ADMINISTRATIVE LAW

Administrative Law is the law relating to public administration.

Administration is the act of process of administering, which simply

means it is the act of meting out, dispensing, managing, supervising and

executing etc.

It is the law relating to control of governmental power. It can also 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, therefore, is to keep the

powers of government within their legal bounds, so as to protect the

citizen against their abuse. Administrative law is also concerned with

the administration and dispensation of delivery of public services.

However it does not include policy making. Administrative is concerned

with the government carries out its tasks.

What are the government tasks, delivery of public services such as

health, security, facilitating trade, arbitration of disputes, and collection

of revenue. We are concerned about various public institutes of the

government, ministries etc.

Administrative law is the law relating to the executive branch of

government. The law deals with a variety of things i.e. the

establishment of public authorities e.g. the city council, establishment of

public bodies and organs.

The nature of the tasks given to various public organs and public

agencies.

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The legal relationship between the public bodies themselves and also

between the public agencies and the public and between public

agencies and the citizens.

Administrative Law is concerned with the means by which the powers

and duties of the various public agencies, public bodies and public

institutes can be controlled.

THE FUNCTIONS/PURPOSES OF ADMINISTRATIVE LAW

It ensures proper dispensation of services.

It seeks to protect citizens from abuse of power.

The primary purposes of administrative law is

1. To keep the powers of government i.e. powers of various public

bodies within their legal bounds, so as to protect citizens from

their abuse. Abuse of power can arise from, local authorities or

ministers, etc. either from malice, bad faith or even from the

complexities of the law.

2. There are duties placed in public bodies (public institutions)

such that another function of the law is to see that the duties

are performed and that the public agencies can be compelled

to perform their duties where there is laxity or where they

refuse or otherwise fail to do so.

The course will cover

1. Structure and the constitution i.e. Make up of administrative

institutions bodies, agencies etc. e.g. local government and civil

service.

2. The law relating to the functions powers and duties;

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3. The law relating to the control of the exercise of those powers

and duties.

The laws include

1. Acts of Parliament; ie. Statutes creating and governing public

agencies as well as other statutes.

Local government Act

Civil Procedure

Official Secrets Act

Service Commission Act

Law Reform Act

2. The law will include common law and common law principle

studies.

3. Judge made rules and doctrines as appear in court decisions on

various cases concerning public administration otherwise known

as stare decisis

4. The Constitution; (the public service commission is a creation of

the constitution) the constitution in addition lays out the divisional

institutions powers between various branches of the government.

i.e. the Executive the arm that carries out governmental functions.

The constitution also creates the Legislature it is the legislature

that enacts the various statutes. The constitution also provides for

the control of the exercise of the powers of public bodies and

organs through the courts. It does this by establishing the High

Court and it also gives the High Court inherent powers over public

bodies. The High Court has a supervisory power over the

constitution.

HISTORICAL BACKGROUND OF ADMINISTRATIVE LAW:

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IN ENGLAND

In England public administration by the government grew out of the

necessity and the realisation that it was the duty of the government to

meet the needs of the population and to provide remedies for social and

economic evils of many kinds.

It was realised and indeed it was necessary that the government cares

for its citizens from the ‘cradle to the grave’ it was also realised that it

was necessary to protect the environment for the people, to educate

them at all stages, to provide medical services, to house them, to

provide them with employment etc. The needs were various. Little can

be done merely by passing Acts of Parliament and leaving it to the

courts to enforce them. There are far too many problems of detail, and

far too many matters which cannot be decided in advance. There must

be discretionary power and if discretionary power is to be tolerable, it

must be kept under two kinds of control: political control through

parliament, and legal control through the courts. Equally there must be

control over boundaries of legal power, as to which there is normally no

discretion. If a water authority may levy sewerage rates only upon

properties connected to public sewers, there must be means of

preventing it from rating unsewered properties unlawfully. The legal

aspect of all such matters, are the concern of administrative law.

Some of the evils were pollution and industrial accidents that the

government needed to address.

Before mid 17th century in England the Justices of Peace were used for

all purposes of public administration up to the lowest level of authority.

They received instructions from the crown or the sovereign through the

commissioners of assize and conveyed instructions to the people.

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They also received complaints from the citizens and conveyed those

complaints to the crown for redress through the commissioners. A star

chamber was created to punish those who disobeyed instructions from

the King. They also punished those against who redress of grievances

lay. The process was very long and cumbersome and many grievances

and needs remained without redress.

In those days the system of administration as it existed in England today

did not exist for example the power of the state or the power of crown

could not be challenged at an administrative level.

A major change in the system of government occurred beginning in the

mid 17th century with the introduction of a representative system of

government. Through this system citizens could choose representatives

to present their needs and grievances to parliament for redress.

Parliament responded by enacting a variety of statutes establishing

various governmental bodies, organs and offices to provide various

services, to control certain activities such as industrial processes in

order to prevent harm to citizens and to address many other kinds of

grievances.

The creation of various public bodies, institutions and offices by statutes

to provide public services and to exercise controls meant that two things

had happened, first of all, the public bodies have been given various

duties to perform and two, they have been given powers to exercise

their duties including discretionary powers.

The grant of power including discretionary powers creates the likelihood

of abuse of those powers. Secondly it is always possible for grievances

to arise out of the public duty to provide services for example where a

body refused to deliver services and this necessitated the law to govern

the public bodies. The relevant law governing all these aspects of public

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administration became known as administrative law or law and

administrative processes and this system of law was introduced into

Kenya through colonization in a gradual process which we shall discuss

shortly.

THE CIVIL SERVICE

Read Constitutional Development in Kenya, Institutional Adaptation

and Social Change by J B Ojwang (1999) Pages 81-107

Definition of the Civil Service:

The Civil Service can be defined as the core of officials to which is

entrusted the implementation of the policy decisions of the government.

From this definition is clear that the function of the civil service is to

implement government policy.

The civil service falls under the Executive arm of the government. It is

in charge of implementation of government policy.

Civil servants are those servants of the crown other than holders of

political or judicial offices who are employed in a civil capacity and

whose remuneration is paid wholly or directly out of monies voted by

parliament. Excluded from this definition are

1. Armed Forces Employees;

2. Policemen

3. Employees of public corporations

4. Employees of local authorities except Town Clerk, Treasurer

and City Engineer

5. Employees of Nationalised Industries.

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We are concerned with the functions of the government to serving the

public. Administrative law is concerned about the functions of public

officers. We want to understand what the law says about the functions,

employment, accountability and efficiency of these public officials in the

duties that they have been charged.

ORIGIN OF THE IDEA OF PUBLIC SERVICE

As with other governmental machinery including local government

system, the civil service is one of those public institutions which was

inherited from the British public institutions. Its tenets were created by

the British colonial administration. However since independence the

civil service has changed. New dimensions have been added to it and

the new changes have been made to meet the circumstances of the

people of Kenya.

List of Civil Servants

1. Attorney General; and all who work in the AG’s Chamberrs;

2. Controller General

3. Auditor General

4. Permanent Secretaries

5. Secretary to the Civil

6. Commissioner of Police

7. Ambassadors and High Commissioners

8. Public Officials in various government ministries

Regarding their functions their primary role is to implement policies that

have been formulated by the government. These policies are

formulated especially by the cabinet. In their implementation of

government policies they have duties that they perform for the public.

DUTIES & SERVICES

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1. Issuance of Licences, i.e. trade licences, driving licences,

marriage licences, liquor licences;

2. Collection of Taxes;

3. Conduct audits of public accounts

4. Represent the government abroad, the functions are many.

In the exercise of these functions they provide services in the interest of

public and exercise controls in the interests of the public.

APPOINTMENT TO THE CIVIL SERVICE:

The person appointed to the civil service determines whether or not

services will be rendered to the public, they also determine whether

services to the public will be delivered efficiently. It also determines

whether they will stay in employment.

BRITISH WHITE HALL TRADITION

Tradition in respect of British Civil Service from which we derive our

own.

Key factors

As the primary agency for policy implementation and given the crucial

role of policy implementation, the Civil Service in the White Hall

tradition required an uncompromised degree of efficiency, high

competence (capacity to form the functions with which an individual has

been charged), loyalty to the government, acceptance of governmental

authority. please note that they were also conscious to appoint people

who had experience rather than patronage, patronage was not the

determining factor. They also appointed people who had technical

competence vis a vis tribal affiliation. With these qualities the civil

service in the British they were able to efficiently implement the

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functions that the government had made. to these were added two

factors

1. Autonomy

2. Neutrality;

Neutrality referred to the requirement that a civil servant be detached

from party politics and for this reason any person who was and is

appointed to the British Civil Service is prohibited from engaging in party

politics, if they engage in party politics they must resign. This restriction

ensures

1. British Civil Servants are detached from party politics so that

they are given or can develop a high degree of self-effacement;

they have self confidence to work efficiently no party what

political party is in power.

2. It ensured that civil servants are insulated from political

controversies, they do not have to worry about political

controversies and the effect of the controversies such as

instant dismissals.

3. Detachment ensures that the civil servants give service to a

government of any party or complexion, they can serve any

government that comes to power.

Autonomy means that civil servants in the British Tradition had secured

tenure of employment and because their tenure of employment was

secured they were secure and could work independently of external

influence. The British Tradition operated on the basis of the doctrine of

political responsibility. This doctrine has contributed greatly to the

achievements of the British Civil Service and the doctrine of political

responsibility is the doctrine whereby British Ministers are answerable to

parliament for what is done or what happens in their ministries and

departments, e.g. in the Ministry of labour the minister would be

answerable to everything that happens in that ministry. A minister

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takes responsibility for the affairs and the civil servants working in his

ministry and they are not allowed to blame any faults on the officials. If

any official does anything wrong in their ministry the minister is

responsible and thus has to ensure that officials in his ministry work

efficiently.

These factors have enabled the British Civil Service to be very efficient

and has improved the quality of service provided to the people and

generally to the development of that country.

In Kenya what do we have in requirement of

The Kenyan situation

In Kenya the particular historical context of the growth of the civil

service did not allow for all of the attributes that are found in the British

Civil Service. In contrast to the White Hall Model, with its emphasis on

neutrality and autonomy, when the colonial administration introduced

the idea of the civil service, it vested the whole civil service with both

the powers of policy making and powers of policy implementation. This

was a breach of rule number one, the person who makes policy cannot

be incharge of implementation but in Kenya this is what happened.

There was failure to maintain the strict separation between policy

makers and implementers as in the British Tradition.

The senior Civil Servants were the governor and his appointed provincial

commissioners and district commissioners. In this position, the civil

servants were making policies and at the same time they took part in

the implementation of those policies.

The demand for law and order necessitated the growth of a large

provincial administration manned by civil servants. They also exercised

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relatively unfettered degree of discretion unlike the civil servants in the

British Tradition, the British ones worked under a specific code of

regulation but in Kenya they had unfettered degree of discretion. This

went on until Kenya approached independence. Some gradual changes

took place between 1960 and 1963. towards independence, the colonial

administration made changes which included changes made in the

appointment of civil servants. One of the changes was that he civil

service was no longer going to take part in policy making and their

functions were limited in policy making.

Their discretionary powers which were until then unrestricted, and wide

were taken away. The Constitution was amended and by this

amendment the civil service was placed under supervision of an

independent body which was also created by the Constitution and this

was the Public Service Commission.

By this constitutional amendment, powers over the appointment of new

civil servants was given to the newly created Public Service Commission,

before this time, the civil servants were appointed by the Governor. T

The public service commission was given power to exercise disciplinary

control over persons appointed to the public service. For this purpose a

detailed government code of regulation was created on the basis of

which the public service commission exercised control over civil

servants. This code of regulations made certain provisions, ie. It

required maintenance of good conduct. The code of regulations also

formed part of the terms of employment of civil servants. It specifically

proscribed engagement in political activities by civil servants. It

prohibited civil servants from presenting themselves as candidates for

political offices unless they had resigned from the civil service.

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Civil Servants were also prohibited from joining any political associations

or parties because it was considered that such associations were not

consistent with their duties and obligations as public servants because

they were required to implement governmental policy without any bias

and without partiality regardless of any political views that they may

hold.

In this code people in the higher ranks like the controller general were

totally barred from participating in the political activities or political

party matters.

In this Constitution, the tenure of Civil Servants was secured to make

Civil Servants discharged their functions independently and efficiently.

A civil servant could not be discharged from service unless they did

matters which warranted their dismissal as stipulated in their code of

regulations. Inefficiency would be one of the grounds or engaging in

political activities would be grounds for dismissal. Misconduct was

another ground of regulations.

This secured tenure meant that it was not easy to dismiss a civil servant.

No civil servant could be dismissed unless and until the matter had been

referred to an independent tribunal and then that particular civil servant

would be given a chance to be present and to be heard. With such a

civil service, appointment by public service commission on the basis of

qualified credentials would be expected to function efficiently.

DEVELOPMENTS IN THE CIVIL SERVICE SINCE INDEPENDENCE

The situation remained until 1964 when the country attained

independent status and shortly after independence, firstly it was felt

that in this country it was advisable to have a neutral and independent

civil service.

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Several constitutional amendements were made whose overall effect

was to place the ‘civil service squarely under the control of the

President. These were the changes

1. On attainment of republican status in 1964, members of the

public service commission were now to be appointed by the

president at his own discretion. Previously they were appointed

by the governor general acting on the advise of the Judicial

Service Commission.

2. Whereas the public service commission was originally required

to operate independently of the executive, all of the officers

appointed by the executive, now the President could give

authority to the Public Service Commission to delegate any

one or more of its functions to one member. These

amendments also affected the position of the Attorney General,

The Controller General, Auditor General and Permanent

Secretary, these powers were meant to give the president

unfettered discretion in relation to this offices.

In 1966 other amendments enhanced the position of the president in

relation to the public service. the amendment gave powers to the

president of constituting and abolishing offices for the Republic of

Kenya and of making appointments to any such offices in addition he

had the power to terminate any such appointments at his own

discretion.

The Constitution further decided that any person who holds office

shall hold office at the pleasure of the President. Section 24 and 25

of the Constitution.

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The effect of taking away the power of appointment and termination

of civil services from the public service commission and taking our

the tenure of the civil servants.

The effects were

1. It has been observed that the effect of these changes was one that

it relegated the position of Public Service Commission to a limited

auxiliary role making it merely a technical department of the

Executive;

2. With respect of tenure of Civil Servants, the tenure no longer

depends on the observance of the code of regulations, it no longer

depends on their performance or reputation but on the pleasure of

the president. Since the president could abolish offices at his own

discretion,

3. it follows that he idea of protecting offices by vesting their control

in an independent body is no longer valid.

4. Further the president became or has become in theory the

employer of all civil servants and he can terminate their services

at will.

5. Because of this the constitutional mechanism that was intended to

insulate public officers from the vagaries of political will was

dismantled by these amendments.

6. The Public Service Commission lost independent Constitutional

status and these amendments created conflicts in constitutional

provisions.

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Look at Mwangi Stephen Mureithi V. Attorney General

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