Legislation is
the making of laws or it could be said to be the process of writing and passing
laws. Legislative drafting, however, can be described as the process of
drafting bills and other legislative enactments including subsidiary
legislations and administrative orders, notices, warrants, permits, and similar
documents.
Drafting is a skill aimed at
constructing a document that achieves a purpose required of it by the client,
lawyer and the law. Drafting is the initial preparation of that document. Drafting skill involves the construction of
documents, both formal and informal. It necessarily involves the selection of
words and expressions.
Legislative
drafting like any other form of legal drafting is an institutionalised means of
communication. The essential distinction is that unlike other forms of legal
drafting which may be easily altered or changed, legislative drafting is more
of a permanent enactment which stands on its own and speaks for itself without
any form of assistance, elucidation or explanation from the drafter or
draftsman.
Legislations are
made to govern and regulate human conduct within a society. Where a legislation
is drafted with clumsy and ambiguous language or phrases, it might cost members
of the public on whom the legislation is administered long years of battles and
litigations with attendant huge cost. It is imperative that a great deal of care
and diligence be exercised in drafting enactments to reduce as much as possible
the probable difficulties and confusion that may befall the future
administration and interpretation of enactments.
Thus, the
legislative drafting process may be said to begin with the receipt of drafting
instructions and ends with completion of the draft.
For there to be
a legislative drafting, there must be a legislative draftsman.
LEGISLATIVE DRAFTSMAN
A legislative
draftsman is a person engaged in the drafting of legislative bills and other
instruments at whatever level of government. In Nigeria, the offices of
legislative draftsmen are found in various government ministries, parastatals
and in all legislative institutions.
ATTRIBUTES
OF A GOOD LEGISLATIVE DRAFTSMAN
1. He must be a lawyer, who must
have undergone training in law, with a basic knowledge; and must have practised
as a lawyer with special interest in drafting.
2. He must have a good command of
English language so as to make concise and accurate instructions. He should
also be able to communicate effectively with precision and in simple language.
3. He must be patient, meticulous,
analytically minded, critically minded, and research driven.
4. He must be familiar with the
interrelationships of the various departments of government; and a good knowledge
of the political and economic system.
5. He must develop interest and
flare for the subject of legislative drafting and exhibit a high sense of
tolerance, commitment and dedication in the drafting process. Thus, he must be
ready to carry out researches; and must know where and how to find the law.
6. He must be a very simple and
humble person with a good spirit of team workmanship. He must be committed and
fully devoted to his work as a legal draftsman.
DUTIES
OF LEGISLATIVE DRAFTSMAN
1.
Taking
instructions/research adequately.
2.
Holding
consultations and legal advice as and when necessary at any stage of the
legislative process.
3.
Preparation
of Bills.
4.
Preparation
of subsidiary legislations.
5.
Attending
of legislative proceedings during passage of Bills.
6.
Providing
legal advice.
PARTS OF LEGISLATION
A
legislation (Bill) is made up of several component parts. The arrangement of
the component parts usually follow an established pattern which may vary from
one jurisdiction to another. However, it is essential that every legislation
must contain and reflect similar features in contents which are of universal
application. Some of these are –
1. Long title;
2. Preamble;
3. Commencement;
4. Enacting formula or clause;
5. Short title;
6. Marginal notes and references;
7. Interpretation section or provision.
8. Sections and subsections.
9. Punctuation;
10. Paragraphs; and
11. Schedules.
LONG TITLE
Every
legislation (Bill) must contain a long title which states in clear and concise
language the fundamental purpose, which the legislation is to serve. The
principal object of the long title is to highlight the object and intendment of
the enactment. Thus, it helps to determine the scope of the legislation when it
will be considered by a legislative body.
The
language of the long title depends on whether the statute is a Federal or State
statute. If it is Federal, the draftsman should normally place at the top
before the main provision the following: “A Bill for an Act to...”, but if it
is State, he should be “A Bill for a Law to...”. However, as soon as the Bill
is enacted as law, the word “A Bill for” is dropped from the long title.
It
is usually written in bold letters or capital letters.
The
long title need not be too long rather it should be comprehensive and less
cumbersome as possible to convey the intendment of the enactment. Also, the
long title does not form part of the substantive provisions, although it forms
an integral part and may serve useful purpose in statutory interpretation of
the Bill in that it constitutes a special facility unveiling the legislative
spirit and intent. In Bello & 13 Ors. v. Attorney-General of
Oyo State (1986) 5 NWLR (Pt. 45) 828, the Supreme Court stated thus –
“Resort may be had to the long title of an enactment only as
an aid to resolve ambiguities that may arise from the plain and ordinary words
of a statute.”
For
example, the long title to the Evidence
Act, Cap. E14, LFN 2004 is captioned thus –
“An Act to provide for the law of evidence to be applied in
all judicial proceedings in or before courts in Nigeria.”
PREAMBLE
This
is a clause that is usually at the beginning of a Bill or legislative draft of
constitutional importance. Generally, a preamble is a declaration by the
legislature of the reason for the passage of the statute to which it is
affixed. Though, most legislation do not carry preamble, but when used, becomes
part of the statute and might be useful as aid in the interpretation of
ambiguous provisions in the statute and the object sought to be accomplished,
though not to modify a clear provision.
Preambles
are commonly used when it would be difficult to know the purpose of the statute
unless and until certain facts (the mischief) are disclosed.
For
example, the preamble of the 1999
Constitution of the Federal Republic of Nigeria is captioned thus –
“WE THE PEOPLE of the Federal Republic of
Nigeria ...”
COMMENCEMENT
An Act passed today needs not commence on
the same day. It commences when it comes into operation – Kotoye v. Saraki (1994) 7-8 SCNJ
(Pt. 111) 524.
The general rule is that it commences either on the date it receives
Assent or the date it is published in the Gazette. The draftsman must be very
careful about the commencement of the law and should take definite instructions
on this. Usually the law specifies a commencement date.
For example, the 1999 Constitution of the Federal Republic of Nigeria is captioned thus –
“The provisions of this Constitution shall come into force on the 30th
day of May 1999.”
ENACTING
FORMULA OR CLAUSE
This
is also found at the beginning of a legislative or statutory statement. It
states the authority by which legislation is made. In Joiner v. State (1967) SCG Ga
367, 155 S. E 526, the Supreme Court of Georgia held thus –
“The purpose of an enacting clause is to establish the Act,
to give it permanence, uniformity and certainty, to afford evidence of
legislative statutory nature, and to secure uniformity of identification and
thus prevent inadvertence, possible mistakes, and fraud.”
The
enacting clause comes immediately after the long title or preamble, and varies
from one jurisdiction to another depending on the type of government in place.
For
example, in military regimes, the enacting formula or clause could be captioned
thus –
“The Federal Military Government decrees as
follows...”
In
civilian administrations, it could be captioned thus –
“ENACTED by the National Assembly of the Federal Republic of
Nigeria as follows...”
SHORT TITLE
This
is for identification purpose. It is the short name by which the statute is to
be cited and identified. Unlike the long title, the short title presents very
brief information on the subject matter of the Bill.
For
example, the Criminal Procedure Code,
1960 is captioned thus –
“This Law may be cited as the Criminal
Procedure Code Law.”
MARGINAL NOTES AND REFERENCES
It
should be noted that marginal notes do not form part of a Bill or legislative
enactment. It is usually short and only serves a descriptive purpose to assist
in the proper construction of a particular provision contained in the Bill
against which the marginal note is provided. They are either on the left or
right side of the legislation.
Section 3(3) of the Interpretation Act,
Cap. 192 LFN, 1990 provides that –
“a heading or marginal note does not form
part of the enactment and is intended “ for
convenience of reference only...”
However,
courts are not expressly precluded from seeking assistance by reference to
marginal notes to resolve contentious issues of law where the provisions of the
Act are ambiguous – Ondo State University v. Folayan (1994) 7 NWLR (Pt. 354) 1 at 23;
Schroder v. Major (1989) 2 NWLR (Pt. 101) 1.
INTERPRETATION SECTION OR PROVISION
This
is also referred to as “definition clause”. It is found either at the beginning
or the end of a Bill or legislative draft. It contains the definitions or
meanings of words and expressions used in the statute.
The
interpretation clause aids clarity and consistency in drafting. Thus, once a
word or expression is defined in the Interpretation Section, the draftsman is
free or at liberty to use the word or expression repeatedly without providing
the meaning each time such word or expression is used.
As
a general rule, where a particular word or expression is not defined in the
interpretation section of the statute, the Interpretation Act of the Federation
or Interpretation Laws of each State shall be resorted to for the purpose of
construction and judicial interpretation. This is the position of the law
because the Interpretation Act of the Federation and the Interpretation Laws of
each State govern interpretation of statutory enactments and instruments
generally. In Attah v. The State (1993) 7 NWLR (Pt. 3005) 257 at 286, per Karibi Whyte JSC stated thus –
“It is well settled principle in the interpretation of
statutes that where it has been defined in a statute, the meaning given to it
in the definition must be adhered to in the construction of the provision of
the statute unless the contrary intention appears from the particular section
or the meaning is repugnant in the context in which the definition is used.”
For
example, the Companies and Allied
Matters Act is captioned thus –
“In this Part of this Act, unless the
context otherwise requires...”
Another
drafting method that is commonly used are the words “means” and “includes”. The
implication is that where the former is used, it follows that the statute does
not admit of any other meanings of the word already restrictively defined in
the interpretation section – Odu’a Investment Ltd. v. Talabi (1997) 10
NWLR (Pt. 523) 1; Owena Bank Nig. Plc. v. N. S. E. Ltd. (1997) 8 NWLR (Pt. 515)
1; N. E. W Ltd. v. Denap Ltd (1997) 10 NWLR (Pt. 325) 481. On the other
hand, where the latter is used, it follows that the words defined could admit
of other extraneous meanings other than in the sense in which they are defined
in the interpretation section.
SECTIONS AND SUBSECTIONS
This
has to do with the division into sections and sub-sections. It is advisable
that a section should contain one main idea which should be self explanatory,
short, lucid and devoid of ambiguity.
However,
where the composition of the section turns out to be a long one, the proper
thing for a draftsman to do is to break the section into sub-sections.
PUNCTUATIONS
This
is all its various forms like comma, full stop, colons, inverted commas,
quotation marks, etc. must be taken into consideration in construing an
enactment.
The
draftsman must make careful use of punctuations in legislative drafting because
where it is recklessly used, could defeat the purpose of an enactment.
Section 3(1) of the Interpretation Act provides thus –
“Punctuation forms part of an enactment and regard shall be
had to it accordingly in construing the enactment.”
PARAGRAPHS
This
is necessary where a section or sub-section of a statute becomes unreasonably
long. The essence of this is to help the readability of the sentence and it
also creates precision in the understanding of the legislative sentence.
A
paragraph may be divided into sub-paragraphs particularly where the paragraph
in the sentence becomes too long.
SCHEDULES
This
is used in legislative drafting to supply supplementary details. Schedules
exhibit in detail matters or information mentioned or referred to in the
principal body of the Bill or legislation.
Details
of information, statistics, figures, tables, and other special or technical
matters highlighted or referred to in the body of an enactment are contained in
the schedule. Moreover, what the principal provisions do is to make references
to details contained in the schedule to the enactment.
However,
it is important for the draftsman to remember to indicate on top of the first
page of the schedule by way of marginal reference the main provisions or
section(s) by virtue of which and for which purpose a particular schedule is
provided.
STAGES OF LEGISLATION
For a draftsman to produce a good draft, he
must pass through five identifiable stages. The stages are –
1.
Understanding;
2.
Analysis;
3.
Design;
4.
Composition; and
5. Scrutiny.
UNDERSTANDING
It is
essential that the draftsman understands fully the instruction received in
respect of the law he is going to draft. He should, therefore, direct his mind
to one of two things or indeed both, which are –
a)
He can make clear to those
instructing him the kind of drafting instructions which is most helpful to him.
This can be done on a case by case basis, for example, he can get in touch with
the instructing authority, setting out what and what information should be
supplied to him or generally as a guide to all authorities who wish to instruct
him to draft one law or the other; or/and
b)
He can consult with the
instructing office at an early stage after receipt of the preliminary drafting
instructions.
Drafting
instructions are the instruction emanating from the authority sponsoring the
law to the legislative draftsman who is responsible for reflecting policies in
laws or statutes. The instructing authority could be anything from the
government, a parastatal or other agency of government. The legislative
draftsman would, invariably, be a lawyer knowledgeable in the art of drafting
laws and could be a legal practitioner commissioned to draft the law.
The
following are essential in drafting instruction –
a)
Sufficient background
information to enable the draftsman to see in perspective and in context the
facts and the problems which the legislative proposal is intended to meet.
b)
The principal objects of the
legislation must be clearly stated.
c)
The means whereby the principal
objects are to be achieved should be stated.
d)
All known implications,
difficulties whether legal, social or administrative associated or contemplated
by the proposals should be stated.
ANALYSIS
Legislative proposals should
be carefully analysed in relation to the following –
1.
Existing law – There is no Bill that is
not related remotely or otherwise to any existing law. Be that as it may, it is
the duty of the draftsman to study in great detail all existing laws within the
spheres of the legislative proposal. The major advantage of doing this is to
avoid drafting a law that duplicates or impliedly repeals existing laws on the
subject matter. This does not mean that a law may not, on the face of it,
purport to amend any existing law.
2.
Potential danger areas – It is generally
agreed that the duty of the draftsman is to put legislative proposals in draft
form for passage into laws, and not to concern himself with formulation of the
policies which give rise to the legislative proposals. But in practical terms,
it is difficult to insulate the draftsman completely from having a say in
determining the shape, contents, and policy-related issues concerning the
proposed legislation because by virtue of the position of the draftsman, he is
presumed and in fact, expected to be familiar with the law on a wide range of
issues which puts him in a vantage position to see a legislative proposal in a
wider and more balanced perspective than is possible for those who instructed
him.
3.
Practicability – This is however similar
to potential danger areas. It deals with enforcement of legislative enactments.
It is common to find that sponsors of legislative proposals seem more
interested in pushing for rapid legislation without considering the capacity of
the proposed legislation to be administered effectively and without difficulty.
DESIGN
After gaining thorough understanding of the
proposals and assessing same in relation to existing law, the draftsman now
reaches the design or planning stage. This is the outline or framework prepared
by the draftsman that assists him in visualising the shape or broad content of
the enactment.
At
this stage, the draftsman is to do the following:
1.
Make a precise outline of the
objectives and principles to be contained in the legislation.
2.
Make a statement of the
principal means of attaining the objectives and principles.
3.
Design the structure of the
draft statute, e.g. the substantive provisions and the administrative
provisions of the bill.
COMPOSITION
Composing a statute entails a lot of mental discipline. The person
drafting will, invariably, rely on some aids to compose. These aids include
precedents, statutes on similar sub or related subjects, both local and other
jurisdiction. Proper use of precedents may constitute a source of ideas, in
addition to constituting a help in the actual drafting. Use of precedents saves
time and using precedents from the same jurisdiction may contribute in no small
way to consistency of approach, which, in turn, will contribute to statute law,
becoming a coherent body rather than a patch work. However, precedents must be
carefully used in the context of Nigeria.
SCRUTINY
This is the last stage of drafting. Under
this stage, the draftsman is expected to have checked and re-checked the drafts
in previous stages, and must have had series of conferences and meetings, both
formal and informal, with those sponsoring the statute. Errors or mistakes,
especially of substance and against the general intendments of the statute must
have been detected, corrected and put in place. At this stage however, one
should ask an independent eye, preferably a legal practitioner, to have another
critical look at the draft (for example, checking the punctuation marks,
spelling, marginal notes, grammatical errors, etc, for someone who has been
involved as the draftsman may not spot drafting and other clerical errors.
ARRANGEMENT AND FORMAT OF
LEGISLATIVE ENACTMENTS
Legislative enactments are commonly divided
into three parts namely –
1.
The Preliminaries;
2.
The Substantive Part; and
3.
Miscellaneous.
PRELIMINARY PART
The
preliminary part of a legislation consist of –
a)
The short title or citation.
b)
The long title.
c)
The preamble.
d)
The enacting clause.
e)
The commencement.
f)
The application.
g)
The interpretation clause.
SUBSTANTIVE PART
These are
the main provisions of the statute. They deal with principal matters which can
be brought under two main heads – the substantive clauses, and the
administrative clauses.
Depending
on the objective and purpose of the legislation, the substantive part may
consist of –
a)
Establishment of an
administrative or statutory body.
b)
Name, membership, management
and administration.
c)
Functions, duties and
procedure.
d)
Regulations.
e)
Offences and penalties.
f)
Notices, etc.
MISCELLANEOUS
A number
of matters are usually treated in the final part of legislation. They include –
a)
Repeal and savings clause.
b)
Transnational provisions.
c)
Schedules.
The arrangement described above is not exhaustive and it is not
formulated for slavish use. It is a guide which may be useful to the draftsman
as a checklist. Whether a particular feature needs to be present in a particular
legislative enactment would very largely depend on the type and purpose of the
Bill. Such issue is remitted to the professional prowess and competence of the
legislative draftsman.
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