County Legislation

The Role of Technical Personnel in Legal Drafting

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County legislative Mandate

Stakeholders of County Legislation
Policy and law relationship
Stages in the legislative drafting Process
The role of the technical and legal personnel

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Outline

County Legislative Mandate

Power to legislate : Constitution Art 185

A county assembly may make any laws that are necessary for, or
incidental to, the effective performance of the functions and
exercise of the powers of the county government under the
Fourth Schedule

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The governments at the national and county levels are distinct

and inter-dependent and shall conduct their mutual relations on
the basis of consultation and cooperation.

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Duty to cooperate: Constitution Art 6 (2)

Conflict of laws: Constitution Art 189;191

Functional and institutional integrity; respect for Constitutional
function; non-conflict perspective
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Users of County legislation

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JUDICIARY

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NATIONAL

COUNTY

CITIZENS

POLICE
CIVIL
SOCIETY

Users of a legislation

County Government Technocrats:

using power in trust/citizens best interest

Policy Proposal
Drafting instructions
Monitoring and evaluation

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Core beneficiaries
Donors of political power

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Consumers/Citizens:

National Government Technocrats:

Setting national standards
Conflict resolution: Intergovernmental Relations Act
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Users of County Legislation

Civil Society
Watch dogs
Development funds
Community initiatives

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Interpretation
Administration of human rights
Conflict resolution

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Judiciary

Police/Prosecution
Enforcement/Offenders
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ACT
BILL

POLICY

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REGULATIONS

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The Policy and Legislative

relationship

The Technocrat and the Legal

Personnel

The legal personnel is the key legislative drafter

His/Her role is to receive instructions, translate them into
legislative text, and fit them into the broader legal context
E.g. the implications and expectations of water as a right

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His/Her role is to generate, craft and deliver instructions to

facilitate drafting
E.g. who administers the water infrastructure?

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The technocrat is the Principal Instructor

Problem Definition & Policy Drafting

Crafting and guiding Instructions
Approving and reviewing draft bills
Facilitating public participation
Delivering bills for debate to the County Assembly
Participate in committee stage of the Bill
Enforce the legislations
Instruct on regulations
Amend regulations

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Duties of a technocrat

Legal

Understanding

Understanding

Analysis

Analysis

Design

Design

Scrutiny and testing

Composition and Development

Scrutiny and testing

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Technical

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Division of Roles in the Drafting

Process

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Stages in the Legislative

Process
Understanding
Analysis
Design
Composition and Development
Scrutiny
Source: G C Thoornton. Legislative Drafting 4th Edition (2008)

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Stages in the legislative process

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Understanding
Means for achieving the purposes
How do we intend to achieve these purposes?

Impact of the legislation on circumstances and law

Which institutions and activities will be affected by this law?

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What is the purpose for this law?

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Purposes for the law

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Analysis
Legislative Proposals and special responsibility areas
Are there any fundamental principals that this law seeks to
facilitate or may affect
Are there any obligations that may be affected by this law?

Legislative proposals and practicality

Is there capacity to enforce the law: administrative:

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Which laws are likely to affect or be affected by this legislation

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Existing law

administrative
Financial
policy
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Design
Short title
Objectives of the legislation
administrative aspects
Substantive aspects
Provisions for regulations
Licensing provisions
Offences and Penalties
Financial provisions
Savings
Schedules

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Basic structure of a bill

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 Delimiting: define the boundaries

Extending: going beyond the meaning
Narrowing: excluding some meanings

Purpose provisions
Section headings/ marginal notes
Basic structure (design)

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Involves actual drafting

Definitions

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Composition and development

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Committed to purpose
Conscious of the general body of law
Conform to the Constitution
Coherent and well structured
Comprehensive language

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Scrutiny and Testing

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Regulations
Rules on delegated legislation

General rules
Delegated legislation, apart from forms, must be published in the
gazette to become operational
Penalties in a regulation cannot act retrospectively
Subsidiary legislation is constructed using the main legislation
Subsidiary legislation cannot be inconsistent with the main act
Subsidiary legislation can be amended in the same way it was
made
Powers can be concurrently general and specific
Penalty: KES 6000, 6 Months

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Interpretation and General Provisions Act

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Guiding statute:

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OMBAKA VINCENT

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Questions and Reflection

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