LEGISLATIVE WRITING SKILLS

By

Chiejina Nneka Claudia*

The extent of the power of the legislative drafts man in any society is often

fore-told but we cannot underestimate the level of skills derived or acquired to

be able to be a Good draftsman of any jurisdiction’s legislation. The paper as

named ‘Legislative writing Skills’ is aimed at pointing out the necessary skills

which a drafts person must acquire to be able to be the best at what he does.

INTRODUCTION

The development of legal rules and regulations is

essential to the strength of continuous developing

society. Such development is crucial to avoid a chasm

between the development of the society, and the rules

which help to regulate the needs of the group. Hence, an

ultimate need to participate in developing reliable

legislative drafting skills that assists in securing a

good and refined law, capable of being stable and

sustainable, reflecting the needs of the group, achieving

social justice and assuring the rule of law becomes a

must1.

1*Assistant Research Fellow at the Nigerian institute for advanced Legal studies, Abuja. Abeer Bashier Dababneh and Eid Ahmad Al-Husban, Practical Criteria for the Soundnessof the Legislative Drafting Approach Evaluative and Analytic Study, European Journal of Social Sciences – Volume 21, Number 4 (2011).

1

On the surface it would seem that the task of drafting

any legislation is as easy as ABC as we most times tend

to underestimate the importance of drafting legislations

in relation to the adherence to the Rule of Law. The

general perception of legislative drafting is that the

writer should be concerned only with matters which relate

to the writing style, the grammar, the vocabulary,

correctness of language and textual structure but as much

as these elements are deemed important – its importance

should not be placed above the content of the rule of

law. This point is discussed by Sedman and Apesekry where

they pointed out:

“There is a deep-rooted unity between form and content in the legislative

drafting. It is therefore considered a superstition that the drafters have

nothing to do with the content of the law, but merely with the form2.

The topic legislative drafting is contained in a raft of

books but this paper will focus on the skills required to

be a good drafts man, the act of preparing to draft, the

idea behind the rule of law &drafting and finally the

Nigerian perspective on legislative drafting.

LEGISLATIVE DRAFTING

Legislature is a very essential tool in the progress of

any democratic government- the reason being that the2 Ann Sedman, Robert Seedman, Naleen Apesekry, The Legislative Drafting forDemocratic Social Change,A Guidebook for Drafters. Sabrah for publishing and translation, Eygypt, 2005

2

legislature provides for the maintenance of rules for

peace, progress and the good governance that every

jurisdiction needs. Thornton describes “Legislation as

communication of a very special kind because it is the

framework of society and determines social relations

between the state and individuals and individuals inter

se3”. What this means in essence is that the political,

social and economic relationships between the society and

the individuals depend on the effectiveness in which the

legislation communicates the policy of the government.

As Stephen J in re castioni4 noted, “it is not enough to

attain a degree of precision which a person reading in

good faith can understand, but it is necessary to attain

if possible to a degree of precision which a person

reading in bad faith cannot misunderstand”.

The transformation of these policies into binding rules

of conduct, require the Legislature to be as clear and

concise as possible and also it should be systematically

laid down, and in all this the legislative draftsman’s

role is significant .

In 1800 when Jean Portalis was commissioned to draft the

French civil code, he said in his preliminary address

that he had been “struck by the view, so widespread,

3 Thornton G.C legislative drafting , 4th ed. Great Britain: tottel publishing ltd, 2005, reprinted 2007.4 Re castioni [1891] QB 167.

3

that, in the drafting of a civil code, a few very precise

texts on each subject might suffice and that the great

art lies in simplifying everything while foreseeing all”.

He added: “Simplifying everything is a process on which

there must be agreement. Foreseeing all is a goal

impossible to attain5”.

According to Sylvester imhanobe in his book 6, The ‘art’

of legislative writing is the process whereby a policy is

put in a legal language called “Bill” ready for

presentation to the legislative house for passage into an

act or a law. In my own words, I would say the Art of

Legislative Drafting lies not only in the process of

putting policies together to form a bill but also being

able to simplify such policies and make it as clear as

possible to the common man.

Another definition of legislative drafting comes from

Shaimaa Atalla7 where she defines legislative drafting as

the transformation of the raw material of which the law

consists into practical and applicable rules in a way

that helps achieve the goal of the essence. This is done

through the careful selection of the techniques and tools

that contribute to a sincere interpretation of the5 Peter van Lochem and Pauline Westerman, Rules on Rule Making, special issue of Legisprudence: International Journal for the Study of Legislation,Vol 4 no 2 October 2010.6Sylvester Imhanobe: Legal Drafting & Conveyancing, Sylvester Imhanobe Legal Research Ltd, 2nd edition 2002.7 Shaimaa Atalla, Legislative Drafting, an article published on the website: http://www.Shaimaaatalla.com/vb/showthread.php?t=404

4

content of the rule to bestow a practical and applicable

form upon it.

In drafting any legislation, the drafts person is under a

duty to ensure that the rule is interpreted correctly; he

must first of all understand what is expected of him and

know who his audiences are. Therefore his major duty is

one which lies in giving effect to the policy the sponsor

of the law provides8, this is often a difficult task –

which leaves room for uncertainty.

THE DRAFTING PROCESS

The legislative process aims at establishing a general

framework for the general policy of the state. Thus, in

order for this framework to be truly governed, the

outcome of this process must be comprehensive of the

organization of all the cases requiring legislation and

must also be decisive so as not to invoke any problem

with regard to implementation9.

There are mainly 5 stages in the process of drafting but

the drafting process begins when the draftsman receives

his instructions from the policy makers and begins to put

8 Esther Majambere (2011): Clarity, precision and unambiguity: aspects for effective legislative drafting, Commonwealth Law Bulletin, 37:3, 417-4269 Abeer Bashier Dababneh and Eid Ahmad Al-Husban, Practical Criteria for the Soundness of the Legislative Drafting Approach Evaluative and Analytic Study, European Journal of Social Sciences – Volume 21, Number 4 (2011). Page 11

5

it into a bill and ends when the Bill is complete and

presented to the legislature for its passing.

Taking instructions

In most developed jurisdiction, the draftsman is

usually furnished with a manual, some form of format

or a standard guideline in which he can rely on while

drafting his own. These formats or manuals are useful

for the draftsman to be able to know what the

instructions are and what the legislation should

contain. The purpose of taking instructions before

the formalization of the bill is so that the

draftsman is able to know what is expected of him and

be able to get first-hand information. The process of

taking instructions does not end with just the first

meeting but he must continually be present at every

other meeting where the legislation is to be

discussed in order for him to get a clearer picture

and understanding of the problems the bill intends to

solve and also to be able to ask any questions which

might still be in doubt.

It has been often recommended that the draftsman

should follow certain steps to ensure that he has

taken the instructions and has understood them. Such

steps include i) gather sufficient background

6

information pertaining to the legislation which he is

to draft and in so doing should be given all the

relevant extracts of all documents relevant to the

proposed legislation to assist him in understanding

the instructions. ii) understanding the objective of

the proposed legislation in order for him to be able

to present a good draft bill – without doing this he

will not be able to draft a solid legislation iii)

considering the means in which he plans to achieve

the objectives of the proposed legislation, by doing

this it is decided whether a new body is to be formed

for the enforcement of the legislation, what the

structure of this body should be and how much power

is to be delegated to it. iv) The draftsman must be

able to do proper research in order to investigate

the possible implications and problems of the

legislation if any. The reason for this lies in the

fact that if a problem should arise especially in

cases where there is a conflicting piece of

legislation, the court will be faced with the

decision of voiding one of the legislation. A typical

example would be -The Federal High Court Lagos

Division voiding s.140 (2) of the electoral act 2010

for being inconsistent with the CFRN 201010. It was

held by Justice Okechukwu Okeke that the section be

10 The Nation Vol 6 No 1807 July 1, 2011 page4

7

struck off the Act for being at variance with the

provisions of the constitution in relation to the

powers of the court of tribunal as contained in

s.4(8),s.6(1)and(2),s.6(6)(a)and(b),s.239(1),s.246

and s.286 CFRN 2010.

Analysing instructions and Gathering Information

After the stage of taking the instructions and

understanding what is expected of him, the draftsman

has to look at the instructions which have been given

to him and begin to research on the law which relates

to the subject matter of the legislation. He should

also look at the legislation of other jurisdictions

in order to compare and contrast and also get new

ideas. In analysing the instructions he should be

able to research into existing laws on the subject

matter in order to avoid a duplicate of the same Act

which would produce the same outcome. He should be

able to, after investigating – foresee the possible

danger areas and advise the policy makers on what

steps can be taken to avoid them. Such threats could

be the new legislation conflicting with the

constitution- which could in time result to a waste

of time and resources.

Drawing up the Outline

8

The first step to writing any project is drawing up

an outline or project proposal as some people call

it. This process is usually to act as a guide to

knowing how to construct the draft and what to put in

it- it would also help you decide how to go about

answering the necessary questions, making use of the

research or gathered information. So in the same way,

after the draftsman has been given his instructions,

analysed it and also done his research, he is then

able to produce a comprehensive outline to act as his

guide.

At this stage the draftsman must decide whether or

not the bill should be in two or more parts and if

yes whether each part should be construed as

independent of the other part, if this is decided,

then each part should contain only provisions that

are related. Secondly, He should decide what the

different parts of the bill should contain.

The draftsman may be faced with the challenge of

forgetting to include a relevant point- so to ensure

nothing is left out, it is advisable to use checklist

and precedents11.

The drafting

11 sylvester Imhanobe: Legal Drafting & Conveyancing, Sylvester Imhanobe Legal Research Ltd, 2nd edition 2002. Page 122

9

This stage of the drafting is usually referred to as

‘Composition stage’. It is the stage where the actual

drafting of the bill is done. By drafting this bill,

the draftsman is putting everything he has gathered

so far into one bill- elaborating on the outline and

making use of his received instructions. It is

important for him to rely on precedents, both foreign

and local in order for him to get a nice clear cut

background and structure. He should take advantage of

the modifications and necessary amendments and should

not feel endangered in engaging in a careful ‘cut and

paste’ to complete the bill. Sylvester imhanobe

stated in his book12 that Kole Abayomi supported this

system of cut and paste as he stated that “ it will be

nativity if the draftsman believes that he will find exact precedent that

will enable him compose his text. Legislative proposals may straddle

many years and subject-matters. The ideal thing for him to do in this

situation is to try and break down his instructions into distinct and

compartmentalized area or topics. He should then seek adequate

precedent for each area or topic take what he requires therein and later

marry together all to make invisible whole”.

Editing and Scrutinizing

This is the final stage in the process of legislative

drafting. This stage determines what the final bill

12 Ibid

10

will look like and what will be contained in it.

Imhanobe suggests, that after the bill is completed,

the draftsman should leave the draft bill for days

(depending on the time line left) and when he comes

back to take a look at the bill, he is refreshed with

new ideas which he can use to polish the draft bill.

I agree with him completely and also feel that the

draftsman should also get an outside perspective on

his final work by giving it to someone to look at it

from an outside perspective and edit it for him. He

should remember at this stage to be willing to accept

criticisms and correct the issues raised. The person

with the outside perspective should be very thorough

in checking for mistakes, ambiguities, punctuations,

spellings and grammar, cross references, numbering,

placement of headings and marginal notes and several

others. The importance of this lies in the fact that

common errors will cast doubts on the competence of

the drafts person.

LEGISLATIVE DRAFTING SKILLS

It has been said that Efficiency in drafting comes not by

mere mastery of the rules, but by the exercise of a

faculty of the mind which can be described as skill or a

11

natural gift13. What is immediately clear is the fact that

legislative drafting is not an easy task and it takes

years and decades of mastery of the profession and hours

of concentrated intellectual labour to acquire a sound

knowledge of drafting. Indeed, it is wrong to assume

that the rules of good drafting are simply the rules of literacy composition, as

applied to cases where precision of language is required, and that

accordingly, anyone who is competent to draw in apt and precise terms a

conveyance, a commercial contract, oral pleading, is competent to draw an

Act of Parliament14.

A legislative draftsman must have a sound knowledge of

the law and its principles as a prerequisite which is

only gotten from studying the law as a legal profession.

Most jurisdictions would require that the drafts person

should be a lawyer but it should be noted that not all

lawyers must necessarily be legislative draftsmen. The

draftsman must have a sharp, critical, imaginative, open

and inquisitive mind able to go out of his comfort zone

and ask questions before he begins his process and also

to be able to understand the perspective of different

consumers of the law. The draftsman must be able to work

13 N.K. Nampoothiry (2010): The role of Parliamentary Counsel in legislativedrafting, Commonwealth Law Bulletin, 36:1, 57-6514 llbert,sir Courtenay Peregrine, The Mechanics of Law Making(University ofColombia Press, New York 1914)109.0C ..0663..-Ilbert,The Mechanics of Law Making(University of Colombia Press, New York 1918)109

12

under pressure, in a team and with little or no

supervision; he must possess a high level of

concentration and discipline. He must have a high level

of analytical skills as being able to analyse issues is

very crucial to drafting. Being able to handle

confidential information as a draftsman is very important

– it shows maturity in dealing with confidential

documents as care must be taken in handling such

documents.

In drafting, the draftsman must ensure that the rule of

law is maintained, as it is required that the law should

be clear, precise and consistent for it to be

predictable. The rule of law demands that, as much as it

is possible, people know in advance what the law demands

of them, what the law grants to them, and what sorts of

behaviour they can expect from of cials. The draftsman isfi

under a duty to assist the policy maker in shaping the

policies and identifying the gaps which already exist in

the policy but must not become or take up the role of the

policy maker.

Legislative skills are however not as simplified as one

would think because we are challenged to possess and

improve the basic skills. These basic skills are

prerequisite for every legislative draftsman and they

13

include:-Simple communication skills, Organisational

skills, time management skills and the skill of language.

Communication skills: Written communication is just

as important as oral communication. Being able to

carry your audience along without allowing them to

get lost in between sentences is very crucial to the

success of the legislation. David Oluwagbami

developed three rules that govern good communication

in his article15 1) being clear in your own mind about

what you want to communicate, 2) deliver the message

concisely and 3) ensure the message has been clearly

and correctly understood. He stated that these rules

are all related with clarity in which the core of

drafting lies.

Organisational skills: the organisation of the

chapters in a legal document is very essential in the

outcome of the document. Making sure the document is

reader-friendly and logically organising the ideas,

making use of white spaces and even a table of

contents in longer legislature can help the reader

find his/her way around the text, Long paragraphs can

also be cut into sub paragraphs. It is important to

keep the text as simple and as concise as possible.

15 Effective Communication skills in Legislative Drafting; Fundamentals of Legislative Drafting, Nigerian institute of Advanced Legal Studies, 2012. Page 791

14

Sentences need to be kept short. The first few words

in a sentence determine readability; it is therefore

advisable to avoid left-handed sentences (those which

start with long phases and preambles). Verbs should

be used, not nominalisations (words ending in -tion,

-ancy, -ment, etc). The latter make the text heavy.

For example, it is better to write ‘conform’ rather

than ‘in conformity with’ and ‘amend’ rather than

‘make amendments to’. But these suggestions are

subject to one person’s opinion. In all he must be

reminded that the key to a good draft is making sure

the text of the legislation is a clear and precise as

possible.

Research Skills :

Knowing how to conduct research is a very important

skill which every lawyer must acquire. This is

important even in our day to day cases, court

activities, or even in our normal project writing and

is often times overlooked. It is one thing to know

how to search the internet for sources to use for

your work and it is another thing to be able to

search the internet and other data bases for proper

materials in both primary and secondary sources. I

have classified this under a skill because I feel

that most times a lot of lawyers do not know how to

15

conduct research, they know what they want but do not

have the slightest clue how to go about finding those

things over the internet.

The legislative draftsman must be able to engage in

proper research to enable him gain the necessary

knowledge on the background of the bill he is trying

to draft and also familiarise himself with other

similar legislation and also enable him understand

properly the instructions that have been given to

him.

Time Management skills: as a legislative drafter,

being able to manage your time is very crucial to the

drafting process. No matter how long a period is

allocated to a certain person to draft the

legislation- if proper management of time is not

followed- the passing of that legislature can be

delayed. Also the draftsman must be able to work

under pressure not just under pressure but still with

the same professionalism he would have applied had he

not been under pressure.

Use of language as a skill: a drafts success is

measured by being able to leave little or no room for

ambiguity and doubts with the intelligent application

16

of knowledge and experience. Dickerson refers to

ambiguity as the biggest disease of language16 - there

should be no room for ambiguity .The choice of words

used in any draft could be easily mis-construed if

not properly applied – so it is necessary to keep the

grammaticism to a minimum. Using words which are

archaic and long may confuse the reader, so in

application of the words we should also refer back to

the beginning to think about – “who our audiences

are”. The drafter not only needs to have an excellent

knowledge of the fundamentals of English grammar, but

he/she should also be aware of the special

grammatical features of legal English. As a general

rule, it is advisable to use the active voice in

place of the passive voice. It is clearer if the

actor of the sentence is known straight away. The

active style is also less cumbersome and easier to

read.

Simplifying the law in such a way that ordinary

people can understand it is not so necessary in these

cases because it is the use of language which is

clear and conveys message without unnecessary

complexity that determines the firmness of the

legislation17.16 R Dickerson, Fundamentals of Legal Drafting (Little Brown and Company, Boston 1986) 3217 Constantin Stefanou (2011): Is legislative drafting a form of communication?, Commonwealth Law Bulletin, 37:3, 407-416

17

THE NIGERIAN PERSPECTIVE.

Historically, the office of the attorney general was in

charge of drafting of bills under the auspices of the

Governor General of the colonial administration of

Nigeria and with this process , it has been the same ever

since. It was a convenient way for the legislature to be

drafted by someone in the Ministry of Justice especially

since most of the bills which came before the legislature

originated from the executive as executive bills18. They

were tasked with the responsibility of putting policies

in form of a bill for the consideration of Parliament, a

practice that historically traced back from the British

office of the parliamentary counsel19. However in recent

years, there was a need to introduce an in-house

legislative draftsmen i.e. lawyers who are skilled and

intelligent in that area in the National Assembly and

Houses of Assemblies in each state, so the practice of

going to the Ministry of Justice to source for a drafter

seized.

A legislative draftsman in the National Assembly is an

employee of the government, who need to satisfy his

employers that laid down standards are being adhered to.18 Sylvester Imhanobe: Legal Drafting & Conveyancing, Sylvester Imhanobe Legal Research Ltd, 2nd edition 200219 A handbook on legislative practice and procedure of the NASS chapter 4(2004)p.4

18

Such standards include the need for the bill to be

practical and the need to fulfil the social expectation20.

For him the drafting process begins when the formal

instructions are given by the sponsors of the legislative

proposal to the legislative draftsman and ends when he

puts them in the usual form under our jurisdiction

usually called bills before the legislative body called

the National Assembly. Unlike other jurisdiction where

the drafting process requires basic drafting skills, the

legislative process in Nigeria is more related to

constitutional law21.

S.1 of The Nigerian Constitution provides that, the

constitution is supreme and its provisions shall have binding force on all

authorities and persons throughout the federal republic of Nigeria22. What

this means is that any law inconsistent with the

constitution is void to the extent of its inconsistency.

The draftsman must ensure that the draft is consistent

with the provisions of the Constitution and that the

draft does not legislate beyond the provisions of Chapter

ll of the Constitution which deals with fundamental

objective and directive principles of state policy of the

government23. He must also take care not to derogate from

20 Akintola AJ,Law Practice and Procedure of Legislature, Learned publishments ltd (1999) p.621 Ibid22 Constitution of the federal republic of Nigeria 1999, cap. C23 LFN 200423 Felicia Eimunjeze, The Art of Legislation in E.Azinge and N. Udombana(ED): drafting legislation in Nigeria; constitutional imperatives ( Lagos: NIALS, 2012) P.226

19

the provisions of Chapter iv of the Constitution which

deals with fundamental human rights and also ensure the

respect of the principle of legality and rule of law for

the legislation to stand up to legislative scrutiny,

challenges to its constitutionality or legitimacy of the

legislation or its provisions24.

Legislation is the major source of Law in Nigeria and we

have from the previous drafting of our Constitution been

faced with trending issues regarding the failure of our

Constitution to provide for the need of the Nigerian

people. We have noted that regardless of how close our

Constitution came to being a democratically sound

instrument of law, it has failed in making sure the

common people of Nigeria were involved in its drafting

process. Having said that, I think it would be a mistake

for another Constitution to be drafted without the input

of the simple citizens of Nigeria.

In addition the draftsman must be familiar with the

Interpretation Act 196125 as this will act as a guideline

to knowing when the provisions of the Act will or might

apply. He must take relevant provisions of the Act into

full consideration and ensure their requirements are

precisely adhered to.

24 ibid25 Cap.123 Laws of the federation of Nigeria 2004.

20

The principal role of the Interpretation Act is to

provide standard rules for efficient communication, to

assist the draftsman in achieving precision of the

meaning of a word , to shorten the length of

legislation , to exclude a meaning that otherwise would

or might be taken to be included in the term defined , to

attract a meaning already established by law26 . Also it

might be necessary for a legislation to contain its own

interpretation clause especially in a situation where the

legislation does not apply generally to the entire

country27. It must be noted however that the

Interpretation Act should not act in such a way as to

change the essential effect of an enactment to which it

applies28 .

Legislative draftsmen are still faced with a lot of

challenges even in this day and age ranging from the

scarcity of research material as only a few libraries in

Nigeria stock good legal material which the draftsman can

tap from or the difficulty of finding lawyers who are not

necessarily interested in the money drafting comes with

but lawyers who actually have the professional passion

for it.

26 Johnnie Uchenna Ejiogu, challenges of a draftsman in contemporary democratic Nigeria, Project dissertation submitted to the Akinola Agudu Graduate school Of the Nigerian Institute of Advanced legal studies.(Lagos)2009. P.4927 See Agbakoba v NASS 2010 vol.4 LLRN page 207828 Blue Metal Ind ltd v RW Dilley AC USA (1946) P.7

21

CONCLUSION

The importance of the skills required by a drafts man

cannot be underestimated. A good legislative draftsman is

just as important as any good legislature. The draftsman

must daily go through the task of consistently improving

on the necessary skills which he must possess to be good

and must improve himself not just in his education but in

his environment and communication with people. He must

have the ability to retain his own uniqueness in whatever

legislature that he drafts but in so doing must not fail

to produce an outstanding unambiguous outcome.

22