Administratve Justice

It is not easy to give a straight forward definition of administrative law. This is so because administrative law is not law as we know it that which is made by elected officials in an assembly like the National assembly or parliament. In lay terms it can be said to be a means by which the law implementation is monitored.

This is so as the person in charge of implementing the law from the legislature is mostly given powers to come up with steps or procedures in which that law will be implemented or is given power to use his discretion in the implemention of that law. It can therefore be said that it consists of rules and procedures that encourage good administrative practice in government and also it provides mechanisms for redress to those negatively affected by government decisions or actions. In brief, it can be described as the law relating to the administration of government[1].

Administrative law ensures that one indeed has the authority in coming up with those steps or procedures or using the discretion; that those steps or procedures or discretion applied is fair in nature (i.e. they do not conflict with the Constitution), that the application of the procedure or discretion is abide to in handling all events, and that the person administering the steps or or discretion acts reasonably and fairly.

For example, chapter 322 of the Laws of Zambia, in particular, section 198 does confer on the Minister of Finance and national planning the power to make regulations that would regulate the processing of imports and exports in Zambia[2]. Administrative law will therefore, be concerned with the authority of the minister to make the regulations and how these regulations are made.

The regulations made by the Minister will not be the concern of administrative law but the procedures used to make them. Administrative law is also concerned with the use of discretion by government officials. The case of Attorney General v Clarke[3], explains the interests of administrative law better. In the case, the attorney general was appealing a court decision that nullified the deportation of Roy Clarke ordered by the Minister of Home Affairs who was using his powers under section 26 (2) of the Immigration and Deportation Act[4].

The facts were that Roy Clarke submitted for publication a satirical article entitled Mfuwe whose contents ,in the opinion of the Minister, amounted to a danger to peace and good order in Zambia. It was held that deporting the respondent was disproportionate a punishment for the crime alleged and thus the appeal was dismissed.

The Roy Clarke case shows that despite one having the powers under the Act, one cannot use them arbitrary or disproportionately to satisfy one’s ego or self interest. Administrative law will thus ensure that powers conferred by the Acts are applied for intended purposes and for public good. The illustration above show that administrative law is the law that governs those that administer any activities of Governance. In this regard thus it is concerned with public authorities such as central and local government departments, public corporations and similar institutions.

The administrative law will therefore look at where and how these institutions acquire the power they have. The constitution of Zambia in its entirety is a source of administrative law in that it provides restrictions on what government can do or not do. The statutes that creates the public institutions are also a source of administrative law in that they prescribe the powers and how they are to be applied. Administrative law is also generated by the courts by them deciding cases with similar facts the same. Administrative law may arise from the public institutions themselves.

This usually happens when the institutions impose upon themselves rules and procedures which binds them. For example, the Zambian government imposed rules and procedures upon itself for the disposal of government housing units in 1996. These rules and procedures had the force of law as persons aggrieved in the process had the right to use these rules and procedures to found redress before the courts of law.

Among the functions of administrative law is that it enables the task of government to be performed conveniently. As earlier indicated, administrative law gives powers to public officials and institutions to make decisions for the purpose of implementing the law. These powers makes it easy for the government to perfom in that real life situations are dynamic and thus cannot all be covered by substantive law. The administrative law gives the official or institution faced by the particular situations powers to make a decision that would address the situation without involving length debates in parliament. This thus brings about efficiency in government performance.

For example, the Zambian society has, of late, been invaded by alcoholism mostly among the productive age group due to the introduction of cheap strong spirit packed in satchets. The situation needed drastic action by government to contain the situation. Since the manufacture, distribution and sale of these satchets was legal in Zambia, the Minister of local government and housing, using her powers under section 83 of the Local Government Act issued a statutory instrument on Liquor licensing (intoxicating liquor quantities and packaging) regulation 2012 which essentially banned the manufacture, distribution and sale of these strong spirit satchets. The government perfomed conviently in this case.

Another function of administrative law is to govern the relationship between the various administrative agencies. This is an important function as it provides for what one can do and what the other can not do.

This brings about sanity in the operation of government. Without this function any government department could act on anything as long as it lies within government function. To further illustrate the importance of this function, the case of The Attorney-General v Steven Luguru[5], refers. In the case a Tanzanian national employed in the Zambian civil service and being a sitting tenant applied to buy the house but was refused. He then brought the matter before the Lands Tribunal which ordered that he be sold the house.

On appeal by the State, it was held that the jurisdiction of the Lands Tribunal was limited to settlement of land disputes under its Act and was not an alternative to the High Court. The above case show that administrative law regulates how agencies should relate to each other by ensuring that they operate within their jurisdiction. In the above case, the Lands tribunal went out of its jurisdiction, usurping the function the High court.

Administrative law examines the limit of all administrative powers conferred. The case of Attorney General v Clarke[6], above illustrates this function in that the power of the Minister under the Act was examined by judicial review and it was decided that, even if he was empowered to deport aliens consider a danger to the Zambian society, the use of that power in the matter at hand was excessive.

Finally, administrative law examines the legislative and judicial control on administrative agencies. It ensures that an administrative agency has authority to exist and operate as it is. Administrative agencies that exist without mandate or with no properly established mandate need not exist. The law that creates the agency usually lays down its powers and guides on how such agency is to operate thus providing legislative control.

The case involving the defunct Access Financial Services former directors Aaron Chungu and Faustin Kabwe[7] can be cited as one that show that legislative control is important for any administrative body. In the case, the Taskforce on Corruption set-up by the President was challenged by the defendants to show the court documents confirming its legality with regard to receiving, investigating and prosecuting complaints of alleged corrupt practices which functions are the premise of the Anti-Corruption (ACC) Act. In the defendant’s view the taskforce on Corruption had no legislative mandate to exist and thus lacked legislative control.

Administrative law further ensures a platform upon which judicial control of government agencies can be executed. This is possible in that administrative law is a set of rules and procedures put up by the government agencies or the laws that creates the agencies and therefore if the agency acts outside these rules and procedures the aggrieved can seek redress through the courts by demanding for judicial review. The courts then provide judicial control over the administrative agencies by issuing prerogative orders such as certiorari, prohibition and mandamus.

Conclusion Administrative law is that law which consists of rules and procedures that encourage good administrative practice in government and also it provides mechanisms for redress to those negatively affected by government decisions or actions. Among its functions are the need to provide efficiency in government performance and the regulation of the relationships between administrative agencies.

The administrative law further examines the limits of the powers conferred on administrative bodies or officials and further examines the authority under which they operate or make decisions. Finally, administrative law provides the parts negatively affected by government actions or decisions to seek redress through the courts of law by demanding for judicial review.

----------------------- [1] B,L Jones (7th Ed) (1989). Garner’s ADMINISTRATIVE LAW. Butterworths, London and Edinburgh [2] Chapter 322 of the laws of Zambia (the customs and excise Act) [3] [AHRLR,259] (ZaSC 2008) [4] Chapter 123 of the Laws of Zambia (Immigration and Deportation Act)

[5] [2001] SCZ 20 [6] [AHRLR,259] (ZaSC 2008) [7] The People v Dr Fredrick Jacob Titus Chiluba and Others (2004) ZR11