THE INSTITUTE OF LEGAL PRACTICE AND...

DIPLOMA IN LEGISLATIVE DRAFTING

THE INSTITUTE OF LEGAL PRACTICE AND DEVELOPMENT (ILPD)

Contents

Module 1: Introduction to Legislative Drafting ............................................................... 1

Module 2: Professional Responsibility .............................................................................. 7

Module 3: Policy Development and the Problem-Solving Approach ....................... 15

Module 4: Research Before Drafting ................................................................................ 25

Module 5: Understanding the Legal Context for New Legislation ............................ 33

Module 6: Fundamental Principles of Drafting Legislation ........................................ 41

Module 7: Efficiency and Use of Technology in Drafting Legislation ...................... 47

Module 8: Legislative Style ................................................................................................ 53

Module 9: Particular Legislative Provisions ................................................................... 61

Module 10: Organization and Structure of Legislation ................................................ 67

Module 11: Subsidiary Legislation ................................................................................... 75

Module 12: Amendment and Repeal ................................................................................ 81

Module 13: Statutory Interpretation ................................................................................. 87

Module 14: International Instruments ............................................................................. 97

Module 15: Principles of Good Governance ................................................................. 103

Module 16: Matters of Translation.................................................................................. 109

Module 17: Training in Substantive Law Subject Areas ............................................ 115

MODULE DESCRIPTION FORM

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Module 1: Introduction to Legislative Drafting

1. Module Title

“Introduction to Legislative Drafting”

2. Credits

6.0 credits.

3. First Year of Presentation

2010

4. Prerequisite or Corequisite Modules, Excluded Combinations

(a) Prerequisite

The following must be completed before taking this module:

Bachelor of Laws (LL.B.) or equivalent degree.

(b) Possible Corequisites

The following may be taken concurrently with this module:

Module 2: Professional Responsibility

Module 5: Understanding the Legal Context for New Legislation

Module 7: Efficiency and Use of Technology in Drafting Legislation

(c) Excluded Combinations

The following may not be taken concurrently with this module:

Module 3: Policy Development and the Problem-Solving Approach

Module 4: Research Before Drafting

Module 6: Fundamental Principles of Drafting Legislation

Module 8: Legislative Style

Module 9: Particular Legislative Provisions

Module 10: Organization and Structure of Legislation

Module 11: Subsidiary Legislation

Module 12: Amendment and Repeal

Module 13: Statutory Interpretation

Module 14: International Instruments

Module 15: Principles of Good Governance

Module 16: Matters of Translation

Module 17: Training in Substantive Law Subject Areas

MODULE DESCRIPTION FORM:

MODULE 1: INTRODUCTION TO LEGISLATIVE DRAFTING

2

5. Allocation of Study and Teaching Hours

Total Hours Student Hours

Staff Hours

Lectures 44.00 88.00

Practical Classes / Laboratory 0.00 0.00

Structured Exercises 3.00 0.00

Set Reading, etc. 5.00 1.00

Self-Directed Study 0.00 0.00

Assignments – Preparation and Writing 0.00 0.00

Examination – Revision and Attendance 8.00 6.00

TOTAL 60.00 95.00

For additional detail about time allocation for this module, see detailed module plan in Annex 1.

6. Brief Description of Aims and Content

This module introduces students to the importance of legislative drafting, the concepts and processes involved, and the main challenges facing drafters generally, and in Rwanda and the East African Community specifically.

7. Learning Outcomes

(a) Knowledge and Understanding

Having successfully completed the module, students should be able to demonstrate knowledge and understanding of:

(1) Requirements, expectations, and policies of the diploma course generally, this module in particular, and this module’s instructor.

(2) Distinction between legislative drafting and legal drafting.

(3) Concepts and terminology related to legislation and legislative drafting.

(4) Different roles and duties of drafters working within various legislative positions within the governmental institutions and offices of the executive and legislative branches.

(5) The role and functions of drafters in the legislative process in Rwanda — both in principle and in practice.

(6) The distinction and separation between drafters and policymakers.

(7) Importance of communication and collaboration between drafter and policymaker(s) in the legislative process.

(8) The principal objectives for which drafters should work and the fundamental practices that are most likely to contribute to achieving them.

(9) The various types of legislative instruments in use in Rwanda and East African Community member states.

(b) Cognitive / Intellectual Skills / Application of Knowledge

Having successfully completed the module, students should be able to:

(1) Explain the terminology used in legislation and legislative drafting.



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(2) Read and understand a legislative sentence.

(3) Read and understand a bill.

(4) Identify the basic skills needed in legislative drafting.

(5) Identify the major steps in the legislative drafting process generally.

(6) Read, understand, and evaluate drafting instructions for a new bill.

(c) Communication / ICT / Numeracy / Analytic Techniques / Practical Skills


(1) Name and describe the different types of legislation in use in Rwanda and East African Community member states.

(2) Describe the legislative process in Rwanda and the relevant legal authorities that set out the framework for that process.

(3) Describe the different roles of legislative drafters in the different governmental institutions in Rwanda.

(4) Communication and collaborate effectively with policymakers and other drafters involved in the legislative process.

(d) General Transferable Skills


(1) Distinguish between the role of a legislative drafter and the role of the policymaker.

(2) Distinguish between legal drafting and legislative drafting.

8. Indicative Content

The following topics will be addressed in this module:

(1) Administrative and “housekeeping” issues.

(a) Review of course and instructor policies and expectations.

(b) Overview of course materials and methodology.

(c) Description of resources available for the course.

(2) What is meant by legislation and legislative drafting?

(3) Terminology of legislation and legislative drafting.

(a) What is “legislation”?

(b) Different types of “legislation” in Rwanda.

(c) Different types of “legislation” in the East African Community and its member states.

(d) Different types of “legislation” elsewhere.

(e) Different types of “international instruments”.

(f) The concept of “separation of powers”.

(g) Legal drafting vs. legislative drafting.

(h) The separation of legislative form /style from content /substance.



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(i) Other legislative terms.

(4) Overview of the modules in the diploma course.

(5) What makes a good legislative drafter? (Attributes important to drafters and drafting.)

(6) Importance of communication and collaboration between drafters and policymakers in the legislative process.

(a) Importance of oral and written communication skills.

(b) What does the client / policymaker expect from the drafter?

(c) What does the drafter need from the client / policymaker?

(d) Managing client expectations.

(e) What are “drafting instructions” (or policy statements) and how can they help both the drafter and the policymaker?

(7) Role of the legislative drafter as legal technician, not policymaker.

(a) Separation of policymaking duties from drafting duties.

(b) Role of Parliamentary Counsel generally.

(8) Role of the legislative drafter within the legislative process in Rwanda. The specific roles and duties of drafters working within various legislative positions within the governmental institutions and offices of the executive and legislative branches.

(a) Drafters in the Parliament: (i) when working with individual Members of Parliament, (ii) when working with committees, (iii) when working with political or other groups or factions, and (iv) when working with the leadership officials of a chamber of Parliament.

(b) Drafters in the Government: (i) Ministry of Justice (MiniJust), (ii) Cabinet, (iii) President’s office, and (iv) line ministries or other executive branch institutions.

(c) Drafters in other governmental institutions or offices.

(d) Other (nongovernmental) drafters.

(9) Introduction to essential drafting skills.

(a) Find out what the client really wants to do.

(b) Analyze the legal and other problems in doing that.

(c) Help the client come up with solutions to these problems that will (i) be administrable and enforceable, and (ii) keep problems, ambiguity, and litigation to a minimum.

(10) Introduction to the basic steps of legislative drafting.

(a) Understanding.

(b) Analysis.

(c) Design.

(d) Composition.

(e) Scrutiny.



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(11) Introduction to the language of legislation. (How to read and understand a legislative sentence.)

(12) Introduction to the basic structure of legislative documents. (How to read and understand a bill.)

(13) Introduction to remedies for unconstitutional or unlawful legislation.

(14) The specific challenges of multilingual and multijuridical drafting.

9. Learning and Teaching Strategy

The teaching method is interactive (learning by doing), aimed at developing legal reasoning and the character of the trainees. See more detail in the Programme Specification Form, to be supplied by ILPD.

Appropriate exercises are indicated in the detailed module plan summary in Annex 1.

10. Assessment Strategy

See examination strategy for the whole programme, to be supplied by ILPD.

11. Assessment Pattern


12. Strategy for Feedback and Student Support During Module

Through student exchanges and discussions during the lecture sessions as well as through the research presentation sessions, feedback and student support needs will be identified and realized. There should be also wrap-up sheets / evaluation forms; consultation hours between In charge of postgraduate programme with students should be organized.

13. Indicative Resources

(a) Core Texts

(1) Crabbe, Victor C. R. A. C., Legislative Drafting. London: Cavendish, 1993. (ISBN: 1874241155) Specifically: chapter 2 (“Policy and Parliamentary Counsel”), pages 19–26.

(2) Dorsey, Tobias A., Legislative Drafter’s Deskbook: A Practical Guide. (Washington, D.C., USA: TheCapitol.Net, 2006. (ISBN: 1587330156, 9781587330155) Specifically: § 1.40 (“Attributes Important to Drafting”), pp. 12–15.

(3) Dorsey, Tobias A., “The Work of a Drafter,” in Legislative Drafting Guidelines for Persons Involved in the Drafting of Legislation in Africa (Pan African Parliament, Africa i-Parliament Action Plan). http://ldg.apkn.org/reference-material/the-work-of-a-drafter

(4) Driedger, Elmer A., The Composition of Legislation; Legislative Forms and Precedents. 2d edition. Ottawa, Canada: Department of Justice, 1976. (ISBN: 0660004437) Specifically: Preface, pages xv–xxix.

(5) Seidman, Ann, et al., Legislative Drafting for Democratic Social Change: A Manual for Drafters. Boston: Kluwer Law International, 2001. (ISBN: 9041197931, English version; other languages are available.) Specifically: Chapter 2, section III, pages 25–28 (“The Drafter as Policy Translator”).

http://ldg.apkn.org/reference-material/the-work-of-a-drafter



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(b) Background Texts

(1) Hull, David. “The Role of Legislative Counsel: Wordsmith or Counsel?” The Loophole (August 2008). [Presented at the CALC conference, Nairobi, September 2007.] http://www.opc.gov.au/calc/docs/Article_Hull_RoleOfLegislativeCounsel.pdf http://www.opc.gov.au/calc/docs/Article_Hull_RoleOfLegislativeCounsel.doc

(2) Laws, Stephen. “The Role of Legislative Counsel: Wordsmith or Counsel?” The Loophole (August 2008). [Presented at the CALC conference, Nairobi, September 2007.] http://www.opc.gov.au/calc/docs/Article_Laws_RoleOfLegislativeCounsel.pdf http://www.opc.gov.au/calc/docs/Article_Laws_RoleOfLegislativeCounsel.rtf

(3) Robinson, William. “Polishing what others have written: the role of the European Commission’s legal revisers in drafting European Community legislation,” The Loophole (March 2007). http://www.opc.gov.au/calc/docs/Article_Robinson_roleofECrevisers_2007.pdf http://www.opc.gov.au/calc/docs/Article_Robinson_roleofECrevisers_2007.rtf

(4) Strokoff, Sandra, “How Our Laws Are Made: A Ghost Writer’s View,” The Philadelphia Lawyer, Philadelphia Bar Association Quarterly Magazine, vol. 59, No. 2 (Summer 1996). For an expanded version of this article see: http://www.house.gov/legcoun/strokoff.shtml

(c) Journals

[Not applicable.]

(d) Key Websites and Online Resources

See resources listed in course bibliography (Annex 4) and the following:

http://www.cabinetoffice.gov.uk/parliamentarycounsel/working/working_methods_principle/role_of_counsel.aspx

(e) Teaching / Technical Assistance

See example teaching notes and materials in Annex 2 and example exercises in Annex 3.

(f) Laboratory Space and Equipment

[Not applicable.]

(g) Computer Requirements

(1) Desktop or laptop computer.

(2) Internet access.

(h) Other Resources

[Not applicable.]

14. Additional Information

[Not applicable.]

15. Teaching Team

[To be determined.]

http://www.opc.gov.au/calc/docs/Article_Hull_RoleOfLegislativeCounsel.pdf

http://www.opc.gov.au/calc/docs/Article_Hull_RoleOfLegislativeCounsel.doc

http://www.opc.gov.au/calc/docs/Article_Laws_RoleOfLegislativeCounsel.pdf

http://www.opc.gov.au/calc/docs/Article_Laws_RoleOfLegislativeCounsel.rtf

http://www.opc.gov.au/calc/docs/Article_Robinson_roleofECrevisers_2007.pdf

http://www.opc.gov.au/calc/docs/Article_Robinson_roleofECrevisers_2007.rtf

http://www.house.gov/legcoun/strokoff.shtml




9


1. Module Title

“Professional Responsibility”

2. Credits

4.5 credits.


2010


(a) Prerequisite


Bachelor of Laws (LL.B.) or equivalent degree.






















MODULE 2: PROFESSIONAL RESPONSIBILITY

8



Staff Hours








TOTAL 45.00 70.00



This module gives students an overview of the unique ethical issues that legislative drafters face on a day-to-day basis and provides students with the knowledge and skills to deal with those issues. The module will clarify the role of the drafter as separate from the policymaker and the relationship between these roles, from a point of view of professional responsibility.



Having successfully completed the module, students should be able to demonstrate knowledge and understanding of the following:

(1) The role of the drafter as separate from the policymaker, the relationship between the two roles, and the limitations the drafter’s role imposes.

(2) The professional responsibilities of drafters, including:

(a) Maintaining client confidentiality.

(b) Drafter competency (and when to say, “I don’t know”).

(c) Impartiality and objectivity in giving legal advice.

(d) Avoiding (or resolving) conflicts of interest.

(e) Keeping clients informed (about status, problems, etc.).

(3) The legal boundaries within which drafters (and legislators) must operate, including constitutional limitations, international treaty considerations, and issues of interpretation.

(4) Practical ways to anticipate, avoid, and resolve professional responsibility problems.



(1) Identify drafter responsibilities toward clients.

(2) Recognize actual drafter professional responsibility issues that arise and anticipate potential issues that may arise in the future.



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(3) Identify situations in which the drafter does not personally have the information, knowledge, experience, background, or skills needed to fulfil a specific task or request.



(1) Maintain client confidentiality, even in difficult or novel situations.

(2) Maintain impartiality when giving legal advice to a potentially diverse range of clients (both institutions and individual officials).

(3) When a draft, task, or client request raises constitutional or other legal issues, or there are other concerns:

(a) Communicate the issues or concerns effectively with colleagues, supervisors, and clients.

(b) Suggest possible or recommended solutions to address each issue or concern.

(4) When drafting instructions are incomplete or unclear, ask the client the right kinds of questions to understand the client’s intentions about the draft.

(5) Ask colleagues, supervisors, and clients when the drafter needs assistance from others.

(6) Proactively keep clients (and others, as appropriate) informed about matters relating to their drafts.

(7) Communicate with clients in a manner that is tactful and (when necessary) diplomatic, especially when dealing with “difficult” clients.

(8) Keep appropriate records of interactions with clients, and especially with respect to “difficult” clients, to protect oneself from potential accusations of professional misconduct or incompetency in case of a later dispute.



(1) Work effectively and competently, even under pressure time or other pressures.

(2) Seek assistance from colleagues, supervisors, and others when the drafter does not personally have the information, knowledge, experience, background, or skills needed to carry out a specific task or request.

(3) Anticipate, avoid, or resolve any ethical or professional responsibility issues that arise in the course of the drafter’s work.



(1) The role of the drafter.

(a) Relationship to (and separation from) policymaking.

(b) The relationship between the drafter and the policymaker.

(c) Limitations on the drafter’s role.

(2) The professional responsibilities of drafters.

(a) The duty of confidentiality owed in the drafter-client relationship.



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(b) Drafter competency (and when to say, “I don’t know” and to look for help).

(c) Impartiality and objectivity in dealing with a diverse range of clients and stakeholders.

(d) Anticipating and avoiding (or resolving) conflicts of interest.

(3) Conflicts of interest.

(a) What constitutes a conflict of interest?

(b) How to recognize a conflict of interest.

(c) What to do about it.

(d) Considerations for particular circumstances:

(i) When dealing more than one institution (for example, the Parliament and the Government).

(ii) When dealing with multiple individual clients within a single institution (for example, bills and amendments of a single Member of Parliament or political group of Members).

(4) The boundaries within which drafters must operate.

(a) Staying within the bounds of drafting instructions.

(b) Constitutional limitations.

(c) International treaty considerations.

(d) Limitations imposed by existing law (for example, ensuring that a draft law does not conflict with an organic law governing the topic, or ensuring that regulations to not exceed the scope of authority given in the law authorizing them).

(e) Interpretation issues (for example, drafting within an interpretation act or in accordance with judicial decisions interpreting legislative language).

(5) Practical ways to anticipate, avoid, and resolve professional responsibility problems (specifically, self-preservation for the drafter).

(a) Consultation among colleagues.

(b) What to do when clients decline to adhere to the legal advice given by the drafter, and what written records you should keep when this happens.

(c) Recordkeeping in drafting: What documents from the drafting process should (or must) be kept, by whom, and for how long?

(d) Working under severe time limitations.

(e) Tact and diplomacy in dealing with (difficult) clients.

(f) How to stay within the bounds of the drafter’s mandate and still make useful suggestions to help fill policy gaps.






11








(a) Core Texts

(1) Crabbe, Victor C. R. A. C., Legislative Drafting. London: Cavendish, 1993. (ISBN: 1874241155.) Specifically: Chapter 2, pages 19–26 (“Policy and Parliamentary Counsel”).

(2) Dickerson, Reed, Materials on Legal Drafting. St. Paul, Minnesota: West Publishing Co., 1981. (ISBN: 0314586158) Specifically: Chapter 5, pages 79–96 (“Professional Responsibility; Relations with Client”).

(3) Dorsey, Tobias A., Legislative Drafter’s Deskbook: A Practical Guide. (Washington, D.C., USA: TheCapitol.Net, 2006. (ISBN 10: 1587330156, 9781587330155) Specifically: § 1.30, pages 9–11 (“Professional Obligations”).

(4) Dorsey, Tobias A., “The Work of a Drafter,” in Legislative Drafting Guidelines for Persons Involved in the Drafting of Legislation in Africa (Pan African Parliament, Africa i-Parliament Action Plan). http://ldg.apkn.org/reference-material/the-work-of-a-drafter

(5) Driedger, Elmer A., The Composition of Legislation; Legislative Forms and Precedents. 2d edition. Ottawa, Canada: Department of Justice, 1976. (ISBN: 0660004437) Specifically: Preface, pages xv–xxix.

(6) Seidman, Ann, et al., Legislative Drafting for Democratic Social Change: A Manual for Drafters. Boston: Kluwer Law International, 2001. (ISBN: 9041197931, English version; other languages are available) Specifically:

(a) Chapter 2, section III, pages 25–28 (“The Drafter as Policy Translator”).

(b) Chapter 2, section V, pages 42–45 (“The Drafter’s Ethical Responsibilities”).

(c) Chapter 11, pages 279–300 (“Drafting Within the Constitution and Other Limits”).

(7) Thornton, Grant C., Legislative Drafting. 4th edition. London: Butterworths, 1996. (ISBN: 0406045216.) Specifically: Chapter 7 (“The Drafting Process: Part 1”).


(1) Brown, Douglas G. and Dan L. Cartin, “The Attorney-Client Relationship and Legislative Lawyers: The State Legislature as Organizational Client,” Journal of the American Society of Legislative Clerks and Secretaries, vol. 2, No. 1 (Spring 1996). http://www.ncsl.org/programs/legman/aslcs/brwnsp96.htm

http://ldg.apkn.org/reference-material/the-work-of-a-drafter

http://www.ncsl.org/programs/legman/aslcs/brwnsp96.htm



12

(2) Colorado General Assembly, Office of Legislative Legal Services, “OLLS Guidelines for Working with Lobbyists.” http://www.state.co.us/gov_dir/leg_dir/olls/PDF/OLLS%20GUIDELINES%20FOR%20WORKING%20WITH%20LOBBYISTS.pdf

(3) Feustel, Bruce, “Ethics and Politics of Drafting: A Review of David Marcello’s Presentation.” http://www.ncsl.org/programs/legman/LegalSrv/Vol12no1.htm#ethics

(4) Greenberg, Daniel. “Access to Legislation – the Legislative Counsel’s Role,” The Loophole (October 2009). http://www.opc.gov.au/calc/docs/Article_Greenberg_AccesstoLegislation_2009.pdf

(5) Hull, David. “The Role of Legislative Counsel: Wordsmith or Counsel?” The Loophole (August 2008). http://www.opc.gov.au/calc/docs/Article_Hull_RoleOfLegislativeCounsel.pdf http://www.opc.gov.au/calc/docs/Article_Hull_RoleOfLegislativeCounsel.doc

(6) Keyes, John Mark. “Professional Responsibilities of Legislative Counsel,” The Loophole (October 2009). [Presented at the CALC conference, Hong Kong, April 2009.] http://www.opc.gov.au/calc/docs/Article_Keyes_ProfessionalResponsibilitiesofLegislativeCounsel_2009.pdf

(7) Laws, Stephen. “The Role of Legislative Counsel: Wordsmith or Counsel?” The Loophole (August 2008). [Presented at the CALC conference, Nairobi, September 2007.] http://www.opc.gov.au/calc/docs/Article_Laws_RoleOfLegislativeCounsel.pdf http://www.opc.gov.au/calc/docs/Article_Laws_RoleOfLegislativeCounsel.rtf

(8) Marcello, David A., “The Ethics and Politics of Legislative Drafting,” Tulane Law Review, vol. 70, page 2437 (1996).

(9) Robinson, William. “Polishing what others have written: the role of the European Commission’s legal revisers in drafting European Community legislation,” The Loophole (March 2007). http://www.opc.gov.au/calc/docs/Article_Robinson_roleofECrevisers_2007.pdf http://www.opc.gov.au/calc/docs/Article_Robinson_roleofECrevisers_2007.rtf

(10) United Nations Institute for Training and Research (UNITAR). The Role of Parliamentary Counsel in Legislative Drafting (UNITAR Document Series No. 11). (Paper written following a UNITAR Sub-Regional Workshop on Legislative Drafting for African Lawyers (Kampala, Uganda 20 to 31 March 2000).) UNITAR, 2000. http://www2.unitar.org/dfm/Resource_Center/Document_Series/Summary/Doc11.htm http://www2.unitar.org/dfm/Resource_Center/Document_Series/Document11/DocSeries11.pdf

(11) Strokoff, Sandra, “How Our Laws Are Made: A Ghost Writer’s View,” The Philadelphia Lawyer, Philadelphia Bar Association Quarterly Magazine, vol. 59, No. 2 (Summer 1996). For an expanded version of this article, see: http://www.house.gov/legcoun/strokoff.shtml

(c) Journals

[Not applicable.]


See resources listed in course bibliography (Annex 4).

http://www.state.co.us/gov_dir/leg_dir/olls/PDF/OLLS%20GUIDELINES%20FOR%20WORKING‌%20WITH%20LOBBYISTS.pdf

http://www.state.co.us/gov_dir/leg_dir/olls/PDF/OLLS%20GUIDELINES%20FOR%20WORKING‌%20WITH%20LOBBYISTS.pdf

http://www.ncsl.org/programs/legman/LegalSrv/Vol12no1.htm#ethics

http://www.opc.gov.au/calc/docs/Article_Greenberg_AccesstoLegislation_2009.pdf

http://www.opc.gov.au/calc/docs/Article_Hull_RoleOfLegislativeCounsel.pdf

http://www.opc.gov.au/calc/docs/Article_Hull_RoleOfLegislativeCounsel.doc

http://www.opc.gov.au/calc/docs/Article_Keyes_ProfessionalResponsibilitiesofLegislativeCounsel_2009.pdf

http://www.opc.gov.au/calc/docs/Article_Keyes_ProfessionalResponsibilitiesofLegislativeCounsel_2009.pdf

http://www.opc.gov.au/calc/docs/Article_Laws_RoleOfLegislativeCounsel.pdf

http://www.opc.gov.au/calc/docs/Article_Laws_RoleOfLegislativeCounsel.rtf

http://www.opc.gov.au/calc/docs/Article_Robinson_roleofECrevisers_2007.pdf

http://www.opc.gov.au/calc/docs/Article_Robinson_roleofECrevisers_2007.rtf

http://www2.unitar.org/dfm/Resource_Center/Document_Series/Summary/Doc11.htm

http://www2.unitar.org/dfm/Resource_Center/Document_Series/Document11/DocSeries11.pdf

http://www2.unitar.org/dfm/Resource_Center/Document_Series/Document11/DocSeries11.pdf

http://www.house.gov/legcoun/strokoff.shtml



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[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]


9


1. Module Title

“Policy Development and the Problem-Solving Approach”

2. Credits

10.5 credits.


2010


(a) Prerequisites


(1) Bachelor of Laws (LL.B.) or equivalent degree.

(2) Each of the following:






















MODULE 3: POLICY DEVELOPMENT AND THE PROBLEM-SOLVING APPROACH

16



Staff Hours

Lectures 70.00 140.00







TOTAL 105.00 160.00



This module provides students with an in-depth understanding of the problem-solving approach to legislative policy development, which involves (1) identifying a social problem, (2) analyzing the causes of the problem, (3) proposing solutions that address these causes, and (4) creating a monitoring and evaluation system for the final policy.




(1) The problem-solving approach to legislation and policy development and why is it useful.

(2) The role the drafter plays in policy development as a guide for policymakers through the policy development and problem-solving processes.

(3) The 4 steps of the problem-solving approach.

(4) The importance of precisely identifying the social problem or issue to be addressed by legislation.

(5) The 3 general categories of solutions and the differences between them.

(6) Where to look for possible solutions to address the underlying causes of the problem.

(7) Purpose and importance of effective implementation provisions.

(8) Basic methods of analyzing costs and benefits.

(9) Different types of potential implementers for a proposed policy solution.

(10) How to formulate monitoring and evaluation provisions in order to ensure ongoing effectiveness of legislation.

(11) The importance and use of reporting provisions.





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(1) Ask the right kinds of questions of the proponent of the legislation in order to understand the “actual” intent of the legislation, not just the “superficial” intent that may appear in the words of the draft or drafting instructions.

(2) Describe social problems in terms of behaviours and the persons and implementing agencies that engage in those behaviours.

(3) Identify the problematic behaviours involved in a social problem.

(4) Identify the persons and institutions involved in a social problem.

(5) Design effective implementation provisions for new legislation.

(6) Create a system to monitor and evaluate the chosen policy.

(7) Formulate reporting provisions that require an agency to submit reports on the effectiveness of the legislation.



(1) Analyze and explain the problematic behaviour and create explanations based on the causes of the behaviour using 7 analysis factors to help explain the reasons behind problematic behaviours.

(2) Assess financial costs and benefits of legislation.

(3) Assess social (nonfinancial) costs and benefits of legislation.

(4) Choose the most effective solutions after weighing the costs and benefits of each of the possible policy solutions.



(1) Choose a type of implementer from among courts and tribunals, administrative agencies, public corporations, and private-sector organizations.

(2) Choose between an existing or a new implementer.



(1) Introduction to the Problem-Solving Approach to legislation.

(a) What is the problem-solving approach to legislation and policy development and why is it useful?

(b) The drafter as someone who can guide policymakers through the policy development and problem-solving processes. (In answer to the question, ‘If the drafter’s role is separate from policymaking, why should the drafter learn policy development?’)

(c) The 4 steps of the problem-solving approach.

(2) Step 1: Identifying the problem. Problem-solving begins by describing the social problem addressed and — because law must address behaviours — whose and what behaviours comprise that problem.

(a) Understanding the social problem to be solved by legislation in order to find ways to translate practical problems into effective legislative solutions.



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(i) Importance of precisely identifying the social problem or issue to be addressed by legislation.

(ii) Asking the right kinds of questions of the proponent of the legislation in order to understand the “actual” intent of the legislation, not just the “superficial” intent that may appear in the words of the draft or drafting instructions.

(iii) Describing social problems in terms of behaviours and the persons and implementing agencies that engage in those behaviours. What kinds of persons (or classes of persons) and implementing agencies cause or contribute to the behaviour that constitutes the social problem?

(b) Identifying the behaviours and the persons (stakeholders) and implementing agencies involved in, or affected by, the social problem. (This can be broader than only those that cause or contribute to the problem.)

(i) Behaviours. (A) What we call “behaviour” can be action or inaction. (B) What is really meant by “problematic” behaviour? Are we casting blame for the problems? (Short answer is No.)

(ii) Stakeholders. (A) What is a “stakeholder”? (B) Persons whose behaviour causes or contributes to the larger social problem. (C) Persons who are affected by the problem, negatively or (less often) positively. (D) Persons that are intended to be covered (or excluded) by the legislation.

(iii) Implementing agencies. (A) What is an “implementing agency”? (B) What governmental agency or official (or private organization or person) is currently responsible for oversight of the persons that are involved in the problem? (C) What agency or official will be responsible for administering the provisions of the (new) legislation? If there is no current implementing agency, is a new official or agency needed to administer the legislation? Is an existing agency appropriate to administer the legislation?

(c) Stating the social problem in preparation for analysis and explanations in Step 2. (Exercise: Stating the social problem.)

(3) Step 2: Explanations. The 2nd step of the problem-solving approach requires explanations for the problematic behaviours described. Analyze and explain the problematic behaviour and create explanations based on the causes of the behaviour.

(a) Purpose of analysis and explanation.

(b) Analyze and explain the problematic behaviour by using 7 analysis factors to help explain the reasons behind problematic behaviours.

(i) Rules. A law, rule, or social norm that affects a person or institution and contributes to the problematic social behaviour.

(ii) Opportunity. The circumstances, occasion, chance, or probability that a stakeholder has to engage in the problematic social behaviour or to obey or disobey a law, rule, or social norm.

(iii) Capacity. The effectiveness with which a law, rule, or social norm is communicated to the stakeholders affected by the law, rule, or social norm. Also includes communication between implementing agencies (regulators) and stakeholders and among different implementing agencies. (In practical terms, “capacity” often overlaps with “opportunity”.)



19

(iv) Communication. The effectiveness with which a law, rule, or social norm is communicated to the persons and institutions affected by the law, rule, or social norm.

(v) Processes and procedures. Criteria and procedures — or other pragmatic or logistical aspects — that (1) explain the decision-making process that leads a stakeholder to decide whether to conform or not to conform to a law, rule, or social norm, and (2) encourage or discourage the problematic social behaviour by a stakeholder.

(vi) Interest and incentive (or disincentive). The incentive or motivation — both material and nonmaterial — for a person or institution to engage in the problematic social behaviour. This factor also includes “disincentives” that discourage desired behaviour.

(vii) Ideology. The values and attitudes that shape how we look at the world and therefore shape our decisions. Also encompasses any subjective motivations that do not constitute “interests”.

(c) Remember that there may be multiple and overlapping explanations for problematic behaviour.

(d) Create reasonable explanations about the causes of the social problem (the problematic behaviours) using the 7 analysis factors.

(e) Form to use the 7 analysis factors to explain the causes of problematic behaviour and (later) to propose specific solutions to address each factor.

(4) Step 3: Designing solutions. The 3rd step of the problem-solving approach proposes the design of solutions logically likely to overcome the causes of the problematic behaviours identified in the second step. These solutions necessarily include designing effective ways to implement them.

(a) Several (or many) possible or alternative solutions.

(i) The importance of several (or many!) possible or alternative solutions.

(ii) There should be at least one possible solution for each explanation for each problematic behaviour — and for each stakeholder or implementing agency identified — from Step 3.

(iii) The possible solutions should match the explanations from Step 3.

(b) Formulating the possible solutions.

(i) Finding possible solutions that address the causes of problematic behaviours. Explanations for problematic behaviour dictate potential solutions.

(ii) General categories of solutions: (A) direct measures, (B) indirect measures, and (C) educational measures.

(iii) Where to look for solutions: Your own ideas, based on logic and experience, then: (A) foreign law and experience, (B) professional literature, and (C) your own country’s past experience.

(c) Assess the costs and benefits of each of the possible solutions and choose the solution most likely to solve the problem in the most effective way. (What are the likely social and financial costs and benefits of the legislation and how do they compare?)

(i) Purposes of cost-benefit analysis.



20

(ii) Monetary and non-monetary considerations.

(iii) Basic methods of analyzing costs and benefits: (A) Comparing the chosen policy with doing nothing (“status quo” analysis). (B) Comparing the chosen policy with alternative policies.

(iv) Assessing social (nonfinancial) costs and benefits of legislation. (A) What are “social” costs and benefits? (B) What to consider in weighing or measuring social costs and benefits?

(v) Assessing financial costs (expenses) and benefits (revenue) of legislation.

(A) Revenue and fiscal considerations.

(B) Preliminary considerations under procedures, laws, and Constitution of Rwanda.

(C) How will the legislation be paid for?

(D) If the legislation will require expenditure (rather than generate revenue), how much will it cost? How should this be measured (or estimated)?

(E) What are potential sources of funding for the costs of implementation and enforcement of the legislation?

(F) Will the legislation generate revenue? How will any revenue from the legislation be used, and by whom?

(vi) What to do if you are not an economist or statistician(!). (A) Resources for making financial analyses of proposed solutions. (B) How and when to estimate (or “guesstimate”).

(d) Choosing the most effective solutions by choosing among all the possible or alternative solutions.

(i) Balancing financial vs. social costs and benefits.

(ii) Comparing the chosen policy with doing nothing (“status quo” analysis).

(iii) Comparing the chosen policy with alternative policies.

(iv) Prioritizing the possible solutions.

(v) Choosing the solution(s) most appropriate in the circumstances (social, economic, political, cultural).

(e) Designing effective implementation provisions.

(i) Purpose and importance of implementation provisions.

(ii) Choosing a type of implementer: (A) courts and tribunals, (B) administrative agencies, (C) public corporations, and (D) private-sector organizations.

(iii) Choosing between an existing or a new implementer.

(f) Combining the provisions into a comprehensive policy. (Checklist to ensure comprehensive policy will provide an adequate solution.)

(5) Step 4: Monitoring and evaluation. The 4th step of the problem-solving approach focuses on monitoring and evaluating the social consequences of the proposed solution. Create a system to monitor and evaluate the chosen policy in order to understand which policy components are more effective (and why) and to refine policy components that are less effective or eliminate policy components that are ineffective.



21

(a) How to formulate monitoring and evaluation provisions in order to ensure ongoing effectiveness of legislation.

(b) Reporting provisions. Reporting provisions require an agency or other person to submit reports on the effectiveness of the legislation. These reports may contain any amount or type of information that may be useful in assessing whether the legislation should be changed to be more effective.

(i) What are reporting provisions and why are they used?

(ii) How to formulate a reporting provision. What needs to be specified in a reporting provision?

(c) Other methods for continued monitoring and evaluation. (For example, (i) “sunset” provisions, (ii) limitations on authority or termination of authority, (iii) public hearings.)











(a) Core Texts

(1) Seidman, Ann, Robert B. Seidman, and Nalin Abeysekere, Legislative Drafting for Democratic Social Change: A Manual for Drafters. English edition. Kluwer Law International, Boston, Massachusetts, 2001. (ISBN: 9041197931) [In English, translated into Russian, Chinese, Bahassa Indonesian, Sinhalese, Vietnamese, Arabic, Farsi and Macedonian.] Specifically: Part II (chapters 4–7),1 pages 83–201 (“Justifying a Draft Bill: The Research Report”).

1 Chapter 4, pages 85–123 (“Writing a Research Report: Operationalizing Legislative Theory and

Methodology”). Chapter 5, pages 125–166 (“Writing a Research Report: Ensuring Effective, Non-Arbitrary Implementation”). Chapter 6, pages 167–186 (“Capturing the Evidence”). Chapter 7, pages 187–201 (“Form of a Research Report”).



22

(2) Seidman, Ann, Robert B. Seidman, and Nalin Abeysekere, Assessing Legislation: A Manual for Legislators. Boston University School of Law, 2003. [In English, translated into Arabic, Indonesian, and Pashtun.] Specifically: Chapter 6.

(3) Seidman, Robert B. “The Memorandum of Law,” Seton Hall Legislative Journal, vol. 15 at page 319 (1990). Link to HeinOnline

(4) Seidman, Robert B. “Justifying Legislation: A Pragmatic Institutionalist Approach to the Memorandum of Law, Legislative Theory and Practical Reason,” Harvard Journal on Legislation, vol. 29 at page 1 (1991). Link to HeinOnline

(5) Dorsey, Tobias A., Legislative Drafter’s Deskbook: A Practical Guide. (Washington, D.C., USA: TheCapitol.Net, 2006. (ISBN: 1587330156; 9781587330155.) Specifically: Chapter 4 (“Thinking Through the Policy”), pages 109–148.

(6) Problem-Solving and Guidelines for Legislative Solutions to Social Problems (Penyelesiaian Masalah dan Pedoman-Pedoman Praktis Untuk Solusi-Solusi Legislatif bagi Masalah-Masalah Sosial) (publ. in Indonesian). Denpasar, Indonesia (May 2003), and Dili, Timor-Leste (June 2005): Univ. of San Francisco School of Law. [See DRAFT English version, available at http://www.LegislativeConsulting.com/resources.htm.]


(1) Seidman, Robert B., A. W. Seidman, and T. Uate. “Assessing Legislation to Serve the Public Interest: Experiences from Mozambique,” Statute Law Review, vol. 20 at page 1 (1999).

(2) Seidman, Robert B., A. W. Seidman, and T. W. Waelde. Making Development Work: Legislative Reform for Institutional Transformation and Good Governance. Kluwer Law International, 1999.

(3) Seidman, Robert B., and Ann Seidman. State and Law in the Development Process: Problem Solving, Law and Institutional Change in the Third World. Macmillan, 1994.

(4) Seidman, Robert B. “The Fatal Race: Law-Making and the Implementation of Development Goals,” Third World Legal Studies vol. 1992 at page 79 (1992). Link to HeinOnline

(5) Seidman, Robert B. “Drafting for the Rule of Law: Maintaining Legality in Developing Countries,” Yale Journal of International Law, vol. 12 at page 84 (1987). Link to HeinOnline

(6) Seidman, Robert B., “ILTAM: Drafting Evidence-Based Legislation for Democratic Social Change,” in Symposium The Most Disparaged Branch: The Role of Congress in the Twenty-First Century, Boston University Law Review, vol. 89 at page 435 (2009). Link to HeinOnline

(7) Seidman, Robert B., “Assessing a Bill in Terms of the Public Interest: The Legislator’s Role in the Law-making Process,” World Bank Legal Review: Law and Justice for Development, vol. 1 at page 207 (2002).

(8) Seidman, Robert B., and Ann Seidman. “Law and the African Crisis,” in The Crisis in Africa (Ben Wisner, ed.). (Forthcoming.)

(c) Journals

[Not applicable.]

http://www.heinonline.org.ezproxy.bu.edu/HOL/Page?collection=journals&handle=hein.journals/sethlegj15&id=329

http://www.heinonline.org.ezproxy.bu.edu/HOL/Page?collection=journals&handle=hein.journals/hjl29&id=7

http://www.legislativeconsulting.com/resources.htm

http://www.heinonline.org.ezproxy.bu.edu/HOL/Page?collection=journals&handle=hein.journals/twls1992&id=103


http://www.heinonline.org.ezproxy.bu.edu/HOL/Page?collection=journals&handle=hein.journals/yjil12&id=90


http://www.heinonline.org.ezproxy.bu.edu/HOL/Page?collection=journals&handle=hein.journals/bulr89&id=441




23






[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]


25


1. Module Title

“Research Before Drafting”

2. Credits

6.0 credits.


2010


(a) Prerequisites

























MODULE 4: RESEARCH BEFORE DRAFTING

26



Staff Hours








TOTAL 60.00 80.00



This module provides students with understanding of the resources needed, as well as the skills required, to maximize the use of electronic and other research tools.




(1) The need to put draft legislation into context by researching the existing law.

(2) How to identify and use legal research resources, including libraries and electronic resources like the Internet.

(3) Research techniques and resources.

(4) The “mischief” rule and the need for research.

(5) Practical ways to ask the right questions for the purpose of research.



(1) Identify the sources and hierarchy of Rwandan law.

(2) Identify and use various sources for researching comparative law.



(1) Identify conflicts between legislation and existing law.

(2) Use technology for effective legal research.



(1) Identify and use different available research tools.



27

(2) Put draft legislation into context by researching the existing law.

(3) Ask the right types of questions to be answered by the research.



(1) Researching existing law, in order to put draft legislation into context.

(2) Identification and use of legal research resources, including libraries and electronic resources like the Internet (especially for researching laws from other countries).

(3) Research techniques and resources.

(a) Electronic research. Online (Internet-based) research. Offline electronic research.

(b) Library research.

(c) Use of databases.

(d) Other sources for research.

(4) Sources and hierarchy of Rwandan law.2

(a) The Constitution.

(b) International treaties, conventions, and agreements.

(c) Organic laws.

(d) Decree-laws.

(e) Ordinary laws.

(f) Referendums.3

(g) Regulations and ministerial orders.4

(h) Ministerial instructions (internal operating procedures).

(i) Customary law.5

(5) Sources for comparative law.

(a) International treaties, conventions, and agreements.

(b) East African Community and member states.

(c) Commonwealth of Nations.

(d) Civil law jurisdictions.

(e) Common law jurisdictions.

(f) Other francophone jurisdictions.

(6) Identifying conflicts between legislation and existing law.

(7) Legal research and the “mischief” rule.

(8) Practical tips to help ask the right questions for the purpose of research.

2 See Constitution of Rwanda, article 93.


4 See Constitution of Rwanda, articles 119–120.




28

(9) Exercise: Research Before Drafting Legislation.











(a) Core Texts

(1) Thomson, Susan, François Xavier Kalinda, and Félix Zigirinshuti, Methods of Legal Research and Writing. National University of Rwanda, 2003.

(2) Jones, H. W. “Notes for a Legislative Research Check List,” ABA Journal, vol. 36(1950) at page 685.

(3) Elias, Stephen. Legal Research: How to Find & Understand the Law. (15th edition, revised.) Nolo, 2009. (ISBN: 1413310524, 978–1413310528.) 386 pages.

(4) Larsen, Sonja; Bourdeau, John. Legal Research for Beginners. Barron’s Educational Series, 1997. (ISBN: 0812097688, 978–0812097689.) 294 pages, illustrated.

(5) Herskowitz, Suzan D.; Duggan, James E. Legal Research Made Easy. (4th edition.) SphinxLegal, 2006. (ISBN: 1572485094, 978–1572485099.) 164 pages, illustrated.

(6) Nemes, Irene; Coss, Graeme. Effective Legal Research. (2nd edition.) Butterworths, 2001. (ISBN: 0409317063, 978–0409317060.) 448 pages.

(7) Oates, Laurel Currie; Enquist, Anne. The Legal Writing Handbook: Analysis, Research, and Writing. (4th edition.) Aspen Publishers, 2006. (ISBN: 0735555680, 978–0735555686; 0735555699, 978–0735555693; 073555658X, 978–0735556584.) 914 pages, illustrated.

(8) Ramy, Herbert N.; Moppett, Samantha A. Navigating the Internet: Legal Research on the World Wide Web. Wm. S. Hein Publishing, 2000. (ISBN: 0837710774, 978–0837710778.) 112 pages, illustrated.

(9) Fung, Spring Yuen Ching; Watson-Brown, Anthony. The Template: A Guide for the Analysis of Complex Legislation (Research Working Papers). University of London, Institute of Advanced Legal Studies, 1994. (ISBN: 0901190403, 978–0901190406.) 107 pages.



29

(10) Wasserman, Paul; Kaszubski, Marek. Law and Legal Information Directory (Law and Legal Information Directory Series). (10th edition.) Gale Research Co., 1998. (ISBN: 078761257X, 978–0787612573.) 1,900 pages.


(1) Florence Nakachwa Dollo, “Research for Drafting and the Role of Parliamentary Counsel.” International Law Institute – Uganda.

(2) Marke, Julius J.; Sloane, Richard; Ryan, Linda M. Legal Research and Law Library Management (Issue 572 of Law office management series, Legal Research and Law Library Management, Richard Sloane). Law Journal Press, 2006. (ISBN: 1588520137, 978–1588520135.) 1,000 pages, revised.

(3) Enright, Christopher; Moore, Peter. Legal research and interpretation techniques: papers presented for the Continuing Legal Education Department of the College of Law on Monday, 26 March 1990, Friday, 1 March 1991, Friday, 7 February 1992, Friday, 26 February 1993 and updated for presentation on Friday, 25th March 1994 (Volume 15; Volume 94 of Seminar papers). College of Law (Sydney, N.S.W.), Continuing Legal Education Department, 1994. (ISBN: 0867507055, 978–0867507058.) 221 pages.

(4) Council of Europe. Interdisciplinary research in legal databases : environmental law databases: proceedings of the 9th Colloquy on Legal Data Processing in Europe, Rome, 1–3 October 1991: reports presented at the colloquy. Council of Europe Press, 1992. (ISBN: 9287121664, 978–9287121660.) 199 pages.

(c) Journals

Law Review of Rwanda | Revue Juridique du Rwanda | Igazeti Isobanura Amategeko mu Rwanda. (ISSN: 1010–8538)



(1) Ministry of Justice (MiniJust) of Rwanda: http://www.MiniJust.gov.rw/

(2) Codes and laws of Rwanda: http://www.amategeko.net/ (by Ministry of Justice of Rwanda)

(3) Official Gazette of the Republic of Rwanda:

http://www.primature.gov.rw/journal.htm (official website)

http://www.scribnet.org/library/jo/ (index of contents, in French)

(4) GlobaLex – Rwanda’s Legal System and Legal Materials:

http://www.nyulawglobal.org/Globalex/Rwanda.htm

(5) East African Community–related websites:

(a) East African Community website: http://www.eac.int/

(b) East African Legislative Assembly: http://www.eala.org/

(c) EAC Summit. http://www.eac.int/summit.html

(d) EAC Secretariat. http://www.eac.int/secretariat

(e) EAC Council of Ministers. http://www.eac.int/council-of-ministers.html

http://www.minijust.gov.rw/

http://www.amategeko.net/

http://www.primature.gov.rw/journal.htm

http://www.scribnet.org/library/jo/


http://www.eac.int/

http://www.eala.org/

http://www.eac.int/summit.html

http://www.eac.int/secretariat

http://www.eac.int/council-of-ministers.html



30

(f) EAC Co-ordination Committees.

http://www.eac.int/organs/co-ordinating-committee-.html

(g) EAC Sectoral Committees. http://www.eac.int/sectoral-committees.html

(h) East African Court of Justice. http://www.eacj.org/

(i) EAC Gazettes. http://www.eac.int/advisory-opinions/cat_view/111-eac-gazette.html

(j) EAC documents. http://www.aict-ctia.org/courts_subreg/eac/eac_home.html

(6) World Legal Information Institute (WorldLII.org) databases:

(a) Commonwealth member nations: http://www.worldlii.org/catalog/55400.html

(b) EAC: http://www.worldlii.org/catalog/55000.html

(c) East African Court of Justice: http://www.worldlii.org/catalog/55004.html

(d) EAC member nations: http://www.worldlii.org/catalog/55001.html

(e) Burundi: http://www.worldlii.org/catalog/2678.html

(f) Kenya: http://www.worldlii.org/catalog/2688.html

(g) Uganda: http://www.worldlii.org/catalog/2206.html

(h) Tanzania: http://www.worldlii.org/catalog/2713.html

(7) Kenya legal information:

(a) Kenya laws: http://www.kenyalaw.org/

(b) Interpretation and General Provisions Act (Laws of Kenya, cap. 2).

(8) Tanzania legal information:

(a) Interpretation of Laws Act, 1996 (Act No. 4 of 1996).

(9) Uganda legal information:

(a) Constitution (1995) (on University of Bern website): http://www.oefre.unibe.ch//icl/ug__indx.html

(b) Acts of Parliament Act 2000 (Laws of Uganda, cap. 2) (on Uganda Legal Information Institute website). http://www.ulii.org/ug/legis/consol_act/aopa2000178

(c) Interpretation Act 1976 (Laws of Uganda, cap. 3) (on Uganda Legal Information Institute website). http://www.ulii.org/ug/legis/consol_act/ia1976191

(d) Bill Tracking System of Parliament of Uganda (on Parliament website). http://www.parliament.go.ug/billtrack/

(e) Legislation Uganda. http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweuga.htm

(f) Uganda Legal Information Institute. http://www.ulii.org/ug/legis/consol_act/

(g) Uganda Law Reform Commission. (subscription site, but listing of resources available is freely accessible). http://www.ulrc.go.ug/about_ULRC/laws_index.php

(10) Commonwealth of Nations–related websites:

(a) Commonwealth Legal Information Institute (CommonLII). (Full text, searchable legislation, case law and secondary legal materials databases from Commonwealth and


http://www.eac.int/sectoral-committees.html

http://www.eacj.org/

http://www.eac.int/advisory-opinions/cat_view/111-eac-gazette.html


http://www.aict-ctia.org/courts_subreg/eac/eac_home.html

http://www.worldlii.org/catalog/55400.html








http://www.kenyalaw.org/

http://www.oefre.unibe.ch/icl/ug__indx.html

http://www.ulii.org/ug/legis/consol_act/aopa2000178

http://www.ulii.org/ug/legis/consol_act/ia1976191

http://www.parliament.go.ug/billtrack/

http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweuga.htm

http://www.ulii.org/ug/legis/consol_act/

http://www.ulrc.go.ug/about_ULRC/laws_index.php



31

common law countries. CommonLII is coordinated and operated by AustLII.) http://www.commonlii.org/

(b) Commonwealth – Links. (Links to inter-governmental, professional and non-governmental organisations and associations across the Commonwealth (Commonwealth Secretariat).) http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=20642

(c) The Commonwealth Secretariat. (Includes Commonwealth declarations, reports, speeches, news, press releases and other publications, an events calendar, video presentations, country profiles and links to Commonwealth-wide organizations.) http://www.thecommonwealth.org/

(d) Commonwealth Parliamentary Association. (Areas of projects and initiatives cover good governance, democracy and elections, human rights, gender issues and promoting awareness of parliamentary democracy among young people. Publishes The Parliamentarian (journal) and specialist publications as well as an online Newsletter (pdf) and other material on parliamentary subjects (pdf).) http://www.cpahq.org/

(e) Commonwealth Association of Legislative Counsel (CALC). (Established to promote cooperation among people in the Commonwealth engaged in legislative drafting or in training people in legislative drafting. Publishes a monthly online Newsletter which includes papers given at meetings (pdf and rtf).) http://www.opc.gov.au/calc/

(f) Commonwealth Association of Law Reform Agencies (CALRAs). (Provides information about the establishment, objectives and constitution of the Association and the CALRA conference.) http://www.calras.org/

(g) Commonwealth Association of Public Sector Lawyers (CAPSL). (Provides support to public sector lawyers within the Commonwealth and promotes interest in all aspects of public sector law including summaries of recent publications in this area and an online Newsletter.) http://www.capsl.org/

(h) Commonwealth Lawyers’ Association (CLA). (International professional association of lawyers from throughout the Commonwealth. Organises meetings, seminars and workshops including the biannual Commonwealth Law Conference (CLC); provides online summaries of projects and papers; publishes The Commonwealth Lawyer (journal) and an online Newsletter.) http://www.commonwealthlawyers.com/

(i) Commonwealth Local Government Forum (CLGF). (Promotes and strengthens democratic local governments. The site includes the Good Practice Scheme, conferences and other events, technical partnerships and country profiles outlining the various systems of government across the Commonwealth. Publishes an online Bulletin (pdf) and the Commonwealth Local Government Handbook.) http://www.clgf.org.uk/




[Not applicable.]

http://www.commonlii.org/

http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=20642

http://www.thecommonwealth.org/

http://www.cpahq.org/

http://www.opc.gov.au/calc/

http://www.calras.org/

http://www.capsl.org/

http://www.commonwealthlawyers.com/

http://www.clgf.org.uk/



32




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]


33


1. Module Title

“Understanding the Legal Context for New Legislation”

2. Credits

10.5 credits.


2010


(a) Prerequisites

























MODULE 5: UNDERSTANDING THE LEGAL CONTEXT FOR NEW LEGISLATION

34



Staff Hours

Lectures 64.00 128.00







TOTAL 105.00 150.00



This module provides students with an understanding of the context into which legislation will be introduced, including issues relating to hierarchy and types of legislation, legislative processes, and Rwanda’s bi-jural (civil and common law systems) and multilingual legal system, as well as the fundamentals of Rwandan law and East African Community law, particularly as they relate to drafting.




(1) Sources, types, and hierarchy of legislation in Rwanda under article 93 of the Constitution of Rwanda (2003).

(2) Legislative processes and procedures in Rwanda (in theory and in practice).

(3) Basic legislative drafting requirements under the Instructions of the Minister of Justice No. 01/11 of 2006/11/14 relating to the Drafting of the Texts of Laws (Official Gazette No. 22 bis dated 2006/11/15).

(4) Major differences between and issues arising from common law vs. civil law legal systems.

(5) Fundamentals of Rwandan law.

(6) Fundamentals of East African Community (EAC) law, including the Treaty for the Establishment of the East African Community.



Implement the basic legislative drafting requirements under the Instructions of the Minister of Justice No. 01/11 of 2006/11/14 relating to the Drafting of the Texts of Laws (Official Gazette No. 22 bis dated 2006/11/15).



35



(1) Identify the different types of legislation possible under Rwandan and East African Community law and how these may require different techniques.

(2) Highlight the challenges and opportunities of working in two legal systems.



(1) Lay out the fundamentals of Rwandan and East African Community law as they relate to drafting.

(2) Build on prior legal knowledge and experience, in both a legislative and Rwandan context.

(3) Apply knowledge of Rwandan law to new circumstances and legislative situations.



(1) Brief history of laws and legislation in Rwanda and the East African Community.

(2) Sources, types, and hierarchy of legislation in Rwanda.6

(3) Legislative processes and procedures in Rwanda (in theory and in practice).

(a) Constitutional amendments.

(b) International instruments.

(c) Organic laws, ordinary laws, and decree-laws.

(d) Referendums.7

(e) Regulations, ministerial orders, and other subsidiary or secondary legislation.8

(f) Parliamentary procedure.9

(g) Subnational (for example, regional or local) legislation. Authority, methods, and processes.

(h) Basic legislative drafting requirements.10

(4) Common law vs. civil law.11

6 See Constitution of Rwanda (2003), art. 93.

7 See Constitution of Rwanda (2003), art. 109.

8 See Constitution of Rwanda (2003), arts. 119–120.

9 Rules of the Senate and the Chamber of Deputies:

Organic Law No. 02/2005 of 18/02/2005 establishing Rules of Procedure of the Senate (as amended by Organic Law No. 33/2007 of 2007/07/30, Official Gazette No. Special dated 2007/08/14).

Organic Law No. 06/2006 of 2006/02/15 establishing Internal Rules of Procedure of the Chamber of Deputies in the Parliament (Official Gazette No. 5 bis dated 2006/03/01).

10 Instructions of the Minister of Justice No. 01/11 of 2006/11/14 relating to the Drafting of the Texts of Laws (Official Gazette No. 22 bis dated 2006/11/15).

11 See William Tetley, “Mixed jurisdictions: Common Law vs Civil Law (Codified and Uncodified),” available at: http://www.cisg.law.pace.edu/cisg/biblio/tetley.html (accessed February 11, 2010).

http://www.cisg.law.pace.edu/cisg/biblio/tetley.html



36

(a) Common law principles.

(b) Civil law principles.

(c) Similarities and differences.

(d) Issues arising from bijuralism.

(e) Other common law, civil law, and bijural countries.

(5) Fundamentals of Rwandan law.

(a) The Constitution and principles of constitutional law, including constitutional “danger zones” related to legislative drafting.

(b) Important international instruments.

(c) The civil, commercial, and criminal codes and procedures.

(d) Related regulations.

(e) The laws, regulations, charters, internal operating procedures, and codes of conduct in force with respect to the organization and operation of the State and governmental institutions.

(f) The charters or organizing documents of any currently existing State-owned enterprises.

(6) Fundamentals of East African Community (EAC) law, including:

(a) Treaty for the Establishment of the East African Community.

(b) Comparative legislative processes in East African Community (EAC) member states, the EAC Legislative Assembly, and treaty modifications.12

(c) Comparative constitution-making and review processes of member states.

(d) Interpretation Acts of the EAC and member states.

(7) Comparative analysis with other jurisdictions (particularly the East African Community).








12 See http://www.eala.org/plenary-session/publications/cat_view/112-plenary-sessions

http://www.eala.org/plenary-session/publications/cat_view/112-plenary-sessions



37




(a) Core Texts

(1) Schabas, William A., and Martin Imbleau, Introduction to Rwandan Law. Les Éditions Yvon Blais, 1997 (ISBN: 289451185X, 9782894511855)

(2) Imbleau, Martin, and William A. Schabas, Introduction au Droit Rwandais. Les Éditions Yvon Blais, 1999. (ISBN: 2894513151, 9782894513156)

(3) Constitution and laws of Rwanda:

(a) Constitution of the Republic of Rwanda (2003).

(b) Official Gazette of the Republic of Rwanda | Journal Officiel de la République du Rwanda | Igazeti ya Leta ya Repubulika y’u Rwanda (1962–present).

(c) Organic Law No. 06/2006 of 2006/02/15 establishing Internal Rules of Procedure of the Chamber of Deputies in the Parliament (Official Gazette No. 5 bis dated 2006/03/01).

(d) Organic Law No. 02/2005 of 18/02/2005 establishing Rules of Procedure of the Senate, (as amended by Organic Law No. 33/2007 of 2007/07/30, Official Gazette No. Special dated 2007/08/14)

(e) Instructions of the Minister of Justice No. 01/11 of 2006/11/14 relating to the Drafting of the Texts of Laws (Official Gazette No. 22 bis dated 2006/11/15).

(4) Treaty and Acts of the East African Community:

(a) Treaty for the Establishment of the East African Community.13

(b) The East African Community Interpretation Act.

(c) The East African Legislative Assembly Powers and Privileges Act.

(d) The Acts of the Community Act.

(e) The Summit (Delegation of Powers and Functions) Bill, 2007.


(1) Tetley, William, “Mixed jurisdictions: Common Law vs Civil Law (Codified and Uncodified),” available at: http://www.cisg.law.pace.edu/cisg/biblio/tetley.html (accessed February 11, 2010).

(2) Other background texts to be determined later

13 See http://www.eac.int/advisory-opinions/doc_download/158-amended-treaty-for-the-establishment-

of-east-african-community.html

http://www.cisg.law.pace.edu/cisg/biblio/tetley.html

http://www.eac.int/advisory-opinions/doc_download/158-amended-treaty-for-the-establishment-of-east-african-community.html

http://www.eac.int/advisory-opinions/doc_download/158-amended-treaty-for-the-establishment-of-east-african-community.html



38

(c) Journals

Law Review of Rwanda | Revue Juridique du Rwanda | Igazeti Isobanura Amategeko mu Rwanda. (ISSN: 1010–8538)



(1) Ministry of Justice (MiniJust) of Rwanda: http://www.MiniJust.gov.rw/

(2) Codes and laws of Rwanda: http://www.amategeko.net/ (by Ministry of Justice of Rwanda)

(3) Official Gazette of the Republic of Rwanda:

http://www.primature.gov.rw/journal.htm (official website)

http://www.scribnet.org/library/jo/ (index of contents, in French)

(4) GlobaLex – Rwanda’s Legal System and Legal Materials:


(5) East African Community–related websites:

(a) East African Community website: http://www.eac.int/

(b) East African Legislative Assembly: http://www.eala.org/

(c) EAC Summit. http://www.eac.int/summit.html

(d) EAC Secretariat. http://www.eac.int/secretariat

(e) EAC Council of Ministers. http://www.eac.int/council-of-ministers.html

(f) EAC Co-ordination Committees.


(g) EAC Sectoral Committees. http://www.eac.int/sectoral-committees.html

(h) East African Court of Justice. http://www.eacj.org/

(i) EAC Gazettes. http://www.eac.int/advisory-opinions/cat_view/111-eac-gazette.html

(j) EAC documents. http://www.aict-ctia.org/courts_subreg/eac/eac_home.html

(6) World Legal Information Institute (WorldLII.org) databases:

(a) Commonwealth member nations: http://www.worldlii.org/catalog/55400.html

(b) EAC: http://www.worldlii.org/catalog/55000.html

(c) East African Court of Justice: http://www.worldlii.org/catalog/55004.html

(d) EAC member nations: http://www.worldlii.org/catalog/55001.html

(e) Burundi: http://www.worldlii.org/catalog/2678.html

(f) Kenya: http://www.worldlii.org/catalog/2688.html

(g) Uganda: http://www.worldlii.org/catalog/2206.html

(h) Tanzania: http://www.worldlii.org/catalog/2713.html

http://www.minijust.gov.rw/

http://www.amategeko.net/

http://www.primature.gov.rw/journal.htm

http://www.scribnet.org/library/jo/


http://www.eac.int/

http://www.eala.org/

http://www.eac.int/summit.html

http://www.eac.int/secretariat

http://www.eac.int/council-of-ministers.html


http://www.eac.int/sectoral-committees.html

http://www.eacj.org/



http://www.aict-ctia.org/courts_subreg/eac/eac_home.html











39

(7) Kenya legal information:

(a) Kenya laws: http://www.kenyalaw.org/

(b) Interpretation and General Provisions Act (Laws of Kenya, cap. 2).

(8) Tanzania legal information:

(a) Interpretation of Laws Act, 1996 (Act No. 4 of 1996).

(9) Uganda legal information:

(a) Constitution (1995) (on University of Bern website): http://www.oefre.unibe.ch//icl/ug__indx.html

(b) Acts of Parliament Act 2000 (Laws of Uganda, cap. 2) (on Uganda Legal Information Institute website). http://www.ulii.org/ug/legis/consol_act/aopa2000178

(c) Interpretation Act 1976 (Laws of Uganda, cap. 3) (on Uganda Legal Information Institute website). http://www.ulii.org/ug/legis/consol_act/ia1976191

(d) Bill Tracking System of Parliament of Uganda (on Parliament website). http://www.parliament.go.ug/billtrack/

(e) Legislation Uganda. http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweuga.htm

(f) Uganda Legal Information Institute. http://www.ulii.org/ug/legis/consol_act/

(g) Uganda Law Reform Commission. (subscription site, but listing of resources available is freely accessible). http://www.ulrc.go.ug/about_ULRC/laws_index.php

(10) Commonwealth of Nations–related websites:

(a) Commonwealth Legal Information Institute (CommonLII). (Full text, searchable legislation, case law and secondary legal materials databases from Commonwealth and common law countries. CommonLII is coordinated and operated by AustLII.) http://www.commonlii.org/

(b) Commonwealth – Links. (Links to inter-governmental, professional and non-governmental organisations and associations across the Commonwealth (Commonwealth Secretariat).) http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=20642

(c) The Commonwealth Secretariat. (Includes Commonwealth declarations, reports, speeches, news, press releases and other publications, an events calendar, video presentations, country profiles and links to Commonwealth-wide organizations.) http://www.thecommonwealth.org/

(d) Commonwealth Parliamentary Association. (Areas of projects and initiatives cover good governance, democracy and elections, human rights, gender issues and promoting awareness of parliamentary democracy among young people. Publishes The Parliamentarian (journal) and specialist publications as well as an online Newsletter (pdf) and other material on parliamentary subjects (pdf).) http://www.cpahq.org/

(e) Commonwealth Association of Legislative Counsel (CALC). (Established to promote cooperation among people in the Commonwealth engaged in legislative drafting or in training people in legislative drafting. Publishes a monthly online Newsletter which includes papers given at meetings (pdf and rtf).) http://www.opc.gov.au/calc/

http://www.kenyalaw.org/

http://www.oefre.unibe.ch/icl/ug__indx.html

http://www.ulii.org/ug/legis/consol_act/aopa2000178

http://www.ulii.org/ug/legis/consol_act/ia1976191

http://www.parliament.go.ug/billtrack/

http://www.lexadin.nl/wlg/legis/nofr/oeur/lxweuga.htm

http://www.ulii.org/ug/legis/consol_act/

http://www.ulrc.go.ug/about_ULRC/laws_index.php

http://www.commonlii.org/

http://www.thecommonwealth.org/Templates/Internal.asp?NodeID=20642

http://www.thecommonwealth.org/

http://www.cpahq.org/

http://www.opc.gov.au/calc/



40

(f) Commonwealth Association of Law Reform Agencies (CALRAs). (Provides information about the establishment, objectives and constitution of the Association and the CALRA conference.) http://www.calras.org/

(g) Commonwealth Association of Public Sector Lawyers (CAPSL). (Provides support to public sector lawyers within the Commonwealth and promotes interest in all aspects of public sector law including summaries of recent publications in this area and an online Newsletter.) http://www.capsl.org/

(h) Commonwealth Lawyers’ Association (CLA). (International professional association of lawyers from throughout the Commonwealth. Organises meetings, seminars and workshops including the biannual Commonwealth Law Conference (CLC); provides online summaries of projects and papers; publishes The Commonwealth Lawyer (journal) and an online Newsletter.) http://www.commonwealthlawyers.com/

(i) Commonwealth Local Government Forum (CLGF). (Promotes and strengthens democratic local governments. The site includes the Good Practice Scheme, conferences and other events, technical partnerships and country profiles outlining the various systems of government across the Commonwealth. Publishes an online Bulletin (pdf) and the Commonwealth Local Government Handbook.) http://www.clgf.org.uk/




[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]

http://www.calras.org/

http://www.capsl.org/

http://www.commonwealthlawyers.com/

http://www.clgf.org.uk/


41


1. Module Title

“Fundamental Principles of Drafting Legislation”

2. Credits

10.0 credits.


2010


(a) Prerequisites

























MODULE 6: FUNDAMENTAL PRINCIPLES OF DRAFTING LEGISLATION

42



Staff Hours

Lectures 55.00 110.00







TOTAL 100.00 125.00



This module provides students with an understanding and application of the fundamental principles and considerations involved in the process and practice of drafting legislation.




(1) The fundamental (overarching) general rules and principles for drafting legislation.

(2) Essential considerations for the drafting process.

(3) The basic framework and skills needed for good legislation.

(4) The legislative sentence, including its syntax and style.

(5) Legislative style, form, and content and the differences between them.



(1) Take into account the essential considerations for the drafting process, as described in the module, when drafting legislation.

(2) Describe the fundamental principles and rules of legislative drafting.

(3) Follow and apply the fundamental rules when drafting legislation or legislative provisions.

(4) Recognize when draft legislation does not apply the fundamental rules and edit or rewrite the legislation or legislative provisions appropriately.





43

(1) Communicate clearly with non-drafters about ways in which draft legislation or legislative provisions do or do not follow or apply the fundamental rules.

(2) Read and edit or rewrite draft legislation or legislative provisions.

(3) Write draft legislation or legislative provisions.



(1) Recognize poorly drafted legislation or legislative provisions.

(2) Draft and edit legislation and legislative provisions.

(3) Apply the basic principles of legislative syntax and expression to the writing of legislative sentences, and select, compose, and combine the components of simple legislative sentences.

(4) Write or rewrite a legislative sentence, using good syntax and writing style.



(1) Fundamental considerations for the legislative drafting process.

(a) Careful analysis of the legal problems involved.

(b) Observing constitutional limitations.

(c) Avoiding gaps or overlaps in policy and the legislation’s substantive provisions.

(d) Arrangement of matter in a logical sequence. (Organization, ordering.)

(e) Clarity. Accurate expression of the concepts set forth in the legislation.

(i) Avoiding ambiguity.

(ii) Avoiding vagueness.

(iii) Avoiding over-precision.

(f) Relating new legislation to earlier enactments.

(g) Maintaining a consistent body of law.

(h) Achieving the intended purpose of the legislation.

(i) Avoidance of unintended (legal) consequences.

(2) General drafting principles.

(a) Organization.

(b) Brevity, conciseness, simplicity.

(c) Word choice (verb tense, voice, etc.).

(d) Consistency (including introduction to the use of defined terms).

(e) Use of an appropriate legislative style.

(f) Consideration of the audience. Getting the message across.

(3) Use of general rules, conditions, and exceptions (or provisos).

(a) General rules and exceptions.



44

(b) Conditions.

(c) Provisos (and how to avoid them).

(4) Use of requirements, authorizations, and prohibitions (linguistic tools for legislation).

(a) Requiring certain behaviour, which may include providing incentives or disincentives for the behaviour or imposing sanctions for violations or omissions (“shall” and “must”).

(b) Authorizing or permitting certain behaviour, which may include providing incentives or disincentives for the behaviour (“may”, “is authorized”, “is entitled to”, “has the right to”).

(c) Prohibiting certain behaviour and imposing sanctions for violations (“may not” and “shall not”).

(d) Use of “shall”, “may”, and “may not” or “shall not” with implementing agencies and officials.

(5) The legislative sentence and legislative syntax.

(a) Elements of a legislative sentence.

(b) Potential sentence problems.

(c) Punctuation.

(d) Tabulation, indentation, and use of lists.

(6) Understanding legislative style, form, and content — and the differences between them.

(a) Legislative style. What is it? Why is it important? Relationship of form and style.

(b) Legislative form. What constitutes the “form” of the legislation?

(c) Legislative content (substantive text and provisions).

(7) Introduction to the organization of a legislative document.14

(a) Hierarchy and names of the parts of a law or regulation. (For example, chapters that contain articles.)

(b) Numbering the different parts of a law or regulation.






14 See Instructions of the Minister of Justice No. 01/11 of 2006/11/14 relating to the Drafting of the Texts of

Laws (Official Gazette No. 22 bis dated 2006/11/15).



45






(a) Core Texts

(1) Crabbe, Victor C. R. A. C., Legislative Drafting. London: Cavendish, 1993. (ISBN: 1874241155.) Specifically:

(a) Chapter 3 (“Language and Legislation”), pages 27–56.

(b) Chapter 5 (“The Legislative Sentence”), pages 71–84.

(c) Chapter 9 (“The Presumptions”), pages 153–170.

(2) Dorsey, Tobias A., Legislative Drafter’s Deskbook: A Practical Guide. (Washington, D.C., USA: TheCapitol.Net, 2006. (ISBN 10: 1587330156; ISBN 13: 978–1–58733–015–5.) Specifically: Chapter 6, pages 169–200 (“Writing Effectively”).

(3) Driedger, Elmer A., The Composition of Legislation; Legislative Forms and Precedents. 2d edition. Ottawa, Canada: Department of Justice, 1976. (ISBN: 0660004437.) Specifically:

(a) Book I, chapter II, pages 7–18 (“The Verb in Legislation”).

(b) Book I, chapter III, pages 19–34 (“The Principal Subject”).

(c) Book I, chapter IV, pages 35–39 (“The Principal Predicate”).

(d) Book I, chapter V, pages 40–44 (“Sentence Modifiers”).

(e) Book I, chapter VII, pages 53–76 (“Paragraphing”).

(f) Appendix I, pages 317–378 (“Coode on Legislative Expression”).

(4) Thornton, Grant C., Legislative Drafting. 4th edition. London: Butterworths, 1996. (ISBN: 0406045216) Specifically:

(a) Chapter 1, pages 1–13 (“Words”).

(b) Chapter 2, pages 14–45 (“Syntax”).

(c) Chapter 7 (“The drafting process: Part 1”).

(d) Chapter 8 (“The drafting process: Part 2”).

(5) U.S. House of Representatives, Office of the Legislative Counsel, House Legislative Counsel’s Manual on Drafting Style. Washington, D.C.: U.S. Government Printing Office, 1995 (House Doc. HLC 104–1; 104th Congress, 1st Session). Specifically: §§ 101–102.

(6) U.S. Senate, Office of the Legislative Counsel, Legislative Drafting Manual. Washington, D.C.: U.S. Government Printing Office, 1997. Specifically: §§ 101–107.



46


Dickerson, Reed, Materials on Legal Drafting. St. Paul, Minnesota: West Publishing Co., 1981. (ISBN: 0314586158.) Specifically:

(a) Chapter 3, pages 31–63 (“Some Basics About Language and Meaning”).

(b) Chapter 8, pages 163–211 (“The Fundamentals of Style”).

(c) Journals

[Not applicable.]






[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]


47


1. Module Title

“Efficiency and Use of Technology in Drafting Legislation”

2. Credits

8.0 credits.


2010


(a) Prerequisites



(2) Module 1: Introduction to Legislative Drafting





















Staff Hours


MODULE 7: EFFICIENCY AND USE OF TECHNOLOGY IN DRAFTING LEGISLATION

48








TOTAL 80.00 130.00



This module provides students with an understanding of how to use technology more efficiently for legislative drafting, including an introduction to the use of efficient office procedures and practical training in essential computer applications, including the use and development of document templates and databases.




(1) Sources for research, both online and library-based.

(2) Efficient internal (office) standards and procedures.

(3) How to develop and use checklists.

(4) How to develop and use templates, forms, and “boilerplate” legislative text.

(5) Best practices for computer file back-ups, file-naming conventions, etc.

(6) How to track the status of pending legislation in Rwanda and other jurisdictions.

(7) How to develop and use forms for providing information to clients and other people, and for gathering it from them.



(1) Develop and use checklists.

(2) Develop and use templates, forms, and “boilerplate” legislative text.

(3) Develop and use forms for providing information to clients and other people, and for gathering it from them.



(1) Implement best practices for computer files, backup policies, file-naming conventions, etc.

(2) Demonstrate basic proficiency, and use of advanced functions, in Microsoft Word.



49

(3) Demonstrate basic proficiency, and use of advanced functions, in Microsoft Excel.

(4) Demonstrate basic proficiency in Microsoft Access.

(5) Demonstrate basic proficiency, and use of advanced functions, in Microsoft PowerPoint.

(6) Development and use of databases.



(1) Conduct online and library-based legal research.

(2) Track the status of pending legislation in Rwanda and other jurisdictions.



(1) Sources for research.

(a) Libraries.

(b) Printed materials, like dictionaries, legal texts and treatises, etc.

(c) Legal glossaries and dictionaries.15

(d) Web sites for locating online resources.

(2) Online legal research.16

(3) Efficient internal (office) standards and procedures.

(4) Development and use of checklists (e.g., steps to be completed, consultations held, etc.).

(5) Development and use of templates, forms, and “boilerplate” legislative text.

(6) Development and use of databases. What databases are out there?

(7) Specific computer programs and applications.

(a) Microsoft Word (basic proficiency, advanced functions).

(b) Microsoft Excel (basic proficiency, advanced functions).

(c) Microsoft Access (basic proficiency).

(d) Microsoft PowerPoint (basic proficiency, advanced functions).

(8) Best practices for computer files, etc.

(a) Backing up files.

(b) File-naming conventions.

(9) Tracking the status of pending legislation in Rwanda and other jurisdictions.

(10) Development and use of forms for providing information to clients and other people, and for gathering it from them.17 (Different forms for different institutions and purposes.)

15 See, for example, http://www.thecapitol.net/glossary/, http://www.ili.org/ld/dictionaries.htm.

16 See course bibliography for detailed list of online resources.

http://www.thecapitol.net/glossary/

http://www.ili.org/ld/dictionaries.htm



50











(a) Core Texts

See generally resources listed in course bibliography (Annex 4).


(1) Macpherson, Don, “Instant Bills: The impact of information technology (IT) on legislative drafting in Canada”. http://www.opc.gov.au/calc/docs/Article_Macpherson_ITsystemsCanada_2005.pdf

(2) Debaene, Stijn; van Kuyck, Raf; van Buggenhout, Bea. “Legislative Technique a Basis of a Legislative Drafting System.” http://www.jurix.nl/pdf/j99-03.pdf

(3) den Haan, Nienke, “Towards support tools for drafting legislation,” in Svensson, J. S.; Wassink, J. G. J.; van Buggenhout, B. (editors), Legal knowledge based systems JURIX 95: Intelligent Tools for Drafting Legislation, Computer-Supported Comparison of Law. Lelystad: Koninklijke Vermande, 1993. (ISBN: 9054580895.) (Pages 23-30.) http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.59.1511&rep=rep1&type=pdf

(4) “Drafting and Validating Regulations: The Inevitable Use of Intelligent Tools,” in Cerri, Stefano A.; Dochev, Danail (editors), Artificial Intelligence: Methodology, Systems, and

17 For example, a legislative drafting office might have a form that provides its clients with a description of

the legislative drafting procedures used in that office and step-by-step instructions (and fill-in information) for clients submitting a request for drafting to the office. This type of form could be used both online and in paper form. Here are some specifics that might be included:

(1) What to expect as a client or sponsor of the legislative document.

(2) What you, as the drafter, will expect the client or sponsor of the legislative document to do.

(3) Checklist of steps in the overall legislative drafting process.

(4) Checklist for the institution’s own procedures in the legislative drafting and review process.

(5) Checklist for the steps that require action on the part of the client or sponsor of the legislative document.

http://www.opc.gov.au/calc/docs/Article_Macpherson_ITsystemsCanada_2005.pdf

http://www.jurix.nl/pdf/j99-03.pdf

http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.59.1511&rep=rep1&type=pdf



51

Applications: 9th International Conference, AIMSA 2000 Varna, Bulgaria, September 2000: Proceedings (Volume 1904 of Lecture Notes in Computer Science; Volume 1904 of Lecture notes in artificial intelligence). Springer, 2000. (ISBN: 3540410449, 978–3540410447.) 366 pages, illustrated. (Pages 47–66.) http://www.springerlink.com/content/hayf3772874k9w5w/

(5) Gordon, Thomas F. “eGovernance and its Value for Public Administration.” eGovernment Competence Center, Fraunhofer Institute for Open Communications Systems (FOKUS) (Berlin, Germany). http://eg2km.org/articles/E-Governance%20and%20its%20Value%20for%20Public%20.pdf

(6) “Advanced techniques for legal document processing and retrieval,” Artificial Intelligence and Law, vol. 7, No. 4 (Dec. 1999) pages 341–361. http://www.springerlink.com/content/q722182677uh7747/

(7) Marke, Julius J.; Sloane, Richard; Ryan, Linda M. Legal Research and Law Library Management (Issue 572 of Law office management series, Legal Research and Law Library Management, Richard Sloane). Law Journal Press, 2006. (ISBN: 1588520137, 978–1588520135.) 1,000 pages, revised.

(8) Enright, Christopher; Moore, Peter. Legal research and interpretation techniques: papers presented for the Continuing Legal Education Department of the College of Law on Monday, 26 March 1990, Friday, 1 March 1991, Friday, 7 February 1992, Friday, 26 February 1993 and updated for presentation on Friday, 25th March 1994 (Volume 15; Volume 94 of Seminar papers). College of Law (Sydney, N.S.W.), Continuing Legal Education Department, 1994. (ISBN: 0867507055, 978–0867507058.) 221 pages.

(9) Council of Europe. Interdisciplinary research in legal databases : environmental law databases: proceedings of the 9th Colloquy on Legal Data Processing in Europe, Rome, 1–3 October 1991: reports presented at the colloquy. Council of Europe Press, 1992. (ISBN: 9287121664, 978–9287121660.) 199 pages.

(c) Journals

[Not applicable.]






The module requires use of a computer lab with Microsoft Word, Excel, and Access applications installed on each computer.




(h) Other Resources

[Not applicable.]

http://www.springerlink.com/content/hayf3772874k9w5w/

http://eg2km.org/articles/E-Governance%20and%20its%20Value%20for%20Public%20.pdf

http://www.springerlink.com/content/q722182677uh7747/



52


[Not applicable.]

15. Teaching Team

[To be determined.]


53


1. Module Title

“Legislative Style”

2. Credits

11.5 credits.


2010


(a) Prerequisites



(2) Module 1: Introduction to Legislative Drafting





















Staff Hours


MODULE 8: LEGISLATIVE STYLE

54

Lectures 65.00 130.00







TOTAL 115.00 150.00



This module provides students with a thorough understanding of the principles and technical aspects of legislative drafting style, with due regard for good practices with respect to clarity, consistency and uniformity in style, terminology, and usage.




(1) Legislative style of writing.

(2) Ways to achieve clarity in drafting.

(3) The plain-language style of drafting.

(4) Importance of consistency in terminology, usage, and style.

(5) Legislative drafting rules and conventions used in Rwanda.

(6) Rules and conventions related to style used in Rwanda, the East African Community, and the Commonwealth of Nations.

(7) Issues related to consistency of terminology across languages.



(1) Put into effect the main practices that lead to a plain-language style of drafting.

(2) Draft and edit legislation that is consistent in its terminology, usage, and style.

(3) Choose words carefully in order to convey the intended concepts.



(1) Consider the intended audience when drafting legislation.

(2) Implement reading aids effectively to assist the reader in using the legislation.

(3) Follow a gender-neutral style of drafting, when appropriate.



55



(1) Write legislative language that is clear and concise.

(2) Apply a range of stylistic devices in composing legislation that will contribute to its effectiveness and clarity.

(3) Write and edit draft legislation using clear and consistent legislative language and stylistic methods.



(1) Style of legislation generally.

(2) Writing clearly.

(a) Importance of drafting readable legislation (clarity in writing).

(b) How to make legislation clear and readable.

(c) Consideration of the “audience” for the legislation. (Who are the primary users of statutes? Are they our main audience and, if not, then who?)

(d) Brevity, conciseness.

(e) Clarity, avoiding ambiguity. Conceptual clarity, clarity of provisions, precise definitions and meanings of terms.

(3) Plain language.

(4) Word choice.

(a) Avoiding jargon, acronyms, and overly technical or confusing terminology.

(b) Use of foreign terminology.

(c) Vagueness, ambiguity, and stability of words.

(d) Gender-neutrality.

(e) Words and expressions to avoid.

(f) Words and expressions to use carefully.

(5) Consistency in terminology and usage. (Maintaining consistency within a draft and with other existing laws.)

(a) How to use (and not misuse) defined terms.

(b) Consistency of style and organization.

(c) Consistency in punctuation. Importance of punctuation in legislation.

(d) Incorporation by reference to other (external) provisions.

(e) Translation standards and consistency.

(6) Legislative style and consistency.

(a) Importance and advantages of using a consistent style and format in legislation.

(b) Using (and not misusing) modifiers.

(c) Tabulation, indentation, and use of lists.



56

(d) Paragraphing (alineas).

(e) Division, naming, and numbering or designation of provisions (e.g., articles containing paragraphs, etc.).

(f) Use of reading aids. (Helping the readers find what they are looking for.)

(i) Tables of contents.

(ii) Headings.

(iii) Marginal notes.

(iv) Other type of aids (lists, tables, diagrams, schedules, annexes, etc.).

(g) Use of separate list for numerous legislative amendments or abrogations.

(7) Specific matters of style.

(a) References to numbers.

(b) References to dates.

(c) Expressions of time (e.g., deadlines, etc.).

(d) Spelling.

(e) Capitalization.

(f) Symbols and abbreviations.

(g) Titles of legislative documents. Citation by short title.

(h) Names of institutions and titles of officials.

(i) Uniformity in style for other references, citations, and annotations:

(i) Internal and external cross-references.

(ii) References to pending legislation and related amendments.

(iii) References or citations to treaties, conventions, and other international instruments.

(iv) References or citations to other legislative documents.

(8) Drafting conventions in Rwanda and the East African Community.

(a) The structure of legislation and style in Rwanda as determined by the Constitution and Instructions of the Minister of Justice No. 01/11 of 2006/11/14 relating to the Drafting of the Texts of Laws (Official Gazette No. 22 bis dated 2006/11/15).

(b) Issues in the use of marginal notes, citing the original source of legislative provisions, and using the amendment history of legislative provisions.

(9) Comparative analysis of best practices from other jurisdictions.

(10) How to use technology (for example, computer templates) to make the legislative drafter’s job easier.

(11) Issues of legislative style and translation in a multilingual legislative environment. (Important differences between the 3 official languages and how to plan for these differences, if possible.)



57











(a) Core Texts

(1) Thornton, Grant C., Legislative Drafting. 4th edition. London: Butterworths, 1996. (ISBN: 0406045216)

(2) Driedger, Elmer A., The Composition of Legislation; Legislative Forms and Precedents. 2d edition. Ottawa, Canada: Department of Justice, 1976. (ISBN: 0660004437)

(3) Crabbe, Victor C. R. A. C., Legislative Drafting. London: Cavendish, 1993. (ISBN: 1874241155)

(4) Seidman, Ann, Robert B. Seidman, and Nalin Abeyesekere, Legislative Drafting for Democratic Social Change: A Manual for Drafters. Boston: Kluwer Law International, 2001. (ISBN: 9041197931, English version; other languages are available.)

(5) Dorsey, Tobias A., Legislative Drafter’s Deskbook: A Practical Guide. (Washington, D.C., USA: TheCapitol.Net, 2006. (ISBN: 1587330156, 9781587330155)

(6) Dickerson, Reed, Materials on Legal Drafting. St. Paul, Minnesota: West Publishing Co., 1981. (ISBN: 0314586158)

(7) Mikva, Abner J., and Eric Lane, An Introduction to Statutory Interpretation and the Legislative Process. New York: Aspen Law & Business, 1997. (ISBN: 1567066127, paperback)

(8) Pan African Parliament, Africa i-Parliament Action Plan, Legislative Drafting Guidelines for Persons Involved in the Drafting of Legislation in Africa. (Online resource)18

(9) European Communities, Joint Practical Guide of the European Parliament, the Council and the Commission for Persons Involved in the Drafting of Legislation within the Community Institutions. Belgium, 2003. (ISBN: 9289440635)19

18 Available at: http://ldg.apkn.org/, http://ldg.apkn.org/overview/rationale?set_language=en

19 Available at: http://eur-lex.europa.eu/en/techleg/index.htm

http://ldg.apkn.org/

http://ldg.apkn.org/overview/rationale?set_language=en

http://eur-lex.europa.eu/en/techleg/index.htm



58

(10) Instructions of the Minister of Justice No. 01/11 of 2006/11/14 relating to the Drafting of the Texts of Laws (Official Gazette No. 22 bis dated 2006/11/15).

(11) U.S. Agency for International Development, Rwanda Legislative Strengthening and Capacity Building, Legislative Drafting Handbook. (Draft version, Sept. 2009.) Kigali: USAID, 2009.

(12) U.S. Agency for International Development, Rwanda Legislative Strengthening and Capacity Building, Syllabus for Legislative Drafting. Kigali: USAID, 2009.

(13) U.S. Senate, Office of the Legislative Counsel, Legislative Drafting Manual. Washington, D.C.: U.S. Government Printing Office, 1997.

(14) U.S. House of Representatives, Office of the Legislative Counsel, House Legislative Counsel’s Manual on Drafting Style. Washington, D.C.: U.S. Government Printing Office, 1995. (House Doc. HLC 104–1; 104th Congress, 1st Session)20



(1) Garner, Bryan A. Legal Writing in Plain English: A Text with Exercises. University of Chicago Press, 2001. (ISBN: 0226284174, 9780226284170.)

(2) Garner, Bryan A. The Elements of Legal Style. (2nd edition.) Oxford University Press, 2002.

(3) Martineau, Robert J. Drafting Legislation and Rules in Plain English (Hornbook Series). West Publishing Co., 1991. (ISBN: 0314890238, 978–0314890238.) 155 pages.

(4) Martineau, Robert J.; Salerno, Michael B. Legal, Legislative, and Rule Drafting in Plain English (American Casebook Series). Thomson/West, 2005. (ISBN: 0314153012, 9780314153012.) 164 pages, illustrated.

(5) Martineau, Robert J.; Salerno, Michael B. Legal, Legislative, and Rule Drafting in Plain English (American Casebook Series). Thomson/West, 2005. (ISBN: 0314153012, 978–0314153012.) 164 pages, illustrated.

(6) Redish, Janice C. How to Write Regulations and Other Legal Documents in Plain English. Document Design Center, American Institutes for Research, 1991. 47 pages.

(7) Strunk, William (Jr.); White, E. B. (editor). Elements of Style. (4th edition.)Penguin Group, 2008. (ISBN: 143112724, 9780143112723.)

(8) Wydick, Richard C. Plain English for Lawyers. (5th edition.) Carolina Academic Press, 2005. (ISBN: 1594601518, 978–1594601514.) 139 pages.

(9) Australian Office of Parliamentary Counsel, Plain English Manual. (2003.) http://www.opc.gov.au/about/html_docs/pem/contents.htm

(10) Office of the Scottish Parliamentary Counsel, Plain Language and Legislation, (Web publication, March 2006). (See Chapter 3, “International Comparisons” pp. 19–28.) http://www.scotland.gov.uk/Resource/Doc/93488/0022476.pdf

(11) Campbell, Lisabeth, “Legal Drafting Styles: Fuzzy or Fussy?” E LAW | Murdoch U. Electronic J. of Law, vol. 3 (1996). http://www.murdoch.edu.au/elaw/issues/v3n2/campbell.htm

20 Available at: http://www.house.gov/legcoun/pdf/draftstyle.pdf

http://www.opc.gov.au/about/html_docs/pem/contents.htm

http://www.scotland.gov.uk/Resource/Doc/93488/0022476.pdf

http://www.murdoch.edu.au/elaw/issues/v3n2/campbell.htm

http://www.house.gov/legcoun/pdf/draftstyle.pdf



59

(12) Garner, Bryan A. “The Elements of Legal Style,” Canadian Parliamentary Review, vol. 42 (Spring 2007).

(13) Stark, Jack, “A Tool-Box Approach to ‘Shall’,” The Legislative Lawyer, vol. 11, page 1 (1997).

(14) Stark, Jack, “Legislative Sentences,” Statute Law Review, vol. 16, page 187 (1995).

(15) Wilson, Carol Ann. “Be on the Cutting Edge: Learn These Seven Plain Language Principles Now!” http://www.wwlia.org/plainlan.htm

(16) U.S. Government Printing Office, Style Manual. U.S. Government Printing Office, 2000. http://gpoaccess.gov/stylemanual/index.html

(17) U.S. Gov’t, National Labor Relations Board, “NLRB Style Manual: A Guide for Legal Writing in Plain English.” http://www.nlrb.gov/stylemanual.pdf

(18) National Performance Review (U.S.), “How to Write Well.” http://www.blm.gov/nhp/main/regtest/plaineng.html

(c) Journals




(1) LanguageAndLaw.org: an online institute devoted to the study of language and the law (hosted by Loyola Law School, Los Angeles, Cal.). http://www.languageandlaw.org/

(2) Plain English Campaign (United Kingdom). http://www.plainenglish.co.uk/

(3) Plain Language Action Network – National Partnership for Reinventing Government. http://plainlanguage.gov/

(4) Plain Language Association International. http://www.plainlanguagenetwork.org/

(5) Clarity: worldwide lawyers’ group campaigning for plain legal language. http://www.adler.demon.co.uk/clarity.htm




[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]

http://www.wwlia.org/plainlan.htm

http://gpoaccess.gov/stylemanual/index.html

http://www.nlrb.gov/stylemanual.pdf

http://www.blm.gov/nhp/main/regtest/plaineng.html

http://www.languageandlaw.org/

http://www.plainenglish.co.uk/

http://plainlanguage.gov/

http://www.plainlanguagenetwork.org/

http://www.adler.demon.co.uk/clarity.htm



60

15. Teaching Team

[To be determined.]


61


1. Module Title

“Particular Legislative Provisions”

2. Credits

8.0 credits.


2010


(a) Prerequisites
























MODULE 9: PARTICULAR LEGISLATIVE PROVISIONS

62



Staff Hours








TOTAL 80.00 100.00



This module provides students with the knowledge and skills to understand and draft many commonly used types of legislative provisions.




(1) The purposes of each provision presented.

(2) The legal effect of each provision presented.

(3) The reasons that a particular provision is necessary or appropriate in draft legislation and should be included or added to the draft.

(4) The reasons that a particular provision is unnecessary or inappropriate in draft legislation and should be excluded or removed from the draft.



(1) Accurately identify and explain the reasons that a particular provision is necessary or appropriate in draft legislation and should be included or added to the draft.

(2) Accurately identify and explain the reasons that a particular provision is unnecessary or inappropriate in draft legislation and should be excluded or removed from the draft.

(3) Decide correctly which particular provisions are necessary and appropriate in draft legislation and should be included or added to the draft.

(4) Decide correctly which particular provisions should be excluded from draft legislation because they are unnecessary or inappropriate for the draft.





63

(1) Explain to clients and others the purposes and legal effect a particular provision.

(2) Explain to clients and others the need to add a particular provision that is necessary and appropriate for draft legislation, but is missing in the draft.

(3) Explain to clients and others the reasons that a particular provision should be excluded or removed from draft legislation because it is unnecessary or inappropriate for the draft.

(4) Discuss with colleagues and others the particular provisions that are necessary and appropriate in draft legislation.

(5) Discuss with colleagues and others the particular provisions that should be excluded or removed from draft legislation because they are unnecessary or inappropriate for the draft.



(1) Draft each specific legislative provision presented in the module.

(2) Draft legislation by including a particular provision that is necessary or appropriate for the legislation.

(3) While drafting legislation, exclude from draft legislation particular provisions that are unnecessary or appropriate for the legislation.

(4) Edit legislation by adding a particular provision that is necessary and appropriate for draft legislation, but is missing in the draft.

(5) Edit legislation by removing a particular provision that is in the draft legislation but is unnecessary or inappropriate for the draft.



(1) Drafting within an Acts of Parliament Act (which does not exist yet in Rwanda).

(2) Titles of legislation.

(a) Long titles.

(b) Short titles.

(3) Preambles.

(4) Legislative findings of fact.

(5) Basis of authority provisions.

(6) Purposes provisions.

(7) Definitions provisions (also called terminology or interpretation provisions).

(8) Penalty provisions.

(a) Civil penalty provisions.

(b) Criminal or penal provisions.

(c) Punishment provisions.

(d) Forfeiture provisions.



64

(9) Authorization to issue regulations or other subsidiary, secondary, or delegated legislation.

(10) Reporting provisions.

(11) Publication provisions.

(12) Severability provisions.

(13) Savings provisions.

(14) Commencement provisions (also called effective date provisions or coming into force provisions).

(15) “Sunset” (or expiration) provisions.

(16) Termination of authority provisions.

(17) Other particular legislative provisions (as chosen by the instructor). Suggested types of provisions include the following:

(a) Enactment formulas or language.

(b) Scope of application provisions.

(c) Construction provisions (which clarify how the Act may, or may not, be interpreted).











(a) Core Texts


(2) Crabbe, Victor C. R. A. C., Legislative Drafting. London: Cavendish, 1993. (ISBN: 1874241155) Specifically:



65

(a) Chapter 7, pages 105–118 (“Definitions”).

(b) Chapter 8, pages 119–152 (“The Conventions”).

(c) Chapter 10, pages 171–184 (“Offences and Penalties”).

(3) Dickerson, Reed, Materials on Legal Drafting. St. Paul, Minnesota: West Publishing Co., 1981. (ISBN: 0314586158) Specifically:

Chapter 9, pages 212–229 (“Definitions”).

(4) Driedger, Elmer A., The Composition of Legislation; Legislative Forms and Precedents. 2d edition. Ottawa, Canada: Department of Justice, 1976. (ISBN: 0660004437) Specifically:

(a) Book 1, chapter VI, pages 45–52 (“Definitions”).

(b) Book 1, chapter XI, pages 109–118 (“Operation of Statutes”).

(c) Book 1, chapter XII, pages 119–122 (“Subordinate Legislation”).

(d) Book 2, chapter I, pages 153–188 (“Formalities”).

(e) Book 2, chapter IV, pages 225–266 (“Penal Provisions”).



(7) Seidman, Ann, Robert B. Seidman, and Nalin Abeyesekere, Legislative Drafting for Democratic Social Change: A Manual for Drafters. Boston: Kluwer Law International, 2001. (ISBN: 9041197931, English version; other languages are available.) Specifically:

(a) Chapter 12, pages 303–317 (“Internal Aids to Interpretation”).

(b) Chapter 13, pages 319–338 (“Formal Matters: Placing the Statutes in the Corpus of the Law”).

(8) Thornton, Grant C., Legislative Drafting. 4th edition. London: Butterworths, 1996. (ISBN: 0406045216) Specifically:

(a) Chapter 10, pages 193–207 (“Preliminary provisions”).

(b) Chapter 11, pages 218–248 (“Powers and duties”).

(c) Chapter 16, pages 349–382 (“Penal provisions”).

(d) Chapter 17, pages 383–402 (“Final provisions”).













66


(3) U.S. Agency for International Development, Rwanda Legislative Strengthening and Capacity Building, Legislative Drafting Handbook. (Draft version, Sept. 2009.) Kigali: USAID, 2009. (c) Journals

[Not applicable.]






[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]


67


1. Module Title

“Organization and Structure of Legislation”

2. Credits

8.5 credits.


2010


(a) Prerequisites

























MODULE 10: ORGANIZATION AND STRUCTURE OF LEGISLATION

68



Staff Hours








TOTAL 85.00 105.00



This module provides students with an understanding of the organization and structure of legislation and the practical skills needed to plan a draft and to organize and sequence numerous individual provisions into a coherent and structured draft.




(1) The basic structure and organization of legislation.

(2) The hierarchy, division, and numbering of different elements within a legislative document.

(3) The various elements of a legislative document and how they fit together.

(4) The composition of the preliminary part of a legislative document.

(5) The composition of the general provisions part of a legislative document.

(6) The composition of the principal part of a legislative document.

(7) The composition of the closing part of a legislative document.

(8) The composition and use of an annex to a legislative document.



(1) Design a legislative plan for drafting a short bill.

(2) Draft the preliminary part of a legislative document.

(3) Draft the general provisions of a legislative document, including definitions or terminology.

(4) Draft the principal provisions of a legislative document.

(5) Draft the closing provisions of a legislative document.



69

(6) Prepare an annex to a legislative document.



(1) Number or designate the different elements of a legislative document.

(2) When drafting legislation, order and link legislative sentences into a logical structure in a legislative document.

(3) Organize numerous legislative provisions into a coherent and structured law.

(4) Order and group provisions within a legislative document in a logical and coherent way that lends itself to achieving the purposes of the legislation.



Draft or edit a legislative document that is well organized and structured.



(1) Organization generally.

(a) Effect of organization on readability?

(b) How does having a consistent organization for legislation help both the drafter and the reader?

(2) Hierarchy and numbering of the parts of a law or regulation. (For example, titles that contain chapters, chapters that contain articles, and whether they are numbered with Roman numerals, letters, etc.)

(a) Hierarchy of the parts of a law or regulation. (Description of the basic elements of a legislative document. Each legislative document has a certain hierarchy of the provisions within the document. What to call the parts of a law (for example, titles, chapters, sections, articles, etc.).)

(b) Numbering. (Consecutive numbering of articles. Use of numerals (that is, “1”, “2”, “3”) rather than words (that is, “one”, “two”, “three”).)

(3) Building blocks of legislation.

(a) Articles (called “sections” in some jurisdictions), paragraphs, and smaller subdivisions.

(b) Chapters, parts, sections, titles, and other divisions above the article (or equivalent) level.

(4) Grouping and ordering of provisions.

(5) Using reading aids, like tables of contents and headings, to assist understanding the structure and content of legislation.

(a) Tables of contents.

(b) Headings. Where to put them. Capitalization.

(6) Basic structure of a legislative document. (a) Preliminary part. (b) General provisions. (c) Main provisions. (d) Closing provisions (Transitional and final provisions). (e) Annexes.



70

(7) Detailed structure of a legislative document. (Note that not every part will be contained in every legislative document.)

(a) Preliminary part.

(i) Title of document (or long title).

(ii) Preamble. (Is a preamble necessary or required?)

(iii) Enacting language.

(iv) Short title.

(v) Table of contents.

(b) General provisions.

(i) Basis or authority.

(ii) Legislative findings.

(iii) Purposes.

(iv) Definitions or terminology (called “Definition of Terms” in Rwanda, called the “Interpretation” provision in the East African Community).

(A) Ordering of terms. (Alphabetic vs. other methods, such as importance of the term. (No specific rule in Rwanda, alphabetical in EAC.)

(B) Placement of definitions (for example, separate article for a single definition, or a definition that is used only in a single chapter, article, etc.).

(c) Main provisions.

(i) General principles.

(ii) Rights and duties.

(iii) Basic program authority or establishment of agency or office.

(iv) Authority to issue regulations. (Notice and public comment considerations.)

(v) Implementing and administrative provisions.

(vi) Civil penalties. (Due process considerations.)

(vii) Criminal (penal) provisions.

(viii) Reporting requirements.

(d) Closing provisions.

(i) Transitional provisions.

(A) Specific transition rules.

(B) Treatment of pending matters.

(C) Savings provision.

(ii) Final provisions.

(A) Conforming or technical amendments.

(B) Repealing provisions.

(C) Severability provision.

(D) Special rule of interpretation.



71

(E) (Special) publication provision.

(F) Commencement (effective date, entry into force) (called “Commencement” in Rwanda). (Compare to EAC practices.)

(G) Termination of authority provision (also called restricted validity or “sunset” provision).

(e) Annexes (appendixes, schedules). Purposes and composition.











(a) Core Texts










72









(c) Journals

[Not applicable.]






[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]










73

15. Teaching Team

[To be determined.]


75


1. Module Title

“Subsidiary Legislation”

2. Credits

5.0 credits.


2010


(a) Prerequisites
























Staff Hours


MODULE 11: SUBSIDIARY LEGISLATION

76








TOTAL 50.00 60.00



This module provides students with an understanding of subsidiary legislation and its relationship to principle legislation, as well as the knowledge and skills to draft the main types of subsidiary legislation.




(1) The meanings of the terms primary legislation, subsidiary (or secondary) legislation, and delegated legislation, and the distinctions between them.

(2) The relationship of primary and subsidiary legislation.

(3) The relationship of organic laws as primary legislation and ordinary laws as subsidiary legislation in Rwanda.

(4) The features of primary and subsidiary legislation in Rwanda.

(5) The process of rulemaking generally and in Rwanda, including opportunities for public comment and participation.

(6) The differences between the legislative process for laws and the process for subsidiary legislation.

(7) Special considerations when drafting regulations and other subsidiary legislation.

(8) Methods and limitations on delegation of authority.

(9) How to draft subsidiary, secondary, and delegated legislation.

(10) The application and enforcement of legislation.

(11) Authority, methods, and processes of subnational (i.e., provincial or local) legislation.



(1) Recognize the limits imposed by primary legislation when ddrafting or editing secondary legislation.



77

(2) Ensure adherence to the authorizing primary legislation when drafting subsidiary legislation.

(3) Identify the key opportunities for public input in the rulemaking process.



(1) Explain the meanings and differences between primary, subsidiary, and delegated legislation.

(2) Explain to clients and others the relationships between primary and subsidiary legislation.

(3) Explain to clients and others the processes and limitations involved in drafting subsidiary legislation.



(1) Prepare and draft the main types of subsidiary legislation while adhering to the bounds imposed by the authorizing law or other primary legislation.

(2) Prepare and draft legislative provisions containing delegations of authority, taking into account relevant and appropriate limitations on that delegation.



(1) Terminology.

(a) Primary vs. secondary legislation.

(b) Subsidiary legislation.

(c) Delegated legislative power.

(2) Regulations and rulemaking.

(a) The regulation process generally.

(b) Public comments. (Opportunity, consideration, response.)

(c) The regulation process in Rwanda.

(3) Special considerations when drafting regulations and other subsidiary legislation.

(4) Adherence to the authorizing law.

(5) The application and enforcement of legislation.

(6) Delegation of authority. Limitations on delegation of authority.

(7) Subnational legislation (for example, regional or local). Authority, methods, and processes.





78









(a) Core Texts


















79






(c) Journals

[Not applicable.]






[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]




81


1. Module Title

“Amendment and Repeal”

2. Credits

5.5 credits.


2010


(a) Prerequisites
























MODULE 12: AMENDMENT AND REPEAL

82



Staff Hours








TOTAL 55.00 70.00



This module provides students with an understanding of the principles of amendment and repeal of legislation, including terminology, categories of amendments (including constitutional amendments), as well as the practical methods, techniques, and skills needed to draft amendatory or repealing language.




(1) The terminology of amendments and repeals.

(2) The differences between explicit/direct and implicit/indirect amendments and repeals.

(3) Different types or categories of amendments.

(4) When to use amendments rather than repeal of existing provisions.

(5) Methods of amendment.

(6) The mechanics of amendment, including placement and numbering (or redesignation) of provisions.

(7) The main concepts involved in codification, consolidation, law reform, and law revision.

(8) The publication and uses of compilations of laws.



(1) Identify the category of amendment needed in a particular situation.

(2) Decide the best method of amendment, in a particular situation, from the various methods available.



83

(3) Identify where and how to execute amendments accurately, including placement and numbering of new provisions, and renumbering (or redesignation) of existing provisions, as necessary.



(1) Explain the differences between amendments and repeals and when to use one or the other.

(2) Explain the differences between explicit/direct and implicit/indirect amendments and repeals.

(3) Explain the effect of judicial decisions as a source of law that can change the law through interpretation.

(4) Explain the concepts of codification of laws, consolidation of laws, law reform, and law revision.



(1) Draft and prepare amendments to pending legislation (in Parliament).

(2) Draft and prepare legislation to amend the Constitution.

(3) Draft and prepare legislation to amend organic laws and ordinary laws.

(4) Draft and prepare legislation to amend regulations and other documents.

(5) Draft and prepare an amendment by restating the provision being amended.

(6) Draft and prepare an amendment by striking and inserting specific text.

(7) Draft and prepare an amendment by showing the changes to existing law.

(8) Compile into a single text all the subsequent amendments made to a law since its original enactment.



(1) Terminology.

(a) Amendment. (1) Changing or replacing text of particular provisions or of the entire law. (2) Adding or inserting new text anywhere within the law. (3) “Striking” text within a provision. (4) Repeal of one or more entire provisions (but not all provisions) within a law.

(b) Repeal. (1) “Striking” (or removing) specific text within a provision. (2) Removal of one or more entire provisions within a law (also called “partial repeal”). (3) Ceasing the effectiveness of the entire law (also called “complete repeal”).

(c) Explicit (or direct) vs. implicit (or indirect) amendment and repeal.

(2) Different types or categories of amendments.

(a) Amending pending legislation (in Parliament).

(b) Amending the Constitution.



84

(c) Amending laws.

(d) Amending regulations and other documents.

(3) What to do when the draft legislation conflicts with existing law.

(a) Amendment of existing law to achieve purposes of the legislation.

(b) Amendment compared to repeal of existing law.

(c) When to use amendments to rewrite provisions, rather than repeal them.

(4) Methods of amendment. Drafting amendatory (amending) or repealing language.

(a) Amendment by restating the provision.

(b) Amendment by striking and inserting specific text.

(c) Amendment by showing the changes to existing law.

(5) The mechanics of amendment.

(a) Where to place a new provision. How to number a new provision.

(b) Redesignation (renumbering) of provisions — when to do it and when not to.

(6) Judicial decisions as a source of law (and changes to law through interpretation).

(7) Codification, consolidation, law reform, and law revision.

(8) Publishing compilations of laws.











(a) Core Texts




85















(c) Journals

[Not applicable.]












86




[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]


87


1. Module Title

“Statutory Interpretation”

2. Credits

13.0 credits.


2010


(a) Prerequisites

























MODULE 13: STATUTORY INTERPRETATION

88



Staff Hours

Lectures 80.00 160.00







TOTAL 130.00 185.00



This module provides students with an understanding of general principles, methods, and rules of statutory interpretation in civil law and common law jurisdictions and interpretation issues facing Rwanda (which has neither an Interpretation Act nor a history of formal court interpretation of laws).




(1) The relationship between legislative drafting and statutory interpretation.

(2) How legislation is interpreted in Rwanda.

(3) How the target “audience” for the legislation will interpret the legislative language.

(4) The different ‘interpreters’ of a legislative document, including drafters and policymakers, persons subject to regulation, governmental implementing agencies, and courts.

(5) The purposes and advantages of using an Interpretation Act to formalize rules for interpretation of legislation.

(6) Rules of construction and general principles (canons) of statutory interpretation, in line with international norms and consistent with relevant canons of interpretation developed judicially in common law countries. (This is important since Rwanda’s legal system has evolved into a hybrid civil law–common law system.)

(7) General principles of statutory interpretation.

(8) The “mischief” rule.

(9) Relevance of legislative intent and legislative history in interpretation.

(10) Effect of severability and savings provisions in legislation.

(11) The effect of the subsequent repeal of a legislative document that amended or repealed another legislative document.



89

(12) Effect of repeal (or abrogation) of legislative documents on existing liabilities.

(13) The rules governing the commencement (or effective date, entry into force) of legislative documents in Rwanda.

(14) Interpretation in official proceedings.

(15) Primary sources of interpretation, including advisory opinions, interpretations by the enforcing agency, and existing judicial case law interpreting a specific provision.

(16) The methods and procedures for resolution of conflicting interpretations of legislation.

(17) Rules and remedies for unconstitutional or unlawful legislation.

(18) Judicial decisions as a source of law.

(19) The purposes and advantages of Interpretation Acts.

(20) Considerations for interpretation of international instruments.



(1) Identify the general principles of statutory interpretation.

(2) Identify the “mischief” that draft legislation is intended to remedy.

(3) When drafting legislation, take into account the written and unwritten principles of statutory interpretation.

(4) Identify judicial decisions that have an effect on the interpretation of draft legislation.

(5) Anticipate any potential problems of interpretation in draft legislation, and devise ways to improve the draft to avoid those problems.



(1) Explain to clients and others how legislation is likely to be interpreted once it is in force.

(2) Explain to clients and others the general principles of statutory interpretation.

(3) Explain to (or inquire from) clients what the “mischief” is that draft legislation is intended to remedy.

(4) Advise clients, colleagues, and others about any potential problems of interpretation in draft legislation, and ways to improve the draft to avoid those problems.

(5) Identify the primary sources of interpretation, including advisory opinions, interpretations by the enforcing agency, and existing judicial case law interpreting a specific provision.

(6) Explain to clients and others the methods and procedures for resolution of conflicting interpretations of legislation.

(7) Explain to clients and others the rules and remedies for unconstitutional or unlawful legislation.

(8) Explain to clients and others the types of considerations applicable in the interpretation of international instruments.



90



(1) Anticipate how legislation is likely to be interpreted once it is in force.

(2) Draft and prepare legislation that takes into account the principles of statutory interpretation in order to anticipates and avoid potential problems of interpretation.

(3) Draft and prepare legislation that takes into account the rules and other considerations applicable to, or as a result of, international instruments to which Rwanda is a party.



(1) Relationship between legislative drafting and statutory interpretation.

(2) How is legislation (in general, not a specific draft) interpreted in Rwanda?

(3) Understanding how the target “audience” for the legislation will interpret the legislative language.

(4) Who is interpreting a legislative document? The drafters and policymakers. The persons subject to regulation under the law. The governmental agency implementing the law. The courts interpreting the law.

(5) Who does the interpretation in practice? (First, the implementer of the law. Then, if there is a challenge to a provision, the courts.)

(6) What improvements could be made to aid in statutory interpretation in Rwanda? (An Interpretation Act would be very helpful in formalizing these rules.)

(7) Rules of construction and general principles (canons) of statutory interpretation, in line with international norms and consistent with relevant canons of interpretation developed judicially in common law countries. (This is important since Rwanda’s legal system has evolved into a hybrid civil law–common law system.)

(8) General principles of statutory interpretation.

(a) When interpreting a law, always begin with its text.

(b) A legislative provision speaks as of any date on which it is read (rather than as of when drafted, enacted, or put into effect).

(c) A thing may be within the letter of the law and yet not within the law, because it is not within the spirit of the law, nor within the intention of the law’s makers.

(d) Repeals by implication are not favoured.

(e) Words and phrases that have received judicial construction before enactment are to be understood according to that construction. (This is because the lawmaker is presumed to know how those words and phrases have been interpreted in the past.)

(f) A statute should be construed so that none of its terms are redundant. Every word in a law is presumed to have a purpose and meaning.

(g) A statute should be read to avoid internal inconsistencies.

(h) Internal consistency. A law should be interpreted in a way that ensures that it is internally consistent. Thus, a particular provision may not be divorced from the rest of the law.



91

(i) Consistency with other laws. A law should not be interpreted in a way that is inconsistent with other laws. If there is an inconsistency, a court should attempt to provide a harmonious interpretation.

(j) Words are to be given their common meaning, unless they are technical terms or terms of art.

(k) Titles (and headings) do not control the meaning of a provision, but may be used as a guide when a provision is ambiguous.

(l) If one word in a group of words is ambiguous or inherently unclear, that word should be given a meaning of the “same kind” as the word of established meaning.

(m) When general words follow particular words, the general words are to be limited to the class of things indicated by the particular words.

(n) Expression of one thing means exclusion of another. (This maxim is established in international law and has been followed in the interpretation of treaties by international tribunals in a number of cases.)

(o) A specific law overrides (or supersedes) a general law on the same subject matter.

(p) The meaning of questionable or doubtful words or phrases in a statute may be ascertained by reference to the meaning of other words or phrases associated with it.

(q) Illustrative versus exhaustive lists. A list in a law may be comprehensive or merely illustrate principles.

(r) Laws that relate to the same subject matter should be construed together.

(s) Remedial laws (that provide a remedy for some wrong) should be read broadly.

(t) Rule of Lenity. Criminal laws should be narrowly construed. If there is ambiguity, the law should be read in favour of leniency. This is so that citizens will have reasonable notice of the crime and the punishment.

(u) Primary legislation (a law) supersedes delegated legislation (a regulation).

(v) A later law supersedes (overrides) an earlier law on the same subject, but only to the extent that they are inconsistent. This applies to laws of equal constitutional weight.

(w) A law should not be interpreted to violate fundamental societal values.

(x) A national law should not be construed in a way that conflicts with international law.

(9) Other specific rules of construction.

(a) The “mischief” rule.

(b) Relevance of legislative intent and legislative history in interpretation.

(c) Effect of severability and savings provisions in legislation.

(d) Subsequent repeal of a legislative document that amended or repealed another legislative document.

(e) Effect of repeal (or abrogation) of legislative documents on existing liabilities.

(f) Commencement (effective date, entry into force) of legislative documents published in Official Gazette.



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(10) Interpretation in official proceedings, including what weight should be given to previous interpretations, especially those by the enforcing agency (i.e., agency with jurisdiction and responsibility to carry out the provisions of the legislation).

(11) Primary sources of interpretation.

(a) Advisory opinions.

(i) Procedures for obtaining official advisory opinions, and from what agency, office, or official.

(ii) Weight and effect of advisory opinions in subsequent proceedings.

(b) Interpretation by enforcing agency.

(i) Primary interpretation of legislative documents by enforcing agency.

(ii) Criteria for disputing enforcing agency interpretations.

(c) Existing case law making specific interpretations of specific legislative provisions.

(12) Resolution of conflicting interpretations.

(a) Who does this in Rwanda? What is the procedure? Who may seek clarification?

(b) Administrative process for resolution of enforcing agency interpretation disputes.

(c) Judicial resolution of conflicting interpretations, in line with international norms and consistent with relevant principles of interpretation developed judicially in common law countries.

(d) Judicial process for resolution of interpretation disputes.

(e) Jurisdiction for filing claims of interpretation disputes.

(f) Future applicability of administrative and judicial rulings in interpretation disputes.

(g) Rules for constitutional interpretation disputes.

(13) Remedies (for unconstitutional or unlawful legislation, etc.).

(a) Challenges to validity of legislative documents.

(b) Ultra vires rule.

(c) Role of the courts. Procedures for remedy, challenge.

(14) Judicial decisions as a source of law.

(15) Interpretation Acts.

(a) Generally.

(b) East African Community.

(c) Commonwealth of Nations.

(16) Special considerations for interpretation of international instruments.33

33 For example, Vienna Convention on the Law of Treaties, 1969, and prior interpretation by relevant

international organizations. See Michel Attal, “The Interpretation of a Treaty by a National Jurisdiction,” Whittier Law Review vol. 28 (Spring 2007), pages 817–836.



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(a) Core Texts


(2) Bennion, Francis. Bennion on Statutory Interpretation. 5th edition. London: LexisNexis, 2008. (ISBN: 9781405718684) Hardcover: cclxvii + 1579 pages. http://www.francisbennion.com/buybooks/index.htm

(3) Bennion, Francis. Understanding Common Law Legislation: Drafting and Interpretation. Oxford University Press, USA, 2002. (ISBN: 0199247773, 9780199247776) Hardcover: 272 pages.

(4) Crabbe, Victor C. R. A. C., Legislative Drafting. London: Cavendish, 1993. (ISBN: 1874241155.) Specifically:

(a) Pages 12–13 (“Background Knowledge”).

(b) Chapter 4, pages 57–70 (“Constitutional Limitations”).

(c) Chapter 8, pages 119–152 (“The Conventions”).

(d) Chapter 9, pages 153–170 (“The Presumptions”).

(e) Chapter 16, pages 231–238 (“The Masters and the Servants”).

(f) Appendix C, pages 271–274 (“Tin Tacks for Parliamentary Counsel”).

(5) Dorsey, Tobias A., Legislative Drafter’s Deskbook: A Practical Guide. (Washington, D.C., USA: TheCapitol.Net, 2006. (ISBN: 1587330156, 9781587330155.) Specifically:

Chapter 3 (“Considering the Courts: Statutory Interpretation”), pages 59–107.

(6) Driedger, Elmer A., The Composition of Legislation; Legislative Forms and Precedents. 2d edition. Ottawa, Canada: Department of Justice, 1976. (ISBN: 0–660–00443–7.) Specifically:

http://www.francisbennion.com/buybooks/index.htm



94

(a) Book I, Chapter X (“The Draftsman and the Courts”), pages 105–108.

(b) Appendix II (“The Interpretation Act”), pages 379–396.




(1) Vienna Convention on the Law of Treaties (23 May 1969).34

(2) Attal, Michel, “The Interpretation of a Treaty by a National Jurisdiction,” Whittier Law Review vol. 28 (Spring 2007), pp. 817–836.

(3) Dickerson, Reed, Materials on Legal Drafting. St. Paul, Minnesota: West Publishing Co., 1981. (ISBN: 0314586158.) Specifically:

Chapter 6(c), pages 128–129 (“Background Knowledge: Rules of Interpretation”).

(4) Kiracofe, Adam W., “The Codified Canons of Statutory Construction: A Response and Proposal to Nicholas Rosenkranz’ Federal Rules of Statutory Interpretation,” Boston University Law Review, vol. 84, page 571 (2004).

(5) Stark, Jack, “On Language Games and Statutory Interpretation: An Inside Narrative,” Statute Law Review, vol. 20, page 144 (1999).

(c) Journals

[Not applicable.]






[Not applicable.]




(h) Other Resources

[Not applicable.]

34 See http://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties.

Text in English: http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.

Text in French: http://untreaty.un.org/ilc/texts/instruments/francais/traites/1_1_1969_francais.pdf.

http://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties

http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

http://untreaty.un.org/ilc/texts/instruments/francais/traites/1_1_1969_francais.pdf



95


[Not applicable.]

15. Teaching Team

[To be determined.]


97


1. Module Title

“International Instruments”

2. Credits

5.5 credits.


2010


(a) Prerequisites

























MODULE 14: INTERNATIONAL INSTRUMENTS

98



Staff Hours








TOTAL 55.00 65.00



This module provides students with a thorough understanding of international instruments, including the different types of instruments, terminology, and processes, as well as obligations, implications, and considerations that must be taken into account when drafting legislation in a national or international setting (including within the Commonwealth of Nations and the East African Community.




(1) The processes, obligations, and implications of international instruments.

(2) Terminology related to international instruments (ratification, accession, reservation, declaration, approval, modification, withdrawal, etc.), including the different types of instruments (bilateral, multilateral, charters, treaties, conventions, protocols, etc.).

(3) Processes and procedures for approval, modification, and withdrawal applicable to international instruments in Rwanda

(4) Sources and methods for researching international instruments.

(5) International instruments that are applicable to Rwanda.

(6) Legislative obligations under international instruments. (Harmonization, domestication.)

(7) Compliance with (non-legislative) obligations under international instruments.

(8) Interpretation of international instruments, in accordance with applicable international law, including the Vienna Convention on the Law of Treaties, 1969 (and prior interpretation by relevant international organizations).

(9) Considerations regarding East African Community treaties and obligations. (For example, regional economic integration and drafting of laws.)



99



(1) Use appropriate sources and methods for researching international instruments.

(2) Identify whether a particular international instrument is, or is not, applicable to Rwanda.

(3) Identify any legislative obligations imposed under a particular international instrument, and any changes needed for harmonization (or domestication) of national law with the treaty obligations.

(4) Interpret the meaning of international instruments, in accordance with applicable international law (such as the Vienna Convention on the Law of Treaties, 1969).

(5) Take into account East African Community treaties and obligations (for example, regional economic integration and drafting of laws) when preparing or advising on draft legislation.



(1) Explain to clients, governmental agencies, and others the processes, obligations, and implications of international instruments, and advise them appropriately.

(2) Advise clients, governmental agencies, and others whether a particular international instrument is, or is not, applicable to Rwanda.

(3) Explain to clients, governmental agencies, and others the meaning of international instruments and the reasons behind the interpretation.

(4) Explain to clients, governmental agencies, and others any legislative obligations imposed under a particular international instrument, and any changes needed for harmonization (or domestication) of national law with the treaty obligations.

(5) Advise clients, governmental agencies, and others regarding compliance with various types of obligations under international instruments.

(6) Advise clients, governmental agencies, and others about East African Community treaties and obligations (for example, regional economic integration and drafting of laws) when preparing or advising on draft legislation.



(1) Research international instruments using appropriate sources and methods.

(2) Take into consideration the applicable processes, obligations, and implications of existing or anticipated international treaty obligations when drafting, preparing, or advising on legislation.



(1) Types of international instruments.

(2) Terminology of international instruments.



100

(3) Role of international organizations.

(4) Processes and procedures applicable to international instruments in Rwanda.

(a) Approval.

(b) Modification.

(c) Withdrawal.

(5) International instruments applicable to Rwanda.

(6) Sources and methods for researching international instruments.

(7) Legislative obligations under international instruments. (Harmonization, domestication.)

(8) Compliance with (nonlegislative) obligations under international instruments.

(9) Interpretation of international instruments, in accordance with applicable international law, such as the Vienna Convention on the Law of Treaties, 1969 and other interpretation by relevant international organizations.

(10) Considerations regarding East African Community treaties and obligations (for example, regional economic integration and drafting of laws).











(a) Core Texts

(1) Vienna Convention on the Law of Treaties (23 May 1969).35

35 See http://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties.

Text in English: http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.

Text in French: http://untreaty.un.org/ilc/texts/instruments/francais/traites/1_1_1969_francais.pdf.

http://en.wikipedia.org/wiki/Vienna_Convention_on_the_Law_of_Treaties

http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

http://untreaty.un.org/ilc/texts/instruments/francais/traites/1_1_1969_francais.pdf



101

(2) United Nations, International Law Commission, Office of Legal Affairs, “Law of Treaties.” http://untreaty.un.org/ilc/summaries/1_1.htm

(3) United Nations, Treaty Section, “Treaty Reference Guide.” http://treaties.un.org//Overview.aspx?path=overview/treatyRef/page1_en.xml

(4) United Nations, Treaty Section, “Definition of key terms used in the UN Treaty Collection.” http://treaties.un.org/Pages/Overview.aspx?path=overview/definition/page1_en.xml

(5) United Nations, Treaty Section, “Glossary of Terms Relating to Treaty Actions.” http://treaties.un.org/Pages/Overview.aspx?path=overview/glossary/page1_en.xml

(6) “International Law of Treaties” (‘Le Droit International des Traités’). English: http://www.public-international-law.net/; French: http://www.droit-international-public.net/. (Provides an introduction to international treaty law, from principles embodied in the Vienna Convention on the Law of Treaties of 1969. Includes links to major collections of treaties and UN bodies (in English, French, and German).)

(7) American Society of International Law, ASIL Guide to Electronic Resources for International Law (online resource), http://www.asil.org/treaty1.cfm

(8) Attal, Michel, “The Interpretation of a Treaty by a National Jurisdiction,” Whittier Law Review, vol. 28 (Spring 2007) pp. 817–836.

(9) Van Alstine, Michael P., “Dynamic Treaty Interpretation,” University of Pennsylvania Law Review, vol. 146 (1998) pp. 687–793. http://www.cisg.law.pace.edu/cisg//alstine2.html

(10) Louis-Jacques, Lyonette, “Fundamentals of Treaty Research: U.S. and Non-U.S. (Electronic Resources),” Special Libraries Association, Annual Conference, Indianapolis, Indiana, “Fundamentals of Treaty Research”, June 8, 1998 (Panel sponsored by Oceana Publications, Inc.) (updated 2001): http://www2.lib.uchicago.edu/~llou/treaties.html

(11) Weigman, Stephanie, “Researching Non-U.S. Treaties and Agreements,” (Law Library Resource Xchange – LLRX), http://www.llrx.com/features/non_ustreaty.htm


(1) List of treaties (Wikipedia.org): http://en.wikipedia.org/wiki/List_of_treaties

(2) List of intergovernmental organizations established by treaty (Wikipedia.org): http://en.wikipedia.org/wiki/List_of_intergovernmental_organizations

(c) Journals

[Not applicable.]


(1) United Nations Treaty Collection: http://treaties.un.org/

(2) United Nations, Office of the High Commissioner for Refugees (UNHCR), Resources: http://www.ohchr.org/EN/PublicationsResources/Pages/ReferenceMaterial.aspx

(3) United Nations Core Treaties (from U.N. CyberSchoolbus): http://www.un.org//treaties/index.asp

(4) Treaties and International Agreements database (World Legal Information Institute – WorldLII.org): http://www.worldlii.org/catalog/2266.html

(5) American Society of International Law: http://www.asil.org/

http://untreaty.un.org/ilc/summaries/1_1.htm

http://treaties.un.org/Overview.aspx?path=overview/treatyRef/page1_en.xml

http://treaties.un.org/Pages/Overview.aspx?path=overview/definition/page1_en.xml

http://treaties.un.org/Pages/Overview.aspx?path=overview/glossary/page1_en.xml

http://www.public-international-law.net/

http://www.droit-international-public.net/

http://www.droit-international-public.net/

http://www.asil.org/treaty1.cfm

http://www.cisg.law.pace.edu/cisg/iblio/alstine2.html

http://www2.lib.uchicago.edu/~llou/treaties.html

http://www.llrx.com/features/non_ustreaty.htm

http://en.wikipedia.org/wiki/List_of_treaties

http://en.wikipedia.org/wiki/List_of_intergovernmental_organizations

http://treaties.un.org/

http://www.ohchr.org/EN/PublicationsResources/Pages/ReferenceMaterial.aspx

http://www.un.org/treaties/index.asp


http://www.asil.org/



102

(6) University of Colorado at Boulder (US), Library, Treaties (research guide): http://ucblibraries.colorado.edu/govpubs/us/treaties.htm




[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]

http://ucblibraries.colorado.edu/govpubs/us/treaties.htm


103


1. Module Title

“Principles of Good Governance”

2. Credits

6.0 credits.


2010


(a) Prerequisites

























MODULE 15: PRINCIPLES OF GOOD GOVERNANCE

104



Staff Hours








TOTAL 60.00 75.00



This module provides students with an understanding of principles of good governance, including the value of public participation in the legislative and policymaking processes, as well as the practical skills needed to implement those principles.




(1) Significance and application of the separation of legislative, executive, and judicial powers.

(2) Authority, methods, processes, and procedures for oversight of the Government by the Parliament (and the courts) in Rwanda and elsewhere.

(3) The value of public participation in the legislative and policymaking processes.

(4) Methods, processes, and opportunities for public participation in the law-making process in Rwanda and elsewhere.

(5) The need to establish a legislative history and to keep proper records.

(6) The importance of a “paper trail” for the sake of openness, and for better interpretation of legislation.

(7) Methods and processes for achieving openness through reporting.

(8) The drafter’s accountability within the law-making process.



(1) Utilize and apply the authority, methods, processes, and procedures for oversight of the Government by the Parliament (and the courts).

(2) Identify and involve stakeholders in the law-making process.



105

(3) Identify experts in the subject matter of the legislation, to enhance public participation in the law-making process.



(1) Advise clients, governmental agencies, and others on the authority, methods, processes, and procedures for oversight of the Government by the Parliament (and the courts).

(2) Plan and conduct a public hearing on legislation under consideration (in the Parliament).

(3) Consider and respond to public comments on draft legislation.

(4) Prepare reports, explanations, and justifications for pending legislation.



(1) Meet basic requirements of good governance through public participation in the law-making process.

(2) Provide openness in the legislative process through preparation of reports, explanations, and justifications of pending legislation.

(3) Maintain and contribute to a “paper trail” when working on pending legislation.

(4) Use computer technology to achieve more consistent and professional results.

(5) Take into account the drafter’s responsibility when carrying out public duties with respect to draft legislation.



(1) Principle of the separation of powers (legislative, executive, and judicial authorities). What is the significance of separation of powers? How is this applicable in Rwanda? Are there areas of power overlaps in Rwanda?

(2) Oversight of the Government by the Parliament (and the courts).

(a) Authority, methods, process, and procedures in Rwanda. Interaction between different branches of the State.36

(b) What oversight is there over regulations, ministerial orders, or other subsidiary, secondary, or delegated legislation?

(c) Best practices elsewhere (particularly among East African Community member states). (For example, parliamentary committee on statutes and regulations, court supervision, etc.)

(3) Public participation in the law-making process.

(a) Identifying and involving stakeholders.

(b) Identifying experts in the subject matter of the legislation.

36 See Constitution of Rwanda (2003), articles 117, 128, 129.



106

(c) Conducting a public hearing.

(d) Considering public comments on draft legislation.

(4) The importance of a “paper trail” for the sake of openness, and for better interpretation of legislation.

(5) Openness through reporting.

(a) Preparing reports, explanations, and justifications.

(b) Different types of reports for different situations.

(c) Use of computer technology, such as templates, to achieve more consistent and professional results.

(6) Drafter’s accountability.











(a) Core Texts

(1) Seidman, Ann, Robert B. Seidman, and Nalin Abeysekere, Legislative Drafting for Democratic Social Change: A Manual for Drafters. English edition. Kluwer Law International, Boston, Massachusetts, 2001. (ISBN: 9041197931) [In English, translated into Russian, Chinese, Bahassa Indonesian, Sinhalese, Vietnamese, Arabic, Farsi and Macedonian.]

(2) Seidman, Ann, Robert B. Seidman, and Nalin Abeysekere, Assessing Legislation: A Manual for Legislators. Boston University School of Law, 2003. [In English, translated into Arabic, Indonesian, and Pashtun.]

(3) Seidman, Robert B. “Justifying Legislation: A Pragmatic Institutionalist Approach to the Memorandum of Law, Legislative Theory and Practical Reason,” Harvard Journal on Legislation, vol. 29 at page 1 (1991). Link to HeinOnline

http://www.heinonline.org.ezproxy.bu.edu/HOL/Page?collection=journals&handle=hein.journals/hjl29&id=7



107

(4) Seidman, Robert B. “The Memorandum of Law,” Seton Hall Legislative Journal, vol. 15 at page 319 (1990). Link to HeinOnline

(5) Seidman, Robert B., A. W. Seidman, and T. W. Waelde. Making Development Work: Legislative Reform for Institutional Transformation and Good Governance. Kluwer Law International, 1999.

(6) Seidman, Robert B., and Ann Seidman. State and Law in the Development Process: Problem Solving, Law and Institutional Change in the Third World. Macmillan, 1994.

(7) Seidman, Robert B. “Drafting for the Rule of Law: Maintaining Legality in Developing Countries,” Yale Journal of International Law, vol. 12 at page 84 (1987). Link to HeinOnline

(8) Problem-Solving and Guidelines for Legislative Solutions to Social Problems (Penyelesiaian Masalah dan Pedoman-Pedoman Praktis Untuk Solusi-Solusi Legislatif bagi Masalah-Masalah Sosial) (publ. in Indonesian). Denpasar, Indonesia (May 2003), and Dili, Timor-Leste (June 2005): Univ. of San Francisco School of Law. [See DRAFT English version.]

(9) Dorsey, Tobias A., Legislative Drafter’s Deskbook: A Practical Guide. (Washington, D.C., USA: TheCapitol.Net, 2006. (ISBN: 1587330156; 9781587330155.)





(1) Seidman, Robert B., A. W. Seidman, and T. Uate. “Assessing Legislation to Serve the Public Interest: Experiences from Mozambique,” Statute Law Review, vol. 20 at page 1 (1999).

(2) Seidman, Robert B. “The Fatal Race: Law-Making and the Implementation of Development Goals,” 1992 Third World Legal Studies 79 (1992). Link to HeinOnline

(3) Seidman, Robert B., “ILTAM: Drafting Evidence-Based Legislation for Democratic Social Change,” in Symposium The Most Disparaged Branch: The Role of Congress in the Twenty-First Century, Boston University Law Review vol. 89 at page 435 (2009). Link to HeinOnline

(4) Seidman, Robert B., “Assessing a Bill in Terms of the Public Interest: The Legislator’s Role in the Law-making Process,” 1 World Bank Legal Review: Law and Justice for Development 207 (2002).

(5) Seidman, Robert B., and Ann Seidman. “Law and the African Crisis,” in The Crisis in Africa (Ben Wisner, ed.). (Forthcoming.)




http://www.heinonline.org.ezproxy.bu.edu/HOL/Page?collection=journals&handle=hein.journals/sethlegj15&id=329











108







(c) Journals

[Not applicable.]






[Not applicable.]




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]


109


1. Module Title

“Matters of Translation”

2. Credits

5.0 credits.


2010


(a) Prerequisites

























MODULE 16: MATTERS OF TRANSLATION

110



Staff Hours








TOTAL 50.00 55.00



This module will introduce students to the many challenges they will face and issues that will arise while working in a multilingual legal environment.




(1) The challenges and issues of working in a multilingual legal environment.

(2) The current legal and practical framework for drafting, considering, and publishing legislation in multiple official languages.



(1) Recognize when issues of translation or language are likely to interfere or hinder the legislative process or the legislative drafting process and take appropriate steps to alleviate the issues.

(2) Assist translators proactively in order to ensure an accurate and high-quality translation that is consistent with the original intent and meaning of the text as it appeared in the primary drafting language.


Having successfully completed the module, students should be able to anticipate and avoid situations that might lead to conflicting or unclear translations (such as when using overly technical terms, jargon, or foreign terminology).


Having successfully completed the module, students should be able to read and prepare legislative documents in multiple official languages.



111



(1) Rules regarding inconsistencies among the different language versions.

(a) What is the general rule? (See Art. 93 of the Constitution.) What are the ambiguities inherent in the rule?

(b) Methods to clarify the rule. (For example, including a specific article in a law that states which language was the primary language used in drafting the legislation, etc.)

(2) Rules regarding drafting, consideration, approval, and publication in multiple official languages.

(a) Issues related to drafting in more than one language concurrently.

(b) Issues related to drafting in a single language then translating into other languages.

(c) Issues related to a mixture of the previous two processes.

(3) Understanding the meaning in the principle drafting language.

(4) Consultation with drafter(s). The drafter’s responsibility to assist translator(s).

(5) Translation standards and consistency.

(a) Legal language and vocabulary in a multilingual environment. Developing, using, and collaborating on multilingual legal and legislative dictionaries and glossaries.

(b) Achieving greater consistency and understandability through use of an official legislative and legal glossary.

(c) Consistency in terminology and usage. Maintaining consistency with the principle language version. Avoiding overly technical terms, jargon, or foreign terminology that may be difficult to translate adequately.

(d) Harmonization of translations.

(6) Matters of layout and style when dealing with multiple languages.

(a) Comparison of methods used in other bilingual or multilingual countries.

(b) Consistency of style and organization.

(c) Consistency in punctuation and the importance of punctuation in legislation (including differences that may arise in different language versions of the same text).

(7) Official (and unofficial) translations of international instruments. Who does the official translation? What to do when there is not a version in one or more official language.

(8) Translation issues in the laws of other East African countries.






112








(a) Core Texts

(1) Bowers, Frederick, Linguistic Aspects of Legislative Expression. University of British Columbia Press, 1989. (ISBN: 0774803223, 978–0774803229.) 378 pages.

(2) Cao, Deborah. Translating Law (Volume 33 of Topics in Translation). Multilingual Matters, 2007. (ISBN: 1853599549, 978–1853599545.) 189 pages, illustrated.

(3) Morris, Marshall; Chakrabati, Nirmal. Translation and the Law (Volume 8 of American Translators Association scholarly monograph series). John Benjamins Publishing Co., 1995. (ISBN: 9027231834, 978–9027231833)

(4) Olsen, Frances; Lorz, Alexander; Stein, Dieter (editors). Translation Issues in Language and Law. Palgrave Macmillan, 2009. (ISBN: 0230203507, 978–0230203501.) 256 pages, illustrated.

(5) Šarčević, Susan. New Approach to Legal Translation. Kluwer Law International, 1997. (ISBN: 9041104011, 978–9041104014.) 308 pages, illustrated.

(6) Zaccaria, Giuseppe, Translation in Law (Volume 5 of Ars Interpretandi.Jahrbuch für juristische Hermeneutik; Yearbook of Legal Hermeneutics 5; Volume 5 of Ars interpretandi). LIT Verlag Münster, 2000. (ISBN:3825848620, 978–3825848620.) 239 pages.

(7) République Rwandaise, Ministere de la Justice. Lexique Juridique Français-Kinyarwanda | Urutonde Rw’Amuga Yamategeko Igifaransa-Ikinyarwanda. 2ème edition.

(8) République Rwandaise, Ministère de l’Enseignement Primaire et Secondaire; Québec (Province), Conseil de la Langue Française, Service des Communications. Actes du Colloque L’Aménagement linguistique et terminologique au Rwanda, bilan et perspectives: Kigali, 13 au 27 février 1984. Publications CIRELFA. République Rwandaise, Ministère de l’Enseignement Primaire et Secondaire, 1986. (ISBN: 2550161149, 9782550161141.)

(9) Houbert, Frédéric. Guide Pratique de la Traduction Juridique: Anglais–Français. La Maison du Dictionnaire, 2005. (ISBN: 285608186X, 9782856081860.) 283 pages. [In ILPD Library, Acquisition No. 5334.]

(10) Derlén, Mattias. Multilingual Interpretation of European Union Law (Volume 67 of European monographs). Kluwer Law International, 2009. (ISBN: 9041128530, 978–9041128539.) 418 pages.



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(11) Mattila, Heikki E. S., Comparative Legal Linguistics. Ashgate Publishing, Ltd., 2006. (ISBN: 0754648745, 978–0754648741.) 347 pages.

(12) Bermann, Sandra; Wood, Michael (editors). Nation, Language, and the Ethics of Translation. Princeton University Press, 2005. (ISBN: 0691116091, 978–0691116099.) 413 pages, illustrated.


(1) Hong Kong Department of Justice, Law Drafting Division, “A paper Discussing Cases Where the Two Language Texts of an Enactment are Alleged to Be Different,” (Bilingual Laws Information System). http://www.justice.gov.hk/inpr.htm

(2) Berry, Duncan. “The effect of poorly written legislation in a bilingual legal system,” The Loophole (March 2007). http://www.opc.gov.au/calc/docs/Article_Berry_poorlywrittenbilingual_2007.pdf http://www.opc.gov.au/calc/docs/Article_Berry_poorlywrittenbilingual_2007.rtf

(3) Levert, Lionel A. “Bilingual Drafting in Canada” (1995). http://www.opc.gov.au/calc/docs/Article_Levert_BilingualDrafting_1995.rtf http://www.opc.gov.au/calc/docs/Article_Levert_BilingualDrafting_1995.doc

(4) Revell, Donald L. “Multilingualism and the authoring of laws,” The Loophole (2004). http://www.opc.gov.au/calc/docs/Article_Revell_Multilingualism_2004.pdf http://www.opc.gov.au/calc/docs/Article_Revell_Multilingualism_2004.rtf

(5) Stone, Arthur, “Bilingual Drafting in a Common Law Jurisdiction in Canada,” Canadian Parliamentarian Review, vol. 9 No. 2 (1986).

(6) Wai-chung, Suen. “Bilingual Legislative Texts and the Problem of Textual Ambiguities,” The Loophole (December 1997). http://www.opc.gov.au/calc/docs/Article_Suen_BilingualLegislativeTexts_1997.pdf

(7) Uniform Drafting Conventions, Uniform Law Conference of Canada, Report of the Committee appointed to prepare bilingual legislative drafting conventions for the uniform law conference of Canada (Majority Report). http://www.ulcc.ca/en/us/index.cfm?sec=6

(8) Cao, Deborah. “Inter-lingual uncertainty in bilingual and multilingual law,” Journal of Pragmatics. Digital copy available at: http://www.amazon.com/Inter-lingual-uncertainty-bilingual-multilingual-law/dp/B000PC02PG/=sr_1_115?ie=UTF8&s=books&qid=1269846723&sr=1-115

(c) Journals

[Not applicable.]






[Not applicable.]

http://www.justice.gov.hk/inpr.htm

http://www.opc.gov.au/calc/docs/Article_Berry_poorlywrittenbilingual_2007.pdf

http://www.opc.gov.au/calc/docs/Article_Berry_poorlywrittenbilingual_2007.rtf

http://www.opc.gov.au/calc/docs/Article_Levert_BilingualDrafting_1995.rtf

http://www.opc.gov.au/calc/docs/Article_Levert_BilingualDrafting_1995.doc

http://www.opc.gov.au/calc/docs/Article_Revell_Multilingualism_2004.pdf

http://www.opc.gov.au/calc/docs/Article_Revell_Multilingualism_2004.rtf

http://www.opc.gov.au/calc/docs/Article_Suen_BilingualLegislativeTexts_1997.pdf

http://www.ulcc.ca/en/us/index.cfm?sec=6

http://www.amazon.com/Inter-lingual-uncertainty-bilingual-multilingual-law/dp/B000PC02PG/=sr_1_115?ie=UTF8&s=books&qid=1269846723&sr=1-115

http://www.amazon.com/Inter-lingual-uncertainty-bilingual-multilingual-law/dp/B000PC02PG/=sr_1_115?ie=UTF8&s=books&qid=1269846723&sr=1-115



114




(h) Other Resources

[Not applicable.]


[Not applicable.]

15. Teaching Team

[To be determined.]

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1. Module Title

“Training in Substantive Law Subject Areas”

2. Credits

5.0 credits.


2010


(a) Prerequisites














None.











MODULE 17: TRAINING IN SUBSTANTIVE LAW SUBJECT AREAS

116



Staff Hours








TOTAL 50.00 60.00



This module (or modules, if appropriate) will provide students with more specialized and in-depth training in specific legal topics, which have been identified by the relevant governmental institutions (e.g., Parliament, Ministry of Justice, etc.) as areas of need.




Demonstrate knowledge and understanding of the principles and concepts of each topics covered in the module (which may vary depending on institutional needs and other considerations).



Recognize and apply the principles and concepts learned in the module to real-life practical situations.



(1) Ask clients appropriate questions in order to obtain the factual information needed to make legal determinations relative to each topic covered in the module.

(2) Provide legal advice (independently or in consultation or collaboration with others) to governmental and other clients relative to each topic covered in the module.



Consult with colleagues, supervisors, clients, and legal research materials, as appropriate, to obtain factual and legal information necessary to provide substantial legal analysis and advice relative to each topic covered in the module.



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Any of the following topics may be addressed in this module:

(1) Contract law and the drafting of contracts (including bilateral and multilateral contracts and agreements). Similarities in drafting contracts and drafting legislation.

(2) Principles of Rwandan constitutional law.

(3) International law.

(4) Administrative law and procedures.

(5) Civil law and procedures.

(6) Commercial law and procedures.

(7) Criminal law and procedures.

(8) Others as approved by the Institute.










(a) Core Texts

[To be determined by the instructor.]



c) Journals

[Not applicable.]





118




[Not applicable.]




(h) Other Resources



These could be individual courses or electives and may be tailored specifically to the needs of a specific governmental institution or drafting office.

15. Teaching Team

[To be determined.]

THE INSTITUTE OF LEGAL PRACTICE AND...

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