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LAW SCHOOL MATERIAL AND CASES
Friday, 25 March 2011 NOTES ON ADMINISTRATIVE LAW
- DELEGATED LEGISLATION
- LOCAL GOVERNMENT-DEVOLUTION / DECENTRALIZATION OF POWERS
- PUBLIC CORPORATIONS
- DELEGATION OF FUNCTIONS
- ADMINISTRATIVE TRIBUNALS
- PUBLIC FINANCE
- LICENSING
- ADMINISTRATIVE LAW AS AN EXTENSION OF CONSTITUTIONAL LAW DELEGATED LEGISLATION
- 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
- Orders-usually made by ministers e.g. to dissolve a public body
- 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.
- 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.
- Schemes-e.g. schemes made by the charity commission to amend how a charity is governed.
- Directions-are means by which ministers give legally binding institutions to a public body about the way it exercises its functions
- Bylaws etc.
The purpose of delegated legislation
- Technicality of subject matter; legislation on technical matters necessitates prior consultation with experts and interests concerned.
- 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.
- Delegated legislation may be given to the executive in order to relieve pressure on parliamentary time and enable parliament to concentrate on principles rather than details. If parliament
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.
- 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.
- 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 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 that “the state shall be guided by the
principle of decentralization and devolution of government functions and
powers to the people at appropriate 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.
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 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 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 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 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.
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
- Through the budget. Sec 77[LGA] provides that a local government must each year have a budget.
- 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.
- 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
- Local governments are subject to investigations by the office of the IGG who can recommend appropriate action in cases of financial mismanagement.
- Every local government is entitled to have an internal auditor which the auditor general may have identified.
- 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
- The line minister has powers under local government Act to coordinate activities within a particular local government and make recommendations.
- The inspector of government has powers to investigate any matter relating to abuse of office.
- Other controls lie in the office of the RDC per section 70 and 71. Legislative powers
- 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.
- 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.
- 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.
- 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. A corporation means a legal entity.
There are two types of corporations.
- 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.,
- 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 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 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 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 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 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.
In Amos Mugisha v. Uganda 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 Carlton Ltd v. Commissioner of Works [1943]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
- 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.
- The requirement of efficiency and timely delivery of services.
- Delegation ensures personal development thus capacity building.
- Specialization of functions- Delegation may be done with a view that particular officials will concentrate on particular areas
- Civil servants who excel are recognized. See Article 99 (3) and (4)
- 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 National Dock Labour Board, 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 Labour 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 Municipal Council of Mombasa 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
- 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. Tomasyan 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. Industrial Injuries Commission Exparte Cable 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 Council [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 University of Cambridge 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. Baldwin [1964] AC p.40 Herman LJ said “it is only fair play in action. 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 Mumira Mumira 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.
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.
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.
