Importance of the Study of Administrative Law in Ghana PDF

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ADMINISTRATIVE LAWFLAW 218INTERRIM ASSESSMENT EXAMINATIONINDEX NUMBER: 10717339MemorandumTo: [University of Ghana School of Law]From: [Professor Raymond Atuguba]Date: [25th May, 2020]Subject:[Why Administrative Law Should Continue to be Taught atOur Faculty]In this paper, a concise background of Adm...

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ADMINISTRATIVE LAW FLAW 218 INTERRIM ASSESSMENT EXAMINATION

INDEX NUMBER: 10717339

Memorandum To: [University of Ghana School of Law] From: [Professor Raymond Atuguba] Date: [25th May, 2020] Subject:[Why Administrative Law Should Continue to be Taught at Our Faculty] In this paper, a concise background of Administrative law would be outlined, after which an explanation of the subject will be given. This will be followed by an outline of the scope of the Administrative law contradistinguished with Constitutional law. The next item to be discussed would be the various doctrines and theories relevant to the subject, after which the broad aim of the study of Administrative law would be outlined with the aid of case law. The subject of this memorandum will then be concluded upon. Administrative law seems to have developed from a combination of forces from both within and without the legal system 1. Those powerful forces from the outside include social and economic forces whereas those from within were revolt against the impractical technicalities and rigidity of a structure adapted by and for older generations, conditions and institutions and which were welded too strongly on the present. The process of transformation was gradual but eventually a very solid and broad area of law emerged out of the various periods of reform and development. Sir Wade's first approximation to a definition of Administrative law is that it is the law relating to the control of governmental power2. He then goes on to add that the governmental power in question is not that of parliament. This definition is an opinion from an academic of the common law jurisdiction of England, where parliament has sovereignty. This would however be problematic if it is going to be applied directly in Ghana where sovereignty lies in the people as enshrined in article 1 of the 1992 Constitution of Ghana. He however salvaged the situation by saying that administrative law may be said to be the body of general principles which govern the exercise of powers and duties by public authorities. The primary purpose of administrative law is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse. Administrative law falls within the category of public law since it governs the relationship between the government and the individual. The same can be said of constitutional law. Thus, these two areas of law share common features. It has been widely accepted that Administrative law cannot be fully appreciated without a foundational knowledge of constitutional law. Justice Gummov has even reiterated this by saying that, “The subject of Administrative law cannot be 1 Edward L. Metzler, The Growth and Development of Administrative Law 19 Marq. L. Rev. 209 (1935) 2 Sir William Wade, Administrative Law, 11th edition by Christopher Forsyth Oxford University Press

understood or taught without attention to its constitutional foundation.” The early English writers did not see any difference between Administrative law and Constitutional law. Therefore Keitch observed that it is “logically impossible to distinguish Administrative law from Constitutional law and all attempts to do so are artificial”. However, it is not necessarily the case in countries with a written constitution; their difference is not as blurred as it is in England.3 One typical difference is in relation to their scope. While Constitutional law deals in general, with the power and structures of government; the legislative, executive and the judiciary, Administrative law in its scope of study is limited to the exercise of power by the executive branch of government. The legislative and judicial branches are relevant for the study of Administrative law only when they exercise their controlling function on administrative power. Furthermore, constitutional law formulates fundamental rights which are inalienable hence it supersedes all other laws including Administrative law. Administrative law does not provide rights; its purpose is to provide principles, regulations, procedures and remedies to protect and safeguard fundamental rights. Therefore, Administrative law is simply a tool for implementing the constitution. Constitutional law lays down the principles like separation of powers and the rule of law. An effective system of Administrative law implements and gives life to these principles by providing rules as to the manner of exercising power by the executive, and simultaneously effective controlling mechanisms and remedies, administrative law becomes a pragmatic tool in seeing to the protection of fundamental rights. It can therefore be safely opined that without administrative law, a constitution cannot be practical. The rules, procedures and principles of administrative law, provided in law, and checking the validity and legality of their actions subjects administrative law to the rule of law. Administrative law has been said to typify a ‘red light’ theory of the subject, which is mainly aimed at curbing governmental power, as contrasted ‘green light’ theory whose advocates favour ‘realist and functionalist' jurisprudence designed to make administration easier4. However, for our purposes, four theories which serve as a framework for the study of Administrative law will be dealt with. The first three have been gathered from Professor Raymond Atuguba's discussion on Administrative law theories in his article, Administrative law: The New Law of the Century while the fourth was essentially inspired from the present author's appreciation of readings closely related to administrative law and the first theory, indirectly. The first theory has to do with viewing Administrative law us a practicalisation of the social contract theory. This theory is mainly to the effect that the governors and the governed are in a contractual relationship of sorts and that the governed have a legitimate right and interest in ensuring that the governors govern according to the social contract. The second theory is one that views Administrative law as the practicalisation of the concept of the integral state. This theory sees the subject as an instrument for the minimization of ethnic and other disparities and inequities which lead to conflict and strife. The third is that the administrative state has become a veritable monster in its reach and power. The social contract theory and rise of the administrative regulatory state, and now the post 9/11 state, have conspired to vest huge powers in the state. 3 Aberham Yohannes and Desta G, Michael ‘Constitutional law and Administrative law’ accessed at https://www.abyssinialaw.com>item on Sunday, 24th May,2020 4 Harlow and Rawlings, Law and Administrative, 3rd edn. 31

Simultaneously, the state, in the African context, the state is unintelligent. Unintelligent because it does not possess the information, knowledge and money resources to operate intelligently. The fourth, my own theory, is one that views Administrative law through the frame of the concept of social protection. Social protection consists of policies and programs designed to reduce poverty and vulnerability by promoting efficient labour markets, diminishing people’s exposure to risks, and enhancing their capacity to manage economic and social risks such as unemployment and exclusion. Administrative law in a narrow sense entails these kind of principles and thus, it would be safe to view this subject from such a perspective. Ghanaian Administrative law essentially was originated from the English, however due to our own peculiar legal system and structure of governance, it has undergone some developments and would not be too similar to that of the English any longer. This is however not the main aim of this paper. The main goal is to establish the broad aim of the study Administrative law in our law faculties. This aim is to give students an understanding of the legal issues that arise, in the more detailed dealings as between state institutions, persons and state institutions and persons and institutions, at least one of whom occupies or acts in a public capacity. This would be further broken down and the expatiated upon with the aid of case law, in order to enhance the appreciation of what has been stated. A glance at some cases shows how Administrative law operates to put fetters on public authorities and individuals in a public capacity. Any activity contrary these limitations is said to ultra vires. This principle has been a basis of a number of developments in Administrative law in Ghana. In Re Inkumsah it was held that before a Commission exercised its powers to commit a person for perjury he must be given the opportunity to defend himself against the charge. Another case was that of Mould v. De Vine which concerned the refusal by the Waterworks Department (subsequently transformed into the Water Sewerage Corporation) to reconnect a water line to the plaintiff’s house. The reason for the initial disconnection was that the previous occupant of the house had failed to pay his bills. Payment of arrears, the Department argued, was a precondition to reconnection whether the arrears were incurred by the present occupant or not. The court found that the Department was under an obligation to supply water to the public and found that there were no circumstances which exempted it from that obligation in relation to the particular applicant. It therefore granted mandamus to compel the performance of the public duty to the applicant. Another landmark case in Administrative law is that of Awuni v WAEC where fourteen former SSS students whose results were cancelled by the West African Examinations Council without just cause had their results restored nearly five years after an epic legal battle ended at the Supreme Court of Ghana. Dr Date- Bah JSC. made a statement which is worth quoting, “ It appears to me that the purpose of article 23 is to provide a constitutional foundation for Administrative law in Ghana and to entrench entitlement to administrative justice as a fundamental human right in Ghana. Under the English common law from which Ghanaian common law has borrowed most, an important part of Administrative law is the judicial control of administrative action. This is because Administrative law is quintessentially derived power. It is the power of public officials derived from the Constitution or from statutes. The common law

courts have therefore seen it as their role to ensure that these public officials and the bodies to which they belong keep within their authority and jurisdiction. Thus, historically, the doctrine of ultra vires was the rationale for judicial control of administrative action.” Administrative law, especially in Ghana has given rise to innumerable relevant legal issues which have shaped the legal system and the structure of governance. The present author therefore finds it important that up and coming legal practitioners who are being schooled at the various faculties especially at the University of Ghana School of Law are taught this area of law as a subject, distinct from constitutional law. This will help them to better appreciate the thin line between the two areas of law and as such easily identify an issue of Administrative law in a given set of facts when the need arise. Constitutional law is a bedrock for the study of Administrative law and should not be made a substitute for a substantive study of the area of law....