University OF Nairobi Administrative LAW Principles - Legitimate Expectations PDF

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Warning: TT: undefined function: 32UNIVERSITY OF NAIROBISCHOOL OF LAWLLB(Evening Class)YEAR 2 SEMESTER IGRP ADMINISTRATIE LAWWRITTEN ASSIGNMENT I: PRICIPLES OF ADMINISTRTIVE LAW(Doctrine of Legitimate Expectation)STUDENT: MICHAEL OTIENO OKELLOG34/135719/INSTRUCTOR: DR. WEKESADate of submission: Octo...

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Michael O Okello G35/135719/2019

UNIVERSITY OF NAIROBI

SCHOOL OF LAW

LLB (Evening Class)

YEAR 2 SEMESTER I

GRP ADMINISTRATIE LAW WRITTEN ASSIGNMENT I: PRICIPLES OF ADMINISTRTIVE LAW

(Doctrine of Legitimate Expectation)

STUDENT: MICHAEL OTIENO OKELLO

G34/135719/2019

INSTRUCTOR: DR. WEKESA

Date of submission: October 16, 2019

Michael O Okello G35/135719/2019

1.0 Introduction Administrative law is defined as branch of public law governing the exercise of powers and duties by public authorities; particularly concerned with the controls of public power by judicial review and by non-judicial review mechanisms such as individual (discretionary) and collective ministerial responsibility and the work of parliamentary Ombudsman, the commissions for local administration, commissioners and ombudsmen.1 There is no universal demarcation of administrative law, but conventionally included tribunals and inquiry as well as central and local government.2 Administrative law regulates the exercise of power by stipulating principles and procedures which administrators are required to observe.3 It provides remedies to persons aggrieved by administrative actions or decisions, offers equal status of the state and public, effective use of state (and now private ) powers, determination of state and public disputes, maintenance of rule of law and determination of social problems.4 2.0 Relevant laws on Administrative Actions Several counties and international institutions such as European Union (EU), African Union (AU) and United Kingdom (UK), United States of America (USA) have developed legislations, Charters of Rights, codes of ‘Good administration’ which is synonymous with principles of administrative law. European Union Charter of fundamental Rights of 200 Article 41grants citizens of member countries rights to good administration, which are rights to have their affairs handled impartially, fairly and within reasonable time. It grants the citizens right to be heard before measures are taken and right to be granted reason for the decisions made by administrative agencies.5 The EU has also developed a ‘Code of Good Administrative Behavior’ that embraces principles of administrative law such as: lawfulness, proportionality, impartiality, objectivity, legitimate expectations, justifications and the rights to be heard 6 The UK parliamentary Ombudsman has developed Principles of Good Administration’ based on six principles: getting it right, being customer focused, being open and accountable, acting fairly and proportionately, putting things right and seeking continuous improvement.

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Akech Migai, Administrative Law (Strathmore Press 2016) ch 2. Jonathan Law, ‘Oxford Dictionary of Law (Oxford Quick Reference)’ 768. 3 Migai (n 1) ch 2. 4 Fair Administrative Action Act 2015 ss 4 and 7. 5 ‘Fundamental Rights of European Union’ [2000] Official Journal of European Union ch 5. 6 European Union, ‘Code of Good Administrative Behavior’ [2000] Official Journal of European Union. 2

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The Necessary and Proper Clauses of the US Fifth amendment constitution in article 1, section 8 grants the congress power to make laws necessary to carry out the powers which include authority to create and govern agencies to administer programmes created by the Government. Such acts include Administrative Procedure Act (APA) of 1946 which dictates how federal administrative agencies can create regulations and it outlines the process for federal administrative courts to directly review decisions made by administrative agencies. According to the Attorney Generals’ Manual, the purposes of APA is to ensure that agencies inform the public about their organizations, procedures and roles; provide public with opportunity to participate, establish uniform standards for rule making and adjudication and outline the scope of judicial review.7 AU has developed Charter on Values and Principles of public service and administration that embraces principles of administrative law such as: acting according to law in delivering service and decision making, effective involvement of all stakeholders in the planning and delivery of public services, informing users of the decisions made and giving reasons of such decisions (ratio), and impartiality. In implementing the values and the principles, members are required to uphold overriding principles such as equality, prohibition of all forms of discrimination as well as impartiality, farness and due process, neutrality and adaptability to changing needs in the community8. Kenyan legal system recognizes the constitutional significance of fair administrative action. Article 47 of the Constitution

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provides that every person has a right to fair administrative

action that is expeditious, efficient, lawful, reasonable and procedurally fair. In fact, Section 4 (1) of Fair Administrative Action Act10 gives effect to the constitutional provision as it provides that every person has a right to administrative action which is expeditors, effective, lawful, reasonable and procedurally fair. Every person has a right to be given reasons for any administrative action taken against him or her11 and documents relating to the matter.12 It accords the persons affected by administrative action, right to attend the proceedings in company of expert of their choice, right to be heard to cross examine persons with adverse evidence against them.

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African Charter on Values and Principles of Public Service and Administration 2011 ch 1. ‘The African Charter on the Rights and Welfare of the Child’ ch 1 (Art 3). 9 Constitution of Kenya 2010 ch 4 (Bill of Rights). 10 Fair Administrative Action s 4. 11 Fair Administrative Action s 4(2). 12 Fair Administrative Action s 6 (2).

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Administrative actions affecting the rights of the public, enquire for need for public notice specifying the reasons for the decisions or actions, internal mechanisms available for those affected and period and manner within which appeals can be lodged as well as right s to apply for judicial review and even appeals.13 3.0 Principles of Administration Law Further to the foregoing, it can be concluded that principles of administrative law as buttressed in the various codes, legislations and legal sources include: 1. Principle of legality aimed for lawfulness and due process in getting it right and putting things right. 2. Principle of proportionality. 3. Principle of farness and impartiality to ensure equality, prohibition of all forms of discrimination as well as to establish uniform standards for rule making and adjudication. 4. Principle of Reasonableness to ensure objectivity and seeking continuous improvement. 5. Principle of legitimate expectations, 6. Principle of Justifications and principle natural justice where the scope of judicial review include the audi atrium portem (the rights to be heard) and not being judge in one owns cause (nemo judex in causa sua). 7. Principle of being customer focused. 8. Principle of Participation and duty to consult as individuals or public. 9. independence of the administrative agencies in making discretionary and ministerial responsibilities. 10. Openness and accountability.

4.0 Principle of Legitimate Expectation The general public or individuals may rely of government policies, procedures guidelines or policy statements or look to implementation of administrative action or decisions. While reliance though potentially relevant in most cases, it is not essential in establishing legitimate expectations as per the R v Newham LBC According to Schiemann LJ. Yet it may be harsh in instances where reliance is applicable to the most vulnerable. When this run short of the standards, timelines and expectations, the breach may bring action for review. The Principle of

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Fair Administrative Action pt IV.

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legitimate expectation protects the public does not suffer from such shortfalls. The doctrine protects judicial and procedural benefits of users of administrative decision or actions. The legitimate expectations create sense of entitlement that administrative courts will protect and which arises from conduct of the decision maker rather than nature of the interest, that attracts application of principles of natural justice.14 The doctrine was developed in English Courts in Schmidt v Secretary of State for Home Affairs where it was held that the holder of an entry permit had a legitimate expectation that he would be able to entre and remain in the country according to the terms of the permit and that this expectation could not be defeated without granting him a chance to put his views against a possible adverse decision (as quoted in Migai Akech)15. In the case of Council of Civil Service Union V Minister for Civil Service (GCHQ case), the House of Lords held that a union that had been regularly consulted about workplace change had a legitimate expectation that consultation would continue in the absence of exceptional circumstances. Lord Diplock as cited by Migai Aketch stated that for a legitimate expectation to arise, the decision ‘ must affect the other person…by depriving him of some benefits or advantage which either, he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to continue enjoying until it is communicated to him some rational grounds for withdrawing on which he has been given opportunity to comment or he has received assurance from the decision maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.’ 5.0 Rationale for Legitimate Expectations The English courts offers rationale as an explanation for protection of legitimate expectations. The Kenyan laws does not clearly give rationale for legitimate expectations but can be inferred in the principles of administrative in the Constitution and the Fair administrative action statute in Kenya.16 These rationales included, fairness of the process and procedures, protection of abuse of office, need for good governance, rule of law and protection of trusts and detrimental reliance. In GCHQ Case, Lord Roskill thought that the doctrine is vitally concerned with the duty to act fairly. While Justice Bingham stated in R v Inland Revenue Commissioners Exp. MFK

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Fair Administrative Action s 12. Migai (n 1). 16 Constitution of Kenya ch IV (Bill of Rights). 15

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Underwriting Agents that the doctrine is rooted in fairness. The doctrine thus seeks to protect the right to fair treatment at the hands of administrative agencies. The need to prevent abuse of power by public authorities’ in R v Inland Revenue Commissioners Exp. Preston, was applied substantively. The House of Lords held that it would be abuse of power for the Inland Revenue to renege on a guarantee it had given. Good administration is explained as a rationale for legitimate expectation in R v Secretary of State for the Home Department. The court argued that legitimate expectation should be explained by reference to good administration which requires public bodies to ‘straight forwardly and consistently with the public. According to Migai Akech,17 Rule of law and protection of the trust of the public, best explains the doctrine of legitimate expectation. The doctrine should be protected as it ensures overall clarity and predictability of law. Trust principle holds that it would be unfair t breach a legitimate expectation because that would violate the claimant’s trust in public authority. The law should give remedy to citizens who placed their trust in public officials when the trust is betrayed. This opinion was adopted in Ng Tung v Director of Immigration by Bokhary PJ (minority opinion). He states that the doctrine facilitates governance by winning trust and faith of the people in what the government says and does. The principle also protects a trust that individuals have reposed in the decision maker, for purposes of representation that the administrators will do what has been indicated. Example is the provisions of Article 1 (3) (b) of the constitution by which the public repose role of national and county executive in implementation and enforcement of law. Reliance should however merit justification of this approach especially to the most vulnerable who are less likely to be able to demonstrate detrimental reliance. Conclusions Principles of administrative law are interlinked. The doctrine of legitimate expectation is premised on the need for rule of law, safeguard of public trust in relying to administrative actions or decisions, the need for good governance and fairness. It fosters protection of substantive as well as procedural benefits of individuals and public. The administrative courts are more intrusive on effects of the betrayal of the trust of individuals to clearly envisage consequences of their interventions.

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Migai (n 1) ch 2.

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Administrative law principles and procedures are therefore helpful in regulating and circumscribing administrative actions and decisions with remedies on judicial review within internal discretionary decisions and ministerial responsibility as well as in judicial review where need be and on specific grounds.18

BIBLIOGRAPHY European Union, ‘Code of Good Administrative Behavior’ [2000] Official Journal of European Union ‘Fundamental Rights of European Union’ [2000] Official Journal of European Union Jonathan Law, ‘Oxford Dictionary of Law (Oxford Quick Reference)’ 768 Migai A, Administrative Law (Strathmore Press 2016) ‘The African Charter on the Rights and Welfare of the Child’ Constitution of Kenya 2010 Fair Administrative Action Act 2015

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Fair Administrative Action ss 7 and 8....