MAKERERE UNIVERSITY

BACHELOR OF LAWS
COURSE UNIT: ADMINISTRATIVE LAW 1
GROUP 8 ASSIGNMENT

QN: Administrative power could be acquired through a clear legal framework or

through the principle of delegation of power. Discuss the legal mechanisms in
place to control abuse of the delegation function for administrative authorities.

1. WATUULA NYANZI PAUL 20/U/23940/PS

2. JONATHAN KAVUMA 20/U/2732/PSA

3. AMUTUHAIRE MARY RINNAH 20/U/21264/PS

4. KALUNGI JOEL KALULE 20/U/15347/PS

5. KANKUNDA MELISSA 20/U/21315/PS

6. NAKYONDWA JOSEPHINE 20/U/21297/PS

7. EDEA JOVANNAH LUCY 20/U/22254/PS

8. OKOTH KENNETH 20/U/8523/PS

9. ALENYO LORETTA MUGISA 20/U/22255/PS

10. ORISHABA ERONE OLIVIA 20/U/21265/PS

11. NZIRIMU BLAIR BIKWASI. 20/U/2253/PS

12. DDEMBE ERIC MARVIN. 20/U/23922/PS

13. ALLAN ABITEGEKA 19/U/20302/PSA

14. MIREMBE LOURINE KIMURI 20/U/21255/PS

15. NAMATA NICTER KAWEESI 20/U/23861/PSA

PRINCIPLE OF DELEGATION OF POWER

Black Law Dictionary 8th Edition defines “Delegation” as a transfer of authority by

one branch of government to another or to an administrative agency.

This principle is based on the fact that power and functions of the superior officer
are carried out by an authorized officer. Delegation is not just the issuing and
following of orders but rather the authorization to undertake activities that would
otherwise be carried out by someone in a more senior position. It may be in two
forms. That is,

I. Executive Delegation

Article 99 (4) of the 1995 constitution of Uganda states that, “the functions
conferred on the President by clause (1) of this article may be exercised by the
President either directly or through officer’s subordinate to the President. Clause
(5) of the same Constitution states that a statutory instrument or other
instrument issued by the President or any person authorized by the President
may be authenticated by the signature of a Minister and the validity of any
instrument so authenticated shall not be called in question on the ground that it
is not made, issued or executed by the President. In addition, section 1 of the
Transfer of Powers and Duties Act provides that the President is empowered by
statutory order to transfer the exercise of his power or performance of duty to a
Minister or public officer.

In the case of Amos Mugisha v. Uganda (1989) HCB 271, 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.

II. Ministerial Delegation

Powers maybe conferred upon ministers in charge of large departments to

delegate these functions to subordinates officials. Section 32 of the Local
Governments Act Cap 243 provides that a Minister responsible for a government
Ministry may, after consultation with the Minister of Local Government, delegate
functions, powers and responsibilities vested in that Ministry to a Local
Government Council. In Carlton Ltd V. Commissioner of Works 194312 ALLER 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 stated,

“It cannot be supposed that 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.”

In addition, this delegation of power is also provided in Section 29 of the

Interpretation Act that states that any power conferred or duty imposed on the
Attorney General by or under any Act may be exercised or performed by the
Solicitor General.

From the above introduction, we can see that delegation of power must be used
to achieve the objectives for which it was given, to prevent officials from acting
beyond their legal authority (ultra vires) which would be an abuse of the
delegation function. Therefore, in a bid to mitigate this abuse, several legal
mechanisms have been put in place.

1. Statutory Prohibition

Section 175(2) of the Local Governments Act Cap 243 states that a Minister may,
by statutory instrument, and with the approval of the Cabinet, amend, replace,
alter or revoke any of the Schedules provided under this Act, and the Minister
shall not have power to delegate this function. This implies that an act of
parliament may specifically prohibit the delegation of power.

2. The rule of Delegatus Non Protest Delegare

It is a Latin maxim for “a delegate cannot delegate.” This rule expresses that
statutory authority should not be delegated. This implies that a person is held to
act ultra vires in making a decision to which power does not belong to them. In
the case of Nazarali Hassanali Sayani vs. Edward Mperese Nsubuga (1994) 6 KALR
50 the plaintiff, an Asian, upon his application for repossession of his expropriated
property, was given a letter of repossession by the Minister of State for Finance.
The Expropriated Properties (Repossession and Disposal) regulations provided
that it was the Minister of Finance to issue the Certificate of Repossession. It was
held that the letter of repossession was of no consequence since it was not
provided for in law. The Expropriated Properties (Repossession and Disposal)
regulations empowered only the Minister of Finance to issue a Certificate of
Repossession. A letter of repossession by a Minister of State for Finance was not
provided for in law.
In Allingham vs. Ministry of Agriculture and Fisheries (1948) 1 All E.R. 780, Local committees were
empowered to direct farmers to grow specified crops on

specified fields. A committee decided to order eight acres of sugar beet to be

grown by a farmer, but left it to their Executive Officer to decide on which field it

should be grown. It was held that the direction by the Executive Officer was void

since he had no power to decide as to the field.

3. Delegation within Limits

Section 32 (2) of the Local Government Act provides for delegation of functions by
a Minister or council and lays down grounds on which this power can be conferred. That is, it
shall not be effected unless, all parties are in agreement, adequate resources are
made available for the exercise of those functions, powers, services and
responsibilities, and finally appropriate measures are taken to bring the change to
the attention of the public.

4. Delegation of Discretionary Powers

The general rule is that delegation of discretionary powers is prohibited. It offends

the understanding on which such powers were given. In Barnard v. National Dock
Labor Board (1953)2 QB 18, Lord Denning stated,

“While administrative function can often be delegated, a judicial function (power)

rarely can be. No judicial tribunal can delegate its functions unless it is enabled to
do so expressly or by necessary implication.”

In another cases, Mwesegile Samuli v. Makanika [1980] TLR 152, Samatta, J stated
that, “A judicial function cannot be delegated unless expressly authorized by the
law.”
 5. Judicial Review

Article 42 of the 1995 Constitution of Uganda as amended states 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. This was further echoed in Yasin
Ssentumbwe and another v UCU where it was held that the decision of the
Student Disciplinary Committee was illegal since the committee would only refer
the decision to expel students to the University Disciplinary Committee.

6. Delegation may be Revoked

The officer with discretionary powers retains the power to recall the delegated

powers. The officer delegating powers can exercise this power if and when he/she
feels that the powers are not being exercised properly.

7. Responsibility

The transfer of powers, functions and responsibility does not take away the
aspects of accountability. The original holder of powers remains responsible and
accountable for the actions of the delegate.

Conclusion

Wade in his book “Administrative law,” states that government departments may
misunderstand their legal position as easily as many other people, and the law
which they have to administer is frequently complex and uncertain. Abuse is
therefore inevitable, and it is all more necessary that the law should provide
means to check it. In addition to this, Wade further asserts that it is also the
concern of administrative law to see that public authorities can be compelled to
perform their duties if they default.

References

Books

-Black’s Law Dictionary 8th Edition

-H.W.R. Wade & C.F. Forsyth, (1994), Administrative law, 7th edition

-Public Law and Political Change in Kenya. (Ghai and McAuslan)

Case Law

-Allingham v. Ministry of Agriculture and Fisheries [1948] All E.R 780

-Amos Mugisa v. Uganda (1989) HCB 271

-Barnard v. National Dock Labor Board [1953] 2QB 18

-Carlton Ltd v Commissioner of Works (1943) 2 All E.R 560

-Mwesegile Samuli v. Makanika (1980) TLR 152

-Nazarali Hassanali Sayani v Edward Mperese Nsubuga (1994) 6 KALR 50

-Yasin Ssentumbwe and another v UCU

Statutes

-The Constitution of the Republic of Uganda

-The Local Governments Act

-The Public Order and Security Act

-The Transfer of Powers And Duties Act