UNIT 7

LEGISLATIVE DRAFTING

Legislative drafting refers to the process of formulating laws in written form by legal professionals, typically known as legislative drafters. The goal of legislative drafting is to produce clear, precise, and enforceable laws that address the objectives of the legislature and meet the needs of the public. In Nigeria, the process of drafting legislation is governed by principles that ensure clarity, accuracy, consistency, and compliance with constitutional and statutory provisions. The Nigerian constitution (1999) and various statutes guide legislative drafters in creating legal documents that are understandable and enforceable. Inadequate drafting can lead to ambiguities, misinterpretations, and unintended legal consequences, making the role of a legislative drafter crucial. A good legislative draft should possess certain qualities which includes the following:

1. Clarity: The language should be simple and easy to understand.
2. Precision: The law should address the exact issues it intends to solve, without vagueness.
3. Consistency: The draft should not contradict existing laws or itself.
4. Enforceability: The provisions of the draft should be capable of enforcement.
5. Conformity with the constitution: The draft must comply with the constitution, particularly its fundamental rights provisions (chapter IV of the 1999 constitution).

STAGES IN LEGISLATIVE DRAFTING

Legislative drafting involves several stages, from the initial concept to the final enactment into law:

1. Policy formulation: At this stage, the objectives and rationale for the legislation are developed. The policy underlying the draft must be carefully considered and should align with government goals or address specific societal issues. Legislative drafters work closely with policymakers to understand the desired outcomes of the legislation.
2. Research and analysis: See the case of Adeleke v Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) 608 which emphasizes the importance of legislative processes conforming to established legal principles and the constitution. Once the policy has been identified, the drafter conducts thorough research which includes the following:
   
   1. Studying existing laws and legal frameworks.
   2. Examining judicial decisions (case law) relevant to the subject matter.
   3. Consulting statutes, such as the interpretation act, which provides general principles for interpreting statutes in Nigeria.
3. Drafing: The actual drafting process involves translating the policy into legal language. See the interpretation act (Cap I23, LFN 2004) which plays a critical role by providing rules on how legislative terms should be understood, ensuring consistency across Nigerian legislation. Key elements include the following:
   
   1. Structuring the law: This includes organizing the law into sections, sub-sections, schedules, and explanatory notes.
   2. Language and terminology: The language used must be clear, precise, and consistent, avoiding technical jargon where possible.
   3. Definitions: Key terms should be clearly defined in the interpretation section of the draft to avoid ambiguity.
4. Review and consultation: After the initial draft is prepared, it undergoes a review process. Consultation with stakeholders, including legal experts, government agencies, and the public, is crucial at this stage. Input from these parties helps to refine the draft and ensure that it meets the intended objectives.
5. Final draft and presentation: Once the draft is finalized and approved by the necessary stakeholders, it is presented to the legislative body for consideration. In Nigeria, bills can be presented either to the national assembly or state house of assembly, depending on whether the subject matter falls under the exclusive, concurrent, or residual legislative lists as outlined in the second schedule of the 1999 constitution.
6. Enactment: The final step in legislative drafting is the enactment of the draft into law. Once the bill passes through the legislative stages, it is presented to the president or governor for assent. Upon receiving assent, the bill becomes law.
7. Implementation and review: After the law is enacted, its implementation begins. Drafters may need to revisit the law if amendments are necessary or if judicial interpretations call for a review. The Nigerian courts often provide interpretations of statutes, which might highlight areas that require amendments. See the case of Olafisoye v Federal Republic of Nigeria (2004) 4 NWLR (Pt. 864) 580 where the supreme court interpreted provisions of the ICPC act, emphasizing the importance of clarity in legislative drafting.

PRINCIPLES OF LEGISLATIVE DRAFTING

1. Accuracy and precision: The law must clearly state its objectives and the methods for achieving them. Ambiguity can lead to misinterpretation, which is why legislative drafters aim for accuracy and precision in every provision. A key statute reflecting this principle is the interpretation act, which provides that laws must be interpreted in a way that gives effect to the intent of the legislature. See the interpretation act (Cap I23, LFN 2004) which provides principles for interpreting legislative provisions and the case of Olafisoye v Federal Republic of Nigeria (2004) 4 NWLR (Pt. 864) 580 where the court illustrates the role of judicial interpretation in legislative drafting and also the case of Adeleke v Oyo State House of Assembly (2006) 16 NWLR (Pt. 1006) 608 where the court highlights adherence to legislative procedures.
2. Simplicity of language: Legislation should use simple, straightforward language to ensure it can be understood by those to whom it applies. Using unnecessarily complex language increases the risk of misinterpretation. See the case of Nigerian Bottling Co. Ltd. v United Bottlers Ltd (2010) 1 NWLR (Pt. 1174) 549 where the court illustrates how courts deal with ambiguous language, underscoring the need for clarity.
3. Conformity with legal precedents and statutes: Drafters must ensure that new laws align with existing legal frameworks, including constitutional provisions, statutes, and judicial precedents. This includes observing the rules of interpretation, such as ejusdem generis where general words following specific words are limited to the same class as the specific words. See the case of AG Lagos State v AG Federation (2003) 12 NWLR (Pt. 833) 1 where the court demonstrates the principle of harmonizing statutes with constitutional provisions and 1999 constitution of Nigeria (as amended) which guides the legislative process and ensures conformity with constitutional rights.
4. Use of definitions: Legislative drafters must provide clear definitions of key terms within the draft to avoid confusion. See section 18 of the interpretation act which lays down general rules for definitions used in Nigerian statutes, guiding drafters to maintain uniformity across legal documents.
5. Consistency and harmony: A new law must not conflict with existing laws unless it explicitly intends to repeal or amend them. Legislative drafters must carefully analyze existing statutes to ensure consistency. See the petroleum industry act 2021 which reflects efforts to harmonize various aspects of oil and gas regulation in Nigeria and the case of AG Lagos State v AG Federation (2003) 12 NWLR (Pt. 833) 1 where the court demonstrates the importance of harmonizing laws with constitutional provisions.

CONCLUSION

Legislative drafting is a critical process that demands clarity, precision, and adherence to constitutional and statutory provisions. Legal professionals involved in this task must ensure that the drafts they produce are enforceable, free of ambiguities, and in harmony with existing laws. By following best practices in legislative drafting, laws in Nigeria can better achieve their intended purpose and avoid the pitfalls of misinterpretation or inconsistency.