Adminitrative Action Notes PDF

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Constitutionalisation of Administrative Action in Kenya and Its Implications.1 Introduction.Fair administrative action hinges on lawfulness, rationality and fairness: in other words, judicial decisions must have regard for relevant issues and disregard for irrelevant factors, and in the broadest sen...

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Constitutionalisation of Administrative Action in Kenya and Its Implications.

1.0 Introduction. Fair administrative action hinges on lawfulness, rationality and fairness: in other words, judicial decisions must have regard for relevant issues and disregard for irrelevant factors, and in the broadest sense treat like cases alike;1[1] judges are subjected to appeal processes which act as checks and balances, they required to embrace the rules of natural justice and be accountable by explaining their decisions in public and they are required to adjudicate in an efficient and timely manner.2[2] Administrative action is meant for individuals that are affected by administrative decisions in which there has been an improper exercise of administrative powers.3[3] Administrative justice is often equated to social justice, and is achieved by effecting just administrative outcomes and fairness in administrative law processes.4[4] Individuals legitimately expect administrative decisions to be based on reasons which are explicable regardless of the fact that the income might be thought to be wrong. Administrative action must be accessible and affordable to the individual, the cost must be equitable to the community, decision-making must be timely, and there must be an intelligible explanation of decision-making.5[5] Fair process is a constitutive part of administrative action- an administrative justice system is inadequate if it fails to provide an expansive, principled and accessible system of merits review, and a requirement that government decision-makers inform persons affected by government decisions of their rights of review.6[6] The citizens must have a right to obtain reasons for the decisions that affect them, and the right of access to information held by government and a vastly-resourced ombudsman.’7[7] As a sweeping departure from the Independence Constitution, the 2010 Constitution underscores its commitment to the protection of the welfare of all, 8[8] and acknowledges the desire of all citizens for a government that is ‘based on essential values of human rights, equality, freedom, social justice and the rule of law.’9[9] The right to fair administrative action10[10] ensures the promotion of fundamental rights and freedoms. Individuals have a right to demand the reasonableness, fairness or justification of powers exercised in promoting individual interests in court. Through constitutionalisation, fair administrative action is established as a principle which

1[1] Robin Creyke & John McMillan (eds.) Administrative Justice- the Core and the Fringe (1999). Available at http://www.aial.org.au (accessed on 16 January 2016). 2[2] Ibid, at pp. 12-15. 3[3] See Robin Creyke, ‘Administrative Justice- Towards Integrity in Government’ (2007) 31 Melbourne University Law Review. Available at https://researchers.anu.edu.au/researchers/creyke-rm (accessed on 16 January 2016). 4[4] See Matthew Groves, ‘Ombudsman’s Jurisdiction in Prisons’ (2002) 28 Monash University Law Review, 181. 5[5] Robin Creyke and John McMillan, ‘Administrative Justice- the Core and the Fringe’ (1999). Available at http://www.aial.org.au (accessed on 16 January 2016). 6[6] See Mark Aronson et al, Judicial Review of Administrative Action (3rd ed, 2004) p. 14. 7[7] Ibid. 8[8] Constitution of Kenya, 2010, preamble, para. 5. 9[9] Ibid, para. 6. 10[10] Ibid, article 47

promotes mechanisms to protect individual rights by limiting excessive exercise of powers by administrative bodies.11[11]

2.0 Constitutionalisation of Administrative Action in Kenya and Its Implications. True to the 2010 Constitution’s bold declaration of its recognition of the people’s longing for a government whose ideals are the essential values of human rights, equality, social justice, freedom and the rule of law,12[12] ‘all sovereign power belongs to the people’13[13] and it is delegated to Parliament, the national and county executives, and the judiciary and independent tribunals.14[14] Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.15[15] A person has the right to be given written reasons for any administrative action if that person’s right or fundamental freedom has been adversely affected by administrative action.16[16] By virtue of Article 2 (5) and (6) of the Constitution, general principles of international law (contained in international legal instruments) are applicable in Kenya after ratification by Parliament. Further, the Constitution obliges Parliament to enact a law that gives effect to the right to fair administrative action through the provision for the review of administrative action by courts and independent tribunals, and the promotion of efficient administration.17[17] The Constitution provides for the right to access justice for all persons. 18[18] The right to a fair hearing encompasses both the substantive and procedural aspects of the administrative process.19[19] The Constitution empowers Parliament to enact legislation to restructure the Kenya National Human Rights and Equality Commission (into two separate commissions),20[20] leading to the establishment of the Commission on Administrative Justice under the Commission of Administrative Justice Act as a successor to the Public Complaints Standing Committee. Some of the main functions of the Commission include the promotion of the protection and observance of human rights in public and private institutions, to investigate “any conduct in state affairs, or any act or omission in public administration in any sphere of government, that is alleged or suspected to be prejudicial or improper or to result in any impropriety or prejudice.”21[21] Judicial authority, according to the Constitution, is given by the people and must be exercised by the established courts and tribunals.22[22] The Constitution sets out the golden thread for the exercise of judicial authority: that justice must be done to all, regardless of status; that justice must not be delayed; that courts and tribunals must embrace alternative forms of dispute resolution mechanisms, including traditional dispute resolution mechanisms; and that judicial 11[11] See John Locke, Two Treatises of Civil Government (1690). Available at https://librivox.org/two-treatises-ofcivil-government-by-john-locke/ (accessed on 16 January 2016). 12[12] Ibid, note 9. 13[13] Ibid, article 1 (1). 14[14] Ibid, article 1 (3). 15[15] Ibid, article 47 (1). 16[16] Ibid, article 47 (2). 17[17] Ibid, article 47 (3). 18[18] Ibid, article 48. 19[19] Ibid, article 50. 20[20] Ibid, article 59 (5). Clause 5 thus provides: “If Parliament enacts legislation restructuring the Commission under clause (4): (a) that legislation shall assign each function of the Commission mentioned in this Article to one or the other of the successor commissions; (b) each of the successor commissions shall have powers equivalent to the powers of the Commission under this Article; and (c) each successor commission shall be a commission within the meaning of Chapter Fifteen, and shall have the status and powers of a commission under that Chapter.” 21[21] Ibid, article 59 (2). 22[22] Ibid, article 159 (1).

authority must advance the purpose and principles of the Constitution.23[23] In acknowledgement of the unique and important role of the judiciary in administrative justice, the Constitution provides for the independence of the judiciary in respect of remuneration, tenure and immunity. 24 [24]

2.1 Implications of the Constitutionalisation of Administrative Action. The right to fair administrative action encompasses the right of the person- whose fundamental freedom or right has been or is likely to be adversely affected by administrative action- to be given written reasons for the action.25[25] The right to be given written decisions for an administrative action creates a culture of accountability-26[26] one of the core values of governance under the Article 10 (2) (c) of the 2010 Constitution, alongside good governance, integrity and transparency. The strict requirement of reasons means decision-makers must have a factual and legal basis for the reasons; a clear reasoning process must be followed to reach an objective conclusion; evidence of a fair procedure must be tendered (in the reasons); if a matter is complex, then the reasons must be more detailed, with single-line statements sufficing for straight-forward decisions; decision-makers are required to show the decision was influenced by the reasons provided.27[27] The right to reasons also promotes efficiency in public administration- by insisting on the reliance of the information available to the decision-makers; participatory decision-making is encouraged, with the end goal being that administrators subjected to court review.28[28] Thanks to the constitutionalisation of administrative action, the courts have more judicial control over the activities of the administration through review.29[29] One of the far-reaching effects of the entrenchment of administrative action in the Constitution is establishment of judicial review of all administrative action. In the transformative dispensation, the courts can scrutinise and set aside or correct administrative decisions. Any administrative action can be subjected to constitutional challenge.30[30] The constitutionalisation of administrative justice means that to 23[23] Ibid, article 159 (2). 24[24] Ibid. article 160 (1) thus provides: “In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.” Article 160 (2): “The office of a judge of a superior court shall not be abolished while there is a substantive holder of the office.” Article 160 (3): “The remuneration and benefits payable to or in respect of judges shall be a charge on the Consolidated Fund.” Article 160 (4): “ Subject to Article 168(6), the remuneration and benefits payable to, or in respect of, a judge shall not be varied to the disadvantage of that judge, and the retirement benefits of a retired judge shall not be varied to the disadvantage of the retired judge during the lifetime of that retired judge.” Article 160 (5): “ A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.” 25[25] Ibid, article 47 (2). 26[26] See D.J. Brynard, ‘Reasons for Administrative Action: What are the Implications for Public Officials?’ (2009) 44 Journal of Public Administration 3.1. Available at http://uir.unisa.ac.za/handle/10500/8131 (accessed on 17 January 2016). 27[27] Ibid, at p. 5. The author feels that the absence of reasons creates an impression of secrecy and arbitrary administrative action. In respect of fairness, reasons satisfy an important desire on the part of affected person to know why a decision was reached, hence increasing the chances that the affected person will affect an administrative decision more readily. 28[28] Jonathan Klaaren, ‘Administrative Justice’ (1999). Available at http://www.chr.up.ac.za (accessed on 17 January 2016). 29[29] Beukes, ‘The Constitutional Foundation of the Implementation and Interpretation of the Promotion of Administrative Justice Act No. 3 of 2000’ in Lange and Wessels (eds), The Right to Know: South Africa’s Promotion of Administrative Justice and Access to Information Acts (2004), p.12. 30[30] LJ Kotze, ‘The Application of Just Administrative Action in the South African Environmental Governance Sphere: An Analysis of Some Contemporary Thoughts and Recent Jurisprudence’ (2004) 7 Potchefstroom Electronic

contest the lawfulness, reasonableness and procedural fairness in respect of administrative action involves the application of the Constitution.31[31] The constitutionalisation of administrative action revolutionises the interpretation of judicial review by the courts in Kenya. The Constitution promotes a holistic approach by requiring the courts to develop the law so as to give effect to a right or fundamental freedom, and to adopt the interpretation that favours the enforcement of a right or fundamental freedom the most.32[32] The interpretation of the Bill of Rights by the courts must be consistent with ‘the values that underlie an open and democratic society based on human dignity, equality, equity and freedom,’ and the spirit and purpose of the Constitution.33[33] The right to fair administrative action is important in the realisation of closely-related natural rights, such as the right to access to information,34[34] the right to access to justice35[35] and the right to fair hearing.36[36] Constitutionalisation of administrative action now requires courts to infuse the common law grounds of judicial review into the Constitution. At common law, judicial review is based on procedural fairness- a decision maker must allow a person affected by their decision to reply to the case before them, and substantial justice- which involves a review of the outcome that the decision-maker reached, and the reasons for the determination.37[37] The Constitution of Kenya, 2010 declares itself the supreme law of the Republic, and it binds ‘all persons and all State organs’ at both tiers of government. 38[38] Further, any law that is not consistent with the Constitution is declared void, with any omission or act in contravention of the Constitution being invalid.39[39] This supremacy clause prevents the legislature from making oppressive, unconstitutional laws and any other form of malpractice. When administrative action is subjected to judicial review, there is administrative competence.40[40]

3.0 Fair Administrative Action Act No. 4 of 2015.

The Act defines administrative action to include the duties, powers and functions that are exercised by ‘authorities or quasi-judicial tribunals,’ and ‘any act, omission or decision of any person, body or authority that affects the legal rights or interests of any person to whom such action relates.’41[41] This definition is wide enough to cover all administrative actions. The Act applies to all state and non-state organs, including any person who exercise administrative authority, or a person who performs a judicial or quasi-judicial function under the law, or any Law Journal 2. Available at https://www.researchgate.net/publication/26633946_The_application_of_just_administrative_action_in_the_South_ African_environmental_governance_sphere_An_analysis_of_some_contemporary_thoughts_and_recent_juripruden ce (accessed on 17 January 2016). 31[31] Ibid. 32[32] Constitution of Kenya, 2010, article 20 (3). 33[33] Ibid, article 20 (4). 34[34] Ibid, article 35. 35[35] Ibid, article 48. 36[36] Ibid, article 50. 37[37] Ochiel J. Dudley, ‘Grounds for Judicial Review in Kenya: An Introductory Comment to the Administrative Action Act, 2015’ (2015). Available at http://kenyalaw.org/kenyalawblog/grounds-for-judicial-review-in-kenya/ (accessed on 17 January 2016). 38[38] Ibid, note 35, article 2 (1). 39[39] Ibid, article 2 (4). 40[40] John Evans, ‘Administrative Appeal or Judicial Review: A Canadian Perspective’ (1993). Available at http://digitalcommons.osgoode.yorku.ca (accessed on 17 January 2016). 41[41] The Fair Administrative Action Act No. 4 of 2015, s. 2.

person ‘whose action, omission or decision affects the legal rights or interests of any person to whom the decision relates.’42[42] The Act reiterates the right of every person to expeditious, efficient, lawful, reasonable and procedurally fair administrative action, including the right to written reasons. 43[43] The enactment of the Act in itself is a fulfillment of the obligation under Article 47. The Act provides the procedure for administrative action. First, the Act requires the decision makers to give prior and adequate notice (containing details about the nature and reasons for the proposed administrative action).44[44] Second, the person or persons to whom the decision relates must be given an opportunity to be heard and to make representations in that respect. 45[45] Third, the person to whom the decision relates must be given notice of a right to a review or internal appeal against the administrative decision.46[46] Fourth, the person to whom the decision relates must be given written reasons in respect of the administrative decision. 47[47] Fifth, the persons who are likely to be affected by the decision must be given notice of the right to legal representation, and the right to cross-examine.48[48] Lastly, persons to whom the decision relates must be given information, materials and evidence to be relied upon in making the decision.49[49] The Act requires decision makers to accord a person or persons to whom the decision relates an opportunity to “attend proceedings, in person or in the company of an expert of his choice, attend proceedings, in person or in the company of an expert of his choice, to be heard, to crossexamine persons who give adverse evidence against him, and to request for an adjournment of the proceedings, where necessary to ensure a fair hearing.”50[50] Where the administrative decision affects the public, the Act requires the decision maker to issue a public notice of the proposed action for the purpose of inviting public views.51[51] Further, the decision makers must put all views into consideration and consider all material facts.52[52] More importantly, the Act provides a remedy to persons affected by an administrative decision, which includes challenging the decision under the Commission on Administrative Justice Act, applying for a review of the decision by court or instituting legal proceedings. 53[53] The Act provides for the right of persons affected by an administrative decision to written reasons for the action and relevant documents in respect of the action.54[54]

4.0 The Interpretation of the Right to Fair Administrative Action by Kenyan Courts While some courts have adopted common law principles at the expense of Article 47 of the Constitution, others have adopted a blend of both the Article 47 and the common law, while a few others have ignored the common law in favour of Article 47 in respect of administrative justice. 42[42] Ibid, s. 3. 43[43] Ibid, s. 4. 44[44] Ibid, s. 4 (3) (a). 45[45] Ibid, s. 4 (3) (b). 46[46] Ibid, s. 4 (3) (c). 47[47] Ibid, s. 4 (3) (d). 48[48] Ibid, s. 4 (3) (e) and (f). 49[49] Ibid, s. 4 (3) (g). 50[50] Ibid, s. 4 (4). 51[51] Ibid, s. 5 (1) 52[52] Ibid. 53[53] Ibid, s. 5 (2). 54[54] Ibid, s. 6.

In the case of Nancy Makokha Baraza v Judicial Service Commission & 9 others 55[55] the court invoked both the common law and constitutional provisions. In this case, the Petitioner prayed for, among other things, the court’s declaration that the process- which led to the decision, findings and recommendations of the sub-committee that made inquiries into the allegations about her conduct- was ‘unprocedural, unconstitutional, autocratic, biased, compromised, in breach of the rules of natural justice, in breach of the doctrine of separation of powers and in particular judicial independence…”56[56] The petitioner also prayed for a declaration that her fundamental rights and freedoms- human dignity, fair trial, privacy, fair administrative action and the right to a fair hearing under Articles 28, 25 (c), 28, 31, 47 and 50 of the Constitution- had been infringed.57[57] The court held that that the rights to fair administrative action and fair hearing had not infringed. The court stated that bodies exercising administrative authority must give reasons for administrative actions, and that they must comply with the principles of natural justice. Natural justice, according to the court, required that persons affected by an adverse position must be given an opportunity to make representations.58[58] The court denied that there was evidence that she was exposed to an administrative act that was unlawful, unreasonable and unprocedural.59[59] In the case R v Kenya National Examinations Council Ex parte Ian Mwamuli60[60] the court applied both the constitutional principles on administrative justice and the common law principles. In this case, the Applicant prayed for a...