INTRODUCTION.
Legislative drafting like any other form of legal drafting is an institutionalised means of communication.
The essential distinction is that unlike other forms of legal drafting which may be easily altered or
changed, legislative drafting is more of a permanent enactment which stands on its own and speaks for
itself without any form of assistance, elucidation or explanation from the drafter or draftsman.
It is imperative that a great deal of care and diligence be exercised in drafting enactments to reduce as
much as possible the probable difficulties and confusion that may befall the future administration and
interpretation of enactments.
Thus, the legislative drafting process may be said to begin with the receipt of drafting instructions and
ends with completion of the draft.
Who is a Legislative Draftsman?
A legislative draftsman is a person engaged in the drafting of legislative Bills and other instruments at
whatever level of government. In Nigeria, the offices of legislative draftsmen are found in various
government ministries, parastatals and in all legislative institutions.
ATTRIBUTES OF A LEGISLATIVE DRAFTSMAN
* He must be a lawyer, who must have undergone training in law, with a basic knowledge; and must
have practised as a lawyer with special interest in drafting.
* He must have a good command of English language so as to take concise and accurate instructions. He
should also be able to communicate effectively with precision and in simple, clear and precise English
language.
* He must be patient, meticulous, analytically minded, critically minded, and research driven.
* He must be familiar with the interrelationships of the various departments of government; and a good
knowledge of the political, sociology, psychology and economic system/society of which you are drafting
the law.
* He must develop interest and flare for the subject of legislative drafting and exhibit a high sense of
tolerance, commitment and dedication in the drafting process. Thus, he must be ready to carry out
researches; and must know where and how to find the law.
* He must be a very simple and humble person with a good spirit of team workmanship.
* He must have the ability to work under pressure. Have a clear mind and mental capacity to draft laws.
* He should be able to work with little supervision and exhibit willingness to accept criticisms in good
faith.
Duties of Legislative Draftsman
* Taking instructions/research adequately.
* Holding consultations and giving legal advice as and when necessary at any stage of the legislative
process.
* Preparation of Bills.
* Preparation of subsidiary legislations.
* Attending of legislative proceedings during passage of Bills.
*Providing legal advice.
All in all, it is important for the legislative draftsman to take time to understand and analyse his drafting
instructions. He must spot potential danger and try to resolve them. He must be able to design very
appropriately his draft and seek the assistance of his colleagues to scrutinise the draft before presenting
it to the legislature.
Stages of Legislative Drafting
Previously, only in-house lawyers at the legislature were engaged to drafting laws. In recent times,
private legal practitioners are also engaged to draft laws. For a draftsman to produce a good draft, he
must pass through five identifiable stages. The stages are –
1) Understanding the instructions;
2) Analysing the instructions;
3) Design the Draft;
4) Composition of the Draft;
5) Scrutinising the Draft.
We shall attempt to briefly explain these stages one by one.
Understanding Instructions.
It is essential that the draftsman understand fully the instruction received in respect of the law he is
going to draft.
Drafting instructions are the instructions emanating from the authority sponsoring the law to the
legislative draftsman who is responsible for reflecting policies in laws or statutes. The instructing
authority could be anything from the government, a parastatal or other agency of government. The
legislative draftsman would, invariably, be a lawyer knowledgeable in the art of drafting laws and could
be a legal practitioner commissioned to draft the law.
The following are essential in drafting instruction.
1. Sufficient background information to enable the draftsman to see in perspective and in context, the
facts and the problems, which the legislative proposal is intended to meet.
2. The principal objectives of the legislation must be clearly stated.
3. The means whereby the principal objectives are to be achieved should be stated.
4. All known implications, difficulties whether legal, social or administrative associated or contemplated
by the proposals should be stated.
For example, the Sexual Offences Bill widens the definition of rape, increases the punishment for rape
and imposes harsher offences for raping children.
Analysing the Instructions.
Legislative proposals should be carefully analysed in relation to the following:
1. Existing law – There is no Bill that is not related remotely or otherwise to any existing law. Be that as
it may, it is the duty of the draftsman to study in great detail all existing laws within the spheres of the
legislative proposal. The major advantage of doing this is to avoid drafting a law that duplicates or
impliedly repeals existing laws on the subject matter. This does not mean that a law may not, on the
face of it, purport to amend any existing law.
2. Potential danger areas – It is generally agreed that the duty of the draftsman is to put legislative
proposals in draft form for passage into laws, and not to concern himself with formulation of the policies
which give rise to the legislative proposals. But in practical terms, it is difficult to insulate the draftsman
completely from having a say in determining the shape, contents, and policy-related issues concerning
the proposed legislation because by virtue of the position of the draftsman, he is presumed and in fact,
expected to be familiar with the law on a wide range of issues which puts him in a vantage position to
see a legislative proposal in a wider and more balanced perspective than is possible for those who
instructed him. For instance, he is not to draft a law that would lead to inter-state or tribal conflicts or
war.
3. Practicability – This is similar to potential danger areas. It deals with enforcement of legislative
enactments. It is common to find that sponsors of legislative proposals seem more interested in pushing
for rapid legislation without considering the capacity of the proposed legislation to be administered
effectively and without difficulty. For instance, if a law is drafted in Akwa Ibom that all the women
should use hijab, it would not be practicable.
Designing the Draft
After gaining thorough understanding of the proposals and assessing same in relation to existing law,
the draftsman now reaches the design or planning stage. This is the outline or framework prepared by
the draftsman that assists him in visualising the shape or broad content of the enactment.
At this stage, the draftsman is to do the following:
1. Make a precise outline of the objectives and principles to be contained in the legislation.
2. Make a statement of the principal means of attaining the objectives and principles.
3. Design the structure of the draft statute, like the substantive provisions and the administrative
provisions of the Bill. Look at existing statutes to see what the structure is in that jurisdiction.
4. Have a pre-prepared checklist to serve as a guide.
5. Know the conventional practice in that area, the socio-political realities in that area and the
adequacy/inadequacy of existing laws.
Composition of the Draft
Composing a statute entails a lot of mental discipline. The person drafting will, invariably, rely on some
aids to compose. Composition of the Draft
Composing a statute entails a lot of mental discipline. The person drafting will, invariably, rely on some
aids to compose. These aids include precedents, statutes on similar, sub or related subjects, in both local
and other jurisdiction.
Proper use of precedents may constitute a source of ideas on content. In addition to being helpful in the
actual drafting, it is a guide on the structuring of the Bill into parts and sections. Use of precedents saves
time and using precedents from the same jurisdiction may contribute in no small way to consistency of
approach within jurisdiction, which, in turn, will contribute to statute law, becoming a coherent body
rather than a patchwork. Precedents must be carefully used in the context of Nigeria. Formulation or
construction of the content of each section should be done in such a way that the meaning of the
statute is clear so that it reflects the intention of the draftsman and sponsor of the bill
Scrutinising the Draft
This is the last stage of drafting. Under this stage, the draftsman is expected to have checked and re-
checked the drafts in previous stages, and must have had series of conferences and meetings, both
formal and informal, with those sponsoring the statute. Errors or mistakes, especially of substance and
against the general intendments of the statute must have been detected, corrected and put in place.
At this stage however, one should ask an independent eye, preferably a legal practitioner, to have
another critical look at the draft (for example, checking the punctuation marks, spelling, marginal notes,
grammatical errors, etc; for someone who has been involved as the draftsman may not spot drafting and
other clerical errors. There must be coherence and logical sequential presentation of the law. Checks
should be made to see if the provisions in a particular section are detailed enough to convey the
meaning of the section?
Formalities in Legislative Drafting
These are:
* Arrangement in parts
* Arrangement of segments and sections
* Some legislative drafting devices
* Paragraphing techniques
We shall briefly explain these.
Arrangement into Parts
This is characterised by the following:
*Clarity of presentation and ease of reference.
* Numbered in capital Roman numbers.
* Each part is denoted by descriptive headings; example under Chapter V of the Constitution, Part I
deals with National Assembly.
The division is determined after composition of the draft.
The Parts are applied to distinct categories/subject matters. Example, the Companies and Allied
Matters Act is divided into Three Main Parts with sections. Similarly, in the 1999 Constitution, Chapter
I is subdivided into parts; Chapter II is divided into sections etc.
Segments and Parts & Contents and Features of Legislation.
A legislation (Bill) is made up of several component parts and segments. The arrangement of the
component parts and segments usually follow an established pattern which may vary from one
jurisdiction to another. Division into Parts should not be confused with division into Segments. Whether
or not a Bill is long and complicated, or short and simple, it must be arranged in a logical order according
to segments and titled accordingly, each segment comprising of a group of related items. The usual
segments are (PPMF)
* Preliminary Matters: This provides for items such as Long Title, Preamble, Short Title, Enacting Clause,
Application, and Interpretation.
* Principal Matters: This comprises of substantive (the real essence of the statute) and administration
provisions. For example the establishment of a Commission, its Membership, Functions, the Board,
Finance, Office, Use of Seal, etc.
* Miscellaneous Matters: This provides for items such as Offences, Penalties, and Power to make
Subsidiary Legislation.
* Final Matters: This provides for such items as Transitional Provisions, Savings, Repeal, and Schedules.
Again, it is essential that every legislation must contain and reflect similar features in contents, which
are of universal application. Some of these are:
Long Title:
Every Legislation (Bill) must contain a Long Title, which states in clear and concise language, the
fundamental purpose, which the Legislation is to serve. The principal object of the Long Title is to
highlight the object and intendment of the enactment. Thus, it helps to determine the scope of the
legislation when it will be considered by a legislative body. In Bello & 13 Ors. v. Attorney-General of
Oyo State (1986) 5 NWLR (Pt. 45) 828, the Nigerian Supreme Court stated that resort may be had to
the Long Title of an enactment only as an aid to resolve ambiguities that may arise from the plain and
ordinary words of a statute.”
The language of the Long Title depends on whether the statute is a Federal or State statute. If it is
Federal enactment, the draftsman should normally place at the top before the main provision the
following: “A Bill for an Act to ... ”; but if it is State law, it should be “A Bill for a Law to ... ”. The Long
Title is usually written in bold letters or capital letters and must end with the use of ‘and other matters
connected with it’ or ‘for other purposes connected therewith’: Ibrahim v Judicial Service Commission.
However, as soon as the Bill is enacted as law, the word “A Bill for” is dropped from the Long Title. Also,
where the Short Title cites an amendment of a particular No. of the principal enactment, same should
be reflected in Long Title.
Preamble:
This is a clause that is usually placed at the beginning of a Bill or legislative draft of constitutional
importance. Generally, a preamble is a declaration by the legislature of the reason for the passage of the
statute to which it is affixed. Most legislations do not carry preamble; but when used, it becomes part of
the statute and might be useful as aid in the interpretation of ambiguous provisions in the statute and
the object sought to be accomplished, though not to modify a clear provision.
Preambles are commonly used when it would be difficult to know the purpose of the statute unless and
until certain facts (the mischief) are disclosed. It cannot affect a clear statutory provision. It is use in
Constitutions, to ratify International Instruments/Treaties, in ceremonial statutes, and in laws on
peculiar local problems.
The preamble narrates the authority to enact the particular law or the reasons why the statute is being
enacted. It is usually commenced with a ‘Whereas’
Commencement:
It is germane to point out from the onset that An Act passed today needs not commence on the same
day. It commences when it comes into operation or becomes operative: Kotoye v. Saraki (1994) 7-8
SCNJ (Pt. 111) 524. Again, Section 2(1) of the Interpretation Act distinguishes between when an Act is
passed and when it comes into force. An Act is passed when the President assents to the Bill for the
Act whether or not the Act then comes into force.
Indeed, the general rule is that an Act commences either on the date it receives Assent or the date it is
published in the Gazette. When an Act is said to commence on a given date, it is construed to mean that
the Act shall come into force immediately on the expiration of the previous day, but where no provision
is made as to when the Act shall come into force or become operative, the Act is deemed to come into
force on the day it was passed or made, which is the day it received assent.
The draftsman must be very careful about the commencement of the Law/Act and should take definite
instructions on when the Act will come into force and this date is inserted in the Act. Usually the law
specifies a commencement date. The commencement date may be retrospective or fixed on a future
date; but section 36(8) of the 1999 Constitution frowns on retrospective laws by its provision that no
person shall be convicted on a law that was not in existence at the time the person committed the
offence. Therefore only beneficial statutes can be made retroactive. Criminal Laws cannot be made
retroactive.
Commencement may be drafted as follows:
“The provisions of this Constitution shall come into force on the 30th day of May 1999”. OR
This Law/Act shall commence on 22th January 2016. OR
This Law/Act shall come into effect on 22th January 2016. OR
This Law/Act shall become operative on 22th January 2016. OR
This law shall be deemed to have commenced on the 22th January 2016 (if it is to be retrospective). OR
[22th January, 2016] Commencement.
Enacting formula or Clause:
An Enacting Formula or Clause is found at the beginning of a legislative or statutory enactment. It states
the authority by which legislation is made. It is part of a legislation, which declares its enactment and
serves to identify it as an act of legislation proceeding from the proper legislative authority. The enacting
formula is a compulsory part of a Bill because it provides for the authority constitutionally empowered
to enact the Law/Act.
In Joiner v. State (1967) SCG Ga 367, 155 S. E 526, the Supreme Court of Georgia held that “The purpose
of an enacting clause is to establish the Act, to give it permanence, uniformity and certainty, to afford
evidence of legislative statutory nature, and to secure uniformity of identification and thus prevent
inadvertence, possible mistakes, and fraud.”
The main body of the Bill is introduced by the enacting clause; it comes immediately after the long title
or preamble, and the style varies from one jurisdiction to another depending on the type of government
in place.
For example, in Military Regimes, the enacting formula or clause could be drafted thus:
“The Federal Military Government decrees as follows...” (applicable to Decrees of the Federal Military
Government). OR
“The Military Governor of ... State of Nigeria makes the following edict...” (applicable to Edicts of the
State Military Government)
In civilian administrations, it is drafted depending on whether the legislative authority is Federal, State
or Local Government.
Examples:
“ENACTED by the National Assembly of the Federal Republic of Nigeria as follows:...” OR
“ENACTED by the House of Assembly of ... State of the Federal Republic of Nigeria as follows:” OR
“ENACTED by the Legislative Council of ... Local Government Area of ... state as follows:”
Short Title:
This is for identification purpose. It is the short name by which the statute is to be cited and identified.
Unlike the long title, the short title presents very brief information on the subject matter of the Bill. It is
a concise description of the statute mainly used for identification. It is used in citing the statute. This is
not the same as an acronym.
In Vacher & Sons v. London Society of Compositors, Lord Moulton, described the Short Title as the
statutory nickname to obviate the necessity of always referring to the Act under its full and descriptive
title. Its objective is identification and not description.
The Short Title ends with the year the statute was enacted. Example: Administration of Criminal Justice
Act 2015. Please note that if the Law/Act is an amendment of an existing Law/Act, same should be
reflected in the Short Title by enclosing the amendment in brackets. Similarly, there may be need to add
No. 1. Or ... as the case may be.
Marginal Notes and References;
Please note that marginal notes do not form part of a Bill or legislative enactment. It is usually short and
only serves a descriptive purpose, to assist in the proper construction of a particular provision contained
in the Bill against which the marginal note is provided. Section 3(3) of the Interpretation Act, Cap. 192
LFN, 1990 provides that a Heading or Marginal Note does not form part of the enactment and is
intended for convenience of reference only.
However, courts are not expressly precluded from seeking assistance by reference to Marginal Notes to
resolve contentious issues of law where the provisions of the Act are ambiguous: Ondo State University
v. Folayan (1994) 7 NWLR (Pt. 354) 1 at 23 & Schroder v. Major (1989) 2 NWLR (Pt. 101) 1.
Marginal Notes are either on the left or right side of the legislation.
Interpretation Section or Provisions:
This is also referred to as “definition clause”. It is found either at the beginning or the end of a Bill or
draft legislation. In more recent statutes, it comes at the beginning of the legislation. It contains the
definitions or meanings of words and expressions used in the statute. For instance, the meaning of
woman in a statute may be different from the general meaning of woman. Thus, it is not mandatory
unless when words used in the statute have a particular meaning in the statute.
The interpretation clause aids clarity and consistency in drafting. Thus, once a word or expression is
defined in the Interpretation Section, the draftsman is free or at liberty to use the word or expression
repeatedly without providing the meaning each time such word or expression is used.
As a general rule, where a particular word or expression is not defined in the interpretation section of
the statute, the Interpretation Act of the Federation or Interpretation Laws of each State shall be
resorted to for the purpose of construction and judicial interpretation. This is the position of the law
because the Interpretation Act of the Federation and the Interpretation Laws of each State govern
interpretation of statutory enactments and instruments generally.
In Attah v. The State (1993) 7 NWLR (Pt. 3005) 257 at 286, per Karibi Whyte JSC re-echoed the position
when he stated that it is well settled principle in the interpretation of statutes that where words have
been defined in a statute, the meaning given to it in the definition must be adhered to in the
construction of the provision of the statute unless the contrary intention appears from the particular
section or the meaning is repugnant in the context in which the definition is used.
Examples of draft of interpretation clause can be rendered thus: “In this Part of this Act, unless the
context otherwise requires...
‘Teacher’ means ....
‘School’ means....
Another drafting method that is commonly used are the words “means” and “includes”. The implication
is that where the former is used, it follows that the statute does not admit of any other meanings of the
word already restrictively defined in the interpretation section (this means that the meaning of the word
is closed) – Odu’a Investment Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1; Owena Bank Nig. Plc. v. N. S. E.
Ltd. (1997) 8 NWLR (Pt. 515) 1; N. E. W Ltd. v. Denap Ltd (1997) 10 NWLR (Pt. 325) 481.
On the other hand, where the latter is used, it follows that the words defined could admit of other
extraneous meanings other than in the sense in which they are defined in the interpretation section
(this means that the meaning of the word is open). The word to be defined must be in quotation marks.
Example: In this Act “woman” means ... or In this Act “woman” includes ... .
Sections and Subsections:
This has to do with the division into sections and sub-sections. It is advisable that a section should
contain one main idea, which should be self explanatory, short, lucid and devoid of ambiguity. However,
where the composition of the section turns out to be a long one, the proper thing for a draftsman to do
is to break the section into sub-sections.
Punctuation:
There are various forms of punctuation marks like comma, full stop, colons, inverted commas, quotation
marks, etc. that must be taken into consideration in construing an enactment. The draftsman must make
careful use of these punctuations in legislative drafting because where it is recklessly used, it could
defeat the purpose of an enactment. Section 3(1) of the Interpretation Act provides thus – “Punctuation
forms part of an enactment and regard shall be had to it accordingly in construing the enactment.”
Paragraphs:
This is necessary where a section or sub-section of a statute becomes unreasonably long. The essence of
this is to facilitate the readability of the sentence. Another advantage is that it creates precision in the
understanding of the legislative sentence. A paragraph may be divided into sub-paragraphs particularly
where the paragraph in the sentence becomes too long.
Schedules:
This is used in legislative drafting to supply supplementary details. Schedules exhibit in detail matters or
information mentioned or referred to in the principal body of the Bill or legislation. It is used to clear and
tidy presentation of detailed information. It is usually numbered paragraphs. An example is the First
Schedule to Constitution of the Federal Republic of Nigeria 1999 which lists the States and Local
Governments of Nigeria referred to in section 3 of the Constitution.
Thus, details of information, statistics, figures, tables, and other special or technical matters highlighted
or referred to in the body of an enactment are contained in the Schedule. Moreover, what the principal
provisions do is to make references to details contained in the schedule to the enactment. However, it is
important for the draftsman to remember to indicate on top of the first page of the schedule by way of
marginal reference the main provisions or section(s) by virtue of which and for which purpose a
particular schedule is provided.