ETHICS WEEK 9, LEGISLATIVE DRAFTING
Draftsman should have the sphere of operation, objectives and objects of the law at the back of his mind.
:: FORM/PARTS OF LEGISLATION
The whole legislation usually composes of three segments viz preliminary provisions (contains long title, preamble, enacting clause, short title, etc) principal provisions (contains the substantive and administrative provisions) and final provisions (contain saving, transitional provisions, repeals, consequential amendments and schedule). It is usually in this form: (and should be arranged in this sequence in exam).
– Arrangement of Sections.
– Long Title: indicates the general purpose of the legislation. Drafted in bold and large letters.
– Preamble: explains the mischief or object of the law “whereas”-Chief Onabanjo v Concord Press, Ogbonna v A.G. Imo State. For landmark legislations.
– Commencement: The commencement is when a law comes into operation. Kotoye v Saraki. Where no commencement date is given, it is deemed to commence on date of assent. It should not be retrospective-Section 36(8) CFRN.
– Enacting Formula: shows the enacting/enabling/making authority. E.g. “ENACTED by the National Assembly of the Federal Republic of Nigeria as follows”.
– Establishment: creates executing/administering statutory bodies.
– Short Title (citation) a statutory nickname to obviate necessity for citing full/descriptive title.
– Application: shows the ambit of the law which may be substantive, human, territorial, subject matter, etc. In the absence of which it is deemed to be of general application.
– Duration: shows life span. Else perpetual until amended or repealed.
– Marginal notes: statutory signposts put at margin of each section as guide. AG Fed v ANPP. Not regarded as part of the law.
– Savings: to preserve or save a law.
– Repeals: express or by implication.
– Explanatory notes: not part of the law though. AG Abia v AG federation.
– Interpretation/Definition: to clarify meaning of certain words and phrases used in the legislation. It facilitates abbreviation. The Statute’s meaning prevails over that of the Interpretation Act which only applies where interpretation is lacking in the statute. See Section 1 Interpretation Act.
– Schedule: An inventory of details on certain provisions used in the main body of the legislation to which it refers to and was referred to. Egolum v Obasanjo.
Preamble, Long title and Marginal Notes… may be relied upon in interpretation-Uwaifo v AG Bendel.
:: STAGES OF DRAFTING:
– TAKE, UNDERSTAND AND ANALYSE THE INSTRUCTION: know the reason, object of legislation, feasibility and problems, conformity/duplicity with existing law, policy consideration, etc.
– PLAN THE OUTLINE AND DESIGN THE DRAFT: which should take cognisance of the chapters and ambit.
– COMPOSE THE BILL: taking cognisance of the various rules of drafting and the need to be unambiguous and clear. Precedents may be used for a guide with necessary modifications.
– SCRUTINISE AND REVIEW THE OUTPUT: to know if it adequately covers and conveys the objective. After reviewing, you may give it a colleague so that an unbiased and independent eye can cross-check.
:: FORMALITIES OF LEGISLATIVE DRAFTING.
Arrange it into PARTS (i.e. groups of related idea) depending on length and sub-themes of the legislation. Such division may be needed for clarity of presentation and ease of reference especially for larger legislations like CAMA, Constitution, etc.