Panic over Bills as drafters quit
Published on May 22, 2008, 12:00 am
By Ben Agina
Government legislative agenda could be paralysed amid reports that lawyers charged with drafting laws have quit the State Law Office in droves in search of greener pastures.
The move by the lawyers — known as drafters — is bound to delay the flow of Bills to Parliament. The drafters are understood to have cited poor remuneration, favouritism and nepotism as reasons for leaving.
The Standard has established that the State Law office has assembled seven new trainees to fill the gap left by four senior officials, who have been drafting proposed laws for the last 10 years.
The four officials — at the level of Senior Parliamentary Counsel — quit in one year. The State Law Office, which on Monday was ranked last by a Government performance contract evaluation report, now has only four experienced drafters, The Standard learnt.
Those who have left include Mr Gad Awuonda, who has joined the Kenya National Commission on Human Rights, Mr Jeremiah Ngenyenye, Mr Jeremiah Ndombi, who moved to Parliament, and Mr Samuel Keter, who has joined the Rural Electrification Authority.
The four drafters left behind are Ms Margaret Nzioka, the chief parliamentary counsel, her deputy, Ms Elizabeth Ng’ang’a, Ms Linda Murila, the senior principal parliamentary counsel, and Mr James Mwenda, the senior parliamentary counsel).
Sources told The Standard that training a competent drafter takes between seven and 10 years.
Some drafters at the State Law office were taken for a four-month training course at the Royal Institute of Public Administration in the UK, where the Government spent Sh5 million on each counsel.
What they are paid
Last year, the State Law Office advertised in the local newspapers, six positions for principal parliamentary counsel (read drafters), but failed to get applicants.
A parliamentary counsel II earns Sh31,000, parliamentary counsel I Sh35,000, senior parliamentary counsel Sh37,000, principal parliamentary counsel Sh42,000, deputy parliamentary counsel Sh100,000 and chief parliamentary counsel Sh150,000.
The number of drafters in Kenya is a far cry from that of other countries: Hong Kong has 156 and Canada 213.
A drafter’s role is to ensure that Government policy is expressed effectively in legislation. If legislation is not properly drafted, it is unlikely to implement policy effectively.
Legislation must be clear and accurate. This link to legislation — a form of law — explains why drafters have traditionally been drawn from the legal profession.
Legislative drafting is intellectual and requires hours of concentration, planning and strategy.
Sometimes, legislation may be urgent and far-reaching constitutional amendments.
However, in emergencies, orders, directives or notifications affecting life and liberty are drafted at top speed.
Drafters work through a number of drafts before they arrive at the final one. They study preliminary drafts, revise and then re-write them again. There may be calls for further clarification from sponsoring ministries.
During the opening ceremony of Parliament in March, President Kibaki outlined the Government’s legislative agenda. He said the Coffee and Sugar Acts would be amended.
The aim would be to restructure the sugar industry, introduce Bills and sessional papers covering poultry, dairy and fishing industries, among others.
For tourism to perform better, the President said the Government would table three Bills — Environmental Impact Assessment Regulations Guidelines and the Tourism and Wildlife Bills.
To tackle poverty, the Government has lined up a sessional paper on Co-operative Development Policy and a Bill on Savings and Credit Co-operatives.
The Government has also lined up Bills to regulate non-public entities such as civil society and international education providers.
According Prof James Crabbe, the man who helped craft the Bomas Draft, the need to train more and more parliamentary Counsel has never been greater.
“There is always a shortage of experienced parliamentary Counsel. In some countries, if outside assistance is withdrawn, there would not be a single parliamentary Counsel to draft legislation for the government,” Crabbe says in a journal.
He adds that drafting was a critical need and it has not been possible for many young independent countries to provide, in the absence of formal training, supervised in-service or on-the-job training and apprenticeship.
He explains that this is due to a shortage of experienced parliamentary Counsel and the demands made on the experienced.
Government policy ranges from policies that departments want expressed in legislation to broader policies of Government that should be reflected in legislation.
This presupposes that policy and legislation are different and there is a process for transforming one into the other. The drafter is at the heart of the process.
The difference between legislation and policy is this: One is law and the other is not. Law operates within a relatively closed system of rules superintended by lawyers and judges.
It is a tool for implementing policy through legal entities or rights, or ascribing legally enforceable consequences to events or situations.
This underscores the critical role of the drafter. The drafter must not only appreciate what legislation is intended to accomplish, but also know how to convey meaning.
In addition, the fact that legislation embodies the law, and does not merely describe it, suggests that a drafter is much more than a stenographer or printer.
The drafter plays a critical role in determining the effect of legislation. Drafting is not just writing words to express ideas. It begins with understanding what is to be expressed.
The process of understanding ideas also involves analysing, critiquing and developing them.