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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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