Course Title: Legal Drafting Techniques in Somaliland

Course Description:

The course is designed to provide participants with a comprehensive

understanding of legal drafting techniques specific to the Somaliland legal
system. Through practical examples, case studies, and hands-on exercises,
participants will develop essential skills to draft various legal documents in
compliance with Somaliland laws and regulations.

Course Objectives:

 Understand the Somaliland legal system and its impact on legal

drafting.
 Learn the essential elements and structure of legal documents under
Somaliland law.
 Develop skills to draft clear, concise, and legally compliant documents.
 Familiarize yourself with the drafting techniques specific to Somaliland
contracts, agreements, petitions, and legal opinions.

Model one
IMPORTANCE OF LEGAL DRAFTING IN THE JUDICIAL SYSTEM

A - Aims
The primary aim of this discussion is to examine the critical role of legal
drafting in the functioning and administration of the judicial system. It seeks
to highlight the relevance of effective legal drafting in litigation, legal
counseling, negotiation, and legislative activities. Furthermore, the objective
is to articulate the key components, techniques, and educational outcomes
expected from formal instruction in legal drafting.

D - Definition
Legal drafting refers to the art and science of preparing legal documents
that govern relationships, define rights and obligations, and influence judicial
and administrative decisions. It encompasses the creation of legal
instruments such as contracts, pleadings, affidavits, statutes, wills, leases,
and other formal documents that require legal precision, clarity, and
enforceability.

C - Context
In the contemporary legal landscape, the responsibilities of a lawyer
transcend traditional courtroom advocacy. Modern legal practice demands
proficiency in drafting, advising, planning, and negotiating. Legal documents
are essential tools across various fields—whether in civil, commercial,
criminal, or administrative law. For instance, litigators draft pleadings and
interrogatories; corporate lawyers prepare agreements and memoranda; and
criminal lawyers rely on plea bargains and appellate briefs. In all cases, the
effectiveness of legal drafting has a direct impact on the administration of
justice and legal certainty.

M - Main Body
1. Nature and Scope of Legal Drafting
Legal drafting is distinct from literary composition in that it focuses not on
artistic expression but on legal meaning and enforceability. It is primarily
concerned with the formulation of texts that declare, regulate, or transfer
legal rights and obligations. Legal drafting must be:
 Clear and unambiguous
 Concise and precise
 Logical and consistent
 Emotion-free and impartial
It avoids rhetorical devices, metaphors, or any language that may lead to
multiple interpretations. A well-drafted legal document speaks in the neutral,
authoritative tone of the law.
2. Objectives of Legal Drafting Courses
A legal drafting course aims to equip students with the skills to draft
documents that are:
 Adequate: Cover all relevant legal aspects
 Organized: Structurally sound and logically arranged
  Linguistically Appropriate: Use clear and correct legal terminology
 Understandable: Accessible to clients and laypersons
 Practical: Acceptable and executable by all parties involved
Such courses emphasize the importance of familiarity with applicable laws,
business practices, and techniques of expression tailored for legal
effectiveness.

E - Examples and Practical Tips

Key Principles for Effective Legal Drafting:
 Know your audience: Tailor the content and tone to the client’s
background and purpose.
 Identify the document’s purpose: Whether to advise, negotiate, or
instruct, the objective shapes the structure and language.
 Use short, clear sentences: Avoid verbosity and complex
constructions.
 Eliminate redundant phrases: Terms like “we advise that” often add
no value.
 Avoid unnecessary legalese or jargon: Use plain English when
appropriate.
 Be mindful of potential judicial review: Draft with the awareness
that your document may be examined in court.
 Limit citations: Excessive case law references can detract from
clarity; use them only when substantively necessary.
 Proofread thoroughly: A second careful reading is essential to
ensure clarity, accuracy, and consistency.

I - Importance
Legal drafting stands as a cornerstone of professional legal practice and an
indispensable tool for effective dispute resolution, contract formulation, and
rights enforcement. Poor drafting can lead to litigation, misinterpretation,
and even injustice. Conversely, well-crafted documents enhance legal
certainty, protect client interests, and uphold the integrity of legal
transactions. Legal drafting not only influences outcomes in individual cases
but also contributes to the development of jurisprudence and the smooth
operation of the judicial system.

1.1 Understanding Legal Drafting as Rule Creation

Definition:

Legal drafting is the professional skill of creating legal rules that regulate the
conduct of individuals, companies, government bodies, and the society at
large. Unlike other forms of legal writing (like memos or case summaries),
legal drafting creates new rules of law or rights and duties between parties

“Drafting is law-making.”
— Richard K. Neumann Jr.

Why is Drafting Different from Legal Writing?

Legal Writing Legal Drafting

Explains existing laws Creates new laws or rules

Persuasive or analytical Directive and mandatory

Examples: Legal memos, letters, Examples: Contracts, Laws, Bylaws,

briefs Rules

1.2 The Nature of a Legal Rule in Drafting

A legal rule tells people or institutions:

 What to do → Duty
 What not to do → Prohibition
 What they may do → Discretion
 What status or fact exists → Declaration

Types of Rules in Legal Drafting

Type Purpose Example in Somaliland

Every taxpayer must file tax return

Duty Imposes obligation
annually

The Minister may approve NGO

Discretion Grants power
registration

Declaration States fact Land belongs to the registered owner

1.3 Where Rules Operate in Somaliland Law

Where Do These Rules Apply in Somaliland?

 Public Rules → Affect everyone (Constitution, Laws, Government Rules)

 Private Rules → Affect limited parties (Contracts, Company Bylaws)
Legal drafting applies to:

 Public Sector → Laws, Regulations, Orders, Policies

 Private Sector → Contracts, Wills, Company Bylaws
 Court Processes → Court Orders, Rules of Procedure
 Community Practices → Customary Agreements (Xeer)
Types of Legal Rules (Explained with Examples)
Legal rules are generally categorized into three main types. Understanding
these helps you write, interpret, or apply the law correctly.

1. Duties and Rights

🔹 What are Duties?
A duty imposes a legal obligation on someone to do or not do something.
Duties are usually expressed with the word "shall" (mandatory).
🔹 What are Rights?
A right is a legal entitlement held by a person or group. Rights often arise
from duties imposed on others.
✅ Examples:
  Affirmative Duty (do something):
“The Registrar shall issue a license within 30 days of receiving a
complete application.”
→ Here, the Registrar is legally required to issue the license.
 Negative Duty (don’t do something):
“The tenant shall not sublet the premises without written consent.”
→ This prohibits the tenant from subletting unless permission is given.
 Right (arising from duty):
A student has the right to receive their exam results within 14 days, if
the university has a duty to release them in that time.

2. Discretionary Authority
🔹 What is it?
Discretionary authority gives permission or power to an official or
institution to take action, but does not require them to do it. It is usually
expressed using "may" or "is authorized to".
✅ Examples:
 “The court may reduce the sentence if the defendant shows genuine
remorse.”
→ The court is allowed to reduce the sentence, but is not required to.
 “The agency may investigate any suspected tax fraud.”
→ The agency has authority, but it's optional, not mandatory.
💡 Note: If the law used "shall investigate**," it would be a duty instead of
discretion.

3. Declarations
🔹 What are Declarations?
Declarations define legal facts, terms, or statuses. They do not require
action or give authority. They simply state something that is true under the
law.
✅ Examples:
 “A ‘motor vehicle’ means any self-propelled vehicle not operated on
rails.”
→ This defines what qualifies as a motor vehicle.
  “Unlawful assembly is a criminal offense punishable by up to 5 years
in prison.”
→ This declares a legal status or consequence.
 “The Republic of Somaliland is a sovereign and independent state.”
→ A declaration of legal status or principle.

§ 1.6 Conditions, Tests, and Exceptions (Explained with Examples)

Rules often have conditions or exceptions attached to them, and legal
professionals must understand how to apply or challenge them.

1. Conditions
🔹 What are Conditions?
A condition must be met before a legal rule can apply. It's like a
requirement that triggers the rule.
✅ Example:
 “If a business earns more than $50,000 per year, it shall register for
tax.”
→ The rule (registering) only applies when the condition (income >
$50,000) is true.
🧠 In Court: The person enforcing the rule (e.g., the government) must
prove the condition is met.
2. Exceptions
🔹 What are Exceptions?
An exception is a situation where the general rule does not apply, even
though it normally would.
✅ Example:
 “Vehicles are not allowed in the park unless they are emergency
vehicles.”
→ The general rule is no vehicles, but there's an exception for
ambulances and police cars.
🧠 In Court: The person who claims the exception (e.g., the driver) must
prove it applies.
🧩 Quick Comparison:

Keyword
Type Description Legal Example
Example

“The Minister shall report

Duty Obligation to act shall
annually.”

Entitlement from a has the right “Citizens have the right to

Right
duty to vote.”

Discretion Permission to act may “The Court may grant bail.”

Declaratio Legal truth or “Taxable income means total

is / means
n definition revenue minus expenses.”

Requirement before “If the applicant is over 18,

Condition if / when
a rule applies they may apply.”

Cancels the rule in unless / “No entry, unless authorized

Exception
certain cases except personnel.”

Differences Between Public Rules and Private Rules in Somaliland

Public Rules Private Rules

Created by
Created by Private Individuals or Companies
Government

Affect general
Affect specific parties only
public

Laws, Regulations Contracts, Agreements, Company Constitutions

1.4 Sources of Legal Rules in Somaliland

Sources of Public Rules:

Source Who Creates it? Legal Effect

The Constitution of People of Somaliland through Supreme Law binding all

Somaliland Referendum persons and authorities

House of Representatives and Statutory Law binding all

Acts of Parliament
House of Elders persons in Somaliland
Source Who Creates it? Legal Effect

Ministerial Ministries and Government Rules for specific sectors

Regulations Agencies and issues

Interpretation and
Case Law (Judicial Courts, especially Supreme
clarification of existing
Decisions) Court
laws

Applicable if
International Government (if ratified and
domesticated by local
Treaties consistent with Constitution)
law

2 Private Rules and Their Sources in Somaliland Legal Drafting

Definition:

Private Rules are rules created by individuals, companies, NGOs, clans, or

groups to govern their internal relationships.

Sources of Private Rules:

Source Examples Legal Effect

Contracts and Employment Contracts, Lease Binding between parties

Agreements Agreements, Sales Contracts only

Customary Clan compensation Binding within the

Agreements agreements, land use, peace community or between
(Xeer) settlements parties

Governs internal
NGO constitutions, Articles of
Company Bylaws operations of
Association
organizations

Family Islamic marriage contracts, Binding within family and

Agreements inheritance arrangements consistent with Sharia

2.3 Public vs Private Rules: Key Differences in Somaliland

Public Rules Private Rules

Created by Government Created by Private Persons or Groups

Apply to Everyone Apply only to Parties involved

Enforced by contract law, clan elders, or

Enforced by State
courts

Sources: Constitution, Laws, Sources: Contracts, Xeer, Custom,

Regulations Agreements

2.4 Why Must a Drafter Know the Source of Rules?

Because:

 A rule without legal authority is invalid.

 A rule that contradicts higher law is illegal.
 A rule that ignores Sharia or Xeer may be rejected socially.
 A rule that violates the Constitution will be nullified by Courts.

2.5 Example of Rule Origination in Somaliland Drafting Practice

Situation Source of Rule Drafting Authority

Constitution gives
Drafting a Tax Law Parliament passes law
Parliament power

Drafting a Labour Labour Law + Private Employer & Employee draft

Contract Agreement contract

Drafting a Clan
Customary Xeer Practices Clan elders + Written record
Agreement

Drafting NGO Companies & Founders + Ministry of

Constitution Associations Law Planning registration

2.6 Drafting under Mixed Legal Systems: Somaliland's Challenge

In many legal issues, the drafter must balance:

  Statutory Law
 Sharia Law
 Customary Law
Example: Marriage Contract

 Must comply with Islamic Sharia.

 Must comply with Somaliland Family Law.
 May respect clan or family customs.

Errors to Avoid in Legal Drafting

 Mixing duty with discretion.

 Using outdated colonial terms.
 Copy-pasting foreign clauses without localization.
 Ignoring the Xeer in community agreements.
 Drafting contrary to Islamic law in sensitive contracts.

Drafting must follow the hierarchy and source of law to avoid conflict and
illegality.

Hierarchy of Laws in Somaliland:

1. Somaliland Constitution — Supreme Law

2. Acts of Parliament (Statutory Laws)
3. Regulations & Ministerial Rules
4. Islamic (Sharia) Principles
5. Customary Law (Xeer)
6. Judicial Decisions (Precedents)
7. International Treaties (if domesticated)
1.5 Public Rules vs Private Rules in Drafting
Type of
Drafted by Applies to
Rule

Parliament /
Public Rule Society / General Public
Government

Private Contracting Parties

Private parties
Rule only

1.6 Role of Government Organs in Legal Drafting in Somaliland

Organ Drafting Function Example

Legislatur
Makes Laws Tax Law, Investment Law
e

Executive Makes Regulations Ministry Rules, Public Orders

Applies Rules & Court decisions shaping

Judiciary
Precedents interpretation

The Basic Structure of a Drafted Rule (Universal Model)

Every drafted rule (whether a contract clause, a statutory provision, or a

court order) must answer:

Question
Element Example
Answered

Actor Who must act? Tenant

Action What must be done? Must pay rent

Under what On or before 5th of every

Condition
situation? month

Consequenc
What if not done? Eviction or penalty
e

1.7 Importance of Legal Drafting in Somaliland Context

 Guarantees clarity and certainty in law.

  Prevents disputes and confusion.
 Promotes economic growth (via clear contracts).
 Enhances justice administration.
 Protects rights and enforces duties.
 Ensures compliance with Somaliland Constitution.

1.8 Characteristics of a Well-Drafted Rule

1. Clarity → Easily understood by all.

2. Precision → No multiple interpretations.
3. Completeness → Covers all possible situations.
4. Consistency → Matches other parts of law.
5. Fairness → Reasonable and just.
6. Simplicity → No unnecessary complexity

Errors to Avoid in Legal Drafting

 Mixing duty with discretion.

 Using outdated colonial terms.
 Copy-pasting foreign clauses without localization.
 Ignoring the Xeer in community agreements.
 Drafting contrary to Islamic law in sensitive contracts.

1.9 Duties vs Conditions in Drafting

Duty Condition

Must be done always Must be done only if certain event happens

Example: Pay tax Example: Pay tax if income exceeds 5 million

annually SLSH

1.10 The Structure of Legal Rules (Standard Model)

→ Every drafted rule should answer these:

Rule
Meaning Example
Element

Actor Who must act? The Taxpayer

Action What must they do? Shall pay tax

When? Under what If income exceeds 5

Condition
circumstance? million

Consequence What happens if ignored? Penalty or Fine

1.11 Practical Relevance of Legal Drafting for Somaliland Lawyers

 Drafting contracts for companies, land sales, leases.

 Drafting NGO constitutions & bylaws.
 Drafting government regulations & public policies.
 Drafting legal notices & petitions.
 Drafting terms for financial agreements under Islamic principles.

Class Activities for Students:

1. Identify and classify rules from the Somaliland Labour Law.

2. Draft three short rules using:
o Duty
o Discretion
o Declaration
3. Compare poor and good drafting examples.
4. Analyze a Somaliland case where bad drafting caused legal disputes.
Key Takeaways of Module 1:

 Legal drafting is the lawyer's most powerful tool of creating law.

 The Somaliland legal system is a mixed system requiring sensitivity to
Constitution, Sharia, Xeer, and Statutory Law.
 A good draft is clear, precise, and enforceable.
 Every rule must have actor, action, condition, and consequence.