I have been in New Orleans, Louisiana, this past week in a two-week course on legislative drafting organized by the Public Law Centre of the Tulane Law School. This first week has been exciting. We have had brilliant presentations on the US and Parliamentary Systems, Legislative and Administrative Drafting, Formulary Introduction, Plain Language Drafting, Technology for Drafting, Africa Colloquium, Constitutional Drafting, Regulatory Drafting, Data Privacy Law versus Data Processing Regulations, Ambiguity, Drafting Criminal Penalties, Legislative Drafting and the Courts, and Drafting Freedom of Information Laws.
During these discussions, I found myself drawing comparisons between how we do “our things” back in Kenya and how Louisiana does “its things”. Here’s a quick comparison.
#1 Bill Title
In Louisiana, the Bill title begins with the abbreviation HB (to mean House Bill) or SB (Senate Bill) followed by the Bill’s number. For instance, we have HB536, HB507 e.t.c. You can look it up here.
In Louisiana, therefore, they may find it odd if you were to go around looking for a Bill with the title Kenya Coast Guard Service Bill.
In Kenya, the title of a Bill does not consist of numbers but words, mostly.Let us take this example of a Bill under consideration by the National Assembly of Kenya. If you were to ask to get the Bill’s copy, how will you call it? The Kenya Institute of Curriculum Development (Amendment) (National Assembly Bill No. 33) Bill, 2019. The National Assembly assigns numbers to its Bills but you will notice that the title of the Bill are in words, mostly.
#2 Line Numbers
In Louisiana, they have line numbers on their Bills whereas in Kenya we don’t. You can check out one of the Bills here.
The attractiveness of line numbers is that making references to words in the Bill is easier since you just say, “Go to line 7”. Back at home, you will say, “See the words coming immediately after the words ‘shall be liable’?” And you have to process that and try to locate the words. Line numbers can be a good tool during the Committee of the whole House or even when Committees are deliberating on a Bill.
However, since I am not used to it and I am biased here, I don’t like it.
#3 Textual versus non-textual amendment
In Louisiana, they have adopted the textual amendment while in Kenya we follow the non-textual amendment tradition. Below Louisiana’s Bills are the words:
CODING: Words in
struck throughtype are deletions from existing law; words underscored are additions.
(My apologies, I couldn’t manage to underline the word “underscored” because I couldn’t find the tool here)
I have indicated elsewhere that I support textual amendment since it is easier to understand and follow. The “delete and substitute therefor” and “immediately after” and all the mumbo jumbo of non-textual world is confusing. Tied up to the previous #2, the line numbers come in handy. ( I reiterate that I still don’t like the line numbers, though. Let us see if I will change my mind tomorrow).
To get a feel of how Committee Stage Amendments look like, here are a few examples.
♦ Example one
AMENDMENT NO. 1
On page 1, delete line 2 and insert”To amend and reenact R.S. 32:291 and Civil Code Arts. 3492 and 3493, to enact Code of Evidence Art. 416, and to repeal R.S.32:295.1(E), relative to civil liability and damages; to provide relative”
♦ Example two
AMENDMENT NO. 24
On page 6, line 22, change “bureau” to “sheriff”
AMENDMENT NO. 25
On page 6, line 25, after “case” insert “, the suit number,”
♦ Example three
AMENDMENT NO. 4
On page 1, online 15 after “shall”delete the remainder of the line,delete line 16, and online 17, delete “statutory dedications that include a fee for service,”and insert: “
conduct a performance audit on each statutory dedication that includes a fee for service review the cost recovery budget request forms completed for each budget unit in the executive branch of state government as provided in Act No. 1001 of the 2010 Regular Session of the Legislature,”
#4 Prescriptive versus descriptive
In civil law jurisdictions, like Louisiana’s, provisions in laws are couched generally instead of common law jurisdictions, like Kenya’s, where a provision will be stacked with subclauses, paragraphs and subparagraphs.
Let us look at one example of of a provision of a law which has since been enacted in Louisiana.
A. All free-standing birth centers shall be licensed by the Louisiana Department of Health. No facility, place, center,agency, person, institution,corporation, partnership, unincorporated association, group, or other legal entity providing free-standing birth center services shall be established or operated, or be reimbursed under the Medicaid program, unless licensed as a free-standing birth center by the department to perform such services.
In a common law jurisdiction, this provision would have been instinctively redrafted into subclauses, and paragraphs, if possible. Here’s how it might look like:
3. (1) All free-standing birth centers shall be licensed by the Louisiana Department of Health.
(2) Despite subclause (1), a facility, place, center,agency, person, institution,corporation, partnership, unincorporated association, group, or other legal entity providing free-standing birth center services shall not be established or operated, or be reimbursed under the Medicaid program, unless licensed as a free-standing birth center by the department to perform such services.
Note: Subclause (2) is still unwieldy, but I think you catch the drift.
#5 Bill digests versus memorandum of objects and reasons
In Louisiana, Bill digests accompany Bills. In Kenya, our version is called the Memorandum of Objects and Reasons. In Louisiana’s digest, they make it clear that “It constitutes no part of the legislative instrument. The keyword, one-liner, abstract, and digest do not constitute part of the law or proof or indicia of legislative intent.” The digest takes the form of indicating “present law” and “proposed law”.
In Kenya, our memorandum of objects and reasons contains the following elements:
♣ An explanation on what the Bill’s objectives and history, if any
♣ Statement on the delegation of legislative powers and limitation of fundamental rights and freedoms
♣ Statement as to whether the Bill concerns county governments
♣ Statement as to whether the Bill is a money Bill within the meaning of Article 114 of the Constitution.
This is a 100 metre dash on drawing comparison between two legislative drafting traditions. I share them here as a basis for discussion. Hopefully, in future, I will be revisiting these issues after careful introspection.
Image credit: NRA-ILA
ayes & nays