Advanced Legislative Drafting II

Tutorial 1

(a) What do you understand by “drafting instructions”?

They are data, either in brief or detail, provided for the legislative drafter by the
policy makers that assist him/her as a means to draft an effective legislation
within the parameters detailed by the policy makers of the government. Hence,
be it brief or detail what matters most is that it must able to provide the drafter
the necessary background information so that it enables the drafter to clearly
and fully comprehend the intended policy or political decision to proceed with
the legislation and the choice made among the various alternative legislative
solutions and the means by which such proposed legislation means is
effectively implemented

(b) What are the objectives of drafting instructions? When do we need D.I?

Ans: To provide the drafter with the necessary background information for the
comprehension of all aspects of the political decision to proceed with
legislation and the choice of the proposed legal means for the achievement of
government policy. Thus the main purpose of D.I is:
To determine and limit what the draft bill is to contain;
Act as a key mechanism for the cabinet’s control over the legislative process by
giving ministers a more detailed view of how the policy they are approving will
be reflected in legislation;
To provide an opportunity for a sponsoring department to think through its
proposals;
To provide an opportunity for other departments to appreciate how, if at all, the
proposal will affect them;
To guide the drafters who eventually have to draft the bill;
Serve as a benchmark for assessing whether the draft bill does what cabinet
authorized, or whether additional authority must be sought for particular
provisions of the bill.
(c) When do you think a society might need a new legislation? Explain this issue
by referring to an existing legislation.
Taking the Ethiopian scenario as an extreme example, previously almost
majority of its legislation is copied from or influenced by foreign laws thus
rendering such to be unsuitable legislation originating from or intended to
apply only in a few jurisdiction. That is there was an over reliance on
legislative precedent and said that there was much borrowed….
When it is proved that the new socio-economic problems identified by the
policy issues and the same is given in the form of drafting instruction to the
legislative drafters stating the necessity of legislative solution and finally
agreed up on by the drafters and bill team, other stake holders such as: NGO’,
Universities officials opinion that finally the drafters are intitled to
(d) What would be the best style and contents of drafting instructions?
Style: It must be brief, oral or in written form. It may be a concept note or
memorandum or ministerial order on broadly described topic.
Content: It must contain the desired factual background;
The objectives (socio-economic) of the draft legislation which is very clear,
understandable enable the drafter to produce effective legislation;
The regulatory aim of the proposed legislation;
The current gaps in the existing legislation that the proposed legislation is
going to fill in;
A comparative study undertaken on similar legislation in a chosen jurisdiction;
It must also contain the necessary data, background material for the document;
and
Finally administrative or judicial matters should be considered i.e whether
some administrative decision are reviewable or not.

(e) What must be avoided in giving drafting instructions?

Rule: No misleading instruction. i.e the language of drafting instruction should
not by themselves pose a problem on the proposed legislation.

(f) When is a drafting instruction ideal drafting instruction?

When it contains sufficient background information of the proposed legislation
(complete) and when it is clear both in form or content and idea so that it
enable the drafters to produce effective legislation. Thus, O good D.I will
illuminate: the nature of the problem by providing the necessary and adequate
background information; when it clearly indicate the purpose of the proposed
legislation;
The means by which those purposes are to be achieved ;
The impact of those proposals on the existing circumstances and law.