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Supporting the drafting of a nation’s laws is a delicate and often intricate task. In a subject where international law and standards exist, the drafting exercise can be guided by an international instrument or even specific rules of international law. However, even in such cases, there will always be national requirements that need to be met or particularities of a country that will need to be reflected in its national legislation.

One of the best ways to ensure that the proposed draft legal provisions will be both relevant and fit-for-purpose for the country is to facilitate participatory law-making. This enhances national ownership of the proposed law and facilitates its approval and subsequent implementation. As highlighted in FAO Legislative Study 73, the Development Law Service has pursued a participatory approach to law-making and applied different participatory law-making techniques for decades. This article focuses on one specific participatory law-making technique based on the establishment of a national legal drafting working group, where the drafting process is led by the national counterparts and international and national experts can act as facilitators. The working group can be hotbeds for the review and co-creation of laws and methods for their implementation and enforcement by combining multi-stakeholder expertise with the experience of local communities and others, including those of other countries introduced by FAO for consideration of the working group in the law-making process.

Such methodology typically applies the following steps:

1. Composing a Working Group representing all key stakeholders in the country;
2. Analysing the national legal framework;
3. Dividing the draft law into specific chapters and/or topics for discussion and agreeing on a joint work plan;
4. Conducting the discussions, facilitating consensus building and participatory legal drafting;
5. Assembling a complete draft on the basis of the discussions;
6. Dedicating necessary sessions for the revision of the draft law.

Following Kenneth Rosenbaum's legislative drafting guide (Rosenbaum, 2007), this short article will explain how the Working Group methodology can be used and describes a recent example of its use in Lesotho.

• Composing a Working Group representing all key national stakeholders

Although potentially time-consuming, an effort should be made to cast a wide net to include representatives from the capital and rural areas from different interest groups and sectors. Often, the government is already well aware of the key stakeholders and can support their identification and participation in the Working Group. Care needs to be taken at this stage to ensure that the representation is not limited to those most vocal/active individuals or groups, and efforts will need to be made to ensure the participation of the more vulnerable sections of the population, who will typically have less access to information or representation.

Members of the Working Group should come from a wide range of backgrounds and expertise. Appropriate representation from different disciplines, including legal experts, as well as other ministries or entities with a role in the approval, implementation and enforcement of future legislation, can be very useful to set up the basis for effective implementation, compliance and enforcement of the law going forward. Working Group sessions are usually facilitated by a national lawyer with the support of an international lawyer (the facilitators) and, to the extent possible, done in the local language.

• Analysing the national legal framework

Prior to drafting legislation, it is important that the Working Group is aware of the existing legal framework relevant to the topic at hand. Here, the national lawyer is often tasked with preparing a national legal report, analysing applicable laws and regulations in detail. The purpose of this exercise is to increase the Working Group members’ – as well as the facilitators’ – knowledge of the national legislative framework and context and to understand the strengths and weaknesses of the current legal framework. The national legal report can then make some initial proposals for the strengthening of the legal framework, to be discussed by the Working Group. This approach helps to ensure that any new legislative drafts from the Working Group fit seamlessly (i.e. do not create legal contradictions or overlaps in mandates) into the national legal framework.

• Dividing the draft law into specific chapters and/or topics for discussion, agree on a work plan and prepare background materials

To facilitate the identification and discussion of the key different regulatory options available, it is often useful to divide the draft law into more manageable chapters and dedicate thematic sessions to review each one in detail. Sessions could focus on individual chapters of the law being developed (scope, principles, substantive matters, compliance and enforcement), or on different but relevant technical areas.

Once a number of topics for discussion are identified, the Working Group should develop an agenda for its meetings and agree on a work plan. The work plan could include extensive capacity development (training) on the topics covered by the law, as well as legal revision and drafting meetings. The Working Group may decide to meet once or twice a month, or as much as once a week. Individual sessions are usually composed of a first part focused on providing the background and explanation including objectives, followed by a guided discussion and schedule for inputs and decisions to be made on what is to be incorporated into the draft law.

The facilitators are responsible for preparing supporting materials for each session, which should provide background information and present the advantages and disadvantages of various options for drafting the law or regulation. These materials often draw from the national legal report prepared by the aforementioned national lawyer. Additionally, international reference standards, documents, examples from other countries can be included. These materials are essential to enable informed participation in the discussions. In some cases, observers with specific expertise, such as scientists, may be invited to selected sessions to address knowledge gaps or provide specialized input to the Working Group.

• Conducting the discussions, facilitating consensus building and participatory legal drafting

The discussions within the Working Group aim to facilitate consensus building and participatory legal drafting. To initiate these discussions, pre-formed questions can be posed to the group. This approach effectively assesses participants' knowledge of the issues, encourages meaningful engagement, and allows for the expression of preferences among different options. It also provides an opportunity for proposing novel alternatives that better align with the national system or address specific concerns. These questions should address key regulatory decisions, such as implementing international reference standards or good practices, defining roles and responsibilities, establishing control mechanisms, and ensuring effective implementation, compliance, and enforcement of the future legislation. It is important to consider the practicality and feasibility of new obligations, social or financial costs, monitoring mechanisms, and licensing schemes, taking into account national capacities and the local context. The legislation should not only appear favorable on paper but also be customized to what is realistically achievable and beneficial for the country. The involvement of multiple sectors in the Working Group provides the strongest assurance that these objectives will be met and that the resulting law will be approved, implemented, enforced and complied with.

The minutes of each session serve as the foundation for drafting the chapters of the law, incorporating the preferences and inputs provided by the Working Group members. These preliminary draft chapters can be compiled by a core team led by the national legal consultant and subsequently discussed in the following session. By following this approach, the different components of the complete law are gradually developed in a genuinely participatory manner.

• Preparing a complete draft on the basis of the discussions

After conducting all the substantive sessions and utilizing the minutes and draft chapters produced during each session, the international and national facilitators will consolidate a preliminary complete draft of the law. The international facilitators ensure consistency and address recommended global best practices, while the national facilitators contribute their knowledge to adapt the draft to the preferred national legal style and tradition. They also ensure there is no overlap or lack of coherence with existing national legislation.

At this stage, the Working Group may choose to conduct an internal or third-party regulatory impact assessment. This assessment aims to provide a better understanding of the potential impacts of the law, including economic, social, and environmental factors. It also considers the costs of inaction and evaluates the advantages and disadvantages of alternative regulatory options.

• Dedicating necessary sessions for the revision of the draft law

Once the first complete draft of the law is prepared, it is important to reconvene the Working Group. By examining the draft as a whole, errors and omissions that may not have been apparent during discussions on individual sections can be identified.

Following the revision process, broader consultations with all stakeholders can be conducted. These consultations involve presenting, explaining, and discussing the draft law to gather additional feedback. These discussions not only contribute additional knowledge but also help identify concerns from different sectors. They play a vital role in building consensus and paving the way for the approval and implementation of the law.

• The Lesotho experience - drafting a bill on contract farming

A successful example of following this approach can be seen in Lesotho's experience of drafting a bill to regulate contract farming. The process began with close collaboration between the Government and the Food and Agriculture Organization (FAO) to engage representatives from various stakeholders, including buyers, manufacturers, and agricultural producers. This collaboration led to the formation of the National Contract Farming Working Group. Over a period of nine months, the Working Group conducted monthly meetings that involved capacity-building sessions and dedicated discussions on different chapters of the draft bill.

During these sessions, important topics were deliberated, such as the requirements for contract farming agreements, the promotion of alternative dispute resolution mechanisms, and the government's role in promoting and developing contract farming. These discussions played a pivotal role in enabling the facilitators to prepare the initial draft of the bill. Subsequently, two follow-up sessions of the Working Group were held, allowing members ample time to comprehend the text and propose changes and clarifications.

The draft bill has now been submitted to the Government and is ready to be presented to the Parliament of Lesotho for its consideration. This process demonstrates the effectiveness of the collaborative and participatory approach in developing legislation. 

Teemu Viinikainen and Carmen Bullón (FAO)

Bibliography

FAO. 2002. Law and Sustainable Development Since Rio, Legal Trends in Agriculture and Natural Resources Management. FAO Legislative Study 73. Rome

Rosenbaum, Kenneth (2007) Legislative drafting Guide: A practitioner’s view. FAO LEGN Legal Paper online 64. Available at https://www.fao.org/3/bb097e/bb097e.pdf (accessed on 4 July 2023)