the dynamics of law making

8/10/2019 The Dynamics of Law Making

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County LegislationThe Role of Technical Personnel in Legal Drafting

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Outline

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

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County Legislative Mandate

Duty to cooperate: Constitution Art 6 (2)

The governments at the national and county levels are distinct

and inter-dependent and shall conduct their mutual relations on

the basis of consultationand cooperation.

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

Conflict of laws: Constitution Art 189;191

Functional and institutional integrity; respect for Constitutional

function; non-conflict perspective

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Users of County legislation

CITIZENS

COUNTY

JUDICIARY

POLICE

CIVIL

SOCIETY

NATIONAL

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Users of a legislation

Consumers/Citizens:

Core beneficiaries

Donors of political power

County Government Technocrats:

using power in trust/citizens best interest

Policy Proposal

Drafting instructions

Monitoring and evaluation

National Government Technocrats: Setting national standards

Conflict resolution: Intergovernmental Relations Act

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Users of County Legislation

Judiciary

Interpretation

Administration of human rights

Conflict resolution

Civil Society

Watch dogs

Development funds

Community initiatives

Police/Prosecution Enforcement/Offenders

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The Policy and Legislative

relationship

POLICY

BILL

ACT

REGULATIONS 11/09/2014

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The Technocrat and the Legal

Personnel The technocrat is the Principal Instructor

His/Her role is to generate, craft and deliver instructions to

facilitate drafting

E.g. who administers the water infrastructure?

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

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Duties of a technocrat

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

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Division of Roles in the Drafting

Process

Technical

Understanding

Analysis

Design

Scrutiny and testing

Legal

Understanding

Analysis

Design

Composition and Development

Scrutiny and testing

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Stages in the Legislative

Process Stages in the legislative process

Understanding

Analysis

Design

Composition and Development

Scrutiny

Source: G C Thoornton. Legislative Drafting 4thEdition (2008)

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Understanding

Purposes for the law

What is the purpose for this law?

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?

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Analysis

Existing law

Which laws are likely to affect or be affected by this legislation

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:

administrative Financial

policy

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Design

Basic structure of a bill

Short title

Objectives of the legislation

administrative aspects

Substantive aspects

Provisions for regulations

Licensing provisions

Offences and Penalties

Financial provisions Savings

Schedules

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Composition and development

Involves actual drafting

Definitions

Delimiting: define the boundaries

Extending: going beyond the meaning

Narrowing: excluding some meanings

Purpose provisions

Section headings/ marginal notes

Basic structure (design)

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Scrutiny and Testing

Committed to purpose

Conscious of the general body of law

Conform to the Constitution

Coherent and well structured

Comprehensive language

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Regulations

Guiding statute:

Interpretation and General Provisions Act

Rules on delegated legislation

General rules

Delegated legislation, apart from forms, must be published in thegazette 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

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Questions and Reflection

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the dynamics of law making

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