Introduction to administrative law
Administrative law is law in real sense but is not a law like property law, land law. It includes the statutes, administrative rule making, precedents, customs, and administrative direction. It is a branch of public law different from private law which deals with the relationship between individuals. It is concerned with the relationship between individuals with the organized powers.
According to Freund,” the main problem of administrative law relates to the nature and operation of the official power (permits and order, ministerial and discretionary scope and legitimacy of underlying condition”). The formal procedural conditions for the exercise of power, official and communal liability, the specific remedy for judicial control for administrative action (legal, equitable and statutory).
Jurisdictional limitation of powers and question of administrative finality. Administrative therefore is different from other branches as sometimes it goes beyond the law to examine circulars, policy statements, memorandum and resolution.
SCOPE OF ADMINISTRATIVE LAW
As stated earlier administrative law is wider in scope than other branches of law as it includes the enacted law, delegated legislation, administrative instructions etc. besides dealing with the powers of admin authority it also takes into consideration the procedures for example whether the procedure is fair and conform to the rules of natural justice and if includes the remedy available to the an aggrieved person in case the power has been abused. Being a branch of public law administrative law primarily deals with the government and its instrumentalities. Administrative law also includes within its scope the control mechanism by which administrative agencies are kept within bounce and may effectively in the service of individuals, this control mechanism is known as the review process. Some of the administrative action within this scope include court exercising judicial powers, public opinion etc.
KEY TERMS
Administrative action; According to the fair administrative Act no.4 of 2015 section 2 it includes the powers functions and duties exercised by the authorities or quasi-judicial tribunal or any act or omission or decision of any person, body or authority that effect the legal right or interest of any person. To whom such action relates.
Administrative discretion; discretion in its ordinary meaning signifies an restrain exercise of choice or will, freedom to act according to one’s own judgment, unrestraint exercise of will the liberty of power of acting without other control than one own judgment. Lord Halsbury analyzed the meaning of administrative discretion thus, discretion means that when it’s said that something is to be done within the discretion of authority that something is to be done according to private opinion. It was to be not arbitrary and vague but legal and regular. And it must be exercised within the limit which an honest man competent to the discharge of his office ought to confine himself.
Public policy; according to the black’s law dictionary it provides that it includes policies that have been declared by the state that covers state citizens. It allows the government to stop any action that is against public interest.
Public law; the law that covers administration, constitution and criminal acts. It controls the actions between the citizens of the state and the state itself. It deals with the government’s operation and its structures.
Public interest; the welfare of the public as compared to the welfare of the private individual or company.
Judicial review; according to the black’s law dictionary it provides that it is a court review on an administrative bodies factual or legal findings. Courts have only unlimited powers to review in the area of administrative powers since most administrative bodies have administrative discretion to be exercised fairly, reasonably and justly. The general rule is that under the doctrine of separation of powers courts should not interfere with the actions taken in the exercise of powers by the administrative authority.
Delegated legislation; According to Salmond it is that which proceeds from any authority other than the sovereign power and its therefore dependent for continued existence and validity on some superior or supreme authority.
Quasi-judicial; According to the black’s dictionary it provides that there are an act of an officer that take o n a judicial quality. The officer is authorized to act in such a way.
Administrative decision ; it is a form of legal opinion written by a judge or a judicial panel in the course of resolving legal disputes providing the decision reached to resolve the dispute and usually indication the facts which leads to the dispute and an analysis of the law is used to arrive at the decision.
MEANING OF ADMINISTRATIVE LAW
According to A.V DICEY it is that portion of a nations legal system which determines the legal status and liabilities of all state official which defines the rights and liabilities of private individuals in their dealings with public official and which specify the procedure by which rights and liabilities are enforced.
According to HLA Hart it is the law that controls administrative authorities of the government. It includes statute law administrative rule making, precedents, customs and directions.
According to the Black’s law dictionary it provides that it is a branch of public law which deals with the various organs of the sovereign power considered as motion, and prescribes in detail the manner of their activity, being concerned with such topics as the collection of the revenue and regulation of military and naval forces, citizenship and naturalization, sanitary measures, poor laws, public safety and moral.
According to P.A OLUYEDE it is a branch of law that vests powers in administrative agencies, imposes certain requirements on the agencies on the exercise of the powers and provides remedies against unlawful administrative acts.
CHACTERISTIC OF ADMINISTRATIVE LAW
Administrative law it has the following features. It encompasses various administrative bodies example board, commission of enquiry etc. it is also of the center of the rule making power of administrative agencies which includes delegated legislations among others. It also provides a framework for judicial functions of administrative agencies for example by setting up rent tribunal etc.
It also characterized by remedial features or the provisions of remedies for example constitutional remedies such as the writs of habeas corpus, mandamus, certiorari and prohibition.
Procedural guarantees and government liability are also a characteristic of administrative law in that rules of natural law and contractual liability from the government are dealt with respectively.
FUNCTIONS OF ADMINISTRATIVE LAW
Admistrative law plays a vital role in the realm of administration and society some of which are;
Administrative law acts a check in respect of unlawful exercise or abuse of governmental administrative powers.
It embodies the principles that facilitates good administrative practice for instance the two rules of natural justice that a man cannot sit on his own case ( memo judex in causa sua) and that no man can be condemned unheard. In the case of Cinnanond v British airport authority it was held that a taxi driver cannot be deprive off his licenses to operate at an airport because of an alleged misconduct without first being given a chance to put his side of the case.
It provides remedies for grievances occasioned at the hand of the public authority
It commands public body to perform their statutory duties under the statutes.
It aids accountability and transparency, including participation by interested individual and parties in the process of governance. For instance, through membership of a pressure group.
It allows administrative agencies to be observed on and not to commit an error of law. That is an action or decision that is in conflict with the statute.
PRINCIPLES OF ADMINISTRATIVE LAW
- Right to participation
- Independence
- Accountability
- Legality
- Justifiable
DEVELOPMENT OF ADMINISTRATIVE LAW
The system of administrative structures that exist today did not exist in pre-colonial societies. There was also no system of ad law or customary ad law that resembles the current system. The current administrative system with its system of administrative laws only came with the advent of colonialism in the second half of the 19th Century. In the pre-colonial period, societies were of simple character in the sense that they primarily sought to satisfy immediate basic needs. These were food, shelter and security. Therefore the cultures and traditions of these societies and religions which constituted their laws were built around food, shelter and a quest for basic security. These were the primary needs that both the pastoralists and the agrarian societies sought to satisfy. Even though their slightly differing economic approaches dictated a somewhat differing kinds of polity (societal political set-up)
Invariably systems of leadership existed among the different tribes in which the political leadership was either entrusted with an age set and handed down from generation to generation i.e. from one age-set to another as in the case of the Kikuyu tribe or the system of leadership included a foremost leader, priests, medicine-men or warriors as was the case with the Luo tribe. Some of the tribes such as the Kikuyu entrusted their political, judicial and religious functions and (which formed the primary functions of their governance system to a council of elders) this council of elders loosely comprised persons specializing in particular matters according to knowledge and interest. For such communities the council of elders made all the important decisions of common interests.
At a larger level constituting more than one community, political actions, main military operations were conducted as directed by age-sets. At this level each community spoke through a spokesman, who was not necessarily a chief but was no more than the chairman of a territorial unit. They spoke on matters of concern mainly food, shelter and security. Chiefs hardly existed.
For other tribes such as the Luo, public functions were conducted at the sub tribe level. Below this sub tribe level was the clan. The sub tribe constituted a higher council comprising the heads of clan. It was also comprising diviners, healers, rainmakers and warriors. The council which was presided over by the foremost leader of the sub tribe dealt with all important public issues and these were the most important public issues, homicide, external aggression, law and order. Matters concerning food shelter and land were dealt with at a clan level.
The political systems which also comprised some rudimentary administrative elements were conceived and practiced in accordance with Luo cultures and supported not by a system of formal laws and public administration but by various forms of religions, by culture, traditions and rituals of the tribes.
The traditional systems revealed a simple and relatively informal governmental system, localized and apparently not designed for the modern states. In some societies there was a remarkable overlap and fusion in the operation of the various society institutions.
Nevertheless in all cases a framework of stability existed which even though precarious framework which served the needs of the time by enabling each community to meet their basic necessities and keep some kind of basic peace.
Traditional societies existed as they were until 1895 when the British government declared a Protectorate status over the region over Kenya. The commencement of the protectorate marks the beginning of direct British government administration in the region. This was to see the importation of British system of governance including its system of public administration.
Between 1895 and 1897, the colonial government was mainly preoccupied with boundary demarcations and territory acquisition such that by 1897 no comprehensive system of formal administration of Kenya had been established. African tribes remained subjects of their local leaders under the various political systems of the tribes. Full jurisdiction over all the people in the region now Kenya was not conferred on the protectorate until the passing of the East African Order in Council in 1902.
The order empowered the British Commissioner who had been empowered to act on behalf of the Queen in the region to make ordinances for peace, order and good governance of all persons in the protectorate. By the Order in Council of 1902, the High Court was established with full civil and criminal jurisdiction and the establishment of the regular administration began. This development was dictated in the initial years by the stronger private demands of the growing European settlers. For the most part the new system of Administrative government developed parallel to the ethnic system.
The first step in this development i.e. the development of a regular administrative structure was the passing in 1902 of the Townships Ordinance, under which Nairobi and Mombasa Townships were established. Further developments had the effect of bringing native people physically and psychologically out of their social culturally and political rootage. This included the passage of the Hut Tax Ordinance in 1903 to provide funds to support the colonial government structure. In the same vein a Legislative Council was established. The Legislative Council was charged with making various ordinances and was comprised of the 3 people, the governor and 2 other people.
Constitutional law and administrative law are subjects which interlock closely and overlap extensively. The rule of law, for instance, is a basic concept which runs through them both and which offers scope for political theory as well as for the discussion of its practical features which will be found below. But other such universals are not easily found in the field of administrative law, and the lack of them limits the assistance which political theory can provide.
Law & Administrative Authorities
Administrative Law is the law relating to public administration.
Administration is the act of process of administering, which simply
means it is the act of meting out, dispensing, managing, supervising and
executing etc.
·
It is the law relating to control of
governmental power. It can also be said to be the body of general
principles, which govern the exercise of powers and duties by public
authorities.
·
The primary purpose of administrative law,
therefore, is to keep the powers of government within their legal bounds, so as
to protect the citizen against their abuse. Administrative law is also
concerned with the administration and dispensation of delivery of public
services. However it does not include policy making. Administrative
is concerned with the government carries out its tasks.
·
What the government tasks are, delivery of
public services such as health, security, facilitating trade, arbitration of
disputes, and collection of revenue. We are concerned about various
public institutes of the government, ministries etc.
·
Administrative law is the law relating to
the executive branch of government. The law deals with a variety of
things i.e. the establishment of public authorities e.g. the city council,
establishment of public bodies and organs.
·
The nature of the tasks given to various
public organs and public agencies.
·
The legal relationship between the public
bodies themselves and also between the public agencies and the public and
between public agencies and the citizens.
·
Administrative Law is concerned with the
means by which the powers and duties of the various public agencies, public
bodies and public institutes can be controlled.
THE FUNCTIONS/PURPOSES OF ADMINISTRATIVE LAW
It ensures proper dispensation of services.
It seeks to protect citizens from abuse of power.
The primary purposes of administrative law is
1. To keep the powers of government i.e. powers of
various public bodies within their legal bounds, so as to protect citizens from
their abuse. Abuse of power can arise from either local authorities, ministers,
local authorities etc. either from malice, bad faith or even from the
complexities of the law.
2.
There are duties placed in public bodies
(public institutions) such that another function of the law is to see that the
duties are performed and that the public agencies can be compelled to perform
their duties where there is laxity or where they refuse or otherwise fail to do
so.
The course will cover
1. Structure and the constitution i.e. Make up of
administrative institutions bodies, agencies etc. e.g. local government and
civil service.
2. The law relating to the functions powers and duties;
3. The law relating to the control of the exercise of
those powers and duties.
The laws include
1. Acts of Parliament; ie. Statutes creating and
governing public agencies as well as other statutes.
Local government Act
Civil Procedure
Official Secrets Act
Service Commission Act
Law Reform Act
2.
The law will include common law and common
law principle studies.
3.
Judge made rules and doctrines as appear
in court decisions on various cases concerning public administration otherwise
known as stare decisis
4.
The Constitution; (the public service
commission is a creation of the constitution) the constitution in addition lays
out the divisionaltutions powers between various branches of the government
i.e. the Executive, the arm that carries out governmental functions. The
constitution also creates the Legislature it is the legislature that enacts the
various statutes. The constitution also provides for the control of the
exercise of the powers of public bodies and organs through the courts. It
does this by establishing the High Court and it also gives the High Court
inherent powers over public bodies. The High Court has a supervisory
power over the constitution.
HISTORICAL BACKGROUND OF ADMINISTRATIVE
LAW:
IN
ENGLAND
In England public administration by the government
grew out of the necessity and the realisation that it was the duty of the
government to meet the needs of the population and to provide remedies for
social and economic evils of many kinds.
It
was realised and indeed it was necessary that the government cares for its
citizens from the ‘cradle to the grave’ it was also realised that it was
necessary to protect the environment for the people, to educate them at all
stages, to provide medical services, to house them, to provide them with
employment etcetera. The needs were various. Little can be done
merely by passing Acts of Parliament and leaving it to the courts to enforce
them. There are far too many problems of detail, and far too many matters
which cannot be decided in advance. There must be discretionary power and
if discretionary power is to be tolerable, it must be kept under two kinds of
control: political control through parliament, and legal control through the
courts. Equally there must be control over boundaries of legal power, as
to which there is normally no discretion. If a water authority may levy
sewerage rates only upon properties connected to public sewers, there must be
means of preventing it from rating unsewered properties unlawfully. The
legal aspect of all such matters are the concern of administrative
law.
Some of the evils were pollution and industrial
accidents that the government needed to address.
Before mid 17th century in England the Justices of
Peace were used for all purposes of public administration upto the lowest level
of authority. they received instructions from the crown or the sovereign
through the commissioners of assize and conveyed instructions to the people.
They also received complaints from the citizens and
conveyed those complaints to the crown for redress through the
commissioners. A star chamber was created to punish those who disobeyed
instructions from the King. They also punished those against whom redress
of grievances lay. The process was very long and cumbersome and many
grievances and needs remained without redress.
In those days the system of administration as it
existed in England today did not exist for example the power of the state or
the power of crown could not be challenged at an administrative level.
A major change in the system of government occurred
beginning in the mid 17th century with the introduction of a representative
system of government. Through this system citizens could choose
representatives to present their needs and grievances to parliament for
redress. Parliament responded by enacting a variety of statutes
establishing various governmental bodies, organs and offices to provide various
services, to control certain activities such as industrial processes in order
to prevent harm to citizens and to address many other kinds of grievances.
The creation of various public bodies, institutions
and offices by statutes to provide public services and to exercise controls
meant that two things had happened, first of all, the public bodies have been
given various duties to perform and two, they have been given powers to
exercise their duties including discretionary powers.
The grant of power including discretionary powers
creates the likelihood of abuse of those powers. Secondly it is always
possible for grievances to arise out of the public duty to provide services for
example where a body refused to deliver services and this necessitated the law
to govern the public bodies. The relevant law governing all these aspects
of public administration became known as administrative law or law and
administrative processes and this system of law was introduced into Kenya
through colonization in a gradual process which we shall discuss shortly.
HISTORICAL DEVELOPMENT OF ADMINISTRATIVE
LAW IN KENYA:
The system of administrative structures that exist
today did not exist in pre-colonial societies. There was also no system
of ad law or customary ad law that resembles the current system. The
current administrative system with its system of administrative laws only came
with the advent of colonialism in the second half of the 19th Century. In
the pre colonial period, societies were of simple character in the sense that
they primarily sought to satisfy immediate basic needs. These were food, shelter
and security. Therefore the cultures and traditions of these societies
and religions which constituted their laws were built around food, shelter and
a quest for basic security. These were the primary needs that both the
pastrolists and the agrarian societies sought to satisfy. Even though
their slightly differing economic approaches dictated a somewhat differing
kinds of polity (societal political set-up)
Invariably systems of leadership existed among the
different tribes in which the political leadership was either entrusted with an
age set and handed down from generation to generation i.e. from one age-set to
another as in the case of the Kikuyu tribe or the system of leadership included
a foremost leader, priests, medicine-men or warriors as was the case with the
Luo tribe. Some of the tribes such as the Kikuyu entrusted their
political, judicial and religious functions and (which formed the primary
functions of their governance system to a council of elders) this council of
elders loosely comprised persons specialising in particular matters according
to knowledge and interest. For such communities the council of elders
made all the important decisions of common interests.
At a larger level constituting more than one
community, political actions, main military operations were conducted as
directed by age-sets. At this level each community spoke through a
spokesman, who was not necessarily a chief but was no more than the chairman of
a territorial unit. They spoke on matters of concern mainly food, shelter
and security. Chiefs hardly existed.
For other tribes such as the Luo, public functions
were conducted at the sub tribe level. Below this sub tribe level was the
clan. The sub tribe constituted a higher council comprising the heads of
clan. It was also comprising diviners, healers, rainmakers and
warriors. The council which was presided over by the foremost leader of
the sub tribe dealt with all important public issues and these were the most
important public issues, homicide, external aggression, law and order.
Matters concerning food shelter and land were dealt with at a clan level.
The political systems which also comprised some
rudimentary administrative elements were conceived and practiced in accordance
with luo cultures and supported not by a system of formal laws and public
administration but by various forms of religions, by culture, traditions and
rituals of the tribes.
The traditional systems revealed a simple and
relatively informal governmental system, localised and apparently not designed
for the modern states. In some societies there was a remarkable overlap
and fusion in the operation of the various society institutions.
Nevertheless in all cases a framework of stability
existed which even though precarious framework which served the needs of the
time by enabling each community to meet their basic necessities and keep some
kind of basic peace.
Traditional societies existed as they were until 1895
when the British government declared a Protectorate status over the region over
Kenya. The commencement of the protectorate marks the beginning of
direct British government administration in the region. This was to see
the importation of British system of governance including its system of public
administration.
Between 1895 and 1897, the colonial government was
mainly preoccupied with boundary demarcations and territory acquisition such
that by 1897 no comprehensive system of formal administration of Kenya had been
established.
African tribes remained subjects of their local
leaders under the various political systems of the tribes. Full
jurisdiction over all the people in the region now Kenya was not conferred on
the protectorate until the passing of the East African Order in Council in
1902.
The order empowered the British Commissioner who had
been empowered to act on behalf of the Queen in the region to make ordinances
for peace, order and good governance of all persons in the protectorate.
By the Order in Council of 1902, the High Court was
established with full civil and criminal jurisdiction and the establishment of
the regular administration began.
This development was dictated in the initial years by
the stronger private demands of the growing European settlers. For the
most part the new system of Administrative government developed parallel to the
ethnic system.
The first step in this development i.e. the
development of a regular administrative structure was the passing in 1902 of
the Townships Ordinance, under which Nairobi and Mombasa Townships were
established. Further developments had the effect of bringing native
people physically and psychologically out of their social culturally and
political rootage. This included the passage of the Hut Tax Ordinance in
1903 to provide funds to support the colonial government structure. In
the same vein a Legislative Council was established. The Legislative
Council was charged with making various ordinances and was comprised of the 3
people, the governor and 2 other people.
Constitutional law and administrative law are subjects
which interlock closely and overlap extensively. The rule of law, for
instance, is a basic concept which runs through them both and which offers
scope for political theory as well as for the discussion of its practical
features which will be found below. But other such universals are not
easily found in the field of administrative law, and the lack of them limits
the assistance which political theory can provide.
Administrative Law & Agencies Lesson 4 4.10.02
DUTIES OF THE TREASURER
1. He is the chief financial officer;
2. He is he financial adviser of the local authority to
which he has been appointed by the local government;
3. He is charged with general responsibilities for all
matters of finance and accounts of the local authority;
4. He is the paymaster, he is in charged of salaries
payments, services rendered etc.
5. He is the Chief Accountant for Local Authority
6. He is the collector of funds of the local authority
e.g. rates and rents;
7. He is responsible for the organisation of the
financial department of the local authority;
8. He is responsible for the maintenance of the Local
Authorities accounting systems;
9. He is responsible for the supervision of financial
records;
10. He is responsible for the effecting of insurance for
all departments of local authority;
11. Responsible for prescribing account procedures for the
local authority;
12. Responsible for investments of all monies not
immediately required by the local authority;
13. Responsible for management of all funds of the local
authority and in this respect if there any instructions from the finance
committee;
14. He has a personal responsibility to disallow any item
of accounts which is contrary to law;
15. He has the duty to levy surcharge (penalty) on anybody
who incurs any expenditure contrary to law;
Mwangi & Another V. Tusker
The case illustrates that the treasurer
has the responsibility to levy a surcharge on anybody who incurs any
expenditure contrary to the law. The case deals with the Tender Committee
of Murang’a County Council. The Tender Committee was considering tenders
to supply the county council with gasoline. The tenders were received
from various companies and the law requires that if tenders are to be
considered in a particular manner and the Local Council is obliged to contract
the company that quotes the least amount. Here they awarded the tender
that did not quote the least amount and they came to find out that Mwangi and
others who company had tendered was a member of the committee and was therefore
prohibited from sitting at that meeting. They sat there and influenced
the decision of the tender committee.
They had caused Muranga country council to
spend more on supply of diesel than they would have if they had awarded the
company that had quoted the least amount. They were surcharged to pay the
difference between he least amount quoted and the amount at which the contract
was awarded to their company. Here the treasurer was exercising his
power and duty to levy a surcharge.
The other mistake that they made was
Mwangi and the others sitting on a matter in which they had a pecuniary
interest.
Note: IN
cases where surcharges should be imposed, if the treasurer fails to levy the
surcharge, he himself should be surcharged.
16.
The treasurer has the responsibility
should he disagree with the council over any expenditure which he feels is
contrary to law, then if the Council goes ahead to approve the expenditure, the
treasurer must show that the expenditure is contrary to his advise. He
must similarly indicate in the Minutes that the expenditure was approved
contrary to his advise.
POWERS OF THE TREASURER:
Section 130 of LGA AND Part II Third
Schedule.
Attorney General V. Duwinton
This is an English Case, this is a case
concerning borrowing powers of the local authority. Local Authorities have
statutory borrowing powers but there are statutory limits as to the amount
local authorities can borrow. In this case, the local authority in
question, A borough which was governed by the Municipal Corporations Act had by
1903 March exhausted its exhausted its borrowing powers. After exhausting
the borrowing powers, the Local Authority proceeded to take overdrafts from the
bank. They took an overdraft that was far in excess of the amount they
were allowed to borrow and as usual the bank started charging interest on the
overdraft. The treasurer had been admitted to open an account for the
local authority in his name and this is the account with the overdraft.
First of all the local authority had exceeded its borrowing powers and
authorised payments on the interests on overdraft. The treasurer decided
to take money in other accounts belonging to the local authority to upset some
of the interest in the account made in his name. One of the members
noticed what was going on and decided it was illegal and notified the Attorney
General requesting him to sue on the behalf of the council. While this
was going on and before the suit was filed. The treasurer is a public
official and he was sued in his capacity.
The court ruled that monies that had been
borrowed in excess of the borrowing powers had been borrowed illegally and the
interest was also illegal and that the AG and members of the Local Authority
who had requested him to bring the suit were entitled to an injunction to
restrain the treasurer from making further payments of interest out of the
Burrow funds.
The court also held that the Borough
accounts in respect of the interests i.e. the accounts maintained in the name
of the Treasurer was going to be impeached by the court. The court held
that the Treasurer was not merely a servant of the council but that as
custodian of the Borough funds, he owed a duty and stood in a fiduciary
position to the members of the Local Authority and could not plead the orders
of the council for an unlawful act. The treasurer could not claim that
the local authority had approved the excess borrowing.
The court held that the overdraft and
payment of interests were illegal because the borough had exceeded its
borrowing powers. It also held that the fact that the defendant’s
accounts maintained by the treasurer had been audited and passed was no bar to
the action. The court also held that payments of charges of interest on
overdraft were illegal, beyond the powers of the borough and therefore a breach
of trust. The court also stated that the Borough Treasurer is a statutory
officer with statutory duties and not merely a servant of the council but the
custodian of the Borough Funds which are Trust Funds and must not part with
them except on proper statutory authority.
DUTIES OF THE ENGINEER:
1. The Engineer has the general responsibility for
engineering works of the Local Authority; The only exception is where a local
authority has made separate contractual arrangements for the engineering works;
some of the engineering works is maintenances and repair of roads, drains,
street and bridges for which the local authority is responsible. These
duties are the services rendered to the public. Note Section 132 of Local
Government Act
DUTIES OF MEDICAL OFFICER OF HEALTH:
The duties are contained in the Local
Government Act and in addition to the LGA there is the public health Act which
also governs the duties of the Medical Officer of Health of Municipalities.
1. The Medical Officer of Health is the Chief Medical
Adviser for the Local Authority to which he is appointed.
2. Responsible for all matters relating to health for
which the local authority is responsible. Section 131 of LGA and relevant
provisions of Public Health Act.
3. On matters concerning the appointment of the medical
officer of health for the local authority, the Minister for Health must be
consulted.
The functions of the councillors appear
more like policy making functions. But the functions of the officials
i.e. Town Clerk, Engineer Treasure are more like implementing functions.
They will implement the policies that are passed by the councillors. For
the smooth running of the functions of council the policy decisions are to be
made jointly i.e. decisions on what the local authority does is to be made
jointly S. 26(a) prohibits any individual member of local authority to give
individual instructions on what is to be done.
There are a few statutory
restrictions.
1. For the Town Clerk the statutes prohibits him/her from
engaging in private legal practice S. 138;
2. Restriction regarding disclosure of interest, if they
have a personal interest they are mandated to declare their personal interest
in for example in contracts;
3. They are prohibited from exacting monies and fees S.
137 (2) of the Local Government Act;
4. The officials are accountable Section 136
RIGHTS:
The officials generally have a right to
attend meetings of the committees and sub-committees.
How are the joint decisions
made?
MACHINERY OF LOCAL GOVERNMENT:
The machinery is the means by which local
authorities accomplish their duties and functions. For everything i.e.
all duties and functions decisions have to be made and they have to be made
jointly.
What then is the means or the machinery by
which those joint decisions are made?
THE MEETING SYSTEM
Meeting is one of the means by which local
authorities decisions are made. the statute provides for both annual and
ordinary meetings. Section 74. authorizes local authorities to hold
annual meetings and at least 3 other general meetings for the transaction of
general business.
1. The number one thing is that the general business may
be the appointment of the chairman of a committee e.g. a finance committee;
2. another general business maybe the authorisation of
sealing of documents e.g. the Council could be buying property and transfer
documents have been prepared, they sit down and decide;
3. Appointment of committee members is something that is
done at the annual general meeting or the other ordinary meetings
4. Approval of spending;
5. To approve local authorities activities;
6. To consider purchase of land and of course other
properties;
7. To consider the disposal of land;
8. To consider the granting of licences to occupy
council’s land;
Second Schedule Rule 12 provides that
every question and every matter shall be determined by a show of hands and
decided upon by majority votes of members present, unless provided otherwise by
written law.
Section 75 in addition it provides for
special meetings.
Rand V. Odroyd [1959] 1 QB 204
In addition to the annual and general
meetings, the statutes provides for special meetings provided for under Section
75 and in this case the statute provides that a mayor in case of a municipality
or a chairman in case of county council are to hold special meetings from time
to time upon receipt of requests in writing for a meeting.
Meetings may be called for example to
consider motions submitted by councillors on matters affecting their
electorate. Special meetings may also be held to authorise the signing of
orders for payments where there is no finance committee. Look at Second
Schedule
In addition, public meetings may be held
and as the name suggests such meetings may be held with inhabitants of a
particular local authority area to consider matters affecting them which are of
public importance. Section 86 of the Local Government Act. Again
the Mayor will be responsible in case of a municipality and a chairman in case
of a county council.
There are certain procedural requirements
for meetings the most important one being that of notice. Section 76 OF
LGA requires that Notice of Meetings be issued indicating the time, the place
and the matter to be discussed at the meeting or the business to be transacted
at the meeting. Such notices are required to be published at the
notice-boards of the local authorities.
The notice must also be served on the Town
Clerk for Local Authorities and for other local authorities on the
chairman. It must also be served on every member of the Local Authority.
NOTICES:
The notices are to be served on every
other person as the minister may specify. Please note that the time frame
for serving the notices is specified. Check it up.
One of the things required in meetings is
the record of attendance.
1. They must record attendance;
2. The Minutes of the Proceedings of every meeting must
be kept stating among other things the matter considered and the
decision. In addition to minuting the matters discussed, the minutes must
be entered in books kept for that purpose. Before they are kept in the
books they must be confirmed at the same meeting. This is for evidence
purposes.
REQUIREMENT FOR DISCLOSURE:
Section 137 requires that councillors or
any other officer of the Local Authority who has a pecuniary interest direct or
indirect in that matter and the matter may be contract, bargains or an
arrangement that the council proposes to consider.
The councillors must as soon as is
practicable give notice that they have pecuniary interest in a matter to be
considered as soon as is practicable.
The requirement in addition to disclosing
must not take part in the discussion of the matter. If you must sit at
the meeting then you must not take vote in any part of the matter. If you
fail to disclose your interest, you are guilty and are liable to a fine
of 2000/- or two months imprisonment or both and you can be surcharged for
any loss occasioned to the council as a result of an award for a contract
in which you have an interest. The interest of ones spouse is deemed to
be the interest of other spouse provided the two are living together.
Besides in the United Kingdom, it has resulted in a councillor losing his seat.
Brown V. DPP (1956) 2 QB 369
In this case we see an illustration of the
meeting as one of the machinery for local authorities. It also
illustrates that voting is the procedure at these meetings. A meeting
was held by a local authority and members took part in that meeting that was
going to consider rent increase for the council houses that they were occupying
so they had pecuniary interest and should not have sat. they were charged
under Section 76(1) of Local Government Act for participating in a local
authority for participating in a local authority and voting at the meeting
which was held to consider a matter under which they had a pecuniary
interest. The interest was that they were tenants of the Local Authority
and the meeting was about rent increases. Brown sued the DPP saying the
decision went against them and that they did not benefit. The court held:
“Regardless of whether or not the
decision on additional rent payment were in their favour, they had contravened
the law by participating in the meeting and therefore their being fined for the
offence was upheld.”
Parliament has not said that they may vote
against their interest but not for their interests but that they may not vote
in a matter in which they may have an interest. In other words they are
prohibited form subjecting themselves against the law. Brown and his
friend also lost their seats as councillors.
The local government authorises the
minister for Local Government to allow councillors who have all interest in the
matter to sit and participate if he finds that the number of those with an
interest is greater than the number of those without an interest, he may allow
them to sit.
The Minister must be notified and their
interest declared. The Minister has to conduct his own investigation and
the Minister is to specifically remove the disability of members with an
interest, barring them from sitting.
1. Disclose their interest;
2. Notify the Minister;
3. If the Minister finds that the number with an interest
is greater then the number without an interest, the minister may give his
consent to sit or vote.
Section 252 - Corruption
Section 255 – Dissolution
Section 254 – Winding up.
ADMINISTRATIVE LAW Lesson 9 8.11.02
Control of Local
Authorities by Central Government
Relationship between Central govt and local
authorities
We have a central government that has created a local
government, the local government is there to enable the local government to
provide services at the local level. The relationship is that the local
govt exercises powers that have been delegated by the central
govt.
The local govt is a delegate of the central
govt. The relationship is that between central and local government can
be described as a partnership when it comes to providing services and
performance in duties. In this partnership the local government is
supposed to administer local areas, provide assistance and exercise control in
local areas through local authorities, they administer local areas
through the local govt the central govt administers the country as a whole.
Local govt thro local authorities administers local areas. The
functions of the local govt through local authorities is supposed to complement
that of the central government. The local govt is a delegate of powers by
the central government. The central govt exercises controls, checks and
balances over local authorities. These checks and balances are exercised
in two ways.
1.
Formal Controls;
2.
Informal Controls.
Informal Controls which are exercised in the political
arena where you have politics influencing the person who becomes head of the
local government. It influences the manner in which manner power is given
to the Minister. It also influences the manner in which the Minister
exercises the power. Politics will also influence the exercise of power
by the Minister.
FORMAL CONTROLS:
1. Ministerial
Controls
These are controls exercised primarily through the
Local Government Act. The Local Government Act makes provisions for
checks and balances i.e. it provides for the Minister’s consent for a number of
things that local authorities that require the Minister’s consent. S. 143
states that if the local authorities want to purchase land or dispose any land,
they must seek consent of the Minister for local government etc. this
requirement for consent is one way that the Central govt exercises control over
the local authorities.
2. Financial
Controls
a.
Note that auditing is one of the ways that
control is exercised over local authorities by the central govt. S. 231.
b.
Requirement of preparation submissions and
approval of estimates of expenditure and income.
c.
Extra ordinary inspection of local
authorities, the Minister has power to conduct an extra ordinary inspection of
the local authorities accounts if he suspects that something is wrong or if
after submitting of the auditor general’s report he thinks that something is
wrong. There is a procedure provided by LGA the Minister first of all
must give notice to the auditor general of his intention to conduct an extra
ordinary inspection. The Minister is also authorised to appoint public
officials to conduct the inspections. These public officials have powers
one of which is that they can disallow any item of account that is contrary to
law or contrary to the powers of the Minister. They also have power to
surcharge any local authority official who is found to have to have incurred an
illegal expenditure.
d.
The budget itself requires approval by the
Minister which approval is part of the exercise of controls.
e.
The Minister had the power to determine
how much money is allocated to the local authority from the Transfer of Funds
Fund. (a special fund established by central govt) the minister will
consider whether in previous years a local authority has been able to meet the
conditions of the percentage of the promotional grants. The percentage of
promotional grants is the grant given by central govt to local authorities on
condition that they can raise the balance of what they require to meet their
targets.
f.
Under S. 249 LGA the Minister for Local
govt is authorised to reduce or to withdraw govt grants from the local authority
if
i.it appears to him that a local authority
is not utilising the funds well, or
ii.if it appears to the
Minister that the administration or the affairs of that local authority are
wasteful or inefficient;
iii.if the local authority
has failed to act in conformity with the LGA; there are several ways that
the local authority fail to act in conformity with the LGA.
CONTROLS THROUGH APPOINTMENT OF NON-POLITICAL OFFICERS
1.
Town Clerk
2.
Treasurer
3.
City Engineer
The central government hires people directly
answerable to it to work for the local authorities.
CONTROLS THROUGH THE MAKING OF REGULATIONS:
Under S. 271 of LGA the Minister for Local Government
is empowered to make rules for the better carrying out of the purposes and the
provisions of the Act. In the exercise of this power the Minister has
made rules which are known as subsidiary legislation or subsidiary regulations
which appear at the back of the LGA. The power to make these rules is the
power of the Minister for Local Government. The Minister issues rules
through Legal Notices. Through the making of these regulations the
Minister is exercising authority as they make provisions for the carrying out
of the functions and purposes of the Act. Sometimes they even cite the
specific sections of the Act under which the regulation has been made.
POWERS OVER DEFAULTING LOCAL AUTHORITIES
Powers over defaulting local authorities are covered
under Part 19 of LGA
It begins by saying that where the Minister is of the
opinion that the local authority is failing to perform the duties imposed on it
by the Local Government Act, he is given power to do a number of things
a.
He can direct that a local authority
performs its duties and if a local authority fails to comply, the Minister is
required to perform the duties this local authority is failing to perform and
then recover any expenses from that local authority’s account;
b.
He may require a defaulting local
authority to submit proposals on how it intends to exercise the powers
conferred upon it in the performances of its duties; if a local authority
submits an acceptable proposal to the Minister, the Minister may order that
local authority to proceed to exercise the power it had been failing to
exercise which will include any duties they may be failing to exercise in the
manner prescribed in the proposal. If they fail to submit the proposal,
then the Minister is required to exercise any powers a local authority fails to
exercise in such manner as he thinks fit and again he is authorised to recover
any expense he incurs from the local authority. Please note that instead
of doing (a) or (b) the
c.
Minister can remove members of the local
authority and instead appoint a commission to act in its place. Section
251
d.
The Minister may also wind up the local
authority (to the extent of even dissolving them); there are certain procedures
to be followed before powers to wind up are exercised. Certain conditions
must be present.
i.A period of 3 months or more must have
elapsed between one meeting of a municipal council and the next; in case of
other local authorities a period of 6 months or more must have elapsed since
the last meeting;
ii.The local authority in
question must be found to be unlikely to meet its financial commitments i.e. if
its in so much debt that it is not likely that the source of income can upset
the debt the minister can have it wound up;
iii.The Minister must find
that in his opinion the local authority is failing to exercise its functions in
such manner as would best serve the interests of the inhabitants of its area of
jurisdiction;
Before winding up the local authorities, the Minister
must hold a public inquiry under the Commissioner of Inquiry Cap 102 and in
this public inquiry members of that local authority must be given a chance to
be heard i.e. the members of the local authority cannot be removed without
being given a chance to defend themselves. The commission will constitute
3 people one of them being the chairman and the statutes provide that in case a
commission is appointed, the appointed commission is to last a period of 2
years unless the Minister has good reasons to extent their term. While
the commission lasts, it is entitled to exercise all powers and duties accorded
that particular authority under the LGA. Within those two years the
Minister must take all reasonable steps to reconstitute the Local Authority and
to make it function properly. Section 246 – 255.
Please note that the 3 factors earlier mentioned must
be present and then the Minister will decide to wound up the local
authority. there are certain procedures that must be followed
1.
He must issue a notice of intention to
wind up a local authority which must be published in the Kenya Gazette and in
at least one newspaper circulating in that area;
2.
He must also lay a draft order for winding
up before parliament; this draft is to be laid before parliament within
14 days of the notice.
3.
Please note that the reason for tabling
the draft notice in Parliament is that parliament must approve the winding up
of the local authority, it must approve the order laid before it by the
Minister. If parliament approves, from the date of that order, the local
authority then exists only for purposes of winding up.
At the end of winding up process the Minister is
supposed to publish a notice in the Kenya Gazette and he must specifically
state the date of dissolution and from that date given in the Gazette the local
authority ceases to exist. In the place of the dissolved local authority,
the Minister can establish one or more local authorities.
THE CIVIL SERVICE
Read Constitutional Development in Kenya,
Institutional Adaptation and Social Change by J B Ojwang (1999) Pages 81-107
ADMINISTRATIVE LAW Lesson 10 9.11.02
Definition of the Civil Service:
The Civil Service can be defined as the core of
officials to which is entrusted the implementation of the policy decisions of
the government. From this definition is clear that the function of the
civil service is to implement government policy.
The civil service falls under the Executive arm of the
government. It is in charge of implementation of government policy.
Civil servants are those servants of the crown other
than holders of political or judicial offices who are employed in a civil
capacity and whose remuneration is paid wholly or directly out of monies voted
by parliament. Excluded from this definition are
1.
Armed Forces Employees;
2.
Policemen
3.
Employees of public corporations
4.
Employees of local authorities except Town
Clerk, Treasurer and City Engineer
5.
Employees of Nationalised Industries.
We are concerned with the functions of the government
to serving the public. Administrative law is concerned about the
functions of public officers. We want to understand what the law says
about the functions, employment, accountability and efficiency of these public
officials in the duties that they have been charged.
ORIGIN OF THE IDEA OF PUBLIC SERVICE
As with other governmental machinery including local
government system, the civil service is one of those public institutions which
was inherited from the British public institutions. Its tenets were
created by the British colonial administration. However since
independence the civil service has changed. New dimensions have been added to it
and the new changes have been made to meet the circumstances of the people of
Kenya.
List of Civil Servants
1.
Attorney General; and all who work in the
AG’s Chamberrs;
2.
Controller General
3.
Auditor General
4.
Permanent Secretaries
5.
Secretary to the Civil
6.
Commissioner of Police
7.
Ambassadors and High Commissioners
8.
Public Officials in various government
ministries
Regarding their functions their primary role is to
implement policies that have been formulated by the government. These
policies are formulated especially by the cabinet. In their
implementation of government policies they have duties that they perform for
the public.
DUTIES & SERVICES
1.
Issuance of Licences, i.e. trade licences,
driving licences, marriage licences, liquor licences;
2.
Collection of Taxes;
3.
Conduct audits of public accounts
4.
Represent the government abroad, the
functions are many.
In the exercise of these functions they provide
services in the interest of public and exercise controls in the interests of
the public.
APPOINTMENT TO THE CIVIL SERVICE:
The person appointed to the civil service determines
whether or not services will be rendered to the public, they also determine
whether services to the public will be delivered efficiently. It also
determines whether they will stay in employment.
BRITISH WHITE HALL TRADITION
Tradition in respect of British Civil Service from
which we derive our own.
Key factors
As the primary agency for policy implementation and
given the crucial role of policy implementation, the Civil Service in the
White Hall tradition required an uncompromised degree of efficiency, high
competence (capacity to form the functions with which an individual has been
charged), loyalty to the government, acceptance of governmental
authority. please note that they were also conscious to appoint people
who had experience rather than patronage, patronage was not the determining
factor. They also appointed people who had technical competence vis a vis
tribal affiliation. With these qualities the civil service in the British
they were able to efficiently implement the functions that the government had
made. to these were added two factors
1.
Autonomy
2.
Neutrality;
Neutrality referred to the requirement that a civil
servant be detached from party politics and for this reason any person who was
and is appointed to the British Civil Service is prohibited from engaging in
party politics, if they engage in party politics they must resign. This
restriction ensures
1.
British Civil Servants are detached from
party politics so that they are given or can develop a high degree of
self-effacement; they have self confidence to work efficiently no party what
political party is in power.
2.
It ensured that civil servants are
insulated from political controversies, they do not have to worry about
political controversies and the effect of the controversies such as instant
dismissals.
3.
Detachment ensures that the civil servants
give service to a government of any party or complexion; they can serve any
government that comes to power.
Autonomy means that civil servants in the British
Tradition had secured tenure of employment and because their tenure of
employment was secured they were secure and could work independently of
external influence. The British Tradition operated on the basis of the
doctrine of political responsibility. This doctrine has contributed
greatly to the achievements of the British Civil Service and the doctrine of
political responsibility is the doctrine whereby British Ministers are
answerable to parliament for what is done or what happens in their ministries
and departments, e.g. in the Ministry of labour the minister would be
answerable to everything that happens in that ministry. A minister takes
responsibility for the affairs and the civil servants working in his ministry
and they are not allowed to blame any faults on the officials. If any
official does anything wrong in their ministry the minister is responsible and
thus has to ensure that officials in his ministry work efficiently.
These factors have enabled the British Civil Service
to be very efficient and has improved the quality of service provided to the
people and generally to the development of that country.
In Kenya what do we have in requirement of
.........................................................
The Kenyan situation
In Kenya the particular historical context of the
growth of the civil service did not allow for all of the attributes that are
found in the British Civil Service. In contrast to the White Hall Model,
with its emphasis on neutrality and autonomy, when the colonial administration
introduced the idea of the civil service, it vested the whole civil service
with both the powers of policy making and powers of policy
implementation. This was a breach of rule number one, the person who
makes policy cannot be incharge of implementation but in Kenya this is what
happened. There was failure to maintain the strict separation between
policy makers and implementers as in the British Tradition.
The senior Civil Servants were the governor and his
appointed provincial commissioners and district commissioners. In this
position, the civil servants were making policies and at the same time they
took part in the implementation of those policies.
The demand for law and order necessitated the growth
of a large provincial administration manned by civil servants. They also
exercised relatively unfettered degree of discretion unlike the civil servants
in the British Tradition, the British ones worked under a specific code
of regulation but in Kenya they had unfettered degree of discretion. This
went on until Kenya approached independence. Some gradual changes took
place between 1960 and 1963. towards independence, the colonial
administration made changes which included changes made in the appointment of
civil servants. One of the changes was that he civil service was no
longer going to take part in policy making and their functions were limited in
policy making.
Their discretionary powers which were until then
unrestricted, and wide were taken away. The Constitution was amended and
by this amendment the civil service was placed under supervision of an
independent body which was also created by the Constitution and this was the
Public Service Commission.
By this constitutional amendment, powers over the
appointment of new civil servants was given to the newly created Public Service
Commission, before this time, the civil servants were appointed by the
Governor.
The public service commission was given power to
exercise disciplinary control over persons appointed to the public
service. For this purpose a detailed government code of regulation was
created on the basis of which the public service commission exercised control
over civil servants. This code of regulations made certain provisions,
ie. It required maintenance of good conduct. The code of regulations also
formed part of the terms of employment of civil servants. It specifically
proscribed engagement in political activities by civil servants. It
prohibited civil servants from presenting themselves as candidates for
political offices unless they had resigned from the civil service.
Civil Servants were also prohibited from joining any
political associations or parties because it was considered that such
associations were not consistent with their duties and obligations as public
servants because they were required to implement governmental policy without
any bias and without partiality regardless of any political views that they may
hold.
In this code people in the higher ranks like the
controller general were totally barred from participating in the political
activities or political party matters.
In this Constitution, the tenure of Civil Servants was
secured to make Civil Servants discharged their functions independently and
efficiently. A civil servant could not be discharged from service unless
they did matters which warranted their dismissal as stipulated in their code of
regulations. Inefficiency would be one of the grounds or engaging in political
activities would be grounds for dismissal. Misconduct was another ground
of regulations.
This secured tenure meant that it was not easy to
dismiss a civil servant. No civil servant could be dismissed unless and
until the matter had been referred to an independent tribunal and then that
particular civil servant would be given a chance to be present and to be
heard. With such a civil service, appointment by public service
commission on the basis of qualified credentials would be expected to function
efficiently.
DEVELOPMENTS IN
THE CIVIL SERVICE SINCE INDEPENDENCE
The situation remained until 1964 when the country
attained independent status and shortly after independence, firstly it was felt
that in this country it was advisable to have a neutral and independent civil
service.
Several constitutional amendements were made whose
overall effect was to place the ‘civil service squarely under the control of
the President. These were the changes
1.
On attainment of republican status in
1964, members of the public service commission were now to be appointed by the
president at his own discretion. Previously they were appointed by the
governor general acting on the advise of the Judicial Service Commission.
2.
Whereas the public service commission was
originally required to operate independently of the executive, all of the officers
appointed by the executive, now the President could give authority to the
Public Service Commission to delegate any one or more of its functions to
one member. These amendments also affected the position of the Attorney
General, The Controller General, Auditor General and Permanent Secretary, these
powers were meant to give the president unfettered discretion in relation to
this offices.
In 1966 other amendments enhanced the position of the
president in relation to the public service. the amendment gave powers to
the president of constituting and abolishing offices for the Republic of Kenya
and of making appointments to any such offices in addition he had the power to
terminate any such appointments at his own discretion.
The Constitution further decided that any person who
holds office shall hold office at the pleasure of the President. Section
24 and 25 of the Constitution.
The effect of taking away the power of appointment and
termination of civil services from the public service commission and taking our
the tenure of the civil servants.
The effects were
1.
It has been observed that the effect of
these changes was one that it relegated the position of Public Service
Commission to a limited auxiliary role making it merely a technical department
of the Executive;
2.
With respect of tenure of Civil Servants,
the tenure no longer depends on the observance of the code of regulations, it
no longer depends on their performance or reputation but on the pleasure of the
president. Since the president could abolish offices at his own
discretion,
3.
it follows that he idea of protecting
offices by vesting their control in an independent body is no longer
valid.
4.
Further the president became or has become
in theory the employer of all civil servants and he can terminate their
services at will.
5.
Because of this the constitutional
mechanism that was intended to insulate public officers from the vagaries of
political will was dismantled by these amendments.
6.
The Public Service Commission lost
independent Constitutional status and these amendments created conflicts in
constitutional provisions.
Look at Mwangi Stephen Mureithi V. Attorney General
Administrative Law & Agencies 4
DUTIES OF THE TREASURER
17.
He is the chief financial officer;
18.
He is he financial adviser of the local
authority to which he has been appointed by the local government;
19.
He is charged with general
responsibilities for all matters of finance and accounts of the local
authority;
20.
He is the paymaster, he is in charged of
salaries payments, services rendered etc.
21.
He is the Chief Accountant for Local
Authority
22.
He is the collector of funds of the local
authority e.g. rates and rents;
23.
He is responsible for the organisation of
the financial department of the local authority;
24.
He is responsible for the maintenance of
the Local Authorities accounting systems;
25.
He is responsible for the supervision of
financial records;
26.
He is responsible for the effecting of
insurance for all departments of local authority;
27.
Responsible for prescribing account
procedures for the local authority;
28.
Responsible for investments of all monies
not immediately required by the local authority;
29.
Responsible for management of all funds of
the local authority and in this respect if there any instructions from the
finance committee;
30.
He has a personal responsibility to
disallow any item of accounts which is contrary to law;
31.
He has the duty to levy surcharge
(penalty) on anybody who incurs any expenditure contrary to law;
Mwangi & Another V. Tusker
The case illustrates that the treasurer
has the responsibility to levy a surcharge on anybody who incurs any
expenditure contrary to the law. The case deals with the Tender Committee
of Murang’a County Council. The Tender Committee was considering tenders
to supply the county council with gasoline. The tenders were received
from various companies and the law requires that if tenders are to be
considered in a particular manner and the Local Council is obliged to contract
the company that quotes the least amount. Here they awarded the tender
that did not quote the least amount and they came to find out that Mwangi and
others who company had tendered was a member of the committee and was therefore
prohibited from sitting at that meeting. They sat there and influenced
the decision of the tender committee.
They had caused Muranga country council to
spend more on supply of diesel than they would have if they had awarded the
company that had quoted the least amount. They were surcharged to pay the
difference between he least amount quoted and the amount at which the contract
was awarded to their company. Here the treasurer was exercising his
power and duty to levy a surcharge.
The other mistake that they made was
Mwangi and the others sitting on a matter in which they had a pecuniary
interest.
Note: IN
cases where surcharges should be imposed, if the treasurer fails to levy the
surcharge, he himself should be surcharged.
32.
The treasurer has the responsibility
should he disagree with the council over any expenditure which he feels is
contrary to law, then if the Council goes ahead to approve the expenditure, the
treasurer must show that the expenditure is contrary to his advise. He
must similarly indicate in the Minutes that the expenditure was approved
contrary to his advise.
POWERS OF THE TREASURER:
Section 130 of LGA AND Part II Third
Schedule.
Attorney General V. Duwinton
This is an English Case, this is a case
concerning borrowing powers of the local authority. Local Authorities have
statutory borrowing powers but there are statutory limits as to the amount
local authorities can borrow. In this case, the local authority in
question, A borough which was governed by the Municipal Corporations Act had by
1903 March exhausted its exhausted its borrowing powers. After exhausting
the borrowing powers, the Local Authority proceeded to take overdrafts from the
bank. They took an overdraft that was far in excess of the amount they
were allowed to borrow and as usual the bank started charging interest on the
overdraft. The treasurer had been admitted to open an account for the
local authority in his name and this is the account with the overdraft.
First of all the local authority had exceeded its borrowing powers and
authorised payments on the interests on overdraft. The treasurer decided
to take money in other accounts belonging to the local authority to upset some
of the interest in the account made in his name. One of the members
noticed what was going on and decided it was illegal and notified the Attorney
General requesting him to sue on the behalf of the council. While this
was going on and before the suit was filed. The treasurer is a public
official and he was sued in his capacity.
The court ruled that monies that had been
borrowed in excess of the borrowing powers had been borrowed illegally and the
interest was also illegal and that the AG and members of the Local Authority
who had requested him to bring the suit were entitled to an injunction to
restrain the treasurer from making further payments of interest out of the
Burrow funds.
The court also held that the Borough
accounts in respect of the interests i.e. the accounts maintained in the name
of the Treasurer was going to be impeached by the court. The court held
that the Treasurer was not merely a servant of the council but that as
custodian of the Borough funds, he owed a duty and stood in a fiduciary
position to the members of the Local Authority and could not plead the orders
of the council for an unlawful act. The treasurer could not claim that
the local authority had approved the excess borrowing.
The court held that the overdraft and
payment of interests were illegal because the borough had exceeded its
borrowing powers. It also held that the fact that the defendant’s
accounts maintained by the treasurer had been audited and passed was no bar to
the action. The court also held that payments of charges of interest on
overdraft were illegal, beyond the powers of the borough and therefore a breach
of trust. The court also stated that the Borough Treasurer is a statutory
officer with statutory duties and not merely a servant of the council but the
custodian of the Borough Funds which are Trust Funds and must not part with
them except on proper statutory authority.
DUTIES OF THE ENGINEER:
2.
The Engineer has the general
responsibility for engineering works of the Local Authority; The only exception
is where a local authority has made separate contractual arrangements for the
engineering works; some of the engineering works is maintenances and repair of
roads, drains, street and bridges for which the local authority is
responsible. These duties are the services rendered to the public. Note
Section 132 of Local Government Act
DUTIES OF MEDICAL OFFICER OF HEALTH:
The duties are contained in the Local
Government Act and in addition to the LGA there is the public health Act which
also governs the duties of the Medical Officer of Health of Municipalities.
4.
The Medical Officer of Health is the Chief
Medical Adviser for the Local Authority to which he is appointed.
5.
Responsible for all matters relating to
health for which the local authority is responsible. Section 131 of LGA
and relevant provisions of Public Health Act.
6.
On matters concerning the appointment of
the medical officer of health for the local authority, the Minister for Health
must be consulted.
The functions of the councillors appear
more like policy making functions. But the functions of the officials
i.e. Town Clerk, Engineer Treasure are more like implementing functions.
They will implement the policies that are passed by the councillors. For
the smooth running of the functions of council the policy decisions are to be
made jointly i.e. decisions on what the local authority does is to be made
jointly S. 26(a) prohibits any individual member of local authority to give
individual instructions on what is to be done.
There are a few statutory
restrictions.
5.
For the Town Clerk the statutes prohibits
him/her from engaging in private legal practice S. 138;
6.
Restriction regarding disclosure of
interest, if they have a personal interest they are mandated to declare their
personal interest in for example in contracts;
7.
They are prohibited from exacting monies
and fees S. 137 (2) of the Local Government Act;
8.
The officials are accountable Section 136
RIGHTS:
The officials generally have a right to
attend meetings of the committees and sub-committees.
How are the joint decisions
made?
MACHINERY OF LOCAL GOVERNMENT:
The machinery is the means by which local
authorities accomplish their duties and functions. For everything i.e.
all duties and functions decisions have to be made and they have to be made
jointly.
What then is the means or the machinery by
which those joint decisions are made?
THE MEETING SYSTEM
Meeting is one of the means by which local
authorities decisions are made. the statute provides for both annual and
ordinary meetings. Section 74. authorizes local authorities to hold
annual meetings and at least 3 other general meetings for the transaction of
general business.
9.
The number one thing is that the general
business may be the appointment of the chairman of a committee e.g. a finance
committee;
10.
another general business maybe the
authorisation of sealing of documents e.g. the Council could be buying property
and transfer documents have been prepared, they sit down and decide;
11.
Appointment of committee members is
something that is done at the annual general meeting or the other ordinary
meetings
12.
Approval of spending;
13.
To approve local authorities activities;
14.
To consider purchase of land and of course
other properties;
15.
To consider the disposal of land;
16.
To consider the granting of licences to
occupy council’s land;
Second Schedule Rule 12 provides that
every question and every matter shall be determined by a show of hands and
decided upon by majority votes of members present, unless provided otherwise by
written law.
Section 75 in addition it provides for
special meetings.
Rand V. Odroyd [1959] 1 QB 204
In addition to the annual and general
meetings, the statutes provides for special meetings provided for under Section
75 and in this case the statute provides that a mayor in case of a municipality
or a chairman in case of county council are to hold special meetings from time
to time upon receipt of requests in writing for a meeting.
Meetings may be called for example to
consider motions submitted by councillors on matters affecting their
electorate. Special meetings may also be held to authorise the signing of
orders for payments where there is no finance committee. Look at Second
Schedule
In addition, public meetings may be held
and as the name suggests such meetings may be held with inhabitants of a
particular local authority area to consider matters affecting them which are of
public importance. Section 86 of the Local Government Act. Again
the Mayor will be responsible in case of a municipality and a chairman in case
of a county council.
There are certain procedural requirements
for meetings the most important one being that of notice. Section 76 OF
LGA requires that Notice of Meetings be issued indicating the time, the place
and the matter to be discussed at the meeting or the business to be transacted
at the meeting. Such notices are required to be published at the
notice-boards of the local authorities.
The notice must also be served on the Town
Clerk for Local Authorities and for other local authorities on the
chairman. It must also be served on every member of the Local Authority.
NOTICES:
The notices are to be served on every
other person as the minister may specify. Please note that the time frame
for serving the notices is specified. Check it up.
One of the things required in meetings is
the record of attendance.
3.
They must record attendance;
4.
The Minutes of the Proceedings of every
meeting must be kept stating among other things the matter considered and the
decision. In addition to minuting the matters discussed, the minutes must
be entered in books kept for that purpose. Before they are kept in the
books they must be confirmed at the same meeting. This is for evidence
purposes.
REQUIREMENT FOR DISCLOSURE:
Section 137 requires that councillors or
any other officer of the Local Authority who has a pecuniary interest direct or
indirect in that matter and the matter may be contract, bargains or an
arrangement that the council proposes to consider.
The councillors must as soon as is
practicable give notice that they have pecuniary interest in a matter to be
considered as soon as is practicable.
The requirement in addition to disclosing
must not take part in the discussion of the matter. If you must sit at
the meeting then you must not take vote in any part of the matter. If you
fail to disclose your interest, you are guilty and are liable to a fine
of 2000/- or two months imprisonment or both and you can be surcharged for
any loss occasioned to the council as a result of an award for a contract
in which you have an interest. The interest of ones spouse is deemed to
be the interest of other spouse provided the two are living together.
Besides in the United Kingdom, it has resulted in a councillor losing his seat.
Brown V. DPP (1956) 2 QB 369
In this case we see an illustration of the
meeting as one of the machinery for local authorities. It also
illustrates that voting is the procedure at these meetings. A meeting
was held by a local authority and members took part in that meeting that was going
to consider rent increase for the council houses that they were occupying so
they had pecuniary interest and should not have sat. they were charged
under Section 76(1) of Local Government Act for participating in a local
authority for participating in a local authority and voting at the meeting
which was held to consider a matter under which they had a pecuniary
interest. The interest was that they were tenants of the Local Authority
and the meeting was about rent increases. Brown sued the DPP saying the
decision went against them and that they did not benefit. The court held:
“Regardless of whether or not the
decision on additional rent payment were in their favour, they had contravened
the law by participating in the meeting and therefore their being fined for the
offence was upheld.”
Parliament has not said that they may vote
against their interest but not for their interests but that they may not vote
in a matter in which they may have an interest. In other words they are
prohibited form subjecting themselves against the law. Brown and his
friend also lost their seats as councillors.
The local government authorises the
minister for Local Government to allow councillors who have all interest in the
matter to sit and participate if he finds that the number of those with an
interest is greater than the number of those without an interest, he may allow
them to sit.
The Minister must be notified and their
interest declared. The Minister has to conduct his own investigation and
the Minister is to specifically remove the disability of members with an
interest, barring them from sitting.
4.
Disclose their interest;
5.
Notify the Minister;
6.
If the Minister finds that the number with
an interest is greater then the number without an interest, the minister may
give his consent to sit or vote.
Section 252 - Corruption
Section 255 – Dissolution
Section 254 – Winding up.
ADMINISTRATIVE LAW Lesson 9
Control of Local
Authorities by Central Government
Relationship between Central govt and local
authorities
We have a central government that has created a local
government, the local government is there to enable the local government to
provide services at the local level. The relationship is that the local
govt exercises powers that have been delegated by the central
govt.
The local govt is a delegate of the central
govt. The relationship is that between central and local government can
be described as a partnership when it comes to providing services and
performance in duties. In this partnership the local government is
supposed to administer local areas, provide assistance and exercise control in
local areas through local authorities, they administer local areas
through the local govt the central govt administers the country as a whole.
Local govt thro local authorities administers local areas. The
functions of the local govt through local authorities is supposed to complement
that of the central government. The local govt is a delegate of powers by
the central government. The central govt exercises controls, checks and
balances over local authorities. These checks and balances are exercised
in two ways.
3.
Formal Controls;
4.
Informal Controls.
Informal Controls which are exercised in the political
arena where you have politics influencing the person who becomes head of the
local government. It influences the manner in which manner power is given
to the Minister. It also influences the manner in which the Minister
exercises the power. Politics will also influence the exercise of power
by the Minister.
FORMAL CONTROLS:
1. Ministerial
Controls
These are controls exercised primarily through the
Local Government Act. The Local Government Act makes provisions for
checks and balances i.e. it provides for the Minister’s consent for a number of
things that local authorities that require the Minister’s consent. S. 143
states that if the local authorities want to purchase land or dispose any land,
they must seek consent of the Minister for local government etc. this
requirement for consent is one way that the Central govt exercises control over
the local authorities.
2. Financial
Controls
g.
Note that auditing is one of the ways that
control is exercised over local authorities by the central govt. S. 231.
h.
Requirement of preparation submissions and
approval of estimates of expenditure and income.
i.
Extra ordinary inspection of local
authorities, the Minister has power to conduct an extra ordinary inspection of
the local authorities accounts if he suspects that something is wrong or if
after submitting of the auditor general’s report he thinks that something is
wrong. There is a procedure provided by LGA the Minister first of all
must give notice to the auditor general of his intention to conduct an extra
ordinary inspection. The Minister is also authorised to appoint public
officials to conduct the inspections. These public officials have powers
one of which is that they can disallow any item of account that is contrary to
law or contrary to the powers of the Minister. They also have power to
surcharge any local authority official who is found to have to have incurred an
illegal expenditure.
j.
The budget itself requires approval by the
Minister which approval is part of the exercise of controls.
k.
The Minister had the power to determine
how much money is allocated to the local authority from the Transfer of Funds
Fund. (a special fund established by central govt) the minister will
consider whether in previous years a local authority has been able to meet the
conditions of the percentage of the promotional grants. The percentage of
promotional grants is the grant given by central govt to local authorities on
condition that they can raise the balance of what they require to meet their
targets.
l.
Under S. 249 LGA the Minister for Local
govt is authorised to reduce or to withdraw govt grants from the local authority
if
i.it appears to him that a local authority
is not utilising the funds well, or
ii.if it appears to the
Minister that the administration or the affairs of that local authority are
wasteful or inefficient;
iii.if the local authority
has failed to act in conformity with the LGA; there are several ways that
the local authority fail to act in conformity with the LGA.
CONTROLS THROUGH APPOINTMENT OF NON-POLITICAL OFFICERS
1.
Town Clerk
2.
Treasurer
3.
City Engineer
The central government hires people directly
answerable to it to work for the local authorities.
CONTROLS THROUGH THE MAKING OF REGULATIONS:
Under S. 271 of LGA the Minister for Local Government
is empowered to make rules for the better carrying out of the purposes and the
provisions of the Act. In the exercise of this power the Minister has
made rules which are known as subsidiary legislation or subsidiary regulations
which appear at the back of the LGA. The power to make these rules is the
power of the Minister for Local Government. The Minister issues rules
through Legal Notices. Through the making of these regulations the
Minister is exercising authority as they make provisions for the carrying out
of the functions and purposes of the Act. Sometimes they even cite the
specific sections of the Act under which the regulation has been made.
POWERS OVER DEFAULTING LOCAL AUTHORITIES
Powers over defaulting local authorities are covered
under Part 19 of LGA
It begins by saying that where the Minister is of the
opinion that the local authority is failing to perform the duties imposed on it
by the Local Government Act, he is given power to do a number of things
e.
He can direct that a local authority
performs its duties and if a local authority fails to comply, the Minister is
required to perform the duties this local authority is failing to perform and
then recover any expenses from that local authority’s account;
f.
He may require a defaulting local
authority to submit proposals on how it intends to exercise the powers
conferred upon it in the performances of its duties; if a local authority
submits an acceptable proposal to the Minister, the Minister may order that
local authority to proceed to exercise the power it had been failing to
exercise which will include any duties they may be failing to exercise in the
manner prescribed in the proposal. If they fail to submit the proposal,
then the Minister is required to exercise any powers a local authority fails to
exercise in such manner as he thinks fit and again he is authorised to recover
any expense he incurs from the local authority. Please note that instead
of doing (a) or (b) the
g.
Minister can remove members of the local
authority and instead appoint a commission to act in its place. Section
251
h.
The Minister may also wind up the local
authority (to the extent of even dissolving them); there are certain procedures
to be followed before powers to wind up are exercised. Certain conditions
must be present.
i.A period of 3 months or more must have
elapsed between one meeting of a municipal council and the next; in case of
other local authorities a period of 6 months or more must have elapsed since
the last meeting;
ii.The local authority in
question must be found to be unlikely to meet its financial commitments i.e. if
its in so much debt that it is not likely that the source of income can upset
the debt the minister can have it wound up;
iii.The Minister must find
that in his opinion the local authority is failing to exercise its functions in
such manner as would best serve the interests of the inhabitants of its area of
jurisdiction;
Before winding up the local authorities, the Minister
must hold a public inquiry under the Commissioner of Inquiry Cap 102 and in
this public inquiry members of that local authority must be given a chance to
be heard i.e. the members of the local authority cannot be removed without
being given a chance to defend themselves. The commission will constitute
3 people one of them being the chairman and the statutes provide that in case a
commission is appointed, the appointed commission is to last a period of 2
years unless the Minister has good reasons to extent their term. While
the commission lasts, it is entitled to exercise all powers and duties accorded
that particular authority under the LGA. Within those two years the
Minister must take all reasonable steps to reconstitute the Local Authority and
to make it function properly. Section 246 – 255.
Please note that the 3 factors earlier mentioned must
be present and then the Minister will decide to wound up the local
authority. there are certain procedures that must be followed
4.
He must issue a notice of intention to
wind up a local authority which must be published in the Kenya Gazette and in
at least one newspaper circulating in that area;
5.
He must also lay a draft order for winding
up before parliament; this draft is to be laid before parliament within
14 days of the notice.
6.
Please note that the reason for tabling
the draft notice in Parliament is that parliament must approve the winding up
of the local authority, it must approve the order laid before it by the
Minister. If parliament approves, from the date of that order, the local
authority then exists only for purposes of winding up.
At the end of winding up process the Minister is
supposed to publish a notice in the Kenya Gazette and he must specifically
state the date of dissolution and from that date given in the Gazette the local
authority ceases to exist. In the place of the dissolved local authority,
the Minister can establish one or more local authorities.
THE CIVIL SERVICE
Read Constitutional Development in Kenya,
Institutional Adaptation and Social Change by J B Ojwang (1999) Pages 81-107
ADMINISTRATIVE LAW Lesson 10
Definition of the Civil Service:
The Civil Service can be defined as the core of
officials to which is entrusted the implementation of the policy decisions of
the government. From this definition is clear that the function of the
civil service is to implement government policy.
The civil service falls under the Executive arm of the
government. It is in charge of implementation of government policy.
Civil servants are those servants of the crown other
than holders of political or judicial offices who are employed in a civil
capacity and whose remuneration is paid wholly or directly out of monies voted
by parliament. Excluded from this definition are
6.
Armed Forces Employees;
7.
Policemen
8.
Employees of public corporations
9.
Employees of local authorities except Town
Clerk, Treasurer and City Engineer
10.
Employees of Nationalised Industries.
We are concerned with the functions of the government
to serving the public. Administrative law is concerned about the
functions of public officers. We want to understand what the law says
about the functions, employment, accountability and efficiency of these public
officials in the duties that they have been charged.
ORIGIN OF THE IDEA OF PUBLIC SERVICE
As with other governmental machinery including local
government system, the civil service is one of those public institutions which
was inherited from the British public institutions. Its tenets were
created by the British colonial administration. However since independence
the civil service has changed. New dimensions have been added to it and the new
changes have been made to meet the circumstances of the people of Kenya.
List of Civil Servants
9.
Attorney General; and all who work in the
AG’s Chamberrs;
10.
Controller General
11.
Auditor General
12.
Permanent Secretaries
13.
Secretary to the Civil
14.
Commissioner of Police
15.
Ambassadors and High Commissioners
16.
Public Officials in various government
ministries
Regarding their functions their primary role is to
implement policies that have been formulated by the government. These
policies are formulated especially by the cabinet. In their
implementation of government policies they have duties that they perform for
the public.
DUTIES & SERVICES
5.
Issuance of Licences, i.e. trade licences,
driving licences, marriage licences, liquor licences;
6.
Collection of Taxes;
7.
Conduct audits of public accounts
8.
Represent the government abroad, the
functions are many.
In the exercise of these functions they provide
services in the interest of public and exercise controls in the interests of
the public.
APPOINTMENT TO THE CIVIL SERVICE:
The person appointed to the civil service determines
whether or not services will be rendered to the public, they also determine
whether services to the public will be delivered efficiently. It also
determines whether they will stay in employment.
BRITISH WHITE HALL TRADITION
Tradition in respect of British Civil Service from which
we derive our own.
Key factors
As the primary agency for policy implementation and
given the crucial role of policy implementation, the Civil Service in the
White Hall tradition required an uncompromised degree of efficiency, high
competence (capacity to form the functions with which an individual has been
charged), loyalty to the government, acceptance of governmental
authority. please note that they were also conscious to appoint people
who had experience rather than patronage, patronage was not the determining
factor. They also appointed people who had technical competence vis a vis
tribal affiliation. With these qualities the civil service in the British
they were able to efficiently implement the functions that the government had made.
to these were added two factors
3.
Autonomy
4.
Neutrality;
Neutrality referred to the requirement that a civil
servant be detached from party politics and for this reason any person who was
and is appointed to the British Civil Service is prohibited from engaging in
party politics, if they engage in party politics they must resign. This
restriction ensures
4.
British Civil Servants are detached from
party politics so that they are given or can develop a high degree of
self-effacement; they have self confidence to work efficiently no party what
political party is in power.
5.
It ensured that civil servants are
insulated from political controversies, they do not have to worry about
political controversies and the effect of the controversies such as instant
dismissals.
6.
Detachment ensures that the civil servants
give service to a government of any party or complexion, they can serve
any government that comes to power.
Autonomy means that civil servants in the British
Tradition had secured tenure of employment and because their tenure of
employment was secured they were secure and could work independently of
external influence. The British Tradition operated on the basis of the
doctrine of political responsibility. This doctrine has contributed
greatly to the achievements of the British Civil Service and the doctrine of political
responsibility is the doctrine whereby British Ministers are answerable to
parliament for what is done or what happens in their ministries and
departments, e.g. in the Ministry of labour the minister would be answerable to
everything that happens in that ministry. A minister takes responsibility
for the affairs and the civil servants working in his ministry and they are not
allowed to blame any faults on the officials. If any official does
anything wrong in their ministry the minister is responsible and thus has to
ensure that officials in his ministry work efficiently.
These factors have enabled the British Civil Service
to be very efficient and has improved the quality of service provided to the
people and generally to the development of that country.
In Kenya what do we have in requirement of
The Kenyan situation
In Kenya the particular historical context of the
growth of the civil service did not allow for all of the attributes that are
found in the British Civil Service. In contrast to the White Hall Model,
with its emphasis on neutrality and autonomy, when the colonial administration
introduced the idea of the civil service, it vested the whole civil service
with both the powers of policy making and powers of policy
implementation. This was a breach of rule number one, the person who
makes policy cannot be incharge of implementation but in Kenya this is what
happened. There was failure to maintain the strict separation between
policy makers and implementers as in the British Tradition.
The senior Civil Servants were the governor and his
appointed provincial commissioners and district commissioners. In this
position, the civil servants were making policies and at the same time they
took part in the implementation of those policies.
The demand for law and order necessitated the growth
of a large provincial administration manned by civil servants. They also
exercised relatively unfettered degree of discretion unlike the civil servants
in the British Tradition, the British ones worked under a specific code
of regulation but in Kenya they had unfettered degree of discretion. This
went on until Kenya approached independence. Some gradual changes took
place between 1960 and 1963. towards independence, the colonial
administration made changes which included changes made in the appointment of civil
servants. One of the changes was that he civil service was no longer
going to take part in policy making and their functions were limited in policy
making.
Their discretionary powers which were until then
unrestricted, and wide were taken away. The Constitution was amended and
by this amendment the civil service was placed under supervision of an
independent body which was also created by the Constitution and this was the
Public Service Commission.
By this constitutional amendment, powers over the
appointment of new civil servants was given to the newly created Public Service
Commission, before this time, the civil servants were appointed by the
Governor. T
The public service commission was given power to
exercise disciplinary control over persons appointed to the public
service. For this purpose a detailed government code of regulation was
created on the basis of which the public service commission exercised control
over civil servants. This code of regulations made certain provisions,
ie. It required maintenance of good conduct. The code of regulations also
formed part of the terms of employment of civil servants. It specifically
proscribed engagement in political activities by civil servants. It
prohibited civil servants from presenting themselves as candidates for
political offices unless they had resigned from the civil service.
Civil Servants were also prohibited from joining any
political associations or parties because it was considered that such
associations were not consistent with their duties and obligations as public
servants because they were required to implement governmental policy without
any bias and without partiality regardless of any political views that they may
hold.
In this code people in the higher ranks like the
controller general were totally barred from participating in the political
activities or political party matters.
In this Constitution, the tenure of Civil Servants was
secured to make Civil Servants discharged their functions independently and
efficiently. A civil servant could not be discharged from service unless
they did matters which warranted their dismissal as stipulated in their code of
regulations. Inefficiency would be one of the grounds or engaging in political
activities would be grounds for dismissal. Misconduct was another ground
of regulations.
This secured tenure meant that it was not easy to
dismiss a civil servant. No civil servant could be dismissed unless and
until the matter had been referred to an independent tribunal and then that
particular civil servant would be given a chance to be present and to be
heard. With such a civil service, appointment by public service
commission on the basis of qualified credentials would be expected to function
efficiently.
DEVELOPMENTS IN
THE CIVIL SERVICE SINCE INDEPENDENCE
The situation remained until 1964 when the country
attained independent status and shortly after independence, firstly it was felt
that in this country it was advisable to have a neutral and independent civil
service.
Several constitutional amendements were made whose
overall effect was to place the ‘civil service squarely under the control of
the President. These were the changes
3.
On attainment of republican status in
1964, members of the public service commission were now to be appointed by the
president at his own discretion. Previously they were appointed by the
governor general acting on the advise of the Judicial Service Commission.
4.
Whereas the public service commission was
originally required to operate independently of the executive, all of the
officers appointed by the executive, now the President could give authority to
the Public Service Commission to delegate any one or more of its
functions to one member. These amendments also affected the position of
the Attorney General, The Controller General, Auditor General and Permanent
Secretary, these powers were meant to give the president unfettered discretion
in relation to this offices.
In 1966 other amendments enhanced the position of the
president in relation to the public service. the amendment gave powers to
the president of constituting and abolishing offices for the Republic of Kenya
and of making appointments to any such offices in addition he had the power to
terminate any such appointments at his own discretion.
The Constitution further decided that any person who
holds office shall hold office at the pleasure of the President. Section
24 and 25 of the Constitution.
The effect of taking away the power of appointment and
termination of civil services from the public service commission and taking our
the tenure of the civil servants.
The effects were
7.
It has been observed that the effect of
these changes was one that it relegated the position of Public Service
Commission to a limited auxiliary role making it merely a technical department
of the Executive;
8.
With respect of tenure of Civil Servants,
the tenure no longer depends on the observance of the code of regulations, it
no longer depends on their performance or reputation but on the pleasure of the
president. Since the president could abolish offices at his own
discretion,
9.
it follows that he idea of protecting
offices by vesting their control in an independent body is no longer
valid.
10.
Further the president became or has become
in theory the employer of all civil servants and he can terminate their
services at will.
11.
Because of this the constitutional
mechanism that was intended to insulate public officers from the vagaries of
political will was dismantled by these amendments.
12.
The Public Service Commission lost
independent Constitutional status and these amendments created conflicts in
constitutional provisions.
Look at Mwangi Stephen Mureithi V. Attorney General
Credits: Dr. Dwasi J.
+++VERSION II NOTES
HISTORY, EVOLUTION, NATURE AND TRENDS IN ADMINISTRATIVE LAW
Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction.
Civil law countries often have specialized courts, administrative courts, which review these decisions. The plurality of administrative decisions contested in administrative courts are related to taxation
Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review that limit the reviewability of decisions made by administrative law bodies. Often these procedures are coupled with legislation or other common law doctrines that establish standards for proper rulemaking. Administrative law may also apply to review of decisions of so-called semi-public bodies, such as non-profit corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of members of a particular group or entity.
While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process (United States) or fundamental justice (Canada). Judicial review of administrative decisions is different from an administrative appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in an administrative appeal the correctness of the decision itself will be examined, usually by a higher body in the agency. This difference is vital in appreciating administrative law in common law countries.
Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals (as opposed to statutes adopted through the legislative process or regulations issued by the executive branch).
A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a "matter of first impression"), judges have the authority and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts.
In practice, common law systems are considerably more complicated than the simplified system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However, stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.
A government or state agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency. There is a notable variety of agency types. Although usage differs, a government agency is normally distinct both from a department or ministry, and other types of public body established by government. The functions of an agency are normally executive in character, since different types of organization (such as commissions) are normally used for advisory functions, but this distinction is often blurred in practice.
A government agency may be established by either a national government or a state government within a federal system. (The term is not normally used for an organization created by the powers of a local government body). Agencies can be established by legislation or by executive powers. The autonomy, independence and accountability of government agencies also vary widely.
Administrative law is an area of law that you will need to rely on if you wish to challenge a decision or action of a government official, department or authority. Administrative law may also apply when the person whose decision you wish to challenge is not a government officer but is exercising "public power" (e.g. a power granted to a person by a statute). Decisions or actions governed by administrative law are called "administrative decisions".
Administrative law usually only enables decisions (or actions) that are "administrative" in nature to be challenged. This means that there are other types of "decisions" made in government but not governed by administrative law. The following are examples of decisions that may not be governed by administrative law:
- legislative "decisions" (e.g. the making of laws; however, delegated legislation may be reviewable on a similar basis to administrative decisions);
- broad policy decisions (e.g. deciding to reduce a grants program);
- employment decisions (e.g. decisions to hire an employee; however, administrative law may apply to public service misconduct decisions);
- criminal cases (e.g. decisions to prosecute; however, it does apply to investigations); and
- contract decisions (e.g. decisions by government to enter into a contract; however, tender processes may be subject to some administrative law principles).
Examples of administrative decisions that you may be able to challenge under administrative law principles and mechanisms include:
- a decision by a Council to compulsorily acquire land;
- a decision by a Minister not to grant a visa;
- a decision to impose conditions on a licence.
Administrative decisions are usually made by government officers, but may also be made by people who are not government officers. If the decision involves "statutory power" then it is likely to be regulated by administrative law.
a) EXECUTIVE CONTROL OF ADMINISTRATIVE AGENCIES
ü Presidency
ü Cabinet
ü Public Service
I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the state. The nature, and ends of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free Republican governments, that no man should be compelled to do what the laws do not require, nor to refrain from acts which the laws permit. There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof the government was established. An Act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. A law that punishes a citizen for an innocent action, or, in other words, for an act, which, when done, was in violation of no existing law; a law that destroys, or impairs, the lawful private contracts of citizens; a law that makes a man a judge in his own cause; or a law that takes property from A and gives it to B. It is against all reason and justice for a people to intrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature and the spirit, of our State Government, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt; or punish innocence as a crime; or violate the right of an antecedent lawful private contract; or the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained, would, in my opinion, be a political heresy altogether inadmissible in our free republican governments. — Opinion of Justice Chase in Calder v. Bull, 3 Dallas 386-389 (1798).
The executive at the top most levels is constituted of a President of the Republic and the Cabinet.
Key functions of the President under the Constitution of Kenya 2010
The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now. — South Carolina v. United States, 199 U.S. 437, 448 (1905).
- Shall be the Head of State & Head of Government of the Republic of Kenya.
- Shall not be a Member of Parliament
- Commander-in-Chief - and will declare war and state emergency upon approval by the National Assembly and Cabinet respectively.
- Head of Government - will yield executive authority and will co-ordinate and supervise all major sections of the executive branch.
- Shall nominate, appoint with prior approval of the national assembly, and dismiss Cabinet Secretaries.
- Preside over Cabinet meetings.
- Shall accent bills into law or refer them back to parliament for further review.
- Shall appoint Judges to the Superior Court recommended to him/her by an independent Judiciary Service Commission.
· Shall appoint Ambassadors/High Commissioners to Kenyan embassies abroad.
· Restricted powers of acting president defined (134) as well as procedure when a president is incapacitated (144) or impeached (145)
· Will be sworn in public (141) two weeks after election results or one week after an election petition verdict by Supreme Court
· Deputy president rules are defined (148) may not be replaced on whim (150) (has to resign or be impeached) and may not serve for more than two terms (148)
·
Cabinet size is defined
(152) as between 14 and 22 cabinet secretaries (152) approved by parliament (no
more 40 minister plus 60 deputy minister governments)
The cabinet :
· Consists of
a) The president
b) The deputy president
c) The Attorney General
d) Not fewer than fourteen and not more than twenty two cabinet secretaries.
A member of the National assembly, supported by at least one quarter of all the members of the Assembly, may propose a motion requiring that resident to dismiss a Cabinet secretary on gross violations of the constitution or any other law, gross misconduct or where there are reasons for believing that the cabinet secretary has committed a crime under national or international law.
Cabinet secretaries are accountable individually, and collectively, to the president for the exercise of their powers and performance of their functions.
The Attorney
General shall promote, protect and uphold the rule of law and defend public
interest. He is the principal legal advisor to the Government and represents
the national Government in court or any legal proceedings which the National
Government is a party other than in criminal proceedings.
State officers:
· Have leadership rules & guidelines set out for them mainly objective service to the public (73) & (75)
· Can’t have bank accounts outside Kenya
· Restrict number of directorships to not more than 2 simultaneous ones
· Can’t be involved in politics
· Person who has been removed from a state office for a violation is not eligible for any others
· State officers shall not have other gainful employment (77)
Authority assigned to a State officer/Public officer is a public trust. It is to be demonstrated by respect for the people, honour to the nation, dignity to the office and public confidence in the integrity of the office. The officers have a responsibility to serve the people, rather than themselves
Principles of leadership and integrity are:
§ Selection on the basis of personal integrity, competence and suitability, or election in free and fair elections.
§ Objectivity and impartiality in decision making, so as to ensure that decisions are not influenced by nepotism, favouritism, other improper motives or corrupt practices.
§
Selfless service based
solely on public interest, demonstrated by;
– honesty in the execution of public duties; and
– the declaration of any personal interest that may conflict with public
duties;
§ Accountability to the public for decisions and actions.
§ Discipline and commitment in service to the people.
Public service is be guided by the following principles and values:
§ High standards of professional ethics.
§ Efficient, effective and economic use of resources.
§ Responsive, prompt, effective, impartial and equitable provision of services.
§ Involvement of the people in the process of policy making.
§ Accountability for administrative acts.
§ Transparency and provision to the public of timely, accurate information.
§ Fair competition and merit as the basis of appointments and promotions.
§
fairness in the
representation of Kenya’s diverse communities and:
– affording adequate and equal opportunities for appointment, training and
advancement, at all levels of the public service of men and women, the members
of all ethnic groups, and persons with disabilities.
To function properly, a public service must be impartial and independent. Officials must not be under political pressure and appointments must not serve party politics.
To insulate the public service from day-to-day politics, a new, independent Public Service Commission (PSC) is responsible for making most appointments in the national public service.
The President can’t establish public service positions without the agreement of the PSC. Counties will be responsible for their own public services but, of course, the principles of public service also apply to them.
Chapter 13 protects public officers like “whistle blowers,” from victimization. So, a public officer may not be fired for reporting corruption. And all disciplinary procedures against public officers must follow the law.
Under article 236, a public officer shall not be-
§ Victimized or discriminated against for having performed the functions of office in accordance with the constitution or any other law,
§ Dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of the law.
b) Parliamentary control of administrative agencies
Article 94 defines the role of parliament by stating that it manifests the diversity of the nation, represents the will of the people, and exercises their sovereignty. Its mandated to protect the constitution and promote democratic governance of the Republic.
No person or body, other than parliament, has the power to make provision having the force of law in Kenya except under authority conferred by the constitution or by legislation.
An act of parliament or legislation of a county, that confers of any state organ, state officer or person the authority to make provision having the force of law in Kenya must specify the purpose and objectives for which the authority is conferred, the limits of the authority, the nature and scope of the law that may be made, and the principles and standards applicable to the law made under the authority.
Article 95(5), the National assembly
§ Reviews the conduct in office of the president, the deputy president and other state officers and initiates the process of removing them from office.
§ Exercises oversight of state organs.
The role of the senate is partly to participate in the oversight of state officers by considering and determining any resolution to remove the President or Deputy President from office in accordance with article 145(removal of the president by impeachment)
c) Commissions Independent offices
Are created by the constitution and other Acts of parliament.
Their objects are to
§ Protect the sovereignty of the people
§ Secure the observance by all State organs of democratic values and principles
§ Promote constitutionalism.
The commissioners and holders of the independent offices are subject to the constitution and the law, are independent and not subject to direction or control by any person or authority.
The commissions include human rights & equality commission, judicial service, land commission, public service, salaries and remuneration, teachers service, national police service, revenue allocation, parliamentary service, independent electoral and boundaries.
The independent offices are the Auditor –General and Controller of budget.
The human rights & equality commission, judicial service, land commission and auditor general all have power to summon witnesses in the course of their investigations (252)
Each commission and each holder of an independent office has the powers necessary for conciliation, mediation and negotiation and may also conduct investigations on its own initiatives or on a complaint made by a member of the public.
d) Public corporations
The President may, by order, establish a state corporation as a body corporate to perform the functions specified in the order.
Other existing pubic corporations are established by Acts of parliament which specifically outline the functions.
RULES OF PROCEDURAL FAIRNESS
The question whether procedural fairness is a freestanding principle of the general law, or an implied statutory constraint on the exercise of administrative and judicial power, apparently remains unresolved. Since raising the issue some 30 years ago, the High Court, and other courts, have either ignored or sidestepped the question ever since: Aronson, Dyer & Groves, Judicial Review of Administrative Action (3rd ed, 2004) pp.382-383. The debate is seen as sterile because, like other doctrines of the common law, the content of procedural fairness is subject to legislative variation. Unless, that is, it reflects some underlying constitutional principle which does not permit legislative interference.
Procedural fairness (also known as ‘natural justice’) requires that a person whose interests are to be affected by a decision (whether adjudicative or administrative) receive a fair and unbiased hearing before the decision is made. Government bodies that fail to comply with the requirements of procedural fairness risk having their decisions declared invalid by a court or tribunal, not because the decision itself was wrong, but because the decision-making process was wrong in some way.
Two basic principles of procedural fairness are the ‘bias rule’ and the ‘hearing rule’. The hearing rule requires a decision-maker to inform a person of the case against them or their interests and give them an opportunity to be heard. The extent of the obligation on the decision-maker to afford procedural fairness under the hearing rule is variable. It will depend on the relevant statutory framework and on what is ‘fair’ in all the circumstances. The more significant the decision is, in terms of its effect on a person’s interests, the greater the care the decision-maker should take to provide that person with an opportunity to be heard.
The concept of a person’s ‘interests’ is broad and includes things such as legal status, business and personal reputation, liberty, confidentiality, livelihood and financial interests. The High Court has held that procedural fairness will be breached where a person has a ‘legitimate expectation’ that a decision-maker will act in a certain way but fails to do so, to the person’s detriment. However, more recent High Court authority has reiterated that the ultimate question remains whether there has been unfairness in all the circumstances of the case, not whether a representation has been departed from or whether an expectation has been disappointed. An expectation created by a decision-maker may affect the practical content of the requirements of fairness, but not every departure from a stated intention necessarily involves unfairness.
Where a decision affects a large group of people or the general public, procedural fairness does not normally require that each person be afforded a hearing. Similarly, political and policy decision-making is unlikely to attract the hearing rule where the circumstances of individual persons are not taken into account.
The requirements for procedural fairness have developed primarily through the common law and it is important to note that a statute can limit the hearing rule expressly or through necessary implication. The common law duty to act fairly in the making of administrative decisions is subject only to the clear manifestation of a contrary legislative intention
A person should be provided with notice of a proposed decision that may adversely affect them. They should also be provided with details of any credible, relevant and significant adverse information which the decision-maker has, and which may affect the decision to be made, and be given an opportunity to respond. This applies to both oral hearings and where decisions are made solely on the basis of written submissions.
Natural Justice, or the elements of procedural fairness
Natural justice or procedural fairness is a set of principles that ensure the following:
· The decision maker informs the appropriate people of the complaint or case against them or their interests;
· The person handling the complaint does not have any personal interest in the outcome of the decision (the ‘bias’ rule);
· The person making the decision has not prejudged the decision;
· There is no reasonable apprehension of bias;
· The subject of a complaint has the right to be heard (the ‘hearing’ rule);
· There is sufficient notice of the decision;
· There is notice of the particulars of the complaint or the issues involved;
· There is sufficient opportunity to comment on any adverse material;
· The person handling the matter acts only on the basis of logically probative evidence (the ‘no evidence’ rule);
· Responsibility to make findings based on fact;
· Findings of fact to be supported by evidence; and
· Capacity to set aside a decision if there is no evidence or other material to justify the making of the decision.
The courts have several times reiterated that the administrative agencies must follow a minimum of fair procedure, while exercising their powers. This fair procedure is called the principles of natural justice.
The principles of natural justice have been developed by the courts, in order to secure fairness in the exercise of the powers by the administrative agencies. The principles of natural justice are the Common Law counterpart of the ‘due process of law’ in the Constitution of the United States. However wide the powers of the state and however extensive discretion they confer, the administrative agencies are always under the obligation to follow a manner that is procedurally fair.
In a case before the United States Supreme Court, a JACKSON J. said: ‘Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied’.
‘The doctrine of natural justice seeks not only to secure justice but also to prevent miscarriage of justice’. The norms of natural justice are based on two ideas:
1. audi alteram partem,- the person, who has to be effected by a decision has a right to be heard; and
2. nemo judex in re sua – the authority deciding the matter should be free from bias.
However the applicability of the principles of natural justice depends upon the facts and circumstances of each case.
In India, the Supreme Court has reiterated that the principles of natural justice are neither rigid nor they can be put in a straight jacket but are flexible. In the case of R. S. Dass v. Union of India , the Supreme Court observed that:
“It is well established that rules of natural justice are not rigid rules, they are flexible and their application depends upon the setting and background of statutory provisions, nature of the right which may be affected and the consequences which may entail, its application depends upon the facts and circumstances of each case”.
The reason for the flexibility of natural justice is that the concept is applied to a wide spectrum of the decision-making bodies.
The principles of natural justice have been developed and followed by the judiciary to protect the right of the public against the arbitrariness of the administrative authorities. Natural Justice implies fairness, reasonableness, equity and equality. According to HEGDE J., the aim of natural justice is to secure justice; to prevent miscarriage of justice and to give protection to the public against the arbitrariness.
Common law- From the medieval era, the English Common Law consists of the principles of natural justice. The rules requiring impartial adjudications and fair hearings can be traced back to the medieval precedents and indeed they were not unknown in the ancient world. In Dr. Bonham's Case (1610), COKE J. held that an Act of the Parliament is void if it makes a person judge in his own cause or was otherwise against common right or reason. Coke then made the following general statement:
“And it appears in our books, that in many cases, the common law will control acts of parliament, and sometimes adjudge them to be utterly void: for when an act of parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such act to be void; and, therefore, in ... Thomas Tregor's case [Judge] Herle said, some statutes are made against law and right, which those who made them perceiving, would not put them in execution…”
But the year 1963 proved to be watershed in the development of concept of natural justice in common law world. With the expansion of the administrative process, the wide abuse of the power of the administrative authorities became evident. In the case of Ridge v. Baldwin, the applicability of natural justice to the quasi-judicial bodies took place. Ridge v. Baldwin is regarded as the Magna Carta of natural justice. The judgment of LORD REID widened the ambit of natural justice.
FAIR HEARING.
The maxim audi alteram partem accentuates the rule of fair hearing. It lays down that no one should be condemned unheard. It is the first principle of the civilised jurisprudence that a person facing the charges must be given an opportunity to be heard, before any decision is taken against him. Hearing means ‘fair hearing’.
A fundamental principle of justice requiring a judicial officer, arbitrator or administrative official who must decide a dispute or make a decision that will affect someone's rights, to 'hear the other side' - to give all those affected by the decision the chance to state their case and be heard.
'Audi Alteram Partem', the Latin expression well ingrained in the common law legal system translated in English means 'no one should be condemned unheard. It is one of the three basic principles of natural justice, it has come a long way since it first found favour before the English Courts since the inception of the common law system.
The Supreme Court in Uma Nath Pandey v. State of U.P. AIR 2009 SC 2375 explained the concept in the following terms;
Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a commonsense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
The expressions “natural justice” and “legal justice” do not present a water-tight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigants’ defence.
The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. The audi alteram partem rule says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the “Magna Carta”. The classic exposition of Sir Edward Coke of natural justice requires to “vocate, interrogate and adjudicate”. In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414], the principle was thus stated:
“Even God did not pass a sentence upon Adam, before he was called upon to make his defence. “Adam” says God, “where art thou? hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat”.
Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
The norms of reasonableness of opportunity of hearing vary from body to body and even case to case relating to the same body. The courts, in order to look into the reasonableness of the opportunity, must keep in mind the nature of the functions imposed by the statute in context of the right affected. The civil courts, are governed in the matter of proceedings, through the Civil Procedure Code and the criminal courts, by the Criminal Procedure Code as well as the Evidence Act. But the adjudicatory bodies functioning outside the purview of the regular court hierarchy are not subject to a uniform statute governing their proceedings.
The components of fair hearing are not fixed but are variable and flexible. Their scope and applicability differ from case to case and situation to situation. In Mineral Development v. State of Bihar (India), the apex court observed that the concept of fair hearing is elastic and not susceptible of a precise and easy definition. The hearing procedures vary from the tribunal, authority to authority and situation to situation. It is not necessary that the procedures of hearing must be like that of the proceedings followed by the regular courts.
The objective of the giving the accused an opportunity of fair hearing is that an illegal action or decision may not take place. Any wrong order may adversely affect a person. The maxim implies that the person must be given an opportunity to defend himself. LORD HEWART rightly observed that “ it is merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seem to be done”.
The laws of God and man both give the party an opportunity to defend himself. Even God did not pass a sentence upon Adam before he was called upon to make his defence.
Law envisages that in the cases classified as ‘quasi-judicial’, the duty to follow completely the principles of natural law exists. But the cases which are classified as the ‘administrative’, the duty on the administrative authority is to act justly and fairly and not arbitrarily.
COMPONENTS OF RIGHT TO FAIR HEARING.
a) Right to notice. The term ‘Notice’ originated from the Latin word ‘Notitia’ which means ‘being known’. Thus it connotes the sense of information, intelligence or knowledge. Notice embodies the rule of fairness and must precede an adverse order. It should be clear enough to give the party enough information of the case he has to meet. There should be adequate time for the party, so that he can prepare for his defence. It is the sine qua non of the right of hearing. If the notice is a statutory requirement, then it must be given in a manner provided by law. Thus notice is the starting point in the hearing. Unless a person knows about the subjects and issues involved in the case, he cannot be in the position to defend himself.
The notice must be adequate also. Its adequacy depends upon the case. But generally, a notice, in order to be adequate must contain following elements:
· Time, place and nature of hearing.
· Legal authority under which hearing is to be held.
· Statements of specific charges which the person has to meet.
The test of the adequacy of the notice will be whether it gives the sufficient information and material so as to enable the person concerned to prepare for his defence. There should also be sufficient time to comply with the requirements of a notice. Where a notice contains only one charge, the person cannot be punished for the charges which were not mentioned in the notice.
b) Right to know the evidence against him. Every person before an administrative authority, exercising adjudicatory powers has right to know the evidence to be used against him.
c) Right to present case and evidence. The adjudicatory authority must provide the party a reasonable opportunity to present his case. This can be done either orally or in written. The requirement of natural justice is not met if the party is not given the opportunity to represent in view of the proposed action.
Courts have unanimously held that the oral hearing is not an integral part of the fair hearing, unless the circumstances call for the oral hearing.
Right to cross-examination. The right to rebut adverse evidence presupposes that the person has been informed about the evidence against him. Rebuttal can be done either orally or in written, provided that the statute does not provide otherwise. Cross examination is a very important weapon to bring out the truth. This right is provided for under the Evidence Act.
Natural justice thus forms the cornerstone of every civilized legal system. It is not found in the codified statutes. But it is inherent in the nature. Being uncodified, the natural justice does not have a uniform definition. However, it lays down the minimum standard that an administrative agency has to follow in its procedure. Where the legal justice fails, the role of natural justice becomes evident in preventing the miscarriage of justice.
The rule of fair hearing must be followed to prevent the miscarriage of justice. If an accused is punished unheard, the purpose of law is defeated. The adjudicatory authority does not know whether the accused is innocent or not.
Natural Justice and the elements of procedural fairness
What is meant by the term ‘principles of natural justice’ is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board (1914) 1 KB 160 at p.199:83 LJKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U.K. v. Sanckman (1943 AC 627: (1948) 2 All ER 337), Lord Wright observed that it was not desirable to attempt ‘to force it into any procusteam bed’ and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give ‘a full and fair opportunity’ to every party of being heard.
Lord Wright referred to the leading cases on the subject. The most important of them is the Board of Education v. Rice (1911 AC 179:80 LJKB 796), where Lord Loreburn, L.C. observed as follows:
“Comparatively recent statutes have extended, if they have originated, the practice of imposing upon departments or offices of State the duty of deciding or determining questions of various kinds. It will, I suppose usually be of an administrative kind, but sometimes, it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases, the Board of Education will have to ascertain the law and also to ascertain the facts. I need not and that in doing either they must act in good faith and fairly listen to both sides for that is a duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it were a trial....The Board is in the nature of the arbitral tribunal, and a Court of law has no jurisdiction to hear appeals from the determination either upon law or upon fact. But if the Court is satisfied either that the Board have not acted judicially in the way I have described, or have not determined the question which they are required by the Act to determine, then there is a remedy by mandamus and certiorari”.
Lord Wright also emphasized from the same decision the observation of the Lord Chancellor that the Board can obtain information in any way they think best, always giving a fair opportunity to those who are parties to the controversy for correcting or contradicting any relevant statement prejudicial to their view”. To the same effect are the observations of Earl of Selbourne, LO in Spackman v. Plumstead District Board of Works (1985 (10) AC 229:54 LJMC 81), where the learned and noble Lord Chancellor observed as follows:
“No doubt, in the absence of special provisions as to how the person who is to decide is to proceed, law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. There must be no malversation of any kind. There would be no decision within the meaning of the statute if there were anything of that sort done contrary to the essence of justice”.
Lord Selbourne also added that the essence of justice consisted in requiring that all parties should have an opportunity of submitting to the person by whose decision they are to be bound, such considerations as in their judgment ought to be brought before him. All these cases lay down the very important rule of natural justice contained in the oft-quoted phrase 'justice should not only be done, but should be seen to be done’.
Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression ‘civil consequences’ encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.
Natural justice has been variously defined by different Judges. A few instances will suffice. In Drew v. Drew and Lebura (1855(2) Macg. 1.8, Lord Cranworth defined it as ‘universal justice’. In James Dunber Smith v. Her Majesty the Queen (1877-78(3) App.Case 614, 623 JC) Sir Robort P. Collier, speaking for the judicial committee of Privy council, used the phrase ‘the requirements of substantial justice’, while in Arthur John Specman v. Plumstead District Board of Works (1884-85(10) App.Case 229, 240), Earl of Selbourne, S.C. preferred the phrase ‘the substantial requirement of justice’. In Vionet v. Barrett (1885(55) LJRD 39, 41), Lord Esher, MR defined natural justice as ‘the natural sense of what is right and wrong’. While, however, deciding Hookings v. Smethwick Local Board of Health (1890 (24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet’s case (supra) chose to define natural justice as ‘fundamental justice’. In Ridge v. Baldwin (1963(1) WB 569, 578), Harman LJ, in the Court of Appeal countered natural justice with ‘fair-play in action’ a phrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India (1978 (2) SCR 621). In re R.N. (An Infant) (1967 (2) B 617, 530), Lord Parker, CJ, preferred to describe natural justice as ‘a duty to act fairly’. In Fairmount Investments Ltd. v. Secretary to State for Environment (1976 WLR 1255) Lord Russell of Willowan somewhat picturesquely described natural justice as ‘a fair crack of the whip’ while Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affairs Ex Parte Hosenball (1977 (1) WLR 766) preferred the homely phrase ‘common fairness’.
How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is ‘nemo judex in causa sua’ or ‘nemo debet esse judex in propria causa sua’ as stated in (1605) 12 Co.Rep.114 that is, ‘no man shall be a judge in his own cause’. Coke used the form ‘aliquis non debet esse judex in propria causa quia non potest esse judex at pars’ (Co.Litt. 1418), that is, ‘no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party’. The form ‘nemo potest esse simul actor et judex’, that is, ‘no one can be at once suitor and judge’ is also at times used. The second rule is ‘audi alteram partem’, that is, ‘hear the other side’. At times and particularly in continental countries, the form ‘audietur at altera pars’ is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely ‘qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit’ that is, ‘he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right’ (See Bosewell’s case (1605) 6 Co.Rep. 48-b, 52-a) or in other words, as it is now expressed, ‘justice should not only be done but should manifestly be seen to be done’.
In the case of Tubecon (Private) Limited
versus NUMSA (1991), arbitrator Brand quoted Seneca who more than 2 000 years
ago said:
“He who has come to a finding without hearing the other party has not been
just, even though his finding may have been just.”
Over the years, the courts have set guidelines for what can be considered a
fair hearing. However, no single case sets out all the requirements
comprehensively and systematically.
The most comprehensive guidelines seem to be the ones found in the South
African case of Mahlangu versus CIM Deltak (1986). The court made it succinctly
clear that the burden of proving an employee’s misconduct or poor performance
lies with the employer.
Simply put, he who alleges must prove. An employee has the right to challenge
any statements by the employer that are detrimental to his credibility and
integrity.
The court went on to list those ingredients that are important for a fair
disciplinary hearing to be held. These are:
· the right to be told the nature of the offence or misconduct with relevant particulars of the charge;
· the right of the hearing to take place timeously;
· the right to be given adequate notice prior to a disciplinary hearing;
· the right to some form of representation (the representative could be anyone from the workplace, either a workers’ committee representative, or a colleague so as to assist the employee and ensure that the discipline procedure is fair and equitable);
· the right to call witnesses;
· the right to an interpreter;
· the right to a finding (if guilty, he has the right to be told the full reasons why);
· the right to have previous service considered;
· the right to be advised of the penalty imposed (verbal warnings, written warnings, dismissal) and
· the right of appeal to a higher level in the organisation.
RULE AGAINST BIAS
Nemo in propria causa judex , esse debet, i.e.; no one should be made a judge in his own cause. It is popularly known as the rule against bias. It is the minimal requirement of the natural justice that the authority giving decision must be composed of impartial persons acting fairly, without prejudice and bias. Bias means an operative prejudice, whether conscious or unconscious, as result of some preconceived opinion or predisposition, in relation to a party or an issue. Dictionary meaning of the term bias suggests anything which tends a person to decide a case other than on the basis of evidences.
The rule against bias strikes against those factors which may improperly influence a judge against arriving at a decision in a particular case. This rule is based on the premises that it is against the human psychology to decide a case against his own interest. The basic objective of this rule is to ensure public confidence in the impartiality of the administrative adjudicatory process, for as per Lord Hewart CJ, in R v. Sussex (1924)1KB 256, justice should not only be done, but also manifestly and undoubtedly seen to be done.
A decision which is a result of bias is a nullity and the trial is Coram non judice.
Types of bias:
Bias manifests itself variously and affects a decision in a variety of ways. It
can broadly be classified into six categories:
Personal Bias
Pecuniary Bias
Subject Matter Bias
Departmental Bias
Preconceived Notion Bias
Bias On Account Of Obstinacy.
Dealing with each kind in detail:
Personal Bias:
It arises out of the personal or professional relationship of friendship
or hostility between the authority and the parties. It’s the human nature that
we try to give favorable decision to our friends or relatives, whereas use the
same as a weapon against the enemies.
Apex court’s decision in Mineral Development Corporation Ltd. V. State of Bihar, AIR 1960 SC 468serves as a good illustration on the point. Here, the petitioners were granted a mining lease for 99 years in 1947. But in 1955, government quashed the license. The petitioners brought an action against the minister passing this order on the behalf of government, on the ground that, the petitioner in 1952 opposed the minister in General election. Therefore, on the account of political rivalry, the minister passed such an order, and hence the order was suffered from personal bias. Supreme Court found the allegation to be true and thus quashed the said order.
Similarly in Baidyanath Mohapatra v. State of Orissa, (1989)4 SCC 664the Supreme Court quashed the order of the tribunal confirming premature retirement on the ground that the chairman of the tribunal was also a member of the review committee which had recommended premature retirement.
In both the situations, the court sees whether there is reasonable ground for believing that the deciding officer was likely to be biased, as it is very difficult to prove a person’s state of mind.
In the case of Jiwan
K. Lohia v. Durga Dutt Lohia (1992) 1 SCC 56, the apex court observed that with
regard to the bias the teat to be applied is not whether in fact the bias has
affected the judgment, but whether a litigant could reasonably apprehend that a
bias attributable might have operated against him in the final decision.
Therefore the real test for likelihood of bias is whether a reasonable person
in possession of relevant information, would have thought that bias was likely
and whether the authority concerned was likely to be disposed to decide a
matter in a particular manner.
The reason is plain
enough as per Lord Denning[5], Justice must be rooted in the confidence and the
confidence is destroyed when right minded people go away thinking that the
judge is biased.
2. Pecuniary Bias:
Any financial interest howsoever small it may be is bound to vitiate the
administrative action. The judicial opinion is unanimous as to it.
In Jeejeebhoy vs. Astt. Collector,Thana AIR 1965 SC 1096, the CJ reconstituted the bench ,when it was found that one of the members of the bench was the member of the cooperative society for which the land has been acquired.
But this rule is not applicable where the judge, though having a financial interest, has no direct financial interest in the outcome of the case. this is evident from the Court of Appeal decision in R v. Mulvhill(1990) 1 All ER 436where the court refused to set aside the conviction of an accused on a charge of robbery in a bank on the ground that the trial judge had shares in that bank. In such cases unless there is a likelihood of bias administrative action will not be quashed.
3.
Subject Matter Bias:
The situations where the deciding officer is directly or indirectly in the
subject matter of the case.
In R v. Deal Justices ex p. Curling (1881) 45 LT 439the magistrate was not
declared disqualified to try a case of cruelty to an animal on the ground that
he was a member of the royal society for the prevention of cruelty to animals
as this did not prove a real likelihood of bias.
The supreme court in cases like murlidhar v. kadam singh & sub – committee of judicial accountability v. Union of India , followed the same line. But in Gulla palli Nageshwara Rao v. APSRTC,AIR 1959 SC 308the Supreme Court quashed the decision of A.P. government . nationalizing road transport on the ground that the secratery of the transport department who was given a hearing was interested in the subject matter. It may be mentioned that in USA and England, predisposition in favor of a policy in the public interest is not considered as legal bias vitiating administrative actions.
4.
Departmental Bias
The problem of departmental bias is something which is inherent in the
administrative process, and if it is not effectively checked, it may negate the
very concept of fairness in the administrative proceeding.
In Gullapalli Nageswara Rao v. APSRTC the order of the government nationalizing road transport was challenged in this case. One of the grounds for challenge was that the Secretary of the Transport Department who gave the hearing was biased, being the person who initiated the scheme and also being the head of the department whose responsibility it was to execute it. The court quashed the order on the ground that, under the circumstances, the Secretary was biased, and hence no fair hearing could be expected.
The problem of departmental bias arises in different context- when the functions of judge and prosecutor are combined in the same department. It is not uncommon to find that the same department which initiates a matter also decides it, therefore, at times, departmental fraternity and loyalty militates against the concept of fair hearing.
This problem came up
before the Supreme Court in Hari v. Dy. Commr. of Police. In this case an
externment order was challenged n the ground that since the police department
which initiated the proceedings and the department which heard and decided the
case were the same, the element of departmental bias vitiated administrative
action. The Court rejected the challenge on the ground that so long as the two
functions (initiation and decision) were discharged by two separate officers,
though they were affiliated to the same department, there was no bias.
In Krishna Bus Service v. State of Haryana, the Supreme Court quashed the
notification of the government which had conferred powers of a Deputy
Superintendent of Police on the General Manager, Haryana Roadways in matters of
inspection of vehicles on the ground of departmental bias.
The facts of this case
were that some private bus operators had alleged that the General Manager of
Haryana Roadways who was the rival in business in the State could not be
expected to discharge his duties in a fair and reasonable manner and would be
too lenient in inspecting the vehicles belonging to his own department. The
reason for quashing the notification according to the Supreme Court was the
conflict between the duty and the interest of the department and the
consequential erosion of public confidence in administrative justice.
5. Preconceived Notion Bias
Bias arising out of preconceived notions is a very delicate problem of
administrative law. On the one hand, no judge as a human being is expected to
sit as a blank sheet of paper, on the other hand, preconceived notions would
vitiate a fair trial. A classic case bringing this problem to the forefront is
Franklin v. Minister of Town and Country Planning known as Stevenage case. In
this case the appellant challenged the Stevenage New Town Designation order,
1946 on the ground that no fair hearing was given because the minister had
entertained bias in his determination which was clear from his speech at
Stevenage when he said I want to carry out a daring exercise in town
planning (jeers, catcalls, boos). It is no good your jeering! It is going to be
done. Though the court did not accept the challenge on the technical grounds
that the minister in confirming the report was not performing any
quasi-judicial function, but the problem still remains that the bias arising
from strong convictions as to policy may operate as a more serious threat to
fair action than any other single factor.
In Kondala Rao v. APSRTC the court did not quash the nationalization of the road transport order of the Minister who had heard the objections of private operators on the ground that the same Minister had presided over a meeting only a few days earlier in which nationalization was favored. The court rejected the contention on the ground that the decision of the committee was not final and irrevocable but merely a policy decision.
The problem of bias arising from preconceived notions may have to be disposed of as an inherent limitation of the administrative process. It is useless to accuse a public officer of bias merely because he is predisposed in favor of some policy in the public interest.
Bias On Account Of
Obstinacy
The word Obstinacy implies unreasonable and unwavering persistence and
the deciding officer would not take ‘no’ for an answer. What applies to
judicial process can be applied to administrative process as well.
Doctrine of Necessity:
Bias would not disqualify an officer from taking an action if no other person
is competent to act in his place. This exception is based on the doctrine which
it would otherwise not countenance on the touchstone of judicial propriety. The
doctrine of necessity makes it imperative for the authority to decide and
considerations of judicial propriety must yield. It can be invoked in cases of
bias where there is no authority to decide the issue. If the doctrine of
necessity is not allowed full play in certain unavoidable situations, it would
impede the course of justice itself and the defaulting party would benefit from
it. If the choice is between either to allow a biased person to act or to
stifle the action altogether, the choice must fall in favor of the former as it
is the only way to promote decision-making.
However, the term ‘bias’ must be confined to its proper place. If bias arising out of preconceived notions means the total absence of preconceptions in the mind of the judge, then no one has ever had a fair trial, and no one ever will. Therefore, unless the strength of the preconceived notions is such that it has the capacity of foreclosing the mind of the judge, administrative action would not be vitiated.
Every kind of preference is not sufficient to vitiate an administrative action. If the preference is rational and unaccompanied by consideration of rational interest, pecuniary or otherwise, it would not vitiate the decision. Similarly, there must be a real likelihood and not a mere suspicion of bias, before the proceedings can be quashed on the ground of bias. This apprehension must be judged from a healthy, reasonable and average point of view and not a mere apprehension and a vague suspicion of whimsical capricious and unreasonable people. The proper approach for court in such cases is not to look into his own mind and ask am I biased? But to look into the mind of the party before it. The court must look at the impression which would be given to the other party. Therefore the test is not what actually happened but the substantial possibility of that which appeared to have happened .As the justice is rooted in the minds of the people and it is destroyed and it is destroyed when the right minded people go away thinking that the judge is biased.
ADMINISTRATIVE TRIBUNALS
Tribunals have been defined as "Bodies outside the hierarchy of the courts with administrative or judicial functions" (Curzon, Dictionary of Law, 1994, p387).
Administrative tribunals resolve disputes between, for example, the citizen and an officer of a government agency or between individuals in an area of law in which the government has legislated the conduct of their relations.
Administrative tribunals have been established by statute, in the main, to resolve:
* disputes between a private citizen and a central government department, such as claims to social security benefits;
* disputes which require the application of specialised knowledge or expertise, such as the assessment of compensation following the compulsory purchase of land; and
* other disputes which by their nature or quantity are considered unsuitable for the ordinary courts, such as fixing a fair rent for premises or immigration appeals.
The main reasons for the creation of administrative tribunals may be identified as:
* the relief of congestion in the ordinary courts of law (the courts could not cope with the case-load that is now borne by social security tribunals, employment tribunals and the like);
* the provision of a speedier and cheaper procedure than that afforded by the ordinary courts (tribunals avoid the formality of the ordinary courts); and
* the desire to have
specific issues dealt with by persons with an intimate knowledge and experience
of the problems involved (which a court with a wide general jurisdiction might
not acquire).
The advantage of a tribunal is that it is:
(a) quick with no long
waits for the case to be heard and it is dealt with speedily;
(b) cheap, as no fees are charged;
(c) staffed by experts who specialise in particular areas;
(d) characterised by an informal atmosphere and procedure;
(e) allowed not to follow its own precedents, although tribunals do have to
follow court precedents.
BUSINESS
PREMISES, RENT TRIBUNAL (BPRT)
Established under Section 11(1) of the Landlord and Tenants, (Shop, Hotels and
Catering Establishments) Act Cap 301.
It has power to hear disputes between landlord and tenants relating to business premises and which are subject to a controlled tenancy.
Controlled tenancy means a tenancy of a shop, hotel, or catering establishment which;
- Has not been reduced to writing.
- Has been reduced to writing; and
a. Is for a period not exceeding 5 years
b. Contains provisions for termination otherwise than for breach of contract within 5 years from the commencement date.
The Minister for the time being responsible establishes the business premises
rent tribunal.
Composition: Presided over by a Chairman appointed by the Minister and must be holding legal qualifications as an Advocated if at least 3 years standing.
The decisions of the tribunal shall be enforceable by a subordinate court in some
way as court decrees and orders.
An Appeal from BPRT lies to the High Court within 30 days. Powers and functions of the tribunal;
- To determine whether a tenancy is controlled or not.
- To determine or vary the rent payable in respect of a controlled tenancy.
- To apportion rent between tenants if such services are shared.
- To facilitate recovery of rent arrears.
- To order the landlord to compensate the tenant for loss occasioned by
termination of the tenancy.
- To employ valuers, clerks and other officers.
- To vary or recede its orders.
RENT TRIBUNAL (RT)
Rent Tribunal is established under Rent Tribunal Act (Cap 296), Section 4(1).
It is presided over by a Chairman or Deputy Chairman and two other members
appointed by the Minister.
The Chairman or the Deputy Chairman must be an Advocate of the High Court with 5 years standing.
RT has powers to hear dispute between landlords and tenants in dwelling houses other than;
- Exempted houses.
- Dwelling houses let on service tenancy.
- Dwelling house with standard rent not exceeding Kshs.2500 per month. The decision of RT is enforceable by subordinate courts.
All appeals lies before the High Court. Powers and functions of the tribunal are:
- To assess the standard rent of premises either on its own motion or on application by a party to dispute.
- To determine the date from which such rent is payable.
- To apportion service charge between tenants where such services are
shared.
- To facilitate vacant possession of premises.
- To facilitate recovery of arrears of rent by the landlord.
- To permit the levy of distress for rent.
- To employ valuers, clerks and other officers to enable it discharge its mandate or obligations.
LAND DISPUTE TRIBUNALS
Land Dispute (LD) Tribunal is established under the Land Disputes Tribunal Act
or 1990. The tribunal exists in every administrative district in Kenya. It is composed of:-
- A Chairman appointed by the Minister from a panel of elders appointed by the District Commissioner.
- Two or four elders selected by the District Commissioner from the same panel.
It has powers to hear cases of civil nature relating to:-
- Division boundaries to land including land held in common.
- Claim to occupy or work on land.
- Trespass to land.
Appeals lie before;
- Appeals committee established for every province.
- From the Province Appeals Committee to the High court only on a question
of law and not fact.
CO-OPERATIVE TRIBUNAL
Co-operative tribunal (CT) is presided over by the Chairman in whose absence, a
Deputy Chairman both appointed by the Chief Justice.
Their qualification is of an Advocate of the High Court of Kenya of practice for at least 5 years standing.
It has jurisdiction to hear disputes between members and Co-operatives or Co- operatives and other co-operative societies.
The Industrial Property Tribunal (the ‘IPT’)
Establishment and composition of the IPT
The IPT is established under Section 113 of the Industrial Property Act (IPA) for two main purposes viz;
Hearing and determining appeals where provision is made for appeals from the decisions of the Managing Director under the IPA and
Exercising the other powers as conferred on it by the IPA.
The IPT consists of a chairman and four-members appointed by the Minister for Industrialization. The chairman of the Tribunal should be a person who has been a judge or who is qualified to be appointed as a judge of the High Court of Kenya i.e. a person with at least ten years’ experience as a superior Court judge or professionally qualified Magistrate; or at least ten years’ experience as a distinguished academic or legal practitioner or such experience in other relevant legal field.
At least two members of the Tribunal should be persons who have, for not less than seven years, been qualified and entitled to practice as advocates in Kenya and the other two members must have experience and/or expertise in industrial, scientific and technological fields. The sittings of the tribunal are discretionary as it sits at such times as it may appoint.
Jurisdiction of the IPT
The IPT’s jurisdiction extends to various disputes relating to Patents, Industrial Designs, utility models and Technovations in the following circumstances:-
a)Appeals against any decision by the Managing Director refusing to register a Patent
b)Appeals against the decision of the Managing Director refusing to register a contractual license
c)Applications for grant of compulsory licenses to exploit a Patented invention for non-working reasons
d)Applications for grant of compulsory licenses to exploit a Patented invention for inter-dependable Patents
e)Applications for transfer of compulsory licenses
f)Applications for cancellation of compulsory licenses by any interested party, or by the Minister or owner of the Patent
g)Applications for fixing of terms of non-exclusive licenses where the owner of the Patent has registered "licenses as of right" on his Patent.
h)Determination orders for exploitation by the government or a third party authorized by the government, of a Patented invention in the field of semi-conductor technology on grounds of non competitiveness
i)Appeals from the decisions of the Minister on exploitation of Patented inventions by the government, or by third parties authorized by the government
j)Appeals from the decisions of the Arbitration Board regarding disputes between an employer and an employee on technovations.
k)Applications for revocation of a Patent, Industrial Design or utility model
l)Applications for injunctions to prevent infringement of a Patent, Industrial Design or utility model or for continuation of such infringement and damages
m)Applications for declaration of non-infringement of a Patent, Industrial Design or utility model
n)Applications for injunctions to prohibit the threat of infringement proceedings and damages thereof
o)References from the Managing Director, for directions in matters involving a point of law or matters of unusual importance or complexity
Powers of the Tribunal.
The IPT has judicial powers to make any order for the purposes of securing the attendance of any person, the discovery or production of any document, or the investigation or punishment for any contempt of Court, which the High Court has power to make.[67]
In addition, upon any appeal to the Tribunal under the IPA, the Tribunal may -
a)confirm, set aside or vary the order or decision in question;
b)exercise any of the powers which could have been exercised by the Managing Director in the proceedings in connection with which the appeal is brought; or
c)Make such orders as to costs as it may deem fit.
In exercise of its jurisdiction and powers, the IPT has rendered several landmark decisions particularly on the standard of protection of Industrial Designs where it has sought to widen public space for innovation. For instance, in the case of Power Technics Limited –v- Power Engineering International Limited the Requestor, Power Technics Limited filed a request under Section 106 of the Industrial Property Act seeking an injunction to prevent infringement of its registered Industrial Design No. 296. In its Statement of Case, the Requestor stated that it had designed Sectionalized tapered columns for street lighting sometime in 1998 and supplied them to various customers in Kenya and Tanzania. It was alleged that the Respondent had infringed the Industrial Design No. 296 by making, manufacturing and selling similar or identical streetlights. The Respondent’s reply was that the Requestor’s invention in Design No. 296 was not obvious, as it did not involve any inventive step having regard to what was common knowledge at the date of the application.
It was further submitted that the alleged invention was in the public domain since it was neither new nor original, the invention having been disclosed to the public and published in various catalogues. The Industrial Property Tribunal in finding that the Respondent had not infringed the design expunged Industrial Design No. 296 from the register stating that the evidence showed that tapered Sectionalized street poles were in existence in Kenya and elsewhere prior to Design 296 being registered. The Tribunal concluded that the evidence on record left no doubt that the invention embodied in Design 296 was in the public domain well before it was registered.
Appeals to the High Court
Any party to the proceedings before the Tribunal may appeal from any order or decision of the Tribunal, to the High Court and upon the hearing of such an appeal the High Court may -
a) confirm, set aside or vary the order or decision in question;
b) remit the proceedings to the Tribunal with such instructions for further consideration, report, proceedings or evidence as the High Court may deem fit to give;
c) exercise any of the powers which could have been exercised by the Tribunal in proceedings in connection with which the appeal is brought; or
d) Make such order as it may deem fit as to the costs of the appeal or of earlier proceedings in the matter before the Tribunal.
OMBUDSMAN/COMMISSION ON ADMINSTRATIVE JUSCTICE
Ombudsman is a public official appointed to deal with individual complaints against government acts. The office originated in Sweden in 1809 when the Swedish legislature created a riksdagens justitie ombudsman, or parliamentary agent of justice, and in the 20th cent. it has been adopted by a number of countries. As a government agent serving as an intermediary between citizens and the government bureaucracy, the ombudsman is usually independent, impartial, universally accessible, and empowered only to recommend. In the United States the term ombudsman has been used more widely to describe any machinery adopted by private organizations (e.g., large business corporations and universities) as well as by government to investigate complaints of administrative abuses. In 1969, Hawaii became the first of many American states to appoint an ombudsman.
The Kenya Government first appointed holders to this office through a legal notice that established the Public Complains Standing Committee in the year 2005. This has since been replaced by the Commission n Administrative Justice.
The Commission on Administrative Justice was established by the Commission on Administrative Justice Act 2011(hereafter referred to as the Act) pursuant to Article 59 (4) of the Constitution of Kenya. CAJ is a Commission within the meaning of chapter 15 of the constitution and has the status and powers of a commission under that chapter.
The mandate of the Commission can be summarized in 9 broad categories;
1. Quasi-judicial mandate to deal with maladministration.
2. Ensuring compliance with leadership, integrity and ethics requirements.
3. Litigation and quasi- judicial functions.
4. Reporting Obligation.
5. Training of Government Ministries Departments and agencies.
6. Resolution of inter-governmental conflicts.
7. Provision of advisory opinions and recommendations
8. Promotion of Constitutionalism and Human Rights advocacy and;
9. Performance contracting
To
investigate any conduct in state affairs, or any act or omission in public
administration in any sphere of government, that is alleged or suspected to be
prejudicial or improper or to result in any impropriety or prejudice
[A.59(2)(h) of the Constitution].
In this respect, the Commission may;-
· Investigate any matter arising from the administrative conduct of a Public Officer, State Corporation or other Government Agency or organ (S.29 of the Commission on Administrative Justice Act)
· Employ the services of any public Officer or Investigative Agency of Government (S.28)
· Summon and enforce attendance of any person for examination (S.28)
· Require the discovery or production of any document (S.28)
· Requisition any public record from any public Officer (S.28)
Ambit of Responsibility
The Primary responsibility of the Commission on Administrative Justice is the traditional role of the “Office of The Ombudsman” as known in many countries. This office checks maladministration on the part of public Officers, and deals with instances where such Officers unreasonably delay in action; show discourtesy or misconduct; incompetent or inept and generally fail to adhere to the Constitutional principles that all sovereign authority of the state draws from the people, and that all Public Officers to whom that sovereign power is delegated must treat the people with respect, and must be efficient, responsive and impartial and in accordance with Articles 73 & 232 of the Constitution .
In the context of the right to fair administrative action, Article 47 of the Constitution specifically recognises the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. The Commission on Administrative Justice is the primary custodian of that right.
Further, the Commission on Administrative Justice, in collaboration with sister commissions and organs, will be the organ to ensure compliance with the Ethics and integrity requirements in chapter six of the Constitution, and the tenets of Public Service in Chapter Thirteen of the Constitution. In this respect, the Commission on Administrative Justice will in conjunction with the Ethics and Anti-Corruption Commission;
· Ensure State Officers conduct themselves with dignity, respectfully and as to promote public confidence [A.73 (1)].
· Ensure decisions of State Officers are not influenced by nepotism, favouritism or other improper motives [A.73(2].
· Ensure State Officers conduct themselves, in public or private, as to avoid demeaning the office, or conflict of interest (A.75 (1)].
· Keep a register as to ensure that any person removed from office for abuse of office does not hold any other State Office (A.75 (3).
· Investigate and ensure no State Officer maintains a Bank Account outside Kenya (A.76).
· Ensure no State Officer holds any other gainful employment (A.77(1)]
· Ensure no appointed State Officer holds office in any Political Party [A.77 (2)].
· Ensure no State Officer or Member of the Defence forces holds dual citizenship (A.78 (2)].
· Ensure any gift or donation to a public Officer is surrendered to the State (A.76 (1)].
· Ensure Declaration of wealth by Public Officers is complied with (Public Officer Ethics Act) and that such Declarations are made available and accessible to the Public (A.35).
· Ensure the protection accorded to minorities and marginalized, nationally and within Counties, is respected [A.174 (e), 177(1)(b) & 197(b)].
· Ensure compliance with regional Ethics or gender balance whenever required in the Constitution.
· Certify persons seeking elective office have not failed the “ethics and Integrity” test as per chapter six of the Constitution as read with [A. 99 (1) (b) and other Articles.
· Monitor and ensure administrative arrangements for registration of voters facilitates, rather than denies, eligible citizens the right to vote or vie (A.83 (3)].
· Report on any pending complaints against any Judges or Magistrates in accordance with the Vetting of Judges and Magistrates Act 2011.
· Whenever appropriate to institute, or join as amicus, any suit or action challenging any administrative action or inaction, or challenging any legislation which falls below the test of administrative fairness.
· Generally oversee the implementation of the prescriptions in the Public Officer Ethics Act 2003
Powers of the Commission
· To investigate complaints of abuse of power, unfair treatment, manifest injustice or unlawful, oppressive, unfair or unresponsive official conduct [A.59 (2)(i)]
· To report on complaints investigated and take remedial action. [A.59(2)(j)]
· Inquire into allegations of maladministration, delay, administrative injustice, discourtesy, incompetence, misbehaviour, inefficiency or ineptitude within the public service;
· Facilitate the setting up of, and build complaint handling capacity in, the sector of public service, public offices and state organs;
· Work with different public institutions to promote alternative dispute resolution methods in the resolution of complaints relating to public administration;
· Recommend compensation or other appropriate remedies against persons or bodies to which the Act applies;
· Provide advisory opinions or proposals on improvement of public administration, including review of legislation, codes of conduct, processes and procedures;
· Publish periodic reports on the state of administrative justice in Kenya;
· Promote public awareness of policies and administrative procedures on matters relating to administrative justice;
· Take appropriate steps, in conjunction with other State organs and Commissions responsible for the protection and promotion of human rights, to facilitate promotion and protection of the fundamental rights and freedoms of the individual in public administration;
· Work with the Kenya National Commission on Human rights to ensure efficiency, effectiveness and complementarity in respective activities and to establish mechanisms for referrals and collaboration.
In addition the Commission has this Powers
1. May conduct investigations on its own initiative or on a complaint made by a member of the public [A.252(1)(g)]
2. Power to conduct conciliation mediation and negotiation [A.252(i)(b)]
3. Power to issue a summons to a witness to assist for the purposes of investigations [A.252(3)(a)] as read with (A.59)
4. Power to sue or be sued in own name [A.253 (b)].
5. Power to acquire, hold, charge or dispose of movable and immovable property (S.5)
6. Issue Summons, and require that statements be given under oath (S.26 (a&b)]
7. Adjudicate on matters relating to Administrative Justice [S.26 (c)]
8. Obtain relevant information from any person or government authorities and to compel production of such information [S.26 (d)]
9. Seek and obtain court orders to do searches and seizure of documents [S.26(e)]
10. To interview any person in relation to matters of administrative justice [S.26 (f)]
11. To conduct Hearings and to compel attendance and provision of answers as appropriate[S.26 (g)]
12. Full powers of a court to issue Summons, subpoenas, compel production of documents, administer interrogatories (questions) and to compel disclosure of any relevant information held by any person (S.27)
13. The commissions’ powers to investigate shall not be limited by any law to the effect that the action in question is final or cannot be appealed, challenged, reviewed, or called into question. (S.31).
Further readings
Jurisdiction in investigations –sec 29/30
Complains- sec 32/33
Actions the commission may take- sec 41
DELEGATED LEGISLATION AND THE DOCTRINE OF ULTRAVIRES
Although the legislative authority of the republic is vested in the parliament, it does delegate its law-making mandate to various institutions, bodies or officials. The laws made by such bodies are called subsidiary or subordinate or delegated legislation. The laws made hereupon include by-laws, rules, orders, regulations, proclamations etc. made by subordinate competent bodies e.g. local authorities, professional bodies, statutory boards, government ministers etc in exercise of delegated legislative powers conferred upon them by parliament through an enabling or parent Act.
The body of officials making subordinate legislations must act strictly within the confine of the power donated by the legislature. Subsidiary legislation may therefore be quashed by the court of law if it goes beyond the donated powers i.e. becomes ultra-vires the parent Act.
Understood in its traditional form, the ultra vires doctrine — the ‘central principle of administrative law’, according to Wade and Forsyth, Administrative Law (Oxford 2009) at 30 — may be stated with disarming simplicity. Courts may intervene whenever a decision maker acts ‘ultra vires’ — ‘beyond the powers’ conferred by legislation — while intra vires administrative acts are lawful and unimpeachable. Thus, in reviewing governmental action courts are merely doing Parliament’s bidding by enforcing the limits upon power which are found (expressly or impliedly) in statute. Prima facie, this theory provides a powerful justification for the exercise of supervisory jurisdiction, as Baxter, Administrative Law (Cape Town 1984) at 303, explains:
. . . [T]he logic behind the doctrine provides an inherent rationale for judicial review . . . The self justification of the ultra vires doctrine is that its application consists of nothing other than an application of the law itself, and the law of Parliament to boot.
Such ultra –viresness may be of two types;
ü Substantive ultra vires i.e. where the authority making delegated legislation exceeds the powers granted by parliament.
ü Procedural ultra vires: Where the authority making the delegated legislation contravenes any mandatory procedure set out in the parent statute.
Why Delegation contrary to the constitution? Although Chapter 8 of the Constitution vests legislative power of the republic in parliament, parliament often delegates legislative power to other persons or bodies.
Article 94 provides that legislative authority of the Republic is derived from the people and at National level is vested and excised by parliament.
No person or body, other than Parliament, has the power to make provision having the force of law in Kenya except under authority conferred by the Constitution or by legislation.
Delegated legislation is often described as a necessary evil. It is a constitutional impropriety since it violates the doctrine of separation of powers. Parliament delegates law making powers for various reasons namely:
ü Parliament is not always in session.
ü Inadequate parliamentary time.
ü Lengthy law making procedure.
ü Lack of flexibility in law making.
ü Lack of expertise in all fields.
ü Increase in social legislation.
Characteristics of delegated legislation:
ü All delegated legislation is made under an express provision of an act of parliament.
ü Delegated legislation must be consistent with the provisions of the Enabling or Parent Act.
ü Delegated legislation must be published in the Kenya Gazette before coming into force.
ü Delegated legislation is recognized as a source of law of Kenya by Section 3(1)(b) of the Judicature Act. It is a written source of law and prevails over all unwritten laws however it is subordinate to statue law and the constitution.
Advantages of Delegated Legislation.
ü Time: Saves parliamentary time. The parliament therefore provides the whole framework leaving the details to be provided by the subsidiary legislation.
ü Speed: The parliamentary law making process is slow and some situations may require urgent intervention. Moreover this may happen when the parliament is in recess.
ü Foresight: Parliament cannot foresee all situations and problems that may require legislation. Moreover they also lack adequate skills and research facilities for all laws.
ü Less rigid: Delegated legislation can be amended or repealed easily since the process is relatively flexible.
ü Technicality of subject matter: Technical subject matter is dealt with by experts in the specific field e.g. by laws are made by local authorities to regulate activities within their administrative areas. Professional bodies make regulation to govern their profession.
ü Emergency situations: In case of emergency, the president can use subsidiary legislation since he does not then need to go through parliamentary procedures.
Disadvantages of Delegated Legislation.
ü Lack of adequate parliamentary control.
ü Lack of adequate judicial control.
ü Un-democratic because sometimes the parliament may delegate its law making mandate to none elected body.
ü Bulkiness since there exists too many statutes made under delegated powers.
ü Danger of sub-delegation. This arises for example in such powers given to a minister who in turn delegates the power to another person.
ü Lack of publicity: Access to the public is not easy, yet ignorance of law is no defense. Lord Howard said “A citizen is does not know what it is, he does not know where to find it, he probably would not understand it in relation to law if he found it but he is bound by it”.
ü Retrospective operation: Most of delegated legislations have retrospective operation.
CONTROL OF DELEGATED LEGISLATION.
Both parliament and courts of law have in various ways attempted to control delegated legislation.
Parliamentary safe guards or mechanisms or control to delegate legislation is manifest in the following ways;
ü Parliament delegates law-making powers to specific person or bodies e.g. government ministers, professional bodies, local authorities etc.
ü Parliament prescribes the scope and procedure of law making and delegates must comply with such prescriptions.
ü The Enabling or Parent Act may provide that drafts rules or regulations be circulated to interested and affected parties for comments.
ü The Enabling or Parents Act may provide that draft rules or regulations be laid before the minister for approval. This is political control, which is largely ineffective.
ü Under Sec. 27 (1) of the Interpretations and General Provisions Act Cap. 2, unless otherwise provided, delegated legislations must be published in the Kenya Gazette before coming into force. However the delegate is empowered to backdate the date of commencement.
ü Under Sec. 34(1) of the Interpretation and General Provisions Act, unless otherwise provided, delegated legislation must be laid before parliament for approval. Parliament is empowered to declare to declare the rules or regulations null and void by or resolution to that effect whereupon the rules become ineffectual.
ü Parliament control of delegated legislation is to a large extent ineffective by reason of inherent and operation weaknesses of the institution.
Judicial control of delegated legislation - Courts of law may control delegated legislation through the doctrine of Ultra-vires i.e. declaring it null and void.
There are two types of ultra-vires namely substantive and procedural.
Substantive Ultra-vires
A court of law may declare delegated legislation substantively ultra-vires if on application it is satisfied that the delegate: -
1. First, exceeded the scope prescribed by the enabling or parent Act or,
2. Acted unreasonably, on the basis of facts or the case or,
3. It exercised a power for a purpose other than that for which it was conferred (abuse of power)
Procedural ultra-vires
In relation to subsidiary legislation, it refers to any non-compliance with mandatory procedural requirement by the law making authority in the law making process.
The delegates must comply with the procedure of law making prescribed by the Enabling or Parent Act. Delegated legislation made in violation of the procedure has a procedural defect and may be declared procedurally ultra-vires by a court of law.
In the case of Mwangi & Maina Vs. R, the appellant were charged before the resident magistrates court for overcharging a haircut in their salon. They were convicted and sentenced. Under the Defense Control Regulations 1948, the Price Controller was empowered to fix the price of certain services including a haircut. He had fixed the price at 50 cents and the appellants had charged one shilling. The appellants‟ case was that the delegated legislation in question was procedurally defective, as it had not been published in the Kenya Gazette as required by law. The court was satisfied that the procedure of law making has not been complied with and declared the regulations procedurally ultra-vires. The appellant‟s conviction and sentence was set aside. Judicial control of delegated legislation is ineffective for two reasons:
1. Courts are by their nature passive. An application must be made by an interested party.
2. The applicant must prove his case before the rule or regulations are declared ultra-vires.
JUDICIAL CONTROL OF ADMINISTRATIVE ACTION
Two important aspects of administrative law are the control mechanism over the administration and relief when the legal right of an individual is infringed by any administrative action. To ensure control and relief, judiciary plays a significant role. Judicial control over administrative authorities prevents the exercise of arbitrariness and ensures the application of rule of law. There are a myriad of principles put forward by the courts for regulating the functions of the administrative bodies in different dimensions and it has greatly contributed to the growth of administrative law.
Public administration exercises a large volume of power to meet the citizens need in modern democratic welfare state. Today administration is not concerned with only pure administrative function but also involved with a large number of quasi-legislative and quasi-judicial functions.
Administrative power is the power, which is concerned mostly with the management and execution of public affairs. Judicial power as the power to create some right or duty dependent upon a previous right or duty, that is apparently the power to create remedial legal capacities and liabilities.
Judicial control comprises the power of a court to hold unconstitutional and unenforceable any law or order based upon such law or any other action by a public authority which is inconsistent or in conflict with the basic law of the land.
By judicial control is meant the power of the courts to examine the Legality of the officials act and thereby to safeguard the fundamental and other essential rights of the citizens. The underlying object of judicial review is to ensure that the authority does not abuse its power and the individual receives just and fair treatment and not to ensure that the authority reaches a conclusion, which is correct in the eye of law.
The role of judiciary in protecting the citizens against the excess of officials has become all the more important with the increase in the powers and discretion of the public officials in the modern welfare states. But the courts cannot interfere in the administrative activities of their own accord. They can intervene only when they are invited to do so by any person who feels that his right have been abrogated or are likely to be abrogated as a result of some action of the public official. Secondly, the courts cannot interfere in each and every administrative act, as too much of Judicial action may make the official too much conscious and very little of it may make them negligent of the rights of citizens.
SCOPE OF JUDICIAL REVIEW
Therefore, the judicial review of administrative acts extends to almost the whole field of administrative actions. However, the courts have tended to apply some sort of self-limitations and they review the cases to the extent they deem desirable. No clear definitions of these limitations are available. However, some of them are indicated below:
- Review lies only if the application is made by a party which has a legal standing.
- The complainant can apply to the court for review only if all other remedies have been exhausted.
- Negative orders are usually not reviewed.
- Courts do not interfere in cases where the decision is better left to the administrative discretion.
- The court does not interfere with administrative findings supported by substantial evidence.
- Courts are reluctant to review administrative decisions relating to a legal right which is in the nature of a privilege. For example, in case of gratuity.
- The courts usually do not interfere in the essential functions of the government like revenue collection, military matters, etc.
Judicial review is commonly called the doctrine of ultra virus. Administrative power derives from statute.
The statute gives power for certain purpose only, or subject to some special procedure, or with some other kind of limits. The limits are to be found not only in the statute itself, but in the general principles of construction which the courts apply, provided, of course, that the statute has not expressly or impliedly modified them for every statute is an act of sovereign legislation and can abnegate all principles of administrative law if parliament so wishes.
In Practice all statutory powers have statutory limits; and where the expressed limits are indefinite, the courts are all the more inclined to find that limits are implied. The notion of unlimited power has no place in the system. It then follows that any act outside the defined limits (ultravire) is an act unjustified by law, which can have no legal validity. The court will accordingly declare it to be quashed or to be a nullity. If it is also a wrongful act by the ordinary law (such as a trespass to person or property), damages may also be awarded; and in a suitable case the court may prohibit the wrongful act in advance. In granting these remedies the court is enforcing the rule of law, which requires that public authorities of all kinds should be able to show legal warrant for what they do, and that if legal warrant is lacking their action should be condemned.
The general grounds of judicial control are;
a) Doing the wrong things:
This is the most obvious category of error, although the cases may involve difficult points of statutory construction. E.g compulsory acquisition of land from citizens without following due process.
b) Acting in the wrong manner:
There have been many cases where the thing done is ostensibly within the statutory power, but, never theses, contravenes it because some false step is taken or some condition is ignored.
c) Breach of mandatory condition:
Very often the empowering statute will require some procedure to be followed. The court will then normally conclude that the power is to be exercised in accordance with that procedure but not otherwise, so that any departure from it will invalidate the action. Normally the court requires every statutory condition to be properly fulfilled, since where the law requires such and such steps to be taken it is to be implied that the action is valid only if they are duly taken.
d) The rule against negligence:
Powers must be exercised with reasonable care. A statutory power to do something is not a charter of exemption from all ordinary law, and in particular it does not justify negligence.
e) Breach of statutory duty:
Although as has been seen, there is no namely for the no exercise of a discretionary power, it might be thought that there must always be a remedy for the non-performance of a duty. But this is not so, for the courts may interpret the statutory duties of public authorities as owed to the public generally, and not to particular persons.
f) Surrender or abdication of discretion:
A kindred method of vitiating the exercise of a discretion is where the person entrusted with it, instead of delegating it, exercises it at the dictation of some other person. For although he is then acting himself, it is not his own discretion which governs the act, as the legislative intended that it should be. The courts are distinctly strict in invaliding decisions made in such a manner.
g) Disregarded of natural justice:
Failure to give proper hearing may also quite properly be regarded as one of the varieties of abuse of power. There are many where either common law or statute makes the exercise of a owner illegal if the person who will suffer has not first been fairly heard in his own defence. But this opens the whole subject
of natural justice, which needs chapter to it. It is indeed, full of examples of the right thing being done in the wrong manner.
h) Error of authority:
Above all, public officials have to act according to a certain procedure as laid down by laws and if they do not follow the prescribed procedure the court have a right to question the legality of their action, on appeal from the party affected. For example, law requires that an employee should be served with the notice of the charges before any action of suspending or dismissing him can be taken against him.
Suppose the officer takes action against him without serving a proper notice, them his action shall be declared null and void by the court.
REMEDIES FOR JUDICIAL REVIEW
Judicial control may take any of the following forms:
1. Judicial review of administrative acts and decisions;
2. Statutory appeals to the court against the administrative acts and decisions;
3. Suits against the Central or Local Governments by a private party for enforcing contract or torts;
4. Criminal and civil suits against public servants by private parties;
5. Extra remedies like -habeas corpus, mandamus, injunction, certiorari, prohibition, quo warranto
The extra-ordinary remedies consist of 5 writs (a) habeas corpus; (b) mandamus; (c) prohibition; (d) ceritiorari; and (e) quo warranto
Historically these writs started in England where they were issued in the name of ‘King’ and were known as prerogative writs. These writs are called extraordinary because except habeas corpus and to certain extent prohibition, they are granted by the Court in their discretion and not as a matter of right. Another important limitation is that these writs are granted only when there is no other adequate remedy available.
The law relating to these writs is completely and cannot be easily summarized. However, a number of generalizations are given.
Habeas Corpus
It literally means, ‘you shall produce the body’. Several writs go by this name. We discuss here the most important one which is called. ‘Habeas Corpus ad subjiendum recipiendum’.
It has been defined as a, ‘writ to the person detaining another and commanding him to produce the body of the prisoner at a certain time and place with the day of his arrest and detention to submit and receive whatever the court or the judge awarding the writ shall consider in this behalf.
The purpose of the writ is to determine whether the person seeking remedy is detained legally or illegaly. It may be directed to a private person as well as public officer. The writ is granted as a matter of right and not at the discretion of the court.
The procedure for this writ is indicated below:
- Application is moved in the registry by the person detained or by any other person if the former is not in a position to do so;
- The application is heard by a division court or a vacation judge;
- If the court finds a prima facie case it issue rule nisi asking the person against whom the writ is filed to appear and show cause why is should not be granted;
- On the day hearing if now cause is shown or the court is not satisfied with the cause shown the detained person is set at liberty and the rule is discharged.
It is a very powerful writ to safeguard the liberty of the citizens.
Under article 25 (d) of the constitution, it is a fundamental right and freedom that cannot be limited.
Mandamus
It literally means mandate or command. It can be defined as ‘a command issuing from a common law court of competent jurisdiction in the name of the State or the sovereign directed to some corporation, officer, inferior court, requiring the performance of a particular duty therein specified which duly results from the official station of the party, to whom the writ is directed or from the operation of law.’
It is discretionary writ and issued subject to the following conditions:
1. The applicant must have a legal right to the performance of a legal duty by the agency/officer against whom the Mandamus is sought.
2. The right must be a public right and duty sought to be performed of a public nature.
3. The legal right in question must reside in the applicant himself.
4. Petition must be made in good faith.
5. The petition can be made only if a demand for performance of duty has been made and refused.
The writ of Mandamus is used for compelling public officials and bodies to carry out their legal duties. It can also be used to compel restoration of the public office of which the holder has been wrongfully dispossessed and to ensure exercise of a jurisdiction by inferior court and quasi-judicial tribunals.
This writ is not issued against the Heads of the State and is also not granted if it is likely to prove unavailing.
Prohibition
It is defined as ‘as an extraordinary judicial writ, issuing out of a court of superior jurisdiction and directed to an interior court for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which is not legally vested’.
The writ of prohibition plays some part in the control of administrative tribunals which have quasi-judicial functions. It is not of much significance in respect of administrative actions.
Prohibition and Injunction
Injunction has been defined as ‘a judicial process operating in person and requiring the person to whom it is directed to do or refrain from doing a particular thing’.
In England and USA injunction is not a common law writ but is an equity writ. Injunction is of two kinds: (a) mandatory; and (b) preventive.
Mandatory injunction resembles Mandamus. The difference, however, is that mandamus cannot be used against private person while the injunction primarily is a process of private law. Mandamus is a remedy of a common law while the injunction is an arm of equity.
The difference between injunction and prohibition is that the former is directed to the litigant parties, while the later is directed to the court itself. Injunction recognizes the jurisdiction of the court in which the proceedings are pending while prohibition questions it.
Certiorari
Literally it means, to be certified and to be made certain. It has been defined as “a writ issued by the superior court to an inferior courts of record, or other tribunal or officer, exercising a judicial function, requiring the certification and return to the former of some proceedings then pending, or the record and proceedings in same cause already terminated, in cases where the procedure is not according to the course of the common law”.
This writ lies against a judicial act and only in cases of substantial errors and not formal ones. Generaly it is not granted where an adequate remedy is available. The effect is to quash or affirm the proceedings of the lower court or the tribunal. It is an important instrument of control in respect of quasi-judicial functions of administrative, officers and tribunals. Mandamus and Certiorari are typical administrative law remedies.
Quo-Warranto
It literally means, “what warrant or authority”. It has been defined as, “the remedy or proceedings whereby the court enquires into the legality of the claim which a person asserts to an office or franchise and to oust him from its enjoyment if the claim be not well founded”.
It is an ancient common law writ. Its purpose is to oust a usurper from public office. Conditions of granting this writ are:
- The office must have been created by some statute;
- The duties of the office must be of a public nature;
- The tenure of the office must be permanent;
- Person proceeded against must be in actual possession and use of the office in question.
The person petitioned is called ‘respondent’ and the petitioner of the writ is called the ‘relator’. The writ is granted only when the latter has come interest in the matter. The word interest has, however, been interpreted widely. Proceedings are of a civil nature and the burden of proof on the respondent.
Limitations of Judicial Control
The judicial court of administrative activities has some limitations which are discussed below:
1. The courts cannot intervene of their own accord. They take notice only when approached by an individual or a group of individual complaining that some of their rights have been infringed or are likely to be infringed by the actions of the Government servants.
2. Secondly the judicial control is a control after the event. One can seek a judicial remedy only after the damage has been done. However, the judicial decisions can provide good guidelines for future guidance of the administrative officers.
3. A number of statutory provisions prohibit the judiciary from taking notice of various administrative activities.
4. The process of seeking judicial remedy has become a very costly one. Ordinary citizens of the country do not have the financial resources necessary to seek such a remedy.
CREDITS: W. Mulei
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