Statutory Instruments and Legislative Effect: The Case of Botswana

This dissertation argues that in order to enhance parliamentary scrutiny and contribute towards effectiveness in delegated legislation, drafters need to know whether or not an instrument made pursuant to an Act will have legislative effect when drafting enabling or empowering clauses. The author, by use of examples from the laws of Botswana and case law, explains how inconsistencies in choosing the type or form of instrument impacts on parliamentary scrutiny. The first chapter gives an overview of the making of statutory instruments in Botswana, focusing mainly on delegated legislative powers, empowering provisions in principal legislation and what can and what cannot be delegated. The chapter further discusses the requirements under the Statutory Instruments Act. The second chapter discusses the meaning of legislative effect, attempts to answer the question when does an instrument has legislative effect and illustrates by use of examples the meaning of legislative effect. The third chapter identifies gaps in the Act and makes recommendations on how these gaps can be filled to enhance parliamentary scrutiny and improve effectiveness. Recommendations are based on what other commonwealth jurisdictions have done to address the issue.