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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