Administrative LAW I Notes PDF

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CONSTITUTIONAL FRAMEWORK FOR ADMINISTRATIVE LAW

Administrative Law is grounded on some Constitutional foundations. The understanding of constitutional provisions is vital in so far as it enables the public administrator to assess the constitutional implications of all intended actions. Objectives By the end of this session you should be able to 

To know the relevancy of the constitution to a public officer.



To identify the provisions of the Constitution that has a bearing on administrative law.

The constitution of Uganda (1995) is a fundamental document that governs all aspects of life within the country. The constitution gives a broad framework for allocation of state powers. It establishes and allocates power to the main organs of the state ie the President, Parliament and the Judiciary.

It also establishes the major public and

constitutional offices. The constitution declares the Human rights of the individuals and provides the machinery for enforcement of rights and freedoms. The constitution also has provision relating for the public service, Local Government, public Finances and Security.

A comprehensive study of the constitution is reserved for the public law subject of constitutional law. However many aspects of the constitution and constitutional law have a direct relevancy to the practice and enforcement of principles of Administrative law. The basic constitutional law principles of direct concern to public officers and Administrative law as follows:

1. Supremacy of the constitution The constitution is the supreme law of Uganda Art 2 of the constitution provides that (Read Article) The import of the article is that all action, laws, practices, codes of conduct, beliefs are subordinate to the provision of the constitution.

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Anything done in contravention of the constitution is void i.e. is a nullity and of no effect. SemogerereVs Attorney General a petition was filed to nullify the Referendum Act which was allegedly passed by parliament without the required quorum set by the constitution. The constitutional court declared the law a nullity and Parliament had to reconvene to enact on new Referendum Act which legalised the conduct of the referendum in 2001

2. The Rule of law The rule of law basically means that functions, powers will be exercised in accordance with the law. The concept of rule of law was formulated by Prof. Dicey who said that the rule of law had three meanings. (a) The absolute supremacy of the law on opposed to arbitrary exercise of powers. (b) Equally before the law (c) The supremacy of the constitution

Over the years the basic elements of the Rule of law have been concretised. These include: (a) Existence of strong Government The rule of law requires that there be in place a strong and effective government. Such a government must be capable of enforcing law and order and protecting individual freedoms and rights. A strong and affective government must have in place a system of resolution of disputes following the law. Absence of a strong government leads to anarchy.

(b) Government According to Law The government must be established in accordance with the existing law. Such laws are the constitution and election laws. Government must also govern in accordance with the existing law. Such laws must also not only be existence but must also be fair and aimed at promotion of public welfare. Oppressive and arbitrary laws cannot constitute a government according to law.

(c) Equality before the law [email protected] @Loyola @Magis @Ad Majorem Dei Glorim

Just laws should also be administered to guarantee all people equal rights. Law should equally and consistently be applied to all citizens. Art 21 of the constitution provides that all persons are equal and under the law. Equality requires treatment of all persons with equity. Consideration should not be given to colour, place of origin social standing, race economic status, religious inclination or political affiliation. The constitution however in Art 21 allows affirmative action (a negation of equality before the law) in respect of women, children, disability or minorities e.g. women are awarded

1.5

points

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an

affirmative

action

for

entry

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universities.Affirmative action is also referred to as positive discrimination.

(d) Independence of the Judiciary An independent judiciary is a prerequisite for existence of the rule of law.

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judiciary is independent when it capable of dispensing justice freely and fairly without consideration of extraneous factors. An independent judiciary is one that which is capable of making decisions without due regard to executive or legislative interest or without consideration a person’s social or economic standing. An independent judiciary can be ascertained from the existence of the following  Security of tenure of judges - Judicial officers should hold office without fear of possibility of loss of office arising from executive decisions. In Uganda High Court judges serve up 65 years of age. Court of Appeal and Supreme Court Judges serve up to 70 years age. Judges can only be removed from office for inability to willed office of judge after a recommendation of a judicial tribunal. Only one judge has ever been removed through such a process.  Terms and condition of service- Judges should be guaranteed salaries and facilities that enable them to carry out their duties without social, economic and political influences. In Uganda judges are paid relatively high salaries which are not subject to income tax.  Qualifications must reflect professional competence. In Uganda judges must have a minimum of ten years working experience.

e) Human Rights The Rule of law requires that rights of persons be respected.

Human Rights are

fundamental and should be protected by the state. Such rights include freedom of [email protected] @Loyola @Magis @Ad Majorem Dei Glorim

expression, movement, religious beliefs and association. These are also rights relating to ownership and enforcement of property and the securityof the person. Chapter IV of the Constitution of Uganda has a declaration of rights and freedoms of persons. (Please read Articles 29 to 42 of the constitution).

Constitutional rights and freedoms are however not absolute. Rights and freedoms may be limited in order to protect the rights and freedoms of other persons or public interest (Read Article 43of the constitution)

Article 44 given circumstances where rights remain absolute. This Article provides that the rights and freedoms relating to freedom form torture, cruel and degrading punishment, slavery, the right to fair hearing and the right of Habeas corpus cannot be taken away

The constitution also gives the machinery for enforcement of rights and freedoms. The enforcement of rights may through courts, Uganda Human Rights Commission and other Government Departments like Probation and Police.

f) Representative Government The rule of Law can only exist where democracy is in place. The rule of law requires that leaders be elected by the people through democratic processes. This normally involves free and fair elections following universal adult suffrage. Democracy also requires periodic elections and accountability of elected officials.

Article 1 of the Constitution of Uganda provide that the people of Uganda shall determine their leaders and how they are to be governed through free and fair elections or referenda. The relevant laws giving effect to this Article is the Presidential Elections Act, The Parliamentary Elections Act and the Local Governments Act, and The Electoral commission act.

g) Fair Law of Criminal Process

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The Rule of law requires that suspects or accused persons be treated in a fair and human manner. A fair criminal process involves observance of the following principles as set out in Article 28 of the Constitution. 

Presumption of innocence. All persons are presumed to be innocent until proved guilty. It is the duty of the state and complainants to adduce evidence which convinces the Court that the accused is guilty

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The right to know the charges

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The right to interpretation in a language which the accused undertakes

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The right to be represented by counsel of ones choice

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The right to a speedy trial

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The right to an impartial trial

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The right to be heard

h) Sound and effective Principles of Administrative Law The rule of law requires that there be in place clear rules of procedure to be followed by public officials that public officials should be at all times balance individual interests against the overall responsibility of executing public duties; that individuals should have recourse to remedies if they are aggrieved against administrative officials.

Article 42 of the Constitution requires public officials to exercise Justice and fairness. The Article also allows unhindered access to courts of law where persons feel aggrieved about an administrative decision.

I) Respect for Principles of International Law The Rule of Law also requires that states be cognisant of the basic principles of International relations may determine domestic stability’s and internal treatment of citizens.

j) Social Justice for All The Rule of Law requires that there be in place institutional mechanisms that ensure that all persons have meaningful enjoyment of life within their means. This includes freedom to engage in economic activities, availability of social amenities, right to clean and health

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environment, right to the basic needs of life like shelter, food education, health. It also includes the right to cultural, intellectual and over forcc of human engagements

Doctrine of Separation of Powers The Doctrine was formulated by a French Philosopher called Montesquieu. He proposed that in order to minimise abuse of state powers the following should be in place.



Three organs of Government. The Executive to make policies, The Legislative to make laws and the Judiciary to resolved disputes arising out of policies and laws.

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That the same persons should not be members of more than one organ.

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That no organ should perform the functions of another organ.

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That no organ should control another organ.

Activity a) Discuss the extent of applicability of Montesquieu’ Doctrine of Separation of Powers in the Uganda Constitution. b) Under what circumstances can the parliament censure the executive officials? c) Discuss the functions of the judicial service commission. d) Discuss the meaning and applicability of checks and balances in Uganda. e) Discuss the advantages and disadvantages of the doctrine of separation of powers. a)f) What is a hybrid constitution?

Ministerial Responsibility Article 117 of the constitution provides that Ministers are individually responsible to the President and collectively responsible to Parliament in the performance of their functions. What is individual Responsibility The individual responsibility of Ministers relate to their function as Political Head of Government Departments. In this respect they are expected to ensure that appropriate policies are formulated, get approval of Cabinet and are enforced by civil servants.

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Individual responsibility also requires Ministers behave in a manner that does not bring their public offices to embarrassment. This therefore expects ministers to be morally upright, truthful, professional employing due care and responsibility and avoid fronting private interests against public interest. They are not expected to use their public offices for private transactions and personal gain.

Collective Responsibility Ministers are collectively responsible for Cabinet decisions.

This means that all

Ministers are accountable for Cabinet decisions. This calls to Ministers to display the following qualities. 

Frankness in Cabinet deliberations

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Ministerial solidarity

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Defence of cabinet position in Parliament and General Public

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Observance of rules of secrecy.

Censure of Ministers Art 118 of the Constitution gives Parliament powers to censure Ministers under certain circumstances. This include (Read Article) This Article may be invoked where the Minister has failed in his individual responsibility Fairness and Justice Article 42 of the Constitution (Read Article

Discuss the different constitutional principles that govern administrative law and analyze whether they are a reality. Introduction Article 42 of The Constitution 1[1][1] states that;

1[1][1]

- 1995 Constitution of The Republic of Uganda.

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“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][2] All administrative authorities (that is public officials) are subordinated to this law; right from the cabinet members to the local government authorities. Wade3[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, Montesquieu4[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 book5[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 2[2][2]

- Wade and Forsyth; Administrative Law 7th Edition Page 4.

3[3][3]

- Wade and Forsyth; Administrative Law 7th Edition Page 4.

4[4][4]

-Montesquieu; The Spirit of The Law, Book XI Cap. VI

5[5][5]

- Montesquieu; The Spirit of The Law, Book XI Cap. VI

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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.

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 of Ssemwogere and Olum6[6][6]. In this case, the petitioners challenged the validity of the Constitutional amendment Act7[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 legislature’s powers and those in the executive who pushed for this bill in Parliament especially the President who had assented to it.

However, despite advancements in this area in Uganda, this system of checks and balances still has loop holes in Uganda for example, despite the overwhelming evidence that the Security Minister Amama Mbabazi had exerted undue influence in getting the National Social Security Fund to buy his land at Temangalo at an inflated price, he was exonerated by the National Resistance Movement caucus in Parliament and this largely believed to be because he is the Secretary General of the National Resistance Movement.

6[6][6]

- Constitutional Petition No.7 of 2000.

7[7][7]

- Act 13 of 2000.

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Since the government Members of Parliament are the most, their exonerating him caused him to get away with corruption unscathed8[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 Oluyede9[9][9], in expounding on this doctrine, explained that in criminal cases, the courts should not convict or acquit because they believe a particular verdict will please the government of the day and in civil cases, courts ought not to consider the relevant importance of parties or even the political consequences of their decision rather, he says, that the courts only ought to find the facts and apply the relevant principles of law in any particular situation. In Uganda, the judiciary is enabled to be independent by Article 12810[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 tha...