DIRE DAWA UNIVERSITY

COLLEGE OF LAW

GROUO ASSIGNMENT OF LEGISLATIVE DRAFTING

NAME: ID.NO
MESUD GEMECHU............ .............. 1203164

5th year

SUBMITTED TO:
 1. Among the Two antagonistic views on the role of legislative drafters which views
are followed by Ethiopia .?

Though there is a common understanding that the draftsman play an important role in LD
process, talking about the specific role of the drafter there are two major antagonistic views,
According to the first view, the role of a drafter is simply translating government policy into
laws with clear and plain language. In other word, a drafter need know nothing about the
substance of the policy, but only how to use words to communicate what the client is trying to
accomplish. A drafter perform only technical task to ensure that no ambiguities in language
could the bills message. S/He cannot evaluate that neither word or substance contradicts
government policy, existing laws, constitutions. Thus, the drafter considered as “pen pusher” a
person who write what ordered.

On the other hand, the second view, argued that in addition to translating the broad terms of
policy into a bill’s details, a drafter play an important active creative role in defining policy
meaning and gap filling when there are loopholes between policy and law. Here, in some extent
drafter involve in decision making process of the government while drafting laws. To put in
simple, the drafter entitled to point out policy considerations involved in the draft, but S/he must
take every precaution against unnecessary injection of his own views into the policy features of
the bill.

The third views called the middle path theories which stated that the drafters play an important
role in defining policy meaning, they can’t make policy decisions. As policy decision making
power principally belongs to government’s executive organ. On the other hand, drafters are not
mere pen pusher. Instead drafting bills, demand high creativity, knowledge of laws and policies
of a state and understanding of the drafter. Thus the role of the drafter is beyond translating the
broad terms of policy into a bill’s details.

When we come to our question we should analysis the existing laws in Ethiopia to determine
which approach being followed In Ethiopia. Our first analysis is computer proclamation. As
recognized under international instruments every one has the right to the freedom of expression,
unless prescribed by law. There fore every one have the right to freedom of expression if the
laws not prohibits him this right , the laws are not simple prohibits this right the law prohibits
based on the reasons, for protection of national security, territorial integrity or public safety,
prevention of disorder or crime, protection of health or morals, protection of the reputation or
rights of others, preventing the disclosure of information received in confidence, or maintaining
the authority and impartiality of the judiciary. This is also exhaustively enumerated in Article
19(3) of the ICCPR as respect of the rights or reputations of others, protection of national
security, public order, public health or morals As such, it would be impermissible to prohibit
expression or information solely on the basis that they cast a critical view of the government or
the political social system espoused by the government.
In computer proclamation many of its provisions are lack legitimate aim to limit the enjoyment
of fundamental human right under Ethiopian

For example under 3(1)of this provision stated that illegal access whosoever, without
authorization or in excess of authorization, intentionally secures access to the whole or any part
of computer system, computer data or network shall be punishable with simple imprisonment not
exceeding three years or fine from Birr 30,000 to 50, 000 or both.

Under this article there is no legitimate aim such as public interest defense for, covering the
accessing or intercepting of data for journalistic purposes. This will have its own effect on the
right of freedom of expression by inciting fear to journalist from accessing someone to reach
information for public. Therefore the computer crime proclamation is not inline with
international instruments and also to the constitution of Ethiopia art (29) and art 9(4) of the
Constitution. Therefore based our argument on this proclamation we can argue that the
legislative drafter role in this proclamations seems the first view which states the role of
legislative drafter is only translating policy of government in to language and they are pen pusher
because in our case the proclamation is violating the art 29 and 9(4) of the constitution of the
country by limiting freedom of expression with out legitimate however if the role of drafter of
these proclamation follows the second view of argument he have to paly role in decisions
making and he have to fill gap and loopholes but in our proclamation the drafter didn’t do such
task despite existence of provision which violate the laws and constitution of the country. For
this reason we can conclude that the role of legislative drafter under computer proclamation were
pen pusher which only translate policy into laws with plain language.

Our second analysis is on Ethiopian labour proclamation with regard to minimum wage. A
minimum wage is the lowest wage that employers may legally pay to workers. The purpose of
minimum wages is to protect workers against unduly low pay and they are essentially labour
market interventions used by governments either as instruments of political macroeconomics or
as social tools. Many countries around the world have sought to develop wage protection
legislation, even though their form and method may vary. A wide range of rationales have been
put forth to justify legislating minimum wages and, to some extent, the motivation for the policy
shapes labour regulations in each country. In terms of setting wage policy, most countries
around the world have adopted wage-setting policies, typically through the legislative process,
by establishing laws or by giving legal force to the terms of collective agreements negotiated
among employers, trade unions, and employees. Therefore Different country set the minimum
labour wage in their laws in order to protect workers
Regarding Minimum wage policy and laws in Ethiopia previously there is no provision in the
labor proclamation which provide about minimum wage like other country. In the country the
issue is left for parties’ agreement. Concerning Minimum wage policy there is no separate policy
which provide about minimum wage in Ethiopia. Thought Ethiopian labor proclamation didn’t
set a minimum wage rather it establish a commission that set a base wage across time depending
on the economy, cost of living and other factors in order to avoid the hassle of revising the
proclamation repeatedly. However such act of the government is unable to protect the interest of
the worker and also until know there is no established commission regarding the issue.
Therefore in the country the issue of wage is left for parties’ agreement which exposed the
worker for unfavorable situations. So Ethiopian labor proclamation lacks such intensity and
what minimum wage is may be the subject of tension between the social partners in Ethiopia So
generally regarding clear recognition of minimum wage Ethiopia labor proclamations didn’t give
separate and clear room concerning minimum wage like other country. Absence of such
provisions are affecting the right of workers in Ethiopia. When we come to our question from
above discussions we can say that the role of legislative drafter in this labor proclamation is pen
pusher because in this proclamation the drafter simple translate what legislature said and the role
he play is nothing rather than translating intention of policy maker. Being pen pusher of drafter
in this proclamations can also be inferred from the gap exists in the proclamation because the
proclamation didn’t put the minimum wage if his role were beyond pen pushing he would have
fill the gap that exist in the proclamation but in this proclamation he didn’t fill such gap this
shows that the role of legislative drafter in this proclamations is Pen pusher.

Additionally when we look at the 2016 state of emergency proclamations there is contradictory
statements in its contents. The proclamation provided contradictory statements by stating, under
its preamble provision, that “illegal activities [are] committed in some parts of the country
necessitates this proclamation and ” therefore one can say that if illegal activities carried out in
the whole country this proclamation is inapplicable. But under Article 3(1) it states that
“[Emergency] Proclamation shall be applicable in all parts of the country.” 1 Let to deals this with
our question in the first the role of drafter is to avoid such self-contradicting provisions within
the law itself and to avoid inconsistency and contradictory of one laws with other in this
proclamation the drafter is not even avoid or limit the self contradictory provisions in the same
proclamation. Therefore from above statement we can conclude that the role of legislative drafter
in this proclamations is pen pusher because he didn’t ensure any consistency rather than
translating intention of policy maker. If he would have been not pen pusher he had been avoid
such contradictory provisions therefore the role of drafter in this proclamations is the first views.

Another proclamation which we refer in order to determine the role of legislative drafter is
House peoples representatives legislative procedure proclamation no 14 / 1995 The
proclamation in its preamble stated that the legislative procedure of the house. should be focus
on democratic tenets covered in the constitution and also Its mode of Operation should be
devised with TransparencTransparench3nsibility. so from the above statement we can infer the
role a legislative drafter. Frist from these we can infer as the drafters should ensure in drafting
bill weather or not its in line with the democratic tenets in the constitution. if it not in line he
should not draft because in preamble its stated that the procedure of legislative procedure should
be in accordance with the democratic tenets in the constitution. because of the role of legislative
drafter are among Legistive procedure drafters are under this duty. Second the same preamble
1
See the Preambular Provision of Proclamation No.1/2016 & art 3(1).
state that the modes of operation of procedure should be comprehensive to the public mind these
means the process and every thing of legislative procedure should clear to the public mind these
may through proper language or word. from the above the we can infer the role of drafter.
Though -because of Legislative procedure includes drafting of laws and the bill is drafted by
drafter drafters are under these duty to make draft is comprehensive to the public mind .
Therefore from above statement the drafter are under duty check the bill he is drafting is within
the constitution. Therefore in these proclamation the role of drafter is beyond the pen pusher as
he has duty to check up consistency of draft within the constitution in addition to clearance in
language and comprehensibility of bill. Also additionally while the role of drafter is important as
stated above the Proclamation also make clear that the law the draft bill have no effect of its
rejected by HPR by majority voice according to art 7(4) and 8 . these means even if the
legislative drafter use his Technical Expert and play important role in drafting the to bill the bill
may not have effect if its rejected by HPR for whatsoever reasons is so rejecting the bill may be
for political reason despite the purpose and objectives of the bill have to public at large for these
reason we can say that drafters have no decisions making power on the policy making. Based on
this justification we can say that the role of legislative drafter under proclamation no. 14/1995 is
the middle between the first and second antagonistic views.

When we look proclamation No. 8436/2016 we can infer that that the power of Federal attorney
general in relation to legislative drafting under Art 6(5) according to this article the legislative
drafter (federal head of federal attorney General) have the power and duty to perform
Preparation! laws to be promulgated by the federal gov't and also he have the power and duty to
ensure that the draft laws prepared by gov't organs are consistent to the constitution & other
laws and also to assist in the preparation of laws when the regional state requested him, from
these statement we can conclude that the role drafter in this proclamation is beyond pen pusher
as they have the power to ensure the consistency of the draft or law With the constitution as
well as with other federal law. additionally he have the duty to assist in that preparation of draft
for these reason the role of legislative drafter In this proclamation is not only translate what the
lawmakers say into policy he have the power to give opinions and ensure and recognize the
consistency of the draft with other laws. However also one can say that the role L. Drafter in this
proclamations is not to give decision on policy making rather than giving opinions and ensure
consistency. The proclamation also didn't give the Federal attorney the power to make decision
either to reject the drafted laws. for these reasons as generally we can conclude that the role
legislative drafter in this proclamation is between the two Views which means the third views.

We can infer the role of legislative drafter from power and duties of council of Ministers
proc.1097/2013. from this proclamation even if the proclamation doesn't Cleary. provided the
role of drafter It can be inferred from the reading of the provisions of proclamation. Accordingly
the Proclamation provide a power and duty of the government Organization which allows them
to exercise their power according to the constitution. Among the power given to them they have
the power were to initiate and enact laws as per article 5 the proc. cum to Art 77(13) of the
constitution . Hence in the proclamation Since the Power is given to Council of Ministers to
enact regulation the drafter can Play the a major role in drafting there regulations by ensuring its
consistent with constitution and other proclamation besides ensuring the clear language and the
proper word however the constitution limits the power of council of Ministers by subjecting the
council to enacting Regulation only on the area given to them from HPR. These limitations of
power on council may indirectly limits the drafter as not he can perform his work with power of
decisions making regarding the policy. For these reasons we can conclude that under this
proclamation the role of the legislative drafter is middle ground between the two antagonistic
views.

When we look at the General Legislative Drafting Manual of Ethiopia its lays down the purpose
of this manual which indirectly shows the views adopted by Ethiopian regarding the role of
legislative drafter. Accordingly the manual lays down the purpose of having this manual Among
the laid down purpose promoting uniformity in drafting style and ensuring the preparation of a
law which is clear, simple, consistent, coherent and easy to understand and make use of as
ultimate beneficiaries of the law will find in a better position to understand and apply in terms of
their rights and obligations are one of its purpose 2. Additionally to make well drafted law that
will succeed in properly translating the relevant policy into implementable law that will likely
induce desired social, political and economic transformation of the country. 3 The other
significance provided under this manual is also to avoid or minimize loopholes and
contradictions in in legislations, thereby minimizing the possibility of abusing law 4. In this case
the purpose is impliedly refer what the drafter should do which means the drafter in drafting
legislation he should maintains the purpose of this manual as a manual is prepared to guide them.
Additionally under the manual the responsibility of drafters are laid down , accordingly the
drafter as participant in the law-making process, shall employ technical skills required to draft a
competent and clear and implementable laws 5. As provided in this manual the drafter may
decline to draft laws that apparently contravene/violate the Constitution of the Country.
According to this manual based on what we said above the legislative role is more and beyond
pen pusher because they have the right to decline the draft laws if its found inconsistent with
constitution. Therefore we conclude that the legislative drafting manual views adopted is seem
the second view which argued that in addition to translating the broad terms of policy into a
bill’s details, a drafter play an important active creative role in defining policy meaning and gap
filling when there are loopholes between policy and law and involve in decision making process
of the government while drafting laws

Generally we can conclude that while there is no provisions which clearly states the views
adopted by Ethiopia the inference can be made from analyzing the provisions of each
2
Legislative Drafting Manual of Ethiopia Justice and Legal System Research Institute/Justice System Administration
Reform Program(Addis Ababa February 2008) p.2
3
Ibd
4
Ibd
5
Id p.61
proclamations. Hence under Ethiopia the views about role of Legislative drafter are different
from proclamation to proclamations and legislative drafting manual.