Processes and procedures of drafting bills in Tanzania.

1.0 GENERAL OVERVIEW.

Generally, This Article focuses on the processes and procedures involving in the drafting of Bills in Tanzania. So, the Article articulates a detailed but critical discussion on how Bills are prepared in Tanzania before they become the law of the country. This Article intends to demonstrate the whole processes and procedures to be complied with in drafting of Bills and to show the extents to which the Bills originate from the Executive.  Indeed the Bills in Tanzania has no binding force before being assented by the President to become a law. Nevertheless, the Bill cannot be prepared instantly, there should be some steps to be taken of which its accomplishments pave the way for it be laid before the Parliament for the Parliamentary stages to become a law.  Hence, there are key steps as both processes and procedures to be undertaken.

1.1 THE CONCEPT OF BILL.

A Bill in its ordinary meaning simply means a document which contain a draft proposal for a new law.   But in its Parliamentary meaning, it means a draft of a legislative proposal which has to pass through various stages before it becomes an Act of Parliament.

1.1.1 Sources and types of Bills.

In Tanzania, there are two major sources of Bill. These are private and public or government Bills.  The private member`s Bill. This is the Bill which is initiated by the Member of Parliament who is not a minister as an individual or on behalf of his political party in the Parliament. Therefore, any Member of Parliament may introduce the Bill into the Parliament for discussion and approval. The Bill which     is introduced by such member is known as private member`s Bill or in short the private Bill. The Public Bill is the Bill which is introduced by the Minister whose Ministry the law to be enacted is coming or by the Attorney General on the behalf of the Executive. The most common type of Bills in Tanzania are Government Bills, which deal with matters of general public interest.

1.1.2 Laws governing drafting of Bills in Tanzania.

The overall procedures of drafting Bills in Tanzania are governed by the numbers of laws which give either power, directives or procedures of drafting. These laws are;

(i) The Constitution of the United Republic of Tanzania of 1977 as amended.

(ii) The Interpretation of the Laws Act [Cap 1 R. E 2019]

(iii) The Office of Attorney General (Discharge of Duties) Act, [Cap 268 R.E 2019]

 

(iv) Laws Revision Act, [Cap. 4 R.E. 2020]

(v) The Standing Order of the Parliament of the United Republic of Tanzania of 2020.

1.2 SALIENT FEATURES OF A BILL.

Any Bill must appreciate the salient features that must be present. These features are;

1. PRELIMINARY PROVISIONS. 

These includes sub parts which are;

(i) Arrangement of Sections and Sub sections, numbering and lettering, heading and marginal notes.

(ii) Bill title that is short and long title.

(iii) The preamble. Used to express the reason for the enactment.

(iv) Commencement provision.

(v) Definition Section. 

N.B; definitions are important tool in legislative drafting. The definition section is usually one of the preliminary sections of the bill and has traditionally been “section 2”, although in some Acts it may be different. Definitions are found in bill to give the meaning of words, phrase or other symbols. The main functions of definition in Bills are avoiding ambiguities and avoiding tedious repetitions by means of abbreviations. Primarily, definitions are used to avoid ambiguities. Ambiguities or vagueness in a bill may lead to confusion or different interpretation of the words or phrases. Thus, in drafting bills, ambiguities should be avoided. 

Definitions that may avoid ambiguities are of three classes: 

 (a) Delimiting definition. 

This determines the limits of the significance to be attached to the term defined. The purpose is not to alter conventional significances but to provide a desirable degree of definiteness. This form of definition maybe of value in case of vague words with a core of essential meaning and may be reduced in scope by the use of delimiting definitions. For, example, by using delimiting definition, the word “company” may be used to means a company incorporated in Tanzania.

(b) Extending definitions. 

This kind of definition gives the meaning of the term beyond the meanings conveyed in a common usage by the term. It adds to the conventional meaning an element of assigned meaning. For instance, by using extended definition, the word “person” may be used to include natural persons and artificial persons like corporate bodies.

(c) Narrowing definitions.

It stipulates a meaning narrower than the meaning commonly conveyed by the term. For instance, by using narrowing definition, the word “Bank” may be used to mean Bank of Tanzania.

In addition, definitions preclude the need to repeat text through avoiding tedious repetitions. This is done through abbreviations of groups of words or phrases. Such definitions are sometimes referred to as labeling definitions. The purpose of this function is to avoid unnecessary repetition hence promote easier understanding by reducing the quantity of verbal symbols required to convey the intended meaning. Sometimes this function uses the device of phrase to denote a concept which requires some length to express it adequately. For instance, the use of the term “the union’ to mean the union of Tanzania and Zanzibar. However, the overuse or misuse of definitions can reduce readability through adding the difficulties of construction. Therefore, before drafting definitions, the drafter must be sure of the intended purpose of definition.

2. PRINCIPAL PROVISIONS. 

These includes sub parts which are;

(i) Substantive provisions. The content of this part depend on the objective of such bill. Often, this is the central body of the bill. It provides in details for the matter to be regulated and how such matters are regulated and on how is vested to regulate such matter.

(ii) Administrative Provisions. This part give details on implementation of the law. That is the manner in which the law will be implemented if such bill is assented, establishment of a certain body or entity and other procedural matters.

(iii) Miscellaneous Provisions. This part provides for the power to make rules or regulation or other 8information regarding the enforcement of the law.

3. FINAL PROVISIONS. 

These provisions address issues of repeal and consequential amendments and schedules.

2.0 MAIN DISCUSSION.

The preparation and consideration of a Bill is a multi-stage process which begins with preliminary preparations and ends with entry into force of the Act. Thus, in drafting of Bills, there are some laid procedures which are to be a complied in preparing a proposed law (Bill).

2.1 BILL DRAFTING PROCEDURES IN TANZANIA.

In Tanzania, in order to draft a Bill, firstly there must be a need for such bill. Thus, before a Bill is to be prepared, the need for a new law is identified. The need for a bill may arise from variety of cause, social, economic and political aspects. Many Bills originate in the ordinary course of administration and are result of experience in the administration of existing laws. However, there are some procedures to be observed so as to have a well drafted Bill. Therefore, the following are the procedures;

1. Formation of legislative policy.

It is an important underlying principle that before any law is made there must be a policy made. A policy is the strategy setting out the objectives of an institution or organization. It provides for certain  goals and targets to be achieved. Also, as defined by the Black`s Law dictionary, policy is the general principles by which a government is guided in its management of public affairs.  Worth noting that, a policy is not enforceable in Tanzania, hence in order for the government to enforce a certain policy, it      must enact legislation. However, in the context of legislation, a policy is a document which outlines what government aims to achieve for society as whole. Essentially, a policy sets out the goals and activities planned to achieve a certain purpose.

Thus, the first stage in the preparation of a Bill is the policy development. At this stage, administrative, financial and political considerations are more likely to be involved than legal considerations. Therefore, it is a ministry concerned which develop a legislative policy. However, during formation of legislative policy, there are considerations which are more and no less important which should be taken into accounts.

At this stage considerations to be taken are but not limited to;

(i) Research. The respective ministry will undertake comprehensive and comparative research on the matters to be regulated by the law.

(ii) Negotiation and public participation. Here, involves consultation with affected state entities and actors to ensure that all entities and persons likely to be affected by the policy contributes to the process in its formalities. It is at this level that the substantive contents of the draft policy framework are debated and negotiated with various stakeholders such as the public, legal training institutions, the legal fraternity (Bar Associations), Non-Governmental Organizations (NGOs), Civil Society Organizations (CSOs), Community-Based Organizations (CBOs), Law            Reform Commissions and all other interest groups.

(iii) Constitutional issues. That the constitutionality of the law sought to be enacted as a law demand the primary attention.

(iv) International treaties and treaties ratified by the state.

(v) Needs, emerging or possible changes that may be anticipated.

(vi) Ethical considerations and other concerns.

2. Policy approval and Cabinet assent in authorizing Bill drafting.

Policy and policy formulation are theoretical constructs devoid of legal consequences. Thus, in a practical term, will therefore require that a policy framer must be approved by the Cabinet. Thus, after developing a policy, the minister concerned approaches Cabinet with a proposal (Cabinet paper) for Cabinet to give authority to draft a Bill. Hence, the relevant policy committee of the Cabinet will be formed to consider the proposal of the ministry concerned and agree on the contents of the bill and the principles           on the basis of which a Bill is to be drafted.

When the Cabinet approves the principle for the drafting of a Bill, it authorizes the responsible minister to issue drafting instructions to the Attorney General vide Chief Parliamentary Draftsman (CPD) division since in Tanzania the Attorney General is vested with the power of draft legislative proposals into Bills for enactment into law;  and whose mandate is provided for by Section 12 of the Office of the Attorney General (Discharge of Duties) Act  and the Laws Revision Act.  Thus, the ministry concerned would then request the drafting of Bill on the basis of the approved principles as contained in a cabinet minute.

3. Issuance of drafting instructions.

Drafting instructions are directives given by the Cabinet to help the draftsman in drafting effective Bill within the confines and parameters developed.  A draftsman cannot be expected to be an expert in every field of knowledge and therefore he has to be instructed up to point where he will become qualified to deal with the subject matter from the legislative point of view. Therefore, before, embarking on drafting assignment, a draftsman must be clear on purposes of the intended Bill, means of achieving its purposes, and mischiefs or defects intended to be remedied.  Thus, the draftsman should be afforded with proper drafting instructions and must consciously work in close cooperation with the instructing department or the officer in ministry concerned to arrive at an agreed draft based on sound legal principles which give effect to the intended policy.  Hence, the main purpose of drafting instruction is to give the drafter everything he needs to produce a quality draft Bill.

However, drafting instructions must inter alia, state the followings;

(i) General factual background information on which the new legislation aims to address. This may be originated from issues raised and discussed in the media, political decision, judicial precedents, academic opinions or similar sources.

(ii) Aims of proposed legislation in detail.

(iii) Affected provisions and consequential amendments. That is, if the new legislation has effects to amend the existing law, the drafting instructions should indicate the provisions which need to be amended.

(iv) Commencement issues. Namely the date of entry into force on a specified day or on a day dependent on a specific event or on a day to be fixed.

(v) Any other information that the draftsman may reasonably require such as the substance of the law, the policy behind it, the machinery to implement it, the form it should be etc.

It is to be noted that, where drafting instructions are not clear to some aspects, the draftsman will ask 8the ministry concern for further instructions and where necessary request that ministry to identify an officer in ministry to cooperate with draftsman. 

4. Preparation of a Legislative Plan or Design stage.

A legislative plan is a document which provides the draftsman with the basic outlines, raised issues and possible content of the proposed legislation. Planning is the process of comparing the instructions with the existing policy. Here the draftsman takes into account the most rational method by which the law is divided into parts, sub-parts, schedules etc. preparation of a legislative plan facilitates communication of the content of the law and achieves objects of the drafting instructions. Crabbe, states  that:

“The important step in the drafting process is the preparation of the legislative scheme. Upon that scheme hangs the quality of the bill. The legislative scheme represents drafter`s mental picture of how will the Act of Parliament would look in structure and quality, in substance and in form. Without legislative scheme the resultant Act will look like a patchy, sketchy work. It will give the appearance of an ill-conceived, ill prepared piece of work. The legislative scheme is in effect, the architectural plan of the building that is called an Act of Parliament.” 

Thus, at this stage, the drafter will consider what elements are relevant and can therefore go into the bill. The most important is that, planning of a legislative plan aims at simplicity to achieve the object of the bill, avoiding the use of unnecessary concepts and to help the drafter to estimate a realistic time scale for accomplishment of drafting process. The structure or plan should be designed and presented in a simple manner so as to act as quality control for the Bill.  

Nevertheless, a legislative plan should include;

(i) Objects of the proposed law.

(ii) Title of proposed law. Although this is usually provided by the instructing agency, the draftsman may also develop a title that capture the overall objectives of the bill.

(iii) Substantive issues to be covered by the law. That is, how many parts, sections should be included in the bill. The use of schedules in Bills is essential.

(iv) Logical sequence of the bill. Example, where to put preamble, marginal notes, proviso etc.

(v) Implications of the proposed law. This involves making the following considerations:

• Analyzing the existing law to check if the proposed law has any impact thereon or vice versa.

• Constitutionality of the proposed law.

•      Analysis of the required standards of the law such as the effect on fundamental rights and freedom, retrospective application and so on.

5. Composition or Bill drafting stage

After the preliminary requirement being undertaken, the office of Attorney General will commence the      drafting process. Therefore, the draftsman will prepare and produce a draft which is technically called  zero draft which the ministry concerned will consider and comment on and re-drafting will continue until a final version of the is produced. Bill drafting is a difficult process and essentially a task that ought to be carried on under conditions which follow sufficient time. Thus, it is a desirable that a draft                  to be prepared by two draftsmen setting together or a senior draftsman supervising the work of junior draftsman. It is sometimes suggested that a drafting committee to be formed for drafting purpose.

General Principles during Bill drafting stage.

There are some principles which must be observed in drafting a Bill. Such principles include;

(i) Constitutional issues and qualified enactment procedure. 

All bills are to be drafted in a constitutionally sound manner. Every effort should be made to avoid drafting Bill that contradict the constitution and therefore requires the qualified enactment procedures used in the constitution. Also, if the Bill is significant in view of fundamental rights, care should be taken to avoid controversy with the international human rights obligations binding the country. 

(ii) The bill must be brief and concise.

 The draftsman should as much possible try to reduce the complexity in law. Thus, the draftsman should attain a degree of precision that will help lawyers to interpret the bill. Technical matters should be simplified and details on those technical issues provided for in subsidiary legislation or other administrative measures. Thus, the draftsman should have in mind             the audience he is drafting for.

(iii) The use of plain language.

The draftsman should observe the principle of plan language drafting by using simple words and shorter sentences as a means of producing quality Bill.  Keep in mind that, legal practitioners have been accused of writing complex legal instruments coupled with highly technical language and legalese.  Eagleson, a proponent of plain language drafting argue that, “plan language is clear, straightforward expression, using many words as are necessary. It is not baby talk; it is a simplified version of the English language”.  Thus, the draftsman must ensure that plan language is used to the extent that persons subject to the law should be able to easily understand the law that govern them.

Generally, in drafting it is important to observe the following language and syntax rules;

(a) Familiarity. Bill should be drafted by the use of sho2rt familiar words and phrases.

(b) Brevity. Good drafting uses short sentences which communicate only one message.

(c) Consistency. The same word should be used to express one meaning within the bill.

(d) Spelling. The bill should demonstrate constancy in the spelling of the words recurring in it.

(e) Clarity. A bill should be in clear, simple and precise language.

(f) Harmony. The bill should correlate with other existing laws on similar subject matter.

(g) Logic. The content in the proposed law should organized in a logic manner.

Therefore, as drafting principles, the draftsman and those who review Bill must avoid using archaic words, Latin expressions as well as avoiding using more words than necessary. Also, the draftsman should use proper tenses and observe proper punctuations. Nevertheless, the draftsman has responsibility to ensure that the proposed law is consistent with the constitution, the existing laws and fundamental principles of fairness. Thus, in achieving this, it not good for the drafter to draft under constant pressure of the time deadlines.

6. Scrutiny stage.

The last stage of the drafting process is scrutiny and testing of the Bill to prove whether the draftsman  has full complied with the drafting instructions. At this stage, the drafted bill is tabled to the stake holders or a team of experts in drafting, editing and linguists for assessment in a properly, seriously and systematically examination of the bill and making necessary recommendations or corrections where applicable.

Generally, after the conclusion of this long process the Bill will be complete drafted. Moreover, according to Thornton who was renowned and eminent drafter, proposed that there are five stages in legislative drafting process, namely; understanding, analysis, design, composition and scrutiny. Thus, after undertaking the aforesaid stages the Bill will be concluded drafted.

2.2 PROCEDURES AFTER BILL DRAFTING.

Upon the accomplishment of Bill drafting, there are next steps to be taken before embarking into parliamentary processes. These            are;

1. Presentation of bill to the Cabinet for Approval.

Cases involving legislation have to be brought before the Cabinet for the decision. Therefore, after a Bill to be drafted the ministry concerned will have to submit the Bill to the Cabinet for approval together with any comments of the stakeholders. The cabinet may approve or reject the Bill or may approve the Bill subject to some amendments. If the Bill is approved, the cabinet may direct the ministry concern                  to conduct consultation meeting with relevant stakeholders where such Bill will be exposed to the ministerial level, Permanent Secretaries and to the public to be open for discussion and comments by the public. If there are any amendments, then the office of Attorney General will incorporate such any amendments in a Bill as approved by the cabinet.

2. Publication of the Bill.

After the Bill has been approved by the Cabinet, it is to be published in the Government Gazette with a statement of its objective and reasons for its introduction and then it has to be signed by the Minister or Member of Parliament in charge of the Bill. The Government Gazette means the journal which is published at regular interval and issued by the Government through the Government printer to publish legal notices or to make legal announcement to the public. Such bill must be published in at least two issues of the gazette at intervals of not less than seven clear days. 

The first publication of a Bill must contain its full text, and must be published at least twenty-one days before it is introduced in the National Assembly for first reading.  The second publication of the Bill is deemed to have been made by the insertion of a notice in the Gazette naming the title of the Bill, plus the number and date of the Gazette in which it was first published. 

The main rationale for publishing draft Bills before being introduced into Parliament is basically to enable citizens to be in a position to know what laws are being contemplated and provide input and comments. This is especially true in view of the presumption that ignorance of the law is not a defense. Also, there is a need for objective scrutiny of the draft Bill from stakeholders who may be more knowledgeable and therefore be better placed to provide better insights from hands on experience, especially on technical aspects of the Bill. 

However, the procedure for publication process of the Bill may be dispensed with in respect of a government Bill if the Bill is of such so urgent. In that case, the Minister in charge of the Bill or the Attorney General or the Member of Parliament for Private Bill may file the Bill together with the Certificate of Urgency. The Certificate of Urgency shall be signed by the President for the Public Bill or signed by the three third of all Members of the Committee responsible for the Bill or signed by at least ten Members of Parliament for private Bill introduced by individual Member of Parliament as provided for under Rule 80 (4) and 81(5)  of the Parliamentary Standing Order of 2020. Furthermore, the Certificate shall state that the Bill is of such an unusually urgent in nature that time does not permit compliance with the prescribed procedures.

Attorney General or the Member of Parliament for Private Bill may file the Bill together with the Certificate of Urgency. The Certificate of Urgency shall be signed by the President for the Public Bill or signed by the three third of all Members of the Committee responsible for the Bill or signed by at least ten Members of Parliament for private Bill introduced by individual Member of Parliament as provided for under Rule 80 (4) and 81(5)29 of the Parliamentary Standing Order of 2016. Furthermore, the Certificate shall state that the Bill is of such an unusually urgent in nature that time does not permit compliance with the prescribed procedures.

CONCLUSION.

In Tanzania, Private Bill involves different procedures, that is, the Member of Parliament who intends to present the private Bill is required to notify the Clerk of the Parliament of his intention as provide for under Rule 81(2) of the Parliamentary Standing Order30. The notice shall have to describe the name of the Bill and describes fully the objects and reasons of the Bill. As far as printing and publication is concerned, the procedure is exactly the same as for government Bills. That is, where after the Clerk to receive the notice and satisfied that the notice is proper; he shall cause such Bill to be drafted under the expenses of the Parliament. However, most of the Bills presented in the Parliament for approval to become laws are Public Bills. In practice, it is very difficult for the Private Bill to receive the same consideration as that of Public Bills although this is not to say they are not allowed. This is because the Government controls all the proceeding and administration of the law from stage of initiating the Bill up to the final stage of obtaining the Presidential Assent to become the law. Thus, in Tanzania, most of the legislations are the result of Public Bills which are initiated by the Ministers responsible or the Attorney General on the behalf of the Government.

 

REFERENCES

STATUTES.

The Constitution of the United Republic of Tanzania of 1977. 

The Interpretation of the Laws Act [CAP 1 R. E 2019]

The Laws Revision Act, Cap. 4 [R.E. 2002].

The Office of Attorney General (Discharge of Duties) Act, 2005.

The Standing Order of the Parliament of the United Republic of Tanzania of 2016.

BOOKS

How a Bill Become an Act? (2014). Lok Sabha Secretariat: New Delhi. India.

Issa, O (2018). Legal System of Tanzania (Laws and Courts), 3rd edn. Muson Printing and General Supply Co.

Sarvilinna, S (2006). Bill Drafting Instructions. Ministry of Justice publication, Finland.

Thornton, G (1996). Legislative Drafting, 4th Ed. Butterworth.

ONLINE ARTICLES

Donald, R (2011). Enhancing the Legislative process: The Value of the Legislative Drafter, Statute Law Review. Oxford University Press

Kobba, J (2008). Criticism of the Legislative Drafting Process and Suggested Reform in Sierra Leone. European Jornal of Law Reform, Vol.10

Majamba, H (2017). The Paradox of the Legislative Drafting Process in Tanzania. Statute Law Review, Vol.00, No.00, pp.1-3. Oxford University Press. Pdf, https://www.academic.oup.com.

Mbaya, P., Madu, C & Adole, R (2013). The Processes of Law Making in a Presidential System of Government: The Nigerian Experience. Asian Social Science; Vol. 9, No. 2; 2013. Published by Canadian Center of Science and Education, pdf, http://dx.doi.org/10.5539/ass.v9n2