Administrative law is the law relating to the control relating to government power. The primary purpose of administrative law is to keep the powers of government within their legal bounds, so as to protect citizens against abuse. Nature and Purpose of Administrative law
Article 47 of the constitution
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. (3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall— (a) Provide for the review of administrative action by a court or, If appropriate, an independent and impartial tribunal; and (b) Promote efficient administration.
It deals with how power is acquired, used and how to remedy improper use of power. What is Power?
Steven Lukes in his book: Power a Radical View defines power as the capacity to dominate other beings. That domination is expressed in three ways:
1. A person ‘A’ can exercise power over ‘B’ by making ‘B’ act in a manner that is not in the interest of B. It is a one dimensional decision making power. Example: One person wins a political struggle against another then imposes his will by punishing them if they don’t cooperate.
The winner takes it all and ‘A’ imposes his will by threatening. 2. Person ‘A’ can impose power over ‘B’ by creating barriers to the public airing policy conflicts and thus ensures public knowledge to things that are harmless to ‘A’. It discourages/ makes its hard for the other person to express themselves and demands for change are suffocated. It is a non decision making power and it favours the elite. Example: The Chinese child labour policies and criminalisation of treason. 3. Person ‘A’ determines his wants thus suppressing B’s interests by controlling how ‘B’ thinks by thought control. It is mainly done through mass media. What does law have to do with power?
1. Law regulates power by insisting that the exercise of power is democratic i.e. Participatory and democratic(accountable) 2. The purpose of the law is to protect individuals from abuse of power 3. Law promotes the value of things we care about as human beings. Dawn Oliver argues that there are a number of values that are moral tenets of how life ought to be for an individual in a democratic society. These values include:
1. Autonomy – Freedom to make ones decisions
2. Dignity – The quality of being worthy
3. Equal respect – Being treated as a citizen
4. Status – A sense of belonging to a society
5. Security – Ability to trust and rely upon others with whom you deal with Democratic Governance; as a right but Insufficient Thomas Frank argues that the right to democratic governance involves the right of citizens to be involved in governance. E.g. The right to vote. We must trust that if the government says it will do something that it will deliver. It enhances legitimacy and enhances our trust in government, and our willingness to cope with the government. We must be able to rely on it.
That is why it becomes important for the law in the context of the principle of legitimate application to say that if as a public authority you have made a promise, then you must see to it, because that promise enhances order, good administration and good life. The expectation from Oliver is that when those who hold power wield and exercise it, they will take these views into point honour, implement and adhere to these views when they exercise power. We can therefore argue from this premise, that it is likely that these values will be protected where the exercise of power is democratic- where there is participation and accountability, than in situations where the exercise of power is authoritarian. i.e. these values are more likely to be realised in a democratic politics than in an authoritarian politics.
In this sense we can quote Robert Daho, “While democracy will not be a sufficient condition for achieving these values, it is nevertheless an essential means to its realization”.i.e. Democracy is not everything but it is important to achieve these values. These are the values that reflect our fundamental interests as human beings. So it follows in a democratic society that law ought to uphold dignity, the autonomy, the respect, the status and the security of individuals and group of individuals against the abuse of power. In the perspective of international human rights, these values form the intricate of UDHR, ICESCR, ICCPR. We should therefore consider the value as part and parcel of emerging rights of citizens of democratic governance. In the perspective of Administrative Law,
The right of democratic governance entails the right of each citizen to take part in government i.e. the right to vote, right to participate in the context of government affairs. These values are expressed in the administrative law scholarship, as public law values. These public law values are certain legal standards which the exercise of power forces to be performed. They include: Legality, Fairness, reasonableness, rationality, participation, accountability and fulfillment of legitimate expectations. From the administrative law perspective, the concern is with realising these values on a day to day basis and in this respect we are challenging the practice of democracy.
In recent History, (History of Administrative Law in Kenya) Democracy has had its powers in its national development, but it has been a narrow one. Narrow in the sense that it has been attached to the ballot box. In the 70’s and 80’s when countries were suffering because of the oil crisis, there was a boom because countries had borrowed a lot and were unable to repay their loans. When they went to the Brighton Woods Institutions, the IMF and the World Bank, they were told that they would get aid on condition that they:
1. Rolled back their state’s involvement in the States economy through privatisation and liberalisation of economic policies 2. Democratic governments are likely to be better at managing the economy, so the institutions wanted the countries to liberalise their policies In virtually all of Africa, they implemented these with the oversight of World bank and IMF. They implemented what was then called structural adjustment policies, consisting of market liberalisation measures including privatisation. In the 1990s, liberalisation of politics begun, it was the multi party era. As a part of the new liberal market ideology, it was better that politics was also liberalised, and hence the introduction of democracy. E.g. The constitution was amended to allow contestation of government to many political parties.
The problem however was that the neo liberal movement agenda was attached to the ballot box in the perspective of the liberalisation of politics. This is not sufficient because the ultimate concern to the typical citizen is day to day democracy such that one can get a work permit from the local town council office without delays, or one can get a passport or Identity card without the officers abusing their powers.
How do we ensure citizens experience good administration on a day to day basis By assessing attainment of democracy through elections, the assumption is that we determine the existence of democracy by the frequency of elections and whether they are free and fair. The assumption being that once the elections are held, then the country attains democratic governance, and that magically a typical citizen will not complain of abuse of power by the clerk at the local authority office. We need to question this orthodox:
Democracy has to be something that we realize on a day to day basis. It is the right to be consulted when political decisions are made. If democratisation initiatives do not take this perspective into account, they become hollow. It must ensure citizens participate meaningfully in the process of governance and hold them to account. The periodic elections however free and fair does not offer the electorate adequate degree of control of our government and it therefore raises the need for auxiliary political and legal mechanisms to ensure and facilitate: a) The day to day participation in governance
b) Political accountability of the agents and instruments of government i.e. the bureaucracies, elected representatives etc. In this way the administrative law can be a critical instrument for the realization of day to day democracy. Thus administrative law is one of those auxiliary or supplementary mechanisms we need to have day to day democracy. Administrative law becomes important because it establishes institutional frameworks that will facilitate the regulation of the exercise of power on a day to day basis. The Oliver values are affected in the exercise of power and so it becomes important for us as citizens to participate in what the government is doing and hold them to account. Complexity of the relationships and Public Administration
However public administration can be complex given it entails delegation of authority as dictated by the social contract doctrine. We delegate our power to the government to do certain things for us and it delegates its powers to the bureaucracy. We must therefore find a way where these two principals, the people and the elected hold the agency/ the bureaucracy into account.
There is a principal agent relationship, creating a number of problems; a) The fundamental problem is that the agent works for the public (which is large), we cannot therefore monitor them effectively, because they have better information, and there are barriers for getting that information. In fact there are laws that allow non disclosure of information – The officials Secrets Act, which circumscribes the circumstances under which an individual can get information about government, making it arduous to know what goes on in government.
This makes it hard to hold any one into account. This explains the scandals such as the Goldenberg Scandal, took 5 -6 years for the public to know. b) Information asymmetries – Between the citizens and the bureaucrats, the information asymmetry favours the bureaucrats, and also between the elected representatives and the bureaucrats. Example, the Permanent Secretary is likely to know more that the MP. What Is Public Administration
This is the execution of public affairs as opposed to policy. The task of executing public affairs in our tripartite government falls on the executive. To perform its tasks effectively, the executive has at its disposal the bureaucracy, the civil service for example the public service, commissions, public universities etc. We appreciate the limitation of representative democracy because it is in the context of delegation, that problems of governance begin to arise. How do we ensure that the agency does not abuse its powers?
The practice of representative democracy always fails to ensure that the power of government is used for its intended purposes. Governmental power exists for one reason: To protect, pursue and safeguard the public interest as opposed to the private interest. But there are incentives for the bureaucrats to act in their own parochial interests. The rational human being is selfish and mostly looks out for his personal interests. This explains the reason why a Permanent Secretary, head of civil service will want to make money, get ahead of his peers, accumulate wealth and manipulate the system to get ahead. There are chains of indirect responsibility – The link between the civil servant and the public is through the Minister.
They are shielded from public scrutiny because a minister answers to parliament on their behalf. While the bureaucrats exercise power, the legislatures hardly have time and the resources to hold the executive accountable. The role of the MP’s are to: Make laws, Represent the people and check the government. The auxiliary institutions are established to enhance day to day accountability of the executive, bureaucracies, commissions etc. Administrative law constitutes this mechanism to overcome limits of representative democracy.
Administrative law Regulation of Public Administration
Administrative Law regulates Public Administration by empowering public officials to implement policies of government and regulating the exercise of power and ensuring they adhere to public values or principle of administrative law( The Oliver values).Administrative Law does two things: 1. It sets out the (body of procedures) general rules that enhance good administration. 2. Provides remedies for people affected by maladministration In common law jurisdictions, general rules and procedures are provided by the courts. They are also found in the statutes. Example, South Africa has Promotion of Administration Justice Act, USA has the American Administrative Procedures Act. The key Principles of Administrative law:
1. The decisions of administration must be reasonable and justifiable 2. The
administrators must consult before making decisions
3. Decision making process must be free of bias
4. Administrators must explain their decisions in writing
5. Administrators must not act arbitrarily or outside their powers or ultravires 6. Administrators must act in good faith
7. There has to be a right of judicial review, for administrative decisions made 8. There must be checks and balances in decision making
Procedures of Administrative Law
1. The administrator should give adequate notice if he is going to make a decision. E.g. Change of user of a building 2. Must give the persons likely to be affected by the decisions, a chance to make a presentation through e.g. public inquiry. 3. The agency must give reasons for the decision making process.
Lecture 3: Thursday 8th October 2012 – B3 5.30-8.30 PM
CONCEPTUAL FRAMEWORK OF ADMINISTRATIVE LAW
Governance has been defined as the manner in which power is exercised in the management of the country’s resources and when the affairs of the state are administered and regulated. More significantly, it expresses the idea that governing is no longer the preserve of the state. This is to underscore two essential points: Today various parties take place in governance so e.g. in the context of privatisation of provision of water, security, health care, etc, we have non state actors now providing these services. In other words they are taking part in government. From the viewpoint of democracy, then governance denotes the idea that the governed (the people) should participate or be consulted in governing So how does this implicate the rule of law: We shall see this shortly.. What is the Rule of Law About?
The essence of the rule of law ideally is that people ought to be governed by law. If we look at these two concepts together, the concept of governance and the Rule of law, we can therefore talk of governance by the rule of law or governance by law.
WHAT GOVERNANCE BY LAW ENTAILS, FROM THE POINT OF RULE OF LAW:
Following Lon. L .Fuller from the book of “The Morality of Law”, the rule of law requires the establishment of the rule of law, that wield a number of criteria, 1. Law must be universal or just, its prescriptions must be addressed to all and not to a particular group of citizens. 2. The law must be promulgated, to promulgate means to announce, to the people, the subjects to whom it is to govern. 3. Law must be prospective and not retrospective.
It must always look to the future. E.g. PEV there was an attempt to apply the law retrospectively, did not work. 4. The law must be clear, because is only such clarity that enables the subjects to understand how they are required to behave. 5. The provisions of law must not be contradictory. Eg. Acts of parliament should not contradict the constitution, or one another. 6. The prescriptions of law must not require conduct that is impossible to perform. Eg a prescription that all citizens must pay income tax, such a statement presupposes that all citizens have an income, which is not always the case. 7. Prescriptions of law must be stable over time.
Important From the viewpoint of investments for example, It is a darling of the World Bank and the IMF when they talk about the rule of law, essentially they talk about the establishment of a stable investment environment, eg if an investor wants to come to Kenya, he will want to know if the tax regime is going to be stable over the next 5 to 10 years in order to predict the sort of income he would generate from the investment. If it is not predictable, then he may not be persuaded to come and invest in the country.
While we appreciate that law must change, the change should not be too frequent because it may be impossible for the citizens to comply. Many actions that law regulates require advance planning, preparation. Liberal theory, idea of liberal legality, is to say that liberty in a liberal order is liberty within certain a particular prescribed scene. Bounded freedom and not unlimited freedom. 8. Prescriptions of law must be applied consistently. There must be considerable congruence between the rules promulgated and their actual application in specific places. I.e. that is rule in the book and rules that are applied in practice. This is our concern as administrative lawyers.
Because we determine whether there is regularity in the application of the law in the day to day basis. Is it consistent? Is it applied differently to different people? It is also important in the perspective of facilitating and enhancing respect for law. Whenever law is not applied consistently, people begin to lose faith in the ability of the law to regulate human behaviour. In turn when there’s lack of respect of the law there is lawlessness in the society, and hence the culture of impunity, the law is applied to some people and not to others. Then anarchy manifests itself in the society.
The rule of law can only be realised where there are suitable application mechanisms:e.g a) Independent judiciary
b) Access to justice
c) Reliable enforcement agents
Law is a culture of doing things through following principles and established procedures. There must be a duty and culture of legality otherwise there would be anarchy. It was un-procedural when MP’S tried to enact a law to enhance their emoluments or in 1982 process of turning the country to dejure one party state- authoritarianism because the laid down procedures were not followed the effect of which were clear for every one to see. Linking The Three Concepts; Governance, The Rule Of Law And Constitutionalism. Constitutionalism: means that government is limited by law,Practicing Constitutionalism is about limiting governance through realising or attaining the rule of law ideal. Question: How can governance be limited through the Rule of Law? The task of limiting governance is the domain of public law. Public law consists of two domains of law i.e a. Constitutional Law
b. Administrative Law
Public law limits governance by establishing mechanisms, principles, procedures that would enhance or facilitate the control the regulation of power. A number of principles in public law that facilitates this end: 1) Public participation
6) Rationality and
7) Legitimate expectations
Therefore Constitutional law and Administrative law play unique but complementary roles. At the same time, we appreciate that these twists of public law, constitutional law and administrative law, take fairly different approaches to regulating power in their respective methods: Constitutional law – Regulates power structurally in the sense that if we look at the typical constitution the approach is to focus on proving chains of accountability e.g. precedent in the content of Parliament, in the establishment of political legitimacy, how are governors to be elected.
Administrative law – Is detail oriented, e.g. Practical detailed illustration, e.g. The concept /doctrine of ministerial responsibility that the expectation is that instances of maladministration- instances of corruption, will somehow come to the attention of parliament, parliament tends to not have the time and the resources to investigate and over public administration. Such a doctrine is limited because it does not help deal with instances of maladministration. For that we need Administrative Law. In summary:
Although a constitution will always be important for realising the rule of law ideal, administrative law is arguably even more important for realising this fundamental ideal. It gives us the tools that we can practically use limit governmental power on a day to day basis in a manner that is democratic –participatory and accountable. Brian Tamanala in “Rule of Law” derives three themes on the rule of law: 1. The first theme is government limited by law
This focuses on restraint of government tyranny. It means first that government officials must abide by the currently valid positive law, and second there are restraints on their law-making power (how they can change the law), imposed by natural law, divine law, customary law, or more recently human/civil rights. 2. The second theme is formal legality:
Public, prospective, stable, general laws equally applicable with a fair hearing within a judicial process. It emphasizes predictability,
deemphasizes the content of the law, is not incompatible with authoritarian regimes, and foregoes requirements of distributive equality and justice in individual. 3. The third theme is rule of law, not man.
This avoids the unpredictable predilections of individual actors. The rule of law response has been to identify the judiciary (legal experts) as the special guardians of the law, and reduce the significance of the individual as judge – at its most extreme in formalism, which values the objective, mechanical judge. It requires careful selection of judges committed to fidelity to the law, deference to proper authority to make the law, diverse social background of judges, and qualities of judicial honesty and integrity, among other factors. LINKING RULE OF LAW AND GOOD ADMINISTRATION
Good administration entails compliance to the grounds of judicial review such as proportionality, respect, principles of reasonable expectations, procedural fairness, legality etc. Good administration therefore is concerned with whether the principle of legal standards are used How can these principles be fairly are implemented
Good administration equates administration that complies with the grounds of judicial review prescribed in the Constitution Art 47 that: Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair, proportional, intravires.These are the legal standards of good administration. You could also say it requires decision makers to decide consistently with human rights standards. Seen the view point of human rights). Good administration requires decisions to be reasoned – exercise of power is likely to be more rational and justifiable or fair, where society has a culture of justification, where decision makers give reasons for their decisions. Illustrations: This is what is found in some jurisdictions:e.g a) European Parliament Code of Good administration 2001
Applies to the European Union institutions and has a number of principles include: Officials (public officers) should be: Courteous and helpful, not respond to requests without delays, should protect personal data, provide
information upon request. b) United Kingdom Parliamentary Ombudsman.
It has published the following principles of good administration: i) Getting it right – guided by law while making decisions thus saving time and resources. ii) Customer focussed – see the citizen as the customer. Others contract visa services to private entities iii) Open and accountable –
iv) Acting fairly and proportionately
v) Putting things right – make amends if something has gone wrong vi) Seeking continuous improvement
c) Australian Administrative Review Council
It reviews their regime of administrative law from time to time. It the best regimes of administrative law. The expectation is that decision making bodies make reference to these guideline in their operations. There are guidelines on lawfulness, natural justice, accountability, conduct of administrative agencies, evidence, facts and findings, reasons and accountability. These are helpful in terms of guidance so that they implement the process of good administration. It also provides guidelines for i) Remedies
iii) Better explanation of a decision
iv) Expedite a case
v) Compensation of a defect as a result of administrative damage such as delay, incorrect advice etc vi) Payment is made under a scheme for detriment caused by defective administration. d) Article 41 of the European Charter of fundamental rights
1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the Institutions, bodies and agencies of the Union.POPO 2. This right includes:
the right of every person to be heard, before any individual measure which would affect him or her adversely is taken; the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy; the obligation of the administration to give reasons for its decisions. 3. Every person has the right to have the Union make good any damage caused by its Institutions or by its servants in the performance of their duties, in accordance with the general principle common to the laws of the Member States. 4. Every person may write to the Institutions of the Union in one of the languages of the Constitution and must have an answer in the same language. SYSTEM OF ADMINISTRATIVE LAW
There are several approaches f
i) The Judicial review approach
ii) The ombudsman approach
iv) Administration Courts approach
Judicial Review Approach
Judicial review of individual cases of maladministration, for judicial review they go to court then the court decides if they will stand in court or not. Only 1% of the population in Kenya seek justice in court, and for judicial review, an even lesser figure. How do administrators comply with court orders? How do they react? What is the impact of judicial review approach administration in Kenya?. Wednesbury unreasonableness, it is useful, but it is limited because of the limitation of the number of people who use the courts and the perception of public administrators – do they welcome it? How do they view it – is it a hindrance or interference to their work.
Reference may also be made to the case-law in England. In Associated Provincial Picture Houses v. Wednesbury Corp., the principle has been asserted that unreasonableness may be a ground for attacking an administrative decision. Of course, the test for unreasonableness was very stringent. The decision could be attacked on this ground only if it was “so unreasonable that no reasonable authority could ever have come to it”, and to prove a case of that kind would require something “over-whelming”.
There are not many cases in which administrative decisions may have been challenged on this ground. In Roberts v. Hapwood, it was held that a local authority having power to pay “such wages as it may think fit” was bound to exercise its discretion reasonably and that a “payment of £4 per week in 1921-22 to the lowest grade worker was so unreasonable as to be ultra vires in spite of the generality of the discretion. Lord Wrenbury interpreted the words “may think fit” as “may reasonably think fit”. In his view, it made no difference in the meaning, whether the word “reasonably” or “reasonable” was in or out because “a person in whom is vested a discretion must exercise his discretion upon reasonable grounds.
Discretion does not empower a man to do what he likes merely because he is minded to do so – he must in the exercise of his discretion do not what he likes but what he ought … He must act reasonably”. The principle of reasonableness has become one of the most active and conspicuous among the doctrines which have vitalized administrative law in recent years. Although the principle itself is ancient, the cases in which it was invoked were few and far between until 1968 the Padfield case opened a new era. Today, on the other hand, it appears in reported cases almost every week, and in a substantial number of them it is invoked successfully. Its contribution to administrative law on the substantive side is equal to that of the principles of natural justice on the procedural side.
This doctrine is now so often in the mouths of judges and counsel that it has acquired a nickname, taken from a case decided twenty years before Padfiel, the Wednesbury case. The reports now are freely sprinkled with the expression like ‘the Wednesbury principle’, ‘Wednesbury unreasonableness’, or ‘on Wednesbury grounds’. As Lord Scarman explained: ‘Wednesbury principles’ is a convenient legal ‘shorthand used by lawyers to refer to the classical review by Lord Greene MR in the Wednesbury case of the circumstances in which the courts will intervene to quash a being illegal the exercise of administrative discretion. One of the grounds of review, he added, is ‘unreasonableness in the Wednesbury sense’.
In the same case Lord Bridge referred to the exercise of power ‘unreasonably in what, in current legal jargon, is called the “Wednesbury sense’. ‘Wednesbury is now a common and convenient label indicating the special review of administrative disableness which has become the criterion for judicial review of administrative discretion. It is explained in that context below, where the key passage from the judgment of Lord Greene MR is set out in full. In an important ex cathedra statement of the grounds for judicial review Lord Diplock preferred the term ‘irrationality’, explaining it as ‘what can by now be succinctly referred to as Wednesbury unreasonableness’. But it is questionable whether ‘irrationality’ is a better word.
Virtually all administrative decision are rational in the sense that they are made for intelligible reasons, but the question then is whether they measure up to the legal standard of reasonableness. “Irrational” most naturally means ‘devoid of reasons’ whereas ‘unreasonable’ means ‘devoid of satisfactory reasons’. The expression ‘arbitrary and capricious’ is sometimes used as a synonym for ‘unreasonable’, and in one case this has been transmuted into ‘frivolous or vexatious’ and ‘capricious and vexatious’. But the meaning of all such expression is necessarily the same, since the true question must always be whether the statutory power has been abused.
The Ombudsman Approach The primary function is to investigate individual complaints of maladministration and Correct errors and impropriety of such cases and also to provide remedies to aggrieved citizens. In other countries there is administrative compensation such as in Australia. What does the Ombudsman do? The Roles of the Ombudsman
i) It can play other roles such as observation, conducts an all motion investigation and then reports to the public through legislature. ii) This reveals systemic problems, which prompts the agency affected to make reforms. iii) Conducts audits of agency operations with a view to pointing strengths and weaknesses in their decision making process, recommending reforms, and requiring the agencies to implement the reforms. iv) A formal process could be established where the agency would be asked to explain the steps they have taken to implement the solution. v) Advise and assist agencies to observe the principles of good administrative. E.g by establishing practice guidelines eg Australian administrative review council and assisting in establishing the practice vi) Conduct training on how to reform to the guidelines
vii) Monitor and evaluate compliance to the codes and guidelines viii) Monitors and evaluates compliance with court decisions and makes reference
to the decisions by courts during judicial review
This approach is characterised by establishing procedures that ensure principles of good administration. They enable the public to participate in decision making process of public authorities. They achieve checks and balance by separation of agencies functions e.g. The Kenya National Commission of Human Rights and Equality, investigates and adjudicates. It is problematic that the same people investigate and make decision over the same matter because of conflict of interest/bias. There should be (Chinese wall) where the people investigating should be separate the ones making the decision.
Lecture 4: Thursday 15th October 2012 – B3 5.30-8.30 PM
The Principals of Administrative Law
The principle of legality is the legal ideal that requires all law to be clear, ascertainable and non-retrospective. It requires decision makers to resolve disputes by applying legal rules that have been declared beforehand, and not to alter the legal situation retrospectively by discretionary departures from established law. It is closely related to legal formalism and the rule of law and can be traced from the writings of Feuerbach, Dicey and Montesquieu. The principle has particular relevance in criminal and administrative law. In criminal law it can be seen in the general prohibition on the imposition of criminal sanctions for acts or omissions that were not criminal at the time of their commission or omission.
The principle is also thought to be violated when the sanctions for a particular crime are increased with retrospective effect. In administrative law it can be seen in the desire for state officials to be bound by and apply the law rather than acting upon whim. As such advocates of the principle are normally against discretionary powers. This is the essence of the rule of law from the view point liberal legality, that act of government that affects every individual, must be able to justify it actions/ omissions to reference to some law.
Every act of government agency must be authorized by law or have some force in law- Act of Parliament, some legislature. It tends to be that Acts of parliament confer very wide powers that confound the ultra vires principle. Every agency of government must act within its powers, any act in excess of power is deemed ultra vires.
The effect of an action being ultra is that any administrative act that is ultra vires is void in law; it is as if no decision had been made. The courts have developed this principle of ultra vires, where for example an Act of parliament confers very wide discretionary powers to a Minister, the courts read into the provisions requiring the Minister to act in certain ways-e.g.’ to act reasonably .The courts determine that it could not have been the intention of parliament that the power granted to the Minister be conducted unreasonably, or arbitrarily. Linking the concept of ultra vires principle and legality, we can challenge the legality of an administrative act on the grounds that there was no power to do it, or that although there was power to do it, then that p was exercised in an unlawful manner i.e. irrational, not taking into account relevant consideration etc. 2. Principle of Reasonableness
In the common law concept, it is known as the Wednesbury Unreasonableness. This was illustrated in the case Associated Picture Houses Vs Wednesbury Corporation. Associated Picture Houses Vs Wednesbury Corporation.
In 1947 a cinema company, Associated Provincial Picture Houses, was granted a licence by the Wednesbury Corporation, the local authority of the market town of Wednesbury in Staffordshire, to operate a cinema on condition that no children under 15 were admitted to the cinema on Sundays. Associated Provincial Picture Houses sought a declaration that such a condition was unacceptable, and outside the power of the Corporation to impose. Judgement
The court held that it could not intervene to overturn the decision of the defendant simply because the court disagreed with it. To have the right to intervene, the court would have to form the conclusion that: The Wednesbury Corporation, in making that decision, took into account factors that ought not to have been taken into account, or The Wednesbury Corporation, in making that decision, took into account factors that ought not to have been taken into account, or The Corporation failed to take into account factors that ought to have been taken into account, or The decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories. Therefore, the claim failed and the decision of the Wednesbury Corporation was upheld. According to Lord Greene, M. R., It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretions often use the word “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider.
He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting “unreasonably.” Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in Short v Poole Corporation  Ch. 66, 90, 91 gave the example of the red-haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another.
The essence of the principle of reasonableness is that a decision is unlawful if it is one which no reasonable authority would have come to. What is reasonable authority? According to Lord Greene
I. Failing to take into account relevant consideration
II. Making a conclusion that is so unreasonable that no reasonable authority person would have come to it. It is also called irrationality. It covers a multitude of sins: Sheer absurdity or caprice, illegitimate motives and purposes, irrelevant considerations, self misdirection, addressing oneself to the wrong question. The standard of unreasonableness is pitched at high level, that it’s a decision that is so wrong that no reasonable person would sensibly decide that way. 3. Proportionality
This is the principle that the means used by a decision maker, must be appropriate to achieve the objective sought, and must not go beyond that which is necessary to attain that objective. It encompasses three sub principles:
Only suitable or appropriate means should be used to bring out the desired ends. It must choose the right legislative tool to do the job at hand.E.g. Falconers’ case where the falconer was required to have a skill of use of a gun as a precondition for being licensed to be a falconer. The question was whether it was necessary for falconer to have such knowledge for the job. It was not necessary and hence the court decided that it was not appropriate. b) Necessity:
If you are applying or regulating an activity, you must use the least restrictive means so that they don’t interfere or they least interfere with the rights of persons affected. If there are several suitable means, they must choose the least restrictive means of doing that. (Question should be that if the measure proposed is necessary).
This is balancing between the seriousness of the interference of a right and the justification of such interference. The Purpose and method should be weighed against each other and not found to be out of proportion. E.g. Petrol station and an expanded road. Traffic flow and business interest of the business owner, if the exits are blocked, is the meausure proportional to block the exits? 4. Duty to give reasons
This is said to be the hallmark of good administration because it opens administration up to scrutiny or criticism. It ensures that power is not exercised arbitrarily.
A decision is likely to be better if the reasons for it are done in writing.
It facilitates judicial review by the courts.
Duty to give reasons requires that:
I. Proper adequate reasons must be given i.e. the reasons must deal with the substantial points that have been raised II. Reasons must be intelligible i.e. not contradictory, not doubtful on whether matters Philosophically, it affirms the individual, because citizens are considered when decisions are made, when reasons are given it means that citizens’ matter, when one is given an account of how and why decisions are made in governmental action. One is treated as a subject rather than object of law.
They are seeking to give you an account. You participate in dialogue about governmental action. Authority without reason is dehumanizing, to be the subject of administrative authority that is unreasoned is to be treated as a mere object of the law and not as a subject with independent rational capacity. Unreasoned coercion denies our moral agency and our political standing as citizens entitled to respect ends in ourselves. 5. Participation and Duty to consult
To consult is to ask for the advice or opinion.
Participation is critical element of democratic governance because it is essential to the realisation of a just society. DJ Gallighan says that the very idea of democracy turns on citizens participating in political processes. It is only by participating that Individuals can ensure that their interests are known and taken into account, and realised. Participation enhances the viability of public policy initiatives and the prospects for their successful implementation. If people are intimately involved in decision making processes they are likely to find such processes legitimate. Participation can be problematic because:
I. People living in poverty, ignorance, are subject to exclusion and discrimination and are alienated are too oppressed to participate in public debate. II. When they try to participate in public decision processes they often find themselves silenced through not being able to speak the right language or they may be ignored or threatened by powerful groups because they believe they have no right to a voice. E.g. Participation of women in various cultural contexts say water resource users association, there maybe those dynamics that hinder effective participation of women.
Break the barriers that hinder effective participation in government. To realise the idea of participation, it is important to break that barrier that hinders effective participation, through mechanism that deepen democracy (Find literature). Legal empowerment – Is the use of legal process to help disadvantaged population to increase control over their lives.It Involves Strengthening the role, capacity and powers of disadvantaged groups so that they can participate more effectively in the making of decisions. 6. Doctrine of Legitimate Expectation
If a public body/ government agent makes a promise, then it will be held to that point. It enhances the trust and legitimacy of government. If a public body has led an individual to believe that he or she will receive benefit then that individual may have legitimate expectation that can sometimes be protected. This was well illustrated in Githunguri vs Republic
The Githunguri Case:
Stanley Munga Githunguri had been charged with possession of foreign currency, contravention of Exchange Control Act. Enquiries and full investigations were carried out. Five years later the Attorney General after full consideration decided not to prosecute the accused and closed all the files. Four years later after the assurance that the accused would not be prosecuted the charges were resurrected and the accused was charged again.
The court of Appeal held that preferrement of a charge Five years after a decision by the Office of the Attorney General not to prosecute is: Vexatious and harassing, abuse of the court process and contrary to public policy, unless there were good and valid reasons for doing so. The COA advised the Attorney General to terminate the proceedings or the accused applies for a prerogative order. Justification for protection of legitimate expectation is that Law should protect the trust that has been reposed in the promise made by an official. i.e. if the trust between the governed and the government is not enhanced it undermines the rule of law. 7. The Principle of Accountability and Independence
Independence means not subject to the control of others. It also means complete autonomy and insusceptibility to the external influence control of others. Serves to ensure agents are able to carry out their mandates in ways that have integrity. Independence is important from the perspective of the rule of law ideal, because it facilitates impartial decision making and preserves the integrity of decision making process. Important to insulate administrators from influences internal or external that could corrupt their integrity or impartiality. That is why we have conflict of interest rule, security of tenure and huge salaries so that the public agents can work independently. b) Accountability
Is the obligation to explain and justify conduct.
It implies a relationship where one category of actors have the right to hold the other category of actors to a set of standards, and judge whether they have fulfilled their responsibilities and impose sanctions if those standards have not been met. Say an accounter and an account holder. The accounter explains and justifies his conduct to the account holder i.e. explanation about performance, debating over the accounter, the accounter holder judging the accounter. The account holder may reward or impose sanctions. Ex-ante and ex-post- Accountability applies ex-post (after the fact) not ex-ante (before the fact).
However, accountability mechanisms can exert ex-ante effects because the anticipation of sanctions can deter them from abusing office. From the view point of democracy, the pros of accountability include: 1) Accountability mechanism makes it possible for the public to hold those holding public office to account. There is a Chain of principle agent mechanism in which the people (principle)-Popular Representative (Mps)-Ministers and the public servants. Only possible when the principles have the sufficient information to scrutinize the conduct of the public office holders. 2) Prevents abuse of power and corruption
3) Keep the agents of power on their toes(the ex-ante effect) 4) Function to foster legitimacy of governmental action Procedures of Administrative Law Is concerned is with getting heard and that decisions are made by bodies that are impartial. In common law it is called procedural fairness or natural justice and in the US it is called Due Process. It’s about the steps that ought to be taken in decision making process if people are to be treated fairly. In America it is called due process and the idea is to protect the people from arbitrary government. The constitution mandates the government to treat individuals with a minimum amount of fairness when it is taking the life, liberty or property from them. Procedural due process entails
I. Individual should be given notice and a Hearing.
II. This is notice of what the agency seeks and wants to do and notice about time, date and year to give you time to prepare and defend your interests. III. Basic facts of what the agency intends to do and on what legal basis the proposed action is. IV. The notice should also be timely. It must be Sufficient to allow you to prepare for the hearing E.g. at the Independent Disciplinary and Complaints Commission of the Kenya Premier League, when they accuse the club or fans of a crime, they are given 7 days to prepare for a hearing. Hearings may take many forms:
I. Trial type hearing- Proceeding where there are two parties and there is an arbiter. It can take a long time. E.g. this kind may not be ideal for Thika Highway, gas station owners and commuters hearing II. Notice and comment hearing – Comments are sent to the agency, and inform you how they have considered your opinions. Procedures From A Conceptual View Point
The object of Procedure: Procedures are important because they facilitate the fair treatment of individuals. I.e. treating people fairly contribute to attaining/ realizing justice. Thus procedures are instruments for realizing justice. Definition of Procedure: These are steps taken to arrive at a decision or to achieve a cause of action, in a legal concept. Process is a distinct act of law or an administrative act which involves the making of a decision, an inquiry e.g. an investigation criminal justice itself is a process.
Say somebody is charged with an offence in a court of law, they are asked to plead, they plead guilty or not guilty, the prosecution presents its case, at the end of the prosecution’s case, the court determines whether there is a case to answer or to dismiss the case. Court issues the sentence. This is a procedure of the criminal justice trial process. So process refers to an aggregate of procedures, in relation to a decision. So the criminal trial justice is a process made up of several procedures. The concern however is with procedural justice or procedural fairness, one is treated fairly, if they are treated in a way which they have a justifiable. The idea of human dignity becomes very important; there must be specific ways to treat one fairly and with dignity when making decisions that will impact an individual.
All International human instruments honour the idea of human dignity. In administrative process, it is important therefore to consider the views of individuals in the procedures as well as to honour the individual’s considerations and to treat them with respect. The basic right to be treated with respect and dignity as a human being justifies a moral the right to consideration in the affairs of the government. The right to Consideration, to have your views heard and factored into decision making, justifies your right to certain procedures: I. Notice i.e. knowing which issues are to be decided and criteria to be applied. II. Right to a hearing, having an opportunity to hear your case to respond to issues address to others III. To be provided with an explanation and justification of the final decision That is how administrative law celebrate the worth of human dignity.
That is why participation is critical in the idea of fair treatment of individuals through procedures. It is closely linked with procedural fairness because it enables you as an individual to exert some influence over the processes you are going to be affected. Indeed we can link participation or fair treatment to the idea of citizenship. Citizenship is about your views counting in the polity you claim to belong to. It is about being actively engaged in shaping the community in which you live. You can only do that by participating in public decision processes, if the idea of citizenship is to have any meaning. By voting, expressing an opinion before an agency, an adversarial process in a hearing. Linking Participation to the idea of citizenship: Citizenship is about your view counting, active engagement in political making process. Questions before end of class