Day 3
Enabled by the US Department of State
Bureau of International Narcotics and Law Enforcement Affairs (INL)
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Today:
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Wednesday (full day):
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Thursday
 Technicalities of drafting of Bill
 Principles of drafting
 Punctuation
 Special provisions
 Drafting of subordinate legislation
 Drafting exercise
 Marking drafting exercise
 Interpretation
 Domesticating international law
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starting with fundamental provisions,
followed by other contributory branches
general principles must first be listed and
elaborated, followed by providing details on
the general principle, e.g.
Articles dealing with leave in the public service shall be in
the same category and shall further be subdivided as
follows:
a)
b)
c)
d)
National leave/holidays
Sick leave
Annual leave
Hajj and other emergency leaves
A law must be divided into different sections:
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Chapters
Parts
Articles
Clauses
It is obligatory that every chapter must have titles
which reflect the content of the articles it
consists of.
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Sequence
This means that the subsequent chapters of the law
must be interrelated and must be coherently in order
of importance or subsidiarity.
Numbering the Articles
Chapters and articles must be given consecutive
numbers.
Chapter (1), Chapter (2), Chapter (3) ...
Part (1), Part (2) ...
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Articles must be written in such a way that it
includes the word ‘Article’ then followed by a
number, which is put in parenthesis ( )
followed by the sentence.
If an article has clauses, then the clauses
must be given Roman numbers as follows:
Article
◦ Clause (1)
◦ Clause (2)
◦ Clause (3)
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Combined example:
Chapter (1) (title)
Part (1) (title)
Article (1) (title)
◦ Clause (1)
◦ Clause (2)
◦ Clause (3)
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Internal references
A reference to another section, subsection,
paragraph, subparagraph or item should identify
the article, clause, paragraph or subparagraph by
its number or letter and not by such terms as
“preceding”, “following” or “above”.
The words “this Act” should not be used unless it
is necessary to avoid confusion where reference
is also made to another Act.
3 processes involved in the preparation of
legislation
(a)
the determination of, or the
formulation of, the legislative policy;
(b)
the creation of the legislative
scheme, that is, the conception of
the ideas that are to be expressed;
and
(c)
the drafting of the sentence that
expresses the policy or the
purposes of the policy proposals.
The most basic requirements for a good legislative
drafter is to produce legislation that is 
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clear, easy to understand, and unambiguous
simple and concise, containing no unnecessary
elements
precise, leaving no uncertainty in the mind of the
reader
Simply put: can a reasonable citizen know what his
or her rights and obligations are under law?
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sentence is an expression of thought
legislative drafting does not have its own
peculiar rules of grammar or of syntax
arrangement of words to express a command
or to state a prohibition, to confer a power or
to impose an obligation
sentence contains a subject and a predicate
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An Act should state unequivocally what is it
that is required to be done or what is it that is
prohibited, or what is the conduct demanded
by the law?
A drafter must develop an ability to visualise
people when they are doing the things that
are spoken of in legislation
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Act should ◦ lay down the conditions under which the law is to
operate, or the occasion upon which the operation
of the law would depend;
◦ describe the circumstances in which the law would
operate;
◦ identify the person on whom the responsibility is
placed to act or on whom an obligation or a
prohibition not to act is placed;
◦ address the policy considerations that lead to the
formulation of proposals which eventually result in
legislation as a whole.
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Syntax refers to the grammatical arrangement
of words in sentences.
The nature of grouping of words contributes
to and in most instances controls sense
conveyed.
Legislation is inevitably a standard use of
language and what is acceptable or not will
be decided in that context.
An understanding of the conventions
regarding syntactical rules and practices
requires understanding of sentence analysis.
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The basic rule is to write short simple
sentences.
Legislation is not all a question of writing
beautiful sentences.
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The first principle to observe is that a law
consists of
(a) the person on whom an obligation is
imposed, or on whom is conferred a
power or a privilege;
(b) the setting out clearly of what is required
to be done, or not to be done;
(c) the circumstances, where appropriate,
under which it is intended that the law
should operate; and
(d) the conditions, where appropriate,
subject to which an act may or may not
be done, or must or must not be done.
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Second principle to observe is that the
structure of the sentence which constitutes
the law is so clear as to leave no doubt as to
the intention of the law-giver, in this respect
a legislative sentence does not differ from a
grammatical sentence.
It is important to repeat that legislative
drafting does not have a system of grammar,
of syntax all its own.
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Two descriptive terms describe subjectpredicate relationship: topic (subject) and
comment upon it (predicate)
It is not always easy to identify the subject in
a complex sentence: one must find the verb
and any phrase that contains it (the predicate
is associated with the verb and the phrase
that contains it)
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The sentence element (subject/predicate) may be
a single word or a phrase or clause.
A sentence may have more than one subject and
more than one object/complement but the
predicate must always contain a verb.
Both the subject and predicate are subject to
modifications in many ways.
Modifiers are the secondary constituents
consisting of words/phrases/clauses describing
or qualifying other elements of the sentence
A drafter should unravel the structure of the
sentence and isolate its core and then determine
what modifies what.
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subject should be in a prominent position
and should precede the verb which states
how the subject is to be affected
subject of a sentence is invariably a noun or
the equivalent of a noun
in legislative drafting, it is the person on
whom an obligation is imposed or on whom a
power, a privilege or a right is conferred
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The verb should contain an appropriate
auxiliary verb that indicates how the subject
is to be affected.
traditional auxiliaries are ‘shall’ or ‘may’.
Other forms can be used to express effect,
e.g. ‘must’, ‘is to’, ‘is’, ‘is required’ or ‘is
qualified’.
The present tense should be used if the rule
states a legal consequence or declares a legal
status.
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the active form (with an object, if appropriate)
is to be preferred to the passive form, except
if—
general directions are stipulated as to the
taction that may or must be taken
the predicate of a grammatical sentence is
what is said about the person or the thing
forming the subject of the sentence
the legislative sentence contains the enacting
verb of the legislative sentence and
determines what is required of the subject of
the sentence.
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Sentences should be as short as possible.
It is usually desirable to choose a word order
that gives prominence to the principal
predicate.
For complex provisions the context or
condition can be in a separate subsection
from that containing the principal predicate.
Provisos are unnecessary and can be replaced
by separate sentences, suitably linked where
necessary.
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Plan, outline and organise before you start to
draft specific sections.
Ordinarily, start with general matters and
progress to specifics.
Use a rational sequence to determine the flow
of the bill.
General provisions first, followed by specific
provisions.
General provisions first, followed by
deviation.
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Framework provisions first, followed by
detail.
Use plain language.
Omit unnecessary words.
Avoid unnecessary jargon.
Use short sentences.
State requirements clearly and specifically.
Draft exceptions clearly, and do not hide
them.
Use cross-references to clarify, not to
complicate and confuse.
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Avoid incorporation by reference.
Use the same word or phrase for the same
concept.
Adopt a consistent style for basic expressions
like the creation of powers, duties,
prohibitions, and conditions.
Draft primarily in the present tense.
Avoid the passive voice.
Use pronouns with care.
Watch out for straying modifiers.
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Take special care with numbers.
Be cautious with repeals.
Copy and paste BUT ONLY if it is appropriate
to do so! However, there is no need to
reinvent the wheel in the correct
circumstances.
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The basic principle in the use of the words
“shall” and “may” in a legislative sentence is
that “shall” imposes a duty or an obligation,
whereas “may” confers a discretionary power.
Thus, “shall” is mandatory while “may” is
discretionary.
In plain English, “must” is used for “shall” and
“may not” for “shall not”.
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Ambiguity in legislative drafting often
springs from the wrong arrangement of
words in the structure of the sentence
A modifier is a word or collection of words
which identify the subject of the sentence or
the predicate of the sentence
”A person shall not kill an animal on the highway.”
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The expression on the highway may modify (a)
person, that is, a person who is on the
highway;
(b)
kill, that is, a person shall not kill on the
highway; or
(c)
animal, that is, an animal which is on the
highway.
It is thus desirable to be clear at what the prohibition
is aimed. Is it aimed at the person, or the killing or
the animal?
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Try not to use a proviso unless absolutely
necessary!
For a true proviso, do not use “provided that”,
rather use “but” or “except”.
Grammatically, accepted use of word
“provided that” requires that they be
preserved for true stipulation:
“He said he would go to the meeting
provided that I went with him.”
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Legal usage recognises different grades of
propriety for the proviso.
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A proviso follows the enactment of general application
and makes special provision inconsistent with that
enactment.
Its purpose often is to exclude specific case from
operation of general provision without making further
provision for special case.
There is no general rule as to what pattern of sentence
structure should substitute the proviso; the appropriate
form can be selected only after considering function of
sentence.
In many contexts the substance of proviso can
adequately be introduced by “but” or “except” and in
others, it would be better presented in separate
subsection.
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Create definitions to help, not to obfuscate.
Do not define words without a good reason.
Do not create definitions that stray too far
from the ordinary meaning of a word.
Do not use a definition to create a
substantive or operative provision.
Except for short forms, avoid using the
defined word in the definition.
An expression should be defined only where –
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it is not being used in its dictionary meaning
or us being used in one of several dictionary
meanings;
it is used as an abbreviation of a longer one;
defining it will avoid repetition of words; or
the dictionary meaning is extended or limited
for the purposes of the Bill.
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Shape definitions to fit the law, not to fit
other contexts.
Be aware of the difference between the two
common forms of definitions — exact
definitions and definitions by example — and
where practical, write exact definitions.
If you use a definition in only one section or
one short part of an act, place the definition
where it is used.
Only a word or phrase used in the Bill should
be defined.
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Check that an amendment or deletion of a
section does not make a definition redundant
- in which case it should be deleted or
amended.
A definition should not stipulate extravagant
significations - e.g. by defining "land" to
include a "ship".
Mention need not be made that the definition
of a word is to apply to grammatical
variations e.g. "sale" and "sell" has a
corresponding meaning
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Definitions are arranged alphabetically.
The expression “means and includes” should
not be used in a definition; either “means” or
“includes”.
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Refer to numbers up to nine in words,
thereafter in Arabic figures. Thus: one, two,
three ... nine, 10, 11, 12
A number beginning a sentence should be
expressed in words.
Figures should generally be used for sums of
money, times, percentages, ages and units of
measurement.
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“1 April 1999” and not “the first day of April,
nineteen hundred and ninety-nine”
(sometimes the figures “1999” are added).
Internal references
When drafting, and redrafting, be aware of
cross-references changing as draft clauses
are inserted or removed.
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A special case or exception to a general principle or
statement should follow the general principle or
statement. If the stating the special case or
exception first would serve readability and
understanding better, it should be so drafted.
Where the operation of a provision is limited to a
particular circumstance or by a particular condition,
the circumstance or condition should be set out at
the beginning of the provision.
Where the operation of a provision is limited to a
particular circumstance and by a particular condition,
the circumstances should be set out before the
condition and both should be set out at the
beginning of the provision.
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Refer to another Act by its full short title, e.g.
“Prison Law (SRC Decree Law No.7 of 30
December 1971)". A further reference to
such Act in the same section or later in the
Act can just read “Prison Law (1971)", and "(
SRC Decree Law No.7 of 30 December)" can
be omitted.
Never refer to other legislation as “XXX Act,
2013, as amended”.
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Article headings should be short and should
describe but not summarise the provisions to
which they relate.
Articles are omitted and sometimes a verb is
unnecessary.
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Marginal notes should generally not used.
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The word “may” ought to be used as
permissive or to confer a power or privilege
or discretion.
The word “must” ought to be used to impose
a duty.
The words “must not” or “may not” or “No ....”
should be used to express a prohibition
Think about the difference between functions,
powers and duties. Are they in your context not
interchangeable?
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A function is similar to a purpose.
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Power = authority to act.
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Duty = obligation to act.
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You cannot have a function but no power or duty
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Where a number of phrases are listed (e.g. in
subsections), and they are alternatives, the
word “or” should be placed between the
second last and the last phrase, but not
between every phrase.
Where a number of phrases are listed (e.g. in
subsections), and they are part of a totality,
the word “and” should be placed between the
second last and the last phrase, but not
between every phrase.
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The active voice should be used for the
enacting verb in preference to the passive
voice, wherever possible.
The present tense should be used wherever
possible.
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Unnecessary words should be avoided.
Where a word has the same meaning as a
phrase, the word should be used.
Long, unsubdivided, convoluted sentences
should be avoided.
Use gender neutral language
Avoid patronising or demeaning language
Punctuation should be done with care and a
provision should be redrafted if a change in
punctuation might change its meaning.
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Short, familiar words and phrases should be used
that best express the intended meaning in
accordance with ordinary and approved usage.
Different words should not be used to express
the same meaning.
The same word should not be used in an Act in
different meanings.
Pronouns should be used only of their
antecedents are clear from the context.
Possessive nouns and pronouns may be used but
with care.
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The words “said”, “aforesaid”, “same”,
“aforementioned”, “whatever”, “whatsoever”
and “whomsoever” and similar words of
reference or emphasis should not be used.
The words “above” and “below” should not be
used.
The word “such” should be avoided where an
article could be used.
The device “and/or” should not be used.
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The expression “provided that” in its various
forms to denote a proviso should not be
used, rather use “but”.
The words “the provisions of” are very often
used when they are superfluous.
Unnecessary adjectives and adverbs should
be avoided.
Latin expressions should be avoided wherever
practicable.
Formulae to describe mathematical processes
should not necessarily be avoided.
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Not too many acronyms – use definitions clause
and refer to “Agency”, “Authority”, “Board” etc.
Try not to use repetitive clichés, e.g. “null and
void”, “cease and desist” etc. – unless necessary,
e.g. “search and seizure”
Group subject matter together, e.g. provisions
creating rights, establishing an entity, financial
matters, appointment and terms of conditions of
employment of staff members
A power must be precise, set limits and identify
standards or requirements, or purpose.
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Unnecessary adjectives and adverbs should
be avoided.
Latin expressions should be avoided wherever
practicable, unless they have been subsumed
in English.
Formulae to describe mathematical processes
should not necessarily be avoided.
Units of measurement, names, places, days of
week and months should not be abbreviated.
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Purpose of punctuation: to assist reader to
understand more quickly intended meaning by
providing sign-posts to sentence structure.
Punctuation was in past deemed to be no part of
statute, but one can use punctuation when
construing ambiguous/unclear provision in
statute, but must be disregarded if to give effect
to it would so amend sense as to be contrary to
clear intention of statute.
Punctuation is of value - but it must be kept in
proper perspective: It is normally an aid and no
more than an aid towards revealing meaning of
phrases, and sense that they are to convey when
put in their setting.
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Punctuate sparingly and with purpose
2.
Punctuate for structure and not for sound
(must illuminate structure)
3.
Adhere to conventionally accepted usage;
deviate from convention only if reader is
aided, not impeded
4.
Be consistent: applies in particular to
commas
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Comma must serve clearly identifiable and
necessary purpose
Serves two distinct but related purposes: to
separate and to enclose.
“Unless inconsistent with the context or clearly
inappropriate, reference in any legislation ...”
“Despite the repeal of the previous Constitution,
Schedule 2 of that Constitution, as amended by
Annexure A to this Schedule, applies ...”
(1)
Everyone has the right-
(a) to an environment that is not harmful to their
health or well-being; and
(b) to have the environment protected, for the
benefit of present and future generations,
through reasonable legislative measures that(i)
(ii)
(iii)
prevent pollution and ecologically degradation;
promote conservation; and
secure ecologically sustainable development and use
of natural resources while promoting justifiable
economic and social development.
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The council must submit to the Minister the
following:
(a)
its annual report; and
(b)
its annual financial statements.
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Full stop should be placed at end of every
sentence whether in a section, subsection,
paragraph, subparagraph or item.
Full stop is also used after section numbers in
our legislation.
Full stops are not generally used in acronyms
such as UN, OAU and AIDS.
Full stops should not be used after headings,
titles, chapter numbers, tables and symbols
of currency.
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In legislation brackets are used in order to
insert a phrase, information or an explanation
into a sentence.
Their use is only appropriate where sentence
is complete without insertion — they indicate
material that is not part of text.
Instead of brackets, commas can be used
In this Act, unless the context indicates
otherwise—
“Council” means the Medical Council
established by section 2;