Administrative Law I PDF

Administrative Law- GPR 203
Module 2: EVENING
Lecture Notes
By: Prof. Migai Akech
1 These Notes have been compiled by Joseph McDonald photocopying is prohibited.

Lecture 1 and 2: Thursday October 2012 – B3 5.30-8.30 PM
INTRODUCTION
Definition
Administrative law is the law relating to the control relating to government power.
The primary purpose of administrative law is to keep the powers of government within
their legal bounds, so as to protect citizens against abuse.
Nature and Purpose of Administrative law
Article 47 of the constitution
(1) Every person has the right to administrative action that is expeditious, efficient, lawful,
reasonable and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by
administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation
shall—
(a) Provide for the review of administrative action by a court or, If appropriate, an independent
and impartial tribunal; and
(b) Promote efficient administration.
It deals with how power is acquired, used and how to remedy improper use of power.
What is Power?
Steven Lukes in his book: Power a Radical View defines power as the capacity to dominate
other beings.
That domination is expressed in three ways:
1. A person ‘A’ can exercise power over ‘B’ by making ‘B’ act in a manner that is not
in the interest of B. It is a one dimensional decision making power. Example: One
person wins a political struggle against another then imposes his will by punishing
them if they don’t cooperate. The winner takes it all and ‘A’ imposes his will by
threatening.
2. Person ‘A’ can impose power over ‘B’ by creating barriers to the public airing policy
conflicts and thus ensures public knowledge to things that are harmless to ‘A’. It
discourages/ makes its hard for the other person to express themselves and
demands for change are suffocated. It is a non decision making power and it
favours the elite. Example: The Chinese child labour policies and criminalisation of
treason.
3. Person ‘A’ determines his wants thus suppressing B’s interests by controlling how
‘B’ thinks by thought control. It is mainly done through mass media.

What does law have to do with power?
Law regulates power by insisting that the exercise of power is democratic i.e. Participatory
and democratic(accountable)
The purpose of the law is to protect individuals from abuse of power
Law promotes the value of things we care about as human beings.
Dawn Oliver argues that there are a number of values that are moral tenets of how life
ought to be for an individual in a democratic society. These values include:
i) Autonomy – Freedom to make ones decisions
ii) Dignity – The quality of being worthy
iii) Equal respect – Being treated as a citizen
iv) Status – A sense of belonging to a society
v) Security – Ability to trust and rely upon others with whom you deal with
vi) Democratic Governance; as a right but Insufficient
Thomas Frank argues that the right to democratic governance involves the right of citizens
to be involved in governance. E.g. The right to vote.
We must trust that if the government says it will do something that it will deliver.
It enhances legitimacy and enhances our trust in government, and our willingness to cope
with the government. We must be able to rely on it.
That is why it becomes important for the law in the context of the principle of legitimate
application to say that if as a public authority you have made a promise, then you must
see to it, because that promise enhances order, good administration and good life.
The expectation from Oliver is that when those who hold power wield and exercise it, they
will take these views into point honour, implement and adhere to these views when they
exercise power.
We can therefore argue from this premise, that it is likely that these values will be
protected where the exercise of power is democratic- where there is participation and
accountability, than in situations where the exercise of power is authoritarian. I.e. these
values are more likely to be realised in a democratic politics than in an authoritarian
politics.
In this sense we can quote Robert Daho, “While democracy will not be a sufficient
condition for achieving these values, it is nevertheless an essential means to its
realization”.i.e. Democracy is not everything but it is important to achieve these values.
These are the values that reflect our fundamental interests as human beings.
So it follows in a democratic society that law ought to uphold dignity, the autonomy, the
respect, the status and the security of individuals and group of individuals against the
abuse of power.

In the perspective of international human rights, these values form the intricate of UDHR,
ICESCR, ICCPR. We should therefore consider the value as part and parcel of emerging
rights of citizens of democratic governance.
In The Perspective Of Administrative Law
The right of democratic governance entails the right of each citizen to take part in
government i.e. the right to vote, right to participate in the context of government affairs.
These values are expressed in the administrative law scholarship, as public law values.
These public law values are certain legal standards which the exercise of power forces to
be performed. They include: Legality, Fairness, reasonableness, rationality, participation,
accountability and fulfillment of legitimate expectations.
From the administrative law perspective, the concern is with realising these values on a
day to day basis and in this respect we are challenging the practice of democracy.
In Recent History, (History Of Administrative Law In Kenya)
Democracy has had its powers in its national development, but it has been a narrow one.
Narrow in the sense that it has been attached to the ballot box.
In the 70’s and 80’s when countries were suffering because of the oil crisis, there was a
boom because countries had borrowed a lot and were unable to repay their loans. When
they went to the Brighton Woods Institutions, the IMF and the World Bank, they were told
that they would get aid on condition that they:
Rolled back their state’s involvement in the States economy through privatisation and
liberalisation of economic policies
Democratic governments are likely to be better at managing the economy, so the

institutions wanted the countries to liberalise their policies
In virtually all of Africa, they implemented these with the oversight of World bank and
IMF.
They implemented what was then called structural adjustment policies, consisting of
market liberalisation measures including privatisation.
In the 1990s, liberalisation of politics begun, it was the multi party era. As a part of the
new liberal market ideology, it was better that politics was also liberalised, and hence the
introduction of democracy. E.g. The constitution was amended to allow contestation of
government to many political parties.
The problem however was that the neo liberal movement agenda was attached to the
ballot box in the perspective of the liberalisation of politics.
This is not sufficient because the ultimate concern to the typical citizen is day to day
democracy such that one can get a work permit from the local town council office without
delays, or one can get a passport or Identity card without the officers abusing their
powers.

How Do We Ensure Citizens Experience Good Administration On A Day To Day Basis?
i) By assessing attainment of democracy through elections, the assumption is that

we determine the existence of democracy by the frequency of elections and
whether they are free and fair.
ii) The assumption being that once the elections are held, then the country attains
democratic governance, and that magically a typical citizen will not complain of
abuse of power by the clerk at the local authority office.
We need to question this orthodox:
Democracy has to be something that we realize on a day to day basis.
It is the right to be consulted when political decisions are made. If democratisation

initiatives do not take this perspective into account, they become hollow.
It must ensure citizens participate meaningfully in the process of governance and hold
them to account.
The periodic elections however free and fair does not offer the electorate adequate degree
of control of our government and it therefore raises the need for auxiliary political and
legal mechanisms to ensure and facilitate:
The Day To Day Participation In Governance
Political accountability of the agents and instruments of government i.e. the

bureaucracies, elected representatives etc.
In this way the administrative law can be a critical instrument for the realization of day to
day democracy.
Thus administrative law is one of those auxiliary or supplementary mechanisms we need

to have day to day democracy.
Administrative law becomes important because it establishes institutional frameworks that

will facilitate the regulation of the exercise of power on a day to day basis.
The Oliver values are affected in the exercise of power and so it becomes important for us
as citizens to participate in what the government is doing and hold them to account.
Complexity of the Relationships And Public Administration
However public administration can be complex given it entails delegation of authority as

dictated by the social contract doctrine.
We delegate our power to the government to do certain things for us and it delegates its
powers to the bureaucracy.
We must therefore find a way where these two principals, the people and the elected hold
the agency/ the bureaucracy into account.
There is a principal agent relationship, creating a number of problems;
1) The fundamental problem is that the agent works for the public (which is large), we
cannot therefore monitor them effectively, because they have better information,

and there are barriers for getting that information. In fact there are laws that allow
non disclosure of information – The officials Secrets Act, which circumscribes the
circumstances under which an individual can get information about government,
making it arduous to know what goes on in government. This makes it hard to hold
any one into account. This explains the scandals such as the Goldenberg Scandal,
took 5 -6 years for the public to know.
2) Information asymmetries – Between the citizens and the bureaucrats, the

information asymmetry favours the bureaucrats, and also between the elected
representatives and the bureaucrats. Example, the Permanent Secretary is likely to
know more that the MP.
What Is Public Administration
This is the execution of public affairs as opposed to policy.
The task of executing public affairs in our tripartite government falls on the executive.
To perform its tasks effectively, the executive has at its disposal the bureaucracy, the civil
service for example the public service, commissions, public universities etc.
We appreciate the limitation of representative democracy because it is in the context of

delegation, that problems of governance begin to arise.
How Do We Ensure That The Agency Does Not Abuse Its Powers?
The practice of representative democracy always fails to ensure that the power of
government is used for its intended purposes.
Governmental power exists for one reason: To protect, pursue and safeguard the public
interest as opposed to the private interest.
But there are incentives for the bureaucrats to act in their own parochial interests.
The rational human being is selfish and mostly looks out for his personal interests.
This explains the reason why a Permanent Secretary, head of civil service will want to
make money, get ahead of his peers, accumulate wealth and manipulate the system to
get ahead.
There are chains of indirect responsibility – The link between the civil servant and the
public is through the Minister.
They are shielded from public scrutiny because a minister answers to parliament on their
behalf.
While the bureaucrats exercise power, the legislatures hardly have time and the resources
to hold the executive accountable.
The role of the MP’s are to: Make laws, Represent the people and check the government.
The auxiliary institutions are established to enhance day to day accountability of the
executive, bureaucracies, commissions etc. Administrative law constitutes this mechanism
to overcome limits of representative democracy.

Administrative Law Regulation of Public Administration
Administrative Law regulates Public Administration by empowering public officials to

implement policies of government and regulating the exercise of power and ensuring they
adhere to public values or principle of administrative law(The Oliver values).Administrative
Law does two things:
It sets out the (body of procedures) general rules that enhance good administration.
Provides remedies for people affected by maladministration
In common law jurisdictions, general rules and procedures are provided by the courts.
They are also found in the statutes. Example, South Africa has Promotion of
Administration Justice Act, USA has the American Administrative Procedures Act.
The key Principles of Administrative law:
i) The decisions of administration must be reasonable and justifiable.
ii) The administrators must consult before making decisions.
iii) Decision making process must be free of bias.
iv) Administrators must explain their decisions in writing.
v) Administrators must not act arbitrarily or outside their powers or ultravires.
vi) Administrators must act in good faith.
vii) There has to be a right of judicial review, for administrative decisions made.
viii) There must be checks and balances in decision making.
Procedures of Administrative Law
i) The administrator should give adequate notice if he is going to make a decision. E.g.
Change of user of a building
ii) Must give the persons likely to be affected by the decisions, a chance to make a
presentation through e.g. public inquiry.
iii) The agency must give reasons for the decision making process.

Lecture 3: Thursday 8th October 2012 – B3 5.30-8.30 PM
CONCEPTUAL FRAMEWORK OF ADMINISTRATIVE LAW
Governance
Governance has been defined as the manner in which power is exercised in the
management of the country’s resources and when the affairs of the state are administered
and regulated.
More significantly, it expresses the idea that governing is no longer the preserve of the
state. This is to underscore two essential points: Today various parties take place in
governance so e.g. in the context of privatisation of provision of water, security, health
care, etc, we have non state actors now providing these services. In other words they are
taking part in government. From the viewpoint of democracy, then governance denotes
the idea that the governed(the people) should participate or be consulted in governing
So how does this implicate the rule of law: We shall see this shortly..
What is the Rule of Law About?
The essence of the rule of law ideally is that people ought to be governed by law.
If we look at these two concepts together, the concept of governance and the Rule of law,
we can therefore talk of governance by the rule of law or governance by law.
WHAT GOVERNANCE BY LAW ENTAILS, FROM THE POINT OF RULE OF LAW:
Following Lon. L .Fuller from the book of “The Morality of Law”, the rule of law requires the
establishment of the rule of law, that wield a number of criteria,
1. Law must be universal or just, its prescriptions must be addressed to all and not to a
particular group of citizens.
2. The law must be promulgated, to promulgate means to announce, to the people, the
subjects to whom it is to govern.
3. Law must be prospective and not retrospective. It must always look to the future. E.g.
PEV there was an attempt to apply the law retrospectively, did not work.
4. The law must be clear, because is only such clarity that enables the subjects to
understand how they are required to behave.
5. The provisions of law must not be contradictory. Eg. Acts of parliament should not
contradict the constitution, or one another.
6. The prescriptions of law must not require conduct that is impossible to perform. Eg a
prescription that all citizens must pay income tax, such a statement presupposes that all
citizens have an income, which is not always the case.
7. Prescriptions of law must be stable over time. Important From the viewpoint of
investments for example, It is a darling of the World Bank and the IMF when they talk
about the rule of law, essentially they talk about the establishment of a stable investment
environment, eg if an investor wants to come to Kenya, he will want to know if the tax
regime is going to be stable over the next 5 to 10 years in order to predict the sort of
income he would generate from the investment. If it is not predictable, then he may not

be persuaded to come and invest in the country. While we appreciate that law must
change, the change should not be too frequent because it may be impossible for the
citizens to comply. Many actions that law regulates require advance planning, preparation.
Liberal theory, idea of liberal legality, is to say that liberty in a liberal order is liberty
within certain a particular prescribed scene. Bounded freedom and not unlimited freedom.
8. Prescriptions of law must be applied consistently. There must be considerable congruence

between the rules promulgated and their actual application in specific places. I.e. that is
rule in the book and rules that are applied in practice. This is our concern as
administrative lawyers. Because we determine whether there is regularity in the
application of the law in the day to day basis. Is it consistent? Is it applied differently to
different people? It is also important in the perspective of facilitating and enhancing
respect for law. Whenever law is not applied consistently, people begin to lose faith in the
ability of the law to regulate human behaviour. In turn when there’s lack of respect of the
law there is lawlessness in the society, and hence the culture of impunity, the law is
applied to some people and not to others. Then anarchy manifests itself in the society.
The rule of law can only be realised where there are suitable application mechanisms:e.g
a. Independent judiciary
b. Access to justice
c. Reliable enforcement agents
Law is a culture of doing things through following principles and established procedures.
There must be a duty and culture of legality otherwise there would be anarchy.
It was un-procedural when MP’S tried to enact a law to enhance their emoluments or in
1982 process of turning the country to dejure one party state- authoritarianism because
the laid down procedures were not followed the effect of which were clear for every one to
see.
Linking The Three Concepts; Governance, The Rule Of Law And Constitutionalism.
Constitutionalism: means that government is limited by law, Practicing Constitutionalism

is about limiting governance through realising or attaining the rule of law ideal.
Question: How can governance be limited through the Rule of Law?
The task of limiting governance is the domain of public law. Public law consists of two
domains of law i.e
1) Constitutional Law
2) Administrative Law
Public law limits governance by establishing mechanisms, principles, procedures that

would enhance or facilitate the control the regulation of power.
A number of principles in public law that facilitates this end:
1. Public participation
2. Accountability

3. Fairness
4. Legality
5. Reasonableness
6. Rationality and
7. Legitimate expectations
Therefore Constitutional law and Administrative law play unique but complementary roles.
At the same time, we appreciate that these twists of public law, constitutional law and
administrative law, take fairly different approaches to regulating power in their respective
methods:
Constitutional law – Regulates power structurally in the sense that if we look at the typical
constitution the approach is to focus on proving chains of accountability e.g. precedent in
the content of Parliament, in the establishment of political legitimacy, how are governors
to be elected.
Administrative law – Is detail oriented, e.g. Practical detailed illustration, e.g. The concept
/doctrine of ministerial responsibility that the expectation is that instances of
maladministration- instances of corruption, will somehow come to the attention of
parliament, parliament tends to not have the time and the resources to investigate and
over public administration. Such a doctrine is limited because it does not help deal with
instances of maladministration. For that we need Administrative Law.
In summary:
Although a constitution will always be important for realising the rule of law ideal,
administrative law is arguably even more important for realising this fundamental ideal.
It gives us the tools that we can practically use limit governmental power on a day to day
basis in a manner that is democratic –participatory and accountable.
Brian Tamanala in “Rule of Law” derives three themes on the rule of law:
1. The first theme is government limited by law
This focuses on restraint of government tyranny. It means first that government officials
must abide by the currently valid positive law, and second there are restraints on their
law-making power (how they can change the law), imposed by natural law, divine law,
customary law, or more recently human/civil rights.
2. The second theme is formal legality:
Public, prospective, stable, general laws equally applicable with a fair hearing within a
judicial process. It emphasizes predictability, deemphasizes the content of the law, is not
incompatible with authoritarian regimes, and foregoes requirements of distributive
equality and justice in individual.
3. The third theme is rule of law, not man.
This avoids the unpredictable predilections of individual actors. The rule of law response
has been to identify the judiciary (legal experts) as the special guardians of the law, and

reduce the significance of the individual as judge – at its most extreme in formalism,
which values the objective, mechanical judge. It requires careful selection of judges
committed to fidelity to the law, deference to proper authority to make the law, diverse
social background of judges, and qualities of judicial honesty and integrity, among other
factors.
LINKING RULE OF LAW AND GOOD ADMINISTRATION
Good administration entails compliance to the grounds of judicial review such as

proportionality, respect, principles of reasonable expectations, procedural fairness, legality
etc.
Good administration therefore is concerned with whether the principle of legal standards
are used
How can these principles be fairly are implemented
Good administration equates administration that complies with the grounds of judicial
review prescribed in the Constitution Art 47 that: Every person has the right to
administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair,
proportional, intravires.These are the legal standards of good administration.
You could also say it requires decision makers to decide consistently with human rights
standards. (Seen the view point of human rights).
Good administration requires decisions to be reasoned – exercise of power is likely to be

more rational and justifiable or fair, where society has a culture of justification, where
decision makers give reasons for their decisions.
Illustrations: This is what is found in some jurisdictions:e.g
1. European Parliament Code of Good administration 2001
Applies to the European Union institutions and has a number of principles include: Officials
(public officers) should be: Courteous and helpful, not respond to requests without delays,
should protect personal data, provide information upon request.
2. United Kingdom Parliamentary Ombudsman.
It has published the following principles of good administration:
Getting it right – guided by law while making decisions thus saving time and resources.
Customer focussed - see the citizen as the customer. Others contract visa services to
private entities
Open and accountable –
Acting fairly and proportionately
Putting things right – make amends if something has gone wrong
Seeking continuous improvement

3. Australian Administrative Review Council
It reviews their regime of administrative law from time to time. It the best regimes of
administrative law. The expectation is that decision making bodies make reference to
these guideline in their operations. There are guidelines on lawfulness, natural justice,
accountability, conduct of administrative agencies, evidence, facts and findings, reasons
and accountability. These are helpful in terms of guidance so that they implement the
process of good administration. It also provides guidelines for
i) Remedies
ii) Apology
iii) Better explanation of a decision
iv) Expedite a case
v) Compensation of a defect as a result of administrative damage such as delay,

incorrect advice etc
vi) Payment is made under a scheme for detriment caused by defective

administration.
4. Article 41 of the European Charter of Fundamental Rights
1. Every person has the right to have his or her affairs handled impartially, fairly and within a
reasonable time by the Institutions, bodies and agencies of the Union.
2. This right includes:
i) the right of every person to be heard, before any individual measure which would
affect him or her adversely is taken;
ii) the right of every person to have access to his or her file, while respecting the
legitimate interests of confidentiality and of professional and business secrecy;
iii) the obligation of the administration to give reasons for its decisions.
3. Every person has the right to have the Union make good any damage caused by its
Institutions or by its servants in the performance of their duties, in accordance with the general
principle common to the laws of the Member States.
4. Every person may write to the Institutions of the Union in one of the languages of the
Constitution and must have an answer in the same language.

SYSTEM OF ADMINISTRATIVE LAW
There are several approaches for used to achieve the administrative law principles
1) The Judicial review approach
2) The ombudsman approach
3) Proceduralisation
4) Administration Courts approach
1.Judicial Review Approach
Judicial review of individual cases of maladministration, for judicial review they go to court
then the court decides if they will stand in court or not.
Only 1% of the population in Kenya seek justice in court, and for judicial review, an even
lesser figure.
How do administrators comply with court orders? How do they react? What is the impact
of judicial review approach administration in Kenya?.
Wednesbury unreasonableness, it is useful, but it is limited because of the limitation of the

number of people who use the courts and the perception of public administrators - do they
welcome it? How do they view it - is it a hindrance or interference to their work.
UNREASONABLENESS
Reference may also be made to the case-law in England. In Associated Provincial Picture Houses v.
Wednesbury Corp., the principle has been asserted that unreasonableness may be a ground for
attacking an administrative decision. Of course, the test for unreasonableness was very stringent. The
decision could be attacked on this ground only if it was “so unreasonable that no reasonable authority
could ever have come to it”, and to prove a case of that kind would require something “over-whelming”.
There are not many cases in which administrative decisions may have been challenged on this ground.
In Roberts v. Hapwood, it was held that a local authority having power to pay “such wages as it may
think fit” was bound to exercise its discretion reasonably and that a “payment of £4 per week in 1921-
22 to the lowest grade worker was so unreasonable as to be ultra vires in spite of the generality of the
discretion. Lord Wrenbury interpreted the words “may think fit” as “may reasonably think fit”. In his
view, it made no difference in the meaning, whether the word “reasonably” or “reasonable” was in or
out because “a person in whom is vested a discretion must exercise his discretion upon reasonable
grounds. Discretion does not empower a man to do what he likes merely because he is minded to do so
– he must in the exercise of his discretion do not what he likes but what he ought … He must act
reasonably”.
The principle of reasonableness has become one of the most active and conspicuous among the
doctrines which have vitalized administrative law in recent years. Although the principle itself is ancient,
the cases in which it was invoked were few and far between until 1968 the Padfield case opened a new
era. Today, on the other hand, it appears in reported cases almost every week, and in a substantial
number of them it is invoked successfully. Its contribution to administrative law on the substantive side
is equal to that of the principles of natural justice on the procedural side.
This doctrine is now so often in the mouths of judges and counsel that it has acquired a nickname,
taken from a case decided twenty years before Padfiel, the Wednesbury case. The reports now are

freely sprinkled with the expression like ‘the Wednesbury principle’, ‘Wednesbury unreasonableness’, or
‘on Wednesbury grounds’. As Lord Scarman explained:
‘Wednesbury principles’ is a convenient legal ‘shorthand used by lawyers to refer to the classical review
by Lord Greene MR in the Wednesbury case of the circumstances in which the courts will intervene to
quash a being illegal the exercise of administrative discretion.
One of the grounds of review, he added, is ‘unreasonableness in the Wednesbury sense’. In the same
case Lord Bridge referred to the exercise of power ‘unreasonably in what, in current legal jargon, is
called the “Wednesbury sense’. ‘Wednesbury is now a common and convenient label indicating the
special review of administrative disableness which has become the criterion for judicial review of
administrative discretion. It is explained in that context below, where the key passage from the
judgment of Lord Greene MR is set out in full.
In an important ex cathedra statement of the grounds for judicial review Lord Diplock preferred the
term ‘irrationality’, explaining it as ‘what can by now be succinctly referred to as Wednesbury
unreasonableness’. But it is questionable whether ‘irrationality’ is a better word. Virtually all
administrative decision are rational in the sense that they are made for intelligible reasons, but the
question then is whether they measure up to the legal standard of reasonableness. “Irrational” most
naturally means ‘devoid of reasons’ whereas ‘unreasonable’ means ‘devoid of satisfactory reasons’.
The expression ‘arbitrary and capricious’ is sometimes used as a synonym for ‘unreasonable’, and in one
case this has been transmuted into ‘frivolous or vexatious’ and ‘capricious and vexatious’. But the
meaning of all such expression is necessarily the same, since the true question must always be whether
the statutory power has been abused.
2. The Ombudsman Approach
The primary function is to investigate individual complaints of maladministration and

Correct errors and impropriety of such cases and also to provide remedies to aggrieved
citizens.
In other countries there is administrative compensation such as in Australia.
What does the Ombudsman do? The Roles of the Ombudsman
It can play other roles such as observation, conducts an all motion investigation and then
reports to the public through legislature.
This reveals systemic problems, which prompts the agency affected to make reforms.
Conducts audits of agency operations with a view to pointing strengths and weaknesses in
their decision making process, recommending reforms, and requiring the agencies to
implement the reforms.
A formal process could be established where the agency would be asked to explain the
steps they have taken to implement the solution.
Advise and assist agencies to observe the principles of good administrative. E.g by
establishing practice guidelines eg Australian administrative review council and assisting in
establishing the practice

Conduct training on how to reform to the guidelines Monitor and evaluate compliance to
the codes and guidelines.
Monitors and evaluates compliance with court decisions and makes reference to the
decisions by courts during judicial review
3. PROCEDURALIZATION APPROACH
This approach is characterised by establishing procedures that ensure principles of good

administration.
They enable the public to participate in decision making process of public authorities.
They achieve checks and balance by separation of agencies functions e.g. The Kenya
National Commission of Human Rights and Equality, investigates and adjudicates.
It is problematic that the same people investigate and make decision over the same
matter because of conflict of interest/bias.
There should be (Chinese wall) where the people investigating should be separate the
ones making the decision.

Lecture 4: Thursday 15th October 2012 – B3 5.30-8.30 PM
The Principles of Administrative Law
1. Legality
The principle of legality is the legal ideal that requires all law to be clear, ascertainable
and non-retrospective. It requires decision makers to resolve disputes by applying legal
rules that have been declared beforehand, and not to alter the legal situation
retrospectively by discretionary departures from established law. It is closely related to
legal formalism and the rule of law and can be traced from the writings of Feuerbach,
Dicey and Montesquieu.
The principle has particular relevance in criminal and administrative law. In criminal law it
can be seen in the general prohibition on the imposition of criminal sanctions for acts or
omissions that were not criminal at the time of their commission or omission. The principle
is also thought to be violated when the sanctions for a particular crime are increased with
retrospective effect.
In administrative law it can be seen in the desire for state officials to be bound by and
apply the law rather than acting upon whim. As such advocates of the principle are
normally against discretionary powers.
This is the essence of the rule of law from the view point liberal legality, that act of
government that affects every individual, must be able to justify it actions/ omissions to
reference to some law.
Every act of government agency must be authorized by law or have some force in law- Act
of Parliament, some legislature.
It tends to be that Acts of parliament confer very wide powers that confound the ultra
vires principle.
Every agency of government must act within its powers; any act in excess of power is
deemed ultra vires.
The effect of an action being ultra is that any administrative act that is ultra vires is void
in law; it is as if no decision had been made.
The courts have developed this principle of ultra vires, where for example an Act of
parliament confers very wide discretionary powers to a Minister, the courts read into the
provisions requiring the Minister to act in certain ways-e.g.’ to act reasonably .The courts
determine that it could not have been the intention of parliament that the power granted
to the Minister be conducted unreasonably, or arbitrarily.
Linking the concept of ultra vires principle and legality, we can challenge the legality of an
administrative act on the grounds that there was no power to do it, or that although there
was power to do it, then that p was exercised in an unlawful manner i.e. irrational, not
taking into account relevant consideration etc.

2. Principle of Reasonableness
In the common law concept, it is known as the Wednesbury Unreasonableness.
This was illustrated in the case Associated Picture Houses Vs Wednesbury

Corporation.
Associated Picture Houses vs Wednesbury Corporation.
In 1947 a cinema company, Associated Provincial Picture Houses, was granted a licence by the
Wednesbury Corporation, the local authority of the market town of Wednesbury in Staffordshire, to
operate a cinema on condition that no children under 15 were admitted to the cinema on Sundays.
Associated Provincial Picture Houses sought a declaration that such a condition was unacceptable,
and outside the power of the Corporation to impose.
Judgement
The court held that it could not intervene to overturn the decision of the defendant simply because
the court disagreed with it. To have the right to intervene, the court would have to form the
conclusion that:
The Wednesbury Corporation, in making that decision, took into account factors that ought not to
have been taken into account, or
The Wednesbury Corporation, in making that decision, took into account factors that ought not to
have been taken into account, or
The Corporation failed to take into account factors that ought to have been taken into account, or
The decision was so unreasonable that no reasonable authority would ever consider imposing it.
The court held that the condition did not fall into any of these categories. Therefore, the claim failed
and the decision of the Wednesbury Corporation was upheld. According to Lord Greene, M. R.,
It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar
with the phraseology commonly used in relation to exercise of statutory discretions often use the
word "unreasonable" in a rather comprehensive sense. It has frequently been used and is frequently
used as a general description of the things that must not be done. For instance, a person entrusted
with discretion must, so to speak, direct himself properly in law. He must call his own attention to
the matters which he is bound to consider. He must exclude from his consideration matters which
are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and
often is said, to be acting "unreasonably." Similarly, there may be something so absurd that no
sensible person could ever dream that it lay within the powers of the authority. Warrington LJ in
Short v Poole Corporation [1926] Ch. 66, 90, 91 gave the example of the red-haired teacher,
dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking
into consideration extraneous matters. It is so unreasonable that it might almost be described as
being done in bad faith; and, in fact, all these things run into one another.
The essence of the principle of reasonableness is that a decision is unlawful if it is one

which no reasonable authority would have come to.
What is reasonable authority? According to Lord Greene
i) Failing to take into account relevant consideration

ii) Making a conclusion that is so unreasonable that no reasonable authority
person would have come to it.
iii) It is also called irrationality. It covers a multitude of sins: Sheer absurdity or

caprice, illegitimate motives and purposes, irrelevant considerations, self
misdirection, addressing oneself to the wrong question.
iv) The standard of unreasonableness is pitched at high level, that it’s a decision
that is so wrong that no reasonable person would sensibly decide that way.
3. Proportionality
This is the principle that the means used by a decision maker, must be appropriate to
achieve the objective sought, and must not go beyond that which is necessary to attain
that objective.
It encompasses three sub principles:
a) Appropriateness
b) Necessity
c) Balancing
a) Appropriateness:
Only suitable or appropriate means should be used to bring out the desired ends.
It must choose the right legislative tool to do the job at hand.E.g. Falconers’ case where
the falconer was required to have a skill of use of a gun as a precondition for being
licensed to be a falconer. The question was whether it was necessary for falconer to have
such knowledge for the job. It was not necessary and hence the court decided that it was
not appropriate.
b) Necessity:
If you are applying or regulating an activity, you must use the least restrictive means so
that they don’t interfere or they least interfere with the rights of persons affected.
If there are several suitable means, they must choose the least restrictive means of doing
that. (Question should be that if the measure proposed is necessary).
c) Balancing
This is balancing between the seriousness of the interference of a right and the
justification of such interference.
The Purpose and method should be weighed against each other and not found to be out of
proportion. E.g. Petrol station and an expanded road. Traffic flow and business interest of
the business owner, if the exits are blocked, is the measure proportional to block the
exits?
4. Duty to give reasons
This is said to be the hallmark of good administration because it opens administration up

to scrutiny or criticism.

It ensures that power is not exercised arbitrarily.
A decision is likely to be better if the reasons for it are done in writing.
It facilitates judicial review by the courts.
Duty to give reasons requires that:
i) Proper adequate reasons must be given i.e. the reasons must deal with the substantial
points that have been raised
ii) Reasons must be intelligible i.e. not contradictory, not doubtful on whether matters
Philosophically, it affirms the individual, because citizens are considered when decisions
are made, when reasons are given it means that citizens’ matter, when one is given an
account of how and why decisions are made in governmental action. One is treated as a
subject rather than object of law. They are seeking to give you an account. You participate
in dialogue about governmental action.
Authority without reason is dehumanizing, to be the subject of administrative authority

that is unreasoned is to be treated as a mere object of the law and not as a subject with
independent rational capacity.
Unreasoned coercion denies our moral agency and our political standing as citizens
entitled to respect ends in ourselves.
5. Participation and Duty to Consult
To consult is to ask for the advice or opinion.
Participation is critical element of democratic governance because it is essential to the

realisation of a just society.
DJ Gallighan says that the very idea of democracy turns on citizens participating in
political processes.
It is only by participating that Individuals can ensure that their interests are known and
taken into account, and realised.
Participation enhances the viability of public policy initiatives and the prospects for their
successful implementation.
If people are intimately involved in decision making processes they are likely to find such
processes legitimate.
Participation can be problematic because:
i) People living in poverty, ignorance, are subject to exclusion and discrimination and are
alienated are too oppressed to participate in public debate.
ii) When they try to participate in public decision processes they often find themselves
silenced through not being able to speak the right language or they may be ignored or
threatened by powerful groups because they believe they have no right to a voice. E.g.
Participation of women in various cultural contexts say water resource users
association, there maybe those dynamics that hinder effective participation of women.

Break the barriers that hinder effective participation in government. To realise the idea of
participation, it is important to break that barrier that hinders effective participation,
through mechanism that deepen democracy (Find literature).
Legal empowerment – Is the use of legal process to help disadvantaged population to

increase control over their lives. It Involves Strengthening the role, capacity and powers
of disadvantaged groups so that they can participate more effectively in the making of
decisions.
6. Doctrine of Legitimate Expectation
If a public body/ government agent makes a promise, then it will be held to that point.
It enhances the trust and legitimacy of government.
If a public body has led an individual to believe that he or she will receive benefit then
that individual may have legitimate expectation that can sometimes be protected.
This was well illustrated in Githunguri vs Republic
The Githunguri Case:
Stanley Munga Githunguri had been charged with possession of foreign currency, contravention
of Exchange Control Act. Enquiries and full investigations were carried out. Five years later the
Attorney General after full consideration decided not to prosecute the accused and closed all the
files. Four years later after the assurance that the accused would not be prosecuted the charges
were resurrected and the accused was charged again.
The court of Appeal held that preferrement of a charge Five years after a decision by the Office of
the Attorney General not to prosecute is: Vexatious and harassing, abuse of the court process
and contrary to public policy, unless there were good and valid reasons for doing so.
The COA advised the Attorney General to terminate the proceedings or the accused applies for a
prerogative order.
Justification for protection of legitimate expectation is that Law should protect the trust that has
been reposed in the promise made by an official. i.e. if the trust between the governed and the
government is not enhanced it undermines the rule of law.
7. The Principle of Accountability and Independence
a) Independence
Independence means not subject to the control of others. It also means complete
autonomy and insusceptibility to the external influence control of others.
Serves to ensure agents are able to carry out their mandates in ways that have integrity.
Independence is important from the perspective of the rule of law ideal, because it
facilitates impartial decision making and preserves the integrity of decision making
process.

Important to insulate administrators from influences internal or external that could corrupt
their integrity or impartiality. That is why we have conflict of interest rule, security of
tenure and huge salaries so that the public agents can work independently.
b) Accountability
Is the obligation to explain and justify conduct.
It implies a relationship where one category of actors have the right to hold the other
category of actors to a set of standards, and judge whether they have fulfilled their
responsibilities and impose sanctions if those standards have not been met.
Say an accounter and an account holder. The accounter explains and justifies his conduct
to the account holder i.e. explanation about performance, debating over the accounter,
the accounter holder judging the accounter. The account holder may reward or impose
sanctions.
Ex-ante and ex-post- Accountability applies ex-post (after the fact) not ex-ante (before
the fact). However, accountability mechanisms can exert ex-ante effects because the
anticipation of sanctions can deter them from abusing office.
From the view point of democracy, the pros of accountability include:
Accountability mechanism makes it possible for the public to hold those holding public
office to account. There is a Chain of principle agent mechanism in which the people
(principle)-Popular Representative (Mps)-Ministers and the public servants. Only possible
when the principles have the sufficient information to scrutinize the conduct of the public
office holders.
Prevents abuse of power and corruption.
Keep the agents of power on their toes (the ex-ante effect).
Function to foster legitimacy of governmental action.
Procedures of Administrative Law
Is concerned is with getting heard and that decisions are made by bodies that are
impartial. In common law it is called procedural fairness or natural justice and in the US it
is called Due Process.
It’s about the steps that ought to be taken in decision making process if people are to be
treated fairly.
In America it is called due process and the idea is to protect the people from arbitrary
government.
The constitution mandates the government to treat individuals with a minimum amount of
fairness when it is taking the life, liberty or property from them.
Procedural due process entails, individual should be given Notice and a Hearing.
i) This is notice of what the agency seeks and wants to do and notice about time,
date and year to give you time to prepare and defend your interests.

ii) Basic facts of what the agency intends to do and on what legal basis the
proposed action is.
iii) The notice should also be timely. It must be Sufficient to allow you to prepare
for the hearing E.g. at the Independent Disciplinary and Complaints
Commission of the Kenya Premier League, when they accuse the club or fans of
a crime, they are given 7 days to prepare for a hearing.
iv) Hearings may take many forms:
a. Trial type hearing- Proceeding where there are two parties and there is an
arbiter. It can take a long time. E.g. this kind may not be ideal for Thika
Highway, gas station owners and commuters hearing
b. Notice and comment hearing – Comments are sent to the agency, and
inform you how they have considered your opinions.
Procedures From A Conceptual View Point
The object of Procedure: Procedures are important because they facilitate the fair
treatment of individuals. I.e. treating people fairly contribute to attaining/ realizing
justice. Thus procedures are instruments for realizing justice.
Definition of Procedure: These are steps taken to arrive at a decision or to achieve a cause
of action, in a legal concept.
Process is a distinct act of law or an administrative act which involves the making of a
decision, an inquiry e.g. an investigation criminal justice itself is a process.
Say somebody is charged with an offence in a court of law, they are asked to plead, they
plead guilty or not guilty, the prosecution presents its case, at the end of the prosecution’s
case, the court determines whether there is a case to answer or to dismiss the case. Court
issues the sentence. This is a procedure of the criminal justice trial process.
So process refers to an aggregate of procedures, in relation to a decision.
So the criminal trial justice is a process made up of several procedures.
The concern however is with procedural justice or procedural fairness, one is treated
fairly, if they are treated in a way which they have a justifiable.
The idea of human dignity becomes very important; there must be specific ways to treat
one fairly and with dignity when making decisions that will impact an individual.
All International human instruments honour the idea of human dignity.
In administrative process, it is important therefore to consider the views of individuals in

the procedures as well as to honour the individual’s considerations and to treat them with
respect.
The basic right to be treated with respect and dignity as a human being justifies a moral
the right to consideration in the affairs of the government.
The right to Consideration, to have your views heard and factored into decision making,
justifies your right to certain procedures: Notice i.e. knowing which issues are to be
decided and criteria to be applied.

Right to a hearing, having an opportunity to hear your case to respond to issues address
to others.
To be provided with an explanation and justification of the final decision.
That is how administrative law celebrate the worth of human dignity.
That is why participation is critical in the idea of fair treatment of individuals through
procedures. It is closely linked with procedural fairness because it enables you as an
individual to exert some influence over the processes you are going to be affected.
Indeed we can link participation or fair treatment to the idea of citizenship. Citizenship is
about your views counting in the polity you claim to belong to. It is about being actively
engaged in shaping the community in which you live. You can only do that by participating
in public decision processes, if the idea of citizenship is to have any meaning. By voting,
expressing an opinion before an agency, an adversarial process in a hearing.
Linking Participation to the idea of citizenship: Citizenship is about your view counting,
active engagement in political making process.
Questions before end of class
Why is procedure important?
How do you ensure you honour self worth and citizenship?
Link procedure with human dignity and citizenship – discuss.
What is citizen about?
Why does MRC feel alienated?
How does one make their views heard, apart from voting, In public fora e.g.In case you did
not get any impressive answer.

Lecture 5: Thursday 22nd October 2012 – B3 5.30-8.30 PM
PROCEDURES
Procedures are what are needed to treat people fairly.
Development of procedures in common wealth countries is that procedures were with

respect to individuals not with respect to policy processes.
In the USA by contrast there is an elaborate scheme of how groups should be treated
fairly in policy making processes.
Development in common wealth in the last 4 decades, increasingly the courts has
embraced the need to have procedures that can facilitate the fair treatment of individuals
in policy context.
In particular the English law since the 1960s have developed a principle of procedural
fairness. Which is to appreciate the fact that procedures of fair treatment is necessary in
context other than the context where you deal with particular individuals.
Historically English laws spoke of natural justice and that had connotation of individual
justice, fair treatment of individuals in the context of administrative action that could
impact on the rights of individuals.
Natural justice also has connotations of judicial justice – fair hearing in Article 50.i.e.
i) That one had a right to be heard
ii) And a right to an impartial tribunal
But the term natural justice has since 1960 been replaced by the principle of procedural
fairness.
Meaning that it is not only individuals in the context of judicial proceedings who ought to
be treated fairly, but everybody whose rights can in some way be affected e.g. the
building of a road needs to be heard.
Procedural fairness has been applied by the courts as a general principle because it applies
across the spectrum of administrative processes in the sense that they affect both
individuals and groups as well.
The precise contest/ procedure of procedural fairness is going to be determined by the

context, if dealing with individual, you will need to have a judicial type procedures while
dealing with issues affecting rights of an individual it is more practicable to use notice and
comment method and tell them how their vies have been considered in decision making
process.
The UK courts have made two major advances since 1960s: They have moved away from
principle of natural justice to procedural fairness’. Procedural fairness is an advancement
of natural justice (court like proceedings) to polycentric arrangement.
This shift was made in the case of Baldwin, the emphasis shifted from whether the
process was judicial to whether the process affected the person’s interests.
Prior to this case, before deciding whether procedural fairness was due, the courts would
ask, if it was a process of an adversarial judicial or quasi judicial nature, then natural

justice rights would be due, and if it was not, or was a polycentric process, natural justice
rights would not be required.
Since then the courts have interpreted the interest broadly. Meaning that any of the
interests for example the road users of a highway and the broadcaster would receive
procedural fairness.
Ridge V Baldwin
The Brighton police authority dismissed its Chief Constable (Charles Ridge) without offering him
an opportunity to defend his actions. The Chief Constable appealed, arguing that the Brighton
Watch Committee (headed by George Baldwin) had acted unlawfully (ultra vires) in terminating
his appointment in 1958 following criminal proceedings against him.
Ridge also sought financial reparation from the police authority; having declined to seek
reappointment, he sought a reinstatement of his pension, to which he would have been entitled
with effect from 1960 had he not been dismissed, plus damages, or salary backdated to his
dismissal.
Judgment
The House of Lords held that Baldwin's committee had violated the doctrine of natural justice,
overturning the principle outlined by the Donoughmore Committee thirty years before that the
doctrine of natural justice could not be applied to administrative decisions.
Significance
Ridge was the first time that the doctrine had been used to overturn a non-judicial (or quasi-
judicial) decision
There is a general principle of procedural fairness applies in all cases, but whose context is
to be determined according to the circumstances you are dealing with.
There are different approach to this in some cases authorities must perform their duties
fairly. The procedures must be efficient to receive justice.
They say there must be as much procedural safeguards to ensure attainance of fairness.
In a nutshell all areas of administration are subject to requirements of procedural fairness.
Procedural fairness is therefore seen as a dynamic principle from which you can derive any
number of procedural rights.
Procedural fairness embraces any o issue which is relevant to treating the person fairly,
whether in an adversarial context or in polycentric context.
The hearing principle has the following elements:
i) Notice - Telling an interested party about an intended decision.
ii) Disclosure – Any material facts should be made available to the interested
parties.
iii) Hearing – Hearing the parties involved or people who will be affected in the
decision making process

A general rule is that there is a right to be heard before a decision or action is taken.
One is adversely affected when the interests of such person are affected, and such
interests are of a substantial nature and not of a trivial nature.
Exceptions to this general rule of right for a hearing:
i) A hearing may not be necessary in matters of a routine administration e.g. in

an application for an annual business licence, when one is turned away because
they do not have a shilling to top sh.999 to sh. 1000, it is easier to get an extra
shilling than to get a hearing.
ii) Impracticality of some processes; e.g. it would be impossible for all arrests to
be subject to hearings before they are made. There would be no one to conduct
the hearings at odd hours of the day. In situation of emergency, a hearing
cannot be done especially in matters that implicate national security.

Lecture 6: Thursday 1st NOVEMBER 2012 – B3 5.30-8.30 PM
RULE MAKING AND ADJUDICATION
Fundamental question is with how administrative bodies, commissions, agencies,

tribunals, authorities, commissions of inquiry make their decisions and what kind of
decisions they make.
These bodies can act through rules, or policies or regulations or they can act through
making policies to settle disputes.
If they have settled a dispute through a certain way, then that decision becomes a
precedent, a policy or way of doing things.
What are the processes through which rules should be made and adjudication conducted?
This is where procedures for rule making and adjudication become very important to
ensure that people are treated fairly and the agencies are accountable to them.
How do we ensure democracy (participatory and accountability) in rule making and

adjudication?
Agencies combine various functions; they exercise executive powers and judicial functions
and legislative functions.
They execute policies – executive functions e.g. the national highways authority is tasked
by the government to build the highways thus performs an executive functions.
They execute legislative function through making rules and regulations. This is because
pieces of legislation are typically vague; they only specify the principles to be followed and
not necessarily the nitty gritties. It is the nature of law making that legislatures try to
accommodate the interests of their constituents and this way they are never precise.
For instance the constitution has very unclear provisions e.g. the implementations of the
two thirds majority, the immunity of the vetting process from the judicial process etc.
Therefore the vague legislation is unavoidable and the result of most laws would be
compromised if they were to accommodate all parties concerned and vague and cannot be
implemented.
It falls on the administrator to interpret the vague provisions of the legislation E.g. the
CCK says that the regulator should regulate in the interest of the public. It has to explain
what the public interest is and then it going to implement the command of the legislature.
The CCK is going to enact rules and regulations i.e. policies that will help it to achieve that
goal. E.g. censoring any broadcaster who is airing any inappropriate material for children
at certain hours, hate speech.
How do we ensure legislature does not abdicate itself?
There are agencies that adjudicate example the KNHRC, they have a mandate to ensure
that where human rights have been violated there’s an investigation hold a hearing. How
do we ensure that their functions are fair to the person whose rights are going to be
affected?
When an agency is acting in quasi judicial capacity, its behaviour is said to be

adjudicatory.

When an agency is taking a quasi legislative role, we say its behaviour is rule making
body.
Definition by Oliver Holmes Judge of the US Supreme Court is that adjudication is a

process that investigates, declares, and enforces liability as they stand on present of hard
facts and under laws that already exist.
Legislation looks to the future and changes existing conditions by making a new rule to be
applied thereafter to all.
Generally adjudication involves individual claims where as legislation is directed at large

groups.
Adjudication can result in immediate sanction against an individual, a piece of law cannot.
What Is The Rule Making Process By Agencies?
Why does government resort to delegated legislation?
It is said that in addition to the imperatives of the political process of lawmaking which
leads to vagueness of legislation there is a necessity for clarification.
Parliament should concern itself with principles, whose application is going to be

explicated in detailed legislation regulation.
It is said that it is advisable to have general ideas and principles because
It provides a power of adaptations without needing to go to parliament every time there is

need to change. That’s why we have a provision that the minister shall have the power to
make rules for the better carrying out of the provisions of this act.
Use of delegated legislation facilitates the utilization and experience available outside the
legislature and civil service. E.g. laws on nuclear power and aviation regulations.
There is need to arm the government with the power to deal with emergencies and act
quickly.
Appreciation of the extension of the activities of government. Means Parliament does not
have the time to scrutinize all regulations required. It’s therefore more practicable to
delegate legislation.
DEFINITION: SUBSIDIARY LEGISLATION-
Chapter 2 of the laws of Kenya the Interpretations General provisions Act defines
subsidiary legislation as any legislative provision including a transfer or delegation of
powers or duties made in exercise of any power by way of: Bylaws, Notices, orders, rules,
proclamation, declarations or rule of court.
There is a statutory Instruments Act of 2011, which has not been accented by the
president.

HOW GOVERNMENT CONTROLS SUBSIDIARY LEGISLATION MAKING:
The subsidiary legislation should be publicised, through publication in the gazette. The
nature of publicity will depend on the nature of the provision of the statute; in some cases
the Act will require antecedent (prior to the making of the bylaws) publicity.
The subsidiary legislation should be Laid before parliament, different procedures for lying
before parliament apply depending on the provisions of the enabling statute.
First procedure
In some cases the statute says that the rules or regulations should be laid before
parliament.
The expectations are that mps will question the relevant minister about the rules if they
have questions. However they cannot reject the rules through this procedure.
The second procedure
The rules may be subjected to a negative resolution. In this case parliament can reject the
rules. e.g. Section 34 IGPA. They can come into effect before the resolution.
The third procedure
The rules may be subject to an affirmative resolution. Here the parliament must approve
the rules or regulations by resolution before they come into effect or if they are already in
force, continue in operation.
General rule
Affirmative resolutions procedure applies to rules and regulations which increase taxes
while the negative resolution procedure invariably applies in all other cases. This is mainly
to appreciate the importance of taxes.
Subsidiary legislative control maybe achieved through judicial review or control.
Courts determine the validity of the subsidiary legislation by applying the ultra vires rule.
They also review subsidiary legislation on grounds of reasonableness, uncertainty, lack of

publicity and publication, excessive power etc.
That if any legislation is beyond the powers it is considered null and void.
Control through statutory tribunals and inquiries –
Inquiries and tribunals are preferred to courts because of speed, cheapness, expertise and
informality.
They have the ability to make final decisions but subject to appeal. There is a tax tribunal
to hear of the complaints amounts levied by the Kenya revenue authority
Statutory inquiries – The inquiry procedure serves two purposes;
i) For the purposes of appeal e.g. appeal the refusal to grant a planning
permission by the local authorities. For airing objections, to a decision.

ii) As post mortem to investigate something that is in the public interest, say an
accident – the police massacre in Baragoi, an chopper accident that led to the
demise of the governmental officials.
The question of procedure is left to the tribunal.

Lecture 7: Thursday 22ND NOVEMBER 2012 – B3 5.30-8.30 PM
LOCAL GOVERNANCE
The theme is to ensure democracy in terms of participation and accountability at the local
level.
The following is the conceptual basis for evaluating:
i) Local governance arrangement in general
ii) Local governance arrangements in the new constitutional dispensation
Expectations
To answer a question on the constitution and local governance – Assess whether the
constitution would facilitate effective local governance.
The conceptual parameters will aid to answer this question i.e Study: constitution,
devolution provisions, the new laws that implement the provision of devolution
Dele Olowu and James Wunsch argue in Local Governance in Africa, say that
decentralization is not useful if it does not lead to effective local governance and hence
democratic decentralisation does not necessary lead to effective local governance.
What do you require for effective local governance?
What are the concepts of decentralization and local governance and what do they mean?
Olowu and Wunsch:
Democratic decentralization means that significant elements of authority, responsibility for

services and fiscal and human resources are transferred to local government.
It also requires the establishment of accountability mechanisms, so that the local public
have a significant role in local governance.
Local governance is defined as the existence of working local systems of collective action
that manage the public affairs of a locality and are accountable to local residents.
Collective action means the challenges faced by people when they come together to
achieve a purpose.
In order to fulfil their mandate, they have a representative, to articulate their interests in
general, who they hold accountable for his her actions. They can also be recalled if they
do not work well.
Decentralization only makes sense if it leads to a working political out come. This political
outcome being effective local governance.
Decentralization and Local Governance:
Decentralization: Is a lengthy and complex process. Kenya is just beginning and it begins
with promulgation (a constitutional proclamation) mandates devolution. The expectation is

that responsibility, authority and resources and autonomy is devolved from the centre to
the periphery i.e. from the national government to the local government.
Effective local governance: When the counties governments can effectively manage their
county affairs accountably to their local residents.
At the local level local governance is a rule governance process where locals participate in
governance in limited but important matters because they are the key decision makers.
They determine how to respond to the concerns and how resources are to be utilised.
From a representative democracy view point, the representatives perform these functions
as the agents of the people. They are accountable and removable by the people. There is
a recall clause with respect to the local representatives at the local level.
Forms of Decentralization:
Decentralization is about the transfer of a number of things form the national government
to the local government through law and administrative measures.
These administrative measures include:
i) Transfer of authority or responsibility
ii) Transfer of resources- whether human or financial- debates with county

commissioners, etc
iii) They transfer accountability
iv) They transfer institutions- rule of doing things. Laws that are going to
implement devolution such as the constitution in the devolution chapter, the
County Government Act, the Urban Areas and Cities Act, the Transition to
Devolved Government Act and the Governmental Relations Act.
There are three forms kinds of decentralization:
1) Deconcentration: This is a situation whereby only authority or responsibility is

transferred, but there is no transfer of resources and accountability to the local
level.
2) Delegation: Responsibility or authority and resources are transferred but

accountability is held with the centre.
3) Devolution: This is the full fledged form of decentralization. There is transfer of

responsibility, accountability and resources. It is complete decentralisation.
Challenges and Limitations of Decentralisation
It may not ensure that it will be attained or sustained.
Transfer does not ensure attainance and sustenance of decentralization.
Non preparedness to roll out devolution – the human resource required to run the entities
effectively is hard to find.
We are not united st the local level, there is factions and divisions, local conflicts along
clan lines, religion, political party lines, gender lines etc.

There is information asymmetry where there are a few informed civil servants and very
many uninformed citizens. The potential danger being that corruption may be devolved.
How Do We Determine That There Is Effective Local Government?
Olowu and Wusch give two ways of evaluating local governance; through focussing on;
i) Process
ii) Output and outcomes
1. Focussing on Process
In terms of evaluating local governance entails asking or enquiring whether the transfer of
authority, the resources and of accountability and the development of local political
processes and local and political and administrative institutions are working in ways that
local needs matter.
Are the people at the local level determining or driving decision making processes,
through making their needs and priorities known. What is the nature of the local
administrative processes, are they open, and are they participatory, who participates and
who is excluded?
2. By Focussing On Outputs & Outcomes
This is language of business consulting when they talk of monitoring and evaluation of
local outputs and outcomes.
Outcomes are long term; they are not easy to tell in the short term. In local governance
the question would be if it is bringing expected tangible benefits.
For example if people have roads, water, good medical care, security, good education.
Has Intangible outputs can also be evaluated for example, are people empowered, do they
know their rights, has delivery of roads enhanced people’s welfare.
Why Has Decentralization In Africa Been Disappointing?
2. Incomplete legal framework, it prevents effective control by the local authorities

that are supposed to embody local governance.
3. Resources tend to be retained and controlled by the central governance, through a

number of instruments such as conditional grants, continued control of civil service
or personnel posted to localities. Example, the town clerks are employees of the
central government and are answerable to the minister of local government. They
are therefore not answerable to the local authorities; their allegiance is elsewhere
making it very difficult for the local authorities to hold them into account, which
undermines the effectiveness of decentralization.
4. Local councils tend to be ineffective because of low levels of education, poor

organization, infrequent meetings, internal divisions and executive dominance i.e.
– where the minister of local government, the minister has to authorize all the
decisions.
5. Local elites like to dominate the local governance from behind the scenes.

6. The typical citizen or resident is apathetic where he or she does rarely bothers with
the functions of local governance. It produces a vicious cycle of poor performance
of local governance institutions discourages local support for them that people do
not support institutions that are not working. It remains weak and ineffective. Then
the central government. will always have an excuse to take them over recentralize.
For example, this happened in Nairobi, where due to wrangles within the city
council, the central government has formed a commission to run the affairs of the
local authority in Nairobi city council.
Summary:
Olowu and Wunsch are saying that decentralisation especially where it is democratic, will
contribute to local governance.
But it must be sustained, refined and deal with collective action problems and there must
be a political process at the local level that must be developed that is sustainable as well.
How To Overcome Decentralization Problems In Africa; Is To Deal With:
1. Public participation
2. Ineffective decision making by the local government
3. Provision of resources to local government for projects – how to raise revenue
4. Overcoming problems with personnel.
5. Dominance of certain groups who would skew the natural political system at the local
level- which is bound to happen in a heterogeneous community. The promise of
decentralization is that if it is followed through, it promises to shift authority, resources,
accountability and institution to the local levels. They are cautiously optimistic that those
things shall never be enough in the sense that they will not solve the typical institutional
collective action and other problems we have seen arise because of local governance nor
will they create the kind of local political process if the sustainability is to be attained.
What Does The New Constitution Attempt To Do In The Devolution Arrangement?
It tries to inculcate a sense of national citizenship as opposed to ethnic citizenship.
Many Kenyans ask why they should owe any allegiance to the republic of Kenya, If the
State does not enhance their livelihood, where there is unequal distribution of the
country’s resources and there is domination by a certain group.
That is why elections have become so vital (a matter of life and death), because of a
sense that if we are not represented in parliament, we miss out, one is not represented in
parliament by their person’ then they completely miss out for five to ten years. We had a
system where the winner takes everything and losers lose everything.
The 2010 constitution tries to address that. And devolution is very critical part in
addressing that by saying that National elections should not be that vital. It figures out
how resources should be redistributed so that elections can seize to be as important as
they have been. In order to cultivate a sense of citizenship, people need to feel that the
government cares and distributes resources to them. This is what the devolution in
constitution 2010 tries to do.

CONSTITUTIONAL PROVISIONS DEALING WITH DEVOLUTION
1. Article 174: The objects of devolution in article 174, talks of-
Promoting democratic and accountable exercise of power
Enhancing participation of the people in the exercise of governmental power
Enhance checks and balances and the separation of power
There are three critical institutions of power:
County government
The senate
The commission on revenue allocation
2. Article 176: This article establishes a county government for each of the 47 counties that
consists of a County Assembly (or legislative branch) and a County Executive (or executive
branch).
3. Article 93: The senate is established by article 93 as one of the two houses of Parliament, the
other house being the National Assembly. Its role is to represent and protect the interest of the
counties and their governments. It also initiates, debates, and approves legislative proposals (or
bills) concerning counties (Article 96). Another critical Senate function is to determine the
allocation of national revenue among the counties and maintain oversight over such revenue.
4. Article 215: The commission on revenue allocation is established in article 215, its main
function is to recommend to Parliament the bases and mechanisms for the equitable sharing of
the revenue raised by the government between the national and county governments, and
among the county governments.
5. Article 203: These recommendations are guided by principles established in Article 203,
including the national interest, the need to remedy economic disparities within and among
counties, and affirmative action in respect of “disadvantaged areas and groups.”
This provision of the new Constitution guarantees each county at least 15 percent of all
the revenue collected, irrespective of how these criteria are applied in any financial year.
The new Constitution provides a more secure framework for county government, unlike its
counterpart in the Independence (or majimbo) Constitution, which was quickly subverted
following the attainment of independence.
The then party in power, the Kenya African National Union, which held the view that the
Independence Constitution unduly curtailed majority power, undermined the regional (or
majimbo) governments by withholding funds and enacting legislation to circumvent the
powers of the regional governments.
6. Article 255: Categorizes “the objects, principles and structure of devolved government” as
one of the fundamental norms of the constitution, whose amendment requires the approval of the
people in a referendum that is to be preceded by a process of parliamentary debate and public
discussion. It makes it hard to make changes on the objectives of devolution.

LEGISLATIONS SUPPORTING DEVOLUTION
There are four critical laws that seek to implement devolution provisions in the
constitution:
1. County Government Act
Sec 48 establishes that local government is to be decentralised: Into urban areas and
cities
They are to be decentralised into sub counties (constituencies)
They are to be decentralised into wards within the county
If necessary the county government may establish further units of decentralization
Section 85, provides principles to guide the citizens on the implementation of local
governance such as: Access to information.
2. Urban Areas and Cities Act
This Act establishes the criteria for classifying an area as an urban area; it is no longer at
the discretion of the president.
i) Minimum of 500,000 number of residents
ii) Must have an integrated city development plan
iii) Demonstrate the capacity to generate revenue and run itself
iv) Good system of management
v) Capacity to deliver essential services
vi) Active participation by the residents and the managers of the area.
vii) Infrastructure facilities, markets, roads, fire stations, adequate capacity for
infrastructure management.
viii) Capacity for functional waste disposal
Nairobi Presents A Unique Case,
i) The capital city should be governed in the same manner as a county government.
ii) It must provide infrastructure transport, commerce and industry
iii) Section 6(5) – decentralisation and provision of services in the capital city
iv) Section 12- board appointed by the county executive committee through a competitive
process.
v) Section 20- functions of the board.
vi) Section 22 – participation
vii) The manager presides over the affairs of the board and is answerable to the board

viii) In towns instead of manager there is a town administrator
3. The Transition to Devolved Government Act
4. The Inter government Relations Act Of 2012
ADDITIONAL NOTES
Devolution
The new Constitution also endeavors to decentralize governance. One of the consequences of
the centralization of power in the presidency has been a widespread perception of alienation
among citizens, many of whom have felt marginalized, neglected, and discriminated against on
the basis of their ethnicity.
Accordingly, they have asked for the devolution of governance so that they can participate
meaningfully in governmental decision- making at the local level.
The new Constitution establishes a system of devolved government that may begin to address
these concerns.
Article 174 requires this system to achieve a number of objectives, including promoting
participation and accountability in the exercise of governmental power, fostering national unity
by recognizing diversity, giving powers of self-governance to the people, ensuring equitable
sharing of national and local resources, protecting the rights of minorities and marginalized
communities, and promoting social and economic development and access to public services
throughout Kenya.
The new Constitution establishes three main institutions to facilitate the realization of these
objectives:
I. County Governments
II. Senate
III. Commission of Revenue Allocation
Article 176 establishes a county government for each of the 47 counties that consists of a
County Assembly (or legislative branch) and a County Executive (or executive branch).
The Senate is established by Article 93 as one of the two houses of Parliament, the other house
being the National Assembly.
Its role is to represent and protect the interest of the counties and their governments. It also
initiates, debates, and approves legislative proposals (or bills) concerning counties (Article 96).
Another critical Senate function is to determine the allocation of national revenue among the
counties and maintain oversight over such revenue. It also plays a role in governmental
accountability: the Senate participates in the consideration and determination of resolutions to
remove the president or deputy president from office (Article 145).
Article 215 establishes the Commission on Revenue Allocation. It consists of 9 presidential

appointees who “have extensive professional experience in financial and economic matters”: a
chairperson approved by the National Assembly, two people nominated by the political parties
represented in the National Assembly, five people nominated by the political parties

represented in the Senate, and the principal secretary in the ministry responsible for finance.
The commission’s main function is to recommend to Parliament the bases and mechanisms for
the equitable sharing of the revenue raised by the government between the national and
county governments, and among the county governments (Article 216).
These recommendations should be guided by a number of principles or criteria established by

Article 203, including the national interest, the need to remedy economic disparities within and
among counties, and affirmative action in respect of “disadvantaged areas and groups.”
This provision of the new Constitution guarantees each county at least 15 percent of all the
revenue collected, irrespective of how these criteria are applied in any financial year.
The Commission on Revenue Allocation is also to be consulted by Parliament when it is

determining how to appropriate money out of the Equalization Fund (established under Article
204). The new Constitution requires the government to pay 1.5 percent of national revenue
into this fund every year and to use it to provide public services to marginalized areas “to the
extent necessary to bring the equality of services in those areas to the level generally enjoyed
by the rest of the nation.”
The new Constitution envisages that the fund will lapse 20 years following its promulgation,
although Parliament may vote to extend its operation.
In general, the new Constitution provides a more secure framework for county government,
unlike its counterpart in the Independence (or majimbo) Constitution, which was quickly
subverted following the attainment of independence.
The then party in power, the Kenya African National Union, which held the view that the
Independence Constitution unduly curtailed majority power, undermined the regional (or
majimbo) governments by withholding funds and enacting legislation to circumvent the powers
of the regional governments.( Stephen N. Ndegwa, “Citizenship and Ethnicity: An Examination
of Two Transition Moments in Kenyan Politics,” AmericanPolitical Science Review 91 (1997):
599-606.)
To preclude the national government from undermining county government, various provisions
of the new Constitution endeavor to ensure the sustainability of the latter.
First, the new Constitution establishes institutionalized mechanisms for sharing national
revenue. These are buttressed by Article 190, which imposes a duty on Parliament to enact a
law to “ensure that county governments have adequate support to enable them to perform
their functions.”
Second, Article 188 provides that the boundaries of counties may only be altered by a
resolution of each house of Parliament supported by at least two-thirds of the members of
each. Such a resolution must be based on the recommendations of an independent commission
that presumably is the Independent Electoral and Boundaries Commission.
Third, although Articles 190 and 192 grant the national government and the president power to
intervene in the running of county governments, the exercise of this power is regulated.
Article 190 empowers the national government to intervene if a county government is unable
to perform its functions or does not operate a financial management system that adheres to
the requirements set by national legislation. When the national government seeks to intervene

in the affairs of a county government on any of these grounds, the new Constitution requires
Parliament to enact a law that orders the national government to give the affected county
government notice of any measures it intends to take.
Even more significantly, perhaps, the new Constitution requires that such a law should
mandate the national government to take measures that assist the county government in
resuming full responsibility for its functions.
The new Constitution also requires that the envisaged law should establish procedures and
processes through which the Senate will bring the intervention of the national government to
an end.
Article 192 gives the president power to suspend a county government during an “emergency
arising out of internal conflict or war” or “other exceptional circumstances.”
While the president has unlimited powers with respect to emergencies, a county government
can only be suspended on the basis of “exceptional circumstances” following an investigation
by an independent commission of inquiry and authorization of the Senate, which is also given
the power to terminate the suspension, The suspension in any case cannot exceed 90 days.
Above all, the new Constitution shields its provisions on county government from being
amended easily.
Article 255 categorizes “the objects, principles and structure of devolved government” as one
of the fundamental norms of the constitution, whose amendment requires the approval of the
people in a referendum that is to be preceded by a process of parliamentary debate and public
discussion.
All in all, the provisions of the new Constitution on devolution promise to enhance perceptions
of national (as opposed to ethnic) citizenship, since they aim to ensure equitable sharing of
national resources. By doing so, they arguably enhance the stakes of communities that have
hitherto felt or been marginalized in sustaining the entity called Kenya.
Should they be implemented, these provisions should enhance the livelihoods of all ethnic
communities, thereby making it more arduous for political actors to divide the citizenry along
ethnic lines.
It should be noted, however, that the oppression of minorities and marginalized groups that
has been prevalent at the national level could be reproduced in the counties.
The drafters of the new Constitution were aware of this potential problem. Article 197 requires
Parliament to enact legislation to ensure that the community and cultural diversity of a county
is reflected in its assembly and executive committee; and prescribe mechanisms to protect
minorities within counties.
Further, Article 200 requires Parliament to enact legislation that will, among other things,
provide for the manner of election or appointment of people to and their removal from offices
in county governments, including the qualifications of voters and candidates.
This is an essential law that should be enacted as soon as possible, because it could prevent
the oppression of minorities and marginalized groups within counties and facilitate uniformity,
democracy, and order in their governance.
Parliament has two options here. Either it can enact a “Governance of Counties Act” that all
counties have to comply with; or it can enact a framework law containing essential governance

principles that all county constitutions have to comply with.
In the latter scenario, each county would be left to produce its own constitution through a
democratic process. Given the urgency of the need for such a law, it is arguable that the
former approach is more appropriate.

Lecture 8: Thursday 6th DECEMBER 2012 – B3 5.30-8.30 PM
ADMINISTRATION IN A CONTRACTING STATE
Privatization
To understand the challenge of public law to rein in private power, we need to trace it
back to the ideology of liberalism or liberal theory. It explains the idea of liberal
constitutionalism.
We therefore go to the philosophies of people like John Locke. There are two conceptual
ideas.
The Role Of The Contracting State
From the perspective of the social contract, the idea is that people willingly surrender their
freedom so that government can ensure order in the society because otherwise life would
be short nasty and brutish.
But we don’t want the government to abuse its powers. We want to maintain some
autonomy in the private domain. That is why it explains the public private
dichotomy/distinction.
In the private domain we want to have autonomy to do whatever we want – to be left to

our own devices.
There should not be regulation in the private domain; it should be left without state
inference.
It is based on the assumption from the economists like Adam Smith that society advances
best when the private domain people are left alone.
So when the government brings a set of regulations for various reasons especially after
the 1930s following the great depression and the world wars, to get people like Frederick
Haeck lamenting in the book “the road to serfdom” that there was too much state
regulation, that the market in the private domain should be left alone. Don’t turn us into
surfs by regulating the private domain.
The other idea you find in the constitutional related studies, concerns circumscribing the
powers of bare majorities or the tyranny of majorities
There is a fear that if power is given to the mob that is ignorant, they may not know how
government works, that is why we need counter majoritarian devices to deal with the
threat of tyranny of the majorities. That is why we talk of liberal constitutionalism.
Liberal constitutionalism- if you read the accounts of Fareed Zachary accounts, where he
was talking about the device of liberal democracy in the 90s.
Liberal democracy was liberal first, and then democracy second.
Liberal in the fact that there was always a mechanism that sought to make it difficult for
the majority to have their way. That is why there is a senate, a judicial review, because
they become the professionals or the elite who say that they don’t like democracy,
because democracy is not informed, they may not really know what to do and they are led
by mob psychology. So there is need to temper the votes. The votes are tempered by
having various mechanisms – could be by having an upper chamber of elders of learned

people, so that they can act as a veto against majoritarian tendencies who are led by mob
thinking.
That is why in the west the franchise was restricted for a long time; we never had
universal franchise until the beginning of 1940’s. The idea was to restrict the number of
people who could vote for the fear of the majority.
That is why liberal democracy is always liberal first, in terms of being afraid of the
democracy. Once we have the constraints on the democracy and the power of power of
the majority then we can have democracy.
It would be a very neat state where the State can provide all the public services such as
water, healthcare, education, electricity etc.
The dynamics of the State changes so that there is need to privatize, where the
government cannot provide all the services it is required to. The question becomes how
to logically regulate these private actors that are performing public functions such as
providing water, healthcare, and electricity.
What Is Privatization?
Privatization is defined broadly as the transfer of ownership or control of public assets

and/or functions from public to private entities. Such transfers maybe driven by the state
or citizens.
Governments around the world are privatizing and in the process transferring the
performance of many of their traditional functions to private entities.
These functions are the provision of;
i) Security (domestic law and order and protection against external threats)
ii) Welfare (meeting the basic needs of citizens such as health, education, and
water and sanitation)
iii) Maintance of communications infrastructure such as roads
iv) Representation (acting on behalf of citizens in international forums)
Privatization often entails two kinds of processes:
1. First, State led processes that entail state actors engaging private actors. These
are termed as privatization from above. Like the African countries have been
implementing structural adjustment programs (SAPs) under the direction and
oversight of the World Bank and the international monetary fund (IMF) since the
early 1980’s. In efforts to address the abysmal performance of their economies in
the wake of oil crisis of the 1970s and an international environment unfavorable to
their primary product exports, many African countries turned to the World Bank
and IMF for financial assistance.
2. Secondly, the citizen- led processes, which are characterized by the citizens
responding to State failure or inability to provide essential services such as
security, referred to as “privatization from below”. Such shortcomings of the State
have for example motivated the citizenry to find their private solutions to public

problems in the areas of security, education, health and electricity supply, for
example.
The process of privatization typically involves the exercise of immense power, which can
be unaccountable and can impact adversely on the liberties and livelihoods of citizens.
For example, privatization process entails a power to decide which private entity will be
favored with the privilege of performing functions that were previously the domain of
public agencies.
It also confers upon such private entities the power to decide which citizens will benefit
from their services and the conditions under which such services will be offered
Further, privatization typically embraces measures such as divestiture, commercialization

or corporatization, commodificaton, contracting out and public-private partnerships.
Divestiture refers to the ultimate shift in ownership and control of public assets from the
public to private companies.
In some cases, the transfer of public assets is partial, with the sale being implemented
through methods such as leasing arrangements, employee buy-outs and share issues.
The terms commercialization and corporatization are invariably used interchangeably, and
denote the restructuring of public management institutions along commercial lines, with or
without private sector involvement, by introducing commercial principles and practices
such as efficiency, cost benefit analysis and profit maximization.
Commoditization refers to the conversion of a public good into a private (or economic)
good through the application of mechanisms that facilitate the appropriation of such goods
so that they can be sold at prices determined through the market exchanges.
Contracting out refers to the transfer of the performance of public functions such as health
care delivery from public to private entities through contractual arrangements under
which the private entities are paid a fee for their services.
Increasingly, there are also public private partnerships which constitute institutionalized
form of cooperation between public and private entities. Public private partnerships are
seen as a way of involving the private sector private sector in government projects while
avoiding the problems associated with the more extensive methods of privatization.
From public law perspective, both kinds of privatization raise the question of how the
power of service providers will be regulated, especially where this power is exercised in a
way that impacts adversely on the livelihood or liberties of citizens. The need for
democratic governance arises in both cases.
The Problem with Privatization in the Context of Administrative Law
Public lawyers are concerned that these privatizations are neither participatory nor
accountable, and that the delegation of public functions to private entities is producing a
“democracy deficit,” since they invariably bypass traditional accountability mechanisms,
which are in any case no longer sufficient.
This deficit is exacerbated by globalization processes, which “encourage forms of

governance involving new uses of the private sector to achieve public ends.”

The democracy deficit is exacerbated by the fact that the international institutions, such
as the World Bank, the International Monetary Fund, and the World Trade Organization,
fuelling globalization are themselves undemocratic.
In English-speaking countries, which have Westminster derived governmental

arrangements, there is a genuine concern that one of the main instruments of
governmental accountability – namely, the responsibility of ministers of state to
Parliament – is no longer able “to ensure democratic control of a large, active and
increasingly complex executive branch of government.”
The idea is that “administrators [through ministers of state] should be continuously

responsive to the concerns of members of Parliament, as they are incorporated in
legislation or expressed from time to time in connection with particular policies or
actions.”
The Westminster conception of accountability is thus incomplete, to the extent that it

envisages accountability as merely constituting “responsibility [to Parliament] for the acts
of others.” In any case, the responsiveness expected from administrators does not require
active parliamentary supervision. It is assumed that there is a reasonable likelihood that
instances of maladministration will come to the attention of members of parliament.
In Privatization, bureaucrats are likely to make the important decisions but in the absence
of effective public controls, it is likely that there will be corruption and the outcomes will
not be public regarding.
Given the deficiencies of the Westminster accountability model, it can be expected that
the exercise of power by the private entities favored with the responsibility of performing
public functions may not be democratic.
Regulating the Public Power of Private Bodies
Political instruments to ensure the participation of citizens in the design, award and
implementation of privatization initiatives are required. For these reasons, public lawyers
have called for a new approach to the control of the exercise of power.
The emerging view is that the exercise of power, whether public or private, and which
affects vital interests, should accord with the principles of considerate decision-making,
such as accountability, participation, fairness and rationality.
In this regard, Alfred C. Aman, Jr. argues that public/private partnerships should be
viewed as an extension of the state, since “the delegation of public functions to private
actors represents new ways for states to carry out their responsibilities.” From this
perspective, markets constitute a form of regulation, and “public law values… remain
relevant, even though private actors now carry out various tasks that can be appropriately
called governmental.” In his view, the challenge for administrative law then is to
determine “how best to conceptualize public/private relationships not only to assure
fairness for those affected by these decisions, but information that will enable [citizens] to
assess how best to determine whether these new arrangements are working and are
workable from a democratic viewpoint.”
Mechanisms to control the exercise of power by private entities exercising public functions
may be political or judicial.
Political mechanisms include mechanisms to facilitate public participation in the

privatization process. These include obligations on governmental bodies to;

1. Hold public hearings in advance of designing and awarding contracts. Any
interested members of the public may present their views at such hearings and
question the government’s policy choices. But public participation in the
privatization process is unlikely to be effective if the public does not have access to
information. Thus it is necessary to require the concerned government agencies to
provide basic contractual details such as the expected performance standards and
price.
2. A second strategy involves the use of “consumer councils, and systems for
registering consumer views with a view to acting on them either under the
contract, or when it comes up for renewal.”
Even better, privatization contracts could give the intended beneficiaries third-party rights
of action. For example, such third-party rights of action would greatly help a patient who
is about to be evicted from the service provider’s government funded hospital, allegedly in
breach of the terms between the provider and the government. Third-party rights of
action could also reduce the dangers of discretionary governmental powers.
Furthermore, the contracts themselves could be designed to function as accountability

mechanisms. For example, the contracts could require the private entities to adhere to
public law values in the course of their dealings with intended beneficiaries or the general
public.
It may be useful to appoint Ombudsmen to handle complaints against the exercise of

private power. For example in the United Kingdom there is an ombudsman in the fields of
insurance, banking, building societies and financial services.
The contracting state can adapt the tools for the achievement of public law values, by
establishing institutional frameworks for the participation of citizens in public decision
making.
Judicial Review of the Exercise of Power by Private Entities
Essentially, judicial review seeks to control public power to ensure that government does
not unduly interfere with the private sphere, which as we have seen is deemed to be
inviolable by classical liberals.
Should courts adopt the same approach when private entities exercise public power?
There is a real danger that where government “chooses to constitute the delivery of a
particular service by way of contractual arrangements with private bodies,” courts will
deem such activity to be “beyond the reach of public law” and as “regulated by the private
law of contract only” because of privity of contract.
Given that some private bodies now wield “institutional power capable of affecting rights
and interests” they ought to be subject to judicial review. And in determining whether to
extend their supervisory jurisdiction to such private bodies, courts should look into factors
such as the nature of interests affected by their decisions, how seriously those decisions
impact on those interests, whether the affected interests have any real choice but to
submit to the bodies’ jurisdiction, and the nature of the context in which the bodies
operate.

On the other hand, the mere fact that a private body possesses public power “should not
lead inexorably to the conclusion that all principles of a public nature should be equally
applicable to such bodies.”
The point is that privatization and government by contract “require a nuanced approach in
order to determine which of the public law principles should be held to apply to a body
which appears somewhere along the line of the institutional spectrum of public power.”
So that although judicial review may not be a particularly effective tool for the regulation
of private power, it nevertheless remains a significant tool for the vindication of public law
values in the contracting state. That is, the exercise of power, whether public or private,
and which affects vital interests, should accord with the principles of good administration.
In this regard, Dawn Oliver has argued that there is now in England a “broad common law
duty of considerate decision-making, the exact content of which will depend upon the
circumstances, but which spans the public/private divide.”
The corollary of that duty is “a right of those affected by decisions taken by powerful
bodies to have the effects of a decision upon them considered and taken into account
fairly and rationally before the decision is made.”
In Dawn Oliver’s view, “duties of fairness and rationality in decision making” are common
to both public and private law, and their existence should not “depend upon the question
whether the body in question is public or private or performing public or governmental
functions.”
This view is supported by Sir Stephen Sedley, who asserts that “the law’s chief concern
about the use of power is not who is exercising it but what the power is and whom it
affects.”

R v Panel on Take-over and Mergers, ex p. Datafin plc and Another
Constitutional Law - Judicial Review: CA (Sir John Donaldson MR, Lloyd and Nicholls LJJ): 5
December 1986
The applicants complained to the Panel on Take-overs and Mergers that N plc, with whom they
were competing to take over M plc, had acted in breach of the City Code on Take-overs and
Mergers. The panel dismissed the complaint and the applicants applied for leave to make an
application for judicial review. Hodgson J refused the application on the ground that the panel
was not subject to the courts' jurisdiction.
The applicants renewed their application before the Court of Appeal, which granted leave, heard
the application, dismissed it on its merits but reserved judgment on the issue of jurisdiction.
Jeremy Lever QC and Derrick Turriff (instructed by S J Berwin and Co) for the applicants. Robert
Alexander QC, Timothy Lloyd QC and Keith Rowley (instructed by Freshfields) for the panel.
Jonathan Sumption QC and Stephen Richards (instructed by Ashurst Morris Crisp and Co) for N
plc.
Sir John Donaldson MR said that the panel was an unincorporated association without legal
personality, which had no statutory, prerogative or common law powers and which was not in
contractual relationship with the financial market or those who dealt in it; it was self-regulating in
the sense of a group of persons acting in concert to force themselves and others to comply with a
code of conduct of their own devising. Yet it operated wholly in the public domain, affecting
anyone in the UK who was involved in making take-over bids or promoting mergers. It was part
of a continuing process by which the Government had incorporated City institutions into its own
network of fraud prevention. Though its powers were partly derived from the consent of City
institutions, its ultimate authority came from powers exercised by the Department of Trade and
Industry and the Bank of England. In the circumstances, the panel fitted surprisingly well into the
format which the co urt had had in mind in R v Criminal Injuries Compensation Board, ex p. Lain
[1967] 2 QB 864, where Lord Parker CJ had observed, at p882, that the exact limits of the
ancient remedy of certiorari had never been and ought never to be specifically defined. The
courts did have jurisdiction but the court would always have a discretion whether or not to
intervene, and in the light of the market's needs should normally allow contemporary decisions to
take their course and intervene if at all only later and in retrospect.

Lloyd and Nichols LJJ delivered concurring judgments.
Declaration accordingly. (WLR)
HELD:
It is common practice to apply for certiorari and mandamus together, that is quash a
decision of a body and to require that body to go through the decision-making process
again.
LLOYD, LJ:
"If the source of power is a statute, or subordinate legislation under a statute, then clearly the
body in question will be subject to judicial review."
Read Also: Republic vs City Council of Nairobi & Another Exparte Monier 2000 & 7
Others [2005] Eklr

Lecture 9: Thursday 17th JANUARY 2013 – B3 5.30-8.30 PM
ACCESS TO INFORMATION
Bojan Bugaric explains freedom of information from the view point of public
administration. He explains the principle of openness, where an individual can participate
in governmental decision making.
Open public administration theory gives the individual a greater role in the adoption of
executive regulations and on greater transparency in public administration operations.
The principle of openness allows individuals i.e. citizens to participate in the decision
making process. They can obtain all public information on the work of public
administration and participate in adopting its decisions.
There are two components in this principle:
1. The right to access to public administration documents- this part of the principle is
often characterized as the principle of transparency of the public administration.
2. Various forms of public participation in public administration decision making
Legal Definition And Function On The Right Of Access To Information
Definition:
The right of access to public information is the first step to a more open public
administration.
It is the legally protected right to access all documents and other public information
that the legislation designates as public.
Functions of access to information:
a) Pre Condition For Public Participation

The right of information is extremely important, as access to information is a pre condition
for public participation in the public administration’s work.
Access to public information allows citizens to discover the content of regulations and
other public administration acts and in this manner, participate on a more equal footing in
administration decision making.
This demonstrates the democratizing function of right of access.

b) Supervise Public Administration Work
The legally protected right of access means that citizens can obtain any public
information, thus placing the work of the public administration under the microscope of
citizens.
The public administration can no longer hold back or hide information for its own exclusive
use, but must make it available to interested parties.
This allows citizens to supervise the authorities, which works toward preventing poor
management, abuse of power and corruption.
c) Business decisions
Public access provides very important information for business decisions. Public
administrations around the world gather and produce a large amount of public information
on various issues that are important for making business decisions. Examples include
information on toxic waste, environmental hazards and other crucial factors in business
decisions.
The development of the information society has not only increased the spread of new
information technologies but also led to the creation of a new market, a market in public
information. This has led some countries to move onto the next level supervising the
market in public information.
d) E-government
E-government is important in and of itself, as part of the information revolution that has
made information technology a key factor in economic development.
John Ackerman:
1. The third wave of transitions has been amply studied, and one of the central lessons is
that new democracies are plagued with problems of accountability. Despite the fact that
they are democratically elected, leaders of the state tend to behave like short term
dictators; they often act without informing the public and, for the most part are not
subject to sanctions from wrong doing. Some scholars have claimed that new democracies
are best termed delegative democracies, since the public is left virtually powerless
between elections.
2. Freedom of Information laws are a crucial step toward the solution of the accountability
deficit.

Theory and Impact Of Freedom Of Information Laws
Sweden passed the first FOI law in 17th century, before the US revolution and the French
Revolution, sponsored by a clergyman and congressman inspired by Chinese practice;
hence, we see that the origins of government accountability are not in the West but in the
East at the high point of Ching Dynasty.
The first FOI Act assured the freedom of the press.
Access to government information and freedom of expression are intimately linked – in
order to form opinions that are worthy of being expressed, individuals must have access
to relevant government information.
Article 19 of the Universal Declaration of Human Rights states that, “ Everyone has the
right to freedom of opinion and expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas through any
media regardless of frontiers”
A number of scholars have acknowledged the importance of freedom of information

laws:
Roberto Saba-
Freedom of expression and opinion are not only about the defence of personal autonomy
or the right of an individual to communicate his or her thoughts.
These freedoms are also about guaranteeing that the users of information have access to
the widest possible diversity of points of view on a particular issue.
Ernest Villanueva
The overriding ‘Right to information’ which includes and goes beyond the freedom of
expression and access to information consists of 3 elements:
(a) The right to seek and receive information
(b) The right to inform, and
(c) The right to be informed
Mark Bovens
Characterizes Information Rights as the fourth waves of citizens’ rights, equivalent to the
civil, political, and social rights, and that the world needs to update its constitutional
frameworks to take into account the new universal right to information.
He makes distinctions btw transparency as a question of public hygiene and information as
an issue of citizenship.
Boven recognizes that open government without an informed populace is meaningless.
Alasdair Roberts
The tasks of providing public services that affect basic rights are given to the government
agencies. It is the responsibility of the citizens to ensure that these agencies do their work
properly. Right of access to information will allow the citizens to fulfill this obligation.

Overriding Right to Information
These perspectives invite us to conceptualize liberties of the press and of citizen
participation as positive freedoms and not merely negative rights.
Negative freedoms allow us to be independent from oppression and external controls.
They are freedoms from the control of some external force.
Positive freedoms allow us to realize ourselves as full human beings. They are freedoms
to achieve some particular end.
Once we see freedom of expression and participation as rights to be informed and not only
as rights from censorship and control, we argue that we have immediately moved into the
realm of the overriding Right to Information which requires a right to access government
information as one of its central elements.
Such interpretations of liberal freedoms are not universal for instance:
In
Houchins v. KQED
The U.S. Supreme Court has been reluctant to interpret the First Amendment of the Constitution,
which guarantees the freedom of speech, as implying a full right to information.” Neither the 1st
nor the 14th Amendment mandated a right of access to government information or sources of
information within the government’s control”
However, the Supreme Court of India has recognized this right:
In
Gupta v Union of India
“Where a society has chosen to accept democracy as it creedal faith, it is elementary that its
citizens ought to know what their government is doing….No democratic government can survive
without accountability and the most basic postulate of accountability is that people should have
information about the functioning of the government. It is only if people know how government is
functioning that they can fulfill the role that democracy assigns to them and make democracy an
effective participatory democracy”
The Modern Government;

FOI laws are a development in the age-old struggles for freedom of opinion and of the
press and the right to participate in governmental decision making.
In the past, the governments had great military and legal authority, but they did not hold
the amounts of information that they do now.

The rise of administrative state is a modern phenomenon which as fully developed in the
20th century. It has led to the strengthening of the bureaucratic apparatus.
This process has become so widespread; it has been called “the second great macro
process of modernity”.
-The modern government has become complex, outsourcing work, many agencies are
being created and there are many units of devolution.
Holding agencies of an increasingly large administrative state into account will be difficult
if citizens cannot have access to information.
In the age of administrative state, expression and participation become meaningless if the
polity is ignorant of the internal workings of government.
Freedom Of Information And Transparency

FOI and transparency are justified on more instrumental and pragmatic grounds. FOI can
have a positive impact on at least three different spheres of society: Politics, economics
and public administration.
a) In the political realm

Contributes to the ability of the citizens become aware of and involved in the activities of
the government- and transform themselves from passive citizens who occasionally go to
the polls, into active citizens who call the government into account and participate in the
design of public policies.
This raises the level of political debate and leads to a more productive process of policy
making
b) In the economic realm
Transparency increases efficiency by making the investment climate more reliable and
allowing capital to better calculate where and when it can best be invested.
The market lives and dies on information. Although secrecy and insider information is
profitable for the few, the health of the market in the long term depends on a steady and
reliable flow of trust worthy information.
c) In the realm of public administration,
Transparency improves the decision making of public servants by making them more
responsive and accountable to the public and controls corruption by making it more
difficult to hide illegal agreements and actions.
It also improves the legitimacy and trust in government in the eyes of the people, allowing
for more effective implementation of public policies.

Summary; Benefits of Transparency
Lack of transparency can be costly both politically and economically:
a) It is politically debilitating because it dilutes the ability of the democratic system to
judge and correct government policy by cloaking the activities of special interest. It
creates rents by giving those with information something to trade. Examples: Maize
scandal,
b) The economic costs of secrecy are staggering, affecting the aggregate output and the
distribution of benefits and risks.
Most significant is corruption, it adversely affects investments and economic
growth.
Procurements and the tendering process- few people have access to this
information, they do not get the most qualified person for the job, and they are
required to advertise for jobs and tenders.
Financial crisis is more likely when government and private sector financial
information is not available to the public.
Greater information flow about the decisions of the central bank is likely to stabilize
and rationalize financial markets
What is Freedom of Information Law?
A FOI law gives citizens, other residents and interested parties the right to access
documents held by the government without being obliged to demonstrate any legal
interest or ‘standing’.
Under the FOI law, the government documents are assumed to be public unless
specifically exempt by the law itself, and individuals can access them without explaining
for what purpose they need them.
The FOI implies a change from the principle of a need to know basis, to a right to know
basis.
Importance of FOI Laws even when the country already has constitutional provision is
that the clause gains the status of effective rights for the population.
The Central Guiding Principles That Guide the FOI Law.

These are the parameters that we would look at to attain freedom of information.
1. Maximum disclosure- FOI laws should be guided by the principle of
maximum disclosure
2. Obligation to publish- Public bodies should be under an obligation to
publish key information
3. Limited scope of exceptions- exceptions should be clearly and narrowly
drawn and subject to strict ‘harm’ and ‘public interest’ test.

4. Processes to facilitate access- Request for information should be
processed rapidly and fairly and an independent review of any refusals
should be available.
5. Costs- Individuals should not be deterred from making requests for
information by excessive costs.
6. Open meetings- Meetings of public bodies should be open to public.
7. Disclosure takes precedence- Laws which are inconsistent with the
principle of maximum disclosure should be amended or repealed.
8. Protection of whistle blowers- Individuals who release information on
wrong doing must be protected.
General Contents of FOI Laws
In the world over, the contents of the FOI laws varies in the following ways:
a. Coverage
b. Exemptions
c. Enforcement and
d. Ease of access
a) Coverage:
Ideal law should cover all bodies that receive public money including all branches of gov,
autonomous agencies, nonprofit organizations, individuals, private contractors and
foundations. I.e. Any ‘body’ that carries out a function vital to public interest ex. Private
hospitals, schools, prisons, regardless whether it receives government funding.
Most laws are restrictive ex. Sweden’s FOI laws limits public information held by the
government, the U.S.A. has widespread use of private prisons, the public is not allowed
information of how these prisons are run.
Another issue of coverage involves the definition of “Public information”. Ex. Pakistan
defines Public information in a limited way restricted to documents that deal with a
previously set list of types of official documents, Thailand – “ any record held by a public
authority, regardless of form or status, whether or not it its classified”
b) Question of exemptions:
Typical exemptions include: protection of national security, personal privacy, public
security, commercial secrets and internal deliberations.
The central issues of exemptions are:
i) How the concepts are designed
ii) Who gets to decide which information is exempted
iii) On what grounds these decisions are made and

iv) Whether there is a public interest override that could make exempted
information public if the issue were important enough.
The organization Article 19 has proposed a three part ‘public interest test’ for
exemptions:
i) The restricted information must relate to a legitimate aim listed in the law;
ii) Disclosure of the information must threaten to cause substantial harm to that
aim;
iii) And the harm to the aim must be greater than the public interest in having that
information
This is consistent with the Johannesburg principles developed by more that 35 leading
experts from every region of the world at a meeting in South Africa in 1995. Principle 1(d)
states that:
No restriction on freedom of expression or information on the ground of

national security may be imposed unless the government can demonstrate that
the restriction is prescribed by law and is necessary in a democratic society to
protect a legitimate national security interest. The burden of demonstrating the
validity of the restriction rests with the government.
To establish that a restriction on freedom of expression or information is necessary to

protect the legitimate national security interest, a government must demonstrate that:
a) The expression or the information at issue poses a serious threat to a legitimate

national security interest
b) The restriction imposed is the least restrictive means possible for protecting that
interest
c) The restriction is compatible with democratic principles
c) Enforcement
FOI law without enforcement is doomed to be a dead letter since the culture of
bureaucracy works against the automatic implementation of openness.
The ideal arrangement is to create a special public body responsible for receiving appeals
and generally enforcing the right to freedom of information.
Without an independent body, all appeals must go to the courts, which entail a very slow
process and high monetary costs.

Only 12 of 62 countries with FOI laws have independent information commissions at the
national level- Canada, Belgium, Estonia, France, Hungary, Ireland, Latvia, Mexico,
Portugal, Slovenia, Thailand and the UK.
There are 3 different approaches to enforcement:
1. Where an individual is given a right to make an ‘administrative appeal’ to another official

within the institution to which the request was made. If it fails, the individual may appeal
to court or tribunal, which may order disclosure of information
2. Where an individual is given a right to appeal to an independent ombudsman/ information
commissioner, who makes a recommendation about disclosure. If the instn. Ignores the
recommendation, an appeal to a court is permitted.
3. Individual is given a right of appeal to an information commissioner/ombudsman who has
power to order disclosure of information. No further appeal is provided for in the access
law, the commissioner’s actions remain subject to judicial review for reasonableness.
Another important question is ‘How much delay is permissible before providing

information?’.
Some developing countries fear that short time limits might overburden already weak
bureaucracies and make access to information even more difficult as time limits expire
without the government response, prompting citizens to appeal to the courts and,
consequently burden court dockets.
A comparative study conducted by Open Society Institute show that short time limits are
effective in making FOI laws work.
d) Ease of Access
Accountability demands that public servants actively inform and explain what they are
doing and provide justification for their actions.
Therefore the obligation to publish is absolutely crucial.
Example; the Article 7 of the Mexican FOI law states that all of the entities subject to
the law must publish in a comprehensible form the full information about their internal
structure; the duties of each administrative unit; a directory of public servants; the salary
of all positions; the goals and objectives of each administrative unit; the services it offers;
a list of all forms, requirements, and procedures; information about the budget assigned
and the use that has been made of it; the results of all audits performed; the permits,
concessions, and contracts the agency entered into; the mechanisms of citizen
participation in place, and further information.

In most countries, individuals are required to go through the process of a formal request
in order to acquire basic information. Ex. Japan does not include any obligation to publish.
In UK, the information to be published is up the discretion of the agency.
Another element of public access to information is the fee and cost o the public to obtain
the information.
Areas in which costs are incurred by freedom of information requests include: Searching,
reviewing, reproducing and sending.
UK allows agencies to charge for all four steps of the process, Mexico only charges for the
reproduction and sending of the information. Japan charges a fixed fee of 300 yen (about
2 U.S.dollars) for each request.
High user fees restrict excludes large segments of population from having access to public
information.
Some FOI laws are designed to limit, not open up freedom of speech and access to
government information e.g. Zimbabwe’s protection of Privacy and Access to Information
Act imposes strict controls on journalists and makes it difficult for the public to access
information
IN CONCLUSION
The right of people to access information that is held by public authorities and private
entities makes it easier for the public to participate in administrative and judicial
processes.
It helps promote more rational, informed decision-making; and it fosters transparent and
accountable decision-making.1
Effective access to meaningful information is the first step in empowering citizens to

exercise a degree of control over resources and institutions.2
1
Benjamin Richardson & Jona Razzaque (2006) Public participation in environmental decision-making In: Richardson, B.
and Wood, S., eds. (2006) Environmental Law for Sustainability. Hart, pp. 165-194p 181
2
Christoph Schwarte (2008) Access to environmental information in Uganda Forestry and oil production, Foundation for
International Environmental Law and Development (FIELD) and the International Institute for Environment and
Development (IIED), London

This right to access information draws legal foundation from, among others, the
International Covenant on Civil and Political Rights (ICPR).
The ICPR provisions on freedom of expression include the freedom of everyone to seek,
receive and impart information and ideas of all kinds, regardless of frontiers, either orally,
in writing or in print, in the form of art, or through any other media of his choice.3
This right to receive information is similarly guaranteed by the African Charter,4 and has
been implemented nationally, for instance through article 32 of the Constitution of South
Africa which confers a right on everyone to access information held by the state, or by any
other person, where that information in required for the exercise or protection of any
right.
3
Article 19
4
Article 9

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Administrative Law- GPR 203

By: Prof. Migai Akech

1 These Notes have been compiled by Joseph McDonald photocopying is prohibited.

Nature and Purpose of Administrative law

Article 47 of the constitution

(b) Promote efficient administration.

That domination is expressed in three ways:

2 These Notes have been compiled by Joseph McDonald photocopying is prohibited.

The purpose of the law is to protect individuals from abuse of power

Law promotes the value of things we care about as human beings.

i) Autonomy – Freedom to make ones decisions

ii) Dignity – The quality of being worthy

iii) Equal respect – Being treated as a citizen

iv) Status – A sense of belonging to a society

vi) Democratic Governance; as a right but Insufficient

3 These Notes have been compiled by Joseph McDonald photocopying is prohibited.

In The Perspective Of Administrative Law

In Recent History, (History Of Administrative Law In Kenya)

Democratic governments are likely to be better at managing the economy, so the

4 These Notes have been compiled by Joseph McDonald photocopying is prohibited.

i) By assessing attainment of democracy through elections, the assumption is that

We need to question this orthodox:

Democracy has to be something that we realize on a day to day basis.

It is the right to be consulted when political decisions are made. If democratisation

The Day To Day Participation In Governance

Political accountability of the agents and instruments of government i.e. the

Thus administrative law is one of those auxiliary or supplementary mechanisms we need

Administrative law becomes important because it establishes institutional frameworks that

Complexity of the Relationships And Public Administration

However public administration can be complex given it entails delegation of authority as

There is a principal agent relationship, creating a number of problems;

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2) Information asymmetries – Between the citizens and the bureaucrats, the

What Is Public Administration

This is the execution of public affairs as opposed to policy.

We appreciate the limitation of representative democracy because it is in the context of

6 These Notes have been compiled by Joseph McDonald photocopying is prohibited.

Administrative Law regulates Public Administration by empowering public officials to

Provides remedies for people affected by maladministration

The key Principles of Administrative law:

i) The decisions of administration must be reasonable and justifiable.

ii) The administrators must consult before making decisions.

iii) Decision making process must be free of bias.

iv) Administrators must explain their decisions in writing.

v) Administrators must not act arbitrarily or outside their powers or ultravires.

vi) Administrators must act in good faith.

viii) There must be checks and balances in decision making.

Procedures of Administrative Law

7 These Notes have been compiled by Joseph McDonald photocopying is prohibited.

CONCEPTUAL FRAMEWORK OF ADMINISTRATIVE LAW

What is the Rule of Law About?

WHAT GOVERNANCE BY LAW ENTAILS, FROM THE POINT OF RULE OF LAW:

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8. Prescriptions of law must be applied consistently. There must be considerable congruence

c. Reliable enforcement agents

Constitutionalism: means that government is limited by law, Practicing Constitutionalism

Question: How can governance be limited through the Rule of Law?

Public law limits governance by establishing mechanisms, principles, procedures that

A number of principles in public law that facilitates this end:

9 These Notes have been compiled by Joseph McDonald photocopying is prohibited.

1. The first theme is government limited by law

2. The second theme is formal legality:

3. The third theme is rule of law, not man.