For those in UK and commonwealth jurisdictions, while drafting legislation, it is suggested that you use per cent (in its two-word form). For those in the US, the word percent is the one that accords to best usage. This article explains why.
While reading the Political Parties (Amendment) Bill, 2021, I pondered more on the use of the words per cent in Clause 15 of the Bill. I then wondered which of the following words would have been most appropriate in that Bill: percent, per cent or per centum.
It is a confusing matter.
To illustrate this, let us look at a few Kenyan legislation.
41. Capital adequacy
(1) An insurer carrying on insurance business in Kenya shall at all times maintain the capital adequacy ratio of one hundred per centum.
[Section 41(1), Insurance Act]
5. (3) For the purposes of subsection (2)(e), the value of premises, excluding the value of any furniture or other contents so provided, shall be deemed to be—
(a) in the case of a director of a company, other than a whole time service director, an amount equal to the higher of fifteen per centum of his total income excluding the value of those premises and income which is chargeable under section 3(2)(f), the market rental value and the rent paid by the employer;
(b) in the case of a whole time service director, an amount equal to the higher of fifteen per centum of the gains or profits from his employment, excluding the value of those premises, and income which is chargeable under section 3(2)(f), the market rental value and the rent paid by the employer;
(c) in the case of an agricultural employee required by the terms of employment to reside on a plantation or farm, an amount equal to ten per centum of the gains or profits from his employment:
Provided that for the purposes of this paragraph—
(i) “plantation” shall not include a forest or timber plantation; and
(ii) “agricultural employee” shall not include a director other than a whole time service director;
(d) in the case of any other employee, an amount equal to fifteen per centum of the gains or profits from his employment, excluding the value of those premises or the rent paid by the employer if paid under an agreement made at arm’s length with a third party, whichever is the higher:
(i) where the premises are provided under an agreement with a third party which is not at arm’s length, the value of the premises determined under this subsection shall be the fair market rental value of the premises in that year, or the rent paid by the employer, whichever is the higher; or
(ii) where the premises are owned by the employer, the fair market rental value of the premises in that year.
[Section 5(3), Income Tax Act]
124. When a director connected with a body corporate for purposes of this Part
(1) In this Part, a director is connected with a body corporate if, but only if, the director and the persons connected with the director together—
(a) are interested in shares comprised in the equity share capital of the body corporate of a nominal value equal to at least twenty percent of that share capital; or
(b) are entitled to exercise or control the exercise of more than twenty percent of the voting power at any general meeting of that body.
[Section 124(1), Companies Act]
6.(2) Without prejudice to the generality of subsection (1), the Board shall—
(a) co-ordinate the optimal utilisation of the Fund in implementation of programmes relating to the maintenance, rehabilitation and development of the road network;
(b) seek to achieve optimal efficiency and cost effectiveness in roadworks funded by the Fund;
(c) manage the Fund;
(d) based on a five year road investment programme approved by the Minister and the Minister for Finance, determine the allocation of financial resources from the fuel levy required by road agencies for the maintenance, rehabilitation and development of the road network to ensure that the allocation of funds is pegged to specific categories of roads and that not less than—
(i) twenty-two percent, which shall be deposited into a special bank account to be called Constituency Roads Fund Account to be maintained by every Constituency of the monies from the fuel levy is allocated equally to all constituencies in the country to be administered by the Rural Roads Authority;
(ii) ten percent of the monies from the Fund is allocated for the maintenance or development of link roads between constituencies and to serve as Government counterpart funds in funding works on rural roads, to be administered by the Kenya rural Roads Authority and that the said percentum shall be equally distributed to the Constituencies where Kenya Rural Roads Authority has the mandate;
(iii) forty percent of the monies from the fuel levy is allocated in respect of the national roads to be administered by the National Highways Authority;
(iv) fifteen percent of the monies from the fuel levy is allocated in respect of the urban roads to be administered by the Urban Roads Authority; and
(v) one percent of the monies from the fuel levy is allocated in respect of roads in national parks and reserves to be administered by the Kenya Wildlife Service, and
(vi) a maximum of two percent of the monies from the Fund is allocated in respect of the recurrent expenditure of the Board under section 31(5);
(e) ensure that the remainder of the monies from the Fund described in paragraph (d) shall be allocated annually by the Board with the approval of the Minister to road authorities based on an annual work programme derived from the five-year road investment programme approved by the Minister responsible for roads and the Minister for Finance;
(f) ensure that a maximum of ten percent of all monies allocated to each road agency is utilized for development purposes by said agency;
(g) monitor and evaluate, by means of technical, financial and performance audits, the delivery of goods, works and services funded by the Fund;
(h) in implementing paragraph (g), pay due regard to public procurement and disposal regulations and additional guidelines issued or approved by the Minister;
(i) recommend to the Minister appropriate levels of road user charges, fines, penalties, levies or any sums required to be collected under the Road Maintenance Levy Fund Act, 1993 and paid into the Fund;
(j) recommend to the Minister such periodic reviews of the fuel levy as are necessary for the purposes of the Fund; and
(k) identify, quantify and recommend to the Minister such other potential sources of revenue as may be available to the Fund for the development, rehabilitation and maintenance of roads;
(l) the Highways Authority, the rural Roads Authority and the Urban Roads Authority may utilize such portion of monies received from the Fund for operational and administrative expenses as may be approved by the Minister on the advice of the Board:
Provided that such expenditure shall not in any year exceed, as a proportion of the projected annual expenditure of the Fund—
(i) in the case of the Highways Authority, four percent;
(ii) in the case of the Rural Roads Authority, five and half percent; and
(iii) in the case of the Urban Roads Authority, five and a half percent. [Act No. 3 of 2005, Fourth Sch., Act No. 2 of 2007, Fifth Sch., Act No. 8 of 2009, s. 74, Act No. 26 of 2019, s. 2.]
[Section 6(2), Kenya Roads Board Act]
33. (2) Without prejudice to the general provisions of sub-section (1), the County Treasury shall establish a procurement function which shall—
(g) promote preference and reservation schemes for residents of the county to ensure a minimum of twenty percent in public procurement at the county;
[Section 33(2) (g), Public Procurement and Asset Disposal Act]
The Oxford Advanced Learners Dictionary defines per cent as “one part in every hundred” giving the example, “Poor families spend about 80 to 90 per cent of their income on food”.
Bryan A. Garner, in Garner’s Modern English Usage elaborates on the usage of percent and per cent. He establishes the evolution of the word from per centum to per cent. to percent and per cent. Garner states that “[t]he solid word became predominant in AmE about 1968; in BrE the two-word form predominates.”
For a drafter in a commonwealth jurisdiction, it follows then that one should use per cent. To our American friends: percent.
What are your thoughts?
ayes & nays