UGANDA CHRISTIAN UNIVERSITY

SCHOOL OF LAW

ADMINISTRATIVE PROCESSES NOTES

LLB II
(SEMESTER ONE)

Prepared by
Philip Tendo Kasule

TOPIC

INTRODUCTION AND DEFINITION OF ADMINISTRATIVE LAW

All aspects of human endeavour must be administered well for a successful

outcome. Likewise, the affairs of the society generally and sectionally must be
administered well to record an economic and political achievement. The section
that is responsible for this is the executive arm of government of the country. To curb
the arbitrary use of power of this highly essential part of the system, there is the need
for a law to define its role, the limitation of its powers, the action, remedies against
the arbitrary use of its powers, and so on. This law is called administrative law. Thus, in
this class, we shall try to define what administrative law and process mean.

Definition and Nature of Administrative Law

There is no universally accepted method of defining administrative law. Different

authors have propounded different definitions to the term "administrative law."
According to Osborn's law Dictionary (quoting Dicey) “administrative law is the law
relating to the organisation, powers and duties of administrative authorities.”

Administrative law is a branch of law that concerns itself with the exercise of powers
and procedures of public authorities. Administrative law controls the exercise of
powers and it relates to powers which are given to public authorities for purposes of
the day to day running of the affairs of the State.

Austin has defined administrative Law, as the law, which determines the ends and
modes to which the sovereign power shall be exercised. In his view, the sovereign
power shall be exercised cither directly by the monarch or directly by the
subordinate political superiors to whom portions of those are delegated or
committed in trust.

In his famous book- Introduction to American Administrative Law 1958, Bernard

Schwartz has defined Administrative Law as “the law applicable to those

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administrative agencies which possess of delegated legislation and adjudicatory
authority.

H.W.R. Wade in his book "Administrative Lam, “eighth edition, argued that
administrative law is concerned with the operation and control of the power of
administrative authorities with emphasis on functions rather than structure. He went
further, stating that: “Administrative law is the law relating to the control of
governmental powers.”

Sir Ivor Jennings (1959) defines Administrative Law as: “the lam relating to
administration. It determines the Organization, powers and duties of administrative
Authorities.”

Criticisms of this definition

Even though this is perhaps, the most widely accepted definition of administrative
law; it is not without its attendant criticism. According to Massey, there are some
difficulties associated with this definition.

Firstly, it does not distinguish administrative law from constitutional law. It lays entire
emphasis on the organization, power, and duties to the exclusion of the manner of
their exercise. In other words, this definition does not give due regard to the
administrative process, i.e., the manner of agency decision making, including the
rules, procedures and principles it should apply.

According to Oluyede, P.A. (1988), “Administrative law means that branch of cur
law which vests powers in administrative agencies, imposes certain requirements on
the agencies in the exercise of the powers and provides remedies against wrongful
administrative acts.”

According to Wade and Bradley (1985), “Administrative law is a branch of the public
law which is concerned with the composition, powers, duties, rights and liabilities of
the various organs of government which are encouraged in administration. Or more
concisely, the law relating to public administration.”

Egwummuo (2000) defines Administrative Law as “that branch of public law which
aims at indicating the rights of the citizen against attacks (intentionally or
inadvertently) emanating from government or its agencies (Page 1)

Administrative law, according to B. O. Iluyomade and B. U. Eka in their book “Cases

and Materials on Administrative Law" is “that body of rules, which aim at reducing
the areas of conflict between the administrative agencies of the State and the
individual.”

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To P.A.Oluyede, administrative law means that branch of the law, which vests
powers in administrative agencies, imposes certain requirements on the agencies in
the exercise of the powers and provides remedies against unlawful use of those
powers.”

According to Peter Leyland and Gordon Anthony:

It is regarded as the area of governmental powers, which originate in primary
legislation or in the prerogative. It embodies general principles which can be
applied to the exercise of the powers and duties of authorities in order to ensure that
the myriad of rules and discretionary powers available to the executive conform to
basic standards of legality and fairness.

MASSEY gives a wider and working definition of administrative law in the following
way: Administrative law is that branch of public law which deals with the
organization and powers of administrative and quasi administrative agencies and
prescribes the principles and the rules by which an official action is reached and
reviewed in relation to individual liberty and freedom.

From this and the previous definitions we may discern that the following are the
concerns of administrative law;
a) It studies powers of administrative agencies.

b) The nature and the extent of such power is relevant to determine whether
any administrative action is ultra vires or there is an abuse of power.
c) It studies the rules, procedures and principles of exercising these powers.

d) It studies the controlling mechanism of power. Administrative agencies while

exercising their powers may exceed the legal limit abuse their power or fail to
comply with the minimum procedural requirements.

e) Administrative law studies control mechanism like legislative &institutional

control and control by courts through judicial review.

f) Lastly, it studies remedies available to aggrieved parties whose rights and

interests may be affected by unlawful and unjust administrative wrongs.
Mainly it is concerned with remedies through judicial review, such as
certiorari, mandamus, injunction and habeas corpus.

It is crystal clear from the various definitions above, and as earlier pointed out, that
there is no comprehensive definition of administrative law, and that it only depends
on the view point of the person defining.

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Dicey in 19th century defines it as;

Firstly, portion of a nation's legal system which determines the legal statues and
liabilities of all State officials.

Secondly, defines the rights and liabilities of private individuals in their dealings with
public officials.

Thirdly, specifies the procedure by which those rights and liabilities are enforced.

However, two important facts should be taken into account in an attempt to

understanding and defining of administrative law.

From the above views, we note the following,

Firstly, administrative law is primarily concerned with the manner of exercising

governmental power. The decision making process is more important than the
decision itself.

Secondly, administrative law cannot fully be defined without due regard to the
functional approach. This is to mean that the function (purpose) of administrative
law should be the underlying element of any definition. Bearing in mind these two
factors, let us now try to analyze some definitions given by some scholars and
administrative lawyers.

These definitions by different authors confirm the fact that there is no single definition
of the subject: all definitions depend on the semantic, background and personal
idiosyncrasies of the writers. Generally, notwithstanding the problem associated with
finding a single definition of the subject, it is a branch of law that aims at keeping the
powers of government within the citizen against their abuse, and where abused, to
provide remedy to the aggrieved citizen.

Administrative Law therefore refers to the body of rules and regulations that relate to
the administration of a state or nation. Administrative Law deals with issues of powers
and duties of administrative functionaries, charged with the responsibilities of state
governance. Administrative Law embodies regulations which relate to the exercise
of powers and spells out remedies for aggrieved citizens who feel abused by the
exercise of administrative powers by public authorities.

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Purpose of Administrative Law

There has never been any serious doubt that administrative law is primarily
concerned with the control of power. With the increase in level of state involvement
in many aspects of everyday life during the first 80 years of the twentieth century, the
need for a coherent and effective body of rules to govern relations between
individuals and state became essential. The 20th century saw the rise of the
regulatory state and a consequent growth in administrative agencies of various
kinds engaged in the delivery of a wide variety of public programs under statutory
authority. This means, in effect, the state nowadays controls and supervises the lives,
conduct and business of individuals in so many ways. Hence controlling the manner
of exercise of public power so as to ensure rule of law and respect the right and
liberty of individuals may be taken as the key purpose of administrative lav.
Administrative law embodies general principles applicable to the exercise of the
powers available to the executive conform to basic standards of legality and
fairness. The ostensible purpose of these principles is to ensure that there is
accountability, transparency and effectiveness in exercising of power in the public
domain as well as the observance of rule of law.

Peer Leyland and Tery Woods have identified the following as the underlying
purposes of administrative law.

a. It has a control function, acting in a negative sense as a brake or check in

respect of the unlawful exercise or abuse of governmental/administrative
power.

b. It can have a command function by making public bodies perform their

statutory duties, including the exercise of discretion under a statute.

c. It embodies positive principles to facilitate the good administrative practice;

for example, in ensuring that the rules of natural justice or fairness are
adhered to.

d. It operates to provide accountability and transparency, including

participation by interested individuals and parties in the process of
government.

e. It may provide a remedy for grievances at the hand of public authorities.

Similarly, I. P. Massey identifies the four basic bricks of the foundation of

administrative law as:

a) To check the abuse of administrative power.

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b) To ensure to citizen an impartial determination of their disputes by officials so
as to protect them from unauthorized encroachment of their rights and
interests.

c) To make those who exercise public power accountable to the people.

Rationale / Objectives of Administrative law:

1. It deals with the organization and powers of administrative and quasi-
administrative agencies such as corporations, boards, public offices and
universities.
2. It includes the study of the existing principles and also of the development of
certain new principles which administrative and quasi-administrative
agencies must follow while exercising their powers in relation to individuals,
i.e., the principles of natural justice, reasonableness and fairness.
3. Public administrative authorities are charged with implementation of
government exercises and execution of laws. The public administrative
authorities include the President who can be an administrative official in
appointments of the following; appointing judges, permanent secretaries,
ministers, public servants, chiefs, directors of public corporation for example
Bank of Uganda, Universities, URA, Local authorities, administrative tribunals.
4. Public institutions and authorities are given powers which enable them carry
out their duties. This therefore necessities the need to control their exercises of
powers given to them by the enabling laws.
5. Good governance requires that public authorities must be transparent, fair
and should exercise principles of natural justice and this can only be
guaranteed by observing principles of administrative law.
6. Administrative law also ensures that powers, functions and responsibilities are
carried out properly by the public authorities. This guarantees efficiency and
also ensures that tasks are carried out by competent or professionally
qualified persons/authorities.
7. It also ensures that correct procedures are followed in executing or exercising
public tasks. Such procedures require that there should be fairness,
consistency, transparency and efficiency
8. Administrative law also ensures that public authorities operate within the
confinements (limits) of the principles of the rule of law which requires that
there should equality before the law. It is a duty of public authorities to ensure
that the rule of law prevails since they are confronted with practical situations
regarding the observance of the rule of law. See the incidents of the walk to
work demonstrations and the subsequent mode of arrest of Dr. Kizza Besigye
by the police 2011.

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9. Public authorities are also required to give accountability, a measure of
performance of public duties, that is, officers are accountable for their
actions and are responsible when they abuse their powers. See case
concerning the Temangalo saga of NSSF
10. Administrative law also ensures that private individuals who are wronged by
public officials get redress from authorities other than the public offices. The
aggrieved persons may go to court to get private or public law remedies e.g.,
Damages, habeas corpus, mandamus, prohibition and certiorari.
11. Furthermore, administrative law also ensures that public officials are
controlled by other public legal institutions e.g., police, parliament, auditor
general (see the CHOGM Report), inspector general of government etc. They
also control public authorities by ensuring that they put in place principles of
natural justice i.e., right to fair hearing, the rule against biasness etc. These are
common law principles which have been developing to ensure that there is
fairness in the administration of justice. These principles apply even if there is
no rule or a procedure that provides that they should apply.
12. Administrative law is about the process of reaching the decision concerning
the issues. It is not about the correctness of reaching a particular decision.
Complaints in administrative law are about how a decision was reached and
not about whether a decision was correct or wrong.
In short administrative law aims at the following:
 Ensuring that public authorities exercise fairness in decision making
 Public authorities do justice to all
 Public authority follows established procedures
 Ensuring that official authorities are accountable that is; through elections,
disciplinary processes legal suits, inspectorate of government, criminal
proceedings and judicial review.
These objectives are summarized in Article 42 of the Constitution of Uganda which
says that “Any person appearing before any administrative official or body has a
right to be treated justly and fairly and shall have a right to apply to a court of law in
respect of any administrative decision taken against him or her”.
In other words, administrative law concerns itself with,
- Illegality
- Procedural impropriety
- Irrationality
- Denial of natural justice

Note

Administrative law is a very pertinent subject in the contemporary world. Its purpose
is very rich and relevant in ensuring accountability, transparency and good
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governance. Control mechanisms on actions of administrative officers is the back-
borne of good governance and Rule of Law generally. It is critical that all
administrative officers get acquainted about administrative law and its operations.

TOPIC

SOURCES OF ADMINISTRATIVE POWER

Administrative authority must derive from an existing law for it to be valid. In Uganda
the exercise of power of administrative offices derives from the constitution. The
constitution is the supreme law of the land as provided for under Article 2. The
sources of public power are the constitution, the various acts of parliament and
official discretion permitted by law.

THE CONSTITUTION
The constitution establishes the principle organs of government and prescribes the
powers of each organ. Other than the 3 arms of government, the constitution also
creates the public service commission, the human rights commission, the
inspectorate of government, the president, the vice president, the cabinet, etc.
These organs must exercise their functions in accordance with the constitution. Any
act outside the constitution is ultra-Vires and void.

PRINCIPAL LEGISLATION
Article 79 (2) of the constitution, no person or body other than parliament shall have
power to make provisions having the force of law in Uganda except under authority
conferred by an Act of Parliament. Written law comprises of acts of parliament and
subsidiary legislation made with authority of parliament.

THE ACTS OF PARLIAMENT

This lays down the procedure the parliament follows to make law. It provides for the
various stages and actions taken during legislation. It provides inter alia, for readings
of a bill, publication of a bill, assent to the bill, and passing of the Act and
commencement of the Act.

THE INTERPRETATION ACT

This provides for interpretation of statutes and statutory instruments. It is meant to
bridge interpretation gaps where the relevant law does not provide the meaning or

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scope of certain words or provisions. It gives definitions which apply to all statutes
unless the contrary be shown. It also provides provisions relating to passing of
statutory instruments such instruments such as the requirement for publication.

Presumptions
There are general presumptions relevant to laws passed by parliament. These
include:
a) That parliament does not intend to exclude judicial review of the legality of
action taken by administrative agencies under statutory power.
b) That parliament does not intend to confer unreviewable wide discretionary
powers on the executive
c) That parliament does not intend to exclude the rules of natural justice in
respect of the exercise of statutory powers
d) That parliament does not intend that statutory powers operate retrospectively
e) That parliament does not intend that a provision should be interpreted to
impose a tax or a charge unless that intention is clear. This presumption is
particularly important in connection with powers of subordinate law making
authorities.
f) That parliament does not intend that a statute only binds a state if done
following a proper/prescribed procedure

In Kanji v Tanga Township Authority

The Governor made orders under the Township Ordinance to the effect that „no one
shall dispose, throw, litter in a public place…if any rubbish is found near anybody‟s
house, he shall be deemed to have thrown it there. The regulation was challenged
on the ground that it discarded the presumption of innocence. The court held that
any legislation that discards general legal presumptions is ultra-Vires.

RELEVANCY OF ADMINISTRATIVE LAW TO CONSTITUTIONAL DEVELOPMENT

1. The practice of administrative law is closely linked to the constitutional

principles. Most of the principles in administrative law have a closer linkage to
constitutional law. But it is generally agreed that a good constitutional
framework can lead to less disputes involving public officials.

2. The areas of relevance to constitutional law include: Administrative law is

concerned with public officials/public institutions. These are established by
the constitution and their powers are derived from the constitution. It is
therefore relevant to link the operation of offices to the constitution.

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3. Public officials and institutions exercise powers on behalf of the state which
derives power from the constitution thus public officials are connected to the
constitution.

4. Good public administration is a reflection of observance of the constitution

because it reflects proper use of powers and accountability.

TOPIC

CONCEPTUAL OBJECTIONS

AGAINST THE GROWTH OF ADMINISTRATIVE LAW

These are
1. The Rule of law
2. Separation of powers

GENERAL PRINCIPLES OF THE RULE OF LAW

The term “rule of law” is derived from the French phrase “la principe de legalite” (the
principle of legality) which refers to a government based on principles of law and
not of men. The principle is opposed to arbitrary powers.

In Som Raj v State of Haryana (1990) 2 SCC 653, the Supreme Court rightly observed
that the absence of arbitrary power is the first postulate of rule of law upon which
whole constitutional edifice (structure) is based. If the discretion is exercised without
any principle or without any rule, it is a situation amounting to the antithesis (direct
opposite) of rule of law.

Edward Coke is said to be the originator of the concept of rule of law when he said
that the King must be under God and Law and thus vindicated (justified) the
supremacy of law over the pretensions of the executives.

The concept has provided that the holders of public powers must be able to justify
publically that the exercise of power is legally valid and just. It therefore means that
the law rules. The concept was further developed by professor Dicey pointing out
that wherever there is discretion by any individual, it is most likely to develop
arbitrariness.

He notes that rule of law basically meant two fundamental things;

a. That government must be one of laws and not of men, i.e. that the law or
power and authority of the law is superior to any one individual or
collective.
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b. That the operation of law must be carried out within well established and
non-discretionary parameters.

Dicey was heavily influenced by the natural law. Again, he was influenced by the
movement from an absolute monarch which was above the law, arbitrary and
subjective. In summing up, Dicey said that the rule of law constitutes of three things;

a. Supremacy of law verses the absolute exercise of power i.e., recognition of a

cardinal principle of democratic governments as opposed to arbitrary and
autocratic governments which lays down that no functionary of the
government should have wide arbitrary or discretionary powers to interfere
with the liberty and freedom of the people.

b. Rule of law means the equality of all citizens before the law. That there must
be democratic principle of equal subjection of all persons to the ordinary law
of the land as administered by the ordinary courts i.e., every person stands in
an equal position before the law.

c. There should not be discrimination in the application of the law to different

persons.

However, Dicey misconceived the administrative law because he thought that the
French system is administrative law, when administrative law is more than that. He
was concerned not with the whole body of law relating to administration but with a
single aspect of it, i.e., administrative adjudication.

In the opinion of the majority judges in Kesavananda Bharati v State of Kerala (1973)
4 SCC 225, it was observed that rule of law is an “aspect of the doctrine of basic
structures of the constitution, which even the plenary power of parliament cannot
reach to amend”.

In P. Sambamurthy v State of A.P (1987) 1 SCC 362, the Supreme Court held that it is
a basic principle of rule of law that the exercise of power by the executive or by any
other authority must not only be conditioned by the constitution but also be in
accordance with law and the power of judicial review is to ensure that law is
observed and there is compliance with the requirement of law on the part of the
executive and other authorities.

By powers not being exercised arbitrary by the government, it means that it should
be exercised for the purpose for which it has been conferred. It also means that
power should be exercised within the statutory ambit and purported exercise of it
would not just be ultra vires, but also arbitrary.

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Under rule of law, it is provided that the rules of natural justice have to be followed
not only in quasi-judicial action but also in administrative action. The rule of law
notion has been in addition consistently extended to include individual fair dealing
by the state in its economic activities.

In summary, rule of law includes the following:

i. That there must be some minimum capacity for judicial review
of administrative action
ii. The courts may not grant the executive dispensation from the
criminal law
iii. That there must be separation between executive and judicial
functions
iv. That judicial decisions are to be made according to legal
standards rather than undirected considerations of fairness
v. That citizens have a right to privileged communications with
legal advisers
vi. That the content of the law should be accessible to the public
vii. That access to the courts should be available to citizens who
seek to prevent the law from being ignored or violated, subject
to reasonable requirements as to standing
viii. That courts have a duty to exercise a jurisdiction which is
regularly invoked
ix. That citizens are equal before the law; and
x. That the criminal law should operate uniformly in circumstances
which are not materially different.

In 1957, the University of Chicago held a conference on the rule of law as

understood in the western world and concluded that rule of law includes;

1. That you must have a strong government and the strength that is
implied in this term is an effective government. Effective government
basically means that you have a government that can impose law
and order and to extract minimum levels of obedience from all the
people of the country. It means that the citizens and other people of
the country are able to pursue their social, economic and other
interests without limits, i.e., you must not have a collapsed state, for
instance Somalia.

2. That the rule of law also means government according to the law, i.e.,
every governmental action whether by executive, legislative or
judicially must be supported by a legal instrument. No government
official or entity is permitted to operate without sanction of the law. The
effect of this is to place the law above government. It means that the
government becomes a trustee to the benefit of the public and it

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means that the government must operate in all respects for the benefit
of the public.

3. That the rule of law means equality of all before the law. Therefore, all
citizens irrespective of their standing are equal before the law and the
law must be equally and substantively applied to all.

4. There must be independence of the judiciary.

Judicial review of administrative action is a familiar example of the application of

the rule of law. Whether, in a given case, its basis is constitutional such as Article 42,
or statutory as in proceedings under the Judicature Act (Judicial Review) or the
common administrator amenable to such an order, the essence of what is involved
is to compel those invested with governmental power to exercise such power
according to law.

Where what is in question is a decision of an administrative tribunal or a court of

limited jurisdiction, the distinction between jurisdictional and non-jurisdictional error
remains significant although its practical content may depend upon the nature of
the decision-making body. It is for the parliament, in the exercise of its legislative
power, to enact the law to which such officers must conform, but the parliament‟s
legislative power is limited by the constitution itself.

The importance of the rule of law lies partly in the power it denies to people and to
governments, and in the discipline to which it subjects all authority. That denial and
discipline are conditions of the exercise of power, which in a democracy, comes
from the community which all government serves.

The Rule of Law under Amin’s regime

This period experienced a systematic decline in the rule of law and respect for
human rights. Amin‟s reign was characterized by the passing of decrees and legal
notices whose effect was to oust the jurisdiction of the various courts and to diminish
the rights of the individuals. Decrees are laws promulgated by the military Head of
State, Head of Government and Commander in chief of the Armed Forces.

Amin set the foundation for the violation of human rights and the rules of law
generally by the passing of legal Notice No.1 of 1971. It provided for the suspension
of some sections of the 1967 constitution and Articles 1, 3 and 63 meaning the
constitution was no longer supreme law and all such powers had transferred to the
President, Amin.

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In Uganda v Alfred Kisubi (1975) HCB 173, the issue was whether the D.P.P under
Article 71(2) of the constitution could have the order of for costs squatted in view of
the provisions of Articles 1 (2). It was held that by virtue of Legal Notice No.1 of 1971,
Article 1 (2) of the constitution was subject to any decree. The provisions of the
decree prevailed in case of any inconsistency between the provisions of the decree
and provisions of the constitution. This set ground for the manipulation of the law by
Amin to suit his motives. It led to the exploitation of people by those in authority.

The constitution (modification) decree of 1971 further consolidated Amin‟s position

as President. It also laid a foundation of a dictatorial government run by mercenaries
who oppressed and killed people. The passing of the Detention (prescription of Time
Limit) decree in 1971 which gave powers to the Minister of Internal Affairs to appoint
committees to review ones of detains and to provide for the limited detention of
persons arrested during and after military operations.

THE DOCTRINE OF SEPARATION OF POWERS

Separation of powers refers to the doctrine and practice of dividing the powers of a
government among different branches to guard against abuse of authority. The
doctrine emerged out of what were considered to be the major limitations of
absolute government.

Though the doctrine is traceable to Aristotle, the writings of Locke and Montesquieu
gave it a base on which modern attempts to distinguish between the executive,
legislative and judicially power is grounded.

So unsurprisingly, it was French scholars and philosophers who championed the

philosophy, Montesquieu in his book “spirit of the law” 1748. Montesquieu asked
himself how best an individual could be protected from the tyranny of government
and according to him that could only be achieved if you had a division of power
and in his view, governmental power was made of three component parts, i.e., the
executive, the legislature and the judiciary.

Locke & Montesquieu derived the contents of this doctrine from the developments
in the British constitutional history of the early 18th century. Montesquieu assumed
that tyrannical rules come about when these three powers are with one individual.
So, to eliminate tyranny, there was a need for their separation. And in his view,
separation of powers essentially meant three basic things;

1) That the three organs of government should be operated by different

people or personnel and in addition, no one individual should belong to
more than one organ. He should not have duplication.

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2) No one organ of the government should interfere with any other organ of
government, i.e., independence of each organ. This means that no control
or direction should be organized by one organ or the other. As the
executive carries out its functions, it should be free to do so.
3) No one organ of the state should exercise the functions & power of the
other.

The example that is so more cited for the separation of powers is that one provided
by the US constitution where all executive powers based in the president and his/her
cabinet. All powers of legislation vest with the congress. Judicial power based with
the courts, i.e., both federal courts and state courts.

In addition, it separates the personalities of the people. Members of the US cabinet

are not members of the congress. There are also separate legislative functions
performed primarily by the House of Representatives.

However, the executive has an oral sight function and that is exercised through the
mechanism of presidential assent (agree) and that is supposed to operate as a
check and in addition, there is the judicial power to oversee legislation which may
be deemed unconstitutional and, in this way, the judiciary operates to balance the
other two organs of the government.
The main objective of the doctrine of separation of power is to check on tyranny,
but also has additional advantages;

1) It encourages specialization; it encourages specialized individuals able and

competent to deal with a particular aspect of operation of government. So,
there is a degree of professionalism which fosters efficiency.
2) The argument has also been made, that the separation of power creates and
spreads opportunities among various people.

Proponents of separation of powers believe that it protects liberty and democracy,

avoiding tyranny. Opponents of separation of powers question whether it indeed
does protect liberty, pointing out that it may slow down the process of governing
(through gridlock and other means), promote excesses executive power and
unaccountability and tend to marginalize the legislature.

The legislative is supposed to be the ultimate representative of the people and

because of that power of representation. Where the executive formulates policies
that are detrimental to the welfare of their constituents, then parliament should
intervene and seek to check the executive excesses. Parliament can do this by
sanctioning the executive or cautioning individual members of the executive or
calling for the removal or censure of individual members of the executive or through
a vote of no confidence in the executive.

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Parliamentary oversight of the executive should operate as a matter of force and
parliament should ensure that when the executive is not operating in the interests of
the people. It should then block such interests.

The other organ of the state is the court which has the primary duty to uphold the
constitution and also to be the chief arbitrator over all disputes that may take place,
in exercising this power the court will inevitably intervene in the operation of other
states. Indeed, there may be some conflicts engendered by that interference so
there is a constant conflict between the judicially and other organs of the state all
over the world. But it is the obligation of the courts of law to ensure that legislative
active or executive excess is checked and balance between the fact that the rights
of individual citizens have to be protected from abuse and arbitrary action.

Some people have argued that it is necessary to have cabinet members in the
legislative in order for executive members to be in touch with the needs and interests
of the people and when they are separated from parliament, they are alienated.
Furthermore, it is necessary for the members of the executive to be present in
parliament in order to better explain to the representatives of people, the policies of
government.

There are some instances in which legislative powers should be exercised by the
executive. Indeed, under most legislation passed; ministers are given residuary
powers. A lot of these powers are exercisable by executive members. It may also be
necessary for the executive to exercise legislative powers where there is an
emergency and it may not be possible to convene the legislature but it is always
good practice that as soon as possible, these emergency powers should be brought
back to parliament for ratification.

All in all, the separation of powers is not a pure doctrine and most countries to day
have adopted the system of checks and balances instead.

The manner in which the 1995 constitution addresses the doctrine of separation of
powers or in which way does separation of powers manifest itself in the 1995
constitution?

The 1995 constitution basically enshrines/follows the classical formulation of

separation of powers. By classical, this means that there exists the basic separation
between the three organs of government, i.e., the executive, legislative and the
judicially. And at the same time, the 1995 constitution suffers from an identity with
the constitution between the presidential and parliamentary system of government,
for example, our constitution which separates the presidency from the election of
parliament unlike the UK, in which the formation of the executive is completely
dependent on how parliament is constituted.

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The legislative branch has the power to make laws-for example, the declaration of
what acts are to be regarded as criminal. The executive branch has the authority to
administer the law-primarily by bringing lawbreakers to trial and to appoint officials
and oversee the administration of government responsibilities. The judicial branch
has the power to try cases brought to court and to interpret the meaning of laws
under which the trials are conducted. The division of powers prevents one branch of
government from dominating the others or dictating the laws to the public.

There is no such thing like absolute separation of power. At least not in the way
Montesquieu designed it. But over the years, what has emerged to replace the
doctrine is the doctrine of checks and balances and that doctrine says that there
are three distinct organs of state with three distinct functions/powers, but that each
of those organs should operate in such a way as to check and counter balance the
power of the other and especially to intervene, to ensure that tyrannical rule is not
restored.

In Indira v Raj 1975 Supp SCC 1, 260, Chandrachud J. observed that the “… political
usefulness of the doctrine of separation of powers is now widely recognized…” No
constitution can survive without a conscious adherence to its fine checks and
balances.

The 1995 constitution apart from recognizing the doctrine of separation of powers,
the constitutional scheme does not embody any formalistic and dogmatic division
of powers. This is also in line with the Indian constitution. In Ram Jawaya Kapur v State
of Punjab AIR 1955 SC 549, the Supreme Court of India held that the Indian
constitution did not indeed recognize the doctrine of separation of powers in its
absolute rigidity but the functions of the different parts or branches of the
government had been differentiated

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TOPIC

ADMINISTRATIVE PROCEDURE AND NATURAL JUSTICE

What is Administrative Procedure?

Administrative procedures are certain steps that administrative agencies should take
to perform their administrative duties. This includes external steps that an
administrative agency should take, in advance, with the other party or other
interested parties, when issuing a disposition, report, administrative legislation notice,
or an administrative direction. Administrative procedures are necessary to
accomplish administrative purposes smoothly and to protect citizen rights by
ensuring administrative fairness, transparency, and trustworthiness by allowing
citizens to participate in the administrative process. The administrative agencies and
concerned parties are the persons subject to administrative procedures.

Over the years, the courts have built up detailed rules of what is required of decision
makers procedurally in different circumstances to ensure that a given decision
Complies with the requirements of fairness. Thus, different decision and decision
makers will need to comply with different standards of procedural propriety.

These requirements of procedural fairness are what traditionally has been referred to
as the rules of natural justice. Indeed these rules of natural justice is said to be
founded on both divine and an eternal law- that even God did not pass judgment
on Adam until Adam had had the opportunity of making his defence. Over the
years these rule of natural justice became more generally known as the principles of
fair hearing and are classified into two broad head namely;

1) The principles of Nemo judex in causa sua.

2) The principles of Audi alterem partem.

In the Constitution of the Republic of Uganda, the principle of fair hearing is one of
cardinal tenets of the fundamental human rights as provided for under chapter iv of
the constitution(Article 44(c)thereof).

NATURAL JUSTICE

Administrative law developed to play 2 major roles in public administration.

1. To promote efficiency in administration.

2. To promote the rights of individuals in society by checking the abuse of
power.

It is therefore important that in running public affairs efficiently, public authorities

should have due regard to individual rights. Administrative law has therefore

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developed a number of safeguards against the possible abuse of power. An
individual who is aggrieved or likely to be detrimentally affected by an
administration action may obtain redress for his / her grievance and forestall any
injustice likely to be done using various methods provided under the law.

Brief background

Natural justice is a legal philosophy used in some jurisdictions in the determination of

just, or fair, processes in legal proceedings. It is sometimes taken as a process of
rational logical deduction. The concept is very closely related to the principle of
natural law (Latin expression of jus naturale) which has been applied as a
philosophical and practical principle in the law in several common law jurisdictions,
particularly the UK and Australia. According to Roman law certain basic legal
principles are required by nature, or so obvious that they should be applied
universally without needing to be enacted into law by a legislator. The rules or
principles of natural justice are now regularly applied by the courts in both common
law and Roman law jurisdictions. Natural justice operates on the principles that man
is basically good, that a person of good intent should not be harmed, and one
should treat others as one would like to be treated.

Definition and principles

Natural justice may be simply defined as the natural sense of what is right and
wrong. It has also been referred to as fair play in action. It has been recognized
since time immemorial that delegation of functions is accompanied with designed
procedures to reconcile administration needs with safeguards for the individuals; this
entails among others principles of natural justice.

In Local Government Board Vs Arlidge [1915] AC 120, House of Lords held that the
common law rules of natural justice required little more from a department than the
carrying out in good faith of its usual procedures. The brief facts of this case were
that a Hampstead council had made a closing order in respect of a house which
appeared unfit for human habitation. The owner appealed to the local government
board as prescribed by the housing and town planning Act. A public inquiry was
held which confirmed the closing order. Arlidge applied to court contending that
the decision was invalid because the board did not disclose which official actually
decided the appeal. That Arlidge had not been heard orally by that official and
had not seen a report of the inspector who conducted the inquiry. While rejecting
the contention, the House of Lord held that parliament having entrusted judicial
duties to the executive body, must be taken to have intended to follow the
procedure which was its own and was necessary if it was capable of doing its work
efficiently. So long as the officials dealt with the question referred to them without
bias and gave parties adequate opportunity of presenting the case, the board
could follow its own established procedures even though there not of court of law.

The right to a hearing in accordance with the rules of natural justice may be

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expressly provided for or the courts may imply such an obligation exists under
common law. There are essentially two sections to the rules of natural justice; the first
being derived from the Latin maximum "audi alteram partem" (let the other side be
heard). This is the duty to allow persons affected by a decision to have a reasonable
opportunity of presenting their case. The essence of this principle is that in certain
contexts, prior to a decision being taken in the exercise of statutory power which
may adversely affect the interests of individuals, those individuals should be alerted
to the fact of, and the reasons for, the impending decision or action, and be
permitted reasonable opportunity to make representations.

The second part of the rules of natural justice is derived from the Latin maxim "nemo
judex in causa sua" (no one can be the judge in his own cause). The essence of this
principle is to disqualify persons having an interest in a matter over which they are
presiding, or in respect of which there may be an appearance of bias, from taking
certain types of decisions, thus rendering void such any decision taken in breach of
the principle of natural justice. This gives rise to a duty to act fairly, to listen to
arguments, and to reach a decision in a manner that is untainted by bias.

According to A. de Smith in his book Judicial Review of Administrative Action,

"...The governing principle ought to be that authorities

empowered to make decisions that are seriously detrimental to
the liberty, proprietary rights, livelihood, status or reputation of
individuals should be required to give prior notice and
opportunity to be heard to those who are directly affected,
except where the imposition of such duties would be
impracticable or manifestly contrary to the public interest or
Parliamentary intent..."1

1 The basic principles entailed in natural justice may be summarised as including the
following;
a). Individuals should be provided notice, in sufficient detail, as to the scope of the hearing
and the allegations against such individual and/or any negative information to fairly enable
the individual to show any error that may exist;
b). The hearing should be held within a reasonable time after the notice has been provided;
c). The information should have an opportunity to be heard and reply to the allegations
and/or negative information;
d.) The individual should be entitled to question witnesses, especially those giving evidence
against the individual;
e). The individual should be entitled to call witnesses;
f). The individual should be entitled to request an adjournment or postponement for a
reasonable period of time, especially if the individual or one of the individual's witnesses has
a legitimate inability to attend;
g). The persons hearing the matter should be possessed of a reasonable level of expertise
relative to the matters being dealt with. In a University setting, this would mean that faculty,
staff and students would constitute the Hearing Committees, as appropriate, and would
possess sufficient knowledge of University issues to bring to the tribunal the necessary
expertise:
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It should be noted that the principle of natural justice has been embedded in the
1995 Constitution of the Republic of Uganda and its one of the non derogable rights.

Art. 42 of the 1995 Constitution provides that any person appearing before any as
administrative official or body has a right to be treated justly and fairly and shall
have a right to apply to a court of law in respect of any administrative decision
taken against him / her. This is fortified by Art 28 of the 1995 constitution, which
provides for a right to a fair hearing. It provides that in the determination of civil rights
and any obligation, or in criminal matter a person shall be given a fair, speedy and
fair hearing before an independent tribunal established by law. Accordingly, Article
44 of the Constitution provides inter alia that notwithstanding anything in the
Constitution, there shall be no derogation from the enjoyment of the right to fair
hearing. The duty to act fairly represents the standard of procedural administrative
justice with which they will require compliance. In the words of Megarry V-C in
McInnes V Onslow Fane [1978] 3 ALLER 211 at 219,

„…if one accepts that „natural justice‟ is a flexible term which

imposes different requirements in different cases, it is capable of
applying to the whole range of situations indicated by the terms
such as „judicial‟, „quasi-judicial‟ and administrative.‟

As a result, judicial review may be instituted on grounds of denial of natural justice

and in such cases the court will mainly get concerned with the procedure by which
the administration authority reached a particular decision. The principles / rules of
natural justice have their origin in common law but they have also been codified
under various statutes.

Judicial review refers to the power of the High court to exercise control and
supervision over the legislative, executive and judicial powers of administrative
bodies, by review it is means the re-consideration of the action or decision of the
authority with a view to determining whether it acted in accordance with the law

h). The Committee hearing the matter has a duty to approach the hearing with an open
mind, listen fairly to both sides, and to reach a decision untainted by bias;
i). Members of the hearing panel should ensure that grounds for setting aside the hearing on
a reasonable apprehension of bias do not exist, and they, therefore, should absent
themselves if there is a special relationship or association with the individual appearing
before the hearing;
J). A record of the proceedings of the hearing should be kept;
k). The individual should be provided with a copy of the record or at least a summary of the
evidence of the proceedings;
l). The individual should be provided with a copy of the hearing committee's decision or
recommendations, together with the reasons;
m). In cases concerning discipline, where a decision is made and the consequences of the
finding may have serious consequence on an individual's future, consideration should be
given to permitting the individual to make submissions as to the penalty;
n). Depending on the seriousness of the allegations and the consequences of a negative
decision and the complexity of the issues involved, the individual may be entitled to
representation or legal counsel, but there is no absolute right to such counsel. NB. These are
general guidelines and not law as such.
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and whether it acted in accordance with the people's natural justice. The court will
be concerned with whether the authority acted in accordance with provisions of
the law under which it purported to have acted or whether or not it was biased or
whether the authority gave the aggrieved party the opportunity to present its side of
the case. In this regard, the remedies the court can grant are;

a) Certiorari

b) Mandamus

c) Prohibitions

Certiorari issues to quash the decision of the authority. Mandamus issues to

command the authority reconsider the matter all over again in accordance with the
law. Prohibition issues to command the authority not to proceed further in acting
illegally. The court can also make orders declaratory of the rights of the parties and
whether the authority has acted illegally.

In Chief Constable of the North Wales Police V Evans [1982] 1 WLR 1155 HL, Lord
Hailsham stated that the remedy of judicial review is intended to protect the
individual against the abuse of power by a wide range of authorities, judicial, quasi-
judicial, and administrative powers. That it is not intended to take away from those
authorities the powers properly vested in them by law and to substitute the courts as
the bodies making the decisions. It is intended to see that the relevant authorities
use their powers in a proper manner. That the purpose of the remedies is to ensure
that the individual is given fair treatment by the authority to which he has been
subjected. That the function of court is to see the lawful authority is not abused by
unfair treatment and not to attempt itself the task entrusted to that authority by law.

THE RIGHT TO NATURAL JUSTICE ANALYSED

A fair hearing

The principle of natural justice is expressed in Latin as “audi alteram partem” which is
translated as “hear the other side." Elaborate rules have been laid down to ensure
that a party to any proceedings can be heard. In Grimshaw V Dunbar 1 Q.B 408 at
416, Jenkins L.J said, „„…a party to an action is prima facie entitled to have it heard
in his presence; he is entitled to dispute his opponent‟s case and cross-examine his
opponent‟s witnesses and his own evidence before court. …that a litigant who is by
mischance or accidentally absent the common justice demands that he/she should
be allowed to come to the court and present his case.‟‟ Generally it means that
nobody shall be penalized by a decision of an administrative authority or tribunal
unless he / she has been given fair opportunity to answer the case against him / her
and to put his / her own case.

In Annebrit Aslund Vs Attorney General HC Miscellaneous cause No. 441 of 2004, the
applicant who was an employee of URA appeared and testified before the

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commission of inquiry into allegations of corruption in U.R.A over which lady justice
sebutinde had made a report and submitted to the Minister of finance and
economic development. The application for judicial review was brought under
section 3 of the Judicature (Amendment) Act No. 3 of 2003. The applicant claimed
that the lady justice made baseless, biased and false findings that the applicant was
incompetent to head a big financial institution like U.R.A and prayed court to grant
a declaration that the sebutinde report is a nullity, an order of certiorari removing
the report into the High court in order to quash it and expunge it from archives of
public records and an injunction prohibiting any officer from taking action based on
the report. At the hearing three points were raised by counsel for the respondents,
that the High court was not clothed with jurisdiction to grant the orders sought, that
the application was misconceived for want of locus. The court held as follows,

1. That in this case the very fact that the commission of inquiry Act, Cap 166
states that in a few instances, summoning witnesses, the commission was to
exercise the powers of the High Court, shows that in other aspects the
Commission could not be equated to the High Court even when presided
over by a High court judge. A tribunal appointed under the commission of
inquiry Act, is an inferior Court within the meaning of rule 1 (2) Order XLII A of
the Civil Procedure Rules and subject to the control of the High court through
such writs as mandamus, certiorari and prohibition.

2. Held that a cause of action is the fact or combination of facts that give rise to
the right of action. The operational words of section 3 of the Judicature
(Amendment) Act No. 3 of 2003 are „any proceedings or matter‟ which terms
are wide enough to include proceedings and report of the commission of
inquiry. They do not restrict the cause of action to a final enforceable
decision, therefore a remedy for judicial review is concerned not with the
decision of which review is sought but with the decision-making process. In
this case, the application does not confine itself to the relief of certiorari but
also seeks a declaration and an injunction.

3. Held that locus standi refers to the right to be heard in court or other
proceedings. The applicant was granted leave to apply for review. Under
Order XLIIA of the Civil Procedure Rules, the court is not to grant leave unless it
considers that the applicant has sufficient interest in the matter to which the
application relates.

4. Held that in the instant case there had been breach of the rules of Natural
justice and procedure.

Further, in Ridge Vs Baldwin (1964) AC 40 the plaintiff had (chief constable of

Brithom) had been prosecuted and acquitted on charges of conspiracy to obstruct
the course of justice. The Brithom watch committee which was responsible for
enforcing discipline in the police force purported to dismissed the plaintiff from his
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post, without giving him any prior notice or hearing and applied to court contending
that his dismissal was invalid. Court held that the decision was void due to breach of
the principles of natural justice. Lord Reid stated that

„…the principle of audi alteram partem goes back many

centuries in our law…an officer cannot lawfully be dismissed
without first telling him what is alleged against him and hearing
his defense or explanation.‟

NB: Importance of the above case

i. The significance of Ridge V Baldwin is that it helped to free both the

substantive rules of natural justice from strict limitations which had been
imposed in earlier decisions, in particular from the requirement that the
decision-making body must be under a duty to act judicially and also the
remedy of certiorari. The decision in the case may be compared with that
in Nakkuda Ali V Jayaratne [1951] AC 66 (in this case the privy council had
held that the controller of textiles in Ceylon had no duty to act judicially in
exercising his power to revoke licences to deal in textiles, this was because
at that time, certiorari could only lie against agencies which were under a
duty to act judicially), which was disapproved in Ridge V Baldwin. The
House of Lords made it clear that this duty to „act judicially‟ arose directly
from the power of an agency to „determine questions affecting the rights
of subjects‟, i.e., the potential effect of the exercise of the power on the
citizen‟s interests, generates both audi alteram partem obligation and also
the applicability of certiorari.

ii. The application of the rules of natural justice to cases involving dismissal
from employment has been extended since Ridge V Baldwin and has now
become a rule of general application.

iii. The requirements of a fair hearing depend on all circumstances. They

include; a right to notice, but restrictions may be placed where public
interest so requires, the right to legal representation or make
representations, whether in writing or orally and where an oral hearing is
held, the right to comment on any evidence presented, where evidence
is given orally by witnesses, the right to put questions to those witnesses.

In Cooper Vs the Wandsworth port of works (1863), the port of Worth demolished the
plaintiff's house without giving him prior notice or an opportunity to make
representations on his own behalf. The plaintiff's action succeeded and he obtained
damages for trespass. The court emphasized that even where the statute
applicable, doesn't specifically provide for notice or for an opportunity to be heard
a public authority is under a duty to apply the rule of natural justice.

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Contents of a right to a fair hearing

1. Notice must be given in adequate terms so that the prospective victim knows
the essence of the case he has to meet and can prepare his answer properly.

Prior to hearing the individual, the public official concerned, must give such
individual sufficient notice of the hearing. Sufficient notice requires that the
individual be informed of the hearing while in advance in order to enable him or her
to prepare the case. The notice must also be communicated in a manner that is
reasonably likely to bring it to the attention of the individual. In other words, the
means of communication must be fairly conspicuous.

In Desouza Vs Tanga Town council, court held that notice should include the
substance of the allegations of the charge and it must specify the time and place
where the hearing is to take place.

2. The parties must be given the opportunity to adequately present their case.
This includes the right to have the matter adjourned if injustice would
otherwise.

In Kanda Vs Government of Malaysia, Lord Denning stated “if the right to be heard is
to be real, it must carry with it a right in the accused man to know the case which is
made against him. He must know what evidence has been given and what
statements have been made affecting him and then he must be given a fair
opportunity to correct or contradict them." See also In Re M an infant (1968) I WLR I
1897.

3. The administrative authority has a duty to afford an oral hearing but, in some
cases, representations may be made in writing.

There is no general rule requiring that the right to be heard must take the form of a
hearing. In the absence of statutory requirements therefore, the courts will leave the
matter of an oral hearing to the discretion of the public official or authority. Such
discretion however may be over ridden by the circumstances of the case. If for
instance the public official cannot demonstrate that an oral hearing will be
inconvenient on the official or that it will be costly, then the courts may require that
such oral hearing be accorded.

In Chief Constable of the North Wales Police V Evans [1982] 1 WLR 1155 HL, the Chief
constable of North Wales decided that Evans, a probationer constable in the force,
should be required to resign or, if he refused, be discharged from the force. Evans
resigned but subsequently challenged the decision on the ground that it was taken
in breach of natural justice because he was not given an opportunity to offer any
explanation. The House of Lords agreed with the decision of Court of Appeal that
there had been a breach of natural justice, but in the light of comments made in
the Court of Appeal, felt it necessary to make some comments on the scope of
judicial review.
Page 25 of 143
R Vs Local Government Board Exparte Arlidge (1914) I KB 160

R Vs Immigration tribunal Exparte Mehmed (1977) I WLR 795

4. It also includes allowing all witnesses to be called to their respective parties

and giving each party to cross examine each party's witness. In Ceylon
University Vs Fernando (1960) I WLR 223, Supreme Court held that failure to
afford audience or allow witnesses to be questioned / cross examined
breached the principles of natural justice and therefore the report of the
chancellor was null and void.

In Dent V Kiambu Liquor licensing Court [1968] EA 80, while noting that licensing
courts were not mere executive bodies buts courts from which an appeal would lie
to the High Court and must be conducted in a manner appropriate to judicial
tribunals, held that this requires that there is a requirement of production of proof of
any matter referred to in evidence on oath or affirmation upon which the opposing
party may put questions in cross-examination.

In R V Board of Visitors of Hull Prison, exparte St Germain [1979] 1 WLR 1401, in this
case, following a riot in Hull prison in 1976, numerous charges of breaches of the
prison rules were heard by the prison‟s board of visitors. During the hearing reference
was made to a number of statements by prison officers, who were not available to
give evidence, to support the evidence given by a witness. Seven of the prisoners
who were found guilty of the offences against prison discipline sought an order of
certiorari on grounds that the proceedings before the board of visitors breached the
rules of natural justice, to wit, that hearsay evidence was taken into account. While
acknowledging that it is common ground that the board of visitors should base its
decisions on evidence, the issue that arose was such evidence was restricted to that
which was admissible in a criminal court of law? Geoffrey Lane LJ held that there
was no restriction.

(This view was also expressed by the Privy Council in Ceylon University V Fernando
[1960] 1WLR 223 at 234). The lord justice stated that, it is the entitlement of the board
to admit hearsay evidence is subject to the overriding obligation to provide the
accused with a fair hearing. That depending upon the particular facts of a case and
the nature of the hearsay evidence provided to the board, the obligation to give
the accused a fair chance to exculpate himself, or a fair opportunity to controvert
the charge or a proper or full opportunity of presenting his case and may oblige the
board not only to inform the accused of the hearsay evidence but also to give the
accused a sufficient opportunity to deal with that evidence. Further, that depending
on the nature of the evidence and the particular circumstances of the case, a
sufficient opportunity to deal with the hearsay evidence may well involve cross-
examination of the witnesses whose evidence is initially before the board in the form
of hearsay. Accordingly, court quashed the findings of guilt based on hearsay
evidence by the order of certiorari.

Page 26 of 143
5. Means that all relevant information from whatever source it may come should
be disclosed to a person who may be prejudiced by its concealment.
However, does the kind of evidence admissible have any limits?

In R Vs Deputy industrial injuries commissioner Exparte Moore (1965) I QB 456, at 488

Diplock LJ stated that, „technical rules of evidence, however, form no part of the
rules of natural justice. The requirement that a person exercising quasi-judicial
functions must base his decision on evidence means no more than it must be based
upon material which tends logically to show the likelihood or unlikelihood of the
occurrence of some future event the occurrence of which would be relevant. It
means that he must not spin a coin or consult an astrologer, but he may take into
account any material which, as a matter of reason, has some probative value in the
sense mentioned above, the weight to be attached to it is a matter for the person to
whom parliament has entrusted responsibility of deciding the issue.

6. Right to legal representation

In Enderby Town Football Club Ltd Vs, The Football Association Ltd (1970) 3 WLR 1021,
Court held that denial of legal representation is not necessarily breach of natural
justice. Lord Denning MR. at 607 stated thus, „Seeing that courts can inquire into the
validity of the rule, the question is; is it lawful for the body to stipulate in its rules that
its domestic tribunal shall not permit legal representation? Such a stipulation is, I
think, clearly valid so long as it is construed as directory and not imperative: for that
leaves it open to the tribunal to permit legal representation in an exceptional case
when the justice of the case so requires. But I have some doubt whether it is
legitimate to make a rule which is so imperative in its terms as to exclude legal
representation altogether, without giving the tribunal discretion to admit it, even
when the justice of the case so requires.‟

Regarding the legal representation the reviewing court will normally establish
procedure, the practice adopted by the tribunal or authority whose decision is
reviewed. Thus, where it has been allowing legal representation, it should do so for
everybody but where it has not been doing so, the denial won't amount to breach
of natural justice.

7. Although not established by any legal authority, it has been recommended

that a right to a fair hearing includes disclosure of the relevant information to
the party that would be affected by the decision. (Per Wade; 6th edition;
pages 547-50).

In Ridge Vs Baldwin, Lord Reid stated that before attempting to reach any decision,
they should inform the person of the grounds upon which they propose to act and
give him an opportunity of being heard in his own defense.

In Byrne Vs Kinematograph Reuters Society [1958]1 W.L.R 762, Harman J stated

Page 27 of 143
requirements of natural justice as a person accused should know the nature of the
accusation made and should be given opportunity to state his case and that the
tribunal should act in good faith.

Suffice to note that there is no strict specific procedure laid down to be followed
under natural justice while carrying out administrative duties and functions, but the
requirements of fairness depend on the facts of each case. The question that arises
is, what then, are the criteria by which to decide the requirements of fairness in any
proceeding? Authoritative guidance as to this was given by Lord Bridge in Lloyd V
McMahon [1987] AC 625 at 702, where he said, „…the rules of natural justice are not
engraved on tablets of stone. What the requirements of fairness demand when
anybody, domestic, administrative or judicial, has to make a decision which will
affect the rights of individuals depends on the character of the decision-making
body, the kind of decision it has to make and the statutory or other framework in
which it operates. In particular, it is well established that when a statute has
conferred on anybody the power to make decisions affecting individuals, the courts
will not only require the procedure prescribed by the statute to be followed, but will
readily imply so much and no more to be introduced by way of additional
procedural safeguards as will ensure the attainment of fairness.‟

Circumstances under which the right to a fair hearing may be excluded

The right to a fair hearing is not absolute in administrative proceedings and may be
excluded in the following cases;

1. Where factors such as agency come into play e.g., agent action may be
needed to safeguard public health/ safety in the case of White Vs Redfern
(1879) 5 QB 15. The right to a fair hearing was excluded where there was
agent need to protect public health and destroy bad food that was exposed
for sale.

2. It may be excluded where considerations of national security must be taken

into account. This should be considered in light of Article 43 of the
Constitution. It provides inter that, in the enjoyment of the rights and freedoms
prescribed in the constitution, „no person shall prejudice the fundamental or
other human rights and freedoms of others or the public interest. It states
further that public interest under this article shall not permit political
persecution; detention without trial and that any limitation of the enjoyment
of the rights and freedoms prescribed by this Chapter beyond what is
acceptable and demonstrably justifiable in a free and democratic society, or
what is provided in this Constitution.

In Council of Civil Service Unions Vs Minister for the Civil Service (1895) AC 374, the
facts of this case were as follows; the Government communications headquarters
(GCHQ), a branch of the civil service responsible for the security of the UK military
and official communications and the provision of signals intelligence for the

Page 28 of 143
government. Since its formation all the staff had been permitted to belong to trade
unions. There was an established practice of consultation between the
management and the civil service unions at GCHQ. Following incidents of industrial
action at GCHQ the Minister for civil service, the Prime Minister, issued an oral
instruction to the effect that the terms and conditions of civil servants at the GCHQ
should be revised to exclude membership of any trade union other than a
departmental staff association approved by the Minister. The union applied for
judicial review, seeking a declaration that the Minister had acted unfairly in
removing their fundamental right to belong to a trade union without consultation.
The case was ruled in favour of the applicants and the Minister appealed to the
Court of Appeal which allowed his appeal and the appellants appealed to the
House of Lords.

3. Where an employer summarily dismisses an employee the right of a fair

hearing is excluded unless contractual or statutory procedural duties are cast
on the employer, the court can only grant an employee damages for breach
of contract if the dismissal is wrongful but cannot declare the decision to
dismiss null and void.

Mallock Vs Aberdeen Corporation (1971) 1 WLR 1578

Musisi Vs Greenlays Bank.

NB. Bearing in mind Art 44; it is not consistent with the constitution; this is done for
administrative expediency.

Effects of failure to observe natural justice

The effect is that a decision given in disregard of the principles of natural justice is
void. It may lead to the quashing of the decision and damages may ensue from
such proceedings. In Kaggwa V Minister of Internal Affairs, HC Miscellaneous
application No. 105 of 2002, the Minister‟s decision was quashed because the
applicant had not been granted a fair hearing. In Annebrit Aslund V A.G, HC
miscellaneous cause No. 441 of 2004, Katutsi J quashed the URA report because it
flouted principles of natural justice.

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THE RIGHT TO A FAIR HEARING

This is one of the most litigated aspects of human rights. It is equally one of the rights
that the individual is quick to notice and object to when breached. This right is
innate and not earned. This means that it is a right that attaches to man just by the
very fact that he is a human being.

The objective of this right is to ensure that all human beings are treated fairly in the
settlement of disputes between one person and another. For there to be peace in
the society people must have a level of confidence that the judicial system will not
be manifestly partial in handling any dispute brought before it. This will encourage
people not to rake laws into their hands knowing that justice would nor only be done
but be seen to have been done.

Article 28(1) of the Constitution provides that in the determination of both civil rights
and obligations, including any question or determination by or against any
government or authority, a person shall be entitled to a fair hearing within a
reasonable time by a court or other tribunal established by law and constituted in'
such manner as to secure its independence or impartiality.

In the locus classicus case of the Court of Appeal of Uganda, CAROLINE

TURYATEMBA & 4 Ors vs THE ATTORNEY GENERAL &UGANDA LAND COMMISSION
CONSTITUTIONAL PETITION NO.15 OF 2006, court was of the view that,

1. The right to be beard is a fundamental basic right. It is one of the

cornerstones of the whole concept of a fair and impartial trial.

2. The principle of "Hear the other side" or in Latin: “Audi Alteram Partem”
is fundamental and far reaching. It encompasses every aspect of fair
procedure and the whole area of the due process of the law.

3. It is as old as creation itself, for even in the Garden of Eden, the Lord
first afforded a bearing to Adam and Eve, as to why they bad eaten
the forbidden fruit, before be pronounced them guilty: See RV
University of Cambridge [1723] 1 Str. 557 (Fortescue J.)

4. This principle is now of universal application. Article 10 of the Universal

Declaration of Human Rights,1948,Article 6 (1) of the European
Convention on Human Rights and Fundamental Freedoms, 1950, and
section 2 (2) of the Canadian Bill of Rights, as well as Article 7 (1) (c) of
the African Charter on Human and Peoples' Rights, all provide for this
right.

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In Uganda, the traditional saying, that one ought not to decide a dispute between
a boy and a girl without first having heard the case of each side, goes to show that
even our forefathers in Uganda also embraced and practiced this universal principle
of justice (see CAROLINE TURYATEMBA & Ors V THE ATTORNEY GENERAL & UGANDA
LAND COMMISSION(supra)). The principle is currently constitutionally provided for in
Uganda by Article 28 (1) of the Constitution. This Article provides that in the
determination of civil rights and obligations, or any criminal charge, one is entitled to
a fair, speedy and public hearing before an adjudicating body established by law.
This right is so fundamental that Article 44(c) of the Constitution prohibits any
derogation from its enjoyment.

Other jurisdictions have also considered this principle in a number of cases.

In Nigeria of Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 42,one of
Nigeria's most erudite Jurist and Pioneer Chief Justice of the Federation, Adetokunbo
Ademola (C.J.N), had illumined the dark fissures of the principles of fair hearing and
the true test to be applied when confronted with issues involving fair hearing. He
stated that;

“...a fair hearing involves a fair trial and a fair trial of a case consists
of the whole bearing......The true test of fair hearing, ...is the
impression of a reasonable person who was present at the trial,
whether, from his observation justice has been done in the case...”

See also Gaji v. The State (1975) 5 S.C 61 where the Supreme Court of Nigeria
speaking in the same vein held further that the test is that;

of a fair view of a dispassionate visitor to the court who watched

the entire proceedings and it may as well be added that the test
also includes that of an un- officious by-stander or reasonable man
who upon perusal of the record of proceedings would go with the
impression as to whether justice was done to the parties or not.

Thus, in the case of J.C.C Inter Ltd. v. N.G.I. Ltd (2002) 4 W.R.N 91, 104; it was held that
in the determination of the principles of fair hearing, the primary question is not
whether any injustice has been done on any party due to want of hearing but
whether an opportunity of hearing was afforded the parties entitled to be heard.

The concept of a fair and impartial trial involves a hearing by an impartial and
disinterested tribunal. This tribunal affords to the parties before it, a hearing before it
condemns, proceeds upon inquiry and results in judgment, only after consideration
of evidence and facts as a whole. Fair hearing involves the right to present
evidence, to cross-examine and to have findings supported by evidence: See:
Black's Law Dictionary (6h Edition) and also Supreme Court of Uganda Election
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petition No.04 of 2009: Bakaluba Peter Mukasa v Nambooze Betty
Bakireke,(Judgment of Katureebe, JSC).

Right to fair hearing is the mother of all rights because it is the core of justice. In
simple terms, fair hearing is the act of listening to the person or persons and giving
them equal opportunities to state their positions on an issue before adjudicating. In
other words, both sides in a matter or suit must be given ample opportunity to state
their case, usually in Uganda; by themselves or through counsel.

In Orisakwe & Sons Ltd. &Anor V. Afribank Plc. (2012); The Court of Appeal of Nigeria;
observed that;

“Basically, the right to fair bearing is a fundamental one, duly

guaranteed by section 36 (1) of the 1999 constitution of the Federal
Republic of Nigeria” (see equivalent provision under our Article 44
(c) of the Constitution).

In this vein, any decision which is given without due compliance therewith is a nullity
and is liable to be set aside, either by the court that delivered the said decision or by
an appellate court. Hence, the question is whether or not the party who is entitled to
it and who is seriously deserving of being heard before his fate is decided,
determined or sealed, had in fact been given ample and adequate opportunity as
provided under the relevant applicable procedural rules of court to do so. In a civil
case just as in a criminal case, the inviolable rule of fair hearing entails inter alia, that
any of the parties is entitled to prosecute or defend the matter either in person or by
a legal practitioner of his choice. The courts have always sympathized with victims,
in established cases of violation of the right of fair hearing.

The maxims, nemo jiudex in causa sua, and audi alteram partem, (no one can be a
judge in his own cause, and Listen to the other side) have remained persuasive
arguments for plaintiff applicants in fair hearing proceedings.

AUDI ALTERAM PARTEM-LISTEN TO THE OTHER SIDE

This Latin maxim means that the other side must be heard before judgment is
passed. The principle of fair hearing becomes invocable where a party is untowardly
shut out and openly denied the opportunity to be heard. It is not applicable in
favour of a party who fails to appear and defend an action filed against him. Thus, a
party or his counsel who fails to appear in court on a date fixed for hearing which he
is aware of and without justifiably excusing his absence, does so at his own peril and
would have nobody to blame but himself. In a recent decision of the Supreme
Court, Newswatch Communications Ltd. V. Atta (2006) 12 NWLR (Pt. 993) 144/171 Per
Tobi.

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The courts thus have drawn a distinction between the refusal to utilize a given
opportunity and situations where such opportunities are not given at all as in the
case of FRAMAN ENTERPRISES LTD &ANOR V. SPRING BANK PLC &ORS [2016-COURT OF
APPEAL). The Fundamental nature of the service of hearing notice on parties in the
adjudication process and effect of failure to serve hearing notice where required] "It
is trite and has been held in seeming)' endless judicial authorities that any
proceeding in a case which bolds without the parties having been duly served with
a bearing notice of the date for bearing of the matter does violence to the
principles of fair bearing as enshrined in the constitution”.

Thus, Article 28(1) of the Constitution forbids a court to make order that affects the
interest of a person, without hearing him or giving him opportunity to be heard. The
right of fair hearing forms the "soul" of any judicial decision/order of Court, and
where one has not been heard or given opportunity to be heard, the decision is a
complete nullity and cannot be enforced against the party, having not been heard.
It is to be noted however that it is the Duty of a judge to be seen as impartial such
that where there is evidence of corruption on his part the judgment may be set
aside. Invariably, a decision is said to be perverse where it's so obvious on the record
that;

1) It runs brazenly contrary to the evidence adduced at the trial; or

2) It is duly established that the trial Court took into consideration some
matters which it ought not to have it done so or turns a blind to
obvious facts.

3) It has occasioned a miscarriage of justice.

This principle includes the following tenets;

a. Written representations and oral representations (Defences)

Whenever a hearing is required, it suffices if the same is made in writing. This was
justified in the case of R v Huntingdon District Council exparte Cowan [1984J1WLR
501. This also noted in Kaggwa Andrew & Ors vs. Minister of Internal Affairs HCMA
No.105/2002.

b. The right to call witnesses

Fairness may require that a decision maker allow the person likely to be affected by
a decision to call witnesses in support of his case. Any discretion to curtail this right
must be exercised reasonably and in good faith. In this regard, a court will not
Page 33 of 143
hesitate to strike down a decision not to allow witnesses to be called if the decision is
unreasonable, irrational or unfair.

c. Right to cross-examine witnesses

As a general rule, the right to a hearing is hollow unless parties are accorded a night
to cross-examine witnesses called to testify in the cause. The purpose of cross-
examination is to discredit the witnesses' testimony and cause its probative value
shaken.

d. Right to legal representation (Article 28 (3) (d) Constitution)

Unfairness will certainly exist where the tribunal allows one side to engage the
services of a lawyer and at the same time deny another side such a similar right. In R
v home Secretary exparte Tarrant [1981] 2 WLR 163, the court quashed a disciplinary
decision of a Prison Board of visitors for unfairness caused for failure caused to allow
legal representation.

There is no general rule giving an individual the right to legal representation before a
public official and the matter will be decided on the basis of statutory provisions as
well as the circumstances of the case. If the statute expressly provides for legal
representation, or if the nature and complexity of the case make legal
representation necessary then the courts may require that such legal representation
be accorded.

e. Right to give reasons

The duty to give reasons for any decision by a public official will be based either on
statute or on circumstances surrounding the case. In some instances, the statute will
require the official to give reasons in which case any decision that is not
accompanied by such reasons will be null and void. Even where the statute is silent
however, the circumstances may be such that a decision that is not accompanied
by reasons would be unfair on the individual and the public. This is particularly the
case where the individual has a right of appeal which he or she intends to exercise
or where the public would be interested in ensuring that the decision of the public
official is reasonable and therefore right

At Common law, there is no duty to give reasons to a person affected by a decision

unless the statute under which the decision was passed expressly provided so. This
view however is losing support given the wisdom by Lord Woolf, where he stated
thus;

Page 34 of 143
In regard the giving of satisfactory reasons for a decision as being
the hallmark of good administration and if I were asked to make
the best improvement to English administrative law, I would
unhesitatingly reply that it would be the introduction of a general
requirement that reasons should normally be available at least on
request for all administrative decisions".

f. Justification for reasons

a) It satisfies the affected individual's expectation of a just and fair treatment by

the decision maker.

b) It enables the affected person to decide whether he can appeal against

such decision or accept it.

c) It improves the quality of decision made wherever a decision maker realizes

that his decision is open to further scrutiny.

d) It legitimizes the decision making process no matter whether the decision

given was right or not.

e) It protects administration from uncalled for appeals.

f) In an appeal process, the appellate court will require reasons of a lower

court/tribunal so that their correctness is treated.

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NEMO JUDEX IN CAUSA SUA

Nemo judex in causa sua means that no person can be a judge in his own matter. It
is a rule against bias, a rule that disqualifies a person occupying an adjudicatory
office from seating in judgment over a matter in respect of which he has an interest.

So the maxim nemo judex in causa sua i.e. no one can be a judge in his own case
was advocated.

THE RULE AGAINST BIAS

The second part of the principle of natural justice is derived from the Latin maxim
"nemo judex in causa sua" meaning no one can be the judge in his own cause. This
gives rise to a duty to act fairly, to listen to arguments, and to reach a decision in a
manner that is untainted by bias. There can never be a fair trial where the
adjudicator has an interest in a case or matter. There are 2 aspects to the rule
against bias;

1. That the adjudicator must not have any direct financial or proprietary interest
in the outcome of the proceedings.
2. An adjudicator must not be reasonably suspected or show a real likelihood of
bias.

Financial or pecuniary interest

No matter how small the adjudicator's pecuniary interest may be or no matter how
unlikely it is to affect his judgment, he is disqualified from taking part in making a
decision. Any decision made in such circumstances will be set aside. In Leeson V
General Council of Medical Education (1889) 43 Ch.D 336, court stated thus, „…a
person who has judicial duty to perform disqualifies himself from performing it if he
has a pecuniary interest in the decision which he is about to give or a bias which
renders him otherwise than an impartial judge. If he has a pecuniary interest in the
success of the accusation, he must not be a judge.‟

The same principle applies when the pecuniary interest is that of the adjudicator‟s
wife or other close relatives. Likewise, the adjudicating officer should disqualify
himself from the proceedings if he has any substantial pecuniary relation with a
party, even if that relation is not directly at issue in the case. Of course, this principle
cannot be carried to its logical extreme; otherwise all adjudicators would withdraw
from all matters. But in general, an adjudicating officer should be very wary of
participating in a case where his pecuniary relations with a party might appear to
affect his decision.

In Dimes Vs Proprietors of Grand Junction Canal proprietors (1852) 3 HLC 759, a

decree made by the Lord Chancellor was set aside because he was holder of
shares in the company which was a party to the proceedings. The brief facts were

Page 36 of 143
as follows. Lord Cottenham was Lord Chancellor of England and held 92 shares in a
company called G, J. Canal worth thousands of pounds. There was a dispute
between a man called Davies and the company. The company applied for an
injunction restraining Mr. Davies‟ conduct in putting a bar across the canal, which he
claimed to be his property. The application was granted and there was an appeal
to Lord Cottenham as Lord Chancellor, the decision was affirmed, Mr. Davies losing
his appeal. Lord Cottenham had not disclosed that he was a shareholder of the
company. T was held by the House of Lords that the Lord Chancellor was
disqualified from acting as a judge in the cause on ground of interest and the
decree was set aside. L.C.J., Lord Campell said, ‘‘No one can support that Lord
Cottenham could be, in the remotest degree influenced by the interest that he had
in this concern; but it is of the last importance that the maxim that no man is to be a
judge in his own cause in which his own cause should be heard is sacred. And that is
not to be confined to a cause in which he is a party, but applies to a cause in which
he or she has an interest.

…. we have again and again set aside proceedings in inferior

tribunals because an individual, who had an interest in a cause,
took part in the decision. And it will have a most salutary
influence on these tribunals when it is known that this high court
of last resort, in a case in which the lord chancellor of England
had an interest, considered that this decree was on that
account a decree not according to law, and was set aside. This
will be a lesson to all inferior tribunals to take care not only that
in their decrees they are not influenced by their personal interest
but to avoid the appearance of laboring under such an
influence.’’

Non pecuniary interests

In some cases, there may exist some kind of relationships between the adjudicator
and one of the parties that might lead to a biased decision. The tests to be applied
are;

1. Is there a real likelihood of bias?

2. Is there a reasonable suspicion of bias?

NB. There is no need to prove actual bias. Examples of cases where a likelihood of
bias led to the decision being set aside are hereunder discussed. The locus cluscus
on the subject of bias is the case of Libyan Arab (U) Bank & another V Adani
Vassilads CACA No. 9 of 1985, Odoki JA (as he then was quoted article 126 of the
Constitution, then 15 (9) and stated that the provision lays down the requirements for
a fair trial, that court must be independent and impartial. He held that bias may be
established against a person sitting in a judicial capacity on one of the two grounds;

(a) Direct pecuniary interest in the subject matter,

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(b) Bias in favour of one side against the other.

That bias means a real likelihood of an operative prejudice whether conscious or

not. That in considering the possibility of bias it is not the mind of the judge which is
considered but the impression given to reasonable persons. Justice Odoki, JA (as he
then was), stated that, „there must be reasonable evidence to satisfy the court that
there was a real likelihood of bias. Objection cannot be taken at everything that
might raise a suspicion in somebody‟s mind or anything which could make fools
suspect. There must be something in the nature of real bias, for instance evidence of
proprietary interest in the subject matter before court or a likelihood of bias based
on close association with one of the parties as was the case in Tuman V R.‟ His
lordship held that in this case „there is no reasonable evidence to satisfy me that
there was a real likelihood of bias on the part of the learned trial judge. There was no
evidence or even suspicion that he had a direct pecuniary interest in the subject
matter of the suit. There was no evidence that he was likely to favour the respondent
against the appellant; and even if the trial judge may have been thought to have
formed some opinion beforehand on the case, it is not enough to establish bias. The
allegation of bias was a mere conjecture.‟ That the appellants should have raised a
preliminary objection the trial and even if it were overruled, he should as the trial
judge remarked in his judgment have continued with the hearing and made it a
ground of appeal. The appellants abandoned the hearing because they suspected
that the trial judge had prejudged the case against them beforehand. That the
burden of proof lies on the party refusing to continue trial to satisfy court of appeal
that he was justified in his apprehension that it would be futile for him to continue
and that had he done so he would not have had a fair hearing.

In Brassington V Brassington [194] 3 ALLER 988 at 990, Holroyd Pearson L.J stated thus,
„Before considering the effect of the remarks of which a complaint is made, we must
observe that only a very strong case indeed could justify a refusal by a party to
continue to take part in the trial. If a party though aggrieved, continues to present
his evidence and arguments he can always reserve his complaint and appeal
against the unfair decision when it has been given. And any remarks which show
that the tribunal prejudged the case against him before he had called his evidence
will always in this court add very great weight to the substance of the appeal and
may in themselves constitute a sufficient ground of appeal. The aggrieved party will
then at least have shown that he has a genuine case on which he either ought to
have or could have succeeded.

In Metropolitan Properties Co. F.G.C Ltd V Lannon (199)1 Q.B 41, Lord Denning stated
that,

„in considering whether there was a real likelihood of bias, the

court does not look at the mind of the Judge himself or at the
mind of the chairman of a tribunal or whoever it may be who sits
in a judicial capacity. It does not look to see if there was a real
likelihood that he would or did, in fact favour one side at the
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expense of the other. The court looks at the impression which
would be given to other people. Even if he was impartial as
could be, nevertheless if right minded persons would think that
in the circumstances there was a real likelihood of bias on his
part, then he should not sit and if he does sit, his decision cannot
stand. Nevertheless, there must appear to be a real likelihood of
bias. There must be circumstances from which a reasonable
man would think it likely or probable that the justice or chairman
as the case may be would or did favour one side unfairly. The
court will not inquire whether he did in fact favour one side
unfairly. Suffice it that reasonable people might think he did. The
reason is plain enough. Justice must be rooted in the
confidence and confidence is destroyed when right minded
people go away thinking the judge was biased.‟

The rationale for the apparent strictness of the rule is one of public policy. In Serjeant
V Dale (1877)2Q.BD 558 at 567, court said, ‘‘The law in laying down this strict rule, has
regard, not so much perhaps to the motives which might be supposed to bias the
judge, as to the susceptibilities of the litigant parties. One important object, at all
events is to clear away everything which might engender suspicion and distrust of
the tribunal, and so to promote the feeling of confidence in the administration of
justice which is so essential to social order and security.’’ Hence, the dictum of Lord
Heward C.J in R V Essex JJ. Exparte McCarthy (1924) 1 KB 256, „Justice should not
only be done, but be manifestly seen to be done.’ In that case, the police charged
the applicant with dangerous driving. As is known, in England, justices of the peace
sit with a qualified clerk. At the hearing, the acting clerk happened to be a member
of the firm of solicitors who were acting for someone who was claiming damages
from the applicant for personal injuries he received in the collision. The justices retired
to consider their decision and the acting clerk went out of court with them, in case
they wanted any guidance on the law. The applicant was convicted. An affidavit
was sworn that the acting clerk was not in fact consulted. The conviction was
quashed for, it was held to be improper for the clerk to be present with the justices
when they were deliberating on their decision, when his firm‟s interest in the case
was borne in mind. It was not necessary to establish bias in fact and the result would
have been the same even if the clerk had not known that his firm was acting
professionally.

The test for actual bias is subjective while the test for perceived bias is objective.
Perceived bias refers to a situation where an impression could be created to a
reasonable person that the judicial officer is not impartial. It is not the mind of the
judge that is considered but rather the impression given to reasonable persons. See
Tumaini V Republic [1972] EA44.

Page 39 of 143
In Blasio Sengendo & another V Uganda [1994] IV KALRN 133, Tsekooko J held that
inter alia that the inference of bias must be as to what a reasonable man would
think given the set of circumstances. That if the reasonable man would think that the
magistrate did favour one side unfairly at the expense of another, then bias is
proved.

NB. Impartiality is a question of perception and there are three instances a judicial
officer should be alive to;

i. Perceived conflict of interest.

ii. Behavior (inside and outside court).
iii. Associations and activities outside court. Conflict of interest arises where there
is probability of advancing or promoting the personal or interest of others in a
manner which compromises fairness and the entire judicial process. This has
already been discussed in the preceding paragraphs.

1. Where the adjudicator was a member of an organization that was a party to

the proceedings.

In Hannam Vs Bradford Corporation 1970) 1 WLR 937, an education sub-committee

had confirmed had confirmed the decision by the governor f the school to
terminate a teacher's employment. Held the decision was quashed by the court
because of the fact that the 3 members of the sub-committee were also governors
of the school gave rise to the possibility of bias.

2. Where extra-judicial pronouncements reveal that an adjudicator was

partisan.

R Vs Halifax justices exparte Robinson (19120 76 JB 233

Ashumd Vs AG

3. Where there is personal friendship or hostility towards one of the parties.

In White Vs Kuzych 1951) AC 585, the respondent a member of the appellant trade
union was found guilty on charges alleging breach of Art 2 of Bye laws of the union
including committing acts discreditable to it in publicly opposing established policies
of the union by campaigning against the closed shop principle. He (...............) was
provided with an option of an appeal after exhausting al remedies from the findings
in the report and the resolution of his expulsion that he had not been validly expelled
from the membership. He claimed that the decision was biased and breached
natural justice and even intimidation. Court held that the conclusion reached was a
decision even if it was tainted with / by bias or prejudice or arrived at in defiance of
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natural justice and even if the voting of some members might have been reached/
affected by intimidation.

4. Where a person is likely to be a witness in the proceedings, he cannot be a

judge.

Ndegwa Vs Nairobi liquor licensing court.

NB. The test of likelihood or reasonable suspicion of bias must be applied realistically.

In Sikabuza Vs The Director of Survey, the applicant's license had been cancelled by
the survey license board on grounds of professional misconduct, he appealed on
the basis that the composition of the board did not meet the standards of natural
justice. The composition of whom were surveyors and 3 other members, 2 of whom
were surveyors. The applicant contended that the 2 surveyors on the board were his
competitors in the business and were therefore sitting in judgment of their own
cause. Court held that the mere fact that an interested party sits on the disciplinary
body, which applies professional standards does not necessarily conflict with the
maxim that no man be judged in his own cause.

Note
Fair hearing is an aspect of the fundamental right of a person. It has also discussed
the fundamental tenets of the natural justice. The Nemo judex rule, commonly
referred to as the rule against bias, ensures that a judge is not partial. He should not
be influenced by personal interest; for jurists and laymen alike have insisted that
justice should be manifestly seen to have been done. Where the judge has interest
in the subject matter, or in the party, or his own financial interest is involved, the
objectivity of his decision is bound to be questionable. The right to fair hearing
cannot be ousted by law because the Ugandan Constitution is superior to any law.
There is no contradiction that the Uganda's Constitution is supreme. Fair hearing is
the cornerstone of any judgment process and is hinged on two major ingredients to
wit; audi alteram partem and nemo judex in cansa sua.

Summarily, the principle of nemojudex in causasua, [the idea that no man shall be a
judge in his own cause] has been articulated by the courts around the idea that a
decision maker [public official or authority] cannot be involved in making a decision
in which he or she has substantial interest. The interest in question which may be
direct or indirect has been categorized around four main areas;

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1. Pecuniary interest or favor.

Pecuniary interest means that the decision maker stands to gain monetary
advantage in making the decision. Even where the advantage is not monetary
however, the courts of law will rule that there have been a violation of the NEMO
JUDEX principle if it is demonstrated that the decision maker stood to gain some sort
of advantage [favor].

2. Philosophical interest.

Philosophical biased arises where the decision maker at the time of making the
decision held some views, convictions, ideas, ideologies or conclusions which were
likely to influence outcome of the decision.

3. Institution interest.

Institutional bias arises where the decision maker is linked to an organization,

institution or other outfit which has an agenda or a mandate that could influence
the outcome of the decision making process.

4. Personal interest.

Personal bias arises where the decision maker is connected to the individual or an
individual affected by the decision in such a way as to influence the outcome of the
decision making process. The connection in question usually takes the form of family
ties or other social ties which given the circumstances would be reasonably
expected to influence the decision making process. The courts have ruled that the
NEMO JUDEX PRINCIPLE IS VIOLATED WHERE;

1. Any of the four forms of the principle is violated or proven

2. As a result of such interest, there is a real [possibility] that the decision maker
will be influence when making the decision. It does not matter that in
actuality the decision maker was never influenced by the decision.

Exceptions to NEMO JUDEX:

Even where any of the four forms of interests exist on the part of the decision maker,
the decision will be allowed to stand if it falls under any one of three exceptions

1. Necessity.

If the decision maker who is alleged to be bias is the only official who is competent
to make the decision, then the decision will not be subject to review on grounds of
violation of NEMO JUDEX.

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2. Statute.

If the decision maker alleged to be bias is the only official on whom the authority to
make the decision has been conferred either by the constitution or statute then the
decision will stand.

3. Waiver.

If the individual who is affected by the decision was aware of the bias on the part of
the decision maker at the time the decision was made yet he or she expressly
consented to adjudication by the decision maker then the decision will not be
subject to review on grounds of violating the NEMO JUDEX.

TOPIC

JUDICIAL REVIEW OF ADMINISTRATIVE FUNCTIONS

INTRODUCTION
The function of government is exercised through the executive organ of
government. Under this is a series of agencies, public bodies, statutory corporations,
commissions and tribunals which keep exercising public powers to take decisions.
Sometimes such decisions affect the rights of people. At first, judges had no control
over a tribunal or public body so long as it kept within its jurisdiction. These public
bodies could for example go completely wrong in law, completely wrong on facts,
and the error however grave could not be questioned. All this tolerance was
encouraged by the strict adherence to the doctrine of separation of powers. In
other words the court was avoiding being seen as interfering with the exercise of
executive powers by an organ of government.

Overtime a sense of understanding began to flicker when judges observed that no

tribunal ever had jurisdiction to decide a case wrongly on a point of law. They thus
argued that when parliament sets up a tribunal, it does so in the belief that it will
decide cases in accordance with law and not contrary to it. This argument was
extended to all public institutions and officers in so far as they carried out
government function.

It is against this background that judicial review emerged as an administrative

remedy.

Judicial review is the process by which the High Court exercises its
inherent and supervisory powers to determine whether an
administrative action is lawful or not and to award suitable
remedies.

Page 43 of 143
In so doing, the courts are doing their ordinary functions of upholding the rule of law.
Judicial review is different from an appeal in that it restricts itself to administrative
decisions and actions taken by persons and authorities exercising public powers. An
appeal on the other hand is re-hearing of a dispute of a lower court by a
higher/superior court having appellate jurisdiction. An appeal does not have fixed
grounds as judicial review

The basis for judicial review is common law much as it has now gained statutory
support. Under judicial review, the court is concerned with the question of whether
the administrative act or decision should be allowed to stand or not. In this regard
the court will restrict itself the question of decision legality of the action taken by an
administrative body. In ascertaining this objective the court will focus more on the
decision making process.

Grounds for Judicial Review

Judicial review is a prerogative remedy and can only be initiated on certain specific
grounds. These grounds are discussed below;

1. Ultra-vires/illegality

Ultra-vires refers to a situation where a public officer acts beyond his powers or does
what he or she is not authorized to do under the law. This is the central principle of
administrative law. A person is deemed to have acted beyond authorization of the
law under any of the following circumstances;

a. Where a public officer does anything which he/she is not authorized to do

under the law e.g. where an action is taken by a wrong person. An act
which is for any reason in excess of power is described as ultra-vires and
will be considered void and deprived of any legal effect.

The powers of administrative authorities are contained in enabling statutes or rules.

The statutes usually specify the proper person or office or institution supposed to
carry out the task. The statutes normally describe the offices to be created under the
statute, the functions of the officers, procedures to follow and backing of the law is
deemed to be acting ultra-vires as all administrative actions must have legal
authorization.

b. Where an authority or body is not properly constituted; this arises where an

action is supposed to be taken by a panel of members of tribunal and the
minimum quorum is specified before it can be rendered valid. Similarly, it
may arise when power to take a decision is vested in particular office
holders. Any decision made without realizing quorum or the authorized
officer(s) is invalid for being ultra-vires.
Page 44 of 143
In Dane vs. Kiamba Liquor Licencing Board, the tribunal was constituted to listen to
complaints in the case of a denial of a Liquor Licence. None members (local
inhabitants) effectively participated in determining whether the Applicant should be
granted a licence or not. On the decision being challenged, court held that such a
decision was ultra-vires in so far as none members participated.

c. When the exercise of public power conflicts with a provision of the general
law (Parent Act); the general principle is that the principal Law (Act of
Parliament) should be conformed to by any subsidiary legislation made
there under.

This is so because the exercise of administrative powers should never undermine

statutory provisions. In Koinange, the Governor had powers to make subsidiary
legislation for improving and controlling better quality crops and livestock. He made
rules to the effect that, no African should grow coffee scheduled Area (Gazette
Areas). Koinange challenged the legislation on grounds of ultra-vires. The court
agreed that the rules were ultra-vires in so far as they segregated against Africans;
and that this should not have been the intention of Parliament in enacting the
Principal legislation.

Also in Kangi V Tanga Town Authority, it was held that powers of enacting a
subsidiary legislation cannot be used to make laws that are in conflict with the
subsidiary legislation, such will be rendered ultra-vires.

d. Misuse or abuse of discretionary powers; It is the duty of the executive

authority to put a proper interpretation to a statute so as not to
misunderstand the powers which are given, whether they are discretionary
or not.

The principles governing discretionary powers were laid down in the case of Padfield
v Ministry of Agriculture [1968] A.C 997. In this case, some farmers in South East
England were concerned about the inconsistent prices of milk. They petitioned the
Minister to appoint a committee to investigate the price differentials in the milk
industry. The Minster refused, hence an application for judicial review seeking orders
of mandamus which the court granted. The court observed that where a genuine
complaint is made to a Minister which is worth of investigation by a committee, he is
not at liberty to refuse on grounds which are arbitrary or capriciously. Court further
pointed out that good administration requires that complaints should be
investigated and grievances remedied. That when Parliament has set up machinery
for that very purpose it is not for the minster to brush it on the side. He should not
refuse to investigate a complaint without giving good reasons.

The court thus laid the following principles as guidelines governing the use of
discretionary powers:
Page 45 of 143
(i) Discretionary powers are not unfettered (uncontrolled);

(ii) Discretionary powers are granted by Parliament with an intention that

it be used to promote the policy and objectives of a particular
legislation/statute;

(iii) Proper use of discretionary powers can be ascertained after the court
has interpreted the whole statute;

(iv) Where a minister misconstrues the provision of a statute and if such

misinterpretation leads to abuse of powers of discretion, then the
aggrieved party is entitled to challenge them in court by way of
judicial review; and

(v) Discretionary powers must be judicious, that is, they must be exercised
in accordance with the prevailing law, must be rational and in
accordance with established procedure.

Then in Ashbridge Investment V. Minister of Housing [1965 W.L.E 1320; the question
was whether on the evidence the building was a house and whether it was fit for
human habitation. It was observed that;
a) A court can only interfere with the discretionary powers of a Minister
when he has acted on no evidence; or

b) If he has come to a conclusion to which on the evidence available he

could not reasonably come; or

c) If he has given a wrong interpretation to the words of a statute; or

d) If he has taken into account...when an Act confers discretionary

powers to a Minister or any other Authority, it does so in the belief that
and on the condition that the Minister or Authority would exercise
them in accordance with the requirements of natural justice.

If the Minister broke this condition, then he has gone outside his
powers.

Page 46 of 143
Examination of circumstances consisting abuse or misuse of discretionary powers

a) Use of power for improper purpose i.e. not to achieve the intended
purpose under the law. Time and again, traffic officers are staging
speed gargets in places where there is no statutory instruments
prescribing their speed limits. While it is prudent on the part of police
to save lives by regulating traffic, this must be done in accordance
with the law.

In Sydney Municipal Council V. Campbell,

A local Council Ordinance authorized City authorities to acquire land for public
projects that is to expand and remodel the city. The council used its power to
acquire land with the hope that it should be disposed of at a premium (profit): at a
later stage. This exercise of acquiring land to be disposed of at a premium was
challenged as being ultra-vires to the powers given by the ordinance. Court held
that acquiring land for speculative purposes was not the intention of the law. That
the council was using its valid power to achieve wrong objectives.

Then in Wheeler V. Leicester Football Club;

A Local Authority had powers to regulate the use of open space and parks within its
area of jurisdiction. Hoping to be acting within 'a law meant to eliminate racial
discrimination and fostering equality of opportunity and good relations between
persons of different racial groups, they banned Leicester Club from using the club
grounds as a punishment for having allowed its members who were South Africans
during days of apartheid. The court held that this was using powers they properly
had for an improper purpose.

b) Putting into account irrelevant considerations; these could be guided by

malice, discrimination, etc. In order to avoid the legal trap, a person
exercising discretionary powers;

i) Has to acquaint him/herself properly with the law.

ii) Must call his/her attention to matters which he/she is bound to
consider.
iii) Must exclude matters which are irrelevant.

In Farrnandes V. Kericho Liquor Licencing Board, the Plaintiff's licence was not
renewed on grounds that he was not a Kenyan citizen. The matter of citizenship was
not a requirement of licensing liquor. Court held that the local Authority put into
account the citizenship of the applicant which was an irrelevant consideration in
their decision making.

Page 47 of 143
In Prescott V. Birmingham Corporation;
A local Authority was sued on the grounds that it had used irrelevant consideration
in fixing fares payable to the local transporters. The complaint was that the Local
Authority had allowed free transport for the elderly. Court held that age was an
irrelevant consideration in determining bus fares.

c) Error of law; An Authority which is entrusted with discretionary powers must

direct itself properly on the law otherwise its decision may be declared
invalid.

In Perilly V. Tower Hamlet Borough Council; the council wrongly believed that it was
under a statutory duty to deal with applications for a trading licence in the Petticoat
lane market in the strict order in which they were received. It therefore refused to
licence Perilly, the plaintiff, who had traded at the stall for over 30 years. Court
cancelled the licence for the new comer and ordered that the status quo be
restored, i.e. the licence be issued Perilly. The notion of error of law goes wide than a
mere mistake of statutory interpretation. For example, a public officer commits an
error of law when he acts and takes a decision without any evidence to support it.

d) Failure to give reasons; although there is no general duty to give reasons,

giving reasons is one of the fundamentals of good administration at common
law. This is so because sometimes a right of appeal depends on reasons
advanced by the decision maker.

In R v Trade Secretary; Court held that if all other known facts and circumstances
appear to point overwhelmingly in favour of different decisions, the decision maker
who has given no reasons cannot complain if the court draws an inference that he
has no rational basis for the decision made.

And where there is a duty to give reasons, such decision made without reasons will
be rendered ultra-vires. In Poyser v Mill Arbitration, court observed that where there
is a duty to give reasons; proper, adequate, reasons must be given which are
intelligible and deals with substantial points in issue. Failure to give reasons will leave
court with no choice but to quash the decision for error of law.

e) Discretion must not be fettered; to fetter discretion means to surrender it to

some other persons/people (R v Port of London Authority Expar’te Kynotch).

f) Acting under dictation, a public which has statutory powers is expected to

exercise those powers itself. This principle also applies to a given public officer.
It/he should not be seen to act under the direction of any other person or
authority. Acting under dictation may arise under the following
circumstances:-

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i) Where a person with discretionary powers is directed on what to do by
another person in high authority.

ii) Where a person with discretionary powers refuses to act unless he is

advised by another authority yet there is no duty on him to seek such
advice.

iii) Where a public authority with discretionary powers fears to act so as

not to hurt the feelings of a superior officer.

iv) Where a public officer acts under pressure which cannot allow him to
make an independent decision based on his good sense of judgment.

In Sims Motor Units V. the Minister of Labour and National Service, Emergency
Regulations allowed public officials to be dismissed for misconduct. Such an
affected official had a right to appeal to a superior official for review of the dismissal
decision but before the relevant officer could make a decision, the Minister directed
on the course of action to be taken and this was confirmed by the superior officer.
Court held that the superior officer had acted under dictation and his decision was
ultra-vires.

g) Strict adherence to Policy; A public authority which has discretionary powers

may take into account policy as one of its considerations. For example,
matters of national importance may weigh heavily against exercise of
discretion. Where a public authority is given powers to issue licences for a
particular activities, it may be proper for such authority to give due
consideration to the prevailing policies.

In Kenya aluminum v The Administrator of Agriculture,

The refusal to grant a million licence was justified by the defence that the
Administrator of Agriculture had to put into account the National Policy of
controlling milling activities so as to minimize the dumping of inferior and dangerous
products on the market (See: National Policy and Directives Principles of State Policy
under the Constitution]n of the Republic of Uganda, 1995).

This, however must not be exercised blindly as courts have interpreted rigid
adherence to policy as amounting to nothing but accepting a self-imposed
restriction on the exercise of discretionary powers.

In Mandwa v City Council of Nairobi the licencing Board relied on the policy of
Africanization of Commerce to deny the applicant a right to own a stall in the
municipal market. Court rendered the decision ultra-vires for rigid adherence to
policy thereby failing to exercise the discretionary powers.
Also see. Singh v Municipal Council of Nairobi.
Page 49 of 143
2. Unreasonableness/Irrationality

A Public authority has powers to discretion and is not expected to exercise those
powers unreasonably. The law presumes that public powers will be reasonably used
for purposes of promoting the objectives of statutes and government policies. The
test of unreasonableness is an objective one. And will depend on the judgment of a
reasonable person in the circumstances.

In Kruse v Johnson, Court held that unreasonableness will include situations which
depict any of the following:-

(i) Where the rules are a trial or unequal in their application, i.e. either
they work for a particular class or discriminate against a particular
sector or society.

(ii) Reasons are made on the basis of injurious considerations.

(iii) Where a decision or action is taken in bad faith, which is either for
purposes of punishment or inconveniencing someone or attaining
material gain.

A case in point Associated Picture v. Wednesbury Corporation, in this case a local

Corporation had powers to make rules, regulating cinemas and picture houses in
the city. The parent Act granting these powers was worded as follows;

...The Authority can licence or issue a licence on such conditions as

it may think fit to impose...

The corporation made a rule which restricted Sunday shows. This was challenged on
grounds that the Local Authority was unreasonable and had taken into account an
irrelevant religious issues in making this rule. Court held that;

…the regulation prohibiting Sunday shows was ultra-vires and

unreasonable in so far as it had been made in religious
considerations which were not relevant.

3. Procedural Impropriety/natural Justice

Whenever a statute provides a procedure to be followed in a process leading to an

administrative decision, it is mandatory that such procedure be followed in the
absence of any laid down procedure, any public administrator ought to act
judiciously and observe rules of nature justice. He/she must demonstrate that he has
acted fairly especially to a person likely to be affected by the decision.

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Natural justice which involves a right to a fair hearing is one of the commonest
grounds for judicial review. This right stems from the provisions of Art. 28 (1) of the
Constitution, which not only provides for a fair hearing but also emphasizes that it
must be conducted before an impartial tribunal. This provision is further supported by
Art.42 and 44 (c) of the same constitution.

In Schmidt v Secretary of State for Home Affairs [1969] 2ch.149, court observed that
an administrative body may in a proper case be bound to give a person who is
affected by their decision an opportunity of making a representation (defence). This
all depends on whether he has some right or interest or some legitimate expectation
of which it would be unfair to deprive without hearing what he has to say.

In R v. Gaming Board, Exparte Benalm [1970] 2 Q.B 417, a gaming licence was
denied upon an argument that the Board had no duty to observe rules of natural
justice. Lord Deming MR, relying on the dictum of C.J Parker in Re HK (an infant)
where it was observed than an immigrant had no right to come in the country, but
he has a right to be heard.

As earlier observed a denial of a right to be heard, or an impartial tribunal results into

a null decision. A high court will grant an order of certiorari to set aside such illegal
decision.

Orders/Remedies under Judicial Review

These include an order of certiorari; an order of a Prohibition; an order of
mandamus; an injunction; a declaration and damages (Section 33, 36 and 38
Judicature Act, Cap. 13).

We shall briefly discuss each hereunder and in detail later;

1. Certiorari

Certiorari lies on an application of a person aggrieved to bring the proceedings of

the inferior tribunal before the High Court so that the court can determine whether
they shall be quashed, or to quash such proceedings. It will issue to quash a
determination for excess or lack of jurisdiction, error of law on the face of the record
or breach of rules of natural justice, collusion or perjury (see; Halsbury's Laws of
England 4th Edition Vol. 1 paragraph 147).

It is restricted to administrative decisions and proceedings of statutory authorities, or

bodies and public officers exercising statutory authority (R v National Joint Council
for Dental Technicians Exparte Neate[1953]. Whenever any person or body having
statutory authority to determine rights of subjects and having the duty to act
judicially, acts in excess of their legal authority, they are subject to the order of
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certiorari (the Kings v Electricity Commissioner's Exparte London Electricity Joint
Committee [1924] K.B 172. 205). The main object of certiorari is to keep the
machinery of government operating properly in accordance to law and in the
public interest (Re: Bukeni Gyabi Fred [1999] KALR 918.922-923)

2. Prohibition

A prohibition is a common law remedy intended to prevent an unlawful assumption

of jurisdiction. It arrests or forbids any proceedings and administrative powers
deemed unlawful or exceeding one's jurisdiction.

3. Mandamus
This is a compelling order directed by the High Court against a public officer
commanding him to perform a duty or carry out an act conferred on him by law.

4. An injunction

This is a restraining order stopping a person from acting in any office he is not entitled
to act. It is intended to preserve the status quo.

5. A declaration
This order is intended to communicate a judicial pronouncement of the parties'
rights. It does not attract any execution or enforcement machinery of the court.

6. Damages
These are monetary compensations which a court may grant to a victim of civil
wrong as of right. They are not given as punishments to the wrong doer but to
restore a victim to his proper feelings that his rights are being respected.

Note
Judicial review is a procedure available to an unsuccessful person who wishes to
challenge the orders of an administrative body or tribunal. This application can only
be handled by the High Court and the applicant must satisfy any of the grounds of
illegality (ultra vires), unreasonableness (irrationality) and procedural impropriety. If
the applicant is successful, court will issue several orders or remedies which include
inter alia; certiorari, prohibition, mandamus, declaration, injunction and damages.

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TOPIC

ADMINISTRATIVE TRIBUNALS AND COMMISSIONS OF INQUIRY

INTRODUCTION

Administrative law is a branch of public law which deals with or concerns the
exercise of power, by public authorities to execute public functions. Administrative
law facilitates, regulates and controls the administrative processes. Its main thrust is
to ensure that public power isn't abused or used as a detriment to the people.
Administrative authorities are either public officials or authorities entrusted with the
duty to discharge public functions. Public functions, are those expected to be
delivered by government which is entrusted with looking after the general welfare of
the public. Administrative tribunals are examples of administrative authorities.

Tribunals are bodies with judicial or quasi-judicial functions set up by statute and they
exist outside the usual judicial hierarchy of courts. They can also be defined as
"Bodies outside the hierarchy of the courts with administrative or judicial functions"
(Curzon, Dictionary of Law, 1994, p387). They are also institutions setup to adjudicate
over issues of an administrative nature.

These are courts of law in the sense that they enjoy judicial powers, however, they
can be distinguished from the ordinary courts of law when one considers the
membership and procedures followed by tribunals.

A tribunal is further a specialized court handling disputes of a particular nature.

Tribunals are created by Acts of parliament on special considerations that they are
more suitable or effective to handle adjudication business in their jurisdiction than
ordinary courts. The importance of tribunals to administrative law is that they are
given powers to make decisions taken, in so far as they may affect a citizen.

Administrative tribunals resolve disputes between, for example, the citizen and an
officer of a government agency or between individuals in an area of law in which
the government has legislated the conduct of their relations. This topic shall focus on
appeal tribunals, domestic tribunals, public inquiries and the advantage of tribunals.

Page 53 of 143
ADMINISTRATIVE TRIBUNALS

These are quasi-judicial bodies which are established for purposes of adjudicating
over disputes that arise from implementation of a particular legislation. It is usually
anticipated that disputes may arise between regulation and those who are subject
to regulation. It is also normally recognized that ordinary courts may not be the best
in handling such disputes e.g., under the Uganda communication commission
statute.

A tribunal is established to solve matters which are likely to arise; industrial courts for
purposes of handling Labour disputes, students‟ disciplinary committees are also
tribunal. Administrative tribunals are preferred because of the following:
1. They are cheaper than ordinary courts.
2. Because they are specialized, they receive fewer cases and solve these
cases well.
3. Disputes before administrative tribunal may be resolved without strict
adherence to rules. They are concerned with merits

Administrative tribunals are usually constituted by statute provisions either by

subsidiary or principal legislation. Administrative tribunals are expected to carry out
their duties in accordance with the constitution guaranteed by regulation
established for purposed of the tribunal.

They must adhere to:

a. The law
b. The rules of procedure which are laid down by tribunal
c. The principles of natural justice and this must be adhered to even such rules
do not provide for them

MARKO MATOVU Vs MUHAMMED SSEVIRI (1979) HCB 174 CA it was held that audi
alteram partem is cardinal rule of natural justice so central to Uganda‟s system of
justice that it must be observed by both judicial and administrative tribunals. Where
an administrative agency acts contrary to this rule it exceeds power conferred upon
it by parliament. Such a decision is void and it is of no consequence in the same
way as a decision made without jurisdiction is a nullity

Administrative tribunals are usually permanent in nature and can only change their
work if there is change in law. Decisions of administrative authorities/tribunals are
binding on parties concerned and those can be enforced through a process similar
to ordinary court process e.g., they can order an attachment of property, grant
injunction etc.

Decisions of administrative authorities are usually subjected to appeal to ordinary

courts. Appeal process varies from one to another, but generally decisions from
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administrative tribunals are subject to appeal to the high court. The past there used
to be appeals to ministers but this has been discouraged by modern legislation.

Tribunals are judicial or quasi bodies which are formed for purposes of hearing and
making decisions over disputes that arise as a result of implementation of certain
government policies and enforcement of legislation

Tribunals ensure that there is a good responsive administrative process which

respects individual rights. Public administrators are usually given the responsibility of
putting into effect good government policies. It is also recognized that the process
of implementation leads to disputes between individuals e.g., economic planning
involving licensing leads to disputes between licensing authorities (sate) and
individuals.

Physical planning under town and country planning act inevitably involves disputes
between planners and developers. Telecommunications registered under
communication statute will inevitably lead to disputes e.g., over operation areas.
Land management and used will lead to disputes.

Tribunals are set up under the authority of an Act of parliament or some principal
legislation e.g., Tax appeals Tribunal Act, land tribunal as a result of the Land Act
1998 there must be a piece of legislation in formulating a tribunal.

Tribunals conduct their hearing in public unless, otherwise. There are also a number
of cases, which have established some common law principles which apply to
tribunals and these are useful where such principle that applies to all tribunals
whether, or not they have rules providing for such. All tribunals which conduct
disciplinary proceeding must give notice to the charged party who must be given a
right to be heard

In Ridge V Baldwin (1964) AC 40, Lord marries of Borth-y-Gest observed that they
dismissed the appellant after finding that he had been negligent in the discharge of
his duty. That was a finding of guilt of the offence of neglecting or omitting diligently
to attend to or carry out his duty. Yet they had preferred no charge against the
appellant and gave him no notice. They gave him no way impugned they
completely disregarded the regulations and did not begin to comply with them.

Article 42 provides that a person should be treated fairly and justly. A right to be
heard should be observed by all authorities and thus the principle in Ridge &Baldwin
was incorporated Articles 42 & 28

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IMMUNITIES AND PREVILEGES OF TRIBUNALS

Administrative tribunals are normally granted privileges and immunities. Their powers
are usually equated to the powers which are enjoyed by the High court under the
Judicature Act. Such powers include powers to summon witnesses and necessary
enforce obedience in court by way of charging for contempt of court

The proceedings before tribunals are also privileged in a sense that they cannot be
a basis for a legal action in defamation or other related proceedings. The members
of tribunals also have immunity from prosecution or suits on matters which arise out
of legal proceedings.

Administrative tribunals are also expected to apply the law & the given facts so as to
avoid arbitrary /harsh and unfair decisions. The duty to give reasons is also crucial
because decisions of tribunals are usually subject to appeals or judicial review. These
may be made to ministers, high court or any other higher authorities.

There is no representation before an administrative tribunal depends on the

provisions of a particular statute. Where a statute gives a right to legal
representation, that right must be observed by the tribunal.

The 1995 constitution has constitutionalized some of these basic principle in Articles
42, 28 and 44 where article 28 provides that in both civil & criminal proceedings, a
person is entitled to a speedy hearing before an impartial court or tribunal
established by law. Article 42 provides that all persons have a right to be treated
fairly and justly by administrative authorities and public bodies. Article 44 provides
that the constitutional right to be heard is non-derogable.

Reasons for the Establishment of Tribunals

The fact that the machinery of the courts is not suited for settling each and every
dispute which may arise out of the work of the government there is need to create
administrative tribunals. The functions of government sometimes call for specialized
courts (tribunals) for the proper adjudication of disputes. It also calls for effective
administrative machinery. Thus, while Tribunals are adjudicative in nature, public
inquiries are deeply embedded in the whole process of government and its
administration.

Specific Reasons for their establishment

Reasons for establishment of tribunals were laid down by Lord Pierce in Anisinimic v.
Foreign Compensation Commission to include ensuring speed, cheapness and
expert knowledge. Other reasons for their establishment include;

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(i) Desire for a procedure that avoids the formality of the ordinary courts.

(ii) Desire for a speedy, cheap and decentralized determination of a very

large number of individual cases.

(iii) The need for expert and specialised knowledge on the part of the
tribunal which courts may not have despite it having a wide
jurisdiction. Much as a litigation of a particular social or economic
activity, require expert knowledge and in depth understanding of the
area being regulated e.g., Labour disputes require experts in labour
law.

(iv) Need to avoid the danger of imposing too many burdens to the
ordinary courts.

(v) Desire to implement new social policy.

(vi) The restrictions imposed by legal restrictions, for example, there might
be no need for a precedent, the tribunals can decide these cases
without these principles but they have to be flexible in performance,
approach and principle.

(vii) The litigation procedure does not produce the right atmosphere for the
working of certain schemes like social insurance schemes.

(viii) To settle disputes that may arise between individuals and public
authorities e.g., evaluating tribunals set up to consider disputes
between rent payers and local authorities.

(ix) To settle disputes between private individuals which relate to policy

implementation, e.g., rent restriction tribunals are set up under the Rent
Restriction Act which aims at regulating rent payable to property
owners.

(x) To regulate socio-economic activities. This is basically regulatory with

both powers to basically settle disputes e.g. The Transport Licensing
Board is a tribunal whose main objective is to regulate the transport
industry with the powers to adjudicate over disputes over any person.

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Characteristics of Tribunals

(i) A balanced tribunal usually consists of an independent chairperson

who is usually legally qualified. In Equator Inn Ltd v. Tomasyan; it was
held that a chairman means a dully appointed chairperson and his
presence is necessary before the tribunal has quorum. In the absence
of a chairman, the proceedings are a nullity.

(ii) A tribunal consists of two members representing opposed interests. In R

v. Industrial Injuries Commission Exparte Cable industrial cases
involving personal injury were heard by qualified doctors where the
issue required medical diagnosis.

(iii) It is established by statute or an Act of Parliament and granted

perpetual existence.

(iv) It is adjudicative in nature, a specialized court.

(v) Its jurisdiction is restricted to a single specialized area of a government

function such as immigration, transport social security and pensions
enforcing professional discipline etc.

(vi) Its composition/membership is determined by statute and most of such

members are senior administrative officials and experts.

(vii) It has timelines/limits within which to deliver its decisions(s).

(viii) Its procedures are less formal than that of ordinary courts.

(ix) Lawyers are generally not allowed to appear before it.

(x) Its jurisdictions must be exercised in accordance with written law and
natural justice.

(xi) Most of them assume jurisdiction after a public officer has taken an
unfavourable decision affecting the rights/interests of an individual.

(xii) Some tribunals may be composed of a lawyer alone, but commonly

there will be a lawyer 'chair' (called a 'tribunal Chairperson') and two
lay people who may be drawn from the relevant industry.

(xiii) Appointments are usually made for a fixed period of years.

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(xiv) Authority, base their decisions on wider aspects of policy, exercising
regulatory functions in a judicial form.

(xv) In general, tribunals are not bound by the rules of evidence observed
in courts and could not reach decisions simply and speedily if they
were.

(xvi) Some tribunals follow procedures that are essentially inquisitorial rather
than adversary, but minimum standards of evidence and proof must
be observed by tribunals if justice is to be done.

(xvii) The legal profession has no monopoly of the right to represent those
appearing before tribunals. This fact alone makes tribunals more
accessible to the public than the courts, since an individual's case may
often be presented effectively by a trade union official, an
accountant, a surveyor, a doctor, a social worker or a friend.

Classification of Tribunals

Classification refers to the large groupings in which tribunals may be placed. This
may differ from one jurisdiction to another.

1. Classification of Tribunals in the United Kingdom (UK)

Derbyshire has reported (2008) that there are over 130 such bodies in the UK
covering a vast array of areas. Until recently each tribunal was separate and in 1996
the list of administrative tribunals included; Agricultural Land Tribunals, Child Support
Appeal tribunals, the Civil Aviation Authority and the Director General of Fair Trading
in their functions, criminal injuries adjudicators, the Data Protection Registrar,
Education Appeal Committees, Immigration Adjudicators and the Immigration
Appeal Tribunal, Industrial Tribunals (renamed Employment Tribunals), the two Lands
Tribunals, Mental Health Review Tribunals, the Controller-General of Patents, War
Pensions Appeal Tribunals, Rent Assessment Committees, Social Security Appeal
Tribunals and the Social Security Commissioners, Disability and Medical Appeal
Tribunals, the General and Special Commissioners of Income Tax, Traffic
Commissioners, Valuation and Community Charge Tribunals, and VAT Tribunals.

However, these tribunals have now been incorporated into the Unified Tribunals
System which includes all administrative tribunals with the exceptions of Patent
Office tribunals and the Investigatory Powers Tribunal.

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2. Classification of Tribunals in Uganda

These include; Independent administrative tribunals, special administrative tribunals,

Regulatory bodies and licensing authorities. Some of the specific tribunals include:
(i) Immigration tribunal
(ii) Social security and pensions
(iii) Electricity distribution and generation tribunal
(iv) Financial/tax appeals tribunals
(v) Land and valuation tribunal
(vi) Transport tribunal
(vii) Health and social services tribunal
(viii) The Police Council
(ix) Labour tribunals (Industrial court)
(x) The Law Council etc.

Procedure of Tribunals

Article 6 (1) of the Human Rights Convention states that in handling disputes,
tribunals are embedded with a duty to ensure fair and public hearing before an
independent and impartial tribunal.

In De Souza v. Tanga Town Council [1961] EA 377, the right to be heard was
recognised where the proceedings were conducted in the absence of De Souza
and his lawyer. Court held that he had not been heard.

In R v. University of Cambridge, where Bentley had been deprived of his degree

without giving him an opportunity to be heard, one of the judges observed that
even Adam had been called upon by God to meet the challenge of having eaten
a bite of the forbidden fruit before suffering expulsion. The act of the University was
declared a nullity.

Article 44 of the Constitution recognises the right to a fair hearing as non-derogable.

All tribunals which conduct disciplinary proceedings must give notice to the
charged party who must be given a right to be heard.

In Ridge v. Baldwin [1964] AC p.40 Herman LJ said,

“it is only fair play in action. It is well established that the essential
requirements of natural justice at least include that before
someone is condemned, he is to have an opportunity for
defending himself and in order that you may do so he is to be
made aware of the charges or allegations which he has to meet".

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Article 42 of the Constitution provides that: Any person appearing before any
administrative official or body has a right to be treated justly and fairly and shall
have a right to apply to n court of law in respect of any administrative decision
taken against him or her.

In Mumira v NIC [1985] Justice Karokora stated that the principle of natural justice
"audi alteram partem" (right to be heard) must be observed by both judicial and
administrative tribunals. Where a decision is arrived at in utter disregard of this
fundamental principle of natural justice, that decision is a nullity. This principle
involves reception of relevant evidence, disclosure to all parties, the opportunity to
examine, cross examine witnesses and the opportunity for argument.

The tribunals‟ decision must be based exclusively on the evidence given before it. It
is of the essence to understand that some tribunals have powers to summon
witnesses and to order production of document. Disobedience is a punishable
offence.

Rules for instituting a complaint before a tribunal may vary from one jurisdiction to
another. When a complaint has been served upon the respondent, he or she must
then state the grounds, if any, on which the application will be opposed. A hearing
will then normally take place, with the general rule being that these are in public
except in relation to mental health issues and some educational issues. Each party
may have a representative, who may be legally qualified or not, and the tribunal
has wide powers to control the way in which evidence is given and the amount of
evidence which may be presented. Once a decision has been reached the Tribunal
must provide written reasons for it and notification of any rights of review or appeal.

Immunity and Privileges of Tribunals

Members of tribunals, parties and witnesses who appear before it are entitled to
personal immunity as applies to courts of law. Witnesses are not liable if evidence is
defamatory as well as members of the tribunal are not liable.

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MERITS/ADVANTAGES AND DEMERITS/DISADVANTAGES OF TRIBUNALS

MERITS/ADVANTAGES OF TRIBUNALS

The advantages of tribunals include inter alia:

(i) Quick with no long waits for the case to be heard and it is dealt with
expeditiously (speedily), they are speedy owing to specialization and the fact
that they operate under clear timeline. Unlike courts where judicial officers
may not command any specialty, tribunals composed of senior administrative
officials and experts.
(ii) cheap, as no fees are charged;
(iii) staffed by experts who specialise in particular areas;
(iv) characterised by an informal atmosphere and procedure;
(v) Allowed not to follow its own precedents, although tribunals do have to follow
court precedents.
(vi) They are ideal whenever a dispute requires specialized knowledge. While it is
the right of every person to access justice through courts, the machinery of
ordinary courts is not suited for settling every dispute which may arise out of
the work of government. Where a particular dispute calls for specialized
knowledge, such dispute can fairly and economically be resolved by a
tribunal.
(vii) Rules of evidence are rarely observed.
(viii) Their procedures are usually flexible and avoid the formality of the
courts.
(ix) Be as it may, a tribunal at whatever level must act with fairness, openness and
impartially it must also exercise its powers be they statutory or discretionary. In
accordance with the law otherwise its decision would be open to judicial
review before the high Court.

Demerits/Disadvantages of Tribunals

These include inter alia;

a) some are becoming more formal;
b) they are not always independent of the Government, although they may
pretend so;
c) Interference and lack of independence in execution of their duties;
d) some tribunals act in private;
e) legal aid is not generally available; and
f) Manifest bias in proceedings

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First instance Decisions and Appeals Tribunals

The difference between these two levels of tribunals is very thin. A first instance
tribunal is one where an aggrieved person can make an initial attempt to seek
justice. While all the above listed classification of tribunals may be said to be first
instance tribunal, the reality is that with the exception of Electricity Distribution and
Generation Tribunal, the Police Council and Law Council, the rest are tribunals
whose jurisdictions are invoked after a public body or official has made a decision
that an individual disputes. In this sense they are appeal tribunals. Appeals tribunals
have powers to hear and decide appeals. They also have powers to state a case
and refer it to the High Court on any question of law arising in the case.

Public inquiries/Commissions of Inquiries

Public inquiries are adhoc administrative processes through which government

collects and obtains information of great public importance on any public sector.
The major task of an inquiry is to investigate certain allegations or events in society
with a view to producing an authoritative account of the facts and attributing
responsibility or blame where it is necessary to do so. Such inquiries do not result into
decision but can make recommendations for desired actions.

Proceedings are usually guided by a presentation made by senior counsel to the

chairperson and members.

Thus, under administrative law, a public inquiry is a step leading to a

ministerial/government decision. A commission conducting a public inquiry has
semblance of a disguised judge who ultimately ensures that the resultant decision
must be based on evidence presented at the inquiry. The call for such duty
therefore requires that public inquiries must follow rules of natural justice in collecting
evidence before making their recommendations, lest their reports can be quashed
on an application for judicial review. This duty involves;

(i) The duty to communicate a notice to the concerned individual(s) so

that he/she is aware and has good time before the inquiry, the
case/allegation he/she would have to meet.

(ii) The right to an interpreter in a language understood by the concerned

parties.

(iii) The right of the likely affected party to cross-examine witnesses giving
adverse evidence against him.

(iv) The right to legal representation at the cost of a person being

investigated.
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(v) Full disclosure to all concerned parties of the relevant government
policy in so far as may be applicable to the subject of the inquiry.

(vi) That a report on the recommendations of the commission of inquiry is

published within a reasonable time and copies of which be made
accessible to the parties.

(vii) That the decision in the report be accompanied with full reasons
justifying the proposed recommendations.

(viii) That a right to challenge the recommendations to the High Court be

explained to the aggrieved person(s).

The object of this stringent inquiry/procedure is to:

(i) Protect the interests most directly affected by the government

proposal by granting them a statutory right to be heard in support of
their objections where at all.

(ii) Ensure that the government/minster would be better informed of the

whole facts of the dispute/complaint before a decision is made.

Note
Tribunals and Commissions of inquiry exercise quasi-judicial powers and are either
established by law or by an appointing authority under an instrument giving such
authority to establish a particular commission. They make administrative decisions
which may have far reaching effect on the citizenry that appear before them thus
subject to challenge.

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TOPIC

GOVERNMENT PROCEEDINGS

INTRODUCTION
Under common law, it was a general presumption that the crown could not do
anything wrong. In theory the crown could do no wrong therefore no liability could
ensue against it. Therefore legal proceedings against government were restricted on
this ground because government was her/his majesty's government. This is what is
otherwise referred to as immunity from liability. This old age theory that the King
could do wrong ignored the fact that the King had a personal capacity as well as a
political. This was inappropriately inherited by almost all erstwhile British colonies,
Uganda inclusive.

However, common law recognised limited legal liability against government and this
could be instituted by way of a royal fiat/petition of right. Under this procedure, the
prospective litigant against the crown could seek permission of the crown itself
before he could commence proceedings.

Before 1947, in England, an action could be brought against a Crown servant as a

nominal defendant, on the understanding that the Crown would satisfy any
judgment against him. A Royal commission submitted a draft bill of reform but the bill
did not become law. When, in 1946, the House of Lords refused to uphold the fiction
of the nominated defendant reform could no longer be delayed.

In torts, there was a prerogative immunity which was based on vicarious liability
against government. Public officers had to be sued in their personal capacity. After
great agitation, the Crown Proceedings Act, 1947, was passed and it subjected the
Crown to private law, with serious reservations.

In relation to the change in British colonies especially East Africa, it was submitted
that it was desirable in a modern democratic state, that subject to certain
safeguards, the Government should be able to sue and be sued as if it were a
private person of full capacity. If state action results in individual damage to
particular citizens, the state should make redress, whether or not there is fault
committed by the public officers concerned. The state is, in some ways, an insurer of
what is often called social risk. As a result, the iniquitous rule whereby government is
not liable, in tort or breach of contract committed by its servants has long been
discarded.

In Uganda, the Government Proceedings Act (GPA) was modelled on the Crown
Proceedings Act 1947. The GPA makes it possible for government to be sued as if it
was a private person. GPA is cap 77. There are special procedures and exemptions

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that may affect government liability contained in the Civil Procedure and Limitation
(Miscellaneous Provisions) Act cap.72.

The topic shall focus on government proceedings generally and specifically liability
of government, circumstances leading to its liability, procedure in suing government,
immunity/privilege and orders sought against government.

Meaning of Government Proceedings

The term "government proceedings" means a suit to which Government is a party.

Section 2(gg) of the Interpretation Act, Cap 3 defines Government to mean, “the
Government of Uganda". In law, a party is any person whether physical or legal,
having an interest in the subject matter of a dispute. The law recognizes
Government as a legal person. It has a right to sue and to be sued. According to the
Constitution of the Republic of Uganda 1995, all proceedings of a civil nature by or
against Government must come in the name of the Attorney General (Article 250 (2)
of the Constitution and S.10 of the Government Proceedings Act, Cap. 77).

When is Government Liable?

The Government Proceedings Act imposes legal liability on government in respect

of;
a) Contracts
b) Torts
c) breach of statutory duty
d) Any breach of those duties which a person owes to his servants or agents at
common law by reason of being their employer.

The classic view was to restrict Government proceedings to cases involving breach
of contract, commission of a tort and infringement of an intellectual property right
(S.2, 3 &4 of the GPA, Cap. 77). However, the enactment of the Constitution of the
Republic of Uganda, 1995 (as amended) seen to have widened the earlier scope by
providing to suits for enforcement of fundamental rights freedoms and suits for
constitutional interpretation, both categories of which will usually have Government
as the Respondent party (Articles 50 and 137 of the Constitution). Be that as it may,
the emphasis shall be made on cases involving breach of contract and commission
of torts.

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Circumstances giving rise to Government Proceedings

1. Contract.

Under common law, liability under contract could only be enforced by way of a
royal fiat. The GPA provides that government may be sued in contracts as if it was a
person. This position was found to be unsuitable when governments became
increasingly party to contracts which were of a commercial nature. Such contracts
included; contracts for supply of goods, services, construction contracts,
employment contracts etc. Such contracts required each party to meet its
obligation under contracts. This therefore means that government can contract as if
it was a private person and once it contracts, it's bound by the laws of contract.
Such contracts may be enforced under the general law of contract or under the
specific laws relating to various contracts e.g. employment contracts may be
enforced under provisions of the Constitution, public service laws, public service
regulations and standing orders.

Section 2 of the Government Proceeding Act provides that where any person has a
claim against the Government after the commencement of this Act and the claim is
either;
a) a claim based on contract which, if this Act had not been passed, might by
virtue of the Suits By or Against the Government Ordinance have been
enforced by an action against the Government; or

b) such that, if it had been made in England against the Crown in right of its
Government in the United Kingdom and if the Crown Proceedings Act, 1947,
of the United Kingdom had not been passed, it might have been enforced in
England, subject to the grant of Her Majesty's fiat, by petition of right, then,
subject to this Act, the claim may be enforced by proceedings taken against
the Government for that purpose in accordance with this Act. The section
evidently shows among others that Uganda applies the common law
principles before 1947 to proceedings against government.

(i) Unenforceable Contracts

They may be unenforceable contracts against government. Examples of such
contract are void contracts, contracts deemed to be contrary to public policy for
instance contracts to commit crimes, illegal contracts, and contracts entered into
when the parties had no capacity. Stinger Vs Minister of local government

Contracts involving money payment are only enforceable where parliament has
provided for the necessary funds. Contracts which may be in form of treaties are
unenforceable in the domestic perspective unless they have been part of municipal
law (ratified).

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As a legal person, the Government of the Republic of Uganda can enter binding
contracts subject to compliance with the requirements of Article 119 (5) of the
constitution. This article sets a condition precedent that all contracts by Government
of any agency or organization to which Government has an interest must be made
upon the prior advise of the Attorney General. Where such contracts are made,
they create rights and duties which are enforceable before of law. Government can
sue any party which breaches a contract. E.g. the Tullow Oil case. Similarly
Government can be sued for breach of such contract e.g. the Dott Service's case.

The right to sue government for breach of contract is contained in the Government
Proceedings Act (S.2 (a) of the Government Proceedings Act Cap.77). However
liability of government for breach of contract will a raise when a suit is filed within
three years from the date of cause of action accrued (S.3 (2) of the Civil Procedure
and Limitation (Miscellaneous Provisions) Act, Cap.72).

Characteristics of government contracts

(i) The contracts have usual attributes of private contracts e.g.

consideration, agreement, parties, terms and conditions. There are
however, special features which are common in government
contracts;

They are normally executed by senior public officers usually a minister, permanent
secretary or an ambassador especially if the country and public officer executing
the contract on behalf of government. Personal liability may arise where public
officer has failed/refused to oblige with the applicable law and procedures.

(ii) They are usually executed after the tendering process; it is an open
and competitive bidding process.

(iii) Entered on standard terms and conditions of contract, government

sets terms and conditions and the other party usually accept what has
been set or bargain from what has been set.

2. TORTS
A tort is defined as a civil wrong caused as a result of a breach of duty fixed by
Common-law, giving rise to a claim unliquidated damages. Example of torts include
trespass (Assaults, battery, wrongful arrests, false imprisonments, malicious
prosecutions etc.) trespass to goods (Conversions and detinue); and trespass to
land.

Another category of torts is negligence i.e. failure to observe a duty of care. There is
also defamation i.e. the publication of false statement intended to injure the
reputation of a plaintiff in the eyes of the right thinking members of society etc.
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Therefore, common law gives a right to a victim of any of these civil wrongs (torts) to
sue the wrongdoer for damages. Government is liable for tors committed by its
servants or agents during their ordinary course of duties (S.3 of the Government
Proceedings Act, cap 77). While the term “servant", is restricted to employees,
“agent" is wide and extends to independent contractors hired by Government
within two years from the date in cause of action accrued (S.3 (1) of the Civil
Procedure and Limitation (Miscellaneous Provisions) Act, Cap 72). An exception to
this legal requirement can only arise when a plaintiff successfully pleads disability.

Government liability on torts arises by virtue of the principle or vicarious liability.

Under this principle, a master or employer will suffer damages for civil wrongs
committed by his servants or agents during their ordinary course of duty; no matter
where such action/omissions were authorised or not, were lawful or not (Muwonge v
Attorney General).

Section 3 of the Government Proceedings Act (herein called GPA) provides that
subject to this Act and Section 4 of the Law Reform (Miscellaneous Provisions) Act,
the Government shall be subject to all those liabilities in tort to which, if it were a
private person of full age and capacity, it would be subject;

a) in respect of torts committed by its servants or agents;

b) in respect of any breach of those duties which a person owes to his or her
servants or agents at common law by reason of being their employer; and

c) in respect of any breach of the duties attaching at common law to the

ownership, occupation, possession or control of property, except that no
proceedings shall lie against the Government by virtue of paragraph (a) of
this subsection in respect of any act or omission of a servant or agent of the
Government unless the act or omission would, apart from this Act, have given
rise to a cause of action in tort against that servant or agent or his or her or
estate.

Section 3 (2) of GPA, provides further that, where the Government is bound by a
statutory duty which is binding also upon persons other than the Government and its
officers, then, subject to this Act and section 4 of the Law Reform (Miscellaneous
Provisions) Act, the Government shall, in respect of a failure to comply with that
duty, be subject to all those liabilities in tort, if any, to which it would be so subject if it
were a private person of full age and capacity.

Under section 3 (3) of the GPA, where any functions are conferred or imposed upon
an officer of the Government as such, either by any rule of the common law or by
any enactment, and that officer commits a tort while performing or purporting to
perform those functions, the liabilities of the Government in respect of the tort shall
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be such as they would have been if those functions had been conferred or imposed
solely by virtue of instructions lawfully given by the Government.

Section 3 (4) of the GPA states that any enactment which negatives or limits the
amount of the liability of any Government department or officer of the Government
in respect of any tort committed by that department or officer, apply in relation to
the Government as it would have applied in relation to that department or officer if
the proceedings against the Government had been proceedings against that
department or officer.

However, under section 3 (5) of the GPA, no proceedings shall lie against the
Government by virtue of this section in respect of anything done or omitted to be
done by any person while discharging or purporting to discharge any responsibilities
of a judicial nature vested in him or her, or any responsibilities which he or she has in
connection with the execution of judicial process.

From S.3 of the GPA Cap 77 above, government is liable in torts under the following
limbs;
(i) Vicarious liability
(ii) Employer's liability
(iii) Occupier‟s liability.

a. Vicarious Liability

It arises like where there is master and servant relationships; employer and
employees relationships. Under vicarious liability, a master/employer is liable for the
torts committed by his servants during the course of employment while in duty. Such
torts can only arise where a servant is acting within the scope of employment. Thus,
where a servant of the state commits a tort in the course of his employment, the
servant and the state are jointly and severally liable. Section 3(1) (a) of GPA makes
government liable for torts committed by its servants or agents.

What is scope of employment?

a) Scope means doing what is expressly or by implication authorised.

b) Doing what is authorised in a way which is not authorised e.g. driving
recklessly.
c) What is incidental or consequential upon what is authorised.

In Muwonge Vs AG (1969) EA 7, New Bold P stated that the policemen had been
sent to quell a riot and the means given to them was the rifle. Having found the riot
going on, one of the police fired just like others. For that reason the use of rifles must
have been contemplated by their seniors and thus the act of the policeman, was in
the course of his duty and the government was vicariously liable.
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In Piovano V AG [1972] EA, Court held that the test to be applied in such cases was
that, the wrong of the servant must be the natural result of his carrying on his masters
business or duties. See also Mukwase Vs AG (1972) HCB 29.

In Namwandu V AG [1972] EA, court held that at the time of the accident, the
soldiers were acting on frolic of their own and not doing anything for their masters as
such, government could not be held vicariously liable for the torts committed by
them.

b. Employer's liability

S.3 GPA provides that government will be liable for breach of those duties which a
person owes his servant or agents at common law by reason of being their
employer. These include;

a) Responsible for safety in employment by employing competent staff.

b) Provision of safe, suitable place and tools of work which are appropriate.
c) Provision of effective supervision and system of work e.g. when injured at
work, compensation is provided for under worker's compensation act, an
employer has a duty to pay.

c. Occupier's liability

Government as an occupier of premises is also under a legal obligation to ensure

safety of those premises. S.3 GPA makes government liable for breach of those
duties which under common law are attached to ownership, occupation, possession
or control of property and generally these duties relate to safety of the property to
invitees (people who are legally there) or neighbours ( persons likely to be affected
by that nuisance.

d. Trespass to a person

This is a wide connoting any form of direct and international invasion of a person's
liberty to freedom. Article 23(1) of the Constitution prohibits against any form of
deprivation of personal liberty to freedom such as arrests or detention; except under
the following;
a) An execution of a sentence passed by a competent court of law/tribunal in
respect of a criminal conviction.
b) An execution of a court order/decree passed by a competent court to
enforce a civil judgment committing a judgment debtor to a civil prison.
c) Upon where a court has issued a warrant of arrest against a suspect or witness
for purposes of compelling their attendance before that court/tribunal.
d) For the purpose of compelling a child to attain education.
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e) For protection of society against or for the personal treatment of a person
reasonably suspected to be of unsound mind or one addicted to drugs and
alcohol.
f) For protecting the sovereignty of Uganda against entry by illegal immigrants.

Where a person is arrested he or she shall;

a) Be detained in a place authorized by law.

b) Produced to court within 48 hours or otherwise released on police bound (Art.

23(2) &4(b) of the Constitution). It is against this background that the right to
an order of habeas corpus has been made inviolable (Art.23 (9) of the
Constitution).

c) Article 23 on human liberty to freedom is further supported by art.24 thereof

which provides that no person shall be subjected to any form of torture, r
cruel inhuman or degrading treatment or punishment.

Be as it may, the duty to maintain law and order on the part of Government has
sometimes conflicted with the individual interest to personal liberty leading to
circumstances of trespass to a person. Most of the litigation under this area surround
torts such as assault and battery, wrongful detention/false imprisonment and
malicious prosecution.

(i) Assault and Battery.

An assault means the direct and international threat targeting the plaintiff leading to
an apprehension that his life is in danger of the unlawful attack on his person. To be
actionable, the plaintiff needs to prove that the threat was made by a person
capable of executing it and in such circumstances of anger and annoyance. Mere
abusive words not accompanied by any action cannot amount to an assault. Lastly,
the threats must be seen to yield immediate results. Therefore, any threat by the
defendant that he will inflict future danger on the plaintiff is not actionable. On the
other hand, a battery means an assault effected to its logical conclusion. It thus
means the striking of the plaintiff's body by the defendant while under anger. Any
slightest touch or pushing of the plaintiff's body by the defendant while under anger.
Any slightest touch or pushing of the plaintiff's body made by an angry defendant
constitutes a battery. Therefore, while the chasing of a person facing an arrest by a
police officer may constitute an assault on him, the actual arrest which involves
touching his body in anger does constitute a battery, and may be actionable unless
made under justifiable circumstances.

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(ii) Wrongful arrest/false imprisonment

While it is a right of every person facing danger to report the suspect to police, a
complainant must act on reasonable suspicion before setting the law into motion. If
he does this and the police in the course of investigating such a complaint basing
on its own judgment takes a decision to arrest the person complained against and
take him to a police station, then such arrest is lawful and no action for wrongful
arrest can lie against the complainant (John Mubiru v Attorney General [1984] HCB
46). Likewise arrests engineered by police officers themselves must also be based on
reasonable suspicion that the person being arrested has committed a cognizable
offence, is committing a cognizable offence, or is likely to commit a cognizable
offence.

Anything falling below the standard will render the arrest wrongful in Samuel
Kaggwa Byekwaso v. Attorney General [1982 HCB 101, the plaintiff. Manager of
National Textiles Board sued the defendant for unlawful arrest and detention. The
Plaintiff had been arrested by two uniformed army men, two uniformed police men
and a uniformed prison warder and detained at a police station for 36 days, on
allegations that he had committed offences of selling fabric at exorbitant prices
contrary to the provisions of the Economic Crimes Tribunal Decree. The plaintiff was
as a result subjected to bad treatment, sometimes going without food and generally
kept like a common criminal. After about two weeks while in custody, the Director of
Public Prosecutions (DPP) advised the Prison authorities to release him, which advice
was ignored. He was finally released without being charged and re-admitted to his
former officer of employment.

Exceptions to liability

Liability of government may be limited in certain circumstances e.g.;

(i) Where under any law, the responsible officer of government is

absolved from liability for a particular act/omission e.g., police officers
are not liable when they act in good faith in carrying out their duties as
under the Police Act.

(ii) Judicial immunity which protects judicial officers who may act in a
manner which inconveniences other persons e.g. wrong decision. In
Anderson Vs Gorrie, Court was of the view that no action can lie
against a judicial officer even where it is shown that the judicial officer
was malicious or corrupt.

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In AG Vs Oluoch, the Magistrate was sued together with the AG and police officers
for wrongful arrest and detention. AG challenged the suit was misconceived
because it was brought against magistrate who had judicial immunity. Court held a
suit could not be maintained against a public officer who had judicial immunity.

(iii) Act of state doctrine as a defence.

This means that transaction between state and foreign powers cannot give rise to
any action/suit under municipal law to individuals. In Olle Njogo Vs AG, which
involved the treaty between British government and Masai county and British
government challenged the suit since it was an act of state and cannot lie in a
municipal court. Court held not acceptable to sue state.

In Katikiro of Buganda Vs AG, the State successfully pleaded an act of state doctrine
relating to 1955 Buganda agreement.

(iv) Torts committed by members of armed forces, as member of the

armed forces cannot sue government for personal injuries which are
inflicted by another member of the forces while on duty.

Procedural Matters

S.7 GPA provides all civil proceedings by or against the Government in the High
Court shall be instituted and proceeded with in accordance with rules of court and
not otherwise. There are however, a few exceptions which are mainly contained in
Civil Procedure and Limitation Act (miscellaneous provision Act). NB. To protect
public interest some of the important procedural matters include; specific
procedures which apply to government not other entities.

a) Statutory notice.

S.2 of Civil Procedure and Limitation (Miscellaneous Provision) Act provides inter alia
that no suit shall be brought against government, local authority or scheduled
corporation until a statutory notice of 45 days has been served. The purpose is that
the notice should have been served to appropriate officer (Attorney General) or the
head of scheduled corporation or CAO in Local Government. The requirement of
notice is based on the idea that on receipt of notice, government will make a
decision as to whether it is necessary to entertain the suit.

The notice includes the substance of the claim, amount of money claimed or other
relief and also a summary of elements supporting the claim. The section also
provides that the plaint against the government must also include the clause
specifically pleading that notice was served. The recent decision of Kabandize
Joseph and 20 Ors vs AG has somehow affected this requirement.
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b) Suits against the government are brought against the AG
Under Article 119 of the Constitution, the Attorney General shall represent
government in courts or any other legal proceeding in which government is a party.
Section 10 of the GPA, provides that Civil proceedings by or against the Government
shall be instituted by or against the Attorney General. Section 11 thereof requires
that all documents required to be served on the Government for the purpose of or in
connection with any civil proceedings by or against the Government shall be served
on the Attorney General.

c) Suits against AG may be brought in any court which has jurisdiction over the
matter in question.
The AG may however, apply to have the suit transferred to high court, if it is filed in
lower courts and AG may make the application where there is an opinion that an
important matter of law may arise from that suit. This is provided under section 13 of
the GPA.

d) Limitation periods relate to periods in which an action must be brought

against a party.

Under S.2 of Civil Procedure and Limitation Act, no action founded on tort can be
brought against government, local authority or scheduled corporation after the
expiry of 2 years from the date of which the action was done. The section also
provides that no action founded on contract shall be brought after expiry of 3 years
from the date on which the action arose.

Other rules which give special exemption to government relate to remedies and
evidence. Remedies in civil proceedings may with a few exceptions be made
available against government. However, there some remedies which are not
available against government as provided under Section 14 of the GPA. These
include;
a) Injunction.
b) Specific performance and
c) No remedy of attachment can issue against government property i.e. one
cannot attach government property. Section 19(4) of the GPA Cap 77 is to
that effect. It provides that except as is provided in this section, no execution
or attachment or process in the nature of an execution or attachment shall
be issued out of any court for enforcing payment by the Government of any
such money or costs as are referred to in this section, and no person shall be
individually liable under any order for payment by the Government, or any
Government department or any officer of the Government as such, of any
such money or costs.

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S.14 of the Civil Procedure and Limitation Act provides that an injunction, specific
performance and attachment cannot be awarded.

S.19 of GPA provides for the state fiction of orders against government where if a
person has had a suit ruled in their favour and costs awarded, he can make an
application in that respect after the expiration of 21 days from date of the order or in
case the costs have to be taxed after they have been so taxed for a certificate of
court that the order of costs be paid.

d) An exparte judgment cannot be made in default of appearance of

government under the Government Proceedings (civil procedure) Rules.

e) State privilege in the law of evidence as per S. 121 of the Evidence Act as well
as 132. They give the state privilege in the law as regards to evidence, that a
public officer cannot be compelled to give evidence relating to confidential
government communication. See Article 41 of the Constitution. Also see,
Tinyefuza Vs AG. In light of the above, is it a justifiable protection of the state?
Are they in line with the constitution and judicial precedent set in the
Tinyefuza case?

Note
Government proceedings today are no longer an absolute bar as it used to be
under common law. There are several actions that can be brought against
government and the law requires government to defend the same. That
notwithstanding, government still enjoys immunity from civil proceedings in
exceptional cases.

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TOPIC

REGULATORY AND ADVISORY BODIES

INTRODUCTION

A regulatory agency (also functional agency, regulatory authority, regulatory body

or regulator) is a public authority or government agency responsible for exercising
autonomous authority over some area of human activity in a regulatory or
supervisory capacity. An independent regulatory agency is a regulatory agency
that is independent from other branches or arms of the government. Regulatory
authorities are commonly set up to enforce safety and standards, and/or to protect
consumers in markets where there is a lack of effective competition or the potential
for the undue exercise of market power.

To regulate literally means exercising a deliberate control. Regulating is one of the

major functions of every government. Most of the regulatory function of government
is performed through licensing, registration, inspection and compulsory acquisition.
This function involves exercise of powers. It is the concern of an administrator or
future administrator to abreast himself or herself with aspects of exercise of such
powers and authority over citizens' rights.

Meaning of a Licence

A license is an express permission granted by an authority to a person or

organization authorizing the carrying out of an activity which would have otherwise
been illegal.

There are two categories of license;

a) General license- opens a whole field of activity to an individual. It is usually

granted to business people and professionals.

b) Specific license- is granted to a person to carry out a specific action and it

expires when such action has been accomplished. E.g. a license to kill an
elephant or to import goods expires as soon as the elephant has been killed
or the goods are imported respectively.

Official licenses are issued in a documentary form under the hand and seal of the
issuing authority. They reflect the date of issue and the expiry date. Other licenses
reflect the conditions or restrictions on which the right to enjoy a license is subjected
to. This means that even if Article 40 of the Constitution provides for economic rights,
these freedoms are not absolute and are subject to various controls by those in
authority.
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Government has an interest in every activity affecting the public. Government can
promote any positive activity or undertaking by freely granting a license to a
suitable applicant. In the same measure, it will restrict an activity which poses a
threat to the public or offers less benefit to the public by tightening conditions on
which such licenses' will be granted or renewed. This means that while it would be
easier for a prospective trader to obtain a license to manufacture or deal in
stationery products, it is a very tall order to get a license to cultivate cannabis
(marijuana) in Uganda. Having examined the policy behind licensing, one can
examine a few justifications for licensing.

Justification for Licence

a. Source of public revenue

Most procedures require that an applicant pays a prescribed fee to the licensing
authority before a license is granted. In so doing, government raises revenue which
can enable her extend services to the people.

b. Prevention of harm to the public.

Under the National Drug Act for example, certain classes of medicines can only be
handled by persons who have acquired a minimum professional qualification
because of their strong negative consequences on human life. It would be only such
qualified persons as will be licensed to deal with such drugs. Time and again
therefore we have witnessed a team of drug inspectors closing certain drug shops
and prosecuting offenders who are found to act in breach of the law. The same is
true to services of a professional nature like teaching, legal practice, medical
practice, architecture, accounting, engineering which require one to obtain a
license from a regulatory body prior to setting up any practice.

c. To make particular businesses profitable.

It is the interest of government to support commercial men to make money and

operate their businesses on profit. This is so because of the belief that the more
money a business will generate to its proprietor, the greater the capacity to employ
other citizens and also to pay taxes. Government can thus through licensing limit the
number of businesses offering the same product or service to the public in favour of
existing enterprises. It can achieve this through the method of zoning. Kampala City
Council Authority can for example set a limit on the number of pharmacies to
operate in every division of the city. Of late the President of the Republic of Uganda
has sent back to Parliament for reconsideration of legislation in a bid to make sugar
business lucrative to big investors like Kakira Sugar Works (K.S.W), Sugar Corporation
of Uganda (SCOUL) and the like. Before such zoning is preferred, it must be based on
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rational grounds that the protected business has invested more in a given industry
and other emerging competitors are sailing on its goodwill.

d. Maintenance of public order and to promote honest industry

It is the duty of every government to have a productive citizenry. Therefore time

consuming activities like sports betting and bar businesses are controlled through
licencing. This is so because they are deemed to be very disruptive to social order.
Only full adult persons are allowed to engage in them. Equally so sometimes the
hours of accessing these facilities are regulated to give citizens a chance to
concentrate on productive enterprises.

In Gulu District for example, The District Council passed a bylaw prohibiting the sale
and distribution of sachet waragi. This means that no business proprietor can secure
or maintain a license in this district if he or she is dealing in this prohibited commodity.
Likewise, the Communication Commission is cognizant of the fact that broadcasters
can abuse the privilege and pass over information on their various radios and TV
stations which turn out to be divisive or secretarian in nature and thereby fuelling
disunity or genocide. Licensing thus becomes appropriate if public order is to be
maintained.

e. To protect and conserve natural resources

Delectable resources like minerals, fish in natural water bodies, natural forests, game,
wetlands etc., can only be conserved by regulating their accessibility and utilization
through concession licenses. Being public resources, they belong to every Ugandan
both living and those yet to come (posterity). Government has no power to alienate
any part of these natural resources to private ownership but to manage them
diligently for the common benefit of everyone. In case of forests whose part may
stand in the way of investment, government must first degazette the same before
issuing a lease on such land. The degazettement must be done on a condition that
the investor will or has planted at his own cost a similar acreage of trees elsewhere
within the country in order to maintain a proper eco system. It is this under this very
effort of conserving natural resources that government is at war with fishermen using
poor quality fishing gears that targets at quick personal enrichment at the expense
of the nation.

f. Human safety
This applies to such things as factories, blasting operations, mines etc. the licensing
authority must satisfy itself that there is no risk to human beings when that activity is
being carried out.

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g. To maintain a monopoly

A natural monopoly can be defined as a service that can be efficiently provided by

one operator, i.e. National Water and Sewage Corporation.

The function of licensing can be a source of disputes especially when the same is
denied, suspended, withdrawn or revoked. As administrators, it is our duty to
understand that every administrative act must derive its authority from a particular
statute. This means that if we are to carry out any adverse act we should adhere to
the law and its set down principles of fairness. We should desist from licensing in
contravention of the law, just as de-licensing in breach of the law otherwise our
actions will become a subject for judicial review.

We should avoid acting with anger, emotions and unreasonableness. Sometimes a

high default rate in compliance with payments of license fees can be cured by
sensitization than by locking out peoples' businesses. Alternatively, acting rationally
by avoiding generalization of businesses found in the same location but with
different amounts of working capital can increase compliance and promote a
working relationship between the authority and the citizens under its control.
Administrators need to strike a balance between state/authority interests and the
rights and freedoms of the taxpayers (citizens). The authority should avoid gaining an
image of an oppressor through her licensing powers but one of an enabler to the
citizen's aspirations.

The Registration Function of Government

The registration function of government involves compiling an authentic public

record that can be relied upon for future planning purposes and other policy
considerations. It is through registration that governments can gain an insight into
the growth levels and development aspects in any given sector. Government can
for example plan for a country's education needs when it has an authentic record of
the total population broken down into age groups; the total existing number of
schools and other teaching institutions, the total number of teachers/lecturers and
their qualifications, and the existing job vacancies required to be filed. Likewise, a
government cannot imagine how much it is projecting to fetch from motor vehicle
licenses unlike it is in-charge of registration of every vehicle and thus has a record on
which to estimate the motor vehicle import needs of a country every year.

Equally, dangerous articles like guns must be registered to ascertain in whose

possession they are placed.

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Remarkable aspects of compulsory registration which have taken place in Uganda
include;

a. National citizenship registration

This had been confirmed by government issuing national identity cards to its citizens.
Invariably, the national ID is the authentic basis for exercising one's democratic rights
to vote or to be voted for.

b. Registration of sim cards

No telecom provider can keep on air any phone line which is not registered by the
service provider. This was justified of security concerns.

Besides these, government has had registrars and for long carried out registration of;
(ii) Every new entrant into a given profession.
(iii) Every newly incorporated companies both private and public including
NGO's & Cooperative Societies/SACCOS.
(iv) Every motor vehicle/large boat operating within Uganda.
(v) Every birth and death of a person in Uganda.
(vi) Every marriage celebrated under any recognized form in Uganda.
(vii) Every titled land, etc.

Since registration confers rights it is the duty of government to register every

qualifying person, article, land or business in accordance with set down procedures.
An applicant whose application for registration is made must receive such
registration within the legally stipulated time or within a reasonable time.

Where such application is unsuccessful, the responsible officer is supposed to

communicate a feedback within the time frame regulating such activity to the
affected person accompanied by a reason or reasons why the application wasn't
successful; or advising the applicant on what he or she requires to fulfil and resubmit
back the application for registration.

Furthermore dispute resolution mechanisms must be put in place and explained to

affected persons who may have expressed their grievances. These measures should
also be available where a regulator considers de-registering a person, an article,
land, a marriage or any business. Aspects of natural justice like service of a notice for
the intended act to the affected person must be done, and an appropriate hearing
conducted prior to making a decision. A regulator must be diligent enough not to
allow him or herself act ultra vires or acting on irrelevant considerations or under
dictation from orders from above.

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These are inbuilt aspects of fairness which must not be ignored in the course of
carrying out an administrative process, lest such illegal and irregular conduct will
become a subject of judicial review.

The Inspection Function of Government.

To inspect means to check on something being done under a license or one's
authority at the instance of the regulator. The purpose of an inspection is to cross-
check and confirm whether a licensed or authorized activity is being carried out in a
manner or standard prescribed by the law.

Inspection derives its legitimacy from the common human weaknesses that a man
un supervised is likely to descend in satisfying personal interest against what may be
required of him by law. A simple example is when a herdsman driven by a selfish
motive will adulterate milk to gain more litres for sale aware that the buyer has no
capacity or opportunity to detect his wrong doing. Likewise licensed businesses like
Petrol service stations, Schools etc. can delve into irregular and improper practices
that may vitiate quality of their services and products unless thoroughly inspected.

Inspectors are usually given unrestricted powers of entry and egress to premises
being inspected. They also have powers under the law to recommend
improvements. They can also order for a closure of certain business.

Your duty as an administrator who may one day be fortunate to serve as an

inspector is to remember that these powers are not absolute. They must be
exercised discretionary rather than capriciously. Always stand firm and act in
accordance with the law and rules of fairness. Avoid wearing a flawed character.
Don't allow yourself to be dragged into fighting business wars at the whim of business
competitors.

Only focus on the greater public good of protecting the public against consuming
substandard and dangerous goods and services coming on the markets. The
message is: keep professional, keep ethical. Be guided by the law and the good
sense of its administration, lest your actions will be challenged by judicial review.

According to the World Bank, 2005 (Good Practices for Regulatory Inspections:
Guidelines for Reformers), a good inspection system should aim at the following;

(i) maximizes compliance with clear and legitimate government

regulations by detecting and deterring non-compliance consistently
and fairly;

(ii) minimizes uncertainty and regulatory risks for businesses by operating

transparently and under the rule of law;

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(iii) fights corruption by reducing the opportunity for abuse of discretionary
powers; and

(iv) Minimizes costs to businesses and optimizes costs to governments by

using resources efficiently to target the highest risks.

Compulsory Acquisition

This is when private property is compulsorily acquired by the state. Such property
may comprise of shares in a company or real property such as land and building(s).
Government can compulsorily acquire shares in a company if it wants to Africanize
an economy like what entailed Idi Amin's Economic War against the Asians in the
early 1970s.

It can acquire vacant/open land if it intends to use it for public purposes like
constructing a road thereon, a school, a hospital, and an administrative
headquarter or a barracks. It can however not acquire private land for reallocation
to an investor. Then government can acquire a building if its location may
compromise the security of a president like the Okello house which had been
constructed adjacent to Nakasero State House.

Whichever property government is interested in compulsorily acquiring, such

acquisition must be made under a law which provides for adequate and quick
compensation before the taking, and a right to challenge the quantum of
compensation before a tribunal or court of law prior to the taking possession by
government (Art. 26 (2) of the Constitution).

In a number of urban authorities and local governments, a need to serve the public
has arisen in the form of opening access roads, feeder roads or construction of
health centres. Sometimes funds are released to be utilized for such works/services in
a given financial year yet no land is available on which such developments can be
made. The best approach is to call a meeting of stakeholders and sensitize the
community of the need for the development and the effect on the allocated grant
within the financial year. This intervention is intended to forestall suspicions of foul
play within the process. Avoid going through local leaders who have lost credibility
in the eyes of the community on account of dishonesty. Once you reach an
understanding that the land owners have accepted to donate land for the
proposed project, show acknowledgment by thanking them. Then commit them to
signing a memorandum of understanding with the Town Council, Municipal Council
or Local Government Council. Ensure that the MOU contains a certificate of
translation and that the same is witnessed by an advocate. This measure is intended
to secure a free consent as later these people may turn against their consent
claiming undue influence, duress or ignorance of the substance of the subject
matter.
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If the community cannot give the land freely, do not force the development on
them by even destroying their property. This may become a subject of a suit by way
of government proceedings will dire financial consequences on government.
Always remember that Art. 26(2) of the Constitution protect private property and
Art.21 renders all persons are equal before the law. In such instances where there is
no willingness to donate the land for public use, the acquiring entity must make an
offer to buy the same from its owner at the on-going market value. Once an
agreement is reached, the same should be reduced into writing and witnessed by a
state attorney from the Attorney General's Chambers. Section 6 of the Local
Government Act makes every local council/urban council a corporate personality
with powers to contract under its own name. This means that the agreement will be
made between the land owner selling the same and the Council buying it.

It is important to conduct due diligence as to ownership, tenure and size of the land
before money is exchanged. Where the land sold is registered land and the seller is
selling part of it, he or she should deliver a duplicate certificate of title (owners copy)
to the purchaser for purposes of carrying out a mutation process.

Advisory Bodies

These are bodies set out by the Constitution or Acts of Parliament to render advice
to public officials on technical matters. They include the Public Service Commission,
The Judicial Service Commission, Uganda National Examinations Board etc., etc.

As administrators you need to keep abreast with the laws relevant to your particular
organization. If there is a requirement to consult or to seek advice before taking a
decision, then you have no choice but to make such consultations, otherwise your
decision will be void. For example, while the President has powers under the
Constitution to appoint judges, he must do so on advice by the Judicial Service
Commission. Likewise, while the President has powers under the Constitution to
appoint a Chief Administrative Officer (CAO) or Town Clerk, he must do so upon
advice by the Public Service Commission.

On the other hand, Art. 119 inter alia provides that all contract in which government
has an interest must be signed upon prior advice from the Attorney General.
Furthermore, while the National Council for Higher Education has power to issue a
certificate of equivalence to “A”, level, it has to do so in consultation with UNEB. In
one of the election for LCV Chairpersons of Kamuli District, a certain candidate who
was the NRM flag bearer namely Ahmed Kawooya Kaugu defeated his arch
political rival namely Fred Bwagu. In securing the nomination for the said elections,
Mr. Kawooya Kaugu had first approached NCHE with a certificate of admission to
Kampala University, which NCHE relied on to issue him with a Certificate of
equivalence to 'A' level, which he then took to Returning Officer and was
accordingly nominated. Mr. Fred Bwagu challenged Haji Kawooya's victory in court
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on grounds that he was not duly nominated as NCHE had omitted a mandatory step
of seeking consultation from UNEB as is required by the Parliamentary Elections Act
for such cases since the PEA supplements the Local Government Act in electoral
matters therein. On this ground alone of failure to consult, court nullified the victory
of Hajji Kawooya Kaugu and declared Kamuli District LCV seat vacant! Furthermore,
in the Constitutional petition by Hon. Gerald Kafureka Karuhanga v the Attorney
General, the court faulted and nullified the President's re appointment of the then
Justice Odoki as Chief Justice since he had ignored advice by Judicial Service
Commission against such reappointment after consultation from the Judicial Service
Commission.

The emerging thrust is that once there is a duty to seek advice or to consult before
taking a decision, a public officer must oblige. Once this is done, then the resultant
decision is proper in law even if it was taken against the given advice, unless where
the law makes it mandatory to follow such advice. For example, once a
government entity or public officer has sought the technical opinion of the Attorney
General/Solicitor General on a legal matter, such public body or officer must abide
by that advice, lest he or she becomes accountable for the negative
consequences of such decision.

Note
The Regulatory and Advisory bodies of government are key in execution of
government functions. They are very critical in resource mobilisation, quality
assurance, safety control and natural conservation. All these functions are important
for effective management and execution of government duties.

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TOPIC

DELEGATION OF POWERS

INTRODUCTION

There are three main organs of the government-the legislature, the executive and
the judiciary. The legislature has legislative powers to make laws for the country while
the executive has powers to formulate policies, implements and enforce the law;
the judiciary interprets the laws and adjudicates over matters brought before it. In
the olden days, government was only interested in few such as raising tax, raising
army for defence of the country and maintenance of security of the state. However,
modern system of government has imposed on governments social, cultural
economic, agricultural and other matters of human endeavour.

The exercise of power and authority may be done directly by the person to whom it
has been conferred or indirectly through his subordinates; under a process termed
as delegation.

Delegation of powers refers to a process whereby functions and powers of a superior

officer are carried out/exercised by a junior officer without the possibility of acting
ultra-vires.

To delegate is to assign or entrust someone with responsibility or authority.

Delegation requires a principal who delegates and the delegate to whom authority
is delegated. In an organization delegation is ordinarily from above with a person in
a superior position delegation to a subordinate member of the team. There are rare
instances where a subordinate will delegate to a superior officer also known as
delegating upwards. Delegation is different from acting where a person substantially
takes on all roles consequently there is no 'delegation allowance'. Delegation must
be effective and complete do not delegate then follow up to supervise how the
delegated authority is being executed.

Rationale for Delegation

1. Save time-you can focus on the bigger picture and legacy issues when you
delegate the smaller things.
2. Achieve more-by delegating you reduce heavy burden upon yourself which
can be overwhelming. You can complete more tasks with more hands.
3. Increase your value by focusing on high value outputs.
4. Capacity building and skills development for team members.
5. Utilizing specialist skills you may lack.
6. Increased self-esteem and confidence.
7. Greater job satisfaction.
8. Succession planning -you will not be there forever.
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9. Greater efficiency.
10. Greater synergies-1+1=3.
11. Team flexibility-every member of the team can do all team tasks. Building
greater teamwork.
12. Balanced workloads.
13. Better staff retention and greater work satisfaction

Nature of Delegation of Powers.

Delegation of powers may be as a result of a Constitutional provision, statutory

provision or administrative convenience.

a. By the President

Article 99 (4) of the Constitution of the Republic of Uganda,1995 provides that;

The President may exercise his executive powers directly or through
officers subordinate to him.

The essence of the provision thus is that the President may delegate his powers.
Under the Transfer of Powers Act, the President may authorize any Minister to carry
out his powers and functions by publishing an instrument to that effect in the
Uganda Gazette (Subsidiary legislation).

In Amos Mugisha v. Uganda the applicant was detained under a detention order
which was signed by the minister for the president and was authenticated by a
public seal. Upon challenge of such order, the Court noted that whereas the power
to make a detention order in this country, (S.1 Public Order and Security Act 1967) is
vested in the president, such power may be exercisable by such minister as the
President may authorize on that behalf. It is clear that the president may delegate
his power or authority.

b. By the Ministers

Ministers may also delegate their powers and functions. Statutory powers of a
Minister, however, may not be delegated where there are specific prohibitions
preventing such delegation e.g., Section 175 (2) of the Local Government Act, a
Minister for Local Government is empowered to amend the schedule of the Act and
such Minister cannot delegate such powers. Equally powers conferred on the
Minister under various statutes to hear and determine administrative appeals cannot
be delegated.

Delegation of powers is also invalid if it involves delegation of powers which are

expected to be performed by particular public officials e.g., judicial powers, or the
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President's powers to assent to Bills passed into law by Parliament or his powers to
constitute cabinet. Other examples of non-delegable powers include the powers of
the Director Public Prosecutions (DPP) to enter nolle-proseque/withdrawal of criminal
charges/cases from courts of law.

When powers are conferred upon ministers who are in charge of large departments,
it‟s obvious they will not be exercised by the ministers in person. Officials in the
ministers department acting in his name, customarily exercises these functions.

In Carlton Ltd v. Commissioner of Works [1943]2 ALL ER .560 the owner of a factory,
challenged a wartime requisitioning order made on behalf of the commissioner of
works which was signed by an assistant secretary claiming that it was ultra
vires however, the Court of Appeal held that this procedure was open to no legal
objection. Lord Green Said;

“…It cannot be supposed this regulation meant that in each case

the minister in person should direct his mind to the matter. The
duties imposed upon ministers and powers given to ministers are
normally exercised under the authority of the minister by responsible
officials of the department. Constitutionally, the decision of such an
official is of course the decision of the minister. The minister is
responsible; it is him who must answer before parliament for
anything that his officials have done under his authority.”

Procedure of delegation

a. Statutory Instrument
Delegation of statutory powers is made by a Statutory Instrument (SI) which must be
published in the gazette. See sections 14&15 of the Interpretation Act, Cap 3.

b. Ministerial Circulars and Directives

Ministerial powers may be delegated by way of Ministerial Circulars and Directives.

These may not be published in the gazette unless there is a legal requirement to do
so.

c. Administrative Process
Delegation of powers may be implied and assumed as a result of approved
administrative process.

d. Proclamation
Delegation of powers may also be done by proclamation. This is normal in cases of
Presidential delegation of powers.

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Rules governing delegation of powers

a. Delegation of Power by a Public authority

If power is vested in a public authority, that authority can entrust the exercise of
those powers to an officer of that very authority or a committee of that authority
subject to the following two fundamental conditions;

a) That the authority must reserve to itself the power to ratify the exercise of the
power by the delegate.

b) The authority must control the delegate to avoid instances of abuse of such
delegated powers or acting ultra-vires.

The term 'ratification' means the power of the principal to validate actions done by
the subordinate without proper authority.

For avoidance of doubt a principal can invoke the power to ratify a decision under
the following circumstances;

a) Where the subordinate's exercise of powers was unlawful on the ground of

ultra-vires i.e. that one acted without proper authority. In such instances, a
proper authority will step in to confirm that what was done is proper and that
the initial want of authority is now valid.

b) Ratification can only be effective if the unlawful subordinate officer's

action/decision has not been challenged before a court of law. Once it is
challenged, the unlawful deed can no longer be ratified. See: Municipal
Board of MIombasa vs.Kala.

The effect of ratification therefore is to cure all initial irregularities' of lack of authority
so that the unlawful act is presumed to be an act of the proper authority.

b. Chain of Command
Delegation follows a chain of command in that the power should be delegated to
the immediate person in the chain of subordinates.

c. A delegate cannot delegate

Delegation of powers should not be in defiance of the principle of “delegatus non
potest delegare”, which means that, a delegatee cannot delegate.

As a general rule, a delegate may not sub-delegate his/her authority, power or

functions to another person, authority, body or agency. This rule is couched in the
maxim “Delegatus non potest delegare”. In A. G. (Bendel State) vs. A.G.
(Federation) (supra),the Supreme Court held inter alia that, two houses of the
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National Assembly cannot delegate its law-making functions to a committee of the
House.

d. Powers that cannot be delegated

Each arm of the government performs a different task with different measure of
inherent powers. However, it is inevitable that each of the arms of government
cannot wholly exercise these powers, there are certain powers, which under no
circumstances, must be delegated.

Among those powers that cannot be delegated are:

a) The judicial powers of the regular courts;
b) The parliamentary powers of the legislature such as; Its legislative functions
other than power to make subsidiary legislation,(that is delegated legislation
under the relevant enabling laws already made by the parliament);
c) Power to declare war;
d) Power to declare a state of emergency; and
e) Power to impeach.

In addition, generally, the following functions cannot be delegated:

a) Duty which must be performed personally; and
b) Duty which involves exercise of discretion.

Thus, for a power or function to be delegated, it must be that which another person
can perform and no provision against it have expressly been made.
In A.G. Bendel State vs. A.G. Federation & 22 Others (1981) ALL NLR 85; the
Government of Bendel State brought an action challenging the passage of the
allocation of revenue (federal account) bill into law by joint finance committee of
both houses of the National Assembly. The Supreme Court held inter alia, setting
aside the allocation of revenue (federal account) Act 1981 as null and void, that
neither the senate nor the House of Representatives of the National Assembly has
power to delegate its legislative functions to a committee.

Consequently, the joint finance committee has no power to decide whether a bill
shall be passed into law as it is incompetent to take over the legislative powers of
the National Assembly (See also: Tende & ORS vs. A. G. Federation (1988) I NWLR
pt.71 P.506 C.A.)

Page 90 of 143
Merits Delegation of Powers

Many reasons have been canvassed for the practice of delegated legislation,
namely:

a. It promotes efficiency
It promotes efficiency in service delivery as work which would otherwise have
formed a bulk is distributed to other officials.

b. Tool of evaluation of Public officers

It promotes a better system of evaluation of public officers because they are judged
on what they do. This later results into promotion of some of them when need arises.

c. It promotes specialization and capacity building

By empowering persons and deploying them in specific positions it gives them a
challenge to perform in those particular positions as well as acquire vast experience
in that work.

d. It is a Succession Plan tool

It is essential for personal development since it provides administrative succession up
and down.

Barriers to Delegation of Powers

(1) Not enough time-faster to do it yourself that to instruct person to whom

delegated.
(2) Fear of losing control.
(3) Not getting credit for completed task.
(4) Losing task you enjoy.
(5) Feeling you can do it better.
(6) Fear of delegating yourself out of a job.
(7) Lack of confidence in team members.
(8) Lack of experienced subordinates.
(9) Fear of failure.
(10) Fear of being a scapegoat.
(11) Jealousy and lack of support from other team members.
(12) Lack of resources.
(13) Rigid hierarchy and bureaucracy.

Note

Delegated of Power may be unavoidable in today's administration of a

public or even some private entity or organisation. What needs however to

Page 91 of 143
Note

Actions taken by people who do not possess power or have authority to do so may
be condemned as ultra vires.

In Vine v National Dock Labour Board, The plaintiff was a recognized Dock worker
employed in the reserve pool but the National Dock Labour Board under a scheme
set up under the Dock workers. The National Board had the duty of delegating as
many as possible functions, inter alia powers to the disciplinary committee. After the
plaintiff failing to obey a valid order, his employment was terminated and then
dismissed. It was held inter Alia that the plaintiff‟s purported dismissal was a nullity
since the local board had no power to delegate its disciplinary functions. Judicial
authority normally cannot be delegated.

In Barnard Others v. National Dock Labour Board the power, to discipline the Dock
workers was vested in the Dock board. However, Barnard was disciplined by the
Dock manager. It was held that the local board had no power express or implied to
delegate its quasi-judicial disciplinary functions to the port manager or to ratify his
purported exercise of these functions and the original notices of suspension were
therefore a nullity and the decisions of the appeal tribunal based on these grounds
were equally a nullity.

Page 92 of 143
Topic

DOCTRINE OF ULTRA-VIRES

Public Authority (ies) herein abbreviated as PA can only exercise legally powers
which they have under the law. Ultra- vires arises where a P.A exercises powers
illegally. It may be substantive which means that a P.A did not have powers he
purported to exercise. It may also be procedural in the sense that public authorities
adopt procedures which are not provided for under the law i.e., he had ignored the
established procedures.

Substantive Ultra-vires

1. It arises where a P.A exercises powers or functions which are not granted by
the relevant statute / law.

Courts may be called upon to intervene where a public authority exercises powers
which are not granted and courts can give appropriate remedies after interpreting
the provisions of the relevant statute e.g., ultra-vires will arise on grounds of
jurisdiction. In Re: Abdalla Salim Ali (1967), the principal immigration officer wanted
to deport the plaintiff. The plaintiff pleaded that he was a Tanzanian citizen so he
could not be deported to another country. Court held that if the principal
immigration officer did not have the powers to do so, he acted ultra-vires his powers
by deporting a Tanzanian citizen which were not provided for by the statute.

2. Ultra-vires may also arise were conditions precedent to exercise particular

powers are not fulfilled.

In Estates and Trustees agency Vs Singapore I.T (1937) AC 898, the relevant authority
was given powers to demolish buildings which were unfit for human habitation. The
relevant authority went ahead and demolished the applicant's house but that the
condition was not fulfilled. Court held that failure to satisfy the pre-condition meant
the resultant act was ultra-vires.

3. Ultra-vires may also arise where an action is taken by a wrong authority. All
statutes normally have the organizational frame work of carrying out certain
activities.

4. It may also arise where the proper authority is improperly constituted i.e.,
membership of proper authority is not properly put. Such examples include
instances where some decisions have to be made by tribunals composed of
many members like the land tribunal, Tax appeals tribunal (3 members),
therefore it will arise where non-members participate in making the decision.

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In Dent Vs Kiambu Liquor Licensing Court (1968) EA 80, Dent applied for a liquor
licence. While considering the application to grant or not to grant the license, non-
members were allowed to give their views by show of hands. Court held that the
decision of the liquor licensing court was ultra-vires because it was improperly
constituted in terms of membership and that the proper members acted under
dictation from a particular group of people.

In addition, the proper authority may also not be properly constituted where
provisions relating to quorum are not fulfilled i.e., a minimum number of required
members are not realized. In Sunderji Virji Vs Punja Hila (1959) EA 734, the rent
restrictions act gave power to the rent tribunal to determine the amount of rent that
was to be paid by tenants to land lords. The chairman of the tribunal sat alone and
determined the rent payable as between tenants and land lords. Court held that
the act of the chairman was ultra-vires because the tribunal could only reach such
decisions when it had a minimum membership present.

NB. Where there is no quorum, majority can act legally.

In such a case, quorum should as much as possible be maintained throughout,

where quorum is not maintained, it may be regarded as having been improperly
constituted.

5. Ultra-vires may also arise where there is illegal transfer of powers. This arises
due to the principle that a delegate cannot delegate (secondary
delegation).

In Rahemtula Gullamani Vs R, the control ordinance empowered the governor to

make rules for destruction of cotton plants after the harvest season. The governor
delegated his powers to make decisions to the director of agriculture and he gave
him powers to determine for dates of which all cotton stores would have complied
with that requirement. The appellant did not comply and was prosecuted and he
challenged the notice issued by the director of agriculture, court agreed with him in
that Held; that the delegation was ultra-vires in so far as it purported to give the
director of agriculture legislative powers.

Had similar facts in Jan Mohammed Vs R, the governor had powers under native
produce import powers to make rules regarding how native produce. The governor
directed his power to director of agriculture to specify the areas of operation of
rules. The appellant challenged the validity made by the director of agriculture.
Court held that they were ultra-vires because the delegation of making rules was
unlawful.

Page 94 of 143
Procedural ultra-vires

P.A is expected to act within the procedures which are laid down under the relevant
law. Procedures are usually put in place because of the need to ensure that the
following are in place;

1. Transparency to avoid arbitrariness.

Public officials should at all times adopt procedures which are known and which do
not lead to arbitrariness.

2. To ensure fairness in decision making. Absence of procedures may lead to

partial handling of public affairs.
3. To ensure that justice prevails. They normally put in place mechanisms which
ensure that the P.A is guided in reaching justice.
4. Ensure that decisions are consistent like cases are treated in the same way.
5. Some procedures require public participation in decision making.
6. Way of informing the public on what is about to be decided and / or what
has been decided.

Procedural requirements include;

a) Consultation- many laws require to be made after a consultative

process. This will raise issues which need to be answered by a particular
policy or law.

- Statutes will normally indicate who should consult who; a person to consult is usually
a person charged with formation of a particular law or policy.

-they also normally provide / indicate who consulted include interest groups,
professional body which is in line with that activity, government departments. The
main purpose of consultation is to ensure that the resultant policies /laws are
accepted by the greater majority of persons and once they are accepted, they are
easy to implement. Failure to consult means that the P.A has acted ultra-vires and
the decision which follows will be regarded as void.

b) Gazetting in promulgation. It is a requirement under many laws e.g.,

election laws, land Act, companies act etc. Local Government Act
requires gazetting subsidiary bye laws or ordinances.

For instance, Section 38 (4) of the Local Government Act provides that a bill
enacted by the district council and signed by the district chairperson under this
section shall be an ordinance of the council and shall be published in the official
Gazette and in the local media.

Furthermore, the requirement of gazetting is found in the interpretation act, under

the Interpretation Act between sections13-16. There is a requirement in all subsidiary

Page 95 of 143
legislation, in whatever form or name must be gazetted before courts can take their
validity of existence (judicial notice)

In Mwanji Vs R, Court held that regulations which purport to amend some existing
legislation must be gazetted in accordance with the provisions of the interpretation
act. Where gazetting is not done, such regulation cannot be enforced.

c) Antecedent publication

Some laws require publication before enactment of regulation. This is usually a form
of a consultative process. It enables the affected persons to know what is being
proposed and to give their views on the proposals. Antecedent publication may be
in the Uganda gazette e.g., under acts of parliament act. It may also be in any other
publication like newspapers, or by putting the publication in a conspicuous place or
in a place accessible to the public like it is a requirement in a local government act
(proposals and bye-laws). The third schedule to the LGA requires in paragraph 16
that the council shall, not later than fourteen days before a bill is to be debated by
the council, publish the draft (a) by fixing a copy of the bill in a conspicuous place
on or near the outer door of the office of the district council during office hours; (b)
by including the bill as a supplement to an official local publication, if any; (c) by
availing copies of the bill to the public; or (d) in any other manner as is customary in
the area. (2) There shall be attached to the bill for publication a short memorandum
signed by the person introducing the bill, setting out the policy matter of the bill and
how the bill seeks to implement that policy.

d) Approval

Some statutes require that certain decisions be approved by a particular public

body, such a public body may be a minister, and statutory corporation e.t.c. S.175
of LGA gives power to the Minister of Local Government power to amend the
schedules of LGA. It also requires that such amendment should be approved by
cabinet. Failure amounts to ultra-vires and nullity.

e) Laying before parliament

This is not the usual procedure under the modern statutes, but there are some old
statutes of parliament which require subsidiary legislation to be laid before
parliament before laws become operational.

In Wakiso Estates Vs R, there was a legal requirement that regulations made under
the labour ordinance be laid before the legislature before they could become
operational, these regulations were not laid before the legislature as according to
the provision of the ordinance. Wakiso estate was prosecuted for breach of these
regulations. They challenged the validity of the regulations because they had been
enacted by not following the procedures envisaged under the ordinance. Court
held; that regulations were invalid and ultra-vires in so far as they procedures were
concerned.
Page 96 of 143
In Ridge Vs Baldwin and others, this was a case involving disciplinary proceedings
against a chief constable police, he was dismissed but the relevant committee did
not give him a hearing as required by regulations which concerned disciplinary
proceedings in the police force and he challenged the outcome of those
proceedings. Held that in as much as the decision was arrived at in complete
disregarded of the regulations, it must be regarded as void and of no effect.

Principles of natural justice also require the relevant authorities to follow common
law procedures which are not found in statutes. Breach of those procedures is
subject of denial of principles of natural justice. It is not necessarily ultra-vires. Ultra-
vires can only be outside the scope of a particular law.

Page 97 of 143
Topic

REMEDIES IN ADMINISTRATIVE LAW

Art 42 of the 1995 constitution provides that any person shall have the right to apply
to a court of law in respect of any administrative decision taken against him/ her. In
addition to the courts of law; there are other institutions and procedures a person
may resort to if aggrieved by an administrative decision. Accordingly, administrative
remedies may be classified into 2;

1. Judicial remedies.
2. Non- judicial remedies.

JUDICIAL REMEDIES

This refers to remedies that an aggrieved party may obtain from a court of law, in
most cases the high court. Section 33 of the Judicature Act Cap (13), provides that
the High Court shall, in the exercise of the jurisdiction vested in it by the Constitution,
this Act or any written law, grant absolutely or on such terms and conditions as it
thinks just, all such remedies as any of the parties to a cause or matter is entitled to in
respect of any legal or equitable claim properly brought before it, so that as far as
possible all matters in controversy between the parties may be completely and
finally determined and all multiplicities of legal proceedings concerning any of those
matters avoided. Judicial remedies may be further classified as;

1. Appeals.

From most statutory tribunals, appeals lie to the high court e.g., from the tax appeals
tribunal and the industrial courts, a person may appeal to the high court.

2. Prerogative orders.

These are special administrative law remedies that were specifically designed to
enforce governmental duties and powers.

3. Equitable remedies i.e., injunctions and declarations.

4. Ordinary remedies i.e., damages.

Page 98 of 143
PREROGATIVE ORDERS

These are because originally under England law they were available only to the
crown and not to the subject. The crown used them to ensure that public authority
carried out their duties and so their main purpose was to ensure efficiency and
maintain order in statutory authorities and tribunals of all kinds. Later around the 16th
century, they become available to ordinary England citizens also seeking to enforce
public duties. There are 3 examples of prerogative orders i.e., certiorari, prohibition
and mandamus. These are all under judicial review. They are discretionary remedies
and may be granted or refused at courts discretion. These remedies have been
provided for under section 34 of the Judicature Act and the Judicature Amendment
Act, No. 3 of 2002.

In Chief Constable of the North Wales Police V Evans [1982] 1 WLR 1155 HL, Lord
Hailsham stated that the remedy of judicial review is intended to protect the
individual against the abuse of power by a wide range of authorities, judicial, quasi-
judicial, and administrative powers. That it is not intended to take away from those
authorities the powers properly vested in them by law and to substitute the courts as
the bodies making the decisions. It is intended to see that the relevant authorities
use their powers in a proper manner. That the purpose of the remedies is to ensure
that the individual is given fair treatment by the authority to which he has been
subjected. That the function of court is to see the lawful authority is not abused by
unfair treatment and not to attempt itself the task entrusted to that authority by law.

CERTIORARI AND PROHIBITIONS

There are complimentary remedies based on common law, certiorari issues to quash
a decision which is ultra-vires due to breach of natural justice or other defects in the
procedure that was followed by an administrative authority. Under certiorari, the
High Court will call up the decision of an inferior tribunal/ authority in order that it
may be investigated. If it is found that the decision was made in breach of natural
justice or some other procedural defect, it is quashed i.e., it is declared completely
invalid so that no one need to respect it once made an order of certiorari is final.

The scope of certiorari was discussed in R V Electricity Commissioners, Exp London

Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 204, where Atkin J stated
that,

„…both writs of prohibition and certiorari are of great antiquity,

forming part of the process by which King‟s Courts restrained
courts of inferior jurisdiction from exceeding their powers.
Prohibition restrains a tribunal from proceeding further in excess
of jurisdiction; certiorari requires the record or order of the court
to be sent to the higher court (King‟s Court) to have its legality
inquired into, and if necessary, to have the order quashed. It is
Page 99 of 143
to be noted that both writs deal with questions of excessive
jurisdiction; and doubtless in their origin dealt almost exclusively
with the jurisdiction of what is described in the ordinary parlance
as a court of justice. …Whenever anybody of persons having
legal authority to determine questions affecting the rights of
subjects, and having the duty to act judicially, act in excess of
their legal authority they are too subject to the controlling
jurisdiction of the King‟s Court (this is the same as Uganda‟s High
Court empowered to grant remedies of certiorari and
prohibition.‟‟ It should be noted that these remedies can be
invoked by a person.

However, an application for such an order must be made within 6 months of the
proceedings in respect of which it is made. (6 months after the decision)

Grounds on which a certiorari application may be made;

1. Breach of rules of natural justice.

It should be noted that the principle of natural justice has been embedded in the
1995 Constitution of the Republic of Uganda and other laws and its one of the non
derogable rights. Art. 42 of the 1995 Constitution provides that any person appearing
before any as administrative official or body has a right to be treated justly and fairly
and shall have a right to apply to a court of law in respect of any administrative
decision taken against him / her. This is because Art 28 of the 1995 Constitution
provides for a right to a fair hearing which is absolute. It provides that in the
determination of civil rights and any obligation, or in criminal matter a person shall
be given a fair, speedy and fair hearing before an independent tribunal established
by law. Accordingly, Article 44 of the Constitution provides inter alia that
notwithstanding anything in the Constitution, there shall be no derogation from the
enjoyment of the right to fair hearing. The duty to act fairly represents the standard
of procedural administrative justice with which they will require compliance. In the
words of,

„…if one accepts that „natural justice‟ is a flexible term which

imposes Megarry V-C in McInnes V Onslow Fane different
requirements in different cases, it is capable of applying to the
whole range of situations indicated by the terms such as
„judicial‟, „quasi-judicial‟ and administrative.‟

In John Bosco Oryem V Electoral Commission and UNEB, Mukiibi J held that the
Electoral Commission was a quasi-judicial organ by virtue of section 15 (1) of the
Electoral Commission Act and its functions are akin to a court or an arbitrator. His
lordship observed that „if interests of an individual are going to be affected, he must
be given a hearing. Where a quasi-judicial functions have to be exercised by a
Page 100 of 143
board or anybody of persons, it is necessary and essential that they must always give
a fair opportunity to those who are parties in the controversy to correct or contradict
any relevant statements prejudicial to their case. Both sides have a right to be hears
and a decision in breach of the principles of natural justice is void.‟ His lordship held
that the respondent met to discuss the complaints which had been submitted
against the petitioner without notifying him that such proceedings were taking
place. That the respondent made a decision against the petitioner to disqualify him
without informing him or inviting him to defend and as such the respondent acted
contrary to natural justice in arriving at its decision. The decision shows how rules of
natural justice have been applied in Uganda.

Accordingly, in Marko Matovu V Mohammed Sseviri, Court held that the audi
alteram partem rule is a cardinal rule of natural justice so central to Uganda‟s system
of justice that it must be observed by both judicial and administrative tribunals.
Where an administrative agency acts contrary to this rule it exceeds powers
conferred upon it by parliament and such decision is void and of no consequence
in the same way as a decision made without jurisdiction is a nullity.

In Kaggwa Andrew V Minister of Internal Affairs HC Misc. Application No. 105 of 2002,
court held that the Minister‟s decision would be quashed for the applicant had not
been granted a fair hearing, that this violated the principle of natural justice.

2. Excess or lack of jurisdiction on the part of the deciding authority.

3. An error of law on the case on the record or fraud, perjury or duress in
procuring a decision.

Nature of remedy of certiorari

The special characteristic of certiorari is that it issues not because of any personal
injury to the applicant, but because of the need to control the machinery of justice
in the general public interest.2In Re-the Milling Ordinance (1954) 2 TLR 192, the Court
of Appeal considered the nature of certiorari and observed that certiorari is not an
appeal in disguise, it does not involve a re-hearing of the issues raised in the
proceedings, it exists to correct an error of law on the face of the record or an
irregularity in the proceedings or an absence of excess of jurisdiction were shown.

NB. Make a distinction from an appeal it does not look or hear again issues.

In R Vs Paddington Valuation Officer Exparte peachy property Ltd (1965) 2 ALLER 836,
court considered whether there is any need to issue an order of certiorari to a
decision which is ultra-vires and why quash it? Although they also held that it is
possible to ignore a void order. In this case, a company owning a large number of
properties within the Paddington rating areas, sought certiorari to quash the whole
of the valuation list prepared for the area. It was argued that chaos would result if

2Wade, Administrative Law 1965, p 97-98 and S A. De Smith, Judicial Review of Administrative
Action (3rd edition), p 428-432
Page 101 of 143
the list was quashed, since, until a list could be prepared, no valid list upon which
rates could be levied would exist. Denning MR held that such chaos might be
ground for not quashing the list immediately, but suspend the operation of certiorari
until a new list could be prepared hence certiorari was refused because the
valuation officer had not acted erroneously in a way to have the whole list.

PROHIBITION

Is a similar remedy to certiorari but it is prospective rather than retrospective i.e.,

whereas prohibition issues to prevent a future act or decision, certiorari issues to
quash a decision that has already been made. Typically, prohibition is used to
prevent tribunals from dealing with cases over which they have no jurisdiction. Thus,
in R Vs Electricity Commissioners Exparte London Electricity joint committee
company Ltd (1924) 1 KB 171, prohibition was used to prevent the electricity
authority from proceeding with a scheme which was outside its powers. Lords Atkin
observed that; "l can see no difference in principle between certiorari and
prohibition except that the latter may be involved at an earlier stage. If the
proceedings establish that the body complained is exceeding its jurisdiction by
entertaining matters which would result in its final decision being brought up and
quashed on certiorari, then prohibition would lie to restrain it from so exceeding its
jurisdiction"

Excess or lack of jurisdiction

There may be an excess of jurisdiction if the tribunal is improperly constituted,

incompetent to adjudicate in respect of the parties, locally or the subject matter of
the case. A tribunal may lack jurisdiction if the essential preliminary requirements
have been disregarded; or if the proceedings are not properly instituted; or having
jurisdiction in the first place, proceeds to entertain matter or make an order beyond
its competence.3 In De Souza V Tanga Town Council [1961] EA 377, certiorari order
was issued partly on the ground that a mandatory procedure had not been
followed which amounted to an excess of jurisdiction. Further, In Re an Application
by Bukoba Gymkhana Club [1963] EA 478, certiorari was awarded to quash the
decision of a liquor licensing board on the ground that it took into account irrelevant
considerations.

In Pius Nuwagaba V LDC High Court Miscellaneous Application No. 589 of 2005, an
application was made by Nuwagaba to quash the decision of LDC in rejecting the
application of the applicant and others from Pentecostal University for lack of
accreditation by Law Council. While holding that the applicant was a holder of a
degree in law granted by a university in Uganda as required by S. 8 of the

3 Ibid Chapter 9
Page 102 of 143
Advocates Act, Okumu Wengi J stated that the decision of LDC was illegal and
irregular and hence the decision would be quashed and an order of prohibition
would issue against LDC from treating the Degree of the applicant as not
recognized.

Prohibition has also been ordered in the following examples.

In R Vs Kent Police authority exparte Godden (1971) 2 QB 662, a biased adjudicator

was prohibited from taking part in the decision. It was held that a doctor who had
previously examined a police officer and formed then an opinion that the officer
was suffering from mental disorder of a paranoid type, should not subsequently have
been appointed to be the „dully appointed practitioner‟ to certify whether the
officer was permanently disabled from proper performance of his duties requiring
compulsory retirement. Such certification was a judicial-type function, requiring both
actual and apparent impartiality. In the circumstances suspicion existed that the
doctor would be biased to favor his own earlier diagnosis.

In R Vs Electricity Commissioners / exparte London electricity Joint committee Ltd

(1924) 1 KB 171 Atkins J "...prohibition restrains the tribunal from proceeding further in
excess of jurisdiction. ...certiorari requires the record or the order of the court to be
quashed or be sent to a unique court to have its legality inquired into. That both
deal with excessive jurisdiction.‟‟

R Vs Greater London Council Exparte Black burn (1976) 1 WLR

Prohibition in this case was used to prevent a local authority from licensing indecent
firms.

NB. Prohibition can be applied for under many circumstances.

S.43, 51, of J.A Cap 13, which provides for the procedure of applying for prerogative
orders

Civil procedure amendment judicial review rules statutory instruments no. 75 of 2003
S.2-5.

Failure to comply with an order of certiorari or prohibition is punishable as contempt

of court. Certiorari/ prohibition may be however denied under certain
circumstances.

1. Where there is no locus standi, a person must have sufficient interest in the
matter for which the application for judicial review relates.

R Vs Herndon Exparte Chorley (1932) 2 KB 696

R Vs Thens Magistrates Court Exparte Green Boam(1957)

2. They may be denied where there is an alternative remedy e.g., an appeal

would suffice to do with the injustice e.g., where the law provides for a
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hierarchy of tribunals and appeals lie form one tribunal to another. E.g., under
the Land Act, appeals lie from the sub-county tribunals to the district land
tribunals. S.38 of J.A provides that where an application for certiorari is made
in respect of proceedings which are subject to appeal, and there is a time
limit for filling the appeal, the court may adjourn the application for certiorari
until the appeal has been determined or until the time for appealing has
expired.

In R Vs Chief adjudication officer exparte bland (1985). B applied for certiorari to

quash a decision affecting the amount of social security benefit he could get. The
decision could have been appealed against through the social security tribunals.
The court refused to grant certiorari saying that it could not by-pass the specialized
appeals machinery provided for under the law.

3. Certiorari will also be denied where the applicant delays to make the
application as happened in the case of R Vs Aston University senate (1969)
2QB538

4. Also, where the applicant waives his right to apply, a waiver will be implied
where e.g., a party appearing before a tribunal knows that it was improperly
constituted because one of the adjudicators has an interest in the case, but
raises no objection at the time of the hearing. Such a party will be excluded
from going ahead to apply for certiorari to quash the decision. This was
illustrated in R Vs Williams Exparte Phillips (1914) 1 KB 608

What is the difference between prohibition and certiorari?

The two remedies are very similar and they are hand-in-glove. The difference,
however, between the two orders is that the order of certiorari operates to quash a
decision that has been made in excess of legal authority. On the other hand, the
order of prohibition operates to prevent an authority from acting in excess of its legal
authority before the authority has completed its proceedings or acting on a decision
arrived at in breach of either natural justice or legal procedures among others.

NB. Because certiorari and prohibitions are discretionary remedies, the

circumstances under which they may be refused are not limited.

Page 104 of 143

MANDAMUS REMEDY

It is an order which compels the performance of a public duty by a public authority.

It commands the person or body to whom it is directed to perform a public duty
imposed by law. In R V Paddington South Rent Tribunal, exp Milliard [1955] 1 ALLER
691, an order of mandamus was granted against a rent tribunal which had wrongly
held that it had no jurisdiction to hear and determine an application properly made
to it. The tribunal had a duty to hear cases that fell within its jurisdiction and, as a
result of its errors as to its jurisdiction, had improperly declined to hear the case.

It is also a discretionary remedy and court may decline it in cases it deems

unsuitable e.g. undue delay on the part of an applicant. In Broughton Vs
Commissioner of stamp duties (1889) AC 251, the applicant waited for 9 years to
claim a tax refund and sought an order of mandamus to compel the commissioner
to grant the refund. The order was denied.

It will also be denied where an equally convenient, beneficial and effectual remedy
is available. In Passmore Vs Oswldwistle (1898) AC 387; where a complaint to the
minister would have been sufficient to deal with the problem. Mandamus was
denied because the applicant could have complained to the minister than court.

Where the applicant has no locus standi, mandamus will be denied and the test is
whether the applicant has sufficient interest in the matter to which the application
relates. In R Vs Inland Revenue commissioners’ exparte National Federation of self-
employed and small business Ltd (1982) AC 617, the issue was whether the
federation had a sufficient interest to apply for mandamus. The complaint in this
case was the failure of the Inland Revenue to collect taxes due from other people.
The House of Lords in holding said; that an examination of the tax legislation far from
conferring on the tax payer the right to inquire about other people's tax indicated
the reverse by reason of the confidentiality of the relationships between the tax
payer and the Inland Revenue. The applicant did not therefore have sufficient
interest in the matter to complain about the non- performance of the inland
revenues duty.

On the other hand, mandamus is available to enforce a wide range of duties. It can
issue to compel the proper exercise of discretionary power. In cases where there has
been failure to exercise a discretionary power, the order will lie to compel proper
consideration of the matter; and in cases where there has been abuse of
discretionary power, mandamus will lie to order the exercise of the power properly,
according to the law. Thus, in Padfield Vs Minister of Agriculture, Fisheries and Food
(1968) AC 997, mandamus issued to require/compel the Minister to exercise his
power in accordance with the law. That is, to consider the complaint of the
appellants according to the law.

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In R Vs Manchester Corporation (1911) 1KB 560; mandamus issued to a local
authority to make bye-laws which an existing act required it to make. It may also
issue to ensure enforcement of the law by the police.

In R Vs Metropolitan police commissioner Exparte Blackburn (1968) 2 QB 118

mandamus issued to compel the police to enforce the law with regard to breach of
gaming laws.

In Shah Vs AG (1970) EA 543,

In R Vs Paddington Valuation Officer and Exparte peahery Property Corporation Ltd

The applicants applied for prerogative orders of mandamus or certiorari directed to

compelling the respondent valuation officer to carry out his statutory duties in
relation to the cooperation of the valuation list or to quash the list which had come
into force. They contended that the respondent (officer) had ignored his duty to
value separately each hereditament. That the respondent had taken into account
erroneous consideration i.e., controlled rents etc. Court held that certiorari quash the
decision could not be granted because he had acted in good faith and in
accordance with the statute.

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EQUITABLE REMEDIES

1. Injunctions
2. Declarations.

INJUNCTIONS

Is a court order requiring the party to whom it is addressed to refrain from doing a
particular act? Injunctions are provided for under the rules of equity and there are
various circumstances under which they may be granted in administrative law.

1. It may be granted to prevent a public body from acting ultra-vires. In AG V s

Fulham Corporation (1921) 1 Ch 440, the defendant had statutory power to
provide wash houses which were to be supplied with facilities for washing and
drying clothes. Acting under that power, the defendant provided the
members of the public with facilities where they could come and wash their
clothes. However, the corporation now proposed to provide a laundry service
where the washing would be done by special hired employees. The AG
contended that such a laundry service contradicted the statute and that the
defendant would be acting ultra-vires. The AG sought for and successfully
obtained an injunction to restrain the corporation from acting ultra-vires.

2. To prevent a public authority from committing a tort. In Bronbelt Vs Rotherham

corporation (1917) 2 Ch 31, an injunction was granted to restrain the
defendant corporation from carrying out administration order without a
proper hearing of the owner's case.

In Pride of Derby and Derbyshire Angling Association Ltd Vs British Celares (19530 Ch
149, an injunction was granted to prevent a public authority from committing a
nuisance i.e., polluting a river.

3. To enforce a statute or to secure obedience to the law.

In AG Vs Harris (1921) 3ALLER 207, Harris had been convicted 142 times for selling
flowers on the foot path in a forbidden area and his wife had been convicted 95
times. The maximum fine for the offence was just 2 pounds and the Harris' always
paid the fine but continued to flout the law. C.A said that although each offence
was trivial, it was right that the Harris' should be stopped from deliberately flouting
the law and an injunction was granted.

NB. An injunction is a discretionary remedy and may be refused under certain

circumstances e.g.

1. It may not be used to interfere with the processes of parliament.

Bradlough Vs Goset (1884) 12 QB 271

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2. It will not be granted where the conduct of the applicant does not merit the
remedy. Since it is equitable remedy and he who comes to equity must come
with clean hands.

Glynn Vs Keele University (1971) 2 ALLER 81

NB. In administration law, there are 2 types of injunction i.e.

a) Negative injunction aimed at restraining a person from doing

something

b) A positive injunction compelling a person to do something. The positive

injunction is not usually resorted to in administrative law because the
remedy of mandamus is geared towards compelling public bodies to
perform their duties and a positive injunction is sometimes referred to
as a mandatory injunction.

Where a mandatory / positive injunction is to be granted, there must be a specific

time frame within which the act that is sought to be enforced should be done.
Accordingly, a mandatory injunction cannot be given to compel a person to do a
continuous indefinite act.

In A.G of Kenya Vs Block and another (1959) EA 180, the A.G sought an injunction to
compel the defendant to maintain roads in a certain part of Nairobi. The conditions
in the defendant's contract did not specify a time period for road maintenance. The
court refused to grant an injunction saying that where there was no time limit for
doing of the act, enforcing the injunction would be very difficult and would be a
burden of the court. In Gravesham Borough Council Vs British Railways Board (1978)
Ch 379. Had similar facts but related to maintenance of railway in Gravesham.

3. Court will not grant injunction against government but may only make a
declaration on the rights of the parties because it may cause chaos by
bringing the machinery of government to a halt.

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DECLARATION

Is an order of the court which merely declares what the legal rights of the parties to
the action are without them. It has no coercive force i.e.; it does not require anyone
to do anything.

NB an application for a declaration can be combined with an application for other

types of remedies. It is a particularly useful remedy in administration law and it is a
suitable way to settle disputes with the government because it involves no
immediate threat of compulsion but is nonetheless effective. It is a wide range
remedy that the court will rarely refuse to grant. Lord Deming In Barnard Vs National
Dock Labour Board (1953) 1 ALLER 1113, that," there is no limit to the power to award
a declaration except such limit as the court may impose on itself.

In Agricultural Training Board Vs Aylesbury Mushrooms Ltd (1972) 1 ALLER 280, A

declaration was obtained to the effect that certain statutory instruments that had
been passed were ultra-vires.

In Ridge Vs Baldwin, where a police officer obtained a declaration that his dismissal
was invalid.

All in all, any act of a public authority may be challenged in declaratory

proceedings claiming that it is ultra-vires and void.

CIRCUMSTANCES WHERE COURT MAY REFUSE DECLARATION

1. To speculators and busy bodies asking hypothetical questions.

In Russian commercial; and industrial bank Vs British bank for foreign trade (1921) 2
AC 438, H.O.L. said; that the question must be read and not a theoretical question,
the person raising it must have a real interest to raise it and he must be able to
secure a proper contradictor or defendant i.e., someone presently existing who has
a true interest to oppose the declaration sought. In other wards there a genuine
legal issue between the 2 parties.

In Re; Varnato (1949) Ch 258, Court said; declaration cannot be awarded to answer
academic questions. In that case, the applicant sought a declaration to determine
whether if an advance were to be made from a trust fund, estate duty might in
certain circumstances be payable. Court held that whereas it might be convenient
for a trustee to get such a determination, the court could not award it because if
people could go to court merely because they wanted guidance on the orderly of
their affairs, they would be no end to the litigation that could follow.

2. Where it's result would be to embarrass and prejudice the security of the
state.

In Opolot Vs AG (1969) EA 631, the appellant was formerly a brigadier in the

Ugandan army and chief of staff. In 1966, he received a letter informing him of his
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discharge from the army and was subsequently detained under emergency
regulations. He sought a declaration that his discharge from the army was invalid
and of no legal effect and that he was still a member of the army and chief of staff.
Trial judge held; that the right to a declaratory judgment is discretionary and that in
exercise of that discretion, he did not consider this a case in which he would be
justified in making the declaration sought. On appeal, it was further held that
discretion any power to grant a declaration should only be exercised with the
greatest caution and where the declaration sought would embarrass and prejudice
the state; it will not be granted.

However, it should be noted that the decision in Opolot V AG is no longer good law
in so far as it was upholding the common law principle that the crown had the right
to appoint and disappoint at any time even without reasons. In Uganda today, such
a decision has been overtaken by events and Constitutional provisions. This decision
was reconsidered in Fox Odoi V AG.

3. No declaration of specific performance for breach of contracts of

employment. If an employer wrongfully dismisses an employee, the employee
can only seek damages and cannot obtain a declaration that his / her
dismissal is a nullity because in that case the employment would still continue.

The rationale is that under common law, the master always has power to dismiss the
servant. However, in the field of public employment or service, public authorities
must keep within the limits of the powers given to them by statute. Accordingly,
where a public servant is dismissed in contravention of the relevant law, he/ she may
obtain a declaration prolonging their employment.

Is what is in; Ridge Vs Baldwin (1964) A 40

Cooper Vs Wilson (1937) 2 KB 309

Vine Vs National Dock Labour Board (1957) AC 488

4. If it's effect would be to usurp of the body in question.

In Shah Vs Barnet London Borough Council, the council refused to grant Shah a
grant to attend to university on the ground that he was not ordinarily resident in the
council. Shah sought a declaration to the effect that the council had made an error
and that he should be awarded the grant. Court held that a declaration was not
the appropriate remedy in the circumstances as it would usurp the council's powers
to grant or deny an applicant a grant.

5. For a matter which is not within the realm of law, i.e., political matters that are
not clearly defined and regulated by specific legal provisions. This was held in
the case of Malone Vs Metropolitan Police.

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DAMAGES

A person aggrieved by the act or decision of a public authority which amounts to a

tort or a breach of contract can sue the government or authority for damages in the
accordance with the government proceedings Act Cap 77.

Damages can be classified into 3 types.

1. Special damages.

These can be claimed in respect of matters whose value can be quantified and
specifically proven e.g. through receipt for goods and services issued to the plaintiff.

In Kafumbe Mukasa Vs AG (1980) HCB, Court held that without receipt or other
specific proof, a cause of action for specific damages may not succeed.

2. General damages.

Are damages which cannot be specifically ascertained, they include compensation

awarded for pain and suffering, inconveniences, loss of future prospects. In
Departed Asians Property Custodian Board Vs Kayondo (1982) HCB 1, Court held
that general damages are awarded at the discretion of court.

3. Exemplary damages.

These are awarded as a deterrent or punishment of the defendant. Where the

defendant's conduct has been oppressive and arbitrary e.g., in cases of false
imprisonment.

Obong Vs Municipal Council of Kisumu (1971) EA

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Topic

Public Finance

Questions:

1. How is public finance controlled in Uganda?

2. Critically examine the role played by legislation in the regulation of use of

public finance by public authorities in Uganda.

The constitution provides for management of public funds under Chapter 9 i.e.
Articles 152 to 164.

Article 152 (1) - a collection of taxes which is the major source of revenue other
sources being fees, loans and grants.

Government Budget Process

The Budget Act 2000 provides for and regulates the budgetary procedure for
efficient budgetary process. The Act defines the budget as a process by which
government sets levels to efficiently collect revenue and allocate the spending of
resources among all sectors to meet the national Objectives.

Article 153- states that there shall be a consolidated fund into which shall be paid all
revenues and other monies raised or received for the purpose of or on the behalf of
or in trust for the government. A consolidated fund is one which consists of taxes and
any other revenue payable to the State.

Article 154 (1) – no money shall be withdrawn from the consolidated fund except:

a) To meet the expenditure charged on the fund by this Constitution or by an Act

of Parliament

b) Where the issue of those monies has been authorised by an appropriation Act.

No money shall be withdrawn from the consolidated fund unless the withdrawer has
been authorised by the Auditor General. If the president is satisfied, then he can sign
for release.

Appropriations Act

This law is adopted by Parliament every year to authorise the Executive to finance
goods and services required by any ministry or government departments in the
financial year in question. The Appropriations Act once signed by the Head of State,
finances the budget process for any one financial year.

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Vote on Account (VOA)

VOA is a sanction of Parliament for withdrawal of money from the consolidated fund
to meet the government expenses before Parliament approves the budget. It is not
meant to last longer than 3 months. VOA is only on expenditures appropriated by
Parliament and not on statutory expenditures.

Appropriated expenditures must be debated and voted by parliament. However,

statutory expenditures are directly charged on the consolidated fund by the
constitution or an Act of Parliament.

NOTE: Statutory expenditure requires no Parliamentary approval as they are already

State obligations, i.e. Public Debt, pensions salaries of state officials e.g. Presidents,
vice-President, Prime Minister, Chief Justice etc.

Money voted by Parliament under the Appropriations Act (the Budget) is to finance
government services through the country. The law requires the Auditor General,
when satisfied with the correctness of those warrants to give approval to those
warrants before money can leave the consolidated fund account. It should be
noted that the right to authorise public expenditure is vested solely in Parliament
through the enactment of the Appropriations Act.

The Public Finance Act 2003 (PFA)

The Public Finance and Accountability Act 2003 was enacted with the purpose to,
“provide for the control and management of the public finance of Uganda, for the
audit and examination of public accounts of certain statutory bodies and matters
connected therein.”

The Auditor General and the National Audit Act 2008 (NAA)

This gives effect of Article 163 of the Constitution of Uganda- Auditor General.

Article 163 (1) and S. 4 of the National Audit Act provides for the appointment of the
Auditor General that he shall be appointed by the president with the approval of
Parliament.

Article 163 (6) and S. 14 of NAA state that the Auditor General shall not be under the
control of any authority.

Article 163 (3) (9) and S. 13 of NAA – to audit and report on public accounts of
Uganda and of all public offices including the courts, the central and local
government administrations, universities and public organisations established by an
Act of Parliament.

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Article 154 (3), S. 83 (2) Local Government Act (LGA) provides that the Auditor
General as the sole authority to give approval for any money to be withdrawn from
the consolidated fund account, the general fund account or any district account.

Auditor General as an Auditor

Section 24 PFA states that “the Auditor General shall on behalf of the Parliament
examine, inquire into and audit the accounts of all accounting officers, and
receivers of revenue and all persons entrusted with collection, receipt, custody,
issue, sales, transfer or delivery of any stamps, securities, stores or any other
government property, to ensure that all public moneys have been dealt with in
accordance with proper authority.

S. 25 (1) PFA obliges all public officials to give documents or any explanation
whenever required by the Auditor General

Public Accounts Committee (PAC)

This examines the Auditor General‟s report and enforces accountability of the
officials of the executive after detailed interviews.

Inspectorate of Government Act 2002 (IGG)

Article 223 establishes the functions of the Inspectorate of government, while Article
225 (1) spells out the function.

S. 10 of the IGG Act 2002 gives the Inspectorate independence in performance.

S. 14 (5) gives special powers to investigate, cause a legal action where public
office is misused.

Leadership Code Act 2002

S. 8 provides for penalties. There is no doubt that the imposition of a code of

conduct on leaders and requirement of them to declare their wealth is a necessary
requirement in the fight against abuse of office.

In Conclusion, there are many players in control of public finance, which include the
Legislature, Executive, Ministry of Finance Planning and Economic Development,
Auditor General‟s Office and Central Bank.

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Topic

NON-JUDICIAL REMEDIES

1. The inspectorate of government

Also known as the ombudsperson, the IGG is mandated by the IGG Act of 2002 to
offer certain remedies by investigating the work and conduct of public officers and
making reports to the president and to parliament as well as to prosecute offence.
The IGG can act on a complaint brought to the office by any person, but the IGG
can also initiate and investigate any unlawful of a public servant.

Section 8 provides the functions of the IGG to include; promote and foster strict
adherence to the of law and principles of natural justice in administration, eliminate
and foster the elimination of corruption, abuse of authority and of public office,
investigate any act, omission advise, decision or recommendation by a public
officer or any other authority to which this section applies, taken made, given or
done in exercise of administrative functions.

Other functions include; promote fair, efficient and good government in public
officer, enforce the leadership code of conduct, stimulate public awareness about
the values of constitutionalism in general; and the activities of its office, in particular,
through any media and other means it considers appropriate.
Under section 9 the jurisdiction of the inspectorate shall cover officers and leaders
serving in the following officers-
a. A government department; undertaking or service;
b. A statutory corporation or authority
c. The cabinet
d. Parliament
e. A court of law
f. The Uganda police force
g. The Uganda prison services
h. A government aided school, colleges or other institution of learning that
accesses public funds
i. The Uganda people‟s defence force
j. The local defence force
k. A local government council or local government unit or a committee of such
council or unit
l. A council, board, society or committee established by law for the control and
regulation of any profession
m. A public commission association or similar body whether corporate or not,
established by or under any law.
n. National Security Organizations including Internal Security Organization (ISO).
o. Any other person, office or body that administers public funds on behalf of
the public
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2. STAND COMMITTEES OF PARLIAMENT

The committees of parliament are mandated to investigate any matter referred to it

by the house. After due investigations, the committee submits reports to the
parliament which, on the recommendations made or from the circumstances
decide the appropriate step to take.

Article 90 (1) mandated parliament to appoint standing committees and other

committees necessary for the efficient discharge of its functions. Under clause (4)
these committee have power to call any minister or any person holding public office
and private individual to submit memoranda or appear before them to give
evidence.

They have mandate to co-opt any member of parliament or to employ qualified

person to assist them in the high court for enforcing the attendance of witnesses and
examining them on oath affirmation or otherwise; compelling the production of
documents; and issuing a commission or request examine witness abroad

3. Departments with special mandate

There are departments specially mandated to check abuse of power and human
rights. There department include the police, the directorate of public prosecution,
the human rights commission, the auditor general. These are specialized in their
work. They conduct investigations and follow appropriate recommendations to
prosecute the offenders.

4. The president
The president sometimes steps in when he receives reports of abuse of human rights
or other forms of injustice. As an appointing officer he can interdict or cause
interdiction suspension or termination of any public officer who misuses his office. He
can also constitute a commission of inquiry to investigate a matter and make
recommendation for an appropriate action.

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Topic

LEGISLATION

Legislation is a general term is used to describe many different legal documents. The
two main types are;
1. Acts passed by parliament, which are also called statutes or enactments;
2. Delegated legislation or subordinate legislation.

The general rule in article 79 is that it is only parliament which is empowered to make
laws on any matter for peace, order, development and good governance of
Uganda. However, subsection (2) of Article 79 provides that except as provided in
this constitution no person/body other than parliament shall have power to make
provision having the force of law except under authority compared by an Act of
parliament.

Delegated legislation
According to Salmond delegated legislation is defined as that legislation which
proceeds from any authority other than the sovereign power and its therefore
dependant for its continued existence and validity on some superior and supreme
authority.

Delegated legislation means permitting bodies or persons beneath parliament to

pass their own legislation. This is provided for under Article 79 (2) of the 1995
constitution.

TYPES OF SUBSIDIARY LEGISLATION

(ii) Bye-laws

Section 39 Local Government Act defines bye-laws are laws made by lower
councils, such as urban, sub-county, division or village council which are made in
relation to their powers and functions make such laws which are not inconsistent
with the constitution or any law enacted by parliament, or an ordinance of the
district or a bye-law passed by higher council.

(iii) Ordinances

Section 38 defines ordinances as laws made by district authorities at district level.

This is explained under sub section (1) that the district has powers to make laws not
inconsistent with the constitution or any other law made by parliament which power
shall be exercised by the passing of local bills not inconsistent with the constitution
into ordinances by the council and signed by the chairperson.

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(iv) Regulations

This is not confined to delegated legislation. It means an instrument by which

decisions, orders and Acts of government are made known to the public, but in the
sphere of administrative rule making.

(v) Orders

These are laws used to cover terms of legislative and quasi-judicial decisions. Orders
may be specific or general. Specific orders may refer to administrative action while
general orders may refer to administrative rule making.

(v) Directions

This has two sources:

a) The constitution gives powers to central government to give directions to state

government for execution of its laws.
b) Direction is an expression of administrative rule making under the authority of
the law or rules orders made there under. These may be recommendatory or
mandatory. If they are mandatory, they have force of laws.

a. Schemes

This refers to a situation where the law authorizes the administrative agency to lay
down a frame work with in which a detailed administrative action is to proceed.

By-laws are created by local authorities to cover matters in their own areas. it should
be noted however, that such by-laws must be approved by central government.

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WHY NOT PARLIAMENT

The general rule under Article 79 is that parliament shall have power to make laws
on any matter in Uganda. However, the statement why not parliament to make all
laws is explained under Article 79 (2) which gives parliament to delegate powers to
other authorities to make laws.

Under the doctrine of separation of powers parliament should be directly responsible

for all legislation. However, this grant is impossible in modern states and the reason
for why not parliament is discussed below.

(i) The bulk of legislation is so great that parliament has no sufficient resources or
personnel to attend to the matters that are detailed which require
legislation.

Accordingly, parliament continues to pass Acts which broadly establish the legal
framework for implementing a particular programme thus Acts are passed as mere
skeleton by administrative authorities empowered to add the details by means of
legislation made under authority of the Act thus giving broad and flesh to the
skeleton. For example, Town and Country Planning Act, importer planning control
and building cooperation.

(ii) Sometimes the subject of which legislation is required is always technical in

nature for the issue to be fully appreciated and understood by
parliamentarians therefore technical matters require specialized
experience as opposed to members of parliament who tend to be from
diverse educational backgrounds. In such cases legislative authorities
who may employ exports thus justifying why it‟s not parliament.

(iii) Another reason is that parliament does not sit throughout the year yet the
matter might be of urgency so it enables a focused approach to the local
issues applicable to a particular geographical area and this is especially
so as regards to bye-laws and ordinances made by sub-county and local
government councils. Hence explaining why parliament should make
laws regarding all matters

(iv) Furthermore, where there is need to expand on government utilities or

services then subsidiary legislation is the only valid proposition thus
explaining the statement why not parliament should make laws regarding
all matters.

(v) Similarly, today there is a growing emergency of the ideal of direct

participation in the structuralisation of law by those who are supposed to
be governed by it because indirect participation through their elected
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representatives more often proves a myth thus calling for subsidiary
legislation made by other authorities other than parliament alone.

(vi) Another important point which cannot go un mentioned is that in some

situations the law must not be known to the public until it comes into
operation so if this is to be achieved then delegated legislation is the
answer.

ADVANTAGES AND DISADVANTAGES OF SUBSIDIARY LEGISLATION

a) ADVANTAGES

1. Subsidiary legislative powers allow flexibility for making rules and regulations to
cater for unforeseen circumstances. Parliamentary legislation cannot provide
for every eventuality therefore subsidiary legislation is necessary.

Equally subsidiary legislation allows the government to respond to

emergencies of various kinds such as natural calamities for example Bududa
landslides and Butaleja floods respectively. Economic prices in such situations
subsidiary legislation enables executive branch of government to authorize
and take necessary actions with need to obtain power from parliament on
each occasion.

2. To widen the welfare and state services. This is only possible where subsidiary
legislation is possible to be carried out.

3. Subsidiary legislation is also important because ordinary legislation suffers from

lack of viability and explanation namely bills or laws passed by parliament
have to be in frame until next session. This can only be dealt with by
subsidiary legislation.

4. Subsidiary legislation allows a superior officer for example Head of

department to centralize his attention, supervision, planning, improvement in
the work in one department.

5. Subsidiary legislation develops the abilities of subordinates and raises the level
of administrative competence and efficiency.

b) DISADVANTAGES

Although subsidiary legislation is allowed under Article 79 (2), it has also been highly
criticized as discussed below:

1. Subsidiary legislation is said to be incompatible with separation of powers

because it allows executive arm of government to make laws which may be
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seen as an infringement principle in democracy because it does not allow
people to participate in law making process through their elected
representatives.

2. Under subsidiary legislation control over legislative legislation is inadequate,

parliament lacks the time and resources to keep full watch over what its
delegates enact under authority. Accordingly subsidiary legislation that
violates rule of law may be passed by a previous administrative authority.
Although judicial control exists it usually occurs when the harm has been done
and when the aggrieved party is willing to go through expenses to go to
court.

3. Subsidiary legislation is generally un available to lawyers and the general

public so much that its being produced all the time but it is almost impossible
to give up with various rules and regulations governing different aspects of
life.

HOW THE LEGISLATIVE POWERS ARE CHECKED

Again, the 1995 constitution suffers from a bit of confusion. That confusion comes
about from the history recounted as being a common wealth country and taking
our precedents from UK and the attempt in the 1995 constitution to a more US type
of government.

Indeed, one of the essential attributes out of the English system of separation of
power is the idea of supremacy of parliament or the doctrine of parliamentary
sovereignty which is the idea because parliament is the representative of the
people.

The doctrine was initiated in the case of Edinburgh and Dallas Railway v Wanchope,
i.e., the judicially is the very lucky to intervene where parliament has made a law,
i.e., parliament is genuinely supreme.

In the case of Uganda, when you do have a written constitution and practically, a
constitution that specifies in Article 2 that the constitution is supreme and that if there
is any law or custom that violates it, that law is null and void. Then you have a
situation where the sovereignty of the constitution has been adjusted, there is still
through a hangover, that hangover is reflected in the idea that the sovereignty of
the people is in parliament and the parliament has the power to make laws and it
should be constrained.

So, the situation in Uganda is confused by;

a) The history.

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b) The tension implicitly in Article 1 and 2 of the constitution.

So, if parliament is not supreme and the constitution is, the 1995 constitution then
does make sure that parliament does not abuse that power or even the individual
MP. The most effective check against parliamentary abuse is the exercise of the
judicial power. The judicially via Article 2 has to ensure that any Act from parliament
passed has to be in tandem with the constitution.

The power of check goes back down to the period of independence, i.e.,
Lyagoba’s case unfortunately, this case established a precedent which put up that
when parliament is checked by the judicially, it reacts negatively. Parliament does
not want to be checked and balanced. In most cases, where you had the check
over judicial exercise in the parliament, parliament has gone back to change the
legislation in order to effectively defeat or frustrate the judiciary function or fail to
achieve its goal. It is a long line of cases which then followed Lyagoba‟s case for
instance, Ibingira 1 and 2, Sempebwa‟s case etc.

The 1995 constitution tried to address that question. Article 92 (parliament not to pass
any law to alter the decision or judgment of any court as between the parties to the
decision or judgment) was effectively meant to ensure that parliament could not
pass a law that effectively overturned the decision of court.

Unfortunately, that provision did not prevent parliament from acting traditionally as
expressed in the case involving the referendum, i.e., Paul Ssemogerere & Others v
AG, the case which led to the adaption of the amendment Act No 13. The core of
that case were the provisions relating to the procedure of parliament, i.e., Article 88-
90 and the question of whether the court can inquire into the operation of
parliament.

In conclusion, the checks introduced by Article 92 acts as a check to parliamentary

power. Individual members of parliament can be checked by the people, this is
through the mechanism of right to recall provided by Article 84.

In summation, the constitutional amendments seriously affected the doctrine of

checks & balances especially between the legislature & the executive because it
made superior the rules of procedure of parliament to the constitution and to the
oversight by the courts over legislative authority.

The amendment also effectively overturned the stipulation in Article 92 against

parliament making laws that will have the effect of overturning the courts‟ decision,
i.e., reducing once again the power of courts to supervise the legislature.

NB: these amendments were challenged in Ssemogerere, Olum & Otafiire v AG. The
court held that the amendments were made eligibly.
Page 122 of 143
Topic

ADMINISTRATIVE AUTHORITIES

Public corporations as administrative authorities

Government sometime carries out statutory functions through public corporations.

These are autonomous bodies set up by statute for purposes of carrying out specific
functions which would otherwise be carried out by government directly.

Public corporations are set up for various purposes; they include Uganda Investment
Authority, Uganda Revenue Authority, Uganda Railways Corporation, National
Agricultural Research Organization, Civil Aviation Authority, National Water and
Sewerage Corporation.

Could you think of the reasons why the above corporations were setup? The answer
is got from the work they do, but details are in the Acts that create them. The main
reason why parastatals are formed is to give specific attention to specific functions
by the technical or specialized bodies. The argument is that government
beauracracy does not enable it to attend to some functions which require technical
knowledge or delivery of special services.

Purposes of public corporations

1. Regulatory purposes:

For controlling a particular sector, may be scientific, commercial etc. Regulatory

corporations are given power to determine the operation of a particular sector by
way of licensing or otherwise. They are also given powers to make and enforce rules
and regulations e.g., CAA regulates air transport. Uganda Communication
Commission (UCC) regulates issue of licenses for radio stations, Televisions etc.

2. Service delivery:

To deliver specialized service which had been imposed as government may have
no resources or manpower to deliver such a particular service.

3. Handling Technical/Scientific matters:

For handling technical/scientific matters which cannot conveniently be carried out

within government. Such services normally require a degree of autonomy and
control from government. They also require freedom to set plans and determined
priorities. This category of corporations includes universities, research institutions.

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4. Commercial Purposes:

Public corporations can also be set up for commercial purposes i.e., to make profits.
In Uganda, Commercial corporations started with the Uganda Development
Corporation (UDC) in 1950‟s for purposes of promoting industrial expansion in
Uganda. It set many industries; it also attracted private sector participation, thus it
emerged as an enterprise which would give dividends to government as a
shareholder. Most of them were established as limited liability companies in which
the government was the sole or majority.

Characteristics of Public Corporations

Public corporations are set up by statute, decree or an Act of Parliament. The

statute setting up a public corporation usually has the following:

a) They can hold property in their own names

b) They can sue or be sued in their own names i.e.; the body becomes a legal
entity.
c) Public corporations are established for specific objectives stated in the Act
creating it.
d) The statute also gives specific powers to a public corporation for purposes of
achieving its objectives; they entail,
i. Power to make regulations
ii. Power to inspect
iii. Power to enforce standards
iv. Power to license

The statute normally deals with challenges and disrespect by setting up roles of
Board of Director, councils, boards of governors e.t.c. for purposes of policy making.
The role of management is to implement decisions of policy.

Furthermore, the statute concerns itself with some aspects of procedure. Some
statutes give the rules of procedure. In some cases, policy making organs are given
power to make procedural rules for internal management.

The statute describes the sources of funds of a public corporation. It further concerns
itself with management of funds e.g., approval of budgets by the minister, keeping
of books of accounts. The Auditor General normally audits these transactions.

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Control of Public Corporations

1. Ministerial control:

This is normally exercised by way of appointments to top positions in the

corporations; ministerial approval of budgets. The minister is also responsible normally
to ensure that a public corporation operates with government policy.

2. Control through the judiciary:

The actions of a public corporation may be challenged by way of a judicial review

or by way of ordinary legal suit. It can be challenged where the corporation acted
ultra vires e.g., where it acted beyond the objectives. It can also be challenged
where it does not observe principles of natural justice in reaching its decisions.

3. As a legal entity, a public corporation is subject to all the legal rights and
obligations as an individual e.g., it is liable in negligence, it may also be sued in
contract.

Topic

THE PRESIDENT AS AN ADMINISTRATIVE AUTHORITY

The constitution provides for the office of the president and that it shall exercise all
the executive powers of government i.e., powers which have to do with formulation
of policies which is normally done by the various ministries of various departments
who participate in making policies.

Article 98 (1) is to the effect that the president shall be the head of state, head of
government and commander in chief and the fountain of honor. He has to take and
subscribe to the oath of allegiance.

The president is also not liable to any proceedings in court while holding office as
provided under Art 98(4). However, once he ceases to be president, Art 98 (5)
provide that he can be tried in both civil & criminal proceedings in respect of
anything done or omitted to be done in his personal capacity.

Under Article 99(1) the executive authority is vested in the president and shall be
exercised in accordance with this constitution and the laws of Uganda. The
president shall execute and maintain this constitution and all laws made under or
continued in force by this constitution.

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It shall be the duty of the president to abide by, uphold and safeguard this
constitution and the laws of Uganda and to promote the welfare of the citizens and
protect the territorial integrity of Uganda.

The president also exercises administrative functions of government. By

administrative functions we mean those duties relating to implementing agreed
policies of government. Some of the administrative functions include;

a. Appointment of judicial officers and other senior servants by signing an

instrument of appointment on recommendations of the judicial service
commission. His input here is not an executive decision, but administrative
because he is confined to put in effect a decision which is already made.

b. The president also carries out administrative functions by assenting to bills

which have been passed by parliament.

c. The president carries out administrative functions relating to the constitution

and members of the cabinet.

The administrative functions of the president are however exercised subject to some
controls. The president is not expected to abuse his powers because he is a
president.

Checks on presidential power

The presidency performs administrative functions of the president which however

can only be exercised subject to the provisions of the constitution i.e., the president
cannot exceed statutory powers because to do so will make his action
challengeable in the constitutional court or in other courts.

The presidential powers may also be challenged by parliamentary inquiries. Where

the president acts illegally, his decision may be subject to challenge. Parliament
may also intervene where they think the presidential act is inappropriate.

The constitution gives power to approve the appointment of senior public officers; it
can also censure ministers who do not comply with the requirement s of their duties.
Requirement of approval and censorship can check on the administrative powers of
the president relating to public appointments.

However, most of the administrative powers of the president involve an element of

discretion, it may not be possible to challenge such actions, unless there is ample
evidence that the powers of discretion were abused or there is some illegality.

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Another limit is the presidential immunity to the effect that the president may not be
subjected to legal challenge while he holds office as a president.

MINISTERS/MINISTERIAL RESPONSIBILITY

Ministerial action is that action of the administrative agency which is taken as a

matter of duty imposed upon the ministers by the law. Therefore, a ministerial action
involves the performance of a definite duty in respect of which there is no choice.

Ministerial functions are exercised by taking active, coercive measures and

administrative functions by meeting out policy and expediency (usefulness) with
unfettered discretion.

The constitution establishes a cabinet of ministers and states that a cabinet shall be
responsible for formulation and implementation of government policies.

Article 111 is to the effect that there shall be a cabinet which shall consist of the
president, the vice president and such number of ministers as may appear to the
president to be reasonably necessary for the efficient running of the state.

The constitution further establishes the office ministers who are in-charge of specific
ministries of government departments. Ministers perform duties of government within
cabinet and outside cabinet. These duties include

1. Formulation of policies relating to particular government functions

2. Ministers also carry out administrative function. These functions relate to
implementation of policies government.
3. They play administrative functions by way of making orders, rules regulations
or carrying out particular functions of government. Many statutes give
minister power of legislation because they are assumed to have better
access to information and details than parliament itself.
4. In some cases, ministers may be required to approve regulations made by
subordinate bodies
5. Ministers (could) approve budgets of parastatals under corporations under
jurisdiction
6. Ministers present the budget for approval by parliament.
7. They are sometimes given powers of licensing i.e., issuing and canceling of
licenses.
8. Making public appointment e.g., managing director of companies, public
corporations, etc. and removal of such officers.
9. the ensure that public servants carry out the agreed policies this is done
through a process of monitoring the performance of public servants

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10. They are checked /controlled and are not expected to abuse their powers.
The controls on ministerial administrative function include.
i. Parliament can decline summon a minister for
interrogations
ii. The Judiciary can decline to enforce ultra vires laws if
made
iii. The president can reshuffle or fire minister(s)

Art. 117 provide that ministers are collectively responsible for their action or decision
made by the cabinet. Collective responsibility means that they are bound by all the
decisions of government and cannot oppose or reverse the decisions reached to by
the cabinet. They are however individually responsible to the president for the
function of their ministers.

A minister is also individually responsible for all the affairs relating to his ministry. He
must ensure that relevant political guidance is given to the public and his /her public
behaviour must be exemplary. The requirement for individual responsibility is to
ensure that ministers act in good faith and aim at the highest standards possible.

They are collectively responsible to parliament. They are therefore expected to

speak with a united voice and also observe the rules of secrecy. This collective
responsibility is a check on performance of individual minister. They are not
supposed to take decisions which cannot be defended by colleagues within or out
of cabinet.

Another area of control is the judicial review which can be used to challenge
ministerial decisions which are ultra –vires. Ultra – vires may be substantive or
procedural.

Where the minister abuses powers of discretion, court can intervene and set aside
such a decision. Judicial review may also be invoked where the minister has failed to
observe the controls relating to the making of subsidiary legislation. They can also be
challenged where they don‟t observe rules of natural justice especially in quasi
judicial matters such as disciplinary cases.

Parliament may also use a minister to explain his/ her decision or conduct which
parliament finds question on legal or moral grounds.

Another general check on the ministerial responsibility is the Leadership Code Act
and the Oaths Act which require ministers to conduct both their office and social
work in conformity with certain standards of conduct.

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PUBLIC SERVICE

Article 175 provides that “public officer” means any person holding or acting in an
office in the public service and that “public service” means service in any civil
capacity of the government the emoluments for which are payable directly from
the Consolidated Fund or directly out of monies provided by parliament.

Public service is defined in the constitution in relation to a public officer. The

constitution further defines public service to include service to the government of
Uganda in civil capacity and where payments, salaries and emoluments are paid
directly from the consolidated fund.

Civil service is public service within the main stream of public service. This covers
those employed in government ministries and departments. On the other hand,
„public servant‟ is wider as it refers to any employment connected with delivery of
government service. It includes employment connected with delivery of
government services. It includes employees in public corporations‟ constitutions
commissions statutory bodies, ministries etc.

Public servants are usually appointed by public service Commission and are
appointed to perform duties and function within the government. An appointment
which relates to business other than business of government is not recognized as
public business.

PUBLIC SERVICES COMMISSION

The PSC is established under Article 165 of the constitution and shall consist of a
chairperson, a deputy and seven other members appointed by the president with
approval of parliament. Article 166 of the constitution provides the functions of the
public services Commission as follows:

1. To advise the president in performing his or her functions under Article 172 of this
Constitution.
2. To appoint, promote and exercise disciplinary control over persons holding
office in the public service of Uganda as provided in Article 172 of this
constitution;
3. To review the terms and conditions of service, standing orders, training and
qualification of public officers and matters connected with personnel
management and development of the public service and development of the
public service and make recommendations on the them to the government;
4. To guide and coordinate district service commissions;
5. To hear and determine grievances from persons appointed by district service
commissions; and
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6. To perform such other functions as may be prescribed by this constitution or any
other law.

Article 166(2) provides that in the exercise of its functions the public service
commission shall be independent and shall not be subject to the direction or control
of any person or authority; except that is shall take into account government policy
relating to the public service. The commission shall make a report to parliament in
respect of each year, on the performance of its functions.

Civil servants fall under the jurisdiction of the public service commission which is
established under article 165 and its function set out under Article 166 which include
appointment, promotion and exercise of disciplinary control over public servants

The constitution provides that public service shall be composed of highly, honest
and experienced persons who serve for a fixed term and they cannot be removed
except if the grounds for public service shall also take into account government
policy relating to service.

Apart from the constitution, public service is regulated by the Public Service Act Cap
288. The other law is the Public Service (Negotiating Machinery) Act Cap 289 which
allows public servants to form or join labor unions for purposes of protecting and
promoting their interests as employees. It also provides for the settlement of disputes
between the government and public officers. The Public Service Regulations, Public
Service Standing Orders provided for their creation by the minister under S.13 of the
Public Service Act which must be observed by all public servants as well as the
Employment Act 2006.

THE GOVERNMENT STANDING ORDERS

These are concern with, inter alia, identification of vacancies entry into the public
service, and conduct in the public service and offences and penalties. The
Government standing orders are now to be applied alongside the relevant
provisions of the Employment Act.

The standing orders also cover various categories of employees in the public service
and the terms and conditions attaching to each category. The servants may be
employed on permanent terms, temporary, contact pensionable. The standing
orders also provide for entitlements by way of salaries, allowances, leave, pensions
etc.

The mode of termination of service that is the different ways in which service may be
terminated, for example termination by death, expiry of contract retirement. It may
also occur a result of disciplinary proceedings.

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The primary duty of civil service is to implement government policy. The approved
policies are received from cabinet by public service for implementation. The
permanent secretary and all public relating to implementation of the office policies.

The constitution establishes the office of the permanent secretary for each ministry
with the following functions;
1. Organize and operate the government under his care
2. To tender advice to the relevant ministers. This advice may be way of
procedures or by way of policy formation.
3. Implementation of government policies.

The permanent secretary is also the accounting officer and responsible for ensuring
that only approved expenditures are incurred following the laid down procedures.
They are responsible to parliament.

Article 174 (1) provided that subject to the provision of this constitution, a Ministry or
department of the government of Uganda shall be under the supervision of a
permanent Secretary whose office shall be a public office. a permanent secretary
shall be a appointed by the president acting in accordance with the advice of the
public service commission. The functions of a permanent secretary under the article
include
1. Organization and operation of the department or ministry
2. Tendering advice to the responsible minister in respect of the business of the
department or ministry.
3. Implementation of the policies of the government of Uganda
4. Subject to article 164 of this constitution, responsibility for the department or
ministry

Officers below the permanent secretary are expected to carry out their duties or
specific assignment following their job descriptions.

Public servants are supposed to render public service without fear of favour. in that
respect, a good public servant should have the following characteristics
b. Independence of mind
c. Strength of character
d. Relevant qualifications for carrying out particular tasks
e. Relevant experience

A good civil servant should also display the following

a) Observance of procedural rules
b) Observance of rules of natural justice (not to be a judge in one own cause
c) Observance of consistency and non-discrimination
d) Promptly executing justice
e) Full public relations including obedience, good address code etc.
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f) A public servant should not disclose official secrets that each officer swears
not to divulge including unpublished official secrets.
g) A good and servant should adhere to the leadership code and exhibit proper
conduct public

Topic

LOCAL AUTHORITIES

Section 3 of the Local government Act is to the effect that the system of local
government in Uganda shall be based on the district as a unit under which there
shall be such lower local governments and administrative units as parliament may by
law provide. This is also in line with Article 176 of the 1995 constitution.

The Act was passed for purposes of giving effect to the principles of decentralization
as pointed out in S.2 of the Act.

LOCAL GOVERNMENT POWERS

The Local Government Act gives effect to the devolution of functions, powers, and
services to all levels of Local Government to enhance good governance and
democratic participation in and control of decision-making by the people. The law
also provides revenue, political and administrative set up of Local Governments as
well as election of Local Councils.

The powers which are assigned to the Local Governments include formulating local
policies and regulating the delivery of services; formulation of development plans
based on locally determined priorities; receive, raise, manage and allocate revenue
through approval and execution of own budgets; alter or create new boundaries;
appoint statutory commissions, boards and committees for personnel, land,
procurement and accountability, as well as establishing and abolishing offices in
Public Service of a District or Urban Council.

Local governments as administrative authorities existed from pre-independence

times. The colonial government used a system of indirect rule so that they could use
some of the existing administrative structures of government.

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EXECUTIVE POWERS

Article 180 of the constitution and S.9 of the LGA are to the effect that local
governments shall have both executive and legislative powers which will be
exercised in accordance with the constitution. These powers relate to the initiation,
formulation and implementation of policies.

The LGA under S.16 provides that there shall be an executive committee for each
district council which will perform the executive functions of the council. This
committee shall consist of the chairperson, vice chairperson, and such number of
secretaries not exceeding five.

The functions of the executive committee include; exercising general supervision

and control over the council‟s finances and government conditional grant and
ensure that these regulations are covered, proposing policies and projects for
consideration and approval, monitor the implementation of the programmes and
projects, considering and evaluating the performance of the council against the
approved work plans and programmes at the end of each financial year.

Other functions include reviewing the annual budgets and other accounts of the
council together with the audit reports, reviewing quarterly internal audit reports
after being examined by the local government public accounts committee and
reporting to council.

The executive committee also recommends and exercises surcharge powers in

accordance with regulation 118 of the Local Governments (Financial and
Accounting) Regulations. They also authorize the writing off of losses in accordance
with regulation 117 of the Local Governments(Financial and Accounting)
Regulations, 2007, approving any re-allocation of the councils‟ funds, approving the
annual cash flow budgets, monitoring the implementation of the council‟s policies
and programmes, reviewing periodic performance reports prepared by the chief
executive and recommend action where necessary, and lastly reviewing reports
produced by the local government public accounts committee and report to
council.

Censure of a member of the executive committee is provided under S.21 of the Act
and is by a resolution supported by not less than half of all the members of the
council.

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HOW THE EXECUTIVE POWERS ARE CHECKED

In Uganda, the system of checks and balances has been adopted. The checks on
presidential powers are provided in the constitution as regards to impeachment or
removal of the president. This is the most extreme sanction that can be issued
against a certain president. It can also be vote of no confidence in a certain
president and the process for the removal of the president involves or entails all the
other organs of the state.

So, if any of the grounds provided in Article 107(1) have been found to exist, then
the legislative has to take action. It sets in motion that ultimate check on the
president and this must be supported by 1/3rd of the legislature.

The 2nd stage involves the judiciary because the petition has to be transmitted to the
chief justice who sets up a tribunal to assess the allegations. That tribunal reports
back to parliament. Parliament will then vote on the issue and if 2/3rd vote against
the president, he will let go of his office.

Other provisions relating to the checks and balances of power relate to Article 101
which provides for the president to deliver to parliament an address on the state of
nation at the beginning of each session of parliament.

Also, the presidential tenure is supposed to check on the president. Here you have
implicitly the idea of tenure, the notion that the executive power has to be
constrained with in a particular period of time.

However, in a democracy, the length of service of the executive becomes an issue

in determining that no single individual is retained in office after the expiration of
their tenure. The 1995 constitution established a term limit of 5 years under the
provisions of Article 105 (1). Nevertheless, it is worth nothing that the parliament has
amended the constitution by removing the term limitation.

The presidential powers are also checked under Article 106 (2) which is to the effect
that it is the parliament to make provisions for the grant of benefits for the president
who ceases to hold office otherwise than by being removed under Article 107 (1).
This totally checks on the sitting president to perform his constitutional terms and
resign.

Much as the constitution grants the president to declare a state of emergency

under Article 110 (1), he has to lay it before the parliament for approval as soon as
practicable as provided under Article 110 (3). He is also required under Article 110
(6) to submit to parliament regular reports as parliament may deem fit.

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The 1995 constitution introduced several additional new organs into the system of
government for instance, the Inspectorate of government, the Uganda human rights
body and the Electoral commission. Each of these is supposed to perform specified
functions to ensure that executive power is held in check.

The inspector of government seeks to prevent the abuse of office by public servants
who are basically members of the executive, the human right commission oversees
promotion of human rights and the electoral commission oversees periodic free and
fair elections which is the essence of ensuring a democratic state. Cabinet members
can be checked by parliament through the mechanism of censure stipulated in
Article 118.

The president‟s powers to appoint cabinet ministers under Article 113 of the
constitution are also checked by the parliament by first approving the named
person. This prevents dictatorship and tyranny from the sitting president.

In summation, the system of checks and balances provided in the 1995 constitution
are a big improvement over the 1967 constitution. These checks also need to be
improved; however, they are still deficient in the face of two major threats;

1) Threat of militarism or militarization of military power and the use of military

to dispose every political conflict.
2) The threat that is pathological, i.e., it relates to the heath/mental status of
those who exercised by those in the executive. It is the disease of
“stayism”

LEGISLATIVE PROCESS OF LOCAL COUNCILS

Section 38 of the LGA gives local governments legislative powers thus local
governments‟ powers to enact ordinances within their local areas of jurisdiction. An
ordinance is made by local district councils; this law must not conflict with the
constitution or other laws. All ordinances must be submitted to the Attorney General
for perusal then the Minister of Local Governments for a certificate of approval.

A bill enacted by any district council and signed by the district chairperson under
the section becomes an ordinance of the council and is published in the official
gazette in the local media. The public is given access to any ordinance passed or
to be passed by the council as is provided through this publicity and by giving them
access to the decision council has been debated upon.

Under section 39 of the LGA, the lower local councils are also empowered to make
laws. Byelaws are not to contradict any law made by parliament. Such laws are
checked by the district council to ensure that they do not contravene the national
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constitution. Sections 38 to 44 of the LGA provide the general powers of the LG and
has reference Local Government regulations and their schedule.

On making bye-laws, a council must notify the next higher local government before
implementing that byelaw. This is intended to bridge gaps in enforcement. All
stakeholders are thereby informed in this process of the existence and content of
the various bye-laws passed within the local limits.

Section 39(7) provides that the procedures for passing a bill for an ordinance shall be
as provided for in the 3rd schedule following the general procedure which involves;
introducing the bill to the general council by a councillor, advertising of the bill for at
least 14 days so as to enable members of the general public know the proposed bill
for comments or proposals, ordaining the bill by placing a clause immediately below
the title of the bill, debating the bill by a duly constituted council, the minister takes
the bill to the Attorney General for perusal and approval, signing of the bill by the
chairperson of the council and lastly publishing the bill in the gazette, otherwise, it
can‟t become a law.

Local government legislation must relate to powers, functions and services which
may be performed or rendered by the relevant local government council.
Therefore, legislation must be on matters which are given to that local council in the
second schedule to Local Government Act.

INTRODUCTION OF BILLS FOR ORDINANCES

Every member of the district council or city council has a right to introduce a bill for
an ordinance in the council. A councillor introducing a bill for an ordinance shall be
afforded reasonable assistance by the council‟s department whose area of
operation is affected by the bill. A bill for an ordinance introduced by a member
shall before its publican first be introduced by a motion to which the proposed bill us
attached, and if the motion is carried then bill will be published.

Publication of a bill
The council shall, not later than fourteen days before a bill is to be debated by the
person introducing the bill, setting out the policy matter of the bill and how the bill
seeks to implement that policy. Each bill shall be identified by a title placed at the
beginning of the bill. The title of the bill shall include the subject matter of the
ordinance in general terms

Ordaining clause
Each bill shall have an ordaining clause placed immediately below title of the bill.
The ordaining clause shall read as follow.

“BEIT ORDAINED by the council of the district of (name of district) as follow”

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Distribution of copies of a bill to members

On publication of the bill, the clerk shall distribute copies to the member ensuring
that each councillor gets copy to enable the members study the bill and consult on
it in their constituencies.

Debating the bill

Debating of the bill shall take place at least fourteen days after its publication. In
case of a public emergency, sub regulation (1) of this regulation may be waived by
a resolution of the council.

At the beginning of the debate, the speaker shall call the name of the member
introducing the bill introduce it. The clerk shall the read of the title of the bill after
which the member called upon shall give the introductory speech giving reasons for
the bill. A full debate shall follow on the memorandum and at any time before the
closure of the debate. at the close of the debate the speaker shall put the question
in respect of each clause of the bill as published or as is a member as published or
as a mended by the council.

Signing a bill into an ordinance publication

On the return of the bill from the Attorney General without amendments, the
chairperson shall place his or her signature on the copies & the copies shall be kept
as follow.
a. The chairperson, one copy
b. the speaker, one copy
c. The minister, one copy
d. The attorney, two copies one which shall be for publication in the Gazette on
publication of the ordinance the date of commencement shall be indicated,
and the ordinance shall be given a number in order of publication of the
ordinances. An ordinance shall be published in the Gazette and also in the
district in the same manner as the bill is published in the district.

The general procedure is as follow

1. there must be a bill which is introduced to the general council by a councillor

2. The bill must be advertised for at least 14 days so as to enable members or the
general public to the proposed bill so that they make comments or proposals
3. It must be debated by a duly constituted council
4. The minister takes it to Attorney general for perusal and approval
5. Then is signed by the chairman of the council
6. It is then published in the gazette; otherwise, it cannot become law.

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Financial powers of local councils

The LGA and 1995 Constitution gave local governments autonomy to formulate and
approve their own budgets and funds through their own generated revenues, grants
and donations. Section 78 of the LGA requires them to ensure that they have
balanced budgets and priorities must be given to National Priority Program Areas
which include education, health, clean and safe water, feeder roads and
agriculture extension.

Section 83 of the LGA which states that conditional and unconditional grants like
grants to run local government minimal services and specific programmes agreed
upon between the government and local governments and equalization grant
which is given to the less advantaged districts to enable them catch up with the
average level of development.

Section 80 of the LGA provides for sources of revenue to local government. In

addition, local governments are also allowed to borrow funds, the borrowing powers
are however restricted. They are also subject to control by the Auditor General and
subject to the limits that depend on locally generated revenue. The local council
shall perform the following functions in relation to financial management;

Authorizing public expenditure in accordance with section 82 of the LGA. This

provides that no appropriation of funds by a local government shall be made out of
the funds of the council unless approved in a budget by its council

Exercise general control over public revenue of the council in accordance with the
LGA, these Regulations and other instructions issued by a competent authority and
approving all annual work plans and budgets for local government expenditures.

Approving votes on account, supplementary estimates and approving policies.

Considering reports produced by the Local Government Public Accounts

Committee and recommends action where necessary.

The Resident District Commissioner

The office of the Resident District Commissioner is established under Article 203 of the
constitution. The Resident District Commissioner for each district is appointed by the
President. He/she must be a citizen of Uganda and a person of high moral authority
and proven integrity. He should be such a person of considerable experience,
demonstrated competence and of a high calibre in the conduct of public affairs.

The functions of the resident District Commissioner are established in Section 71 of

the LGA include; representing the President in the district, coordinating the
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administration of government services in the district, advising the Chairperson on
matters of national nature that may affect the district or its plans or programmes and
particularly the relationship between the district and the government, monitoring
and inspecting the activities of local governments and where necessary advising the
Chairperson and carrying out any other functions as may be assigned by the
president or prescribed by parliament.

Further, the Resident District Commissioner may; sensitize the populace on

governmental policies and programmes, drawing the attention of the Auditor
General in case of need for special internal audits of the local government council,
drawing attention of the Inspector General of Government to a need to investigate
any cases of mismanagement or abuse of office, drawing the attention of any
relevant line ministry to the divergence from or noncompliance with government
policies, in consultation with the speaker or chairperson of a council as the case
may be, addressing the council from time to time on any matter of national
importance

Administrative Powers
Local authorities have been given constitutional powers to formulate and execute
their own projects. The law of execution relates to implementation. Local
governments implement policies and projects through the administrative staff of the
districts.

Article 176 of the constitution provides that local governments shall employ and
control their own staff. The purpose of this is to make Local governments
accountable to the local council and the local government institutions. This was
intended to promote the principle of decentralization.

The Chief Administrative Officer

The Chief Administrative Officer is appointed on technical competence and may be

more educated than the district representatives. There are instances where elected
representatives are not well qualified to handle the local government projects which
detail service delivery in the district. Thus, there is a lacuna in the law pertaining to
the minimum qualifications for one to be a member of the council.

Central government has often argued against the need for academic qualifications
for leadership roles and this argument has some merit given that the local people
may have better information about their concerns than any other classroom
knowledge may provide. In the final analysis, the tedious work of budget planning
and analysis and prioritization is largely premised on technical considerations which
entail certain acquisition of a minimum academic qualification, implying that there
is more effort required to provide some of these basic skills where they are lacking.
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Section 63 of the LGA establishes the office of the Chief Administrative officer for
every district, appointed by the Central Public Service Commission. The functions of
the Chief Administrative Officer are spelt out under section 64 of the Local
Government Act. The Chief Administrative Officer is the head of the public service in
the district and the head of the administration of the council. He is the accounting
officer of the district. The functions of the Chief Administrative Officer are set out in
detail under section 64(2) of the LGA.

The Chief Administrative Officer is responsible for the implementation of all lawful
decisions taken by the district council. He/she gives guidance to local government
councils in the application of the relevant laws and policies, supervises, monitors and
coordinates the activities of the district and lower council employees and
departments and ensures accountability and transparency in the management and
delivery of services.

He/she develops capacity for development and management of the planning

function in the district for employees‟ better performance, supervision and
coordination of activities of all delegated services and the officers working in those
services. He is a custodian of all documents and records of the local government
council, acts as a liaison officer between the district council and the central
government, advises the chairperson on the administration of the council, assists in
the maintenance of law, order and security in the district, carries out any other duty
that may be assigned by the district council from time to time.

In addition to the above, the Chief Administrative Officer is also responsible for
performing all statutory duties and functions which he/she is required to do under
any other law.

Effectiveness of local authorities

Local authorities have been effective in the daily running of communities as seen in
the following ways; Implementation of development plans and programmes of the
central government at lower local government units. This has been carried out with
focus on government priorities like poverty eradication, improving the education
levels and health of the citizens.

This is true as seen in such programmes as Prosperity for All which focuses on the rule
poor through the National Agricultural Advisory Services, the Universal primary and
secondary education programmes, building of health facilities, all implemented in
the local governments.

Local authorities have gone ahead to implement decentralization policies there by

bringing services closer to the people. Such policies as recruitment of civil servants in

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respective District Service commissions have enabled people to get employment
hence improving peoples‟ standards of living.

Simple administrative structures have been put in place various districts or lower
local governments with reduced administrative costs. This has reduced the level of
bureaucracy leading to easy and quick implementation of government programs.

Local authorities have made the implementation of specific area-based

programmes possible.

At local government level, resource allocation targets beneficiaries. This is true as

seen in the way some programs like the National Agricultural Advisory Services,
District Livelihood Support Programme operate. The main aim of these programs is
to improve the livelihood of people hence support is taken to village and household
level.

Local authorities have gone ahead to provide of security for both local people and
their properties. This is evidenced in the existence of the effective security personnel
at all levels and also the asset management policies in place to safeguard property.

CONCLUSION AND RECOMMENDATION

Though the local authorities have promising development plans, their budgets are
wanting. There is need for reasonable support from the Central Government and
other donors.

Experience has shown that local authorities lack the capacity to run health centres,
maintain roads and other equipments such as vehicles. Also, there is a problem of
poor staff welfare which affects their morale leading to poor performance. There is
need for payment of a living wage to all civil servants in local authorities since the
country‟s gross domestic product is growing.

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REVISION QUESTIONS

1. “…we have again and again set aside proceedings in inferior tribunals
because an individual who had an interest in a cause took part in the
decision” per L.C.J., Lord Campell in Dimes Vs Proprietors of Grand Junction
Canal proprietors (1852) 3 HLC 759, discuss.

2. “…it is now settled law in Uganda that Courts shall only be called upon to
intervene where a public authority exercises power not granted to give
appropriate remedies after interpreting the provisions of the relevant statute.”
As per a BAS 2 student of KYU, Explain.

3. Explain the ways through which discretionary powers may be abused by an

administrative authority.

4. Explain the different grounds of judicial review.

5. Discuss the remedies available to persons aggrieved by the decisions of

public bodies in Uganda.

6. Explain the judicial remedies available to persons aggrieved by the decisions

of public bodies in Uganda.

7. Explain the non-judicial remedies available to persons aggrieved by the

decisions of public bodies in Uganda.

8. Explain the functions of Chief Administrative Officer (CAO) as provided in the

Local Governments Act.

9. “It is only parliament which has powers to make laws in Uganda”. Discuss the
statement and explain the reasons for giving District Councils powers to make
laws.

10. Explain the sources of Local Government revenue in Uganda.

11. “…the Constitution of the Republic of Uganda 1995 rests excessive powers in
the presidency and such powers can be abused.” Do you agree?

12. What do you understand by the expression “ministerial responsibility”?

13. With the aid of relevant statutory provisions and decided cases, discuss the
remedies available to persons aggrieved by the decisions, acts or omissions of
public bodies in Uganda.

14. Using appropriate examples, explain the non-judicial remedies available to

persons aggrieved by the decisions, acts or omissions of public bodies in
Uganda.

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15. With the aid of relevant decided cases, discuss the judicial remedies
available to persons aggrieved by the decisions, acts or omissions of public
bodies in Uganda.

16. Write short notes on any five of the following;

(a) Consultation.
(b) Licensing.
(c) Enforcement of standards
(d) Inspection.
(e) Registration.
(f) Fair hearing.

17. Write notes on any two of the following;

(a) Natural justice.
(b) Rule of law.
(c) Sources of law in Uganda.

18. Write notes on the following

(a) Abuse of discretionary powers.
(b) Judicial review.

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