THE UNITED

REPUBLIC OF TANZANIA

LEGISLATIVE
DRAFTING MANUAL
 TABLE OF CONTENTS

FOREWORD BY THE ATTORNEY GENERAL ................................................................................................ vi

EXECUTIVE SUMMARY ................................................................................................................................... xii
PART ONE ............................................................................................................................................................. 1
PRELIMINARY MATTERS .................................................................................................................................. 1
1.0 Citation ........................................................................................................................................................ 1
1.1 Application .................................................................................................................................................. 1
1.2 Objectives of the Manual ............................................................................................................................ 1
PART TWO ............................................................................................................................................................ 2
LEGISLATIVE DRAFTING .................................................................................................................................. 2
2.0 LEGISLATIVE DRAFTING ...................................................................................................................... 2
2.1 Sources of Legislation ................................................................................................................................. 2
2.2 Role of the Parliamentary Draftsman .......................................................................................................... 3
2.3 Basic Principles in Legislative Drafting...................................................................................................... 4
2.3.1 Upholding the Constitution and Other Laws of the Country .................................................................. 4
2.5 Observation of International Treaties and Agreements............................................................................... 7
2.6 Regional Laws............................................................................................................................................. 8
2.7 Consideration of Matters Relating to Territorial and Extra Territorial Jurisdiction .................................. 8
2.8 Implementation of Policy ............................................................................................................................ 8
2.9 Public Participation ..................................................................................................................................... 8
PART THREE......................................................................................................................................................... 9
POLICY MAKING PROCESS............................................................................................................................... 9
3.0 INTRODUCTION ...................................................................................................................................... 9
3.1 Meaning of a Policy .................................................................................................................................... 9
3.2 Basis of Policy Formulation ........................................................................................................................ 9
3.3 Rationale for Policy Development ............................................................................................................ 10
3.4 Policy Formulation Process....................................................................................................................... 10
3.5 Policy Approvals ....................................................................................................................................... 12
3.6 Contents of a Policy .................................................................................................................................. 12
3.7 Role of Parliamentary Draftsman in the Policy Making Process .............................................................. 14
PART FOUR ......................................................................................................................................................... 15
TRANSLATING POLICY INTO LEGISLATION .............................................................................................. 15
4.0 INTRODUCTION .................................................................................................................................... 15
4.1 Factors to be considered before translating policy into legislation ........................................................... 16

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4.2 Role of the Ministry .................................................................................................................................. 17
PART FIVE........................................................................................................................................................... 18
THE LEGISLATIVE PROCESS .......................................................................................................................... 18
5.0 INTRODUCTION .................................................................................................................................... 18
5.1 Legislative Process .................................................................................................................................... 18
PART SIX ............................................................................................................................................................. 30
AMENDMENT, REPEAL OF LEGISLATION AND RECTIFICATION OF ERROR ..................................... 30
6.0 INTRODUCTION .................................................................................................................................... 30
6.1 Considerations when Amending Legislation ............................................................................................ 30
6.2 Forms of Amending Legislation ............................................................................................................... 31
6.3 Drafting of an Amending Legislation ....................................................................................................... 32
6.4 Repeal or amendment of an Act of Parliament ......................................................................................... 34
6.5 Rectification of Printing Errors ................................................................................................................. 35
PART SEVEN....................................................................................................................................................... 36
SKILLS OF DRAFTING LEGISLATION ........................................................................................................... 36
7.0 INTRODUCTION .................................................................................................................................... 36
7.1 Stages of Drafting Legislation .................................................................................................................. 36
7.2 Preparation of a Legislative Plan or Scheme ............................................................................................ 37
7.3 Salient Features of a Bill ........................................................................................................................... 37
7.4 Preliminary Matters................................................................................................................................... 38
7.5 Preliminary Provisions .............................................................................................................................. 40
7.6 Principal or Operational Provisions .......................................................................................................... 41
7.7 Miscellaneous or General Provisions ........................................................................................................ 42
7.8 Final Provisions......................................................................................................................................... 42
7.9 Schedules .................................................................................................................................................. 43
7.10 Segmentation of Legislation ..................................................................................................................... 43
PART EIGHT ....................................................................................................................................................... 46
LEGISLATIVE LANGUAGE .............................................................................................................................. 46
8.0 INTRODUCTION .................................................................................................................................... 46
8.1 Use of Plain Language .............................................................................................................................. 46
8.2 Words and expressions to be avoided ....................................................................................................... 47
8.3 Sentence Length ........................................................................................................................................ 47
8.4 Nominalisation .......................................................................................................................................... 48
8.5 Spelling ..................................................................................................................................................... 48
8.6 Capitalization ............................................................................................................................................ 48
8.7 Legislative Sentence.................................................................................................................................. 49

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8.8 Language and Syntax ................................................................................................................................ 50
8.9 Punctuations .............................................................................................................................................. 52
PART NINE .......................................................................................................................................................... 59
DRAFTING OF SUBSIDIARY LEGISLATION ................................................................................................ 59
9.0 INTRODUCTION .................................................................................................................................... 59
9.1 Powers to Make Subsidiary Legislation .................................................................................................... 59
9.2 Types of Subsidiary Legislation................................................................................................................ 60
9.3 Drafting Subsidiary Legislation in Tanzania ............................................................................................ 60
9.4 Structure of a Subsidiary Legislation ........................................................................................................ 61
9.5 Layout of a Subsidiary Legislation ........................................................................................................... 62
9.6 By-laws Making Procedures ..................................................................................................................... 62
9.7 Publication and Commencement............................................................................................................... 65
9.8 Factors to be Considered in Preparing By-Laws ....................................................................................... 65
9.9 Vetting of Subsidiary Legislation: ............................................................................................................ 66
9.10 Commencement of Subsidiary legislation................................................................................................. 66
9. 11 Amendment or Revocation of Subsidiary Legislation .......................................................................... 67
9.12 Parliamentary Control of Subsidiary legislation ....................................................................................... 67
9.13 Rules of Statutory Interpretation ............................................................................................................... 68
PART TEN............................................................................................................................................................ 70
REVISION OF LAWS.......................................................................................................................................... 70
10.0 INTRODUCTION .................................................................................................................................... 70
10.1 Authority to Conduct Revision of Laws ................................................................................................... 70
10.2 Law Revision Process ............................................................................................................................... 70
10.3 Role of a Parliamentary Draftsman in law revision .................................................................................. 72
10.4 Consultations ............................................................................................................................................. 72
10.5 Commencement of Revised Laws ............................................................................................................. 73
10.6 Amendment or Repeal of a Legislation..................................................................................................... 73
10.7 Conflict between Revised Law and Existing Laws ................................................................................... 73
PART ELEVEN .................................................................................................................................................... 74
TRANSLATION OF LAWS ................................................................................................................................ 74
11.0 INTRODUCTION .................................................................................................................................... 74
11.1 Factors to Consider During Translation .................................................................................................... 74
11.2 Publication and Commencement of Translated Laws ............................................................................... 75
11.3 Management of Conflicts .......................................................................................................................... 76
PART TWELVE ................................................................................................................................................... 77
MISCELLANEOUS MATTERS .......................................................................................................................... 77

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12.0 DRAFTING OF RESOLUTION DOCUMENTS..................................................................................... 77
12.1 REPORT WRITTING ............................................................................................................................... 78
12.2 CONFIDENTIALITY ............................................................................................................................... 79
12.3 SELF DEVELOPMENT ........................................................................................................................... 80

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 FOREWORD BY THE ATTORNEY GENERAL
The term “legislative” derives its meaning from two latin
words “legis” meaning law and “latum” meaning to
make, put or set. Simply put, a legislation is a set of rules
passed by the Parliament to regulate human behavior in a
society as such having a binding nature upon them. That
being the case, it is of utmost importance for any piece of
legislation to be clear and concise in order to allow
smooth implementation of the enacted legislation by individuals and entities.

Apart from the Parliament, the Government and members of the society,
among the key persons in the process of formulation of a legislation is a
Parliamentary Drafter. It is generally presumed that a Parliamentary Drafter’s
role in the legislative process is to put the drafting instructions for a particular
legislation into writing and, in the strict sense, take into consideration of the
use of proper grammar, style, vocabulary, correctness of language and textual
structure in drafting the legislation.

Ironically, in order to achieve the desired effect and ensure efficiency of the
intended legislation, it is pertinent for a Parliamentary Drafter to be concerned
with the content of the legislation to be enacted, in other words, the legislative
intent of the statute. If an enacted legislation is not effective or efficient, it
becomes no different than a “dead letter” and undermines the rule of law.
Therefore, while drafting a legislation, a Parliamentary Drafter should also
ascertain that the legislation:

(a)is not inconsistent with the Constitution of the United Republic and other
laws;
(b) promotes democratic governance thus giving effect to the rule of
law;
(c)address the needs of the society;
(d) gives rise to less litigation; and

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 (e)does not have deficiencies that would otherwise subject it to frequent
amendments thereby adding costs to the Government.

Application of proper skills of legislative drafting by a Parliamentary Drafter

can service the transformation of laws to meeting the growing demands of
public interest promotion, institutional transformation, the law-making
process, democratic change, deter crime, fight corruption as well promote good
governance.
Legislative drafting is an obligatory instrument for the transformation of the
laws of any state therefore, good drafting is required so as to capture the
essence of any transformation agenda in the process of enactment of a
legislation.

The relationship between a properly drafted legislation, good governance,

development and institutions are intertwined because, much as a legislation
may be enacted for the functioning of a particular institution, it cannot stand
alone, it needs complementing by institutional behavioral changes that reflect
the political will of those at the wheel of affairs to produce the desired
transformation. Therefore, a legislation that is enacted in adherence to the rules
of legislative drafting contributes to the better performance of an institution in
achieving the objectives of development and good governance.

Once a policy is in place, it is the role of the Parliamentary Drafter to translate

the same into legislation. If the respective Bills is analysed within the
framework of jurisprudential philosophies about, the nature of law itself, the
said law will not only solve social problems, but the citizens and all
stakeholders will understand their obligations, and in turn courts can enforce
the laws effectively.
The commencement of the process of disciplining and refining political will
through application of constitutional reason and conclusively enacting a clear
and un ambiguous legislation, which is then continued at the stage of
interpretation of statutes by the courts, contributes to development of a society.
Transformation involves change and the pursuit of social change always
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involves an engagement with the law, therefore the legislature must act as the
eyes, ears, and voice of the people. The better the drafting of a legislation, the
smoother the integration of democracy and the rule of law and the less need
there is for interstitial law-making by judges in the interpretative exercise.

This Legislative Drafting Manual is a useful tool, aimed at contributing to the

realisation of the rule of law, promotion of sustainable development and
promoting greater stylistic uniformity in the work drafted by Legislative
Drafters, State Attorneys and other persons involved in the process of
legislative drafting.

My forwarding message would not be complete without acknowledging the

contributions of all persons who contributed towards development of this
Manual. In particular, I wish to express my sincere appreciation to Dr. Evaristo
E. Longopa, the Deputy Attorney General, for coordination and facilitation of
the preparation of this Manual. The successful development of the Manual is a
testament of his hard work and dedication.
My heartiest appreciation goes to Mr. Onorius J. Njole, the Chief
Parliamentary Draftsman for his meticulous contribution towards development
of this Manual. What the Office of the Attorney General has achieved through
development of this Manual is not insignificant, it is one of our biggest success
yet and his strong leadership skills, and dedication have contributed to this.
My sincere appreciation extends to the Management team of the Office of the
Attorney General and the entire staff of the Legislative Drafting Division for
their immense contribution towards development of this Manual. Their tireless
efforts are evident throughout the Manual.
Last but not least, I wish to acknowledge my profound gratitude to the Review
Committee which was Chaired by the Hon. Judge Juxon Mlay (RTD), who is
also a former Deputy Parliamentary Draftsman and former Director of Public
Prosecutions, the Hon. Judge Julius B. Mallaba (RTD) who has also served at
the Office of the Attorney General (then Attorney General’s Chambers) as
Director of Civil Litigation, Contract and International Treaties, the Hon.
viii
Judge Sirilius B. Matupa (RTD) who, before being appointed Judge of the High
Court, was the Legal Adviser to the President of the United Republic of
Tanzania. Hon. Judge Matupa has also served at the Office of the Attorney
General (then Attorney General’s Chambers) as Private Assistant to the
Attorney General and Ms. Sarah K. Barahomoka, the former Chief
Parliamentary Draftsman. The collective efforts of the Committee have yielded
a great outcome not only for the Office of the Attorney General, but the nation
at large. The achievement was only possible through their dedication, time and
efforts, given their normal responsibilities.

Hon. Judge Dr. Eliezer Mbuki Feleshi

ATTORNEY GENERAL
February, 2023

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 MESSAGE FROM THE CHIEF PALIAMENTARY DRAFTSMAN

It is a well-established principle that a good law

depends on abilities and capabilities of a Parliamentary
Draftsman, who is called upon to translate policy into
simple, concise and lucid Bills which have clarity as
their essence make the work of the Parliament of
enacting legislation easier and more effective. This
goes to show that the process by which laws are made
is determinative of their ultimate quality.

In order to realise the norms and principles of legislative drafting and to bring
all lawyers onboard, the Office of the Attorney General has officiated and
issued this Drafting Manual which in one way or another will serve such
purpose. This Manual sets out the norms and principles of making laws that
promote greater stylistic uniformity in the work drafted by, not only a
Parliamentary Draftsman, but also a State Attorney employed in the public
sector. Therefore, a lawyer engaged in drafting any legislative instrument is
required to adhere to the principles enshrined in this Manual. The Manual also
serves as a teaching aid on legislative drafting matters.

The initiation of this Manual is drawn back to the recognition of the former
Chief Parliamentary Draftsmen, the late Mr. Siegfried K. Lushagara, Ms.
Esther J. Manyesha, Mr. Casmir S. Kyuki and Ms. Sarah K. Barahomoka.
I am extremely grateful to you all, because the present achievement of the
development of this Manual would not have been possible without your
indefatigable laid foundation. Your diverse professionalism, background,
strong leadership skills and dedication have contributed immensely towards
the successful development of this Manual.

My sincere gratitude extends to the Hon. Attorney General, Judge Dr. Eliezer
Mbuki Feleshi and the Deputy Attorney General Dr. Evaristo E. Longopa, for
their dedication and unwavering support in the preparation of this Manual. I
x
wish to thank the entire Management team of the Office of the Attorney
General for their contribution towards development of this Manual. My
heartfelt gratitude goes to each staff of the Legislative Drafting Division of the
Office of the Attorney General for their tireless efforts in preparation of this
Manual. It gives me immense pride to know that the Legislative Drafting
Division has a workforce as creative and as hardworking as all of you.

I wish readers a happy reading.

Onorius J. Njole
CHIEF PARLIAMENTARY DRAFTSMAN
February, 2023

xi
 EXECUTIVE SUMMARY

Being a specialised discipline, legislative drafting requires skills and expertise

in order to effectively communicate the law in a manner that is understood by
its designated audience. The task of drafting legislation is not merely putting
words from a policy in writing, it entails giving effect to Government policies
and directives by drafting legislation that is legally correct and observant of
accepted principles of legislative drafting.

This Manual has been developed as a guiding tool to Parliamentary Draftsmen

and other key persons involved in the process of developing and drafting
legislation. It is the first comprehensive consolidation of drafting style and
practices that have, over the course of time, been adopted by Parliamentary
Draftsmen in the Office of the Attorney General when drafting legislation.
Apart from offering instruction on development and drafting of legislation, the
Manual also lays down major principles and considerations when revising or
translating legislation.

The key purpose for issuance of this Manual includes promoting uniformity in
drafting style, outlining principles, skills and techniques of drafting legislation,
highlighting procedures and processes for legislative drafting, with the view to
improving the quality of legislation.

This Manual is divided into Twelve Parts which cover preliminary matters,
principles, skills and procedures of legislative drafting from the initial stage of
policy making to publication of proposed Bills and Acts of Parliament.

Part One provides for preliminary matters while Part Two deals with
legislative drafting and highlights mandatory principles to be observed prior to
and during the process of drafting legislation.

Part Three deals with the process involved the policy formulation in Mainland
Tanzania and the rationale behind the development of policy, while Part Four
xii
explains on translation of policy into legislation. Part Five gives a step-by-step
summary of the process of enacting legislation from inception to
commencement.

Part Six of the Manual gives an account of considerations to be taken into

account by a Parliamentary Draftsman when amending or repealing legislation
and rectification of errors. While Part Seven elucidates on skills necessary in
drafting of legislation and the standard format of legislation, Part Eight on the
other hand, deals with key considerations in legislative language which include
the use of plain language in communicating the legislative intent to users.

Part Nine focuses on drafting subsidiary legislation and special attention is

drawn to drafting of by-laws due to the peculiarity of the procedures involved
in their development. Parts Ten and Eleven relate to revision and translation of
laws respectively. Part Twelve deals with drafting of documents necessary for
ratification of international treaties and agreements, report writing,
confidentiality and self-development for parliamentary draftsmen.

xiii
 PART ONE
PRELIMINARY MATTERS

1.0 Citation
This Manual may be cited as the Legislative Drafting Manual of 2022.

1.1 Application
This Manual applies to all Parliamentary Draftsmen in the Office of the
Attorney General, State Attorneys in the local government authorities
involved in the preparation of subsidiary legislation under the local
government within the Ministries or Government institutions, State
Attorneys and other key persons who are involved in the legislative
processes.

1.2 Objectives of the Manual

The objectives of the Manual are to:
(a) provide for basic legislative drafting principles, skills and
techniques to Parliamentary Draftsmen and State Attorneys working
in Government Ministries, Departments, Agencies and local
government authorities and other key persons involved in the
process of developing and drafting legislation;
(b) serve as a working tool and reference material for other persons
involved in developing legislation and for scholarly purposes;
(c) achieve and enhance uniformity, precision and style of legislation;
(d) provide guidance on policy formulation and translation of policy
into legislation; and
(e) provide for legislative process of enactment of legislation from
inception to the commencement stage.

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 PART TWO
LEGISLATIVE DRAFTING

2.0 LEGISLATIVE DRAFTING

Experience and practice reveal that legislative drafting simply means the
process of drafting or preparation of intended or proposed legislation in a
written form. The drafting process which relates to the law making
involves legal and other knowledge, skills and techniques in the
preparation of the legislation.

As a matter of legislative procedures, the proposed legislation to be

drafted has to undergo various processes and stages of legislative
meetings for scrutiny prior to its enactment by the Legislature.

In this regard, the Parliamentary Draftsman needs to be an experienced

person equipped with such legal and other knowledge, skills and
techniques as are necessary for efficient drafting of the proposed
legislation. In addition, such Parliamentary Draftsman is required to be
conversant with the legislative procedures and processes under which the
proposed legislation is subjected to.

2.1 Sources of Legislation

There are various sources from which legislation emanates. The sources
of legislation include:
(a) Constitution of the United Republic of Tanzania;
(b) Government Policies;
(c) Government Directives;
(d) Parliamentary Debates;
(e) Court’s Decision;
(f) Treaties, Protocols and International Conventions;
(g) Regional Acts;
(h) Reports of Law Reform Commission;
(i) Commissions formed for a specific purpose;

2
 (j) Implementation of existing laws;
(k) Proposals from Civil Societies; and
(l) Religion, Norms and Customs of a Society.

Knowledge on the source of legislation is vital as it enables a Parliamentary

Draftsman to understand the background, nature and circumstances
surrounding the subject matter to be legislated on and determine legislative
requirements of the intended legislation.

2.2 Role of the Parliamentary Draftsman

In the process of legislative drafting a Parliamentary Draftsman plays a
significant role from the initial stage of drafting or preparation of the
proposed legislation to the enactment of the legislation by the Legislature.
Thus, in this process the role of the Parliamentary Draftsman includes:
(a) analysing and conceptualising Government instructions and policies
for intended legislation;
(b) designing and drafting of Government Bills or legislation to be
tabled before various legislative meetings, including Cabinet
Committees, Parliamentary Committees, the National Assembly
and Regional fora;
(c) drafting or vetting of subsidiary legislation where the preparation of
a Bill so requires;
(d) providing legal advice to Ministries, Government institutions and
independent Departments (through the Attorney General), on
various legal and legislative matters;
(e) providing clarification during deliberation and scrutiny of the
proposed legislation by parliamentary committees;
(f) preparing or drafting of the Finance Bill for amendment of existing
tax, revenue laws and other related laws for enhancement of
collection of revenue and management of Government revenues;
(g) preparing of Schedules of amendments in the course of discussion
of the Bills by the parliamentary committees and the National
Assembly;
3
 (h) revision of laws;
(i) preparing resolution documents for ratification of international
treaties and agreements by the National Assembly;
(j) translation of Bills and other legislative instruments from English to
Kiswahili languages and vice versa;
(k) preparation of all documents and instruments as may be required for
legislative drafting;
(l) facilitating publication of principal and subsidiary legislation in the
Government Gazette; and
(m) performing such other legislative duties as may be directed from
time to time by the Attorney General.

Considering the nature of the legislative activities, the Parliamentary

Draftsman is always required to attend all legislative meetings throughout
the legislative processes so as to provide advice or clarification as may be
required in the process.

2.3 Basic Principles in Legislative Drafting

The legislative process entails adherence to certain mandatory principles
prior to and during the process. A person engaged in the legislative
process should take into account the principles with a view to ensuring
that the intended legislation conforms to the existing policy and legal
framework. These principles include:

(a) upholding the Constitution and other laws of the country;

(b) observance of international treaties and agreements;
(c) consideration of matters relating to territorial and extra territorial
jurisdiction;
(d) implementation of policy; and
(e) public participation.

2.3.1 Upholding the Constitution and Other Laws of the Country

4
A Parliamentary Draftsman must consider the Constitution and other
basic laws of the country when engaging in the legislative process.
Consideration of the same is significant in removing or minimising the
likelihood of derogation from constitutional principles, policy and legal
framework or legislating on a matter that has previously been legislated
on. It is necessary for a Parliamentary Draftsman to undertake a detailed
research so as to ascertain whether the matter has been legislated
previously or not or whether the existing legal framework needs to be
modified, amended or repealed to cater for the situation at hand. By so
doing, the Parliamentary Draftsman will be in a position to determine
other measures that can be employed to address the situation other than
legislative measures and advise accordingly.

The basic laws that lay down the principles, art and practice of legislative
drafting include the following:

(a) The Constitution of the United Republic of Tanzania, 1977

The Constitution of the United Republic of Tanzania, 1977 is the
supreme law of the country. Therefore, every law must be consistent
with the provisions of the Constitution, otherwise such law is
considered to be null and void to the extent of the inconsistency. A
Parliamentary Draftsman must adhere to constitutional provisions with
regard to-
(i) the fundamental rights, freedoms and duties;
(ii) union and non union matters;
(iii) functions, powers, duties and limitations of state organs and
public entities.

(b) The Interpretation of Laws Act, Cap. 1

The Interpretation of Laws Act, Cap 1, provides the basic rules of
interpretation of laws which a person engaged in the legislative process
is required to be conversant with. During the legislative process, it is
imperative to understand key words and expressions of general
5
 application as defined in the Act in order to avoid repetition or
misinterpretation in the intended legislation. Understanding of matters
relating to enactment, amendments, repeal, commencement and
publication of legislation is of utmost importance during the legislative
process as the same have impact on the existing legislation in relation
to the intended legislation.

(c)The Public Service Act, Cap. 298

When engaging in drafting of legislation involving an organisational
structure of certain Government offices or departments and scheme of
service for particular public servants, a person is required to consult the
Public Service Act, Cap. 298, its regulations and the Standing Orders.
The Act, its regulations and Standing Orders are the principal source
of law in matters relating to public service, scheme of service and
organisational structures of public institutions.

(d) Public financial management laws

Public financial management laws such as the Public Finance Act, Cap.
348, the Public Procurement Act, Cap. 410 and the Public Audit Act,
Cap. 418 should be considered in the legislative process with a view to
ensuring that the proposed law conforms to requirements of the said
laws.
(e)Tax Laws
Tax laws form significant component of laws providing for imposition
and collection of taxes and levies as fundamental sources of revenue
for the Government. The principles and positions established under
such laws need to be observed by a Parliamentary Draftsman during
preparation or drafting of the Bill so as to avoid contravention or
conflict with such important laws.

6
 (f) Penal laws
Penal laws such as the Penal Code, Cap. 16 and the Minimum
Sentences Act, Cap. 90 should be consulted during the legislative
process to avoid creation of offences and penalties that are already in
the existing legislations.

(g) Procedural laws

In the legislative process, it is prudent to consider procedural laws such
as the Civil Procedure Code, Cap. 33, the Criminal Procedure Act, Cap.
20, the Evidence Act, Cap. 6 and the Law of Limitation Act, Cap. 89.
This is due to the fact that such laws take precedence over other laws
in procedural matters applicable in courts.

(h) Other Specific Laws

The laws providing for specific matters such as electoral laws, pension
laws, local government laws, the Office of the Attorney General
(Discharge of Duties) Act, Cap. 268 etc. need to be observed by a
Parliamentary Draftsman to avoid unnecessary conflict with such laws.
It is important for a Parliamentary Draftsman to note the interpretation
principle that, whenever there is the conflict between the general law
and a specific law that the specific law prevails.

2.5 Observation of International Treaties and Agreements

Tanzania as a sovereign country is a state party to various international
treaties and agreements. Article 63(3)(e) of the Constitution provides for
the powers of the Parliament to deliberate and ratify all treaties and
agreements to which the United Republic is a party and the provisions of
which may require ratification. Once ratified, the treaties and agreements
are implemented through various methods such as policies, legislation and
programs. In view of this, a person engaged in the legislative process
ought to consider ratified international treaties and agreements pertinent
to the intended legislation.

7
2.6 Regional Laws
Some of the regional blocks to which Tanzania is a party have enacted
laws which are binding to all partner states. Therefore, it is important for
a Parliamentary Draftsman to take into consideration the provisions of
such laws.

2.7 Consideration of Matters Relating to Territorial and Extra

Territorial Jurisdiction
Principally, a country can only enact laws which are applicable within its
territorial boundaries. However, there are matters for which a country
may enact laws with extraterritorial application. Those matters include
cross-border crimes such as money laundering, trafficking in persons and
cyber crimes. It is the duty of a person engaged in legislative process to
ascertain the applicability of the intended legislation in terms of
jurisdiction and to foresee possible challenges of implementation and their
solution, in the case of extra territorial jurisdiction.

2.8 Implementation of Policy

National goals and targets are stipulated in various documents including
policies. In most cases, legislative process is necessary in giving effect to
policies. Hence, in that process, it is important to comprehensively
consider national policies in order to realise harmony between policies
and legislation.

2.9 Public Participation

Public participation in the legislative process is a constitutional
requirement envisaged under Articles 18 and 21 of the Constitution which
provide for freedom of expression and freedom of participating in public
affairs. Cognisant of this fact, involvement of the public in the legislative
process is vital to improving the contents of the legislation.
8
 PART THREE

POLICY MAKING PROCESS

3.0 INTRODUCTION
As indicated in the previous Part, policies are the most fundamental
sources of law in Tanzania which need to be observed in legislative
drafting. Therefore, this Part intends to provide a general overview of the
policy making process in Mainland Tanzania. In this Part, the main theme
will be on the meaning of policy, rationale for policy development, policy
formulation process and policy approvals.

3.1 Meaning of a Policy

In principle, a Policy is a statement of guiding principles and goals for the
purpose of addressing a certain issue with a view to improving the welfare
of the people. It is defined by the Cambridge International Dictionary of
English (first published 1995) as “a set of ideas or a plan of what to do, in
particular situations, that has been agreed officially by a group of people,
a business organisation, a government or a political party.”

In the legal context, a policy is defined by the Black’s Law Dictionary as

“the general principles by which a government is guided in its
management of public affairs.” Generally, policies tend to be a
cornerstone on which legislation are developed for giving effect to policy
objectives.

3.2 Basis of Policy Formulation

Article 53(2) of the Constitution of the United Republic places the role of
policy formulation on the Government of the United Republic. In view of
this, every instrument establishing any sectoral ministry stipulates making
of policies as one of the duties of such ministry.

9
3.3 Rationale for Policy Development
Policy formulation may be triggered by a number of factors. These
include:
(a) Societal changes or socio-economic changes
Every society is dynamic in nature. The dynamism precipitates societal
changes which require policies to cope with the new structures,
developments or challenges.

(b) Regime change

Normally, when a political party enters into power, it brings its own
agenda, mission and vision through its election manifesto. To give
effect to the same, policies are formulated or existing policies are
amended.

(c)Conditions from donors

Donors whether corporate or nations play a key role in influencing
development of policies in recipient countries. There are instances in
which aids and grants are given on the conditions that certain policies
be formulated or amended by recipient countries.

(d) International agreements

Some international agreements necessitate formulation or amendment
of policies for a state party to international agreement to be in
conformity to the agreement.

(e) Court orders:

Courts of record, through their orders, may influence formulation of
new policy or amendment of an existing policy.

3.4 Policy Formulation Process

Formulation of policy in Mainland Tanzania is mainly coordinated at the
Ministerial level. In performing this task, ministries are expected to

10
identify problems that require policy intervention to be addressed. The
policy formulation process is summarised as follows:
(a) Identification of problems in the sector
The sectoral ministry is responsible for identification of problems that
require policy intervention. The identification may be caused by a
situational analysis conducted by the ministry or influenced by any
government decision or any other cause including those mentioned in
paragraph 3.3.

(b) Review of the performance and preparation of the draft

framework
In the policy making process, a sectoral ministry ought, through its
department responsible for policy and planning, to review its
performance in the sector. During this stage, the team is expected to
review the ministry’s strengths, weaknesses, opportunities and
challenges in overseeing the sector. Having reviewed the performance
of the ministry, the team is expected to prepare a draft policy
framework and statements with a view to ameliorating the situation.

(c)Involvement of stakeholders
Policy formulation process in Mainland Tanzania is participatory in
nature. It is a constitutional right as enshrined under Articles 18 and 21
of the Constitution that every person has a right to opinion and
participate in the activities relating to the affairs of the nation. That
being the case, the sectoral ministry, through its department responsible
for policy and planning, is required to solicit views from both public
and private sector stakeholders. Solicitation is effected through
meetings and correspondences.

(d) Finalisation and adoption of a draft policy

The team of experts appointed by the sectoral ministry to review the
ministry’s performance in the sector is responsible for finalisation of
the draft policy. During this process, the department responsible for
11
 policy and planning takes into consideration views and other
representations from stakeholders. After finalising the draft, the team
is required to submit the draft policy to the ministry for adoption.

3.5 Policy Approvals

Sanction of the Cabinet is a prerequisite for a policy to be rolled out,
hence, once the draft policy is adopted by the sectoral ministry, the same
is submitted to the Cabinet Secretariat for its scrutiny in accordance with
the Guidelines on Drafting Cabinet Papers, 2010 (2014 Edition).

Upon being scrutinised by the Cabinet Secretariat, the draft policy is

submitted to the Inter Ministerial Technical Committee (IMTC) for its
scrutinization. Once, the IMTC is satisfied that proper analysis is made,
different approaches have been identified and discussed, and that the
policy document provides the best option available to redress a situation,
it endorses the policy document for submission to the Cabinet.

When the Cabinet is satisfied as to the perfection of the draft policy, it

approves it and from that point the policy is due to be rolled out and
disseminated to the public by the sectoral ministry for implementation.

3.6 Contents of a Policy

As a matter of principle, a policy contains the following:
(a)situational analysis and problem identification;
(b) policy objectives, mission and vision;
(c)policy statements;
(d) implementation arrangement;
(e)policy strategies; and
(f) monitoring and evaluation framework.

12
Fig. 1 Policy Formulation Process

SECTORAL MINISTRY

(Formulation of ideas, involvement

of stakeholders and preparation of
draft policy)

PUBLIC STAKEHOLDERS PRIVATE STAKEHOLDERS

CABINET SECRETARIAT

(Scrutinisation of draft
policy)

IMTC

(Scrutinisation of draft
policy

CABINET

(Approval of draft policy)

13
3.7 Role of Parliamentary Draftsman in the Policy Making Process
In the process of policy making, an opinion or advice of a Parliamentary
Draftsman may be required regarding legislative issues involved in the
proposed policy. In performing the advisory task, the Parliamentary
Draftsman shall study or examine the contents of the policy relating to
drafting of legislation and advise the policy maker on the following:
(a)whether the intended legislation conforms to the Constitution;
(b) whether the legislation is in harmony with other existing laws or
policies;
(c)whether the legislation satisfies the need or requirement of the Policy;
(d) whether the subject matter for the intended legislation is not
provided for in other laws;
(e)whether the subject matter for the intended legislation can be addressed
or achieved through administrative measures; and
(f) if the intended legislation proposes to repeal or amend an existing
legislation, whether the consequential matters shall be properly taken
care of.

The Parliamentary Draftsman dealing with provision of advice on the

policies must ensure that the opinion is given in writing and submitted to
the Chief Parliamentary Draftsman for approval.

14
 PART FOUR
TRANSLATING POLICY INTO LEGISLATION

4.0 INTRODUCTION
Policy and legislation in most cases are inseparable as the former informs
the latter. Although this position is considered to be the best practice,
invariably this has not been the case as some legislations have been
enacted before the policy being formulated.

A legislation that emanates from a policy is likely to be a comprehensive

one as compared to the other legislation. The latter legislation is prone to
difficulties in relation to its implementation which may necessitate
amendments at its infant stage. Hence, it is ideal for a legislation to be
preceded by a policy framework so as to minimise incongruities which
can be taken care of during policy formulation.

Although it is generally accepted that a policy needs legislative measures

to make it effective, not all policies need such measures as some policies
are self-executing.

The approval of policy by the Government, is normally followed by

publication and implementation of the policy. There are matters in policy
which can be implemented directly without necessitating legislation and
there are matters which need legislative measures in order for their
implementation. For matters requiring a legislative enactment, the
ministry prepares a Cabinet Paper (Policy Paper) for approval by the
Government. Just like a policy, a Cabinet Paper also calls for the
Government and Stakeholders to provide their views on the intended
legislation. At this stage, a Parliamentary Draftsman is involved in the
provision of advice on the matters to be legislated on.

15
4.1 Factors to be considered before translating policy into legislation
One of the major roles of a Parliamentary Draftsman is to translate policy
into legislation. This entails use of legal principles to give effect to the
policy. In view of this, there are factors which a Parliamentary Draftsman
should consider before embarking on the exercise of translating policy
into legislation. These are:
(a) Whether a policy needs legislation or is self-executing or needs
non legislative measures to be effective
A Parliamentary Draftsman should be capable of comprehending a
policy so as to determine whether or not the policy needs legislation or
whether it is self-executing or needs non legislative measures and
advise accordingly. Where the policy needs legislative measures,
ascertainment of whether or not a new legislation is needed or whether
an existing legislation is to be amended or the making of regulations
will suffice to implement the policy is inevitable. This duty when
exercised diligently prevents the country from having unnecessary
laws and saves costs.

(b) Whether the policy objectives and purposes of legislation are

clearly defined
A clear understanding of a policy’s objectives when translating it into
legislation is instrumental in determining purpose of the intended
legislation. In case of any failure on the part of the Parliamentary
Draftsman regarding the policy objective, likelihood of misnomer
between the policy and the legislation is imminent. In that case,
consultations between the Parliamentary Draftsman and policy makers
is inevitable.

(c)Whether legislative measures are cost effective

Cost analysis should be conducted with a view to establish whether
legislative measures to be taken as part of giving effect to a policy are
cost effective. A Parliamentary Draftsman should engage the ministry
16
 responsible for the policy in determining cost effectiveness of the
intended legislation bearing in mind that there are legislations more
expensive to implement compared to others and non-legislative means
may be suitable for implementing the policy.

(d) Whether existing rights and obligations are modified by the

policy
An assessment of the policy with a view to determine whether or not
existing rights and obligations are modified by the policy should be
conducted. If it is observed that the policy modifies existing rights and
obligations, a Parliamentary Draftsman should consider drafting of a
legislation to give effect to those modified rights and obligations.

(e)Whether the policy has permanency

Permanence of a policy is an element which a Parliamentary Draftsman
ought to consider when advising on whether the policy needs
enactment of a legislation in order to make it effective. Generally, it is
not prudent to enact a law basing on a policy which deals with
temporary issues.

4.2 Role of the Ministry

The ministry responsible for a formulated policy has a role to play in the
development of a legislation that springs from the policy. Responsible
officers of the ministry should be comprehensively conversant with
details of the policy so as to explain to the Parliamentary Draftsman
pertinent policy issues in respect of the intended legislation. Further, they
are supposed to attend and explain issues in various approval meetings.
During the development stage, the ministry should understand what the
proposed legislation is intended to achieve in respect of the policy.

17
 PART FIVE
THE LEGISLATIVE PROCESS

5.0 INTRODUCTION
Article 97(1) of the Constitution of the United Republic vests legislative
powers in the Parliament. Such powers are exercised by the National
Assembly and the President of the United Republic. The National
Assembly considers and passes Bills submitted by the Government or
Members of Parliament or a Parliamentary Committee by way of a private
Bill. Upon being passed by the National Assembly, bills must be assented
to by the President to become laws.

5.1 Legislative Process

The legislative process is summarised as follows:
(a)Preparation of Cabinet Papers
The legislative process is initiated through a Cabinet Paper prepared by
the Ministry after consultation with the Attorney General and other
stakeholders who are likely to be affected by enactment of the intended
legislation. A draft Cabinet Paper is prepared in accordance with the
Guidelines on Drafting Cabinet Papers, 2010 (2014 Edition).
Generally, the Cabinet Paper, apart from being informed by views from
stakeholders; is informed by policy document.

(b) Contents of a Cabinet Paper

A Cabinet Paper shall contain the following-
(i) the background of the subject matter in question;
(ii) the situational analysis regarding the current circumstances and
changes or development on the subject matter;
(iii) the details of the problem or situation which has necessitated the
intended legislation;
(iv) efforts, if any, made to address the situation;
(v) the purpose or objective of the intended legislation;
(vi) the scope or coverage of the legislation;
18
 (vii) the significance of the legislation in the implementation of the
policy;
(viii) advantages and disadvantages of having the intended legislation
in place;
(ix) financial and other implications of the legislation;
(x) significant issues in the contents of the intended legislation;
(xi) experience from other jurisdictions;
(xii) stakeholders involvement;
(xiii) tentative legislative schedule;
(xiv) timeframe and urgency for implementation of the intended
legislation; and
(xv) request to the Government for preparation of the proposed
legislation.

(c)Role of Parliamentary Draftsman in the preparation of a Cabinet

Paper
According to the Guidelines on Preparation of Cabinet Papers, before
the ministry responsible submit a draft Cabinet Paper to Cabinet
Secretariat the ministry is required to obtain written opinion from the
Attorney General. Normally, such opinion is provided by a
Parliamentary Draftsman. In providing such opinion, the Attorney
General has to take into account the following:
(i) whether the proposed legislation is in line with policy, if any;
(ii) the kind of legislation to be preferred, whether to enact a new
legislation, to repeal and re enact a new legislation or to amend
an existing legislation;
(iii) whether the challenge for which a legislation is proposed can be
addressed through other means such as subsidiary legislation or
administratively;
(iv) application or scope of the intended legislation;
(v) impact of the legislation on existing laws; and
(vi) consequential matters, if any.

19
(d) Submission of a Cabinet Paper to the Cabinet Secretariat
Upon completion of the preparations of the Cabinet Paper, the
sponsoring ministry submits it to the Cabinet Secretariat for scrutiny.
Usually, the Cabinet Paper is accompanied by the concept note,
stakeholder’s comments, extract of key matters to be included in the
proposed legislation, areas of amendment (in case of amending
legislation) and any other documents which may be relevant in the
particular matter. In case of repeal and re-enactment of a new
legislation, the extract of key matters must include both new and areas
not affected by the proposed legislation.

The Cabinet Secretariat, upon scrutiny and if satisfied with the

contents, approves the same to be submitted to the Inter-Ministerial
Technical Committee (IMTC) for technical and collective advise. The
Cabinet Secretariat, if not satisfied with the contents of the Cabinet
Paper, returns the same to the sponsoring ministry together with
comments.

(e)Submission of Cabinet Paper to the Inter-Ministerial Technical

Committee (IMTC)
The IMTC comprises of all Permanent Secretaries and the Deputy
Attorney General under the chairmanship of the Chief Secretary. The
IMTC considers the draft Cabinet Paper and provides technical input
and collective advice. If it is satisfied as to the contents of the draft
Cabinet Paper, the IMTC approves submission of the Cabinet Paper
together with its recommendations to the Cabinet. In the contrary, the
IMTC returns the Cabinet Paper to the sponsoring ministry together
with comments.

(f) Submission of the Cabinet Paper to the Cabinet

Upon receipt of the draft Cabinet Paper and other documents attached
thereto, and being satisfied with the recommendations of the Cabinet
Paper, the Cabinet shall advise the President on whether or not to
20
 accept the recommendations. In case of acceptance of the
recommendations by the President, the Cabinet issues drafting
instructions to the sponsoring ministry and the Attorney General.
Where the acceptance is withheld, the Cabinet Paper is returned to the
sponsoring ministry together with comments or instructions.

(g) Drafting instructions

Drafting instructions may consist of the following:
(i) name of the proposed legislation;
(ii) scope of the application;
(iii) institutional framework;
(iv) substantive provisions relating to the subject matter of the
proposed legislation;
(v) financial provisions;
(vi) intended application of the proposed legislation, whether
retroactive, retrospective, territorial or extraterritorial;
(vii) laws which may be affected by the coming into operation of the
proposed legislation; and
(viii) if the intended legislation has impact on the activities of another
ministry or extends to Tanzania Zanzibar, a statement indicating
the extent to which that ministry or the other part of the Union
has been consulted and possible solutions to any concerns raised.

In addition to the information contained in the drafting instructions, a

Parliamentary Draftsman may require any other information from the
responsible Ministry for purposes of getting a clear grasp of the
mischief intended to be remedied.

It should be noted that in certain cases, drafting instructions may not

be exhaustive to cover the scope of the intended legislation, as the same
may be issued in general or in a single paragraph. Under such a
situation, the Parliamentary Draftsman is required to be more inventive
and to conduct thorough research on any other existing laws from other
21
 jurisdictions (conduct benchmarking) including consultations with
other experienced personnel to ensure efficient drafting on the matter.

(h) Preparation of a draft Bill

The sponsoring ministry in collaboration with the Office of the
Attorney General through the Chief Parliamentary Draftsman prepares
a draft Bill in line with the drafting instructions from the Cabinet.

In the course of drafting, a Parliamentary Draftsman must prepare the

summary of objects and reasons stating the rationale for each section
or part of the Bill and the Covering Note (Hati ya Kamati) for
submission to the Cabinet Committee on Constitutional, Legal and
Parliamentary Affairs (known as Kamati ya Baraza la Mawaziri ya
Katiba, Sheria na Bunge, in its acronym “KB”) for approval prior to its
publication.

It has been a common practise in the Office of the Attorney General

that where a proposed Bill is complex in nature, a technical committee
may be convened by the Attorney General to scrutinize the Bill prior
to its submission to the KB.

(i) Cabinet Committee on Constitutional, Legal and Parliamentary

Affairs (KB)
In discussing the Draft Bill, the KB considers whether:
(i) the Draft Bill is in compliance with the directives or decisions of
the Cabinet;
(ii) the reasons or objectives behind each provision of the proposed
Bill are provided;
(iii) the substantive issues of the Bill are properly addressed;
(iv) the provisions of the draft Bill clearly convey the intended
meaning and purpose;
(v) the Draft Bill as a whole address the problem or situation for
which it was proposed;
22
 (vi) the Draft Bill creates or causes another problematic situation;
(vii) there are matters which have been omitted or forgotten in the
course of drafting;
(viii) there are other important or relevant matters which need to be
included in the Draft Bill;
(ix) drafting principles and style are complied with;
(x) there are any implications financially, politically or socially or
any other related matters;
(xi) the Bill is urgent in order to determine whether it should be tabled
before the Parliament under a certificate of urgency or under the
normal procedure; and
(xii) the time frame for publication of the Bill will be complied with.

If the KB is satisfied with the compliance with the drafting instructions,

after consideration of the contents of the draft Bill, the KB shall direct the
Chief Parliamentary Draftsman to proceed with publication of the Bill for
onward submission to the National Assembly.

(j) Publication of a Bill

Upon the draft Bill being sanctioned by the KB, the Office of the
Attorney General shall cause the Bill to be published n the Government
Gazette. The publication of the Bill is, under normal circumstances,
required to be effected in not less than twenty one days before the Bill
being tabled before the National Assembly for First Reading.
However, the Bill may be published and tabled before the National
Assembly for the First Reading without due regard to the twenty one
day principle under a certificate of urgency issued by the President and
accepted by the National Assembly.

(k) First Reading

The First Reading signifies tabling of a Bill for the first time before the
National Assembly for its consideration. At this stage, the Clerk to the
National Assembly reads the long title of the Bill before the National
23
 Assembly. After First Reading, the Speaker refers the Bill to the
appropriate Parliamentary Standing Committee for consideration.

The Standing Committee shall consider the Bill and invite members of
public or stakeholders to give their comments on the Bill. At this stage,
the Parliamentary Draftsman shall, in consultation with the sponsoring
ministry, consider the views of the stakeholders before accommodating
the same in the Bill for the following reasons:
(i) certain comments or views given may be in contravention or
conflict with the Constitution or other existing laws of the United
Republic of Tanzania;
(ii) certain comments, if taken without caution, are capable of
defeating the purposes of Government for the intended
legislation;
(iii) certain comments such as those which are procedural in nature
may be properly accommodated in the subsidiary legislation;
(iv) certain views and comments can be handled administratively
through policies, education or advocacy; and
(v) other comments may not be applicable within the context of the
legislation in question.

(l) Preparation of Schedule of Amendments

The relevant Parliamentary Committee may propose amendments and
request the Attorney General or Minister responsible for the Bill to
consider the amendments in the Bill during the Second Reading.
Matters for consideration by the Parliamentary Draftsman in the
preparation of a schedule of amendment include:
(i) to ensure that the amendment suits the contents of the provisions
proposed for amended;
(ii) to consider implication of the amendment to other provisions of
the same Act or other laws;

24
 (iii) dealing with renumbering and renaming provisions where
needed; and
(iv) dealing with grammatical and other legislative drafting issues.

Upon completion of discussion and analysis of the Bill, the Chairman of

the relevant parliamentary Committee informs the Speaker of its
observations, findings and recommendations, who then directs that the
Bill be placed in the Order Paper for Second Reading.

(m) Re-publication of a Bill

Where the proposed amendments have affected most provisions of
the Bill, re-publication of the Bill may be preferred to make the Bill
reader friendly. Such re-publication only happens when there are
substantial amendments. During re-publication, the Parliamentary
Draftsman must ensure that the republished Bill bears a statement
showing that it is the same Bill which was initially printed for the
First Reading but is currently being re-published for the purpose of
Second Reading. The statement on the re-published Bill reads:

“This Bill to be submitted to the National Assembly was

published as Bill Supplement No. 9 of 3rd June 2016 and was
First Read in the National Assembly on 10th day of June 2016.
This Bill is now re-published for purposes of Second and Third
Reading.”

(n) Second Reading

The Minister sponsoring the Bill, the Attorney General or a Member of
Parliament (in the case of a Private Member’s Bill) moves a motion
that the Bill to be read for the second time and gives a detailed
explanation of its contents to the National Assembly before the
Members of Parliament start debating.

25
 The speech of the Minister, the Attorney General or a Member of
Parliament, as the case may be, is followed by a statement of the
Chairman of the parliamentary Committee which considered the Bill.
The statement outlines the views and recommendation of the
Committee regarding that Bill. In the case of a Bill submitted by the
Government, after such statement, the shadow Minister of the sector
for which the Bill relates will provide the views and recommendations
of the official camp of the minority members regarding the Bill. In the
case of a Private Member’s Bill, the representative of the Government
states views of the Government regarding the Bill. Thereafter, a general
debate regarding the merits or otherwise of the Bill by Members of
Parliament ensues.

(o) Private Member’s Schedule of Amendments

A Member of Parliament who has observations on the Bill may prepare
a schedule of amendment and submit the same to the Clerk of the
National Assembly in accordance with the Parliamentary Standing
Orders. The schedule of amendment shall be tabled before
commencement of parliamentary activities of the particular day and
discussed during the Second Reading of the Bill.

(p) Further Schedule of Amendment

Where in course of debate at the Second Reading of the Bill, an issue
arises which in the opinion of the Government or the Speaker, requires
consideration in the Bill, the Chief Parliamentary Draftsman shall
prepare a further schedule of amendments which shall be tabled before
the Parliament before the Parliament sits as the Committee of the
Whole House.

Whenever necessary the drafter in preparing Further Schedule of

amendments must take into account the First Schedule together with
the original provisions of the Bill to ensure harmony and legibility.

26
 Where a Member of Parliament is of the opinion that there are new
issues that have arisen necessitating the Bill to be returned to the
Committee that deliberated it, the Member may request the Speaker to
return the Bill to the Committee.

When the debate of the Parliament is over, the sponsoring Minister, the
Attorney General or the Member of Parliament, as the case may be,
shall wind up the debate with a closing speech in which he clarifies
issues raised during the debate. From that point, he moves a motion
requesting approval of the Bill by the National Assembly.

(q) Committee of the Whole House

Upon completion of the general debate during the Second Reading, the
National Assembly turns itself into a Committee of the Whole House
whereby the Speaker becomes the Chairman of the Committee. During
the proceedings of the Committee, for the purpose of seeking approval
of the National Assembly in respect of each clause of the Bill, the Clerk
to the National Assembly mentions every clause seriatim together with
any proposed amendments as reflected in the schedule of amendments.
After going through every clause, the National Assembly resumes and
the sponsoring minister, Attorney-General or a Member of Parliament,
as the case may be, informs the National Assembly that the Committee
has considered the Bill, clause by clause and approved the same with
or without amendments. After the National Assembly being informed,
the Bill is voted for by the National Assembly upon being so requested
by the Speaker.

(r) Third Reading and Passing of the Bill

The Third Reading entails reading of the long title of the Bill by the
Clerk of the National Assembly. This signifies that the National
Assembly has considered, deliberated and passed the Bill into law. At
this stage, the Speaker directs the Clerk of the National Assembly to

27
 prepare relevant copies of the Bill and submit them to the President for
assent.

(s) Revision of Passed Bill

Prior to publication of the Bill for assent by the President, revision of
the Bill is effected to accommodate all amendments appearing in the
Schedules and to delete the objects and reasons. The exercise is done
by the parliamentary officials in collaboration with officers from the
Legislative Drafting Division, and in practise a Parliamentary
Draftsman who drafted the Bill. At this stage, a Parliamentary
Draftsman needs to be vigilant to avoid insertion of any amendments
which were not initially passed by the National Assembly.

(t) Assent to Bills

Upon receipt of a Bill, the President may assent the Bill or withhold
assent. In the event the President withholds his assent, he is required to
conform to Article 97 of the Constitution.

(u) Publication and Commencement

It is a legal requirement for a Bill which has been assented to by the
President to be published in the Gazette as an Act of Parliament. An
Act which has been published shall come into operation on the date of
its publication or other date fixed by Minister responsible.

(v) Multiple commencements

Under normal circumstances the whole Act comes into operation on
the date to be appointed by the Minister responsible or on the date of
publication. However, in rare cases the Act can have different dates of
commencement in respect of certain provisions or parts.
Example:
“The provisions under Part one shall come into operation on
the 1st day of July, 2022 and the remaining parts shall come
28
 into operation on the date to be appointed by the Minister
through a Notice published in the Gazette.”

Different dates of commencement for different provisions of the same

Act always depend on the circumstances of preparation for
implementation of the Act. However, prior to making such
commencement provision, a Parliamentary Draftsman must consult the
responsible ministry which has the mandate to determine the
commencement date or dates for the legislation in question.

29
 PART SIX
AMENDMENT, REPEAL OF LEGISLATION AND RECTIFICATION
OF ERROR

6.0 INTRODUCTION
Legislation may be overtaken by time, change of circumstances, change
of policy, enactment of new legislation, advancement in technology and
other factors. In that case, amendment of legislation is necessary in
keeping it up to date. Further, loopholes observed in the legislation and
challenges in its the enforcement may also lead to its amendment. This
Part gives an account of considerations which a Parliamentary Draftsman
should take when amending legislation and a manner of effecting.

6.1 Considerations when Amending Legislation

Although amendment to legislation is usually carried out through a
separate legislative instrument, the amendment forms part and is read as
one with the amended legislation. To enable legislation to be read
coherently with its amendments, a Parliamentary Draftsman should take
several aspects into consideration. Generally, care should be taken not to
draft amendments that are inconsistent in language and style with the
legislation to be amended. For example, if the legislation refers to “issue
of permit” the amendment should as well use “issue” not “grant of
permit”. A Parliamentary Draftsman should assess the effect of the
amendment to existing legislation and seek to address such effect, for
instance cross-references in other sections or legislation.

Before drafting any amendment, a Parliamentary Draftsman should

consider the following:
(a)where the proposed amendments do not entail policy issues, the
Written Laws (Miscellaneous Amendments) Bill should be used to
effect such amendments;

30
 (b) where the proposed amendments are minor but extensive (not
including policy issues), a specific amendments Bill should be used
to effect those amendments; and
(c)where the proposed amendments contain policy issues, the
amendments should be effected after obtaining Cabinet approval,
through a specific Bill or a Written Laws (Miscellaneous
Amendments) Bill.

6.2 Forms of Amending Legislation

In drafting amendment of a legislation, a Parliamentary Draftsman may
employ either of the following forms-
(a) Textual amendment
In the textual amendment, the legislation and provisions intended to
be amended and the amendment to be effected are specifically
identified. For example, “The principal Act is amended in section
27 by deleting subsection (2)”. As much as a Parliamentary
Draftsman has to expressly identify what is to be amended in the
legislation. He should avoid the reference to lines when identifying
the location of the subject of amendment. For example, “The
principal Regulations are amended in regulation 5 by deleting the
words “ten thousand shillings” appearing in the third line and
substituting for them the words “one million shillings”. The
reference to lines may pose a risk of causing confusion in case of a
reprint or different format used in the text of the legislation.

(b) Non-textual amendment

In non-textual amendment, the statement is written to describe
generally how another legislation is to be amended. This form of
amendment is also referred to as “descriptive amendment”. For
example, a legislation stating that it removes reference to
“Tanganyika” in all Acts and in its place introduces reference to the
31
 “United Republic of Tanzania”. In such amendment the
Parliamentary Draftsman needs to be careful on the grammatical
issues involved.

Where a provision has more than two amendments a Parliamentary

Draftsman should consider repealing the same and substituting it
with a new provision.

6.3 Drafting of an Amending Legislation

(a) Title
The title of an amending legislation should correctly state the name of
the legislation intended to be amended. As with a new enactment, an
amending legislation must have a long title and a short title. The long
title should be coined in general words so as to cover the range of
amendments proposed to be made in a legislation. The short title should
contain the name of the Act to be amended or description of the subject
matter in the case of amendment of several laws, and the word
“Amendment” in brackets. For example:
(i) for amendment of a single legislation – The Mining
(Amendment) Regulations;
(ii) for multiple laws with related subject – The Agricultural and
Crop Laws (Amendment) Act;
(iii) for minor amendments in multiple laws with unrelated subject –
The Written Laws (Miscellaneous Amendments) Act;
(iv) for amendments during the preparation of finance Bill, the short
title does not include the word “Amendment” rather it reads “The
Finance Act”.

(b) Contents of the Amendment

The amendment legislation usually consists of the-
(i) repeal of a provision, part or schedule;
(ii) repeal and replacement of a provision, part or schedule;
(iii) deletion of a word or phrase;

32
 (iv) the deletion of a word or phrase and substitution of another;
(v) insertion of a word or phrase in the middle of a provision;
(vi) addition of a provision, part or schedule; and
(vii) addition of a word or phrase at the end of a provision.

(c) Reference to the principal legislation

When drafting amendments, the legislation intended to be amended is
referred to as the principal legislation. In the case of an Act, the
reference would read “principal Act” and in the case of Regulations,
the reference would read “principal Regulations”. The same format
applies when amending other legislative instruments such as Rules,
Notices, Orders, Declarations etc. The use of the “principal Act”
simplifies the reference to the legislation being amended as a
Parliamentary Draftsman does not have to repeat the name of the
legislation in each provision of the amendment. The practice in
Tanzania is to cite the full name of the legislation and introduce the
reference to that legislation as the “principal legislation” in the first or
one of the earliest provisions of the amending legislation. For example-
(i) for amendment of a single legislation-“This Act shall be cited as
the Advocates (Amendment) Act and shall be read as one with
the Advocates Act, hereinafter referred to as the “principal Act”;
(ii) for minor amendments in multiple laws through the Written Laws
(Miscellaneous Amendments) Act, the amendment of each law is
contained in a separate Part. Each Part carries a construction
provision which shall be read as follows- “This Part shall be read
as one with the (insert the name of the Act to be amended),
hereinafter referred to as the “principal Act”.

(d) Numbering of Provisions

Best practice demands that where the amending legislation repeals,
deletes or adds a provision, the initial numbering in the legislation
should not be disturbed by the amending legislation. Renumbering of
provisions during amendment may cause misunderstandings,
33
 particularly cross-references in other provisions or schedules in the
legislation to be amended or in another legislation.

Where a new provision is added, it should be assigned a number of the

provision preceding it together with an alphabetical letter in
chronological order. For example, if a new section is intended to be
added after section 10, the appropriate number of such section should
be 10A. The sequential re-numbering of provisions in legislation that
has been amended should be done during the revision of the Statute
Book. That way, a Parliamentary Draftsman engaged in revision of
laws is in a position to correct cross-references wherever the affected
provisions are referred.

Where a new subsection or paragraph is inserted in between other

subsections or subparagraphs, it is recommended to renumber or
rename the existing subsections or subparagraphs respectively.

(e) Transitional Provisions

Whenever there is a substantive amendment or repeal of an Act, the
Parliamentary Draftsman shall ensure transitional provisions and
savings are in place to provide for the fate of existed matters affected
by the amendments or repeal of the Act. Such matters include rights of
individuals, employee, assets and liabilities etc.

6.4 Repeal or amendment of an Act of Parliament

(a)There has to be justification for repeal or amendment of an Act of
Parliament which may include whether:
(i) the Act is out dated and can no longer stand the taste of time;
(ii) there are other Acts which can provide for the same issues; and
(iii) the Act is just redundant due to overriding changes etc.

(b) Matters for consideration before repeal or amendment includes:

(i) certain rights of individuals;
34
 (ii) pending issues in courts of law;
(iii) contract entered or concluded in terms of the repealed Act;
(iv) fate of bodies and individuals or employees under the repealed
Act;
(v) transfer of properties, assets and liabilities; and
(vi) such other consequential matters as may be necessary.

6.5 Rectification of Printing Errors

Where after publication of an Act of Parliament it is found that there are
some typographical or printing errors, the Chief Parliamentary Draftsman
shall exercise his powers under section 26(3) of the Interpretation of Laws
Act, Cap. 1 to rectify the errors. It should be noted that the powers to
rectify the printing errors conferred under the Act, do not in any way
empower the Chief Parliamentary Draftsman to amend or alter any
provision of the rectified Act. In relation to interpretation of printing
errors, it shall be the duty of the Parliamentary Draftsman to advise the
Chief Parliamentary Draftsman on the matter for his action.

Where the typographical or printing errors is in the revised edition or in

any annual supplement, the Chief Parliamentary Draftsman shall exercise
his powers under section 13 of the Law Revision Act, Cap. 4 to rectify
such errors.

35
 PART SEVEN
SKILLS OF DRAFTING LEGISLATION

7.0 INTRODUCTION
Having discussed the legislative process in Part Five, this Part focuses on
skills that are necessary in legislative drafting. These include
comprehensive understanding of stages of drafting legislation,
preparation of a legislative plan, features of a Bill and segmentation of
text in legislation.

7.1 Stages of Drafting Legislation

A Parliamentary Draftsman, having fully understood the drafting
instructions, is required to-
(a)conduct a thorough study of instructions issued by the Government
with the view to understanding the instructions;
(b) identify available precedents if any, in the existing legislation
including standard provisions, as in certain cases there is no need to
invent the wheel although it is still important to be creative in
designing and composing a draft Bill;
(c)seek clarification from the sponsoring ministry on any issue that will
assist in drafting of intended legislation;
(d) make a draft that reflects the policy objectives of the sponsoring
ministry;
(e)conduct comparative analysis to ensure that the draft has taken into
account international and regional best practices;
(f) devise solutions for any problems that may arise out of the proposal;
(g) ascertain whether the draft conforms and adheres to the
Constitution;
(h) consider consequential matters and determine whether the same may
need amendment;
(i) consider and observe the time available for working on the proposed
legislation as prescribed in the Standing Orders of the Parliament;
(j) identify matters on procedure to be kept in the regulations;
36
 (k) identify matters to be kept in the schedules; and
(l) identify any precedent on the subject matter, if any, to be considered
during legislative drafting; and
(m) consider or visualise implementation of the legislation to be
drafted.

7.2 Preparation of a Legislative Plan or Scheme

A Parliamentary Draftsman is required, before embarking on the task of
drafting legislation, to develop a legislative plan in line with the drafting
instructions. A legislative plan provides the basic outline and logical
sequence of the legislation. It gives a lay out and possible content of the
proposed legislation. It includes-
(a)objects of the required legislation;
(b) proposed title which is required to capture the overall objectives of
the proposed legislation;
(c)substantive issues to be covered by the legislation;
(d) impact of the proposed legislation with regard to-
(i) whether the proposed legislation abides to Constitution;
(ii) whether the proposed legislation has any effect on the existing
law or vice versa; and
(iii) whether the required standards of the legislation, such as
retrospective or retroactive application of the proposed
legislation are applicable.

Basically, legislative plan or scheme is nothing but arrangement of

sections of the intended legislation which eventually forms the marginal
notes.

7.3 Salient Features of a Bill

In practice, a Bill commonly includes the following features:
(a) Preliminary Matters
(i) Arrangement of sections;
(ii) Long title;

37
 (iii) Preamble; and
(iv) Enacting clause.

(b) Preliminary Provisions

(i) Short title;
(ii) Commencement;
(iii) Application or scope; and
(iv) Interpretation.

(c) Principal or operational provisions

(i) Administrative provisions;
(ii) Substantive provisions; and
(iii) Financial provisions.

(d) Miscellaneous provisions or General provisions

(i) Offences and provisions ancillary to offences such as time limit
for prosecution, continuing offences, offences by legal person
and vicarious liability; and
(ii) powers to make subsidiary legislation etc.

(a)Final provisions
(i) Repeals and consequential amendments; and
(ii) Savings and transitional provisions.

(b) Schedules
The Schedule should contain the following:
(i) Diagram, maps;
(ii) Forms;
(iii) Set of rules; and
(iv) Tables etc.

7.4 Preliminary Matters

(a) Arrangement of Sections, Legislative Scheme or Table of Contents
38
 A Bill is arranged in Parts and sections which are listed in a specific
sequence before the main body of the Bill. Although these do not form
part of the Bill and are not subject to debate in the Parliament, it is
important to ensure that each clause in a Bill corresponds to the section
title that appears in the arrangement of sections page.

(b) Long Title

The long title describes the main or basic contents of the Bill by
explaining its scope, general purpose and intention. The long title is
written in a general way to reflect the contents of the Bill. For example:
(i) “A Bill for an Act to impose and alter certain taxes, duties, levies
and fees and to amend certain written laws relating to the
collection and management of public revenues”
(ii) “A Bill for an Act to amend certain written laws” or
(iii) “A Bill for an Act to provide for conduct relating to domestic
arbitration, international arbitration and enforcement of foreign
arbitral awards, repeal of the Arbitration Act and to provide for
related matters.”

(c)Preamble
Preambles are introductory words explaining the rationale behind the
legislation and provide the spirit and principles of the law. Not all Bills
contain preambles as the same are reserved for exceptional cases where
it is necessary to explain the context for better understanding of the
legislation. A preamble is normally used:
(i) where the subject matter of the legislation is of constitutional or
international importance;
(ii) where the purpose of the legislation is to ratify or approve an
agreement entered into by the Government;
(iii) where the legislation is intended to provide for exceptional
circumstances of such complexity that a preamble is necessary
for better understanding of the legislation;

39
 (iv) where there are prerequisite conditions or procedures to be
observed prior to enactment of the legislation which require an
explanatory preamble.

A Parliamentary Draftsman is therefore required to consider the

background and nature of the intended legislation to ensure whether there
is need for a preamble. When a preamble is used in a Bill, such Bill will
not contain a long title.

(d) Enacting Clause or Enacting Formula

This is a statement in active voice recognising the Parliament as a
legislative authority which enacted the legislation. It usually reads
“Enacted by Parliament of the United Republic of Tanzania.”

7.5 Preliminary Provisions

(a) Short Title
The short title is a short name of the legislation which is normally cited
with the year in which the legislation was enacted. The citation of the
year makes a difference from one Act to another. For example “The
Legal Aid Act, 2016”. The year appearing in the title of the Act is the
year in which the Act is passed by Parliament. The short title chosen
for a Bill should be concise but as informative as possible.

(b) Commencement Provisions

Commencement provisions specify when the legislation becomes
operational. According to sections 14 and 37 of the Interpretation of
Laws Act (Cap. 1), an Act or subsidiary legislation, as the case may be,
comes into operation on the date of publication in the Gazette or if
another date is specified, on that date. Some other Acts provide, in the
short title, that they shall come into operation on a certain date to be
fixed by notice. This position is as per section 16 of the Interpretation
of Laws Act.

40
 (c)Application or Scope
The application provision serves the purpose of providing the extent to
which the legislation is intended to apply. It is basically applied to
remove uncertainties, especially on which persons, circumstances or
geographical area the Act applies.

(d) Interpretation
The interpretation provision assigns meaning to words, terms or
expressions used throughout a Bill. A definition should be self-
sufficient unless the words, terms or expressions that are used in such
legislation have the same meaning to words, terms or expressions that
have been defined in another legislation which has an overriding effect
to the instant legislation. Further, one word, term or expression should
not be defined to have different meanings in different provisions of the
same legislation. The interpretation clause should not carry substantive
provisions of the legislation.

A word or expression that is not used in an enactment should not be

defined.
. A Parliamentary Draftsman should note that in certain situations the
definition of terms may be provided for in a specific provision or part
of the legislation. Such definitions are meant to be construed within the
context of the particular provision or part under which they are
provided or defined.

Example:
“For the purpose of this section, “Director” means................; or
For the purpose of this Part, “Director” means....................... ”

7.6 Principal or Operational Provisions

(a) Administrative Provisions
Administrative provisions give information on organisational matters
such as establishment of statutory bodies, corporate status and related
41
 matters. They also provide for powers, functions, duties and limitations
of established bodies. They further provide for the qualifications of
people to serve in the established bodies and procedures for their
appointment.

(b) Substantive or Operational Provisions

Substantive provisions provide for matters that are the subject matter
of the legislation. These may include regulation of a certain sector or
profession and procedural matters relating to it.

(c)Financial Provisions
Financial provisions provide for sources of funds available to the body
established in the legislation for effective delivery of its functions.
They also provide for investment and accounting provisions, accounts
and audit, preparation of financial and performance reports and
procedure for laying financial reports before the Parliament.

7.7 Miscellaneous or General Provisions

Miscellaneous or general provisions provide for matters arising out of the
main objects of the legislation. They provide for provisions relating to
offences and penalties, powers to make subsidiary legislation, imposition
of fees, appeals or other information regarding the enforcement of the law.

7.8 Final Provisions

(a) Repeals and consequential amendments
It is common for an Act to repeal or amend an existing Act. In the case
of repealing another Act, a Bill should clearly contain a provision to
that effect. When the intention of a Bill necessitates amendments to an
existing Act, such amendments should be effected through a Bill and
they will be recognised as consequential amendments.

(b) Savings and transitional provisions

42
 Savings provisions intend to preserve existing rights, obligations,
decisions, subsidiary legislation and other acts or things that have been
made under the latter legislation prior to enactment of the former that
would extinguish after operation of a new legislation. Transitional
provisions explain the manner and time frame within which existing
situations should be aligned with the new legislation.

7.9 Schedules
Schedules, where provided for in legislation, are placed at the end of
legislation. Schedules are used to provide for minor or technical
provisions that may be too detailed to be included in the main body of the
legislation. These include forms, fees, list of items, texts of international
conventions or agreements, codes of conduct and procedural matters of a
body established by the legislation.

Schedules must have headings and where appropriate, subheadings to

guide the contents and must bear reference to the section of the legislation
under which they are made as shown below-
“___________
SCHEDULE
___________
(Made under section 7(1)(a))
PROCEDURES FOR THE BOARD”

7.10 Segmentation of Legislation

Divisions depend on the length of the Act and subject matter.
(a)Chapters, Parts, Divisions and Subdivisions
Parts, divisions and subdivisions are used to group provisions with
related contents. Headings to parts are written in a capitalised form
while headings of divisions and subdivisions are written in a sentence
form with italics. The headings of parts, divisions and subdivisions are
not part of the legislation:

43
(b) Provisions
(i) In the case of a principal legislation, provisions are divided into
sections. Sections can be divided into subsections, paragraphs
and subparagraphs and sometimes sub-subparagraphs.
(ii) In the case of subsidiary legislation such as-
(aa) Regulations, the provisions are divided into a regulation, sub
regulation, paragraph and subparagraph;
(bb) Rules, the provisions are divided into a rule, sub rule,
paragraph and subparagraph; and
(cc) Orders, Notices, Declarations and Proclamations, the
provisions are divided into a paragraph and subparagraph.

That being the case, a Parliamentary Draftsman should segment a

provision with the view to making it comprehensible and avoid over
segmenting which may cause confusion to a reader. If a provision has too
many sub-sets, a drafter should consider converting it into two or more
stand-alone provisions. Below is an example of over segmentation-
Marginal 1.-(1) First provision
note (2) Second provision-
(a)an element of the second provision;
(b) a second element of the second
provision;
(c)a third element of the second provision;
and
(d) a fourth element of the second
provision-
(i) sub-element of the fourth element
of the second provision; or
(ii) second sub-element of the fourth
element of the second provision;
(A) first element within second
sub-element of fourth

44
 element of second provision;
and
(B) second element within
second sub-element of
fourth element of second
provision.
Sections, regulations and rules are identified by Arabic numbers while
subsections, subregulations and subrules are identified by bracketed
Arabic numbers.

Paragraphs in relation to sections, subsections, regulations,

subregulations, rules and subrules are identified by bracketed alphabetical
letters. Subparagraphs in relation to subsections, regulations,
subregulations, rules and subrules are identified by bracketed Roman
numbers.

Paragraphs in relation to Orders, Notices, Declarations and Proclamations

are identified by Arabic numbers while subparagraphs in relation to
Orders, Notices, Declarations and Proclamations are identified by
bracketed Arabic numbers.

(c)Marginal notes
Marginal notes or side notes are explanations that guide a reader as to
the contents of the provision. They are placed on the left hand side of
the section, regulation, rule or paragraph. Although marginal notes may
not sometimes constitute complete grammatical sentences, they must
not contradict the content of the provisions to which they refer. They
must be brief and to the point and without unnecessary use of articles
such as “the”, “a’’ or “an”.

45
 PART EIGHT
LEGISLATIVE LANGUAGE

8.0 INTRODUCTION
Legislative language is the medium of communication used by a
Parliamentary Draftsman in his professional capacity to communicate the
legislator’s intention to the targeted user. Legislative drafting being a
technical subject uses the right language to effectuate the wishes of the
legislator. In order to ensure effective communication of that intention, a
Parliamentary Draftsman should observe drafting principles. These
include the use of plain language, words and expressions to be avoided,
paragraphing, sentence length, nominalisation, spelling, capitalisation,
formulation of legislative sentence, syntax and punctuation.

8.1 Use of Plain Language

Traditionally, legal jargons and long sentences were part of legislative
drafting hence causing difficulties so far as interpretation of laws is
concerned. In view of this, modern drafting entails observation of
principles of plain language drafting. Hence, Parliamentary Draftsmen are
discouraged from using complex legal jargons and long sentences so as to
make the legislation less ambiguous and ensure that it is understood by
the ordinary reader. To achieve this goal, a Parliamentary Draftsman must
observe the following generally accepted principles:
(a) write simple, precise but understandable provisions;
(b) draft in the present tense rather than the future;
(c) organise materials logically, and chronologically where appropriate;
(d) use the active voice as opposed to the passive;
(e) avoid using double negatives in one sentence;
(f) use words consistently;
(g) don’t split verb forms unnecessarily;
(h) where possible avoid over segmentation of provisions;
(i) minimise cross-references;
(j) avoid jargon, legalese, archaic and unfamiliar words;
46
 (k) avoid non-English expressions or show them in italics;
(l) avoid unnecessary adjectives, adverbs and qualifiers; and
(m) avoid using informal words.

8.2 Words and expressions to be avoided

Caution should be exercised when using particular expressions in a
legislation. These include avoiding the use of registered trademarks,
terminologies that are no longer in use in Tanzanian context and terms
which are no longer regarded as suitable in the society or which infer guilt.
For example-
(a)use “mental disorder” or “mental illness” instead of “insanity”
(b) use “persons with disabilities” instead of “disabled persons”
(c)use “commits an offence” instead of “is guilty of an offence”

Below are some of words and expressions to be avoided and the

alternatives which may be used:
Avoid Use
aforesaid under
construed to mean means
during such time as or during the time while
that
during the course of or in the course of during
each and all each, or all
each and every each, or every
foregoing under
for the duration of during
Hereby or thereby or thereafter then
herein in this
in the event that where

8.3 Sentence Length

Long sentences which contain a lot of information may be difficult to
understand. Good drafting requires the maximum length of a sentence that
47
 is not segmented to be about fifty words or five lines of unbroken text.
Shorter sentences always make the text more readable. Where a legislative
sentence contains more than five lines of unbroken text, a Parliamentary
Draftsman should consider breaking down the sentence further. To avoid
lengthy sentences, it is recommended that one provision should contain
one distinct idea.

8.4 Nominalisation
Nominalisation is the tendency of deriving a noun from a verb. To attain
more direct and less wordy provisions, a Parliamentary Draftsman should
avoid nominalisations. Below are a few examples of nominalisation to be
avoided and the alternatives which could be used.
Avoid Use
to give account of to account for
to conduct a hearing to hear
to make or give a decision to decide
to take into consideration to consider
to conduct an investigation to investigate

8.5 Spelling
Different jurisdictions adopt different spellings for certain words that have
varying spellings. It is important to be consistent in the use of spelling
when drafting legislation. In Tanzanian context, the preferable choice in
spelling of words is the standard British English as opposed to American
English. This means that in words such as “organisation” or “minimise”
we use “s” instead of “z”. For words such as “to advise” we use “s” instead
of “c” but retain “c” when using the word as a noun.

8.6 Capitalization
Capital letters should be used sparingly. The use of capital letters should
be limited to circumstances where attention needs to be drawn to
something. Capital letters should not be used when referring to ordinary
nouns or generic terms, for instance in the interpretation provision if the
48
 word or term is used in lower case in the body of the legislation. Cases
where capital letters are used include the following:
(a)at the beginning of a legislative sentence;
(b) when making reference to a statutory body e.g the Energy and
Water Utilities Regulatory Authority;
(c)for proper names and titles e.g President, Director General;
(d) when referring to a specific legislative instrument e.g the
Mining Regulations, the Finance Act but not when referring to a
singular provision in the instrument;
(e)for names of places e.g Chamwino;
(f) for acronyms and abbreviations e.g EWURA, TLS.

8.7 Legislative Sentence

Legislative sentences are tools used in a legislation to express a command,
a prohibition or a state of affairs. A legislative sentence must contain the
legal subject, the legal action and the circumstances in which the
legislation shall apply. The legal subject is the person to whom the
legislation applies or to whom the legislation is addressed and the legal
action is the legislation which is to apply. A common form of legislative
sentence must state-
(a)how, the matter in which the legislation is to operate;
(b) what, nature of the legal action;
(c)when, the conditions under which the legislation operates;
(d) where, the circumstance in which the legislation will operate;
(e)who, the person to whom the legislation applies or to whom the
legislation is addressed; and
(f) why, the policy considerations of the legislation.

Examples of a Legislative sentence may include:

“(i) An aggrieved person may, within seven days, appeal to the
Minister;
(ii) A Parliamentary Draftsman may draft several Bills for
consideration; and
49
 A Police Officer shall arrest a suspect.”
(iii)
The Parliamentary Draftsman shall ensure that a number of ideas are not
expressed in one sentence.

8.8 Language and Syntax

Legislative language deals with how the message of the law is conveyed
to the targeted audience. On the other hand, syntax refers to the
arrangement of words and phrases to create legislative sentences. When
drafting a legislation, a Parliamentary Draftsman should consider the
following language and syntax rules:
(a)familiarity-use of short familiar words and phrases;
(b) brevity- short sentences which communicate only one
message;
(c)consistency-the same word should be used to express one meaning
within the legislation;
(d) spelling-the same word should be spelled similarly within the
legislation;
(e)standard language- use of formal words and phrases;
(f) clarity- use clear, simple and precise language to avoid ambiguity;
(g) harmony-the draft should correlate with other existing laws on
a similar subject matter; and
(h) logic-organisation of the proposed legislation should be in a
logical manner with the different subjects dealt with separately and
sequentially.

A Parliamentary Draftsman should pay special attention when choosing

words to be used in drafting legislation such as-
(a) shall - used to impose a duty or obligation;
(b) may-used
(c) any – used to mean one or some;
(d) each and every - each refers to two or more in a numerical context
while every refers to a class;

50
(e) all - this doesn’t serve a significant purpose other than a form of
emphasis and should be avoided;
(f) on or after-this should be used when the specified day is to be
included;
(g) and or ‘or- “and” implies togetherness while “or” proposes a choice
between two or more options;
(h) such and same- used as a substitute for a preceding noun or phrase,
should be substituted with “the” “a” or “that”;
(i) by, until, till – it is best to use “not later than” or “before”;
(j) which and that - while the word “which” is non-restrictive, “that” is
used in restrictive context; and
(k) “Notwithstanding” the expression is used when the provision is
intended to negate the conditions set by other provision.
Examples:
(i) “Notwistanding section 7, the appointing authority may
terminate the Director any time before expiry of his tenure; or
(ii) Notwistanding the conditions prescribed under Section 7, the
Commissioner shall have power to issue additional tax
assessment if there is default.”
(l) “Subject to” the expression is used where the legal action is to be
done in compliance with the conditions stated in another provision.
Examples:
(i) “The Commissioner shall, subject subsection (1) issue a tax
clearance certificate to a tax payer.
(ii) A Parliamentary Draftsman may, subject to Guidelines
contained in the Manual, be innovative in his drafting
undertaking.”

(m) “Without prejudice” the expression is used where the

provision is intended not to prejudice or alter the conditions set in
another provision.
Examples:

51
 (i) Without prejudice to the conditions or requirement stipulated
under Section 7, other requirements for membership shall
include…
(ii) Without prejudice to the generality of section (1), the
Commissioner shall consider the application
(n) “Repeal” in Tanzania the term “Repeal” is used to repeal the Act,
Acts and Sections and Schedules.
(o) “Delete” “Deletion” is used for deleting paragraphs, definitions,
expression or words;
(p) “Insert” is used to insert a new word or words between two words;
(q) “add” is used to add Part, section, subsection and paragraph
immediately after the existing one;
(r) “Revocation” is used to revoke a subsidiary legislation;
(s) “Short title” is used to the Principal legislation; and
(t) “Citation” is used to the Subsidiary legislation.
8.9 Punctuations
Punctuation in legislative drafting is used to facilitate a reader to
comprehend and interpret legislative sentences. Types of punctuation
commonly used in Tanzanian legislations are as follows:
(a) Full stop (.)
A full stop is used-
(i) to mark the end of a complete legislative sentence;
(ii) after section number but this should be only at the beginning
of the section
Example: 1. A person …
2. A licence shall be …

A full stop should not appear in the middle of a section or subsection

as for each of these divisions should constitute as each single sentence
on its own. A Parliamentary Draftsman should ensure a full stop is
not used at the heading of Parts, Divisions, Marginal Notes or in the
arrangement of provisions (table of contents).

52
(b) Comma (,)
A comma marks a slight break between different parts of a sentence. A
Parliamentary Draftsman should use commas with care, since their
insertion or omission can greatly alter the meaning of a sentence.
Commas serve several distinct purposes, including:
(i) to separate long independent clauses eg. Where the minister is
satisfied with the application, he may direct the Director General
to issue the relevant permit etc.;
(ii) to separate an introductory modifying clause or phrase from what
follows eg. Provided that, For avoidance of doubt etc.;
(iii) to separate a series of items eg. subsidiary legislation means
regulations, rules, notices, orders, by-laws etc.
(iv) to enclose non restrictive modifying phrase and clauses eg. This
Act shall be read as one with the Mining Act, hereinafter referred
to as the “principal Act”;
(v) to enclose parenthetical expressions interrupting in the main
communications in the sentence eg. The Minister or the Director-
General, as the case may be, shall appoint another officer to
perform such function;
(vi) to enclose modifying phrases and clauses if the enclosure clarifies
the structure of the sentence eg. The Minister shall, by order
published in the Gazette, prescribe fees to be paid;
(vii) to be used at the closing phrase, at the end of the last item in a
list.
Example:
“Where a Competent Authority is of the opinion that-
(a)a witness may be subjected to dismissal or suspension by
his employer; and
(b) the life or property of the witness is in danger,
the Competent Authority shall refer the matter to an institution
capable of providing protection to the witness.”
(viii) to avoid repetition
Example:
53
 “Where in a public institution there is, there has been or there
is likely to be, misappropriation of public funds…”

(c) Colon (:)

A colon is placed after an expression that introduces a series of items.
It indicates that what follows is a list of items which do not depend
grammatically on each other. Colon is used in the following
circumstances:
(i) to introduce a list.
Example:
“The Board shall be composed of the following:
(a)chairman who shall be appointed by …;
(b) Law Officer representing the Office of the Attorney
General”; and
(ii) between two main clauses in cases where the second clause
explains or follows from the first.
Example:
“The quorum at any meeting of the Executive Committee shall
be at least half of the members from each side of the Union:
Provided that, in all meetings the Permanent Secretary
responsible for fisheries for both side of the Union shall be
present.”

(d) Semi Colon (;)

Semicolon is most commonly used to mark a break that is stronger than
a comma but not as final as a full stop. It is used between two main
clauses that balance each other and are too closely linked to be made
into separate sentences.
The function of the semi-colon is to-
(i) show a relationship between elements of a sentence which a
complete break into separate sentences may obscure;
(ii) co-ordinate a series of paragraphs, subparagraphs or listed
items.
54
(e) Dash (–)
The dash is used to introduce a list. It indicates that what follows is a
list of items which depend grammatically on each other. For example:
The function of the semi-colon is to-
(i) show a relationship between elements of a sentence which a
complete break into separate sentences may obscure;
(ii) co-ordinate a series of paragraphs, subparagraphs or
listed items.

(f) Hyphen (-)

Hyphens are used to link words and parts of words. They are commonly
used-
(i) to show word breaks eg. two-third;
(ii) in compound words eg. Director-General, cross-reference, officer
in-charge;
(iii) if the second element of the word is capitalised eg. e-
Government.

(g) Quotation marks or inverted commas (“ ”)

In legislation, quotation marks or inverted commas are used to indicate
a definition term or words to be defined eg.
(a)“Director” means …
(b) “Appointing Committee” means …

(h) Cross reference

Cross reference is another skill of drafting which helps to avoid
unnecessary repetition. Under this skill, a Parliamentary Draftsman
may make reference to other provisions of the same Act or another Act
instead of repeating what is already provided for in the referred
provisions. However, precaution needs to be taken when making such

55
 cross reference to ensure the validity or existence of the referred
provisions or their numbering.

(i) Choice of style or format

A style or format differs from one legislation to another depending on
the nature of the contents of a legislation.

(j) Limitation and conditions

In drafting, a Parliamentary Draftsman must provide for necessary
limitation in certain legal actions such as the exercise of certain powers,
tenure of office and time for legal action.

Consideration of limitations and other conditions in the drafting of

provisions conferring powers or for appointment in the office is vital.
Therefore, a Parliamentary Draftsman must ensure that there are such
limitations of time and conditions for appointments.

(k) Delegation of powers and functions

While drafting provisions for delegation of powers, a Parliamentary
Draftsman must provide for limitations or conditions to be observed by
the delegating authority. Under such limitations a delegating authority
should not be allowed to delegate each and every powers and functions
to another person.
Thus, it is the duty of the Parliamentary Draftsman to make provisions
ensuring that a delegating authority is limited to delegating certain
powers and functions as prescribed in the legislation.

(l) Consistency
Consistency is another principle or skill in legislative drafting which
requires a Parliamentary Draftsman to ensure the same word is applied
consistently throughout the legislation to have the same meaning.

56
 Under this principle, words should not be used interchangeably to mean
the same thing.

(m) PenalProvisions
Naturally a legislation is the command which requires persons to obey
or observe the terms or conditions as stipulated therein. To ensure
compliance with such requirements, the legislation creates offences
and various penalties as sanction for failure to comply with the
legislation or for commission of offences. Basically the legislation
requires total compliance and requires non compliance to be punishable
by legislation. Therefore, provisions providing for penalties and other
sanctions for failure to comply with the legislation become inevitable
in the legislation.

Thus, Parliamentary Draftsmen must in their legislative undertaking,

whenever appropriate, ensure inclusion of provisions providing for
offences and penalties in the legislation. Such penal provisions must be
properly drafted to ensure that the created offences with their
ingredients or elements are clearly stated to avoid any kind of
ambiguity.

Under normal circumstances the provisions providing for penalties,

that is fines and imprisonment must indicate the minimum and
maximum fines or imprisonment. It is the duty of a Parliamentary
Draftsman to ensure proper drafting of penal provisions.
1. Example:
A person who-
(a) ....;
(b) ............;
(c) ..............,
Commits an offence and is liable, on conviction, to a fine of not less
than ten hundred shillings but not exceeding twenty thousand

57
 shillings, or to imprisonment for a term of not less than three months
but not exceeding six months or both.

2. Example:
A person who contravenes the provision of section 7, commits an
offence and is liable, on conviction, to a fine of not less than ten
thousand shillings but not exceeding twenty thousand shillings, or
to imprisonment for a term of not less than three months but not
exceeding six months or both.

In the drafting of Example 2, a Parliamentary Draftsman must take

precaution to ensure that the offence or offences created under
section 7 as referred to in the penal provision, are clearly stated in
the said provision.

Practice reveals that offences and penalties are normally created in

the same provision. However, there are situations where offences
may be created in a separate provisions without their respective
penalties. Thus, a Parliamentary Draftsman in the drafting of such
provisions, must remember to draft a provision providing for general
penalties in respect of such separated offences in the legislation.

58
 PART NINE
DRAFTING OF SUBSIDIARY LEGISLATION

9.0 INTRODUCTION
Subsidiary legislation also known as subordinate legislation or delegated
legislation means any legislation made under or by virtue of an Act and
having legislative effect. Section 4 of the Interpretation of Laws Act, Cap.
1 defines a subsidiary legislation to mean any order, proclamation, and
rule, rule of court, regulation, notice, by-law or instrument made under
any Act or other lawful authority. This Part focuses on powers to make
subsidiary legislation, drafting of subsidiary legislation, types of
subsidiary legislation, structure and layout of subsidiary legislation and
the procedures for making by-laws.

9.1 Powers to Make Subsidiary Legislation

Article 64(1) of the Constitution of the United Republic confers upon the
Parliament powers to enact laws. In exercising such powers, the
Parliament, by virtue of Article 97(5) of the Constitution may delegate
them to various authorities including Ministers, local government
authorities and heads of public institutions. When such powers are
exercised by delegate, such legislation are known as subsidiary
legislation, delegated legislation or subordinate legislation. The
Parliament delegates its powers to legislate due to-
(a)limited time for parliamentary business;
(b) difficulty of legislating in detail; and
(c)technical and procedural nature of some legislation.

When drafting a subsidiary legislation, a Parliamentary Draftsman should

ensure that the drafted subsidiary legislation is consistent with the
principal legislation under which it is made as provided for under section
36(1) of the Interpretation Laws Act, as well as complying with any other
law. Principally, a subsidiary legislation commences when gazetted,
except where it is otherwise expressly stated therein.
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9.2 Types of Subsidiary Legislation
There are different types of subsidiary legislation which are common in
Tanzania. These are-
(a) Regulations;
(b) Rules;
(c) Orders;
(d) By Laws;
(e) Proclamation;
(f) Declaration;
(g) Notice; and
(h) Instrument.

9.3 Drafting Subsidiary Legislation in Tanzania

When drafting a subsidiary legislation, a Parliamentary Draftsman must
be conversant with the Act under which the enabling provisions are
provided to ensure that the subsidiary legislation is made within the
parameters and scope of the power delegated.

Therefore the Parliamentary Draftsman must consider-

(a)whether the power to legislate on the issue has been given;
(b) whether the enabling provision is still valid;
(c)which authority or person to which the power to legislate has been
given or delegated;
(d) whether there are other conditions or procedures to be observed
prior to making a subsidiary legislation; and
(e)whether there are other authorities or persons to be consulted prior to
making a subsidiary legislation and whether such consultation has been
effected as required.

In the drafting of subsidiary legislation, a Parliamentary Draftsman should

ensure that-
(a)thorough research on the subject matter is conducted;
60
 (b) close consultation is made with all key stakeholders within the
Government and the public;
(c)the principles under the Interpretation of Laws Act, Cap. 1, relating to
subsidiary legislations are applied; and
(d) that the subsidiary legislation complies with the enabling provisions
of the principal legislation.

9.4 Structure of a Subsidiary Legislation

(a)A Parliamentary Draftsman when drafting a subsidiary legislation
should take into consideration the following preliminary requirements:
(i) Title (Citation)
When giving a subsidiary legislation a title, it is important to
assign a title that reflects its parent legislation. For example, the
title of any subsidiary legislation made under the Road Traffic
Act, Cap. 168 should reflect the name of Act. When a subsidiary
legislation is for general matters stipulated in the Act, a title to it
may include the word “General”. In the case of a subsidiary
legislation that is for a specific matter provided in the Act, the
title to it should indicate that matter. Examples are given below:
(aa) The Road Traffic Regulations, 2020;
General matters
(bb) The Road Traffic (General) Regulations, 2020;
(cc) The Road Traffic (Breath Analysis Machine)
Regulations, 2020 – specific matters.

(ii) Enabling Provisions

The enabling provision should be clearly indicated to show the
authority empowered to make such subsidiary legislation.

(iii) Arrangement of Provisions

As the principal legislation, arrangement of provisions should
appear before the main body of the subsidiary legislation and a
Parliamentary Draftsman must ensure that the Parts, headings and
61
 marginal notes within the subsidiary legislation correspond with
the arrangement of provisions.

(iv) Marginal Notes

Each provision of a subsidiary legislation should be given its own
marginal note which reflects the contents of such provision.

9.5 Layout of a Subsidiary Legislation

Layout of a subsidiary legislation shall be as indicated in the Schedule to
this Manual.

9.6 By-laws Making Procedures

In Tanzania, most of by-laws are enacted by the local government
authorities. In view of that, the focus will be on the procedures of making
by-laws by local government authorities. The procedures for making by-
laws are summarised as follows:
(a)Formation of an idea
By-laws, like any other legislation, start as an idea. In that case, by-
laws originate from the Council management team, any standing
committee of the council or the Council itself. Once the idea is
conceived, the Council Management Team will submit the same to the
Standing Committee responsible for the matter for which the by-laws
are intended to be made. When the Committee is satisfied as to the
thrust of the proposed by-laws, the Chairman or Mayor of the Council,
as the case may be, will be informed of the intention to enact the by-
laws;

(b) Notice to the general public

It is a fundamental principle as provided in the Local Government
(District Authorities) Act, Cap. 287 and the Local Government (Urban
Authorities) Act, Cap. 288 that before making by-laws, residents of the
respective Council and other stakeholders should be informed of the
impending by-laws. The Director of the Council shall, after being
62
 sanctioned by the Chairman or Mayor, issue a public notice informing
residents and other stakeholders about the proposed by-laws. The
notice ought to be affixed at the notice boards of all Council’s offices
in mtaa, village, ward and principal office of the Council. Generally,
in that notice, the public is invited to submit to the Council written
objections or representations with regard to proposed by-laws within
thirty days from the date of issuance a notice. The notice should specify
the genesis and objective of the intended by-laws. Besides, the notice
shall provide for matters that will be covered and outcomes of the
intended legislation. At the expiry of thirty days, the Council may
proceed with preparation of by-laws while taking into consideration
objections or representations, if any;

(c)Compilation of objections or representations

At the expiry of thirty days, the Council is required to prepare a
summary in a matrix form of all objections or representations
submitted to it. The summary shall provide names of those who
submitted their objections or representations, whether the objections or
representations have been accepted or otherwise, and in the case of
rejection, reasons of the Council for the rejection;

(d) Drafting of by-laws

Subject to objections or representations, the State Attorney working in
the Council shall prepare draft by-laws. In discharging that duty, State
Attorney shall ensure that the contents of the draft by-laws are within
the ambit of the principal legislation and are not in conflict with other
written laws;

(e)Approvals
(i) Council Management Team
Upon completion of the draft by-laws, the same together with a
summary of objections or representations shall be submitted to
the Council management team for its consideration;
63
(ii) Standing Committee
If the Council management team is satisfied as to the gist of the
proposed by-laws, the same will be submitted together with a
summary of objections or representations to the standing
committee responsible for the matter for which by-laws are
proposed for its consideration;

(iii) Council
Upon its consideration, responsible standing committee may
sanction that the proposed by-laws and the summary of
objections or representations be submitted to the Council for its
approval. Once the Council is contented as to the contents of the
proposed by-laws, it will make a resolution to pass the proposed
by-laws; subsequently, the by-laws will be signed by the
Chairman or Mayor and the Council Director before being
affixed with an official seal;

(iv) Regional Commissioner

Once by-laws are passed by the Council, the same with a
summary of objections or representations are submitted to the
Regional Commissioner of the region, in which the Council
situates, for his comments;

(v) Minister responsible for local governments

After being commented on by the Regional Commissioner, by-
laws are forwarded by the Regional Commissioner to the
Minister responsible for local governments. At that ministerial
level, proposed by-laws are scrutinised by legal experts within
the Ministry with a view to ensuring that the proposed by-laws
are in conformity to constitutional principles, the principal
legislation and policies. In the case of by-laws that govern matters
that are under the auspices of another Ministy, the Minister
64
 responsible for local governments ought to consult such other
Minister.

Where the Minister responsible for local governments is satisfied

as to the thrust of by-laws, he may forward the same to the Office
of the Attorney General for vetting;

(vi) Office of the Attorney-General

The role of the Office of the Attorney General in respect of
submitted by- laws is vetting them. In exercising such a role, the
Office of the Attorney-General ensures the constitutionality of
the proposed by-laws and adherence to the principal legislation.
Besides, it is the role of the Office of the Attorney General to
ensure that the submitted by-laws conform to the legislative
drafting principles. Once it is satisfied as to the contents of the
by-laws, the Office of the Attorney General returns the same to
the Minister for his signature and then forward them back to the
Office of the Attorney General for submission to the Government
Printer for publication in the Gazette.

9.7 Publication and Commencement

It is a legal requirement under section 37(1) of the Interpretation of Laws
Act, that all subsidiary legislation be published in the Gazette. Generally,
once a by-law is gazetted it comes into operation unless otherwise stated
in such by-law.
9.8 Factors to be Considered in Preparing By-Laws
Like any other legislation, the drafting of by-laws entails observance of
principles of legislative drafting. A State Attorney, when preparing by-
laws should be keen to observe the following:
(a)Delegation of powers
As it has been pointed hereinabove, enactment of laws is the domain
of the Parliament as per the Constitution of the United Republic. In
view of this, before preparing by-laws, a State Attorney should ensure
65
 that the Parliament has, through the principal Act, delegated its powers
to make by-laws;

(b) Conformity to Constitution, principal legislation and other Acts

of Parliament
By-laws as the name insinuates are subsidiary legislation made under
principal legislation passed by the Parliament. In view of this, by-laws
are not expected to override or derogate from the principles enshrined
in the Constitution, principal legislation and other Acts of Parliament.
In the event of overriding or derogation, such by-laws are considered
to be ultra vires.
9.9 Vetting of Subsidiary Legislation:
It is a legal requirement under section B.12 of the Standing Orders for the
Public Service, 2009 that a subsidiary legislation should be vetted by the
Office of the Attorney General before it is signed and published. Matters
for consideration during vetting include:
(a)to ensure whether the subsidiary legislation is made in compliance with
the powers provided in the principal legislation;
(b) whether the subsidiary legislation is made by the appropriate
authority or a person duly authorised;
(c)whether the conditions or limitation imposed by the principal Act are
met;
(d) whether the constitutional provisions are complied with;
(e)ensure compliance with other relevant legislation; and
(f) consider matters of legislative drafting which including:
(i) drafting format or style and drafting requirements;
(ii) choice of language;
(iii) revocation of an existing legislation if any; and
(iv) advice on the findings, if necessary, through vetting.

9.10 Commencement of Subsidiary legislation

Parliamentary Draftsman must take into account that any subsidiary
legislation made under the principal legislation, shall not come into
66
 operation until the principal Act comes into operation, unless the
subsidiary legislation is for bringing an Act into operation.

9. 11 Amendment or Revocation of Subsidiary Legislation

A subsidiary legislation may at any time be amended or revoked. Just like
in the case of a principal legislation, where a subsidiary legislation is to
be amended or revoked, a Parliamentary Draftsman must ensure that
necessary transitional or saving provisions are properly drafted to
preserve matters which need to be preserved.

9.12 Parliamentary Control of Subsidiary legislation

The making of subsidiary legislation is the legislative powers delegated
to Ministers or other statutory bodies by the Parliament through the
principal legislation. Therefore the Parliament has the power to oversee
or control the exercise of its powers as delegated.

Through its relevant Committee, the Parliament scrutinizes the subsidiary

legislation to ensure compliance with the principal Act, the Constitution
or other laws. Matters for consideration during deliberation by the
Committee include:
(a)complaints in the implementation of the subsidiary legislation;
(b) whether the powers have been exercised properly by the person to
whom such powers were delegated;
(c)contravention or conflict of the provisions of a subsidiary legislation
with the principal Act or other existing laws;
(d) the retrospective effect of the subsidiary legislation, if any;
(e)the drafting of the legislation is defective and does not convey the
intended purpose;
(f) whether the subsidiary legislation was made within the powers and
authority provided; and
(g) to advice or direct on the findings.

67
 Through these findings and observations of the Committee, the
Parliamentary Draftsman needs to be more efficient and vigilant on the
issues of drafting so as to avoid unnecessary errors or omissions in the
subsidiary legislation.

9.13 Rules of Statutory Interpretation

Generally, each legislation is subject to interpretation by courts of law in
the process of determining the meaning and interpretation of a provision
of the legislation for administration of justice. Such interpretation by
courts is required when a doubt or dispute arises about the meaning of a
provision of a legislation.

Therefore, a Parliamentary Draftsman who drafts the legislation must

ensure there is no doubts as to the meaning of words used and must avoid
any ambiguity which may subject the provision to negative interpretation
through the operation of rules of interpretation.

In addition, a Parliamentary Draftsman needs to equip himself with the

knowledge and application of rules of interpretation of legislation as
follows:
(a)Literal Rule
This is known as the first rule of interpretation which takes precedence
over the others. Under this rule the words and phrases in a legislation
are given their ordinary and dictionary meanings. If a clear meaning is
obtained through application of this rule, then there will be no need of
further interpretation by the court.

(b) Golden Rule

The Golden Rule applies where the literal rule mode of interpretation
results in inconsistency or ambiguity. Under this rule, the meaning of
the words used in the legislation may be modified in order to avoid
inconsistency or ambiguity. The Golden rule permits modification of

68
 literal sense of the words used in the legislation where the literal sense
would lead to inconsistency or ambiguity.

(c)Mischief Rule
This rule considers the basis of the legislation which is the intention of
legislature. Under this rule, the court looks at the law generally and the
mischief which the legislation has intended to cure.

(d) Purpose Approach also known as the modern approach

Under this rule of interpretation, the court emphasises on the intention
of the legislature instead of the definition or mischief.
This rule takes into account the words used in the legislation, according
to their ordinary meaning, the subject matter, the scope, purposes as
well as the background of the legislation.

These rules of interpretation through which the courts determine the

fate of the provisions of the legislation, require the Parliamentary
Draftsman to observe the same to ensure that he crafts a precise, clear,
comprehensive and undisputable provision which is devoid of any
ambiguity.

69
 PART TEN
REVISION OF LAWS

10.0 INTRODUCTION
Revision of laws refers to the editorial process of preparing a revised
edition of the statutes. The process entails compiling and updating the
Statute Book to include all laws passed by Parliament, incorporation of
all amendments to existing laws, consolidation of laws, repeal of obsolete
enactments and to rectify printing, clerical and typographical errors in the
existing laws. It is aimed at presenting the law in its correct form at any
given time thus facilitating implementation of the principles of the rule of
law. The object of a Revised Edition of the laws is to make available in
set of volume all the statute laws.

10.1 Authority to Conduct Revision of Laws

The process of conducting revision of laws is governed by the Laws
Revision Act, Cap 4. The Act vests in the Chief Parliamentary Draftsman
powers of preparing the Revised Edition of laws. Law Revision may be
conducted in respect of a specific law or the whole Statute Book. The date
of commencement of revised laws shall be, for a specific law, the date
appointed by the Attorney General and for Statute Book, the date
proclaimed by the President.

10.2 Law Revision Process

Subject to the provisions of the Laws Revision Act, Cap 4, the process of
revising laws entails the following activities-
(a) identification of lawsby finding all the laws by starting as back as to
the last revised edition as the starting point;
(b) research on the legislation so as to identify all amendments effected
in the legislation;
(c) identify other amendments to other legislation which has affected the
legislation;

70
(d) study the legislation to identify conflicting provisions, if any, or
conflicting laws;
(e) substitution of unnecesary words or phrases without changing the
intended meaning;
(f) preparation of index of Acts: create a working Index of the current
law by putting in commencement dates, amendments, subisdiary
legislation made under the Act;
(g) formation and adoption of standards and uniformity. For the purpose
of maintaining uniformity, the Chief Parliamentary Draftsman directs
the standards to be adopted during the revision of laws;
(h) inserting or adding amendment. The Law Reviser will insert or add
the amendment Acts and Government Notices to the appropriate
provisions of the amended legislation;
(i) prepare explanatory note into the footnote in respect of certain
amendments;
(j) identification of redundant laws, or expiry laws for repeal by the
National Assembly;
(k) identifying the laws for consolidation;
(l) deleting repealed, expired or spent provisions;
(m) correct all grammatical, typographical and other similar errors
without necessarily affecting the meaning of the Act;
(n) effecting editorial powers. The editorial powers of Chief
Parliamentary Draftsman are enshrined in section 8 of the Laws
Revision Act;
(o) proof reading. After inserting amendments, proof reading is
conducted for the purpose of ensuring that the amendments that are
inserted in appropriate provisions to ensure proper references to the
provisions of the Act and references to other Acts;
(p) standardise the format of the legislation so as to maintain unifrom
format;
(q) Compilation of all revised laws in a Statute Book and assign chapter
numbers;

71
 (r) prepare a list of identified laws to be repealed or amended together
with explanatory notes;
(s) provision of advice and recommendations to the Attorney General for
repeal or amendment of identified laws;
(t) publication of the revised edition. In case of a revision of the Statute
Book, the revised edition shall be published in a book form which
includes all principal and subsidiary legislation as provided for under
the Law of Revision Act. It is also published with an index of Acts
and must bear a chapter number and the year in which the Revision
was made.

10.3 Role of a Parliamentary Draftsman in law revision

In view of the revision activities stipulated above, the role of a
Parliamentary Draftsman in law revision includes:
(a)to advise the government and recommend for repeal of all legislation
which are not useful and advise, where necessary, for substitution of
such laws;
(b) advise on the laws which require such amendment, eg. amendment
of penalties which are outdated etc.; and
(c)advise on the consolidation of laws.

In the process, a Parliamentary Draftsman needs to apply skills and

drafting knowledge to ensure revision of laws does not extend to
amendment of the legislation.

10.4 Consultations
A Parliamentary Draftsman performing law revision activities may,
whenever necessary, in search of information or clarity maintain
consultations with senior or experienced Parliamentary Draftsman within
the Office of the Attorney General and relevant State Attorney from the
Ministry responsible for the revised law in question.

72
10.5 Commencement of Revised Laws
Subject to the Law Revision Act the revised laws shall come into force on
the date of publication or such other date as may be appointed upon
proclamation in terms of the Law Revision Act.

10.6 Amendment or Repeal of a Legislation

In the performance of his functions regarding revision of laws, a
Parliamentary Draftsman shall not have power to amend or repeal a
legislation.

Subject to the provisions of the Law Revision Act, where a Parliamentary

Draftsman, in the process of revision finds that there is a need for repeal,
alternation affecting the context of a provision or amendment of an Act,
the Chief Parliamentary Draftsman shall advise the Attorney General on
the preparation of the relevant Bill for consideration by the National
Assembly.

10.7 Conflict between Revised Law and Existing Laws

Parliamentary Draftsman should note that, where there is the conflict
between the Revised Law and the existing laws or amendment thereof, the
existing law or such amendment which was passed by the Parliament shall
take precedence over the Revised Law.

73
 PART ELEVEN
TRANSLATION OF LAWS

11.0 INTRODUCTION
Translation of laws refers to transformation of the legislation from the
language of enactment to another language. When translating laws, it is
essential to ensure the use of proper terminology, specific style and correct
grammar. The translation should be exact and unambiguous and should
convey the original meaning of the text.

11.1 Factors to Consider During Translation

The process of translating legislation, must be led by a Parliamentary
Draftsman who is conversant with both English and Kiswahili languages
so as to conform to principles governing legislative drafting. In translating
a legislation, a Parliamentary Draftsman must take into account the
following-

(a)The law to be translated must be revised

It is prudent to translate a legislation that has been revised so as to
ensure that the translated version accomodates all amendments effected
in the orginal version. This makes the translated version clear and
saves time and costs involved in the translation exercise;
(b) The law must be translated the way it is
Translation does not cure or correct any error or mistake made in the
original text. It is not an alternative to amendment hence no
amendment should be effected during translation;
However, where in the course of translation it is desirable that
amendment be effected in certain provisions of the translated law, the
Chief Parliamentary Draftsman shall advise the Attorney General on
the matter for preparation of the relevant amending Bill;
(c)Translation must maintain legislative drafting principles

74
 Translated version of the legislation is basically a legislation and for
that matter, the translation exercise should not derogate from key
principles governing drafting;
(d) Literal, contextual and conceptual translation
Generally, it is recommended that legislation should be translated
literally, except where literal translation disorts the meaning of a
particuar provision. Where an intended meaning cannot be achieved
through literal translation, then contextual or conceptual translation
may be used;
(e)Use of words in the particular Act as used in other Acts with
similar meaning and context
In translating a legislation, consistency in the use of words of like
meaning already translated in other legislation should be maintained so
as to avoid having different translations of same words used in the same
context;
(f) Maintainance of original format or style
In translation, a Parliamentary Draftsman must maintain the style and
format of a translated law as it is, as changing the arrangement may
result in unneccesary ambiquities and confusion. However, a
Parliamentary Draftsman may rearrange the definition section so as to
have all the definitions in the alphabetical order;
(g) Rules of grammar
A Parliamentary Draftsman, in the process of translation, must conform
to the rules of grammar of a given language, regarding the forms of
words as used in the language and their arrangement in a sentence;
(h) Proofreading
After translation, a Parliamentary Draftsman must proofread the
translated law to ensure proper use of words and grammar and to effect
such other corrections as may be required.

11.2 Publication and Commencement of Translated Laws

A translated law shall be published in the Gazette and such publication
shall signify the date of commencement of the translated law.
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11.3 Management of Conflicts
If there is any conflict in the meaning or construction between the
translated law and the original version, the original version which was
passed by the Parliament shall take precedence over the translated version
of the law.

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 PART TWELVE
MISCELLANEOUS MATTERS

12.0 DRAFTING OF RESOLUTION DOCUMENTS

Article 63 (e) of the Constitution, empowers the National Assembly,
among other things, to ratify all treaties and agreements to which the
United Republic is a party and the provisions which require ratification.
The National Assembly ratifies treaties and agreements by resolution in
terms of the procedures for ratification as clearly prescribed for under
paragraphs 107 to 112 of the Parliamentary Standing Orders.

Under the said procedure the matter for ratification is submitted to the
relevant Parliamentary Committee for deliberations, prior to its submssion
to the National Assembly for discussion and ratification. Throughout the
process, ratification of treaties and agreements requires a properly drafted
Resolution document (Azimio la Bunge) which provides for various
issues regarding the subject matter intended for ratification.

It is the responsibility of the Chief Parliamentary Draftsman to ensure that

all resolution documents are properly drafted by the Parliamentary
Draftsman and are submitted to the National Assembly for ratification
process.
In drafting resolution documents, a Parliamentary Draftsman must take
into account the following:
(a)the proper name or title of the treaty or agreement;
(b) where necessary, the names or list of countries which are parties to
the treaty or agreement in question;
(c)membership status of the United Republic;
(d) the background of the subject matter of the treaty or agreement for
ratification;
(e)global, regional or national challenges or problems to be addressed by
the treaty or agreement;

77
 (f) major issues contained in the treaty or agreement for consideration or
discussion prior to ratification;
(g) benefits, advantages or gains to be obtained upon ratification of the
treaty or agreement;
(h) disadvantages of the treaty or agreement in question;
(i) costs to be incurred in the process of implementation or if there is any
other financial implication;
(j) conditions and terms for implementation of the treaty or agreement;
(k) legal implications involved upon ratification; and
(l) such other relevant information as may be necessary to justy the
ratification of the treaty or agreement.

For proper drafting of a Resolution document the Parliamentary

Draftsman is require to have a copy of the treaty or agreement. Such
copies contain various terms and conditions which need to be observed,
the background information indicating the genessis of the treaty or
agreement, and such other relevant information on the matter.

These documents can be obtained from the Ministry responsible for the
treaty or agreement to be ratified. Therefore, the Parliamentary Draftsman
whenever necessary, must prepare the Resolution documents in
consultation with State Attorneys and other responsible officials in the
responsible Ministry.

12.1 REPORT WRITTING

Due to the nature of their functions, Parliamentary Draftsmen attend
various meetings in the course of the legislative processes. During such
meetings various legislative issues are raised and discussed. In certain
cases positions on the matters are established during the meetings
regarding the measures or action to be taken.

After the meetings, a Parliamentary Draftsman is obliged to prepare a

report on what transipired during the meetings for information and official
78
 record keeping. The Parliamentary Draftsman must ensure that the report
from the meeting contains the following:
(a)brief facts and background of the subject matter of the meeting;
(b) legal or legislative issues or problems raised and discussed during
the meeting;
(c) conclusion or recommendations of the meeting regarding the way
forward on the subject matter of the meeting;
(d) analysis of laws relevant to the subject matter of the meeting or
issues raised; and
(e)recommendation of the meeting or legal opinion on the matter.

In making recommendation or opinion, the Parliamentary Draftsman may,

where necessary, provide options and recommend the best option to be
considered by the Office of the Attorney General whether immediately or
in the near future.

In addition, the Parliamentary Draftsman, while finalising preparation of

the report, must ensure that the report is in good flow in terms of its
contents or issues discussed, straight forward and clearly understandable.
Therefore, the Parliamentary Draftsman is required to proofread and edit
the report to avoid unnecessary typographical errors and spelling
mistakes.

12.2 CONFIDENTIALITY
Subject to the Standing Orders for Public Service, all public servants
handling Government documents or accessing Government information
are required to keep such information confidential. In the course of
performance of their legislative functions, a Parliamentary Draftsman
handles various confidential files and documents and accesses
confidential instructions or information which require to be kept as secret.
Therefore, a Parliamentary Draftsman is obliged to observe
confidentiality in handling various Government documents and

79
 information to avoid any leakage of such documents or information to
unauthorised persons.

12.3 SELF DEVELOPMENT

Besides formal training in legislative drafting or drafting guidence
provided under this Manual, a Parliamentary Draftsman must strive to
develop himself in various aspect of legislative drafting so as to build up
his personal capacity in legislative drafting. The eagerness to learn more
on new things in legislative drafting will enable the Parliamentary
Draftsman to acquire more knowledge on the drafting skills and
techniques, and to know the manner in which the said skills and
techniques can be properly and efficiently applied.

Self development initiatives may require a Parliamentary Draftsman to-

(a)study books, handouts, journals and articles on legislative drafting;
(b) study or read the Standing Orders and other legislation which
provides for legislative procedures and processes;
(c)study the Interpretation of Laws Act, Cap. 1 and the Constitution to
ensure observance during preparation of legislation;
(d) study the enacted legislation in search for better precedents or
standard provisions;
(e)initiate and do legislative drafting exercises in various scenarios; and
(f) maintain consultation with senior or experienced persons in legislative
dafting.

In other words, Parliamentary Draftsman must take necessary measures

to engage personal initiatives and efforts to ensure his personal growth as
a competent and efficient Parliamentary Draftsman in the noble
profession of legislative drafting.

SCHEDULE
(Made under Part Nine Para. 9.5)

80
GOVERNMENT NOTICE No……… published on
…………………
(insert title of the Act)
(insert title of the Regulations)
(insert enabling provision(s)
Arrangement of Regulations (always set in italics)
Regulation Title
PART I
PRELIMINARY PROVISIONS
1. Citation (it contains the citation and commencement, if the
Regulations intend to specify a date other than the principally
provided under section 37 of the Interpretation of Laws Act, that
subsidiary legislation comes into operation on the specified date)
(insert year).
2. Application (indicate the extent of application if any).
3 Interpretation.

PART II
(Insert title which reflects the intended Regulations)
4. …………
5. …………..

PART III
GENERAL PROVISIONS
6. Offences and penalties, if any
7. Revocation and savings, if any
__________
SCHEDULE(S)
___________
(insert schedule(s) if any, showing clearly the enabling provision of the
schedule)

81
(place of signing) (insert name of person
empowered to sign)
(insert date) (Status/authority)

(a)in the case of Rules:

GOVERNMENT NOTICE No……. published on
…………………
(insert title of the Act)
(insert title of the Rules)
(insert enabling provision(s)
Arrangement of Rules (always set in italics)
Rule Title
PART I
PRELIMINARY PROVISIONS
1. Citation (it contains the citation and commencement, if the Rules
intend to specify a date other than the principally provided under
section 37 of the Interpretation of Laws Act, that subsidiary
legislation comes into operation on the specified date) (insert
year).
2. Application (indicate the extent of application, if any).
3. Interpretation

PART II
(Insert title which reflect the intended Rules)
4. …………
5. …………..

PART III
GENERAL PROVISIONS
6. Offences and penalties, if any
7. Revocation and savings, if any
__________
82
 SCHEDULE(S)
___________
(insert schedule(s) if any, showing clearly the enabling provision of
the schedule)
(place of signing) (insert name of person
empowered to sign)
(insert date) (Status/authority)

(b) Orders, Notices, Proclamations and Declarations are always

structured with few provisions as follows:
GOVERNMENT NOTICE No…… published on
…………………
(insert title of the Act)
(insert title of the Order, Notice, Proclamation or Declaration)
(insert enabling provision(s)
1. citation of the Order, Notice, Proclamation or Declaration (it
contains the citation and commencement, if the Order, Notice,
Proclamation or Declaration intends to specify a date other than
the principally provided under section 37 of the Interpretation of
Laws Act, that subsidiary legislation comes into operation on
the specified date) (insert year).
2. Application (indicate the extent of application, if any).
3. Interpretation (if any need arise).
4. Provision setting the intended order.
_________
SCHEDULE(S))
_________
(insert if any and its enabling provision)

(place of signing) (insert name of person

empowered to sign)
(insert date) (Status/authority)

83
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