TOPIC 1: INTRODUCTION TO ADMINISTRATIVE LAW

 MEANING OF ADMINISTRATIVE LAW

 Before posing any definition of the term administrative law it should be understood that there is no omnibus or a universally accepted definition of the term, and thus various scholars have attempted to define the term by confining it either to their field of study or basing on their experiences. Hereunder are some of the definitions given by various scholars:-

 Definition by Ivor Jennings 

 Administrative law is the law relating to the administration. It determines the organization, powers and duties of the administrative authorities. 

 Despite the fact that Ivor Jennings presents a widely accepted definition of administrative law but has been criticized by Griffith and Street as follows: - 

 It is a very wide definition which encompasses even substantive powers which might not be falling within the scope of administrative law For example:- Legislation relations to public health services, houses, town and country planning. But these are not included within the scope and ambit of administrative law.

 It does not include remedies available to an aggrieved person when his rights are adversely affected by the administration.

 It does not distinguish administrative law from constitutional law

 Definition by Prof. Wade 

 Administrative law is the law relating to the control of governmental power. He argues that the primary object of administrative law is to keep powers of the government within their legal bounds so as to protect the citizens against their abuse.

 Definition by Griffith and Street 

 Administrative law is the operation and control of administrative authorities, it must deal with the following three aspects :-

 What are the limits of those powers? 

 What sort of power does the administration exercise? 

 What are the ways in which the administrative is kept within those limits?

 According to Black’s law dictionary 

• Defines administrative law to mean the law governing the organization and operation of administrative agencies (including executive and independent agencies) and relations of administrative agencies with legislature, the executive, the judiciary and the public.

 Professor Issa G. Shivji (et al) 

• Defines Administrative law in contrast with Constitutional law in the sense that, while constitutional law provides for the institutions of the State and the government and allocates power to different organs of the state, administrative law is another category of public law which deals with how the public organs and officers are to exercise powers including the limitation of the same powers.

 Generally, from the above presented definitions it can thus be construed that, administrative law is that branch of public law which mainly deals with the exercise of power and duties of administrative organs or authorities in relation to the general public which is directly affected by their actions.

 SOURCES OF ADMINISTRATIVE LAW

 Essentially, administrative law just like any branch of law derives its principles from various sources which may include but not limited to the followings:-

 The Constitution.

 Specifically, the Constitution of the United Republic of Tanzania, 1977 as amended time to time is the foremost source of administrative law in Tanzania. It provides for the praised principles of Rules of law, Separation of powers, Independence of the Judiciary, Sovereignty of the people, safeguard of basic rights and supremacy of the constitution .

 Various administrative organs derive their powers and functions from the Constitution. Such organs include the President, Ministers, and local government authorities just to mention a few. However the very same Constitution provides for the rights of every individual and such constitutional rights have to be respect when exercising administrative functions. In that respect the Constitution becomes a major source of administrative law.

 The Executive actions are justified by the constitution and may be challenged in courts of law where the actions are inconsistence with the constitution. This was evidenced in the recent petition of Legal and Human Right Centre and Tanganyika Law Society v. Honorable Mizengo Pinda and Attorney General where the Prime Minister was quoted in the Parliament as saying that; 

 “if you cause disturbance, having being been told not to do this, if you decide to obstinate, you only have to be beaten up… and I am saying, you only have to be beaten up… and I am saying you should keep on beating them because we don’t have other means…” 

 Even though the petition was struck out but the petitioners were aggrieved by the quoted statement and challenged the same on ground that it contravenes fundamental rights of the constitution of the United Republic of Tanzania, 1977 which prohibit violation of the right to life and seek to protect the rule of law and natural justice particularly fair hearing. 

 Statutes

 Most of administrative organs are statutory formed. They derive their powers and functions from various statutory instruments. Some statutes confer legislative powers, quasi-judicial powers, and powers to maintain law, order and good governance. All these powers have to be exercised lawfully within such limits set by the particular Act of the parliament. In that sense statutes become one of the principal sources of administrative law. Examples of statute in this respect include for example the Government Proceeding Act. [Cap 5 R.E 2002] and the Local Government Urban Authorities Act [Cap 288 R.E 2002] and Local Government District Authorities Act [Cap 287 R.E 2002].

 Case laws or precedent

 Decisions by the supreme courts of the land in administrative disputes form one of the major bases of administrative law. Courts have always intervened in such cases where administrative organs have acted unlawfully to the extent of injuring or affecting individual rights. Using their inherent prerogative powers, courts have been a reliable place for a victim to run to and get his respective remedy. Hence cases involving a dispute in administrative matter have been useful as sources of administrative law.

 Received laws

 This includes the common law principles, doctrines of equity and such statutes of general application. All these have been, and still are, useful in such matters involving administrative disputes.

 Books by prominent jurists and opinions from prominent jurists also form basic source to administrative law

 NATURE AND SCOPE OF ADMINISTRATIVE LAW

 This branch of public law deals mainly with powers of the administrative authorities, the way in which such powers are exercised where there is misuse of such powers, then how a person affected can be remedied. In this process this law regulates powers, procedures and acts of public authorities. The law tries to harmonize social welfare with the rights of individuals. When powers are properly exercised they lead to the so called ‘welfare state’ but when the contrary is true they lead to the so called ‘totalitarian state’. It is therefore the role of administrative law to try to create a balance in the exercise of such powers conferred upon administrative organs to ensure that there is no abuse of discretionary powers .

 IT’S SCOPE (Limit)

 Administrative Law as a law is limited to concerning powers and procedures of administrative agencies. It is limited to the powers of adjudication or rule-making power of the authorities. Thus, it is limited to:- Establishment, organization and powers of various administrative bodies, Delegated legislation-the Rule-making power of the authorities, Judicial functions of administrative agencies such as tribunals, Remedies available such as Writs, Injunction, Procedural guarantees such as the application of principles of Natural Justice, Government liability in tort Public corporations just to mention a few. With this respect administrative law covers such aspects like political, judicial, parliamentary control of administrative organs. However it does not go to the extent of controlling policy making by ministers or the head of state. 

 DEVELOPMENT OF ADMINISTRATIVE LAW

 For almost last two centuries there had been an increase in the general functions of state. The traditional functions of a state such as securing the community against any external invasion (aggression) and internal strife together with dealing with such mechanisms of making the state be able to run itself (for instance through collection of taxes), have now proved to be not the only main functions of the state in the contemporary modern world.

 Demographic revolution, increase in political activities, technological innovations and inventions and so forth, have all extended the general scope of the functions of state beyond those traditional ones. Involvement of public authorities in most of the aspects of life proves the extent of such increase in the functions of the state. The state is involving now in the general provision and distribution of various social services like education, health, water and sanitation, power supply to mention but few. This increase in the functions of the state has resulted into the growth and development of administrative law.

 With this development, evolution of the modern administrative law has seen modern administrative law dealing with the way powers are acquired, how powers are distributed, how the same powers are used, and how misuse of power is prevented and remedied.

 Hence this has given rise and development of a modern, complex and comprehensive kind of public law which concerns itself with rules, procedures, regulations and legal principles geared towards the control of governmental powers. Most of these powers emanate from parliamentary legislations and others are mainly discretionary arising from the nature of the administrative organ responsible in performing such powers.

 REASONS FOR THE GROWTH AND DEVELOPMENT OF ADMINISTRATIVE LAW

 The following factors are responsible for the rapid growth and development of administrative law :-

(1) There is a radical change in the philosophy as to the role played by the State. The negative policy of maintaining 'law and order' and of 'laissez faire' is given up. The State has not confined its scope to the traditional and minimum functions of defense and administration of justice, but has adopted the positive policy and as a welfare State has undertaken to perform varied functions.

(2) The judicial system proved inadequate to decide and settle all types of disputes. It was slow, costly, inexpert, complex and formalistic. It was already overburdened, and it was not possible to expect speedy disposal of even very important matters, e.g. disputes between employers and employees, lock-outs, strikes, etc. These burning problems could not be solved merely by literally interpreting the provisions of any statute, but required consideration of various other factors and it could not be done by the ordinary courts of law. Therefore, industrial tribunals and labor courts were established, which possessed the techniques and expertise to handle these complex problems.

(3) The legislative process was also inadequate. It had no time and technique to deal with all the details. It was impossible for it to lay down detailed rules and procedures, and even when detailed provisions were made by the legislature, they were found to be defective and inadequate, e.g. Rate fixing. And, therefore. It was felt necessary to delegate some powers to the administrative authorities. 

(4) There is scope for experiments in administrative process. Here, unlike legislation, it is not necessary to continue a rule until commencement of the next session of the legislature. Here a rule can be made, tried for some time and if it is found defective, it can he altered or modified within a short period. Thus legislation is rigid in character while the administrative process is flexible.

(5) The administrative authorities can avoid technicalities. Administrative law represents functional rather than a theoretical and legalistic approach. The traditional judiciary is conservative, rigid and technical. It is not possible for the courts to decide the cases without formality and technicality. The administrative tribunals are not bound by the rules of evidence and procedure and they can take a practical view of the matter to decide complex problems. 

(6) Administrative authorities can take preventive measures, e.g. licensing, rate fixing. Etc. Unlike regular courts of law, they have not to wait for parties to come before them with disputes. In many cases, these preventive actions may prove to the more effective and useful than punishing a person after he has committed a breach of any provision of law.

(7) Administrative authorities can take effective steps for enforcement of the aforesaid preventive measures; e.g. suspension, revocation and cancellation of licenses, destruction of contaminated articles, etc. which are not generally available through regular courts of law.

 CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW

 Constitutional and administrative are two closely related subject area of law. There is thin line demarcating constitutional and administrative law. However, in discussing the constitutional law in a country such as Tanzania, we need to distinguish constitutional law from administrative law. 

 As pointed out by Wade and Bradley  “There is no precise demarcation between constitutional and administrative law… may be defined as the law which determines the organization, powers and duties of administrative authorities. Like constitutional law, administrative law deals with the exercise and control of governmental power. A rough distinction may be drawn by suggesting that constitutional law is mainly concerned with the structure of the primary organs of government, whereas administrative law is concerned with the work of official agencies in providing services and in regulating the activities of citizens.”

 Constitutional law is concerned with the organization and functions of Government at rest whilst administrative law is concerned with that organization and those functions in motion .

 The constitution is the superlative law of the state of which all other laws of the land are subject to it, whereas administrative law, rules and regulations are subject to the constitution. Where administrative law is inconsistence with the Constitution, the former will easily be declared unconstitutional.

 Administrative law primarily concerned with the excise of powers by administrative bodies or executive agencies actions, whereas Constitutional law establishes the supreme powers of the states, the executive, judiciary and the parliament and set general principles for the operations  

 Administrative law establishes the general rights including basic human rights and duties, whereas constitutional law set the mechanism and procedures on how the rights are to be administered both at the supreme level and by the delegated authorities.

 Administrative law derive the authoritative principles from the constitutional law like separation of powers, independence of the judiciary, natural justice and reasonableness of administrative actions, whereas constitutional law lays the foundation for administrative law principles of natural justice . 

 One can therefore make a synthetic difference may be made by suggesting that constitutional law is mainly concerned with the structure of the primary organs of government, whereas administrative law is concerned with the work of official agencies in providing services and in regulating the activities of citizens. Administrative law is directly affected by constitutional structure of government because the administrative bodies are set up or established by the function of the constitution itself.

 FUNCTION OF ADMINISTRATIVE LAW

 There are various functions of administrative law some of which are;-

1. Regulatory and Control function. Administrative law is there to regulate and control the exercise of administrative powers by ensuring that both mandatory and discretionary powers are properly exercised, that is, are exercised within the ambits of the law that confer such powers. 

2. Imperative function. This is a commanding function which compels administrative organs to perform such powers conferred to them from various sources.

3. To enhance good administration through adherence to the principles of natural justice and other administrative principles

4. To enhance accountability, transparency in the process of governance. It is in the interests of the public that for all such matters that affects individual rights, public authorities should act in a manner that justice will manifestly seen to be done.

5. To enhance democratic participation of individuals in such matters that affects their rights. An individual should be given an opportunity to participate in such a process to which the end results of it might affect in one way the rights of such an individual.

6. To balance and harmonize conflicting interests between the interests of the community at large and those of individuals.

 QUESTIONS FOR FURTHER REFLECTION

1. Define the term Administrative law. The growth and development of Administrative law has no justification whatsoever in the contemporary system of administration. Discuss

2. Although the scope of administrative functions is wide yet not everything done by administrative organs fall within the ambits of administrative law. Critically discuss this contention.

3. Administrative law derives its justification from multiple numbers of authorities which act as sources of this branch of public law. With vivid examples elucidate the validity of this statement.

4. The difference between administrative law and constitutional law is not one which is fundamental and in actual fact there is no clear or definite gap between the two laws. Is this statement correct?