Admin Law Lectures 2
Admin Law Lectures 2
LECTURES (LL.B)
Part 1 & 2
Oswald K. Seneadza
Faculty of Law, KNUST
AREAS TO BE COVERED INCLUDE THE
FOLLOWING:
PART I
Lecture1: INTRODUCTORY TOPICS IN ADMINISTRATIVE LAW
(1:1) Definition, Nature and Scope of Administrative Law
(1:2) Historical Development of Administrative Law in Ghana
(1:3) Types of Agencies Susceptible to Regulation
(1:4) Types of Administrative Actions
Lecture 2: Delegated Legislation
Lecture 3: Judicial Review of Administrative Decisions
Lecture 4: The Rules of Natural Justice
PART II
Lecture 5: Institutions of Administrative Justice
(5:1) Tribunals
(5:2) Commissions of Inquiry
(5:3) CHRAJ
(5:4) EOCO
Lecture 6: Public Interest Immunity
Lecture 7: The Exercise of Discretionary Power by State/ Public Officials
CONSULTS FOR FURTHER READING
INTODUCTORY TOPICS IN
ADMINISTRATIVE LAW
Objectives
At the end of this chapter you should be able to:
explain what is meant by administrative law and
constituent elements;
understand the differences between administrative and
constitutional law;
trace the development of administrative law in Ghana
identify the sources and limitations of administrative
power;
Appreciate the types of administrative actions and
disputes.
(1:1) DEFINITION, NATURE AND SCOPE
(i) What is Administrative Law?
Administrative law is the body of rules, regulations and orders formulated
by government bodies which governs the activities of administrative
agencies of government, the substantive rules that such agencies make, the
procedures they follow and the legal relationships between such agencies,
other government bodies and the public at large.
Administrative law is the body of law and legal work that
deals with government agencies. Lawmakers create
government agencies to carry out laws and administer the
functions of government. These agencies create, implement
and enforce regulations. All of the work that goes into these
activities falls under the category of administrative law
Administrative law is considered as a branch of public law and a
subordinate branch of Constitutional Law.
See, also definitions by Felix Frankfurter; Wade & Forsyth; Cane &
McDonald, in O.K Seneadza’s Introduction to Administrative Law in
Ghana, pages 1 and 2.
(ii) The differences & Similarities between
Constitutional Law and Administrative Law
Differences:
By subject area: Constitutional law is wider in
Subject area (scope) than administrative law.
By sources of law: CL comes from the
Constitution while AL comes from delegated
legislations and decisions of Administrative
bodies
By scope: Constitutional law deals with the
structure of the government while administrative
law is concerned with the functions and exercise
of powers by administrative authorities.
By systems of law: Roman Civil Law & the
Common Law (see, pages 9 to 12, O.K. Sneadza).
Similarities
There are, however, similarities between
both subjects, some of which are:
They both deal with the application of
constitutional law and powers and their
administration.
The same set of principles, rules and
maxims apply to both of them.
They both provide remedies for breach of
rights of an aggrieved person.
They both make use of judicial
precedents or case law.
(iii) The four pillars of administrative law
1) The Constitution - e.g, Art. 23 of the 1992 Constitution
provides, “Administrative bodies and Officials shall act
fairly and reasonably…persons aggrieved by the
exercise of such act and decisions shall have the right to
seek redress before a court or other tribunal.”
2) The statutory provisions (primary and secondary
legislations) – establishing government agencies
3) Judicial decision (cases establishing precedents)
- appeal cases from administrative tribunals, CHRAJ,
traditional leaders and other adjudicators.
4) Legal theories of administration law –philosophies of
law (the “why” and “why not”). They give meaning to
the law and its amendment and development.
(iv) Sources of Administrative Power
Governments and public bodies derive their power from these
sources:
1) Prerogative (exclusive authority) – normally not subject to
judicial review (see, some cases p.19)
• Prerogative of mercy: Art 72(1) of 1992 Constitution
2) Statutory law (delegated legislations) – can be challenged
where they contravene any provision of the 1992 Constitution.
3) Decisions by public authorities – but where decisions are
ultra vires or do not follow laid down procedures can be
reviewed by the courts.
Read: Distinction between “Power” &
“Duty”(p.16-17)
Classification of Power (executive, legislative, judicial, p.21)
Limitations of Power (consultation, delegation, hearing right)
1:2 HISTORICAL DEVELOPMENT
Administrative law in England dates back to 1589 (Rook v Whither) at the same
time with the appearance of the following events – to control and regulate the
increasing State power and role(duty) in the welfare of the individuals:
(i) With the advent of welfare state:
The welfare state is a concept of government in which the state plays a key
role in the protection and promotion of the economic and social well-being of
its citizens. It is based on the principles of equality of opportunity, equitable
distribution of wealth, and public responsibility for those unable to avail
themselves of the minimal provisions for a good life. The welfare state
involves a transfer of funds from the state to the services provided (i.e.
healthcare, education, etc.) as well as directly to individuals ("benefits"), and is
funded through taxation.
(ii) With development of mixed economy:
A mixed economy is variously defined as an economic system blending
elements of market economies with elements of planned economies, free
markets with state interventionism, or private enterprise with public enterprise.
(Schiller, Bradley. The Micro Economy Today,
McGraw-Hill/Irwin, 2010, p. 15)
(iii) Judicial Review was then introduced to control excesses of Government
power referred to as “judicial interventionism” with landmark decision of Ridge v
Baldwin (1964).
Administrative Court in Ghana falls under the jurisdiction of the general court
system and not separated or parallel to the general court system as in Egypt,
Greece, Germany, France, or Italy. Rather, they are tribunals within administrative
agencies, and are distinct from judicial courts. Decisions of administrative
tribunals can be appealed to a judicial court.
Read: on the History and Development of English Law, by E.K. Quansah , The
Ghana Legal System, (2011), p6-15.
1:3 TYPES OF AGENCIES SUSCEPTIBLE TO
REGULATION
There are several different kinds of administrative agencies which are created
by parliament or the State. They are either Dependent (direct) or Independent.
vrs
DELEGATED
LEGISLATION
Objectives
At the end of this lecture you should be able to:
explain the concept and essence of delegated
legislation;
list the different types of delegated legislation;
evaluate the role of delegated legislation within the
law-making framework; consider what measures are
available to check and control the possible abuse of
delegated legislative power.
1. The doctrine of Delegation
Delegated legislation, according to David Shestokas and Peter
Aranson, is a form of subordinate delegation based on practical
theories derived from public choice, public welfare service,
agency etc. with certain limitations as illustrated in the figure
below. (Against Locke’s separation of powers principle)
2. The Sources and System of Delegation
3. Types of Delegated Legislation
Primary Legislation,
Enabling or Parent Act
Secondary
Legislation,
Delegated or
subordinate
Legislation
For example, the following Acts (framework acts) allow delegation of legislative power to other subordinate bodies, (under Statutory
Instrument Act, 1959 (section3):
Civil Service Act, 1960 (s. 43)– gives the president the power to make regulations by legislative instrument when necessary for
administration of Civil Service.
EPA Act, 1994, (s. 2 (h)) – allows the Agency to make standards and guidelines relating to pollution of air, water and land.
Statistical Service Law, 1985 (PNDCL 135) (s. 28)– allows the Council to make regulations by Legislative Instrument.
CHRAJ Act, 1993 (Act 456) (s. 26) – permits the Commissioner and the Deputy to make regulations by Constitutional Instrument
relating to investigation of complaints.
Local Government Act, 1993(Act 462) (s.79) – allows District Assemblies to make bye-laws. Also s. 10 (2) states that, “a District
Assembly shall exercise deliberative, legislative and executive functions”.
Legal Service Law, 1993 (s. 17) – the AG may, on recommendation of the Board by legislative instrument, make regulations for
procedures concerning the service.
In Public Universities like KNUST,
4. Justification for Delegated Legislation
The main reasons in support of the need for delegate legislation are:
1) Pressure upon parliamentary time: (attempt to enact all laws itself will collapse
the legislative mechanism)
2) Technicality of subject-matter: (to facilitate consultation with expects who can
readily understand the issues and they do not involve questions of principle or
secrecy at the preparatory stages (as in the case of a drafted bill regarded as
confidential document until it is read for the first time in parliament).
3) The need for flexibility: ( to take care of unforeseen administrative difficulties
which may appear, usually when a new public service is established or to prevent
recourse of Acts to parliament for amendment when a scheme had began)
4) State of emergency: (executive authority to take quick action in time of national
danger or disaster. Provision is made for such powers in the 1992 Ghanaian
Constitution). To pass through the long parliamentary procedures will not be the
ideal thing under emergencies or national disasters if quick action is needed).
5) Changing conditions: The conditions upon which legislation operates are often
changing, necessitating frequent adjustments to the law which, where they are not
substantial, it would be unnecessarily rigid to call upon Parliament to make laws
by itself.
5. Level of Delegation
1) Complete Delegation – where a
Minister is allowed to make law on his
own authority e.g. closing a road,
commencement orders.
2) Negative Delegation – where
instrument must be laid before
Parliament for a number of days and can
be rejected by a motion
3) Affirmative Instrument – instrument
laid as draft. Cannot come into effect
until it is debated and approved by
Parliament.
6. Control of Delegated Legislation
Although delegated legislation may be necessary, it is
also clear that there must be mechanisms in place for
preventing any possible abuse of delegated powers.
The existing means of control include:
2) Prohibition
This is an order seeking to prevent an administrative body or official or an inferior court or a quasi-
judicial body from exceeding its jurisdiction or from making a decision or taking an action which
may warrant certiorari.
3) Mandamus
When a public body or official or an administrative body or a quasi-judicial body are supposed to
exercise an authority or duty, but that body or official has failed to execute the authority or duty,
mandamus may be issued to that body or official compelling it to perform its function
4) Declaration:
A statement of the legal position of the parties and is not accordingly a remedy per se. It states the
position of the law. It also clarifies and confirms the law. “A declaration order cannot be enforced
on its own but rights and remedies attendant on the declaration may be enforced through a separate
(a) To write a letter before action: The applicant or lawyer should first write to the decision-maker in order to allow him
or her the opportunity of remedying the situation. Failure to d this can result in application being rejected.
(b) To apply for leave for Judicial Review: The applicant has to apply for leave for judicial review as promptly as
possible and in any event within three months in (UK) of the occurrence of the alleged ‘wrong’. The court des have
discretion to allow late application, but there would have to be very good reasons for the delay.
(c) Present position: The application is made ‘ex parte’ (without giving notice to the decision-maker in question) to the
High Court judge by filling a notice form, together with supporting affidavit verifying the facts relied upon. The judge can
determine the application for leave without the necessity of a hearing, unless the applicant requests an oral hearing in
the notice.
Lecture 4
THE RULES OF
NATURAL JUSTICE
Objectives
After attending this session, students
should be able to:
explain the principles of natural justice;
analyze whether the principles of natural
justice
have been infringed;
reflect on the further development of
procedural fairness;
recognize the limitations of the principles of natural
justice;
apply it to real and hypothetical problems.
Issues
RULE 2: The rule against bias (nemo judex in causa sua) – were
the decision-maker is a close relative or a friend or an enemy. See,
[Akosua Bedaabuo v Yaa Hima (1948-51); Saawa v Dumah
(1991)], prejudice & partiality towards one party.
RULE 3: The New Evidence Rule
This newly evolving rule is that a decision, whether
administrative or adjudicative, must be based upon
logical proof or material evidence. Adjudicators and
decision-makers should not base their decisions on
mere speculation or mere suspicion.
INSTITUTIONS OF
ADMINISTRATIVE
JUSTICE:
(a) Administrative Tribunals
(b) CHRAJ
(c) Commissions of Inquiry
(d) EOCO
Lecture 6
PUBLIC INTEREST
IMMUNITY
Lecture 7
THE EXERCISE OF
DISCRETIONARY POWER BY
STATE/PUBLIC OFFICIALS
• Power conferred on University administrators
The following Administrative and Executive Bodies
may exercise power conferred on them by KNUST,
Kumasi Act 1961 (Act 80) as amended by PNDC Law
240 of 1990 and Act 559 of 1998 and University
Regulations.
• Principal Officers:
* Chancellor of the University (Head of the University)
* Chairman of the University Council
* The Vice-Chancellor