Notes on Administrative Law

7/29/2019 Notes on Administrative Law

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LAW SCHOOL MATERIAL ANDCASES

Friday, 25 March 2011

NOTES ON ADMINISTRATIVE 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 OFCONSTITUTIONAL LAW
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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 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 conflict with the existing 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 means through which substantive

and detailed law is made, for 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 by a senior

judge.

4. Schemes-e.g. schemes made by the charity commission to amend how a charity isgoverned.

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.


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2. Flexibility; e.g. the fine for adultery in Penal code is 600 and it is difficult 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 to relieve pressure on

parliamentary time and enable parliament to concentrate on principles rather thandetails. 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 ofStr ickland v. Hayes B orrow Counci 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 delegatedlegislation 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 oflaying a legislation before parliament is mandatory or directory will normally depend on


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the wording of the statute, thats 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 widelyaccepted 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 forpublication 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 wasjustified 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 ofultra 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 ofKasule v Attorney General, [1971] 29 EA, the plaintiff brought a

premium development bank bond the number of which was drawn for a prize. The


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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 to the prize.

LOCAL GOVERNMENT

Question:

1. One of the democratic principles set out in the National Objectives and

Directive Principles of State Policy state thatthe state shall be guided by the

princip le of decentral izat ion and devolut ion o f government func t ions and pow ers

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 atime. 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 governmentSystem.


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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 participationand 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 jurisdictions.

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 underresourced 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 tothe 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 whichmust be exercised in accordance with the constitution. Executive powers relate to the


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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, city

divisions 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 to 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 implement their own projects. The, major source of

local government funding are the grants from the central government which are provided

for underarticle 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 local government are

normally determined by the local government commission which is established

underarticle 194. This financial body assists the president to determine the financial

needs of each district.


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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.


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PROCEDURE FOR PASSING A BILL

See sectio ns 30, 38, 39 LGA, and th e 3rdSchedule 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)

Regulat ion 20, (1-8) Debating the bill

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 public corporations and why a

significant section of the general public is disgruntled 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. Acorporation means a legal entity.


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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 theycan 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 their

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 always 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 functions 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 for 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


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attractive to private investors etc. but these 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 andcontrolling 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 Trust, 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 convenientlycarried out within government.

d) For commercial purposes, i.e. to make profits for example Uganda Development

Corporation, in 1950s.

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


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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 them to

break even especially commercial and industrial corporations. The Act will require that

the public corporations account be audited by the Auditor Generals 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 DelagareDiscuss.

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.

In Amos Mugisha v. Ugandathe 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


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When powers are conferred upon ministers who are in charge of large departments, its

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 Carl ton Ltd v.

Comm issioner of Works [1943]2ALL 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 Vine v Nat ional Dock Labou r Bo ard, 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 Aliathat the plaintiffs purported dismissal was anullity since the local board had no power to delegate its disciplinary functions. Judicial

authority normally cannot be delegated.

In Barnard Othersv. National Dock Labou r Boardthe 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.


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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 Mombasa v Kala [1955]22 EACA .319 the bylaws of the councilempowered the workers board to demolish all buildings. Kalas 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 isnt 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. Administrativetribunals 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


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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 Anis in imic v.

Foreign Comp ensation Comm issionto include ensuring speed, cheapness and expertknowledge;

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 ofcertain 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. Tomasyanit 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.


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A tribunal consists of two members representing opposed interests. In R v. Indu strial

In jur ies Commissio n Exparte Cableindustrial 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 377the 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 Universi ty of Cambridgewhere 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] AC p.40Herman LJsaid i t is only fa ir play in act ion. 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 partem (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.


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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


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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 ofArticle 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.


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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 PFAstates 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 Generals 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 ismisused.

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 Generals Office and Central Bank.


20/27

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 sellingalcoholic beverages without holding a valid license.


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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 justified 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. Fernandez v. Kericho Liqu or Licensing Courtit was held that the refusal torenew 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.


22/27

QUESTION:

Discuss the dif ferent co nst i tut ional pr incip les that gov ern administ rat ive law andanalyze whether they are a reality.

In t roduct ion

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 Powers.

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 first , 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 the 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.
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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 arms 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 the case ofSsemwogere 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 law 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 legislatures powers and those in the executivewho 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 byArticle 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 to provide that a person exercising judicial

power shall not be liable to any action or suit for any act or omission by that person inthe exercise of judicial power. Subsection 6 of the Article provides that the judiciary will
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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, theexecutive in Uganda has many times been caught trying to undermine the position of

the judiciary. Very fresh in the memory is the Black mamba incident[11][11]. According

to Georgette Gagnon, deputy director of Human Rights Watch, militia men draped in

military fatigue and black T-shirts surrounded the High Court to intimidate the judges 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 otherwise wrong for

example taking ones land (infringing on liberty) must justify its actions as authorized bylaw. 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 laws[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] wherethe court compelled the government to pay according to a government order which the
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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 Courts 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 Collect ive Respon sibil i ty .(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 meant 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.
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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 non-

political system of investigating individual complaints against the powers that be and this

exactly what ministerial responsibility does not provide because of its 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 Uganda 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 chairmans presence is necessary before a tribunal has Coram and that a

minister has power to appoint persons to a tribunal.

Human Rights and Civi l Libert ies.

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 the

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 givenand 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 anyones loss of liberty by issuing

a writ of habeas corpus, the procedure and nature of which was discussed.

With the National Resistance Movement government in power, the Human Rights recordin Uganda has greatly improved but still leaves a lot to be desired as we have witnessed
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27/27

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 from the above discussion these

principles are to a greater extent a reality in todays 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 byLAW SCHOOL MATERIAL AND CASES
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Notes on Administrative Law

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