As the success of any legislation largely depends on the manner in which it is being expressed, legislative drafting is thus an integral part of the legislation itself. The role legislation plays in the society has made it mandatory that due regard be paid to legislative drafting to ensure effectiveness. Legislative drafting goes beyond the act of merely putting legislation on paper, it is a unique form of writing and the drafter is saddled with the task of ensuring that the proposed legislation achieves the policy objective in a legally effective way. The legislative drafter is thus faced with the challenge of not only expressing legislative intention appropriately, but also ensuring that the legislation is well comprehended by its subjects and perfectly interpreted by the courts. A legislative drafter is often likened to an Architect in so many ways; he draws the ‘blue print’ for the legislation, gathers background information on the legislation, and develops the legislation through drafting.
Consequently, it is essential that there are guides to facilitate this task, the demand to which Legislative drafting manuals satisfy. These exist around the world no doubt, but a manual which addresses jurisdictional peculiarities is preferred.
The ‘Manual of Legislative Drafting’ by the Nigerian Institute of Advanced Legal Studies is produced in response to the dearth of materials that serve as guides to drafters in Nigeria. The manual which is an authoritative statement of the issues legislative drafters have to observe when drafting legislation is a product of research directed by Prof Epiphany Azinge (SAN), the Director -General of the Institute and a compilation team of 13 researchers from the institute. Divided into seven chapters, the manual instructs the reader on the elements of successful legislative drafting. In its academic nature, the manual not only contains principles to be observed while drafting, it also illustrates how legislation should be drafted by providing some model Laws.
The manual recognises that the approach to take in drafting legislation owes to a number of factors. Local circumstances such as the form of government in place have strong influences on the kind of law to be made. The approach to be taken while drafting a law under democratic dispensation will differ from that while under a military regime as a Law does not have the same tone as a Decree. Another factor determining the approach to be taken while drafting legislation is the legal system which influences how legislation is structured. A third factor which is identified in this manual is local preferences which determine questions of style in drafting legislations. Bearing in mind that there are other universal principles regulating the act of legislative drafting, the manual firstly sets out those universal principles that should influence the drafting of legislation, it then goes ahead to capture local circumstances and style in the illustrations given on the principles of drafting.
The first chapter of the manual introduces the reader to the aim the manual on legislative drafting seeks to achieve which is to serve as a guide to users. This chapter clears any reservation the reader may have as to the essence of a legislative drafting manual. It examines the importance of the drafting of legislation in the Nigerian democratic system of government. It establishes that in as much as drafting of legislation requires skills, acquisition of same entails long years of training which drafters often times do not have the opportunity to undergo. Such training is not exhaustive of the whole learning process as there is still need for materials with which drafters who are already trained need to refresh their knowledge. This chapter thus assures the user of the value of the manual.
The second chapter of the manual is titled ‘Legislative Research’. Questions such as how legislative process begins and the first steps a drafter should take before the commencement of the drafting process are addressed in this chapter. The chapter states that since most, if not all proposed legislation have been previously dealt with in some other jurisdictions, consequently, a good way to begin the drafting process is by researching on the area to be legislated upon. The user of the manual is instructed on what to consider in carrying out any legislative research. The manual provides “The first consideration in carrying out any research is to determine the nature of the law that is intended. Will it be a general law or a special law?..”(p. 4). On this, the manual further instructs what the research should aim at finding out in each case. The essence of research as the first step towards drafting legislation is brought to light as the manual provides “The value of adequate legislative research is that it helps set the stage for the drafter. Because nothing is new under the sun, the drafter is prevented from re-inventing the wheel in situations where very good models exist.” (p. 5) The manual in this chapter provides a checklist of matters to be considered by the drafter in carrying out legislative research. Among other items on the checklist, the user is instructed to consider whether the bill violates any provisions of the Constitution. In the same vein, it should be considered whether the Constitution requires any special action to the legislation.
Chapter three is titled: ‘Fundamental Rules’. The manual in this chapter specifies the fundamental rules which must be followed in the course of drafting legislation. Identifying thirteen rules, the manual discusses each rule in details not without illustrating with ample examples. In discussing ‘simplicity’ as a fundamental rule to be followed, the manual warns against using big and complex words to express ideas that can be sufficiently expressed by simple words. Numerous phrases and words which should not be used are listed and the words which should be used as substitutes are provided. On this the manual instructs “….Do not say: absolutely null and void and of no effect; Say: void, Do not say: corporation organized and existing under the laws of Nigeria; Say: a Nigerian Corporation, Do not say: evidence, documentary and otherwise; Say: evidence, Do not say: is authorized and directed; Say: shall, Do not say: law passed; Say: enacted, Do not say: per annum, Say: per year …” (p.11)
Consistency is also discussed as a fundamental rule in legislative drafting and the user is advised to avoid using more than one expression for the same thing since a change in terminology may be construed as a shift meaning. This rule is extensively explained as stipulating that a word should be made to have only one meaning throughout a bill. Another fundamental rule identified is ‘Defined terms’. Here, the user is guided in the definition of terms used in a bill. It is advised that terms which fairly communicate the concept should be chosen and generic terms which may be used elsewhere in the bill in a sense other than that of the defined term should be avoided. This chapter goes further to discuss other fundamental rules and warns against the use of masculine pronouns as this act is criticised as gender bias. In order to avoid this act, the manual provides some techniques to be followed; this includes the use of possessive nouns instead of pronouns. Instructions are also given in this chapter on how to express age and time.
In chapter four, which is titled: ‘Style, Usage and Grammar’, the manual gives instructions on how sentences are to be structured. A person or entity to whom a power, right or privilege is granted or upon whom a duty, obligation or prohibition is imposed should be used as a subject in a sentence. The proper use of verbs, modifiers, finite verbs and infinitives is discussed. The use of finite verbs is recommended instead of their corresponding infinitives, for instance, instead of saying ‘give considerations to’, the word ‘consider’ should be used. The manual in this chapter instructs the user on how to use modifiers in order to avoid ambiguity. Citing an instance of ambiguity, the manual provides “Place modifying words and phrases so there is no doubt about what they modify. Poor placement of modifiers is probably the main cause of ambiguity in statutes. Consider the following example: a person shall not kill an animal on the highway. There is an ambiguity in the expression ‘on the highway’ as the expression 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; (c) Animal, that is, an animal which is on the highway…” (p. 23)
This chapter also gives instructions on the appropriate use of punctuations, and advises that in as much as provisos are acceptable especially in line with appropriation bills, a drafter should try to avoid them because they can unnecessarily complicate a sentence structure. Giving instructions on preferable expressions, the manual in this chapter instructs that drafters should use the active voice instead of the passive voice. However, passive voice is permissible to avoid awkward repetition and only if the identity of the actor is clear. This chapter notifies the user of words that are often wrongly used interchangeably. Identifying the words ‘that’ and ‘which’, the manual instructs that a restrictive relative clause should be introduced with the word ‘that’ rather than ‘which’. It also sheds light on what restrictive and nonrestrictive clauses are. Some other words identified that are often wrongly used interchangeably are the words ‘biannual and biennial’, ‘compose and comprise’, ‘continual and continous’, ‘fewer and less’, among others.
As this chapter is a guide on the use of style, usage and grammar, it extensively discusses various themes and a captivating part is the General rule on the expression of numbers contained in page 46. The manual instructs “Express a number under 10 in words unless it is a number such as a Naira amount, dates, decimal, or section number. These and exact numbers of 10 and above are expressed in figures. Express rounded numbers of one million or more by spelling out “million (or “billion” etc) and following the general rule for the rest of the number. Consider the following illustrations: ….” Still on the expression of numbers, the manual instructs that while drafting legislation the word “over” should not be used to express an indefinite number of people or things, instead the phrase “at least” should be used. An example given is that instead of saying ‘over 17 members’, the drafter should say ‘at least 18 members’. The proper construction of dates, fractions, percentages, time among others is also discussed.
The fifth chapter is titled: ‘Components of a Bill’. This chapter dissects a bill from the official heading to the explanatory memorandum. On the commencement of legislation, the manual teaches “…generally, unless it is otherwise provided, legislation takes effect on the date of its enactment. If the policy is to have the legislation take effect on the date of its enactment and if there are no other provisions relating to its application that are required, then no effective date provisions is needed…” (p. 55). The manual gives circumstances under which a commencement (effective date) provision is required; these are: if the legislation is to take effect on a date other than its date of enactment; or if the legislation is to take effect with respect to particular things or events.
The manual instructs that declaration of purpose if included in a bill should be short and concise. It warns that an improperly worded statement of purpose may cause serious problems of judicial interpretation. The manual encourages the use of legislative findings as it posits that the legislature cannot alter past events or scientific facts by passing law. However, if construction of a statute depends on a factual situation, the legislature may wish to present its understanding of the situation in a “finding of fact” section. The manner in which this can appear if needed is given thus: “The National Assembly finds that customary law is historically unwritten in Nigeria and that what constitutes the custom of a people is established by prevailing conventions.” (p.58).
This chapter in recognition of judicial review of legislation considers the inclusion of a Severability Clause in legislation. In situations where a part or some parts of legislation is held by the courts to be invalid the remaining part is not be affected by the invalidity if the court determines that such remaining part is severable from the invalid part. The manual encourages he inclusion of a severability clause that may read as follows: “If any provision of this Act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.” (p.60).
The chapter also discusses amendments while reminding the user that each enacted bill affects, by addition, deletion, or alteration, the cumulative body of existing law and is in that limited sense an amendment of existing law. The chapter instructs that in order to structure a bill to accomplish its intended purpose, a drafter must be familiar with any existing law that covers the subject matter of the proposed bill. Some principles which are useful in determining the nature and extent of law existing on the same subject are discussed in this chapter.
Chapter six is titled ‘Drafting Other Legislative Measures’. This chapter contains instructions on drafting supplementary bills, resolutions and commemorations. The essence of this chapter is hinged on the need for supplementary bills in some cases. For instance, any money not appropriated by the General Appropriation Act may be appropriated in supplementary or special appropriation bills. These are discussed extensively as the different types of resolution are brought to light. Each part of the resolution is explained and instructions are given on drafting same.
Chapter seven is titled ‘Other Useful Information’ and it contains other things that must be considered when drafting legislation. The drafter in this chapter is advised to ensure that he or she is fully briefed on every point necessary by the legislature in order to carry out the intention of the legislature. To this end, the drafter is instructed to have a drafting checklist. A specimen of the checklist is provided which contains subjects such as the title, sponsors, enacting clause, latest effective version of law, correct version of section, material to be deleted, catchlines, severability clause, effective date and so on. The drafter is also instructed to consider matters that affect the content of the bill. A checklist is provided which contains subjects such as: is the title short, yet clearly expressive of the subject matter of the bill? Is the enacting clause at the correct point and in exactly correct form? Is the bill written in a clear style and can it be easily understood by those affected? Does the bill accomplish its intended purpose? Does the bill create new problems without providing solutions?
The user is educated on some other rules pertaining to legislative drafting such as the Enrolled Bill rule and also gives an instance of this rule as contained in the Evidence Act 2011. This chapter also discusses validating acts, classification schemes and conflicting acts of the same session. The manual warns that incorporating another statute or part of another statute by reference into a legislation should be done with caution. An illustration is given thus: “The penalty may be waived in situations in which penalties would be waived under section 153, Criminal Code Act.” The manual advises that “a drafter should incorporate a definition by reference only when the drafter wishes to maintain a parallel meaning between the statutes over time and not merely to save words.”(p.76)
The manual provides three model statutes as appendixes for full illustration of the instructions already given. These are a model Reproductive Health and Rights Bill, 2013; a model Road Traffic Law, 2013, and a model Universal Access and Universal Service Regulations 2007 under the Nigerian Communications Act, 2003.
Comments
The ‘Manual of Legislative Drafting’ as a product of prolific research takes into account general legislative drafting principles. A wide research is conducted as the manual makes references to the drafting practices of other jurisdictions. The manual captures local circumstances and style and gives illustrations on principles of drafting. It pays attention to specific details which can be easily overlooked and translates each drafting principle to fit the Nigerian situation.
The manual is written in simple English language which makes it easy for the user to understand. The absoluteness of the manual is evidenced in that there is no need to make reference to any other treatise while reading it. The manual is also comprehensive enough to be solely relied upon during legislative drafting.
Recommendation
The manual is recommended for all legislative drafters, students undertaking legislative drafting courses and anyone interested in pursuing a career in legislative drafting. As this manual provides the user with insights into the making of legislation, all law students will benefit from it. Legislators in all levels of government are also enjoined to have a copy each because this will provide them with more knowledge of how the drafter should go about drafting the legislation. Finally, all lovers of knowledge will immensely benefit from this because they will further understand and appreciate the wordings of legislation.
