Legislative Drafting, How it came?

❑ Legislative instruments may have many purposes but generally, they meant to
facilitate, prohibit or regulate human conduct.

❑ Construction.
Since human conduct are diversified, the drafting shall strive to cater for versatility
unforeseeably wide range of feature possibilities by constructing words achieving
sufficient clarity while retaining intelligibility.

❑ Challenges.
1. Language is not a Mathematics but an imprecise medium of communication
capable of tempting a novice Drafter to venture on eventualities.

2. While statutory provisions require being expressed at a high level of abstraction,

its applications cover a wide range of highly specific individual instances.

3. Fog of interpretation. Words are spontaneously, thus mistakes in using them are
occasioning adverse impact on the degree of precision in the message they carry.
Remember, amendments is a long-term process.
Legislative Drafting defined.
❑ Legislative drafting is a process of converting policies into provisions which adhering to the relevant
formal conventions and are capable of being applied effectively in practice i.e., shall meet the
object and reason of its enactment

❑ Conditions of a well drafted legislation.

1. Government Policy and Law Objective.

2. Legislature’s intention to enact (Object and Reason of Legislation).

3. Ability to administer, comprehend, facilitate, prohibit or regulate.

4. Clarity.

5. Capability of being interpreted by the court and solve issues on legalities, ambiguities, inequity or
unfairness.

6. Redressed from fallacy of Assuming a Co-Operative Readership (a legislation shall accommodate a

person reading in good faith and the one reading in bad faith. Refer Stephen J In re Castioni [1891]
1 QB 149,167.

7. Inseparability between drafting and Interpretation i.e., principle of interpretation for identifying the
intended meaning.
Legislative Drafting: Technical Considerations.
❑Cabinet Paper (Legislative Proposal).
It’s a document seeking cabinet’s approval for intended
legislation.
❑Ingredients of the Cabinet paper.
1. The background.
2. Objectives.
3. The strategic standpoint (Necessary matters capable to
prompt the Cabinet’s fiat).
4. Proof of undertaking internal consultation (The CPD’s or AG’s
opinion warranting the draft)
Cabinet Paper, Cont.
❑ Stages of the Cabinet Paper.

The IMTC
(Inter- The Cabinet
Ministerial
technical
The Cabinet Committee)
Secretariat
(officers
assisting the
Cabinet and
cabinet
Committees
Cabinet Paper, Cont.
❑Where the Cabinet approve the Cabinet Paper, it forms part of
the Drafting Instruction.
❑The President of the United Republic may change, vary or
amend the Cabinet Paper by so directing the AG/CPD.
❑Communications in lieu of the President Shall be carried out by
the Chief Secretary.
❑Where the Cabinet approve the Cabinet Paper, the CPD may
be issued with instruction to draft the Bill Draft.
❑Mind you: It is common for the Bill Draft to be accompanied
with the Cabinet Paper.
Legislative Drafting: Technical Considerations.
❑ Drafting Instructions, What is?
“The Cabinet instructions given to the CPD for the parameters within which the
legislative proposal shall be drafted into a Bill or instructions by an authority
delegated by Parliament through an enactment to make a subsidiary
legislation.”
❑ See: Section 12(4) of the Office of the Attorney General (Discharge of Duties)
Act, Cap. 268.
❑ In case of a Principal Legislation, four things to consider.
1. Directives.
2. The Cabinet.
3. Legislative Proposal.
4. The Bill.
Drafting Instructions, Cont.
❑ In case of Subsidiary
Legislation, three things to
consider.
1. Directives.
2. Authority.
3. Subsidiary Legislation.
❑ Traits of Drafting Instructions.
1. It’s a basis for a Bill.
2. It specify the limit/parameters of
a Bill.
3. Guidance for a Drafter.
Drafting Instructions, Cont.
❑ Enabling provisions.
Item B. 12(3) of the Public Service Standing Orders, 2009:
“Before the Chief Parliamentary Draftsman can be requested to draft any principal legislation, the
approval of the Cabinet to [sic]the principles shall first be obtained. It shall be advantageous for
the Ministry concerned to clear the draft of the Cabinet Paper with the Chief Parliamentary
Draftsman. For similar reasons instructions for the drafting of lengthy or complex subsidiary
legislation shall not be given until, in the case of subsidiary legislation to be made by the
President, the Minister concerned has agreed in principle to putting the matter to the Cabinet,
and, in other cases, until the person or body having the power to make the subsidiary legislation
has agreed in principle to make it.”

Item B. 12 (3) of the Public Service Standing Orders, 2009 stressing for two important
aspect-
1. Approval of the Cabinet for principles the Bill seek to address is paramount.
2. Cabinet Paper is decisive factor for a proposed legislative.
Technical Considerations. Statutory Interpretation
❑ Statutory Legislations. ❑ Rules to Statutory Interpretation.
Legislation Drafting and Interpretation are 1. The Literal Rule.
inseparable.
2. The Golden Rule.
❑ Internal Aid.
3. The Mischief Rule. A rule in Heydon’s
1. Long title. Case [1584] EWHC Exch. J36.
2. Short Title. 4. Purposive Approach.
3. Marginal Notes.
4. Definitions, etc.,
❑ External Aid.
1. Dictionaries.
2. Hansard. See, Pepper (Inspector of
Taxes) v Hart [1993] AC 593.
3. Textbooks.
4. Case laws, etc.,
Technical Considerations.
❑ Other aids. ❑ Language of Legislation.
❑ Presumptions. 1. Legalese (Language of the Legal Professional)
❑ Where a statute does not expressly provide vs Plain Language.
otherwise, it is presumed the following apply: 2. Clarity (Meaning of words are derived from
1. Statutes do not operate retrospectively. the color it carries)
2. Existing rights are not to be interfered with. ❑ Wording of Legislation.
3. Statutes do not change the common law. 1. Punctuation (Language’s signpost).
4. mens rea is required for criminal liability. 2. “May” or “Shall”.
5. "Nulla Poena Sine Lege”. Art. 13(6)(c) of CURT. 3. “And” or “Or”.
6. Innocence. Art. 13(6)(b) of the CURT. 4. “Without Prejudice” or “Notwithstanding”.
❑ Ejusdem Generis. See, Powell v Kempton Park 5. Cross references.
[1897] 2 QB 242. 6. “Subject to” or “Subjected to” etc.,.
❑ Expressio unus est exclusion alterios. See, R v ❑ Definitions.
Inhabitants of Sedgely (1831) 2 B & Ad 65. ❑ Application. (First Schedule of the CURT,
❑ Noscitur a sociis. See, Inland Revenue v Frere provinces or objectives).
[1964] 3 All ER 796. ❑ Style (Arrangement of Sections).
Technical Considerations.
❑ Amendments of Legislation.
❑ Grounding factors.
1. Change of Policy.
2. Change of Strategy.
3. Inadequacy penalties.
4. Flexibility (For a law to be living, it
must be flexible) (It may include
technological developments i.e.,
Cyber, electronic transactions etc.,.
❑ Amendments are of two categories-
a. Textual Amendments; and
b. Non-Textual Amendments.
❑ N:B. In Tanzania, we do with Textual
Amendments.
Structure of a Bill and Compliance to the DI
❑ Except where provided in Drafting Manual, There is no form of precedent for
structuring. In most cases, a Bill is structured due to its subject matter and
objectives.
❑ However, a Bill shall not be less of the following-
1. Preliminary Provisions.
2. Substantive and Administrative Provisions.
3. Supplementary Provisions.
4. Financial Provisions.
5. Penal Provisions.
6. Miscellaneous Provisions/Final Provisions.
❑ Preparations for Drafting.
Upon completion of a Bill Draft, the CPD may notify the Chief Secretary to
arrange a KB Meeting (The Cabinet Committee on Legislation).
Structure of a Bill, Cont.
❑ The purpose of a KB Meeting is to ascertain conformity to the Drafting
Instructions.
❑ The Meeting is chaired by the Prime Minister.

PREPARATION OF A BILL
Analysis
Understanding. 1.Existing Design.
(Drafting Legislations.
2. Personal Rights. (Legislative
Instructions) 3. Constitutionality. Scheme)
4. Practicability.

Composition and
Development.
Scrutiny and
(1. Sleeping over a Bill Testing.
Drafts e.g., 1st, 2nd and 3rd (1. Self Composition.
Draft.
2. Consultation with 2. Personal
instructing officer.) satisfaction)
Preparation of a Bill.
❑ Inherent Coherent.
1. Smooth contextual flow.
2. Conversant with the chosen Language.
3. Clarity and comprehension.
4. Consistent of Language.
5. Impacts to existing legislations.
6. Punctuation.
❑ They are the furniture of Legislation. They give contextual rhythm and
comprehension to the provisions.
❑ Rules of Punctuation.
(a). Spare its usage;
(b). Mark for rhythm not sound;
Preparation of a Bill
(c). Conventionality; and
(d). Consistent.
❑ Types of Punctuation.
(a). The Comma “,”;
They are to “Separate” and “Enclose”.
Separating Commas.
In a sentence. “Without prejudice to subsection (1), the Minister shall consult
with Minister for Finance before imposing fees under this Act”.
For items. “ for the purpose of this section, Public Prosecutor shall include a
State Attorney, an Officer from the PCCB,and a Public Officer so licensed by the
DPP”;
(b). Enclosing Commas.
They have meaning when they are running concurrently in a Sentence;
Preparation of a Bill
(c). Semi Colon “;”.
They link ideas, paragraph, sub-paragraph or tabular.
(d). Colon “:’.
They are used before immediate series in a sentence;
(e). Dash “-”.
Used for immediate separation of ideas or a sentence;
(f). Full Stop “.”.
Used to finalize the sentence; and
(g). Invented Commas “””.
Used for giving a word a defined contexts.
7. Clarity.
A legislation shall clearly prescribed its objective.
Preparation of a Bill
8. Definitions.
They are for prescribing precise meaning of words.
(a). Delimiting.
“Board” means the Board establishing under section 5 of the Act;”.;
(b). Extending.
“Person” shall include natural and legal person;”;
(c). Narrowing.
“Livestock” means cattle, Goat and Sheep;”; and
(d). Labelling.
“Board” means Business Registration and Licensing Authority Board;”;
❑ NB: the words “means” and “include” should be used with care. “Means”
restrict the precision, “include” expanding the precision.
Preparation of a Bill
❑ Rules of Definitions. See section 5 and 7 of the Cap 1.
9. Special Words.
(a). “May” or “Shall”, section 53 of the Cap 1.;
(b). “And” or “Or”, section 13 of the Cap. 1;
(c). “Singular” or “Plural” (Number), Section 8 of the Cap. 1; and
(d) Gender, Section 8 of the Cap. 1.
Subsidiary Legislation.
❑ Timeline Statistics.

❑ In the year 2018, a total number of 807 subsidiary legislation were made
and published in the Government Gazette. Also in that year, a total number of
10 Principal Legislation were passed.
❑ In the year, 2019, a total number of 1033 subsidiary legislation were made
and published in the Government Gazette. Nonetheless in that year, a total
number of 14 Principal Legislation were passed.
❑ In this year (2020), up to June 30th there were a total number of 526 pieces
of subsidiary legislation made and published in the Government Gazette.
Nonetheless, in the period of up to 30th June 2020, a total number of 5
Principal Legislation have been passed.
Subsidiary Legislative
❑ Why so alluring?
1. Marshalling scrutinization gap.
The contents of legislation are technical and in bulks, so it appears to be
challenging for MPs to devote sufficient time to triangulate provisions in detail.
Therefore, they recourse to formulate the general policy or simply put “the
skeleton approach” and delegate the Executive with power to earmark the
scrutinization gap.
“fleshing and blooding the skeleton to make it living”.
2. Technicalities.
Some legislation are meant for specific provinces, thus it appear to be difficult
for MPs whose nature of knowledge are diversified to manage to realize its
intended objectives. Hence, Subsidiary Legislation are deemed a tool to
earmark technical vacuum.
Subsidiary Legislations.
3. Flexibility.
❑ Subsidiary legislation are acting as a versatility instrument to earmark an
unanticipated events went missing during the passing stage.
❑ Procedures for enacting Principal Legislation is intensity and
cumbersome, so Subsidiary Legislation are considered a tool of
expediating sanctity of emergency situation.
4. Experiment.
Suitability of a Principal Legislation is tested during its application or as
technically called “experiment period”. In case flaws are experienced
during this time, the executive deem it expedient to earmark the exposed
shortfalls through Subsidiary Legislation.
5. Emergency
❑ Unanticipated occasions make it prudent to recourse to the Subsidiary
Legislation than bringing about a Bill under Certificate of Agency. Sometimes,
laws passed under Certificate of Agency proven to contain contextual errors
and cognitive errors as they are not afforded with much time for triangulation.
❑ Subsidiary legislation are deemed as a remedy of convenient. Therefore, it
furnish executives with a leeway of flexibilities during War Times and other
national emergencies.
6. Complexity of modern narratives.
Administrative dimension and narratives for modern levers with respect to
technology, trade, security, and business requires high level of workmanship
and skills to maneuver its fit. Hence, Subsidiary Legislation appeared to remedy
what would otherwise prejudice executives from realizing demands of the day.
Subsidiary Legislation
❑ Categories of Subsidiary ❑ Types

1. Regulations.
Legislation.
❑ Like Acts, these are always speaking.
A. By Objectives.
2. Rules.
❑ General. ❑ For Regulating process and procedures. E.g.
❑ Specific. Judicial and other process (Bennion, pg.172).
A. By Authority. 3. Order.
❑ For expressing command of executives and
❑ President. whose effect are defined for specific matter,
❑ Speaker. limit, or directives (Bennion, pg. 171).
4. By Laws.
❑ Chief Justice.
❑ Delegated to local authorities, public utilities,
❑ Command of President. etc., and are defined to specific utilities.
❑ Minister. 5. Proclamation.
❑ CEO/DG/MD of Public ❑ A Government announcement prescribing a
notice for Government action.
Corporations/Executive
Agency/Authority. 6. Notice.
❑ Intended to provide notice to the whole world
Subsidiary Legislation
❑ Nature of Subsidiary Legislation. ❑ Drafting Instruction.
❑ Subsidiary Legislation are derived from 1. Section 12(4) of the Office of the
Delegation of Power.
Attorney General (Discharge of Duties)
❑ Types of Delegations.
Act, Cap. 268.
1.General Power.
2. Item B. 12(3) of the Public Service
Example:
Standing Orders, 2009.
“1 (1)The Minister may make regulations for the
better carrying out the provisions of this Act. ❑ General Rule.
(2) Without prejudice to the generality of subsection ❑ Authority to enact laws and powers to
(1), the Minister may-” legislate are vested to the Parliament.
2. Subject Matter.
❑ Art. 63(3)(d) and Art. 64(1)
Example:
(a) “1. The Minister may make Regulations with
❑ Exception.
respect to the production, distribution and marketing ❑ Subsidiary Legislation.
of petrol and petroleum products; and
(b) “1. The Minister may make Regulations with
❑ Section 4 of Interpretation of Laws Act,
respect to the production, export and import of Cap 1.
sugar.”
Government Gazette
❑ Section 4 of the Interpretation of Laws Act,
Cap. 1 defines the term “Government
Gazette” as follows:
“Gazette” or “Government Gazette” means the
Gazette printed and published by the
Government Printer by order of the Government
of the United Republic and includes
supplements and any special or Extraordinary
Gazette so published;”
❑ Usually, it is published on Friday of every
week, except for special supplement.
❑ NB:, its an Official Notice Platform of the
Government published by the Government
Printer. It contains notice of Principal and
Subsidiary legislation before and after assent
of them including signification of dates of
which they come into force.
❑ It contain notices of all Government affairs
such as Government appointment etc.,.
❑ Upon finalization of drafting or the vetting, the CPD forwards the
signed original copy to the Government Editor who will vet the
document and assign to the relevant Subsidiary Legislation a special
number technically called the “GN Number” and engrave an Official
Stamp.
❑ The Government Editor shall vet and edit the document where
necessary.
❑ Where issues of complexity occurs, the Government Editor will invite
the CPD for riling out of drafting complexities.
❑ The Government Editor decides when to publish the said Subsidiary
Legislation.
❑ The Government Editor sends the vetted document to the
Government Printer for publication in the Gazette.
❑ Tanganyika Territory Gazette was established in 1919 as an
instrument of the British proclamations and was published every two
months with a circulation 650 copies.
❑ It was renamed Tanganyika Gazette in 1956 and was published
weekly.
❑ It became the Gazette of the United Republic of Tanganyika and
Zanzibar in 1964.
❑ It became the Gazette of the United Republic of Tanzania in the
autumn of 1964.
❑ From 1964 the contents in the Gazette were edited in Swahili.
❑ NB, the task of the CPD, except invited by the GE for proof reading,
ends when he sends the docs to the GE.
Limitations and General Principles to Subsidiary Legislation
❑ Subsidiary Legislation is subjected to two major limitations.
1. Subject to challenges in court.
2. Ultra vires.
Clogged within the ambits of enabling provisions and the other provisions, especially penal
provisions. Section 36(1) and 39of Cap. 1.
❑ Other Limitations.
1. Section 19(3) and (4) limits power vested of making Subsidiary Legislation pending
commencement of a provisions providing for that effect.
2. Reference in a written law to the Minister may infer to the President. Refer Section 9(b) of Cap
1.
3. Penalties/Compounding of Offences.
❑ General Principles.
1. Definition.
Definition should be consistent to those provided in the Principal Legislation.
2. Heading.
Heading should provide clear specification of number allotted to the Subsidiary Legislation, the
name of principal Act under which it was made and citation.
General Limitations to the Subsidiary Legislation
3. Enabling Provisions.
4. Format of Citation.
“The Energy and Water Utilities Regulatory Authority (Licensing and
Registration) Rules, 2020.”
5. Publication in the Gazette is mandatory. Section 37(1) of Cap. 1.
6. Retrospective nature. Section 37(2)(a) and (b) of Cap. 1.
7. Subject to scrutiny by the National Assembly. Section 38.
8. Authority of dispensing justice. Article 107A(1) of the URTC, 1977.
Drafting of Conventions/Treaties
❑ Read:
1.the Vienna Convention on the Law of Treaties, 1969.
2. The Treaty for the Establishment of the East African Community, 1999.
❑ Rationale.
To enhance support of the International Rule of Law and to comply with a
respective global legal order.
❑ Setbacks.
1. Lack of the necessary expertise and resources. (where it needs to be
incorporated).
2. Lack of necessary technical assistance.
3. Treaty law and it’s practice are highly specialized.
4. Extensive legal analysis and complexities of depository practice.
5. Reluctance to adopt and sign.
6. General termination.
Drafting of Conventions/Treaties
❑ Procedures for participating a Convention/Treaty.
1. Signing.
❑ A treaty (unless the Treaty exempting it by expressly provides “a signatory alone cannot suffice a part
to become a party thereof”). (Usually they feature signatory provisions).
❑ This is where a state’s responsibility at international level is engaged.
2. Full Power.
Representative parties to treaty, be it Head of Government or Minister for Foreign Affairs, may sign a
treaty on behalf of the state without issued with “Full Powers”. Except where expressly so requiring to
produce the certificate of “Full Power”.
3. Consent.
A state must demonstrate by a concrete act, it’s willingness to be bound by the legal rights and
obligation prescribed in the treaty.
❑ Acts of Consent.
1. Signature.
2. Ratification.
3. Acceptance or Approval.
4. Accession.
Drafting of Conventions/Treaties
4. Ratification.
Signification by a state her consent to be bound by signature subject to ratification,
acceptance or approval.
❑ It is an indication of a state to international community a commitment to be bound
by obligations under treaty.
❑ Signing is important aspect for seeking ratification at the domestic level.
❑ Article 63(3)(e) of the CURT, 1977.
5. Accession.
❑ Done by deposit of an instrument accession.
❑ Usually, ratification, acceptance or approval are automatically precede signing, but
accession is realized when a state is generally expressing her consent to be bound
by a convention. (See article 15 of the Vienna Convention, 1969).
❑ Accession has similar effect as ratification, acceptance or approval.
❑ Most modern multilateral treaties provides for accession e.g., article 16 of the
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their Destruction, 1997.
Drafting of Conventions/Treaties
5. Practical Consideration.
Instrument of ratification, acceptance, approval or accession executed by and
signed by one of three, namely the Head of the State, Head of Government or
Minister for Foreign Affairs.
❑ No form of precedent for the Instrument of Practical Consideration, but it
should, at least, contain the following-
(a). Title, date and place the treaty was concluded;
(b). Full name and title of signatory;
(c). An ambiguous statement expressly readiness of the Government on behalf
of the State to be bound by the treaty and to undertake faithfully to observe an
implement it’s provisions;
(d). Date and place the instrument was issued; and
(e). Signature of the One of the Three.
Drafting of Conventions/Treaties.
❑ Technicalities.
1. Provisional Application.
Some treaties provides for provisional application before or after coming into force.
E.g., article 7(1) of the agreement relating to the Implementation of Part XI of the
United Nations Convention on the Law of the Sea of 10th December 1982, 1994,
provides “if on 16th November 1994 this agreement has not entered into force, it shall
be applied provisionally pending its entry into force”
2. Reservations.
❑ Words like, reservation, declaration, understanding, interpretative declarations or
interpretative statements intending to exclude or modify legal effect of provisions of
a treaty with regard to the declarant are deemed “reservations”. See article 2(1)(d) of
the Vienna Convention, 1969.
❑ Article 120 of the Rome Statute of the International Criminal Court, 1998 provide
“No reservations may be made to this Statute.”
❑ Article 19(a) of the Vienna Convention, 1969 permits reservations unless otherwise
provided in a respective provisions.
Map of ICC
Drafting of Conventions/Treaties
3. Entry into Force.
A treaty shall provide for modality for a state to incorporate binding nature of a treaty.
See article 63 (3) (e) of the CURT, 1977.
4. Amendments.
❑ A treaty already in force may be amended. It is expected for a treaty to provide for
amendment procedures. Where not so provided, parties shall negotiate a new treaty
or agreement to amend the existing treaty. See Part IV of the Vienna Convention,
1969.
❑ Amendments come into force in accordance of enabling provisions or as shall be
agreed in the new treaty for amendments.
4. Withdrawal and Denunciation.
Parties may withdraw or denounce a treaty. See article 145 of the TEEAC, 1999.
5. Termination.
Treaties may include provisions providing for their termination. See article 42 (2) of the
Vienna Convention, 1969.
Drafting of Conventions/Treaties
6. Sanctions.
Penal provisions for defaulting states. See article 143 of the TEEAC, 1999.
7. Suspension of a Member.
In the event of failure to observe binding obligations, states may be suspended.
See article 146 of the TEEAC, 1999.
Procedures for ratification in Tanzania
❑ Power to ratify conventions/treaties in Tanzania is vested to the Parliament. See
article 63(3) of the Constitution of the United Republic of Tanzania, 1977.
❑ Upon a treaty being signed by a respective state representative, the Ministry of
Foreign Affairs may be furnished with a letter and copy of the signed treaty as a
reminder to finalize its obligation at the domestic level.
❑ Upon receipt of such a reminder, the Ministry of Foreign Affairs may write a letter to
a sectoral minister directing him to initiate ratification process, the said letter shall
be copied to the AG/CPD for notification purposes.
❑ Upon receipt of such directives, the sectoral Ministry will prepare a Draft of
instrument of ratification technically called “AZIMIO LA BUNGE” and send it to the
AG/CPD for vetting.
❑ Upon completion of vetting, the CPD may return the AZIMIO to the respective
sectoral minister for his acquiesce and will be asked to make any contextual
adjustments, seeking cabinet approval and finally warrant the CPD the leave to
proceed.
Procedure for ratification in Tanzania, cont.
❑ Upon receipt of approval to proceed which shall be accompanied with
Cabinet Approval from the sectoral ministry, the CPD may forward the
AZIMIO with cover letter to the Speaker asking him to cause it to be included
in the Order Paper of the respective Parliamentary seating.
❑ Then, the CPD will notify a respective sectoral minister that the respective
AZIMO will be discussed in given Parliament Seating and directing him to
table the issue (Kuwasilisha Hoja) to the desk of the Clerk of National
Assembly for deliberation purposes. The Hoja will be issued by the respective
Minister and where agreed, the AZIMIO shall be deliberated in the plenary.
❑ The AZIMIO will be passed through voting.
❑ Then, the AZIMIO may be passed under the provisions of article 63(3)(e) of
the CURT, 1977.
❑ INCORPORATION (A process of making a treaty domestically binding).
❑ Refer to the procedures for legislative enactment.