Administrative Law

Governments exist to provide guidance to its people. In fulfilling this important duty, governments make decisions that affect the members of society. The government makes decision through its various agencies. These agencies are given powers which fall under the legislature and the judiciary. The legislative powers of the agency gives it authority to make laws such as regulations, rules or procedures while the judicial powers give it the powers to adjudicate over contested cases within its area of jurisdiction. The later power of adjudication is what is known as administrative justice.

Administrative justice can also be defined as a procedure for settling disputes in the area of administrative law or the organisation, powers and procedures of the courts that carry the bulk of the control of “administration” by legal standards[1].

The definitions above do indicate that there are institutions or bodies that do administer administrative justice. These bodies do not fall in the concrete definition of a court as they receive their judicial powers from the Executive branch of government and not from the Constitution.

Prominent among these institutions are:

a) Commissions of Inquiry

These are appointed by the President using powers vested onto him by the Inquiries Act under which section 2 of the Act empowers him/her to issue Commissions. The Act is important in that it gives the president a chance to appoint independent persons to inquire into a matter which he feels he can not make a unilateral decision. It is a requirement that before the President issues a Commission, he/she has to be convinced that indeed the matter exist and that it is a serious matter that is of public interest. The Commssioners thus appointed has a task of getting views from the public on the matter and make recommendations to the President.

The First republican President of Zambia, Dr Kenneth Kaunda was faced with such a matter in 1973 when, in his opinion, he felt that the multi-party system of governance was not suitable for Zambia. He initiated a Commission of inquiry with the late Mainza chona as the commissioner to obtain views on the matter from the general public. The result was the introduction of a one-party system of governance with UNIP as the sole political party.

Other Commissions of inquiry were appointed by the Second Republican President to inquire in the death of Baldwin Nkumbula. The essence of the inquiry was to investigate the general notion that the late Nkumbula was a victim of the administration.

The essence of the Commissions of Inquiry is to remove the general suspicion that the administration is imposing its will on the people or that it act without checks. It can be argued that since the Commissions are a discretion of the President, there recommendations are or can be tailored to the wishes of the appointing authority. This may not be the case as the persons usually appointed to head the Commissions are persons of high standing with international reputations to protect.

For example the Constitutional Commission of 1993 was headed by john Mwanakatwe and the recommendations made were representative of what the people wanted. The problem with Commissions of inquiry is usually with the appointing authority. In the case of the Mwanakatwe Commission, the appointing authority (President) rejected the recommendations.

b) Tribunals

The objective of a tribunal is to establish the facts of a situation presented to it and render a decision that is just and fair taking the circumstances of the case. They are a quicker way of resolving grievances as they do not take longer and are not expensive. Tribunals can came in form of administrative or appeals types.

The former type hears and decides on complaints presented by the aggrieved party to a decision made by the administrative agencies. The prominent example of such a tribunal is the Lands tribunal in Zambia. The lands tribunal is a product of the Lands Act which was set-up to re-organize the land tenure system in Zambia.

The re-organization of the land tenure was envisaged to produce a lot of controversies and grievances among the people of Zambia and as such the Tribunal was established to hear and consider the problems being faced by the people as a result .

The appeals tribunal ,on the other hand, reviews decisions of administrative officers or bodies on appeal. They have the authority to review the appeals against decisions made by government agencies. Such type of tribunals forms the bulk of tribunals in Zambia.

Prominent among them is the Revenue Appeals Tribunal[2] which was set-up to hear appeals under the Customs and Excise Act 1982; the Income Tax Act 1993 and the Value Added Tax Act 2001. It should be noted that tribunals can exist on a permanent basis as the land tribunal or on an adhoc basis as those established by the Chief justice under the Parliamentary and ministerial code of Conduct Act[3].

Any tribunal, despite its nature, offers an independent and impartial review of the matter before it and therefore produces acceptable results as compared to an internal review. Tribunals, unlike, inquiries, do come up with a binding decision which every party to the matter is expected to go by.

This does not mean that the tribunal’s decisions can not be challenged. In the case of the The Attorney-General v Steven Luguru[4], the Lands tribunal’s decision to award a sitting tenant of Tanzanian citizenship the right to purchase a government pool house was challenged in the High Court of Zambia by the Government and the lands tribunal was ruled to be operating outside its jurisdiction.

The tribunals are usually composed of members who are non lawyers except maybe of the Chairman and the membership is not full time. The procedure adopted is simpler and more flexible than the courts of law as the onus is primarily on the parties to adduce evidence and argument to the tribunal.

The drawback on tribunals is that they usually deal with specific issues as defined in the empowering legislation. For example the lands tribunal can only deal with matters emanating from the Land Act.

c) The Ombudsman It should be noted that grievances from the public on administrative agencies fall in two parts. The first being one were the aggrieved part wants a review of the decision made with the hope of achieving a reversal of the decision.

In such a case, the correct process is an appeal and this is were tribunals come in or indeed courts of law through judicial review. The other form of grievance is were the complaint is based on the maladministration in the exercise of administrative power. This maybe prolonged delays in reaching a decision or discrimination against the aggrieved person. The later type of grievance is the sphere of the Ombudsman.

The Ombudsman’s objective is to safeguard citizens against abuse or misuse of administrative power by the Executive[5]. His/her primary function is to investigate allegations of maladministration by the Executive. In Zambia, this function is carried out by the Investigator – General which position was created in 1974 by the Commission of Investigation Act which underwent a change in 1991.

The function of the Investigator-General was to investigate any allegation or compliant against central or local government officials. This office enjoys a lot of powers of investigations in any matter of individual injustice or administrative abuse of power or authority. The public can allege in matters ranging from tribalism, corruption, nepotism, gender related issue, etc. This means that the Investigator-General can only carry out his work when allegations are made.

He cannot, on himself, start up an investigations without allegation. Furthermore, the investigator general cannot carryout an investigations into a case that has alternative ways of resolving such as through application to the Executive or appeal to a tribunal or through the Courts of Law. The investigations by the Investigator-General can only be on allegations that are considered serious.

Those allegations that are considered made in bad faith or trivial cannot be investigated. Despite these limitations, the Investigator-General is an important office in that it is perceived to be independent and impartial and as such has the confidence of the public. Complaints or allegations are received informally and at no cost to the complainant.

Through its receipt of allegations and findings of its investigations, the investigator-general can be able to advise, remind and reprove administrative officers and indeed institutions when they are found wanting. The office further provides a check on administrative officials or institutions from acting improperly as they know that the investigator-general does handle all kinds of cases.

The above has laid down the salient dimensions of administrative justice through which dispute emanating to from administrative actions or decisions are resolved. In resolving the disputes the parties to the matters before the various dispute resolution mechanism have certain rights.

Among these rights is the right to legal representation. What this require is that a complaint or indeed the administrative agency have the right to have a lawyer argue their case before a tribunal or in answer to an inquiry or ombudsman’s findings. This right has been argued to give these dispute resolution mechanisms the feature of Courts of law. However, for justice to prevail, it is argued that legal representation is of essence in these events.

In the same vein, where hearings demand the absence of legal representation like in issues involving the individual and institutions such as the National Health Service in the United Kingdom, the parties have the right to legal advice. The prohibition of legal representation in certain hearings is aimed at balancing the proceedings. It is felt that complainants against powerful institutions like the National Health Service not have the legal resources to compete in the hearing and as such unjust decisions may result.

The parties have also the right to appeal against the decisions of the administrative justice institutions such as a tribunal. The appeal should be on both fact or law or merit. Those appeals requiring consideration of fact should be channelled to an appellate tribunal while those requiring the consideration of the law should be channelled through the Courts of Law.

In Zambia, decisions of the lands tribunal can directly be appealed to the Supreme Court. The case of the Attorney general V Steven Luguru[6] illustrates the rights of the parties before a tribunal. In the case, the parties were represented and the government was able to appeal against the decision of the lands tribunal.

Finally, the parties have the right to know the reasons underlying the decisions reached by the institutions of administrative justice. It is a requirement that full reasons are provided for a decision reached unless in exception circumstances such as in matters involving national security or if the reasons may infringe on the interests of the parties concerned such as medical conditions. Non disclosure of the reasons may be a premise for an appeal for judicial review or a request for mandamus to compel the decision maker to reveal the reasons.

Conclusion Societies are led by governments whose primary purpose is to guide society to economic and social development. To achieve this mammoth task, governments come up with policies that need implementation. The implementation is done through various facets of government who are required to make decisions on a regular basis. One of the results of this decision making process is the aggrieved public.

The government in its wisdom has provided for dispute resolution mechanisms within its structures. These dispute resolution structures come in the form of tribunals and ombudsman, among others, and in their procedures they provide rights of the parties to matters before them. These rights include the right to legal representation, the right to appeal and the right to be furnished reasons for decisions reached.

----------------------- [1] Administrative Justice in Europe: The EU Aquis, good practice and recent developments. Roland Winkler, University of Salzburg, November 2007. [2]Revenue Appeals tribunal Act No. 2 of 2005

[3] [2001] SCZ 20 [4] Justice Report, The Citizen and the Administration(1961) [5] ibid

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