http://lawschoolmaterialandcases.blogspot.in/2011/03/notes-on-administrative-law.html
LAW SCHOOL MATERIAL AND CASES Friday, 25 March 2011
NOTES ON ADMINISTRA ADMINISTRATIVE TIVE LAW NOTES ON ADMINISTRATIVE LAW
1. DELEGATED LEGISLATION 2. LOCAL GOVERNMENT-DEVOLUTION / DECENTRALIZATION OF POWERS 3. PUBLIC CORPORATIONS 4. DELEGATION OF FUNCTIONS 5. ADMINISTRATIVE TRIBUNALS 6. PUBLIC FINANCE 7. LICENSING 8. ADMINISTRATIVE LAW AS AN EXTENSION OF CONSTITUTIONAL LAW
DELEGATED LEGISLATION 1.
Delegated legislation is a necessary evil. Discuss
2. “Delegated legislation is an inevitable part of our process of government in these modern times.” Discuss the legal authority for delegated legislation in Uganda, the safe guards and control of delegated legislation and the functions of the same. Delegated legislation-laws legislation -laws made by subordinate legislative body under the authority of a statutory power. Delegated legislation also called subordinate or secondary legislation is made in the form of statutory instrument. A statutory instrument can be defined as where an Act confers on the President, a minister or any authority, a power to make a power to exercisable by making proclamation, rules, regulations by laws, statutory orders or statutory instruments, any document by which that power is exercised, shall be known as a statutory instrument, and the provisions of this Decree shall apply there to accordingly. A delegated legislation must not not conflict with the existing law, law, unless the enabling law so provides, it cannot override any Act. Types of Delegated legislation 1.
Orders-usually made by ministers e.g. to dissolve a public body
2. Regulations-by ministers. Regulations are the m eans through which substantive and detailed law is made, for f or example setting out how an Act is to be implemented. 3. Rules-set out procedures or the way in which the parent office deals with applications. May be made by ministers or if specified in the in the parent Act A ct by a senior judge. 4. Schemes-e.g. schemes made by the charity commission to amend how a charity is governed. 5. Directions-are means by which ministers give legally binding institutions to a public body about the way it exercises its functions 6.
Bylaws etc. The purpose of delegated legislation
1. Technicality of subject matter; legislation on technical matters necessitates prior consultation with experts and interests concerned.
2. Flexibility; e.g. the fine for adultery in Penal code is 600 and it is diff icult to change it because it requires the whole parliament to sit and reverse it instead of a simple act of a minister. 3. Delegated legislation may be given to the executive in order t o relieve pressure on parliamentary time and enable parliament to concentrate on principles rather than details. If parliament attempted to enact all legislation itself machinery, the legislative machinery would breakdown due to too much work(Bills) 4. Emergency action. Deal with emergency without waiting for parliament to sit. However it should be noted that regulations allowing emergency action apply only in war time. 5. Allows laws relating to technical matters to be prepared by those with the relevant knowledge. 6. Parliament may not be the best institution to recognize and deal with the needs of local people-local councillors know Demerits of delegated legislation 7.
It is subject to less parliamentary scrutiny than primary legislation.
8. Delegated legislation may be viewed as a way of removing controversial matters from parliament and putting them under the control of the Government because they are regarded as matters of detail e.g. immigration rules. 9.
Lack of publicity. Safe guard and control of delegated legislation
Reason for control Delegated legislation is made by non-elected bodies away from democratically elected parliament members. As a result, many people have to pass delegated legislation which provides a necessity for control as without control; bodies would pass outrageous and unreasonable legislations. E.g. in the case of S t r ic k l a n d v . H a y es B o r r o w C o u n c i l 1986, where a bylaw prohibiting the singing or reciting of any obscene language generally was held to be unreasonable as a result the passing of this delegated legislation was rejected. 1. Control by Parliament. This takes the form of laying delegated legislation before parliament. An act of parliament may require that rules and legislation made are supposed to be laid before parliament. This gives parliament an opportunity to scrutinize and criticize those regulations before they come into force. E .g. Section 38 (3) of the Inspectorate of government Act, No. 5 of 2005, provides that “any regulations made under this section shall be laid down before parliament within 21 days after publication in the gazette and shall cease to have effect if Parliament annuls them within 21 days after they are made… “ however, it should be noted that the issue of whether a provision of laying a legislation before parliament is mandatory or directory will normally depend on
the wording of the statute, that‟s why inStarey v. Graham [1899] 1 QB 406, court found that rules which were supposed to be laid before parliament but were not, were nevertheless valid. 2. Consultation. Unless the parent act makes it compulsory there is no general duty to consult interested parties with regard to proposed statutory instruments. It is widely accepted that central government apartments take great care to consult those bodies likely to be affected by legislation. E.g. Agricultural Horticultural and Forestry Industry training Board v. Aylesbury Mushrooms Ltd. [1972] 1 WLR .190. The Industrial training act required the Minister to consult any organization appearing to be (to him) representative of a substantial number of employers. The failure to consult the mushroom flowers association rendered any order made under the act ultra vires in so far as it sought to apply to members of the association. 3. Publication. S. 16 of the Uganda Interpretation Act provides, “ Every statutory instrument shall be published in the gazette and shall be judicially noticed.” The basis for publication is that in law, ignorance of the law is no defence. In Simms Motor Units v Minister of Labour [1946] 2 ALL ER 201, it was stated that a statutory rule or order must be published in a proper way for the information of the public and those who are bound to comply with the regulations. However, in R v. Sheermetal Craft Ltd, [1954] 1 ALL ER 542, where court held that after the statutory instrument has been made by the minister concerned and laid down before parliament; it became a valid statutory instrument. The other requirements of the act and the regulation in regards to the printing publishing and issuing of the instrument were merely matters of procedure and did not affect the validity of the instrument. This was because court was justified that reasonable steps had been taken to notify all those affected by the statutory instrument. 4. Judicial Control. Courts will normally determine the validity of delegated legislation by applying the test of ultra vires. This is done on this principle basis. a) If it violates the fundamental law of the land, especially the constitution. b) If it is not authorized by the parent Act. c)
If it is passed in bad faith
d) If it is unreasonable e) If it is vague and uncertain f)
If it sub delegates powers delegated upon it by the statute.
g) Once it fails to follow procedure laid down for its enactment.
In the case of Kasule v Attorney General, [1971] 29 EA , the plaintiff brought a premium development bank bond the number of which was drawn for a prize. The
government refused to pay the prize to the plaintiff relying on orders puportingly made by the minister to regulate the draw and imposing condition that a bond had to be brought more than two weeks before the draw to be eligible. Court held that the purported orders were ultra vires the Premium Development Bond Act. The conditions were therefore invalid and plaintiff entitled t o the prize.
LOCAL GOVERNMENT Question: 1. One of the democratic principles set out in the National Objectives and Directive Principles of State Policy state that “the state shall be guided by t h e p r i n c i p l e o f d e c e n t r al i z at i o n a n d d e v o l u t i o n o f g o v e r n m e n t f u n c t i o n s a n d p o w e r s to the people at appr opr iate levels where they can be best managed and direct
their own affairs.” a) Discuss the institutional framework of local government in Uganda meant to give effect to the above principles. b) How does a central government monitor and supervise activities at local government levels. c)
What is the procedure the Local Council should follow before enacting a bylaw? In Uganda, local governments were first incorporated in 1967 with the first local government Act. The local governments were to implement the government policies at a time. The government of Uganda has pursued implementation for the decentralization/ decentralized authority and policy which is enshrined in Chapter 11 of the Constitution and operationalized by the Local government Act, Cap 243 which gives devolution of functions, powers and services at all levels of local government. This policy is intended to increase the local democratic control and participation in decision making, planning, as well as mobilize support for development. Article 176 (1) provides that the system of local government in Uganda shall be based on the districts as a unit under which there shall be such local governments and administrative units as parliament may by law provide. Decentralization is the process of dispersing decision-making governance closer to the people and/or citizen. Devolution of powers is the statutory granting of powers from the central government of a sovereign state to government at a subnational level, such as a regional, local, or state level.
Article 176 (2) provides that the following principles shall apply to the Local government System.
a) The system shall be such as to ensure that functions powers, and responsibilities are developed and transferred from government, local government units in a coordinate Manner. b) Decentralization shall be a principle applying to all levels of local government and in particular from higher to lower local government units to ensure peoples participation and democratic control in decision making. c)
The system shall be as such as to ensure full realization of democratic governance at all local government levels.
d) There shall be an established for each local government unit of sound financial base, with a reliable source of revenue. e) Appropriate measure shall be taken to enable local government units to plan initiate and execute policies in respect of all matters affecting the people within their j urisdictions. f)
Persons in the service of local government shall be employed by the local governments and
g)
The local government shall oversee the performance of persons employed by the government to provide services in their areas and to monitor the provisions of government services or implementation of projects in their areas. The devolution form of decentralization adopted in Uganda was meant to specifically achieve the following objectives.
i.
Transfer real power to local governments and reduce the workload on remote and under resourced offices.
ii.
To bring political and administrative control over the services to the point of delivery.
iii.
Improve financial accountability by establishing a clear mode of payment of taxes and provision of services.
iv.
Improve local capacities to plan, finance and manage service delivery for their constituencies. The LGA (Local Government Act Cap 243) was passed for purposes of giving effect to the principles of decentralization. S. 2 gives objectives of the Act. Which include; a) To give full effect to the decentralization of functions, powers, responsibilities and services at all levels of local governments. b) Ensure democratic participation in and control of decision making of people concerned. c)
Establish sources of revenue and financial accountability inter alia. EXECUTIVE POWERS OF LOCAL GOVERNMENT Article 180-local governments shall have both executive and legislative powers which must be exercised in accordance with the constitution. Executive powers relate to t he
initiation, formulation, and implementation of policies. Section 161 LGA established the District Executive Committee which shall perform the executive functions of the council Section 16 (2)-district executive Committee shall consist of chairperson and such number of secretaries not exceeding 2 as the council may determine. Section 17 stipulates the functions of the Executive District Committee which include initiating and formulating policy for approval of the local Council implementation, and monitor performance. S. 3 (1) provides that, the system of local government shall be based on the district as a unit under which there shall be lower local governments and administrative units. S. 3 (2) stipulates that the Local Governments in a district rural area shall be district council, sub county council. The local governments in a city shall be the city council, cit y division‟s council and the local government in a municipality shall be municipal council, the municipal division council and finally, the local government in a town shall be the town council. It should be noted, that every local government is a body corporate with perpetual succession, and may sue or be sued in its own name. S. 9 provides that a council shall be the highest corporate authority between the area of jurisdiction of a local government and shall have executive and legislative powers to be exercised in accordance with the constitution and LGA. The executive functions of the Local Government must be in line with the powers given to each local council. The Second Schedule for the LGA gives powers t o the local government in a district council to the lowest unit. The executive function of each executive committee must be approved by the executive committee itself therefore; the committee is a final authority in any district. FINANCIAL POWERS Article 176 provides that local councils shall have reliable sources of revenue and they should be able to plan, initiate and im plement their own projects. The, major source of local government funding are the grants from the central government which are provided for under article 175. These types of grants include an unconditional grant that is money given to the district is payment of services, conditional grants which are monies given to the local governments to finance projects agreed upon between the local government and the central governments. Equalization grants are also given from the central government to the local government for the purposes of equalizing districts which are lagging behind in development. The grants which are given to the l ocal government are normally determined by the local government commission which is established under article 194. This financial body assists the president to determine the financial needs of each district.
Section 17 of the local government Act provides that the local government many levy, charge, or collect fees and taxes. This includes rates, rents, stamp duties, loyalties, licensing fees and interests. Control of local government expenditures 1. Through the budget. Sec 77[LGA] provides that a local government must each year have a budget. 2. Section 82 provides that no appropriation funds by local governments shall be made out of the funds by government unless approved in the budget of the local council. 3. Section 92 creates district contract committees which create a procurement and disposal unit in every district which is charged with awarding contracts in accordance with the public procurement and disposal of public assets. Every district must have a district account committee which takes and reveals how government funds are used 4. Local governments are subject to investigations by the office of the IGG who can recommend appropriate action in cases of financial mismanagement. 5. Every local government is entitled to have an internal auditor which the auditor general may have identified. 6. Keep proper books of accounts for accountability and all local governments must be audited by the office of the office auditor general. Control from the central government 1.
The line minister has powers under local government Act to coordinate activities within a particular local government and make recommendations .
2.
The inspector of government has powers to investigate any matter relating to abuse of office.
3.
Other controls lie in the office of the RDC per section 70 and 71. Legislative powers 1. Section 38(1) gives local government legislative powers. Thus local governments have powers to enact ordinances within their local areas of jurisdiction. An ordinance is a law made by Local District Council. This law must not conflict with the he Constitution of any other law. 2. S. 38 (2) a local bill passed by a district Council shall be forwarded to the Attorney General through the minister to verify the bill. 3. S. 39 empowers lower Local Council to make bylaws not inconsistent with the constitution or any ordinance or a bylaw made by a higher council.
PROCEDURE FOR PASSING A BILL r d
See sectio ns 30, 38, 39 LGA, and th e 3 Schedule of the LGA u nder Part IV of Rule 15 (1), Regu lation , 15 (1-3) Regulati on s
Regulation 16 (1a-d) methods of publication Regulation 17, (1-2), Bill to have a title Regulation 18 (1), Ordaining clause Regulation 19, Distribution of copies of a bill to a member(s) , (1-8) Debating the bill Regulation 20 Regulation 21, (1-3) Signing a bill into an ordinance and publication Regulation 22, (1-6) the procedure for making bylaw ADMINISTRATIVE POWERS OF LOCAL AUTHORITIES Article 176, Local Government shall control and employ their own stuff. S.56 provides that the power to appoint persons to hold or act in any office in the service of the district of urban council. S. 63, establishes the CAO. S. 64 stipulates the functions of CAO. NOTE-I used the Local Government Act of 2006
PUBLIC CORPORATION QUESTIONS 1.
Public Corporations are a drain upon our meager resources and hence we are probably better off doing away with them as a country.”
2.
Discuss this statement clearly outlining the role of publi c corporations and why a significant section of the general public is disgrun tled with them. A corporation is an institution that is granted a charter recognizing it as a separate legal entity having its own privileges and liabilities distinct from those of its members. A corporation means a legal entity.
There are two types of corporations. 1. Corporation sole constituted of one person who has been incorporated by law such as the Administrator General, the AG, the Registrar of Tittles, the IGG etc., 2. A corporation aggregate is constituted of a group of individuals such that they can act, control or hold property in the name of that group. In Uganda, legal entities which are incorporated under the Companies Act, Cap 110 are known as companies. A public corporation is a corporate body established by law to carry out certain specified functions for one reason or another that cannot be appropriately done by the government, a government ministry or department. See S. 170 Companies Act. They are a means of implementing certain aspects of socio-economic policies of government. Examples, Uganda Investment Authority An important feature of a Corporation is limited liability. If a corporation fails, shareholders normally only stand to lose their investments and employees will lose t heir jobs, but neither will they be further liable for debts that remain owing to the corporations creditors. TRAITS OF PUBLIC CORPORATIONS a) Corporate status as a legal entity, b) Created by Specific statutes passed by the legislature, which spell out the functions, sources of funds, management of the relevant corporations. c)
Largely independent of the central government. They are not government they are managed by a board of directors. However, they are al ways under the general control of the Line ministers and are subject to ministerial control.
d) They have perpetual succession and a common seal. CLASSIFICATIONS OF PUBLIC CORPORATIONS Public corporations may be classified according to the f unctions for which they are created, namely. a) Development corporations. i.
Some development corporations are set up to promote development of a sector of the economy. I.e. Wildlife Authority, Uganda Tourist Board f or the tourism sector.
ii.
Some development corporations are set up to provide public utilities, e.g. Uganda national Water and Sewage Corporation. NOTE: Many Utility Corporation have since been privatised, i.e. UMEME. In the past, it was argued that public corporations could generate capital for reinvesting in the economy that it could attract foreign investment developing infrastructure that was not
attractive to private investors etc. but t hese conceptions have since been departed from. It is now argued that these functions can be performed better by private enterprises. b) Regulatory Corporations. E.g. i.
Uganda land Commission is set up for the purpose of granting alienating and controlling public land on behalf of the government.
ii.
National Drug authority to regulate the manufacture, importation and sale of pharmaceuticals ion the country. c)
Finance Corporations. Bank of Uganda, Uganda Development Bank
d) Marketing boards. In as much as these have been phased out, they include the Coffee Marketing Board, Lint Marketing Board. e) Educational, cultural and public amenities Corporations, e.g. LDC, Makerere University and UMI (Uganda Management Institute). f)
Cultural. Trustees of Nakivuubo War Memorial Stadium T rust, etc. PURPOSES OF PUBLIC CORPORATIONS
a) Regulatory purposes, for controlling a particular sector, e.g. Uganda Communication Commission regulates, issues of License, radio stations and TVs b) For service delivery i.e. to deliver specialized service. c)
For purposes of handling technical/ scientific matters which cannot be conveniently carried out within government.
d) For commercial purposes, i.e. to make profits for example Uganda Development Corporation, in 1950‟s. ADVANTAGES OF PUBLIC CORPORATIONS OVER GOVERNMENT DEPARTMENTS a) It is argued that civil service methods are sometimes slow and inefficient and inappropriate for the management of a public enterprise. So independent units perform more efficiently government functions than the bureaucratic civil service. b) Establishment of public corporations enables the exclusion of direct political control. c)
Public corporations make it easy to take into account the interest and view of other interested parties by having them represented on board.
d) Establishment of public corporations is a cheaper method of managing public service because it is possible to introduce commercial principles and make the services pay for themselves instead of draining the government funds. CONTROL OF PUBLIC CORPORATIONS
a) Ministerial control. Although public corporations are supposed to be independent of the Central Government, they are still subject to control by relevant ministers. b) Parliamentary control. It is parliament which creates pubic control; likewise they can abolish the corporations or reduce their powers. c)
Financial control. The statutes creating public corporations require each one of t hem to break even especially commercial and industrial corporations. The Act will require that the public corporation‟s account be audited by the Auditor General‟s nominee. The accounts are laid before Parliament by the Line Minister.
d) Judicial Control. Public corporations can sue or be sued, and their decisions or actions can be reviewed by the high Court and orders of Certiorari and Mandamus etc. can be issued against them.
DELEGATION OF FUNCTOINS Question “Delegetus non potest Delagare” Discuss. Delegation of powers and functions is an administrative process where the powers and functions for the superior officer are carried out by an authorized junior officer. Under Administrative Law, the maxim, Delegetus non potest delagara is always invoked. It essentially means that a delegate cannot sub delegate what he is supposed to do. Otherwise the courts would condemn as ultra vires the actions taken by people not specifically authorized. EXECUTIVE DELEGATION Articles 99 (4), (5) of the Constitution allow the President to delegate some powers. I n A m o s M u g i s h a v . U g an d a the applicant was detained under a detention order which
was signed by the minister for the president and was authenticated by a public seal. Upon challenge of such order, the Court noted that whereas the power to make a detention order in this country, (S.1 Public Order and Security Act 1967) is vested in the president, such power may be exercisable by such minister as the President may authorize on that behalf. It is clear that the president may delegate his power or authority. MINISTERIAL DELEGATION
When powers are conferred upon ministers who are in charge of large departments, it‟s obvious they will not be exercised by the ministers in person. Officials in the ministers department acting in his name, customarily exercises these functions. In C ar l t o n L t d v . C o m m i s s i o n e r o f W o r k s [ 1 9 43 ] 2 ALL ER .560 the owner of a factory, challenged a wartime requisitioning order made on behalf of the commissioner of works which was signed by an assistant secretary claiming that it was ultra vires however, the Court of Appeal held that this procedure was open to no legal objection. Lord Green Said “…It cannot be supposed this regulation meant that in each case the minister in person should direct his mind to the matter. The duties imposed upon ministers and powers given to ministers are normally exercised under the authority of the minister by responsible officials of the department. Constitutionally, the decision of such an official is of course the decision of the minister. The minister is responsible; it is him who must answer before parliament for anything that his officials have done under his authority.” JUSTIFICATION FOR DELEGATION OF POWERS 1. Nature of duties- senior officers are always given numerous duties which are equally important and have to be discharged within a limited period. It thus becomes legally logical for such officer to delegate some of the tasks to their juniors. 2.
The requirement of efficiency and timely delivery of services.
3.
Delegation ensures personal development thus capacity building.
4. Specialization of functions- Delegation may be done with a view that particular officials will concentrate on particular areas 5.
Civil servants who excel are recognized. See Article 99 (3) and (4)
6.
Delegation of powers in Uganda is covered by the Common Law.
Actions taken by people who do not possess power or have authority to do so may be condemned as ultra vires. In V i n e v N at i o n a l D o c k L a b o u r B o a r d , The plaintiff was a recognized Dock worker employed in the reserve pool but the National Dock Labour Board under a scheme set up under the Dock workers. The National Board had the duty of delegating as many as possible functions, inter aliapowers to the disciplinary committee. After the plaintiff failing to obey a valid order, his employment was terminated and then dismissed. It was held inter Alia that the plaintiff‟s purported dismissal was a nullity since the local board had no power to delegate its disciplinary functions. Judicial authority normally cannot be delegated. In Barnard Others v. National Dock Labou r Board the power, to discipline the Dock
workers was vested in the Dock board. However, Barnard was disciplined by the Dock manager. It was held that the local board had no power express or implied to delegate its quasi-judicial disciplinary functions to the port manager or to ratify his purported exercise of these functions and the original notices of suspension were therefore a nullity and the decisions of the appeal tribunal based on these grounds were equally a nullity.
RATIFICATION Ratification is a process where a public official acts without authority, but his act is subsequently approved by the rightful authority. Ratification can cure all anomalies of a citing without authority if it is done before the act done becomes a subject of dispute. In Munic ipal Counc il of Mom basa v Kala [1955]22 EACA .319 the bylaws of the council empowered the workers board to demolish all buildings. Kala‟s building was demolished and Kala sued the board for trespass and demolition of the building. It was held that the demolition of the building was a tortuous act against the owner, because the serving of the notice by the town council and the engineer was ultra vires to their powers, that the purported ratification by a full board could not cure the invalidity of the notice.
TRIBUNALS Questions: 1. Critically evaluate the justification of Administrative tribunals in resolving disputes. 2. “Administrative tribunals are totally unnecessary in resolving disputes since the matters normally end up in the courts of law.” Discuss. Administrative law is a branch of public law which deals with or concerns the exercise of power, by public authorities to execute public functions. Administrative law facilitates, regulates and controls the administrative processes. Its main thrust is to ensure that public power isn‟t abused or used as a detriment to the people. Administrative authorities are either public officials or authorities entrusted with the duty to discharge public functions. Public functions, are those expected to be delivered by government which is entrusted with looking after the general welfare of the public. Administrative tribunals are examples of administrative authorities. Tribunals – bodies with judicial or quasi-judicial functions set up by statute and they exist outside the usual judicial hierarchy of courts. Or, institutions setup to adjudicate over issues of an administrative nature. They are courts of law in the sense that they enjoy judicial powers, however, they can be distinguished from the ordinary courts of law when one considers the membership and procedures followed by tribunals. Reasons for Setting up Tribunals
Basing on the fact that the machinery of the courts is not suited for settling each and every dispute which may arise out of the work of the government there is need to create administrative tribunals. Reasons for setting up tribunals were laid down by Lord Pierce in A n i s i n i m i c v . F o r e i g n Co m p e n s a ti o n C o m m i s s i o n to include ensuring speed, cheapness and expert knowledge; 1.
Desire for a procedure that avoids the formality of the ordinary courts.
2. Desire for a speedy cheap and decentralized determination of a very large number of individual cases. 3. The need for expert and specialised knowledge on the part of the tribunal which courts may not have despite it having a wide jurisdiction. Much as a litigation of a particular social or economic activity, require expert knowledge and in depth understanding of the area being regulated e.g. Labour disputes require experts in labour law. 4.
Need to avoid the danger of imposing too many burdens to the ordinary courts.
5.
Desire to implement new social policy.
6. The restrictions imposed by legal restrictions, for example, there might be no need for a precedent, the tribunals can decide these cases without these principles but they have to be flexible in performance, approach and principle. 7. The litigation procedure does not produce the right atmosphere for the working of certain schemes like social insurance schemes. Functions of Administrative Tribunals 1. To settle disputes that may arise between individuals and public authorities, e.g. evaluating tribunals set up to consider disputes between rent payers and local authorities. 2. To settle disputes between private individuals which relate to policy implementation, e.g. rent restriction tribunals are set up under the Rent Restriction Act which aims at regulating rent payable to property owners. 3. To regulate socio-economic activities. This is basically regulatory with both powers to basically settle disputes e.g. The Transport Licensing Board is a tribunal whose main objective is to regulate the transport industry with the powers to adjudicate over disputes over any person. A balanced tribunal usually consists of an independent chairperson who is usually legally qualified. InEquator Inn Ltd, v. Tom asyan it was held that a chairman means a dully appointed chairperson and his presence is necessary before the tribunal has quorum. In the absence of a chairman, the proceedings are a nullity.
A tribunal consists of two members representing opposed interests. In R v. Indu strial I n j u r i es C o m m i s s i o n E x p a r t e Ca b l e industrial cases involving personal injury were heard by qualified doctors where the issue required medical diagnosis. Procedure of Tribunals Article 6 (1) of the Human Rights Convention states that in handling disputes, tribunals are embedded with a duty to ensure fair and public hearing before an independent and impartial tribunal. In De Souza v. Tanga Town Cou ncil [1961] EA 377 the right to be heard was recognised where the proceedings were conducted in the absence of De Souza and his lawyer. Court held that he had not been heard. IN R v U n i v e r s i t y o f C a m b r i d g e where Bentley had been deprived of his degree without giving him an opportunity to be heard, one of the judges observed that even Adam had been called upon by God to meet the challenge of having eaten a bite of the forbidden fruit before suffering expulsion. The act of the University was declared a nullity. Article 44 of the Constitution recognises the right to a fair hearing as non-derogable. All tribunals which conduct disciplinary proceedings must give notice to the charged party who must be given a right to be heard. In Ridge v. Baldw in [1964] A C p.40 Herman LJ said “i t i s o n l y f a i r p l ay i n a c t i o n . It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity for defending himself and in order that you may do so he is to be made aware of the charges or allegations which he has to meet”. Article 42 of the Constitution provides that: Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her. In Mum ira Mum ira v NIC [1985 ] Justice Karokora states that the principle of natural justice “ audi alteram p artem ” (right to be heard) must be observed by both judicial and administrative tribunals. Where a decision is arrived at in utter disregard of this fundamental principle of natural justice, that decision is a nullity. This principle involves reception of relevant evidence, disclosure to all parties, the opportunity to examine, cross examine witnesses and the opportunity for argument. The tribunals‟ decision must be based exclusively on the evidence given before it. It is of the essence to understand that some tribunals have powers to summon witnesses and to order production of document. Disobedience is a punishable offence. Immunity and Privileges of Tribunals Members of tribunals, parties and witnesses who appear before it are entitled to personal immunity as applies to courts of law. Witnesses are not liable if evidence is defamatory as well as members of the tribunal are not liable.
Public Finance Questions: 1.
How is public finance controlled in Uganda
2. Critically examine the role played by legislation in the regulation of use of public finance by public authorities in Uganda. The constitution provides for management of public funds under Chapter 9 i.e. Articles 152 to 164. Article 152 (1) - a collection of taxes which is the major source of revenue other sources being fees, loans and grants. Government Budget Process The Budget Act 2000 provides for and regulates the budgetary procedure for efficient budgetary process. The Act defines the budget as a process by which government sets levels to efficiently collect revenue and allocate the spending of resources among all sectors to meet the national Objectives. Article 153- states that there shall be a consolidated fund into which shall be paid all revenues and other monies raised or received for the purpose of or on the behalf of or in trust for the government. A consolidated fund is one which consists of taxes and any other revenue payable to the State. Article 154 (1) – no money shall be withdrawn from the consolidated fund except: a) To meet the expenditure charged on the fund by this Constitution or by an Act of Parliament b) Where the issue of those monies has been authorised by an appropriation Act. No money shall be withdrawn from the consolidated fund unless the withdrawer has been authorised by the Auditor General. If the president is satisfied, then he can sign for release. Appropriations Act
This law is adopted by Parliament every year to authorise the Executive to finance goods and services required by any ministry or government departments in the financial year in question. The Appropriations Act once signed by the Head of State, finances the budget process for any one financial year. Vote on Account (VOA) VOA is a sanction of Parliament for withdrawal of money from the consolidated fund to meet the government expenses before Parliament approves the budget. It is not meant to last longer than 3 months. VOA is only on expenditures appropriated by Parliament and not on statutory expenditures. Appropriated expenditures must be debated and voted by parliament. However, statutory expenditures are directly charged on the consolidated fund by the constitution or an Act of Parliament. NOTE: Statutory expenditure requires no Parliamentary approval as they are already State obligations, i.e. Public Debt, pensions salaries of state officials e.g. Presidents, vice-President, Prime Minister, Chief Justice etc. Money voted by Parliament under the Appropriations Act (the Budget) is to finance government services through the country. The law requires the Auditor General, when satisfied with the correctness of those warrants to give approval to those warrants before money can leave the consolidated fund account. It should be noted that the right to authorise public expenditure is vested solely in Parliament through the enactment of the Appropriations Act. The Public Finance Act 2003 (PFA) The Public Finance and Accountability Act 2003 was enacted with the purpose to, “provide for the control and management of the public finance of Uganda, for the audit and examination of public accounts of certain statutory bodies and matters connected therein.” The Auditor General and the National Audit Act 2008 (NAA) This gives effect of Article 163 of the Constitution of Uganda- Auditor General. Article 163 (1) and S. 4 of the National Audit Act provides for the appointment of the Auditor General that he shall be appointed by the president with the approval of Parliament. Article 163 (6) and S. 14 of NAA state that the Auditor General shall not be under the control of any authority. Article 163 (3) (9) and S. 13 of NAA – to audit and report on public accounts of Uganda and of all public offices including the courts, the central and local government administrations, universities and public organisations established by an Act of Parliament.
Article 154 (3), S. 83 (2) Local Government Act (LGA) provides that the Auditor General as the sole authority to give approval for any money to be withdrawn from the consolidated fund account, the general fund account or any district account. Auditor General as an Auditor Section 24 PFA states that “the Auditor General shall on behalf of the Parliament examine, inquire into and audit the accounts of all accounting officers, and receivers of revenue and all persons entrusted with collection, receipt, custody, issue, sales, transfer or delivery of any stamps, securities, stores or any other government property, to ensure that all public moneys have been dealt with in accordance with proper authority. S. 25 (1) PFA obliges all public officials to give documents or any explanation whenever required by the Auditor General Public Accounts Committee (PAC) This examines the Auditor General‟s report and enforces accountability of the officials of the executive after detailed interviews. Inspectorate of Government Act 2002 (IGG) Article 223 establishes the functions of the Inspectorate of government, while Article 225 (1) spells out the function. S. 10 of the IGG Act 2002 gives the Inspectorate independence in performance. S. 14 (5) gives special powers to investigate, cause a legal action where public office is misused. Leadership Code Act 2002 S. 8 provides for penalties. There is no doubt that the imposition of a code of conduct on leaders and requirement of them to declare their wealth is a necessary requirement in the fight against abuse of office. In Conclusion, there are many players in control of public finance, which include the Legislature, Executive, Ministry of Finance Planning and Economic Development, Auditor General‟s Office and Central Bank.
Licensing under Administrative Law Question: discuss the role and importance of licensing in Administrative Law. A license is a conditional permit or authority granted by government agency for purposes of allowing a particular person to carry out an activity which would be illegal without that permit. There are two categories of license: 1. General license- opens a whole field of activity to an individual. It is usually granted to business people and professionals. 2. Specific license- is granted to a person to carry out a specific action and it expires when such action has been accomplished. E.g. a license to kill an elephant or to import goods expires as soon as the elephant has been killed or the goods are imported respectively. Purpose of Licensing 1. Prevention of harm to the public. This is particularly so in the case of Occupation licenses before one can be allowed to practice e.g. Medicine he must first get a license. The government must first be satisfied with his qualification and his reliability to carry out such work. 2. Human safety. This applies to such things as factories, blasting operations, mines etc. the licensing authority must satisfy itself that there is no risk to human beings when that activity is being carried out. 3. To ensure efficient services to the public. This is the case in transport licensing. The transport licensing board is required to satisfy itself, e.g. a bus operator will provide efficient services to the public at reasonable prices. 4. To maintain a monopoly. A natural monopoly can be defined as a service that can be efficiently provided by one operator, i.e. . . Uganda Water and Sewage Corporation. 5. Conservation of natural resources. Access to natural resources is restricted to license holders only. E.g. hunting of animals, timber exploitation. 6. As a method of controlling the manufacture, storage and consumption of alcoholic beverages. E.g. the Liquor Act cap. 3 forbids any person from manufacturing or selling alcoholic beverages without holding a valid license.
7.
Government gets revenue.
8.
Control of socially undesirable activities e.g. gambling.
9.
Reduction of congestion on streets/ dealing away with hawkers.
10.
Control of potentially offensive activities e.g. Sale of firearms.
11.
Aimed at controlling development and town planning.
12. Licenses may also be used for purposes of promoting of certain government policies e.g. Trade licensing Act of 1969 which barred non-citizens from obtaining trade licenses for trade activities in rural areas. 13. Used to promote investment, e.g. the Investment Code Act. Licensing is used to ensure that only people with a certain amount of capital can come and establish certain investments. 14. License is also used as a tool of conservation of resources, e.g. the mining Act. A person cannot carry out mining activities without a license. Read the following in line with the above compilation on licensing. 1.
Illegality: S. 5 (b) Industrial Licensing Act, Cap. 91
2.
Promotion of Investment : Investment Code Act Cap 92- S.6
3.
Enguli Act Cap 86 Section. 2
4.
Firearms Act Cap 299 See Preamble and Section. 3
5.
Advocates Act Cap 267 for professionals
6. Dent v. Kiamb u Liq uor Incens ing Cou rt [1968] EA where it was held that court has a right to deny a renewal of the license basing on the law on ground. The reasons for refusal should be restricted only to those j ustified under the law. In this case, she had refused to serve liquor to people who were not members to the club thus being denied the license. 7. F er n a n d e z v . K e r i c h o L i q u o r L i c e n s i n g C o u r t it was held that the refusal to renew the license basing on the question of citizenship was illegal. Court further held that for one to be denied a licence of renewal, it has to be done in regard to the manner of operation and condition of operation.
QUESTION: D i s c u s s t h e d i f f e r en t c o n s t i t u t i o n a l p r i n c i p l e s t h a t g o v e r n a d m i n i s t r a t i v e l aw a n d analyze whether they are a reality. Introduction
Article 42 of The Constitution [1][1] states that; “Any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her.” From this article, stems a branch of public law known as administrative law. Administrative law can thus be defined as the law relating to the control of government power .[2][2] All administrative authorities (that is public officials) are subordinated to this law; right from the cabinet members to the local government authorities. Wade[3][3] submits that the primary purpose of subjecting them to this law is to keep the powers of government within their legal bounds so as to protect the citizen against their abuse. To meet this end, a couple of constitutional principles have developed over time and these are believed, by many Jurists, to be the constitutional principles governing administrative law. The purpose of this writing is to discuss these principles and examine whether or not they are a reality. This task I believe I have ably executed below. The Doctrine of Separation of Pow ers .
The modern day philosopher, Montesquieu [4][4] from whom this doctrine was developed described government in this form; “ In every government there three types of powers: the legislative, the executive and the judiciary. The executive in respect of things dependant on the law of the nation and the judiciary in regard to matters that depend on the civil law….. by virtue of the f irst , the prince or magistrate enacts temporary or perpetual laws and amends and abrogates those that have been enacted. By the second he makes peace or war, sends or receives embassies, establishes the public security and provides against invasions. By the third he punishes criminals or determines the disputes that arise between individuals, the latter, we shall call judicial powers and the other simply the executive power of the state.” Montesquieu in this same book [5][5] went on to define separation of powers as a principle whereby the three organs of government as listed above are kept in separate compartments. This means that no organ of government should exercise the functions of the other that is the judiciary should not exercise the functions of the legislature or executive mutatis mutandis, no organ should be in position to control t he other most especially the executive controlling the legislature and judiciary and that persons or agencies in one organ should not be permitted to hold posts in another.
It is imperative to note at this point that this doctrine in its extreme nature is just ideal and not only unrealistic but also undesirable. Keeping the arm s of government in such water tight compartments would easily cause stagnation in the flow of government business because of the rigidity of the doctrine. Rather, a more practical approach to this doctrine is applying a system of checks and balances whereby each organ operates with the consent of the other two and the consent ought to be spontaneous not coerced. This is the more practical approach and to a great extent is alive in Uganda. A classic example of these checks and balances at work is t he case of Ssemwogere and Olum[6][6]. In this case, the petitioners challenged the validity of the Constitutional amendment Act[7][7] which sought to amend articles 88-90 of the Constitution. The bill for the Act was passed in two days which was inconsistent with the constitution. The constitutional court held that the amendment had been in accordance with the l aw but this decision was quashed by the Supreme Court that held that the Act was null and void because it was passed in total disregard of the Constitution. In passing such a decision, the judiciary was able to check on the legislature‟s powers and those in the executive who pushed for this bill in Parliament especially the President who had assented to it. However, despite advancements in this area in Uganda, this system of checks and balances still has loop holes in Uganda for example, despite the overwhelming evidence that the Security Minister Amama Mbabazi had exerted undue influence in getting the National Social Security Fund to buy his land at Temangalo at an inflated price, he was exonerated by the National Resistance Movement caucus in Parliament and this largely believed to be because he is the Secretary General of the National Resistance Movement. Since the government Members of Parliament are the most, their exonerating him caused him to get away with corruption unscathed [8][8].
Independence of the Judiciary
Closely related to the doctrine of separation of powers above is the independence of the Judiciary. Since disputes in administrative law involve public officials and public powers, an independent judiciary is a great necessity. Independence of the judiciary means a judiciary that makes decisions that are totally based on evidence before them and not extraneous matters. Peter Oluyede [9][9], in expounding on this doctrine, explained that in criminal cases, the courts should not convict or acquit because they believe a particular verdict will please the government of the day and in civil cases, courts ought not to consider the relevant importance of parties or even the political consequences of their decision rather, he says, that the courts only ought to find the facts and apply the relevant principles of law in any particular situation. In Uganda, the judiciary is enabled to be independent by Article 128[10][10] . This Article provides that in the exercise of judicial power courts shall not be subject to the control or direction of any person or authority. Subsection 4 of the same goes on t o provide that a person exercising judicial power shall not be liable to any action or suit for any act or omission by that person in the exercise of judicial power. Subsection 6 of the Article provides that the judiciary will
be self-accounting and subsection 7 that the salary, allowances and priviledges of a judge are not to be varied to the disadvantage of a judicial officer. These subsections and others under this Article ensure the independence of the judiciary by providing for security of tenure, financial benefits and judicial immunity. However, despite all these measures to ensure the independence of the judiciary, the executive in Uganda has many times been „caught‟ trying to undermine the position of the judiciary. Very fresh in the memory is the “Black mamba” inciden t[11][11]. According to Georgette Gagnon, deputy director of Human Rights Watch, milit ia men draped in military fatigue and black T-shirts surrounded the High Court to intimidate the j udges and thwart the decision to release on bail the 22 men suspected to have been plotting treason. This siege in November 2005 of the High Court was condemned by the Principal Judge of Uganda as “a despicable act” and a “rape of the judiciary.” Such acts go to prove that despite the constitutional provisions in place, once in a while the Executive tries to intimidate the judiciary but we can say on the whole that the judiciary has stood courageous and is independent making the independence of the judiciary a reality in Uganda.
Rule of Law.
Rule of law simply means that everything must be done according to the law [12][12]. Therefore, every government authority that does not act which is o therwise wrong for example taking one‟s land (infringing on liberty) m ust justify its actions as authorized by law. Professor Dicey [13][13] put forward that the rule of law entails absolute supremacy of regular law, equality of all before the law and the rule according to the constitution. Rule of law is essentially meant to create an atmosphere of law and order where the citizen can easily enjoy liberty and the pursuit of happiness. In pursuance of this end, the International Commission of Jurists sitting at New Dehli in 1995 suggested a code of conduct of eight clauses some of these are looked at briefly [14][14]; Clause I essentially deals with the executive or other like agencies such as public corporations being able to make rules having legislative character. This is happening in Uganda as in Local Councils formulating law s[15][15]. However, to ensure proper rule of law, this power has to be within the narrow limits stipulated by the legislature and the extent to which must also be stipulated. This is very evident in the case of Ibingira I[16][16] where it was held inter alia by the learned that the Deportation Ordinance (put in place by the line minister) was void for being inconsistent with the provisions of the then constitution of Uganda. Clause III says that judicial review of delegated legislation maybe usefully supplemented by a procedure for supervision by legislature or by an independent authority either before or after such legislation comes into effect. Clause V provides that in general the acts of the executive when directly and injuriously affecting the person or property or rights of the individual should be subject to review by the courts. This was seen practically in the case of Shah V Attorney General [17][17] where the court compelled the government to pay according to a government order which the
government had ignored. The applicant had obtained judgment against the government for Ushs 67,500. The government refused\ failed to pay and the applicant brought this motion for an order mandamus directed to the officers responsible for the payment. In light of the above, rule of law is, to a great extent, a reality in Uganda. Needless to say at times the rule of law in Uganda is abused by some individuals typified in the words of the Coordinator Security Services in reaction to the High Court‟s holding that the General Court Martial had no jurisdiction to hear cases of terrorism [18][18]. He said, “ … who are these fellows (the judges)? The judges have no power to order the army. The army will not accept this business of being ordered by judges . [19][19]” Such attitudes are some of the few things stifling the flourish of rule of law in Uganda. Ministerial and Collective Respon sibility .(Art.117)
Ministerial responsibility is a doctrine that provides that members of the Executive should be responsible for their activities and should be accountable how they use their powers. This may entail individual accountability to the President(Art.117) or individual to Parliament since according to Article 118 of the Constitution Parliament can censure a minister. This doctrine requires a minister to explain to parliament his own actions and the actions carried out on his behalf. For example, where a civil servant is believed to “misbehaving”, the line minister will be called to account. His task then will be to investigate and take the appropriate disciplinary action if necessary. The minister will lose the confidence of parliament for serious misconduct in his administration, if this happens, he will be required to resign or will be dismissed. A good example of this is the time former Finance, Planning and Investment minister Sam Kutesa was censured for being found in a situation of conflict of interest contrary to the leadership code of conduct by allowing ENHAS (Entebbe Handling Services) a company he chaired to buy the national carriers shares in the cargo firm below market value and also writing off as a bad debt USD 400,000. In dong this he caused Uganda Airlines great financial loss[20][20]. However, there times when this doctrine fails to be realized because most times Members of Parliament are on the government side unable to attack their own and at times they are compromised (corrupted) to adamantly look on cabinet misconduct as was stated by one Member of Parliament, Odongo Otto [21][21]. Collective responsibility on the other hand means that all members of the executive are responsible for all government decisions and are to support each other on policy matters.[22][22] This principle essentially means cabinet solidarity and is m eant to ensure that policies and decisions are made in line with the requirements of good administration as provided for in Article 111 of the Constitution of Uganda. A celebrated depiction of collective responsibility in Uganda is the clash between former President Milton Obote and his Minister of Planning and Economic development, Hon.
Obwangor [23][23]. Mr. Obwangor in a speech made in the National Assembly criticized the government proposals for a new constitution for Uganda. This was contrary to Section 43(2) of the then constitution of Uganda which provided for collective responsibility of cabinet members. As a result of the speech, a couple of letters were exchanged between the two and this culminated in the dismissal of Mr. Obwangor from cabinet. He also had to cross the floor to the opposition side of parliament. Key to note is that administrative justice demands some regular efficient and nonpolitical system of investigating individual complaints against the powers that be and this exactly what ministerial responsibility does not provide because of i ts political nature. To deal with this , administrative tribunals have been set up in Uganda and no minister is responsible for their decisions although such decisions are subject to judicial review. Evidence of tribunals fully functioning in U ganda with clear guidelines can be drawn from the different cases such as Equator Inn V Tomasyan [24][24] where it was held inter alia that the chairman‟s presence is necessary before a tribunal has Coram and that a minister has power to appoint persons to a tribunal. H u m a n R i g h t s a n d C i v i l L i b e r t i es .
Human Rights are the rights a person has simply because he or she is a human being[25][25]. These were adopted by the United Nations in 1948 observing them as t he foundation of freedom, justice and peace in the world. It is thus a generally agreed upon issue that a good constitutional framework must have a Bill of Rights which declare rights available to all in the country. This principle is very relevant to administrative authorities because through their decisions can either let people enjoy their inherent God-given rights [26][26] or be denied of them. As already mentioned they are God given and thus only declared in the Ugandan constitution in Chapter four. From a general point of view, the constitution declares equality and freedom from discrimination in Article 21, right to life in Article 22, protection of personal liberty in Article 23, respect for human dignity and protection from inhuman treatment in Article 24 a right to a fair hearing in Article 28 and Article 29 provides for the protection of freedom of conscience, expression, movement, religion, assembly and association. However, Article 43 provides that the enjoyment of these rights may be limited where they prejudice the rights of others or in public interest. Over the years, Human Rights abuse has been at deplorable levels in Uganda especially during the Amin regime [27][27]. The courts however have tried to up hold these rights here and there as in the case of Uganda V Commissioner of Prisons, Ex Parte Matovu[28][28] where the court defended the rights of Matovu when it held inter alia that ; “ the Sovereign State of Uganda would not allow anyone to be illegally detained and has the prerogative right to enquire through its courts into anyone‟s loss of liberty by issuin g a writ of habeas corpus, the procedure and nature of which was discussed.” With the National Resistance Movement government in power, the Human Rights record in Uganda has greatly improved but still leaves a lot to be desired as we have witnessed
unlawful killings by security forces, mob violence, torture by security agencies, abuse of suspects, poor prison conditions and arbitrary arrests [29][29]. In a bid to curb the gross Human Rights abuse, the National Resistance Movement government when it had the 1995 Constitution promulgated established in Article 51 the Uganda Human Rights Commission and in Article 52 provided for the roles of the commission which can be summarized as ensuring the observance of Human Rights in Uganda. In analysis, the constitutional principles governing constitutional law are; rule of law, separation of powers, independence of the judiciary, human rights, ministerial and collective responsibility and I would submit that drawing f rom the above discussion these principles are to a greater extent a reality in today‟s Uganda. Of course, due to the fact that they have to operate amongst human beings who are very complicated and versatile beings, these principles cannot operate in their entirety or strict form; a few compromises and balances have to be implemented to make them not only practical but also of service in the administration of society.
Posted by LAW SCHOOL MATERIAL AND CASES
