliferation of statute law by obviating needless repetition

ii)                  it saves the time of the legislature

iii)                it diminishes political difficulties by diminishing the are for debate

iv)                it is of value as a factor tending to uniformity in the law

Practice Notes

• In legislation by reference, the following notes are useful and necessary: -

a)      The legislation referred to must be identified precisely.

b)      The legislation referred to must be studied in relation to the new circumstances to which it is to apply and if it does not fit exactly must be adapted by specific amendments.

c)      Technical accuracy is no justification if reasonable intelligibility is lost in the process of achieving it.

d)     The reader may be assisted in some circumstances by adding in brackets a brief note describing the content of the legislation referred to.

e)      Legislation adopted by reference should be checked for consistency and suitability of language.

Stage 5-Scrutiny and Testing

• The process of composition and development includes much revisionary work, carried out both by the drafter personally and by the instructing officer.

• It involves much consultation with the sponsors, and perhaps other interested parties, and involves also various amendments to the draft from time to time to meet criticism, changes in instructions and supplementary instructions.

• By the time the draft is in final shape it may be perhaps the tenth or even the twentieth version produced by the drafter.

• Inevitably the drafter, and probably the sponsors, of the Bill have reached the stage where they can no longer see the wood for trees.

• There is a burgeoning temptation to regard the draft as finished.

• The drafter at this stage has a much reduced capacity to detect errors in the Bill.

• The scrutiny and testing stage requires a great deal of self-discipline.

• The drafter must take a critical and objective gaze at the finished product.

• The drafter should read the draft and consider it as a whole.

• An effort should also be made to approach the draft from the position of users, perhaps with the aid of persons who have not been involved with the draft and who are not drafters.

• The drafter must check all matters of detail including the following: -

i)                    Consistency of language (Is the same word always used with the same meaning? Are different words used for the same meaning?)

ii)                  References to other legislation (Are they up to date and accurate?)

iii)                Internal cross-references (Are they necessary and if so are they accurate?)

iv)                The use of definitions (Is every definition necessary? Is every word defined actually used in the draft? Does every definition comply with the criteria in this chapter?)

v)                  Numbering and lettering of provisions (Do they comply with the accepted style and are they accurate?)

vi)                The use of paragraphs (Has the drafter suffered from paragraphing fever?)

vii)              Capital letters (Are they all necessary?)

viii)            Spelling

ix)                Punctuation

x)                  Consistency of penal sanctions (Is the level appropriate and does the draft provides a sanction in every case where it should?)

xi)                Arrangement of provisions within the appropriate Parts or Divisions (Assuming the structure is satisfactory, is every provision correctly located/)

xii)              The commencement provision (Does the provision adequately cover the whole draft?)

xiii)            Geographical references and references to offices (Are they accurate?)

xiv)            Suitability and accuracy of headings, including section headings or marginal notes

xv)              Adequacy of the long title

xvi)            Accuracy of the table of contents

• Finally, a drafting colleague who comes fresh to the exercise should be inveigled into scrutinizing the draft and offering comments.

---

[1] Knill v Towse (1889) 24 QBD 186 at 195 and R v Eaton (1881) 8 QBD 158

---

[i] F. R. Plamer, Grammar (Pelican, 2^nd Edition) p68

[ii] See Robert C Dick, Legal Drafting (2^nd Edition), p 78