TOPIC 03.

LEGAL WRITING AND DRAFTING SKILLS

LEGISRATIVE DRAFTING SKILLS

Refers to an act of enacting law or rules or regulation by the legislative authority vested with
power by the law for that purpose. In Tanzania the parliament as vested a power of making law
provided under Article 64 (1) of the Constitution of United Republic of Tanzania.1

On other hand, it refers to an act of enacting law or rules or regulation by the legislative authority
vested with a power by the law for that purpose.

PURPOSE OF LEGSLATIVE DRAFT

Generally legislation is the communication of a very special kind the drafts man has the duty to
choose the style to approach choice of the words and sentence structure to communicate
effectively. Thus a draftsman has at least to know the following;

 Nature of the language and how its work

 Nature of words and combination into sentence
 The linguistic change

Good style must feet the purpose of notification and degree to which the manner of expression
archive the purpose of legislation.

Every legislation enacted either by legislative body or any other authority delegated with power
to enact sub-legislation must adhere to purpose of communication of the enacted legislation.

 Thus among of the purpose are;

 To establish and demerit the law
 To communicate the law from law making to the society
 To demerit administrative bodies

1
See article 64 (1) of the constitution of united republic of Tanzania cap 2

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NATURE OF LEGILATIVE DRAFT

REFERS TO THE DEFINITION OF THE TERM LEGSLATION, whereby refers to the

process of making or enacting and repealing law in a written form by the branch of the
government constitution to perform this process which is legislative or any other authority some
delegated authority to enact or making subsidiary legislation.

Generally legislation must target 3 roots

 MP
 MJ
 Members of society to whom a law is specifically targets

The drafter man must take every effort to draft a law in a manner that would be communicated to
the three group above.

STYLE OF LEGSLATION

There are four style particular, simplicity, precision, definition and presentation.

1. SIMPLICITY

The drafts man shall consider the intended meaning to the group of person likely to be affected
by the provisions words of the statute should be reasonable, simple and short.

The achievement of this simplicity may be able to use language economical, under this there are
four style to be considered thus,

 Economy thus choice of words

 Directness thus forward
 Formalities of language thus assure of language
 Orderliness thus arrangement in chronological order

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2. PRECISION

Goes beyond that of economy in simplicity style, however precision and economy requires that
no unnecessary words been used, also words chosen should be expressed and unequivocal and
entails the intended meaning. This style is common found in legislation more often assigns the
meaning of words phrase or other symbols’ stipulate that through out of statute that words,
phrase or symbol should be described to mean the assigned definition from the statute,.

3. DEFINATION

It’s much familiar to people.

4. PRESENTATION

Focus in driving the words into parts;

 Sections
 Subsections
 Paragraphs

Will makes the readers to follow the documents and its phrase easily presentation ensure
readability of the documents by the targeted groups.

STAGES OF LEGISLATIVE DRAFT IN TANZANIA

The process of drafting legislation begin with the receipts of drafting instruction and ends with
the competition of a greed draft (proposed bill)

In Tanzania the process of drafting government Bills essential commenced with a Sponsoring
ministry, engaging all stakeholders who are likely to be affected with the proposed Bill.

In Sponsoring ministry consort Chief Parliamental Draftsman (cpd) then discuss his intention to
submit cabinet paper with the draft will attached to it, is scrutiny to all line ministry for
comments.

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After this stage the responsible minister with assistances of Chief Parliamental Draftsman
prepare a memorandum for the minister to accompany by copies of draft Bill, for it to be
submitted to the cabinet secretariats.

This is done within 7 days before the meeting with inter-ministerial technical committee after
approved by (I.M.T.C) the draft will be tabled and submitted to the cabinet,

Summary structure

Sponsoring ministry

Chief Parliamental draftsman

Line ministries

Cabinet secretaries

Inter-ministerial technical committee

Tabled submitted to the cabinet for discussion and approval

Return to chief Parliamental draftsman

After the bill is approved the cabinet secretariat draw a memorandum with instruction to the
CPD to draft the relevant bill under order 12(2) of CAP 268.2

Therefore after CPD, receive instruction to draft relevant Bill to be tabled before the parliament
for further legislation produce the CPD employs the stages above.

2
See section 12(2) of the office of Attorney General ( Discharge Duties) act Cap 268 of 2005

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STAGES FOR LEGISTRATIVE DRAFT AS PROPOSED BY THORTONS

LEGSLATIVE DRAFT 5th EDITION WRITTEN BY PRO. HELEN XANTHAKI

1. UNDERSTANDING

Is the first task for the drafter to undertake he should understand the purposes of the proposed
bill and what are about, the drafter must settle as a mischiefs defect remedied or cured he must
be well understanding with the goals of the sponsor of a proposed legislation. The drafter has to
do two things,

 Question of drafting instruction

 Question of conservation

2. ANALYSIS

Deals with analysis of legislature proposal should be subjected to careful analysis in relation to
the following

 Existing law
 Special responsibility area
 Plactability

3. DESIGN

After the understanding stage the drafter should go to design this sometimes called planning.
After drafter understand the purpose and objective of the proposed bill and analyzing in line with
accessing the implication to existing law the drafter should now design or plan the drafter for
proposed bill.

4. COMPOSITION AND DEVELOPMENT

This is a stage of development, during this, a considerable degree of mental is called for the
drafter more concentrated the structure of a proposed bill and to make sure that an appropriate
balance is maintained much emphasis

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The drafter shall consider,

 Use of definition
 Practical rule of drafting
 Practical rule of drafting definition

5. Testing and Scrutiny

This stage require a great deal of self to discipline, it is far from easy but the drafter somehow
should take a critical and objective gaze at the finished product.

The drafter should read the draft and consider it as a whole and cause intensive reading the
following question must be considered.

 Its achievement

A BILL3

Means a new law in making” in its Parliamental meaning a draft of proposed Act of Parliament
which when passed by national assembly and assented to by president becomes the law of the
land.

The bill may be introduced in the National house by the government ministers or by the private
members.

TYPES OF BILLS

There are 2 types of Bill;

 Government Bill
 Private Bill

However, the bill can further being Classified into the following

3
http://www.parliament.go.tz/ FACT SHEET NO. 1

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 Amendment Bill
 Appropriation Bill
 Codifying Bill for instance Law of Marriage Act
 Declaratory Bill. Those who declare certain thing
 Enabling Bill. Those which gives power
 Finance Bill. For instance Tax amended Acts
 Endowment Bill. For instance Acts to refund people affected by war
 Validation Bill
 Consolidation Bill. Those like Law of Revision Act

GOVERNMENT BILL

According to order 82.4 The government Bills are introduced in the House by Attorney
General or Minister.

Government Bills are Bills which are initiated by the government through its ministry and
tabled before parliament for discussion passed and submitted to the president for his
ASSENT under order 92(1) of PSO, 2016.5

Process of drafting government Bills, essentially started with the sponsoring ministries by
engaging all stakeholders who are likely to be affected by proposed enactment.

Its end up by the cabinet paper through secretariat to issue memorandum of instruction to
CPD to draft the relevant bill to be table before the parliament

SOURCES OF GOVERNMENT BILLS

 Policies
 Commission of inquiry
 Political parties manifesto
 Parliamental committee

4
See order 82 of Parliamental Standing order of 2016
5
Ibid

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 Branch of public source or body

 Non-governmental organization i.e. Tawla
 Intrest or pressure groups i.e. peoples with disability Act

PRIVATE BILL MEMBER

May be prepared by Members of parliament or standing committee members for two good
reasons which are under order 8 of PSO

 It could be as a response to an inadequate prepare government bill

 Comes as a solution to solve as a legal frame work or occurrence, continuity or a
mischief

Normally happens when the government have no immediate situation intention of coming up
with the bill of new law that will address the matter, thus a private Bill is an act of being pro-
active, however will are yet to experience a private Bill from an individual member of the
parliament in Tanzania.

Modes of introducing them in parliament is by chairperson of standing committee or any

member of parliament.

RATIONALE OF MISSING PRIVATE MEMBERS BILLS

 Lack of knowledge and expertise

 Political consideration

Process of drafting Private Bills are drafted down by or with assistance of lawyers plus
Parliamental Legal Council.

A private member initiating a bill by informing the clerk of National Assembly intention to
prepare a private member Bill and the reasons thereof under order 92 of the PSO

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However a private member must be well conversant with the procedural national policy and
national law, otherwise Bill will be difficulty to be made otherwise will be in conflict with
other law.

Clerk will not recommend the bill to the speaker, if the clerk is satisfied with the bill he
would ask PLC to prepare Bill for enactment of the relevant law other procedural matters
applies mutatis mutandis.

MEETINGS OF THE COMMETTEE

It’s a KB which is responsible for determination and passing of various Government bill
before submission to the parliament. Depending on the type of Bill the responsible minister
or Attorney General shall submit the bill to the committee where Bill contain substation
matters which have never by the government, the committee shall submit the reports on those
matters to the president or to the cabinet. In that case the publication of the bill has to be
stayed upon until decision of cabinet or president in the relation to new matter are obtained.

When that is done the bill will be submitted to the KB for scrutiny, thereafter the bill will be
forwarded to the Government printer for publication in the government gazzatte.

PUBLICATION OF BILLS

After the Bill has been approved by the Cabinet, (in the case of government bills) it is
published in the official Gazette with a statement of its objects and reasons, signed by the
Minister responsible for introducing the bill in the National Assembly. It must be published
in at least two issues of the gazette at intervals of not less than seven clear days. The first
publication of a Bill must contain its full text, and must be published at least twenty-one days
before it is introduced in the National Assembly for first reading.

The second publication of the Bill is deemed to have been made by the insertion of a notice
in the Gazette naming the title of the Bill, plus the number and date of the Gazette in which it
was first published.

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BILL UNDER CERTIFICATE OF URGENCY

The above mentioned procedure for publication may be dispensed with in respect of a
government bill, if a certificate under the hand of the President is laid on the table of the
Assembly by a Minister or Attorney-General stating that the relevant Bill is of such an
unusually urgent nature that time does not permit compliance with the prescribed procedure.

FIRST READING

The first reading stage of any bill is done by the Clerk at the Table reading the long title of
the Bill before the Assembly. At this stage no discussion takes place, instead, the Speaker
refers the Bill to the appropriate Standing Committee for consideration.

The appropriate Standing Committee has no power to amend a Bill referred to it but may
request the Minister responsible for the Bill to introduce amendment to the Bill in the
Assembly.

SECOND READING

After the Chairman of the appropriate Standing Committee has reported to the Speaker that
his Committee has concluded its consideration of the Bill, the Speaker orders the Bill to be
entered on the Order Paper ready for the Second Reading.

At this stage, the Minister in charge of the Bill moves a motion that the

Bill be now read for the second time, gives detailed explanations to the Assembly before the
Members start debating. The proposals contained therein.

The Minister’s speech is followed by a statement of the Chairman of the appropriate

Standing Committee, which considered the Bill who outlines the views of the Committee
regarding that bill.

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The official spokesman for the opposition then takes the floor to give the views of the official
Opposition regarding the Bill. This is followed by a general debate by the Members
regarding the merits or otherwise of the bill.

COMMITTEE OF THE WHOLE HOUSE

On completion of the general debate, the Assembly immediately resolves itself into a
Committee of the whole House. The Clerk calls the number of each clause in succession
together with any amendments which may have been made by the Minister in charge on the
Bill. The Presiding Officer (who at this stage is designated Chairman, not Speaker) puts the
question “that the Clause (or the clause as amended) be approved.

THIRD READING AND PASSING OF THE BILL

When the clauses of the Bill have been dealt with, the Assembly resumes and the speaker
returns to the Chair at the conclusion of the proceedings in the Committee of the whole
House. The Minister in-charge of the Bill then reports to the Assembly that the Committee
has considered the Bill, Clause by clause and approved the same. Thereafter he requests the
Assembly to concur with the findings of the Committee. At this stage the Assembly votes,
and if the majority of the MPs give their consent then the Bill has been passed by the House.
If the majority of MPs say ‘No’ then the Bill has been rejected by the Assembly.

ASSENT TO BILLS

When a Bill has been passed by the Assembly, a printed copy of the Bill is submitted by the
Clerk of the National Assembly to the President for his assent or other order if the bill is
assented to then it becomes an Act of Parliament.

WITHHOLD OF ASSENT

In case the President withholds his assent to the Bill, he must return it to the Assembly
together with a statement of his reasons for withholding his assent to the Bill. After the Bill is
returned to the Assembly, it shall not be presented again to the President for his assent before

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the expiration of six months since it was so returned. In order for it to be presented again to
the President, it must be supported by the votes of not less than two-thirds of all the Members
of the Assembly...

If the Bill which was returned to the Assembly by the President, is passed again by the
Assembly with the support of not less than two-thirds of all the Members of the Assembly,
and is presented a second time to the President for his assent then the President is obliged to
assent to the Bill within twenty one days of its being presented to him, otherwise he must
dissolve Parliament and call for a new general election.

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