From Policy to Bill: Drafting Instructions and the Memorandum of Objects and Reasons

Policy becomes a workable Bill when the instructing body gives the drafter a complete account of the problem, intended legal change, affected law, implementation and transition. The memorandum of objects and reasons should then explain the Bill’s purpose and principal effect without substituting for its operative clauses. In Kenya, the constitutional route and public-participation obligations must be considered alongside the policy design. This is practical drafting guidance, not a substitute for advice on a particular legislative proposal.

Begin with a legislative problem, not a preferred clause

Legislative drafting instructions should first state the problem the proposed law is meant to address. A request to “create an Authority” or “amend licensing” is incomplete unless it identifies the present legal position, the failure in it, the public objective and the practical result sought. The policy team, instructing body and drafter should agree what must change before discussing the wording.

Separate facts that have been verified from policy choices and working assumptions. For example, a team may know that an existing regulator lacks a power; it must still decide whether the new power is discretionary or mandatory, which safeguards apply and who will fund its exercise. That distinction prevents an instruction from presenting a contested choice as though it were an established legal fact.

Give the drafter a complete map of the scheme

Good instructions identify the affected persons and institutions, the existing Acts, regulations, decisions and administrative processes that intersect with the proposal. They should describe the intended legal mechanism: a new institution, a duty, a permission, a prohibition, a benefit, a procedure, an offence, a levy or an amendment to an existing framework.

The map should include operational detail. Who initiates an application? What information is required? Who decides, on what criteria, within what time, and with what notice or review? It is easier to resolve those questions before drafting than to patch them after a Bill has acquired internal approval.

Implementation and transition belong in the first instructions. Identify appointments, staff, property, records, licences, pending applications, contracts, regulations and ongoing proceedings that may be affected. A policy that only describes the future state can leave an avoidable gap on commencement day.

Test authority, rights and constitutional process

The Constitution vests legislative authority in Parliament and establishes distinct county legislative authority. A proposed Bill must therefore be placed in its proper constitutional and institutional setting. The sponsoring team should identify the body entitled to promote the measure, the subject-matter allocation, and any required consultation or public-participation process.

Constitutional rights and public-law controls are not an afterthought. A new power to inspect, collect information, restrict activity or impose a consequence may engage privacy, fair administrative action, property, equality or access-to-justice considerations. The instruction should flag the intended justification, safeguards and review route for specialist analysis.

This is not a claim that every policy proposal is unconstitutional. It is a drafting discipline: identify the legal limits early enough to make a proportionate and administrable design choice.

Write instructions that answer practical questions

An effective instruction pack commonly includes a short policy statement, background, a list of existing law, proposed clauses or outcomes, affected stakeholders, financial and institutional implications, commencement preference and instructions for consultation. Attach current official texts and relevant policy approvals rather than relying on an informal summary.

Use examples sparingly and label them as illustrations. A drafter needs the desired result, not a polished but untested clause that hides unresolved choices. If alternatives remain open, set them out with the decision-maker and consequence of each option.

Before sending the pack, run a scenario: a regulated person, an administrator and a reviewer each try to use the proposal. If their steps, documents, deadlines and remedies cannot be identified, the instructions need more work.

Explain the memorandum of objects and reasons

A memorandum of objects and reasons explains the Bill’s purpose and principal effects. It is an explanatory aid, not the operative law. Its account should be accurate, intelligible and consistent with the clauses; it should not claim that a Bill does more than its text delivers.

A useful memorandum identifies the policy objective, the Bill’s main provisions, the public bodies affected, financial implications where applicable, any delegated-legislation element and the intended relationship with existing law. The level of detail should help legislators and the public understand the proposal without reproducing each clause.

Treat the memorandum as a final consistency check. If it is difficult to describe the Bill’s effect in a coherent short account, that may reveal a structure problem, an unresolved policy choice or an overbroad power in the draft.

A disciplined handover to drafting

The final instructions should identify an authorised contact who can resolve policy questions promptly and maintain a decisions log. Changes during drafting should be recorded with their reason, especially where they affect rights, institutional responsibility, costs or commencement.

Legislative text cannot cure missing policy decisions. Conversely, a careful instruction process gives the drafter the materials needed to create a coherent Bill and gives the sponsoring body a record of why particular legal choices were made.

A cost and capacity note is often indispensable. New functions may require personnel, technology, training, registers, inspections, appeals or public communication. The instruction should identify known costs, matters needing estimation and the authority and resources expected to support implementation. A scheme that assumes administration without institutional capacity is unlikely to deliver its objective.

Consultation should be planned as an evidential exercise, not merely an announcement. Record the stakeholders identified, material provided, time allowed, responses received and the reason for accepting or declining significant proposals. The appropriate process depends on the measure and legal setting, but a clear record helps the sponsor explain how the proposal was developed and refined.

Where regulations are contemplated, separate core policy from operational detail. The enabling provision should identify the body empowered to make the instrument and the matters it may address. It should not defer every difficult choice to a later instrument, particularly where the Bill is expected to establish basic rights, limits and safeguards.

At each revision, compare the memorandum, instructions and Bill against one another. Terminology, institutions, dates and described effects should match. This comparison reduces the risk that a late policy change appears in one document but not another, leaving decision-makers with an inaccurate account of the intended scheme.

Use the current official text of every affected instrument and record the date it was checked. Amendment work is particularly vulnerable to stale consolidations, omitted schedules and references changed by later legislation. A reliable source set lets the drafter work from the law as it stands, rather than recollection or an outdated extract.

Official source: Constitution of Kenya, Articles 109 and 118.