The Dynamics of Law Making
Content
County Legislation
The Role of Technical Personnel in Legal Drafting
OMBAKA VINCENT
County legislative Mandate
Stakeholders of County Legislation
Policy and law relationship
Stages in the legislative drafting Process
The role of the technical and legal personnel
OMBAKA VINCENT
•
•
•
•
•
11/09/2014
Outline
2
County Legislative Mandate
• Power to legislate : Constitution Art 185
• A county assembly may make any laws that are necessary for, or
incidental to, the effective performance of the functions and
exercise of the powers of the county government under the
Fourth Schedule
OMBAKA VINCENT
• The governments at the national and county levels are distinct
and inter-dependent and shall conduct their mutual relations on
the basis of consultation and cooperation.
11/09/2014
• Duty to cooperate: Constitution Art 6 (2)
• Conflict of laws: Constitution Art 189;191
• Functional and institutional integrity; respect for Constitutional
function; non-conflict perspective
3
Users of County legislation
OMBAKA VINCENT
JUDICIARY
11/09/2014
NATIONAL
COUNTY
CITIZENS
POLICE
CIVIL
SOCIETY
4
Users of a legislation
• County Government Technocrats:
•
•
•
•
using power in trust/citizen’s best interest
Policy Proposal
Drafting instructions
Monitoring and evaluation
OMBAKA VINCENT
• Core beneficiaries
• Donors of political power
11/09/2014
• Consumers/Citizens:
• National Government Technocrats:
• Setting national standards
• Conflict resolution: Intergovernmental Relations Act
5
Users of County Legislation
• Civil Society
• Watch dogs
• Development funds
• Community initiatives
OMBAKA VINCENT
• Interpretation
• Administration of human rights
• Conflict resolution
11/09/2014
• Judiciary
• Police/Prosecution
• Enforcement/Offenders
6
ACT
BILL
POLICY
OMBAKA VINCENT
REGULATIONS
11/09/2014
The Policy and Legislative
relationship
7
The Technocrat and the Legal
Personnel
• The legal personnel is the key legislative drafter
• His/Her role is to receive instructions, translate them into
legislative text, and fit them into the broader legal context
• E.g. the implications and expectations of water as a right
OMBAKA VINCENT
• His/Her role is to generate, craft and deliver instructions to
facilitate drafting
• E.g. who administers the water infrastructure?
11/09/2014
• The technocrat is the Principal Instructor
8
Problem Definition & Policy Drafting
Crafting and guiding Instructions
Approving and reviewing draft bills
Facilitating public participation
Delivering bills for debate to the County Assembly
Participate in committee stage of the Bill
Enforce the legislations
Instruct on regulations
Amend regulations
OMBAKA VINCENT
•
•
•
•
•
•
•
•
•
11/09/2014
Duties of a technocrat
9
Legal
Understanding
Understanding
Analysis
Analysis
Design
Design
Scrutiny and testing
Composition and Development
Scrutiny and testing
OMBAKA VINCENT
Technical
11/09/2014
Division of Roles in the Drafting
Process
10
Stages in the Legislative
Process
Understanding
Analysis
Design
Composition and Development
Scrutiny
• Source: G C Thoornton. Legislative Drafting 4th Edition (2008)
OMBAKA VINCENT
•
•
•
•
•
11/09/2014
• Stages in the legislative process
11
Understanding
• Means for achieving the purposes
• How do we intend to achieve these purposes?
• Impact of the legislation on circumstances and law
• Which institutions and activities will be affected by this law?
OMBAKA VINCENT
• What is the purpose for this law?
11/09/2014
• Purposes for the law
12
Analysis
• Legislative Proposals and special responsibility areas
• Are there any fundamental principals that this law seeks to
facilitate or may affect
• Are there any obligations that may be affected by this law?
• Legislative proposals and practicality
• Is there capacity to enforce the law: administrative:
OMBAKA VINCENT
• Which laws are likely to affect or be affected by this legislation
11/09/2014
• Existing law
• administrative
• Financial
• policy
13
Design
Short title
Objectives of the legislation
administrative aspects
Substantive aspects
Provisions for regulations
Licensing provisions
Offences and Penalties
Financial provisions
Savings
Schedules
OMBAKA VINCENT
•
•
•
•
•
•
•
•
•
•
11/09/2014
• Basic structure of a bill
14
• Delimiting: define the boundaries
• Extending: going beyond the meaning
• Narrowing: excluding some meanings
• Purpose provisions
• Section headings/ marginal notes
• Basic structure (design)
OMBAKA VINCENT
• Involves actual drafting
• Definitions
11/09/2014
Composition and development
15
Committed to purpose
Conscious of the general body of law
Conform to the Constitution
Coherent and well structured
Comprehensive language
OMBAKA VINCENT
•
•
•
•
•
11/09/2014
Scrutiny and Testing
16
Regulations
• Rules on delegated legislation
• General rules
• Delegated legislation, apart from forms, must be published in the
gazette to become operational
• Penalties in a regulation cannot act retrospectively
• Subsidiary legislation is constructed using the main legislation
• Subsidiary legislation cannot be inconsistent with the main act
• Subsidiary legislation can be amended in the same way it was
made
• Powers can be concurrently general and specific
• Penalty: KES 6000, 6 Months
OMBAKA VINCENT
• Interpretation and General Provisions Act
11/09/2014
• Guiding statute:
17
OMBAKA VINCENT
11/09/2014
Questions and Reflection
18
The Role of Technical Personnel in Legal Drafting
OMBAKA VINCENT
County legislative Mandate
Stakeholders of County Legislation
Policy and law relationship
Stages in the legislative drafting Process
The role of the technical and legal personnel
OMBAKA VINCENT
•
•
•
•
•
11/09/2014
Outline
2
County Legislative Mandate
• Power to legislate : Constitution Art 185
• A county assembly may make any laws that are necessary for, or
incidental to, the effective performance of the functions and
exercise of the powers of the county government under the
Fourth Schedule
OMBAKA VINCENT
• The governments at the national and county levels are distinct
and inter-dependent and shall conduct their mutual relations on
the basis of consultation and cooperation.
11/09/2014
• Duty to cooperate: Constitution Art 6 (2)
• Conflict of laws: Constitution Art 189;191
• Functional and institutional integrity; respect for Constitutional
function; non-conflict perspective
3
Users of County legislation
OMBAKA VINCENT
JUDICIARY
11/09/2014
NATIONAL
COUNTY
CITIZENS
POLICE
CIVIL
SOCIETY
4
Users of a legislation
• County Government Technocrats:
•
•
•
•
using power in trust/citizen’s best interest
Policy Proposal
Drafting instructions
Monitoring and evaluation
OMBAKA VINCENT
• Core beneficiaries
• Donors of political power
11/09/2014
• Consumers/Citizens:
• National Government Technocrats:
• Setting national standards
• Conflict resolution: Intergovernmental Relations Act
5
Users of County Legislation
• Civil Society
• Watch dogs
• Development funds
• Community initiatives
OMBAKA VINCENT
• Interpretation
• Administration of human rights
• Conflict resolution
11/09/2014
• Judiciary
• Police/Prosecution
• Enforcement/Offenders
6
ACT
BILL
POLICY
OMBAKA VINCENT
REGULATIONS
11/09/2014
The Policy and Legislative
relationship
7
The Technocrat and the Legal
Personnel
• The legal personnel is the key legislative drafter
• His/Her role is to receive instructions, translate them into
legislative text, and fit them into the broader legal context
• E.g. the implications and expectations of water as a right
OMBAKA VINCENT
• His/Her role is to generate, craft and deliver instructions to
facilitate drafting
• E.g. who administers the water infrastructure?
11/09/2014
• The technocrat is the Principal Instructor
8
Problem Definition & Policy Drafting
Crafting and guiding Instructions
Approving and reviewing draft bills
Facilitating public participation
Delivering bills for debate to the County Assembly
Participate in committee stage of the Bill
Enforce the legislations
Instruct on regulations
Amend regulations
OMBAKA VINCENT
•
•
•
•
•
•
•
•
•
11/09/2014
Duties of a technocrat
9
Legal
Understanding
Understanding
Analysis
Analysis
Design
Design
Scrutiny and testing
Composition and Development
Scrutiny and testing
OMBAKA VINCENT
Technical
11/09/2014
Division of Roles in the Drafting
Process
10
Stages in the Legislative
Process
Understanding
Analysis
Design
Composition and Development
Scrutiny
• Source: G C Thoornton. Legislative Drafting 4th Edition (2008)
OMBAKA VINCENT
•
•
•
•
•
11/09/2014
• Stages in the legislative process
11
Understanding
• Means for achieving the purposes
• How do we intend to achieve these purposes?
• Impact of the legislation on circumstances and law
• Which institutions and activities will be affected by this law?
OMBAKA VINCENT
• What is the purpose for this law?
11/09/2014
• Purposes for the law
12
Analysis
• Legislative Proposals and special responsibility areas
• Are there any fundamental principals that this law seeks to
facilitate or may affect
• Are there any obligations that may be affected by this law?
• Legislative proposals and practicality
• Is there capacity to enforce the law: administrative:
OMBAKA VINCENT
• Which laws are likely to affect or be affected by this legislation
11/09/2014
• Existing law
• administrative
• Financial
• policy
13
Design
Short title
Objectives of the legislation
administrative aspects
Substantive aspects
Provisions for regulations
Licensing provisions
Offences and Penalties
Financial provisions
Savings
Schedules
OMBAKA VINCENT
•
•
•
•
•
•
•
•
•
•
11/09/2014
• Basic structure of a bill
14
• Delimiting: define the boundaries
• Extending: going beyond the meaning
• Narrowing: excluding some meanings
• Purpose provisions
• Section headings/ marginal notes
• Basic structure (design)
OMBAKA VINCENT
• Involves actual drafting
• Definitions
11/09/2014
Composition and development
15
Committed to purpose
Conscious of the general body of law
Conform to the Constitution
Coherent and well structured
Comprehensive language
OMBAKA VINCENT
•
•
•
•
•
11/09/2014
Scrutiny and Testing
16
Regulations
• Rules on delegated legislation
• General rules
• Delegated legislation, apart from forms, must be published in the
gazette to become operational
• Penalties in a regulation cannot act retrospectively
• Subsidiary legislation is constructed using the main legislation
• Subsidiary legislation cannot be inconsistent with the main act
• Subsidiary legislation can be amended in the same way it was
made
• Powers can be concurrently general and specific
• Penalty: KES 6000, 6 Months
OMBAKA VINCENT
• Interpretation and General Provisions Act
11/09/2014
• Guiding statute:
17
OMBAKA VINCENT
11/09/2014
Questions and Reflection
18
