PRINCIPLES OF DRAFTING THE LEGISLATIVE SENTENCE

By Florence Nakachwa Dollo

Legal Consultant

Introduction
There are three processes involved in the preparation of legislation. They
are:
(a) the determination of the legislative policy;
(b) the creation of the legislative scheme, that is, the conception of the
ideas that are to be expressed and
(c) the drafting of the sentence that expresses the policy or purposes
of the policy proposals.

The formulation or determination of the legislative policy is the preserve

of the policy maker. In Kenya, Uganda and Tanzania, it is mostly the
work of government to determine the policy for legislation; though a
private Member of Parliament could also originate legislation. The
creation of the legislative scheme is the work of Parliamentary Counsel or
the drafter of legislation. The latter also drafts the sentences that comprise
a piece of legislation.

Drafting the Sentence

The basic rule is to draft short simple sentences. The structure of the
sentence is very important. Big gates swing on little hinges. Hence, on the
structure of the sentence hinges all the problems which are likely to
plague the law. The rules of grammar and syntax are very important. A
legislative sentence should be grammartically correct. Clarity of
expression is equally important.

Basically, the law consists of

(a) the person on whom an obligation is imposed, or on whom a
power or a privilege is conferred;
(b) what is required to be done or not to be done;
(c) the circumstances, where appropriate, under which it is intended
that the law should operate, and
(d) the conditions, where appropriate, subject to which an act may or
may not be done or shall or shall not be done.

The Legal Subject

The subject of a sentence is a noun or an equivalent of a noun. In a
legislative sentence, it is the person on whom an obligation is imposed or

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on whom a power, privilege or right is conferred. The subject of a
legislative sentence is often referred to as the legal subject which or who
need not be a person. Example:

This Act may be cited as the Public Holidays Act, 2010.

However, where an obligation is imposed, the legal subject must

necessarily be a person. Example:

The editor of a newspaper shall, within thirty days of the establishment

of the newspaper and before an issue of the newspaper is published, file
with the Registrar General the declaration specified in the schedule.

In the above example, the legal subject is the editor of the newspaper.
The application of the law is limited to a particular class of people that is,
to persons described as editors. The law does not apply to all persons.
Where the law is supposed to apply to all persons generally, the legal
person will be expressed thus:

A person shall not enter a swimming pool unless the person wears a
bathing suit.

The legal person here, though expressed in the singular, applies to all
persons. It is a universal description.

Two or more persons may form the legal subject. Example:

(a) The managing director or the secretary of a company registered

under this Act shall file with the Registrar of Companies the
particulars specified in section 64.

(b) A doctor and a nurse shall be present at the birth of a child

under section 15.

In (a) either the managing director or the secretary of the company could
file the required particulars. It is not necessary that both should file the
particulars. In (b), both the doctor and nurse have to be present. Here also
note the significance of „or‟ and „and‟ in the two sentences.

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The Predicate
The predicate of a grammatical sentence is what is said about the person
or thing forming the subject of the sentence. It is the same with a
legislative sentence; it contains the enacting verb of the legislative
sentence and determines what is required of the subject of the sentence.
The predicate in a legislative sentence is often referred to as the legal
action. Example:

A police officer may, without a warrant, arrest a person whom the

police officer suspects of having committed an offence.

Two or more verbs may be used in the predicate. Example:

An appellant
(a) may, within fourteen days of delivery of the judgment of the
court, file a notice of appeal, and
(b) shall serve a copy of the notice of appeal on the respondent.

Two separate actions are required here. One is discretionary and the other
is mandatory. The filing of the notice of appeal is at the discretion of the
appellant but the service of the copy on the respondent is mandatory.
Consider the following sentence;

A police officer shall arrest and detain a person who has escaped from
police custody.

There is a command for both actions to be taken. In other words, having

arrested the person who has escaped, the police officer is supposed to
detain that person. In the sentence,

A police officer shall not arrest or detain a person unless the police
officer informs that person of the reasons for the arrest or detention

‘arrest’ and ‘detain’ are two separate acts. Note again, the use of „or‟ and
„and‟ which is very important in bringing out the distinction in meanings
of a legislative sentence.

Circumstances and Conditions

The circumstances under which the law operates when properly
expressed, adds to the clarity and precision of the law. For example,
Section 42(1) of the Penal Code Act, Cap 120 of Uganda provides as
follows:

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When any person is convicted of printing a seditious publication, the
court may, in addition to any other penalty it imposed, order the
printing machine on which the publication was printed to be
confiscated for a period not exceeding one year whether or not the
person convicted is the owner of the machine.

Section 42(2) of the Penal Code Act provides that

When any proprietor, publisher, printer or editor of a newspaper as

defined in the Press and Journalist Act is convicted of printing or
publishing a seditious publication in a newspaper, the court may, in
addition to any other punishment imposed and in addition to ordering
the confiscation of the printing machine, make an order prohibiting
any further publication of the newspaper for a period not exceeding one
year.

The phrase „when any person is convicted of publishing a seditious

publication‟ in section 42(1) states the circumstances the prevalence of
which leads the court to order the confiscation of the printing machines.
In other words, in the absence of the circumstances mentioned at the
beginning of both (1) and (2), no orders shall be made by the court. The
word „where‟ could also have been used instead of „when‟ to state a
circumstance in the above examples.

To state a condition, if is normally used. Example:

If the appellant complies with section 24, the court shall order the
respondent to pay into court an amount of money equivalent to the sum
of money claimed by the appellant.

If the appellant does what the law requires of him or her, the court is
bound to make the order for the payment into court. If the appellant does
not comply with section 24, then the court cannot order the payment into
court. The exercise of the court‟s power is dependent upon the appellant
complying with the requirements of section 24.

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Please revise the exercises listed below.

EXERCISE 1

Dogs not allowed in food stores and public eating places.

(a)What, if any, is wrong with the above provision?
(b) Redraft it as a penal provision.

EXERCISE 2

All motor vehicles carrying loads of rock, stone, gravel, salt,

sand and other loose materials shall have such loads securely
covered with a tarpaulin or other suitable means when using
public highways.
(a)What, if any, is wrong with the above provision?
(b) Redraft it as a penal provision.

EXERCISE 3

Read the following provision: “When two trains approach each

other at a crossing, they shall both stop, and neither shall start up
until the other had gone.”
(a) What is wrong with the above provision?
(b) Redraft it into effective sentences.