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DEPARTMENT OF LAW AND CONTINUING LEGAL EDUCATION

DIPLOMA IN LAW

KAMPALA CAMPUS

COURSE TITLE: ADMINISTRATIVE LAW

LECTURER (S):

Paul MUKIIBI (Head, Department of Law Reporting, Research and

Law Reform & Professional Advisor, LDC)

COURSE LEADER: Mr. Precious B. NGABIRANO (Head, Department of

Law & Continuing Legal Education & Professional Advisor, LDC)

TOPIC 08: REGULATORY AND ADVISORY BODIES

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TOPIC 06: REGULATORY AND ADVISORY BODIES

CONTENTS
1.0. INTRODUCTION
2.0. OBJECTIVES
3.0. MAIN CONTENT
3.1. Meaning of a Licence
3.2. Justification for a Licence
3.3. The Registration Function of Government
3.4. The Inspection Function of Government
3.5. The Compulsory Acquisition Function
4.0. Advisory Bodies
5.0. Conclusion
6.0. Summary
7.0. ASSIGNMENT/REVISIONAL QUESTIONS
8.0. REFERENCES/FURTHER READING

1.0. 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

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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.

2.0. OBJECTIVES
At the end of this topic, you should be able to:
 explain the Regulatory and Advisory Bodies of government;
 understand the meaning of a licence;
 justify the need for a licence; and
 explain the other advisory bodies of government.

3.0. MAIN CONTENT

3.1. 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 cannibas (marijuana) in Uganda. Having
examined the policy behind licensing, one can examine a few justifications for licensing.

3.2. Justification for Licence

3.2.1. 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.

3.2.2. 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.

3.2.3. 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

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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 rational grounds that the
protected business has invested more in a given industry and other emerging
competitors are sailing on its goodwill.

3.2.4. Mantainence 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 fueling disunity or
genocide. Licensing thus becomes appropriate if public order is to be maintained.

3.2.5. To protect and conserve natural resources

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Depletible 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.

3.2.6. 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.

3.2.7. 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.

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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.

3.3. 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.

Remarkable aspects of compulsory registration which have taken place in Uganda

include:

3.3.1. 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.
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3.3.2. 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;
i) Every new entrant into a given profession.
ii) Every newly incorporated companies both private and public including NGO’s &
Cooperative Societies/SACCOS.
iii) Every motor vehicle/large boat operating within Uganda.
iv) Every birth and death of a person in Uganda.
v) Every marriage celebrated under any recognized form in Uganda.
vi) 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 fulfill 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

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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.

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.

3.4. 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 liters 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

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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; ƒ
ii) minimizes uncertainty and regulatory risks for businesses by operating
transparently and under the rule of law; ƒ
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.

3.5. 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, 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.
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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.

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 ongoing market value. Once an agreement is
reached, the same should be reduced into writing and witnessed by a state attorney
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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.

4.0. 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
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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 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.

5.0. CONCLUSION
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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6.0. SUMMARY
In this topic, we have discussed the Regulatory and Advisory bodies of government.
We have looked at the Licence, Inspection, Registration and Compulsory Functions of
government. We have also discussed the justification for licence and other advisory
bodies.

7.0. ASSIGNMENT/REVISIONAL QUESTIONS

1) Discuss the role and importance of licensing in Administrative Law.
2) Using relevant examples, explain the other methods by which government can
perform its regulatory function.
3) The regulatory function of government is done in many ways:
a) Explain any three (4) methods by which government can carry out its regulatory
function
b) Explain any five (5) purposes/justification of a license

8.0. REFERENCES/FURTHER READING

 The Constitution of the Republic of Uganda, 1995.
 The Judicature Act Cap. 13, Laws of Uganda.
 Hood, P. (2001), Constitutional and Administrative Law. (7th edn.) London:
Sweet & Maxwell.
 Wade & Bradley. (1985), Constitutional and Administrative Law, (10th edn.)
London: Longman.
 Iluyomade, B. O. & Eka, B. U. (1977). Cases and Materials on Administrative
Law in Nigeria. (2nd ed.) Ile-Ife: Obafemi Awolowo University Press Limited.
 Malemi, E. (2008). Administrative Law. (3rd ed.) Ikeja: Princeton Publishing Co.

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