QUESTION.

Explain what Administrative Law is and making reference to case law, discuss its functions
in the governance of a country.
INTRODUCTION
Administrative law is concerned with powers and procedures for the use of public officers
and institutions responsible for the performance of the functions of the state. So this paper
will seek to discuss what administrative law is, making reference to case law , states its
functions in the governance of a country. In order to achieve and explain in the governance of
a country. Most scholars have confined themselves to formulating working definitions within
the context of their work. There are however, agreement that administrative law is law
created by administrative agencies in the form of rules , regulations , order and decisions to
carry out regulatory powers and duties of such agencies.

What is Administrative Law.

Administrative Law is a body of law created by administrative agencies in the form of rules,
regulations, orders, and decisions to carry out regulatory powers and duties of such agencies1.

It is the body in law that governs the activities of administrative agencies of government. It
concerns the principle relating to executive or government powers, in that government
officials and agencies are conferred with extensive powers (typically by statute) to provide
public services. The service of public officials include, rule making, adjudication of a specific
regulatory agenda.

Administrative Law focuses specifically on the powers and responsibilities exercised by

government bodies and how they are regulated and controlled by both legal and extra-judicial
means. Administrative Law is particularly concerned with how the executive/administration
uses and misuses its public law powers, as it is considered a branch of public law.

In summary, Administrative Law is concerned with ensuring that government and public law
decision-makes are accountable for their action through administrative checking such as
Tribunals, Judicial Review or Commissions to ensure that they work within the confines of
the law.

1
Jacqueline M.(2007) Unlocking Constitutional and Administrative Law.London.p551

1
Functions of Administrative Law in a Governance of a country.
Administrative Law as already explained above is mainly concerned with the executive organ
of the government and provides scrutinasation to ensure that government offers work in
accordance with the provisions of the law. Administrative Law therefore has played an
important role or pivoted law in a governance of a democratic country. Its importance in a
governance of a country can be stated in the following way;

Promotes Rule of Law.

This is one of the functions of Administrative in a governance of a democratic country. This
concept of rule of law, was formulated by Professor A.V. Dicey who simply stated that those
in power, must rule the country in accordance with the provisions of the constitution and
other laws in that particular country.

Dicey view in relation to the functions of Administrative Law in a governance of a country

was that all people in a democratic country must be subjected to the same laws and should be
held accountable if they break them. This means there should be no discrimination in the
application of laws as everyone is equal before the law and no person is above the law. The
operation of public officers should be authorised by the laws of that particular country and
that this concept of rule of law makes government leaders accountable to the people they
lead. As originally propounded, the concept has three meanings;
1. The law is supreme or predominates as opposed to the influence of arbitrary power. In
essence, no one is punishable or can be made to suffer in body or goods except for a
breach of the law established in the in ordinary legal manner before the ordinary
courts of the land.
2

2. The second meaning is that of equality before the law or equal subjection
of citizens to the ordinary laws of the land administered by the ordinary courts of law.
This means, the President, Ministers and other people holding public offices are to be
treated the same way as an ordinary person when break the law of the country.
3. The third meaning is in relation to people’s human rights in that a person who has
been physically injured by another can maintain an action in the ordinary courts of the
 land and this is however, possible only if there is free access to the justice system
therefore ensuring good governance.

The importance of rule of law in relation to Administrative Law functions in the

governance of a country is that it ensures public bodies to act strictly within their legal
powers and do not exceed them. Rule of Law necessities that government or public officers
act within the law and if they act contrary, the courts will ensure that public decision-making
do not abuse their public law discretion.

States the Constitutional Supremacy.

Functions of Administrative Law in a governance of a country. As government derives many
of its public law powers from the constitution, Administrative Law have simply upholds
Constitutional Supremacy by ensuring that public bodies act strictly within their allocated
statutory powers. If these bodies were permitted to exceed their legal author and status of Act
of Parliament. The constitution ensures that public decision-makes act within the legal
parameters set.

In Zambia, the Constitutional Supremacy in relation in Administrative functions is stated in

Article 1(3) of the constitution, which declares the constitution as the supreme law of the land
and if any other law is inconsistent with it, that law shall be declared null and void to the
inconsistent.

3
In Christine Mulundika and others V. The people2 states the supremacy of the constitution as
the court held that section 5 (4)of CAP 104 contravenes the constitution therefore null and
void.

The position is reinforced by Article 1(4), which binds all persons in Zambia, and from the
Administrative function, means no person or institution in Zambia is above the constitution.
Parliament and the President working together cannot purport to have or exercise authority or

22
(1995) S.C.Z No. 25,
enact legislation, which violates the constitution. Parliament can do anything that is permitted
so long it is within the parameters set by the constitution.

Promotes Separation of Powers.

This is another function of Administrative Law in a governance of a country as it brings
checking and balancing the actions of the executive. In this way the executive is held legally
to account. The courts have used this principle of separation of powers as justifying the
constitutional role. Thus, in constitutional role (Theory) the judges confine themselves simply
to reviewing the decision-making process of public bodies whilst leaving the latter to make
the actual decision themselves. Administrative Law therefore ensures that each public body
exercises its functions according to the provisions of the law.

Protection of Human Rights.

Administrative Law has provided for accountability and transparency in the process of the
executive using its powers therefore ensures that citizen’s rights are protected as given by the
constitution. It can be said, the more a decision has impacted adversely on human rights, the
more justification would be mithrequired by the courts for the public body to make as held in
the case ex-parte. S3, where the court held that public authorities must act in accordance with
the rights set out and if they do not work in accordance with them, their actions can now be
subject to judicial review for breaking them.

Promotes Good Governance.

Administrative Law has played an important role in its function in a governance of a country
is through good governance. Good governance simply means the way people are ruled thus,
the government is one which is legitimate, competent. In a country where good governance is
done, Administrative Law is said to have played an important role as people’s human rights
are respected.

This is one of the most important functions of Administrative Law in a governance of a

country. It is based on a legal mechanism whereby the claimant can seek judicially review the

33
(1996) 2Aller57 4
decision-making process of a public body or officer, asking the court to determine whether
the decision taken by the public officer was in line with the provisions of the law.

Judicial review is the means by which the courts (Judiciary) control the exercise of the public
officers (Executive), in that the government departments, local authorities, tribunals, state
agencies and agencies exercising powers which are governmental in nature must exercise
their power in a lawful manner. As one of the functions of Administrative Law, judicial
review is concerned with;
(a) Acting Wrongly.
This is based on the doctrine of ultra vires rule, which may be called the
central principle of Administrative Law. The doctrine simply states that the public
authority or body may not act outside the confired powers. Any act which is ultra vire
is often described as being outside jurisdiction, hence no legal effect as the public
officer or body errored in law or facts, acted in bad faith, used powers verseted on him
for the wrong purpose and relevant and irrelevant consideration in his decision-
making.
The person seeking judicial review based on the ground of acting wrong is simply
telling the court to quash the decision of the public officer using the order of
certiorari.

5
In Roy Clark V. Attorney General4.Where the court quashed the deportation of the
applicant for writing satire articles in the post Newspaper critical at time of the
President. In another case of Nkumbula V. Attorney General 5 where Mr. Nkumbula
had seek judicial review stating that his constitutional right of speech, assembly and
association were violated after the declaration of a one party state by Dr. Kaunda.
(b) Failing to Act.
This means the public officer fettered in discretion or misused hisdiscretion powers in
exercising his duties; in that the decision taken was irrational, or unauthorised
delegation and taking irrelevant consideration into account, failure to act. This ground

(2003) H.C. unreported

4

5
(1972) ZR.P. 204,
 of judicial review is mostly on government ministers and local authorities who are
conferred with delegated powers to make law.

When a minister makes a decision and if a person has reasonable grounds can seek
judicial review, asking the Chief Justice in Zambia to appoint a Tribunal to probe that
particular minister. Similarly local authorities decisions are subject to judicial review
to see that they work within the provisions of the law, thus in ChilufyaV Kitwe City
Council6. The court held that the decision by the council was ultra vires and applied
the order of Mandamus, stopping the council from making such decision.
This was also was illustrated in Rev. LameckKauusa V Registrar of Societies7 and
Movement for Multi-Party Democracy V Registrar of Societies8, in which the
Registrar of Societies had deregistered MMD.
The court held that the decision of the Registrar was ultra vires his powers as
MMD is such a big party ought to be de-registered.

(c) Procedure Impropriety.

This ground for judicial review is based on the breach of Natural Justice.
The courts have usually supervise administrative powers of public officers and bodies
through Tribunals and Judicial review, over Ministers and Public Authorities who
have quasi-judicial powers example given to make decision after holding an inquiry
over the alleged impropriety. The principle of Natural Justice has two elements
namely;

I. “Nemo index in cause sua”

This means a man may not be a judge in his own cause. The
rationale is that the judge must be disinterested and unbiased. Not only must
the adjudicator be free from bias but there must not even be the appearance of
bias.

6
(1973) ZR 22
7
(1970) ZR 175
8
(2013) unreported
6
 II. “Audi alteramPartein”
This simply means a person cannot be made to suffer or punished unless he
has breach the law and has been heard before the ordinary courts of the land.
In Bob ZinikaV Attorney General9, the Supreme Court reaffirmed. The
importance of “Audi and AlteramPartein,” where power is being exercised to
deprive a person of the rights and freedoms and that his legal status is not
merely terminable at pleasure. In Kango’mbe V Attorney General10, the court
held that the dismissal was based on allegations not brought to the could
exculpate himself. The dismissal was declared null and void as the “Audi
AlteramParteim” rule was violated.

CONCLUSION.

Administrative Law has played an important role in a governance of a country as it

determines the organisation, powers and duties of administrative authorities.
Administrative Law contains both the principles and detailed rules relating to the
structure, organisation,
functions and power, and supervision of their relation with other
authorities.Government through the National Assembly passes numerous statutes that
establish the authorities on which it confers powers necessary for their instituting
functions relating to such matters as public. In order to control, and regulate such
authorities, Administrative Law has allowed the courts to check their decisions
through Tribunals and Commission, therefore ensuring that they work in accordance
with the provisions of the law, hence rule of law.

9
(1991) S.C.Z. No. 9
10
1972) ZR 7
BIBLIOGRAPHY.

Books.
Hillarie B, (2000).Constitutional and Administrative Law. London:
Cavendish Publishing.
John A. (2009).Constructional and Administrative Law. London:
Palgrave Macmillan.

Jacqueline M, and Turner C. (2007).Unlocking Constitutional and

Administrative Law. London: Book Point Limited.

Cases.
Christine Mulundika and Others VThe People (1995) S.C.Z.
Ex-parte Smith (1996) 2 Aller57.
ChilufyaS.C.Z No. 9.V Kitwe City Council (1973) Zr 22.
NkumbulaV A.G. (1972) Zr P. 2004.
Ray Clark V A.G (2003) Zr.
Kango’mbeV A.G (1972) Zr 24.
M.M.D V Registrar of Societies (2013).Unreported.
Zinika V A.G (1991).