Uganda Christian University

Faculty of Law
LLB1(A &B)
Administrative Authorities
Draft Lecture Notes by Robert O.A. Kiiza (LL.M, LL. B, Dip L.P, Advocate)

General Introduction:
Administrative law refers to law that relate to the control of administrative powers. It
is a branch of Public Law which relates to the use of powers by public officials or
institutions. It concerns itself to the control of power given to public officials. The
law normally gives public officials powers which enable them to execute agreed
policies and programmes.

Public authorities are usually changed with duties and responsibilities. They are also
given specific functions. The discharge of powers, functions and responsibilities
leads to the interaction that sometimes leads to the information with the individual. It
is this interaction that sometimes leads to conflict between public authorities and
individuals. Administrative law comes on to resolve conflicts that arise between
public authorities and individuals.

The government has increasingly become an element of administrative law initially

government responsibilities were confines to matters relating to sovereignty of the
state. However, developments in society have made government become concerned
with delivery of services on regulatory matters.

Government acts through public officials and these are individuals who have private
interests and these private individuals are sometimes tempted to make decisions
which reflect personal interests e.g final consideration, social connections, political
and tribal considerations. Therefore, Administrative Law comes in to ensure that
public officials do not use public offices to champion private interests. So,
administrative law has become important in the following ways; -

i) Powers given to public officials needs to be chucked and controlled or else

such powers may be used to oppress those without powers.

ii) Public officials must also be accountable to it.

iii) Furthermore, the increased Legislation in social and economic authorities

requires that there be process to implement law. The process of
implementation requires special posers entrusted in hands of a particular
public individual. These powers do not entitle public officials do what they
wish but they are controlled by the principles of Administrative Law.

iv) More so, the government is an employer of persons and the role of the
government as an employer is to increase the number of economic activities in
society. Then the government as an employer has a legal obligation which can
be resolved under administrative law.

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v) The government also is a contractor of goods and services. The law therefore
comes in to ensure that the government does not use its superior position to
undermine the legitimate commercial transaction.

HOW ADMINISTRATIVE LAW ENSURES EFFECTIVENESS OF PUBLIC

OFFICIALS

i) Putting in place remedies to the unsatisfied party e.g. through the office of
IGG, Press, Courts and Tribunals Article 42.

ii) Public authorities must exercise then powers within the confines of law. He
must act intravires but not ultravires.

iii) Related to the law, power must be exercised in accordance to established

procedures. This ensures uniformity, consistency and reliability. It also
ensures transparency, even where there are no procedures, administrative law
requires that principles of natural justice should be followed i.e. right to be
heard, one not being a judge in his own court.

iv) Administrative law also ensures that discretionary powers should not be
abused. However, these discretionary powers may be abused when they are
used for improper purposes, irrelevant considerations.

v) Administrative law also has provisions reflecting principles of natural

justice as already noted.

Topics
 Nature of Administrative Law.
 Constitutional foundation
 Administrative Authorities.
 Sources of Administrative Powers.
 Process of Government.
 Administrative Tribunals
 Delegation of Powers.
 etc

Relevant Legal Instrument

 Public Service Act.
 Local Government Act Cap. 167
 Government Procedure Act.
 Constitution of The Republic of Uganda 1995
 Judicature Act.
 Interpretation act.
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 etc

Reference
As per course outline

Ridges Vs. Baldwin: The appellant was 59 years old joined police force in 1925.
He was in service and was appointed a chief constable. In October he was
suspended from duty and other friends on 2 indictments. One was a charge of
criminal conspiracy to comply the court of justice competition. For the first change
he gave evidences himself and did not call for witnesses. He was acquitted but the
other 2 were concluded. However, the judge said that he did not have professional
and morals as a leader should have. In the second trial with prosecution, gave
evidence to correct him. The judge directed the jury to acquit him but again made
certain observations against the appellant.

The watch committee later held a meeting and dismissed him as a constable. He
was absent and was not given particulars of the dismissal. He appealed to the
watch secretary and a special meeting was held again and adhered to the previous
decision.

He appealed against the watch committee claiming the dismissal was void and
claimed payment salary, pension and alternatively damages.

Issue: Whether the master has heard the servant in his defence and whether the
committee decision is void or unavoidable.

Held: In exercising powers of dismissal, the watch committee had to observe the
principles of natural justice which the committee did not observe. He had not been
tried nor informed of the ground on why they propose to proceed and had not been
given proper opportunity to present his defence.

ADMINISTRATIVE AUTHORITIES

Administrative authorities are bodies which are changed with responsibility of

implementing government policies and the execution of enacted law. Policies are
formulated by the executive which is the President assisted by the Ministers and
the Cabinet.

Laws enacted by the Parliament: The Laws and Policies have mechanisms of
implementation and execution and this is done through the public service.

The administrative authorities include Presidents, Ministers, the Civil Service

headed by the Permanent Secretary, Public Corporation and Local Governments.

The Presidency:
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Article 99 provides that the executive authority is vested in the President and shall
be exercised in accordance with the Constitution and Laws of Uganda.

However, the President also has administrative powers which may be subjected to
judicial review for example a President becomes an administrative authority in
matters relating to appointment and removal of public officials and in such
circumstances he must follow the legal principle or else he can be challenged in
courts of law. Tinyefuza Vs. Attorney General – Leaning with army, Kakooza
Mutale’s case – A Parliament removing him after failure to declare property.

The constitution also gives the President powers to constitute offices in the public
service. This is done in accordance to advice given to each President under Article
176.

Article 111 of the Constitution provides that there shall be Ministers of Cabinet
and also provides that the functions of the cabinet is to determine, formulate and
implement policies of the government. The implementation part of the clause is an
administrative function.

The clause also provides that the Ministers shall perform other function as may be
conferred by the Constitution or any other law. These are administrative functions.

Articles 113 & 114 provides for Cabinet Ministers and other Ministers with the
powers to: -

(i) Making by-laws under authority conferred by the parliament or under the
enabling provisions.

(ii) Implementation and formulation of policies.

(iii) Supervision on matters relating to implementation formulation of policies

over various ministries.

(iv) Imitation of bills: this is always through the public service.

(v) Ministers make public appointments under various laws.

(vi) Exercise administrative control over public corporation which falls under
their ministries. They ensure that the public corporations operate within
approved policies of government.

(vii) They also approve budgets of public corporations within their Ministries.

Ministers also carryout functions which are assigned to them by the President
under Article 113 (3), such functions may be administrative in nature.

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Administrative powers of Ministers can be subjected to judicial review on certain
grounds the division on which the Minister can be challenged by courts of law: -

1. The decision of the Minister can be challenged when he substantially acts

ultravires i.e. when he exercises powers without legal authority.

2. Judicial review may come in where a Minister acts without following Statutory
Procedures e.g. consultative procedures.

3. Ministers are not expected to abuse their powers of discretion. Where

discretion is given, there are supposed to act judiciously to avoid mattes that
may lead to abuse of discretion, e.g. improper purpose irrelevant
considerations.

4. Ministers are not supposed to divest or give away their powers. i.e. they can’t
illegally transfer powers to other officers.

5. Ministers as administrative authorities are also expected to observe principles

of natural justices especially where people’s rights and obligations have to be
determined e.g. an option to be heard in case of removal from power.

6. Ministers as administrative authorities have individual responsibility to account

for affairs of their departments and also moral responsibility to ensure that they
bring the office of the minister under disrepute.

The Public service:

According to Article 175: Public officer means any person holding or acting in an
office in the public service.

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 moneys provided by the parliament.

Policies of government and laws enacted by legislative are put in effect by the
public service. The laws related to the public service are contained in the
following: -

a) Constitution
b) Public Service Act
c) Leadership Code Act
d) Inspectorate of Government Act.
e) Public Service negotiating Machinery Act
f) Public Service Regulations
g) Public Service Standing Orders and Administrative Circulars.

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The Constitution establishes the Public Service Commission and other Service
Commission related in judiciary teaching and health.

Article 166 of the Constitution gives the functions of the Public Service
Commission with the following functions: -
(i) Advise the President on the establishment and appointments of public
offices e.g Ambassadors, Permanent Secretaries.

(ii) To appoint, promote and exercise disciplinary control over persons in

the public service.

(iii) To determine the terms and conditions for the public service. e.g.
standing orders, training, qualifications and matters relating to personnel
management.

(iv) Supervision, Coordination and hearing appeals from the District Service
Commission.

The main function of the Public Service is to implement government policies as

approved by the cabinet to execute laws which are duly enacted by parliament or
any other legislative body.

Public Service Commission under Article 166 (2) is supposed to be independent

and not subject to any body/person or authority. The Constitution however, states
that the public service commission shall take into account government policy
relating to the public service e.g. recent government policies have been
retrenchment, wage levels and downsizing.

The current conditions of service in the public service are contained in government
standing orders, public service regulations and administrative circulars. These
terms and conditions of service include: -

i) Entry in service, e.g. mode of application (Kyadondo Vs Attorney General)

Appointment by Radio announcements as commissioner. “A person cannot
claim to be employed in a public service unless he is duly appointed”

ii) Qualifications for various positions in the public service.

iii) Appointment in public service is on permanent terms until retirement/ death

or suspension.

iv) Appointment may also be on temporary or probationary terms.

v) Appointment may also be on contract terms whereby each appointee signs

vi) A contract for a specific period.

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 vii) Standing orders may also be concerned with entitlement e.g. salaries,
allowances pertaining to certain posts in government.

viii) Disciplinary proceeding. These are detailed procedures relating to

disciplining public officers.

ix) Provisions related to exit from the public service e.g. notices for
termination of service, grounds for dismissal, retirement and what a person
is entitled to e.g. Pensioners Act.

The Public Service is organized under administrative departments and it is a

constitutional duly of the president to constitute these departments or ministries.
These administrative departments are headed by the permanent secretary.

Article 174 gives the functions of the permanent secretary and they include the
following: -

1. Organisation and operation of the departments

2. To give the Minister relevant advice;
3. Permanent Secretary is in charge of implementing policies of government;
4. Accountability for public funds: - The Permanent Secretary is the counting
officer; he ensures that all expenditures are in conformity with government
financial regulations.

Qualities of a good Civil Servant

Qualities are ascertained in Standing Orders, Leadership Code, Official Secrets

Act and Administrative Circulars.

- Loyalty to the existing government.

- Transparency
- Confidentiality: Under the official Secrets Act all public officers take oath.
- Public offices must not display their political inclinations.
- Honesty and integrity as enshrined in the Leadership Code Act
- Fairness and justice to all [Article 42].
- Accountability for public resources/funds.

SECURITY OF TENURE OF CIVIL SERVANTS

Security of tenure is the right a person enjoys while in the public service not to be
removed from office.

Public servants are appointed on various term or terms.

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Probationary appointments do not have security of tenure. They can be terminated
any time on grounds of incompetence. Contractual appointments derive their
tenure from the terms and conditions contained in a contract. Contractual
appointments are for specific period and the contract which is terminated centrally
to the terms of a contract may open litigation in favour of an aggrieved party and
in such cases the government is liable as if it is a private contractor.

Most civil servants are appointed on a permanent and pensionable terms i.e. they
are supposed to hold office until death, retirement age or terminal according to
government standing orders.

Under common law the security of tenure of civil servants was not guaranteed.
Another principle under common law, the civil servant held them offices during
the pleasure of the crown that meant that the crown could remove any public
servant any time and did not have to give reasons.

This prerogative to remove a public servant at pleasure was inherited under the
1964 Constitution. This is clearly set out in Dum Vs. Queen.

This principle was affirmed in the case of Opolot Vs. Attorney General and
continued in existence the enactment of the 1995 Constitution. The only execution
was that in 1994 the president issued a proclamation divesting himself of the
powers to remove local government staff.

The 1995 constitution gave civil servants constitutional protection of tenure.

Article 42 of the constitution requires every person to be treated fairly and justly.
This of course includes civil servants.

Furthermore, Article 173 of the constitution provides that public office shall not be
punished where he/she acts faithful in accordance top the provisions of this
constitution. The same article also provides that the public officer shall not be
removed from office, reduced in rank or any way punished without the just cause.

Article 166 of the Constitution provides that it is only the exercise discrepancy
control over persons appointed in the public service.

- There are also specialized service Commissions for health, education and
judicial services. These commissions are also given constitutional powers to
exercise disciplinary control over persons appointed under the specialized
service.

- The circumstances under which a person can leave office are stipulated in the
government standing orders.

- Basically the person may be punished for breach of established government

standing orders and regulations.
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- The person may be subjected to disciplinary proceedings as a result of criminal
proceedings.

The government standing orders have detailed rules concerning disciplinary

machinery in the public service:

1. The rules give appropriate disciplinary authority (who can discipline who).
Minor breaches are handled by supervising offers and heads of departments.
These are breaches which may call for a warming or a reprimand. Heads of
Departments are also given powers to suspend persons depending on the
resolution of cases by relevant authorities.

2. Serious breach of discipline can only be handled by the public service

commission itself. These are cases which are likely to result into serious
punishment like termination of service, dismissal, demotion, reduction in ranks
etc.

3. The disciplinary system in public service involves principles of natural justice

and these involve the following:

(a) Notification of the charges of breaches.

(b) The report of the responsible officer who documents the breaches alleged

4. Sufficient time and facilities if necessary to prepare one’s case.

5. Formal hearing/submission of written explanations.

6. This is done before an impartial tribunal.

7. Formal decision composed of members of the commission after investigation,

hearing evidence and excluding responsible officers, there must be a formal
decision based on evidence and presentations.

The public service commission is guided by the standing orders in arriving at the
appropriate punishment. For every breach there is an appropriate punishment.

Termination of service may also follow standing orders which provide for
termination of services in order to restructure government. In such cases,
appropriate notice must be given (6-months’ notice). Termination of service is
always accompanied by payment of terminal benefits.

The security of tenure of civil servants may be affected by government policies

relating to public service. Article 166 provides that public service commission
must take into account government policies relating to public service.

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Local Government:

Over the last 15 years the government policies as directed by the International
Monetary Fund and World Bank e.g.
-Parliament
- Downsizing
- Liberalization
- Privatization
- Demobilization of forces
- Wage bill control.

The constitution gives direct principles of state policy and among those principles,
there are democratic principles.

It is provided that the state shall be guided by the principle of decentralization of

devolution of governmental powers to the people at appropriate levels where they
can best manage and direct their own affairs.

The state shall be based on democratic principle which empowers and encourage
active participation of all citizens at all levels in their own governance.

Article 176 of the Constitution provides that the system of local government shall
be based of the district and such lower local governments and other administrative
units which may be established by the parliament. Local governments include
LC5, LC3 administrative units level include LC4, LC2, LC1.

Article 176 lays down principles on which local governments can based and they
include the following: -

(i) There shall be devolution and transfer of powers from the government to local
governments in coordinated manner.
(ii) Decentralization shall be the principle of all levels of local government to
ensure peoples participation and democratic control in decision making.
(iii) Democratic governance shall be reflected to all local government levels e.g.
accountability, decision making and free and fair elections.

(iv) Local government levels e.g. accountability, decision making and free and fair
elections.
(v) The local governments must be able to plan, initiate and execute policies.
(vi) The local government must be able to control their staff. The constitution
puts in place provisions which are intended to promote these principles in the
local government.

Under the constitution Article 180 establishes local government councils with
legislative and executive powers to be exercised in accordance with this
constitution.
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The constitution also establishes the main administrative offices and policy
making organs within the local government system. These includes speakers
executive committee, CAO, RDC, chairpersons and their functions are also
specified.
The Constitution also provides for the sources of revenue for local governments
and in particular the constitution provides for grants which are put forward by the
central government to local governments

The system of local government has been given legal framework under the local
government act and the local government act has the following objectives: -
i) To give effect to decentralization
ii) To promoted democratic participation
iii) To provide affirmative action
iv) It deals with sources of revenue and financial accountability.

Aspects of Local Government Act.

- Corporate personality: Section 6 of the Local Governments Act provides that
local governments shall be corporate bodies with capacity to sue or to be sued
in their own names to own property in the own names, they have perpetual
succession. Local governments can be exposed to legal liability as if they are
private individuals and only limitation is that an attachment can’t be effected.
…….. local government property until a lapse of 6 months’ period. The same
way attachment can’t be effected against local government fixed assets and
statutory transfers.

Local governments have various powers, functions and responsibilities: -

- Planning powers
- Financial powers
- Administrative powers.
- Legislative powers.

PLANNING POWERS

The Local Governments Act Section 36 makes districts planning authorities and
districts plan through the district technical planning committee. It is this
committee which comes up with district plans.

District plans must be submitted to the National Planning Authority (NPA) for
approval and incorporation into National Plans. The Local Governments Act also
provides that district budgets must also confirm to national priority programme
areas and its responsibility.

FINANCIAL POWERS

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The constitution provides that local governments should have a sound financial
basis and reliable sources of revenue. The local government funds and financial
controls which ensures that local government funds are not misused.

Sources of Local Government Funds

- The main source of local government funds is grants for the central
government. The constitution provides that the president for each financial
year propose to the parliament the moneys which are to be given to central
government in form of grants. These include: -

a) Unconditional grants – money given to local governments to decentralized

services of government e.g. primary education, health services, provision of
water. These can be salaries.

b) Grants may also be conditional as the name suggests that they are given for
specific programmes of objective as agreed upon between the local
government and central government e.g. agreement to construct a road.

c) The equalization grants – Money given to local governments which are

lagging behind the national average in terms of development and they are
intended to help lagging districts so as to catch up with the national
average.

Section 80 of the local government give local government powers to raise funds by
way of tax charges, rates and rents, fines, loyalties and sub-duties.

Local government can also charge property taxes under the Local Government
Rating Act.

Local government can also create funds by the way of donation. Local
governments can also borrow funds to finance the programmes under section 84 of
the Local Government Act.

EXPENDITURE OF LOCAL GOVERNMENT FUNDS (ACCOUNTABILITY)

 Section 82 of the Local Government Act provides that no appropriation of local

government funds shall be made unless there is approval by the council and it
is a duty of the executive committee to suggest a budget for each financial year.

 The Local Government Act provides that the local government budgets must
reflect priority programme areas of the government so as local government are
not free to drag the budget as they want. Such priority programmes include
education, road construction etc.

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 Under section 74 of the local government act it is a duty of local government
financial commission to advise the president where the district budget deviates
from national priorities and the president will take appropriate action.

 All local governments must keep proper books of accounts S.87 LGA 86.

 The auditor general has a mandate to audit all the financial records and
transactions of the financial records and transactions of the local government
so as to ensure that moneys were properly extended and he makes a report to
the parliament on financial accountability of local government and
administration units. S.88 LGA 87.

 Furthermore, the local government act provides for Internal Audit Department
which ensures that local government expenses are incurred in accordance with
local government financial regulation.

 Furthermore, there is a chief administrative office or a town clerk who is an

accounting officer of the local government and his duty is to ensure that all
local government financial regulations are adhered to by the staff officers –
S.66. The accounting officer is responsible to parliament.

 All procurements of goods and services are effected through the local
government tender board which is supposed to be independent and constituted
by persons of integrity and outside control local government politicians

 The local government act also establishes the District Public Account
Committee (DPAC) whose role is to receive and analyse reports of financial
transactions and also make appropriate recommendations to the relevant
authorities i.e. it receives reports from the auditor general, commission of
inquiry etc.

 All financial expenditures must follow the local government financial

regulations – These are very detailed rules or procedures which govern the
handling of many at whatever stage.

ADMINISTRATIVE POWERS

Administrative Powers are those related to implementation of policies and

execution of laws whether enacted locally or internationally.

The policy making function is performed by the executive committee. Article 180
of the constitution provides the local government council shall have both executive
and legislative powers.

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The local government act however establishes an executive committee composed
of the Chairman and the Secretary of the Local Government Council. Then
functions include carrying out executive function on behalf of the local
government.

That is why policies implemented by executive committee must be approved by

the local government council.

Local councils also have powers to make laws either by-laws or ordinances in
accordance to Article 180, Article 2006 and the Local Government Act.

Administrative powers of local governments are exercised by public officers who

are appointed to work for a particular local government and all public officers in
the local government report to or are under the control of Chief Administrative
Officer (CAO).

The position of the CAO is established by the constitution and the local
government act specifically section 64 of the local government act specifies
function of the CAO.

In summary, these include: -

- The implementation of policies of both local government and central
government.
- Enforcement of laws, local and national laws
- Accountability for public funds.

The CAO is assisted by Heads of Departments Technical staff and administrative

chiefs and the function of chiefs are specified by the local government act.

All public officers specifically civil servants within the local governments are
appointed by the District Service Commission.

The local government act provides powers to district service commission posers to
appoint, promote and exercise disciplinary control over persons appointed in
various local governments.

The district service commission is an independent body and not subject to control
of any authority or person and the District Service Commission has powers to
determine the conditions and terms of service of local government staff. However,
the District Service Commission is expected to follow guidance given to it by the
public service commission and its decisions are subject to applied of the public
service commission.

Local government staffs are subject to the terms and conditions which are
applicable to the public service generally. Therefore, local staffs are protected
under Article 173 of the constitution and section 09 of the local government act.
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These provisions provide that a District Officer shall not be victimized or
discriminated against where he/she performs his duties in accordance with the
constitution. The same provision also provides that no district officer shall be
removed from District Office without just cause. So they are under the bracket of
protection.

These servants however, may be removed from office with a just cause which
include: -

a) Breach of standing orders

b) Incompetence
c) Criminal charges.

There is further protection under section 61 of the local government act. The
section provides for compensation where a person is removed from service
contrary to the terms and conditions of service contrary to the advice of the public
service commission. See Muhanguzi’s case.

Section 61 of the local government act deliberately make compensation high for
people who are illegally moved from the district service.

LEGISLATIVE POWERS
Article 180 of the constitution provides that local governments have legislative
and executive powers. Legislative powers for local governments are necessary for
the purposes of enabling local governments to execute their own policies. Some
policies need enforcement by way of laws.

The local government act gives a legal framework for the enactment of local
government laws.

Section 38 of the Local government act provides that district councils shall have
power to make laws which are called ordinances as long as those powers are not in
conflict with the constitution or any other law made by the parliament.

Section 39 of the local government act also provides that lower local governments
e.g. sub-counties, divisions etc. can bake laws as long as these laws are not in
conflict with the constitution or any law made by the government.

Local governments are given legislative powers because issues they deal with are
authorized and it urged that they are best place to have solutions to local issues

It is also argued that local legislation can involve participation of the people
because councilors have a duty to consult local people. The legislative procedures
affecting local governments are set out in the local governments regulations.

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- Imitation of policies: There must be a background of the policy in a given area.

- Legal research which involve consultation i.e whether there is no breach of the
parent Act or the Constitution

- Draft Law (Bill) – According to local government procedure, only district

council can present a law for debate.

- The bill is discussed by the relevant committee of the council.

- There must be antecedent publication of at least 14 days.

- Formal debate of the council and if it is approved it is passed.

- It is then passed to the local government Minister for onward transmission to

the Attorney General who advise whether the law is in line with the
constitution or any other law enacted by the parliament.

- Once it is approved by the Attorney General, it is signed by the chairman and

this is equivalent to the presidential assent.

- It is published in the Uganda Gazette.

The Local Government Authorities and interpretation act provides that the law
shall not be valid or courts shall not take notice of that law unless it has been
published in the Uganda Gazette.

CONTROLS OVER LOCAL GOVERNMENT LEGISLATION

The constitution being the supreme any other law in contravention with any of the
provisions of the constitution is void.

This is also provided for in section 38 and 39 of the local government act. It must
be if conformity with laws enacted by the parliament or the parent act. S. 38 and
39.

- Reasonableness- This depends on judgment of an average person in society.

- Certainty- Laws must be clear, unambiguous not capable of double meanings.
- The law must be made by appropriate authority powers to make law must not
be sub-delegated.
- Laying before parliament presenting before parliament for scrutiny. This
process is not common because it undermines the reasons of delegating
legislative powers.
- Should not contradict with principles of natural Justice Art 42 of the
constitution.

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 PUBLIC CORPORATION

Public corporations are statutory bodies which are set up to render some services
on behalf of the government. They are legal entities with corporate status i.e. they
can sue or be sued in their own names, they can own property in their own names
and they have perpetual succession.

The idea of the public corporation was developed in England as a consequence of

the welfare state. The socialist governments in Britain were of the view that was a
duty of the state to control resources to ensure availability of the resources to the
public.

It is only the control of means of production that social amenities like water,
power, etc. can be provided to the public.

The public corporation is used as an agency which can provide services at

affordable rates and also which can minimize wastage of public resources. The
public corporation renders such duties because: -

(a) It has autonomy in fiscal and other management issues.

(b) It is flexible in decision making & implementation i.e. it is free from strict
government bureaucracy.

The first 5-year development plan 1962 emphasized that there was need to have a
mixed economy in Uganda and in particular it recommended the establishment of
public enterprises to render specific services.

The plan advocated for the establishment of Uganda Development Corporation

and also recommended the establishment of marketing boards.

Why were public corporations set up?

- To give some special services which can’t be given by the private sector
within the affordable rates i.e. utilities, e.g. provision of water, electricity
under a public corporation of this nature, government can give subsidies to
maintain low rates.

- Public corporations can also be used for industrial development.

Coordinated industrial development requires a lot of capital input. This can
be coordinated under government institutions e.g. Uganda Development
Corporation (UDC).

- They can also be set up for regulatory purposes i.e. to regulate activities of
a given industry. This includes registration, licensing maintenance of
standards etc. For example, the Civil Aviation Authority was set up to
regulate Air traffic, Uganda Wildlife Authority – To regulate Hunting,
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 Uganda Communication Corporation to regulate …… services, Bank of
Uganda regulates Commercial Institutions.

- Public corporations can be established for specific technical services e.g.

NARO for Agricultural Research.

- To render strategic services and such public corporations are particularly

monopolies authorized to render such services.

TRIBUNALS

Tribunals are the administrative bodies established by Act of Parliament primarily for
the purpose of adjudicating disputes between citizens and administration.

There are also some tribunals which handles disputes which do not necessarily
involve Administration e.g. tax appeals tribunal handles dispute between tax payers
and URA whereas the land tribunals handle disputes between citizens and fellow
citizens or between citizens and administrative bodies such as the Land Boards and
Uganda Land Commission. Some tribunals are referred to as Administrative because
the fall under executive aim of government and for example is tax appeals tribunals
which fall administratively under the Ministry of Finance.

Another type is where an association or profession has rules for disciplining and
regulation conduct of its members and sets up a body internal to itself to enforce such
rules e.g. the Law Council Disciplinary Committee and the Uganda Medical Council.
These bodies have statutory recognition and therefore fall within the…. of
administrative law.

A body may be a tribunal even through it is not called a tribunal. It may be called a
board, a committee, a commission etc and a body may be a tribunal, even though it is
called a court.

The test is not the label but the job it does. Tribunals are relatively new concept in
English Law having been established only in the 20 th Century. This is because, the
rule of law and the separation of powers may tend that the resolution of disputes was
exclusive domain of the courts of law. This strict position was progressively
abandoned due to the numerous advantages offered by a tribunal system.

Advantages and Characteristics of Tribunals

- Tribunals can offer speedier, cheaper and more accessible justice that the ordinary
courts. The process of the ordinary courts is elaborated, slow and costly. This
advantage stems from the fact that: -
1. The procedure of tribunal is simpler and more flexible than that of the courts of
law e.g. tribunals are not bound by the rules of evidence such as the rule against
hearsay evidence.

18
 Also the tribunals are not bound by the doctrine of precedence but must decide
each case on its own merit. This makes it possible for an individual to represent
himself /herself before a tribunal without necessary hiring a lawyer.

2. They are specialized and the members of the tribunal are usually experts in the
particular field e.g. members of the tax appeals tribunal are certified public
accountants or tax lawyers. This makes it possible for them to handle disputes in
efficient and speedy manner.

Council of Civil Service Union Vs. Minister for Civil Service

It is concerned with the government management of its employees and civil service
and order in council provides the conditions of the civil service. Exercising the
powers of the Minister instructed new conditions of service for a particular group of
servants (Those employed in the government communication headquarters). They
were no longer to be part of the associating approved by the government; the legality
of that instruction was challenged. This raised with question of whether it was open
to challenge the legality of the exercise of this prerogative power in view of
traditional relationship between the court and the executive in this field’

Lord Diplock said “I see no reason why simply because a decision making power is
derived from common law and not a statutory service, it should be for that reason
only immune from judicial review.

PROCESS OF GOVERNMENT
Processes of government may be related to policy making and implementation.
Public administrators are charged with a duty of implementing policies and
enforcement of laws. There are various processes in implementation of policies
and enforcement of law. They include the following: -

(a) Consultation
(b) public inquiries.
(c) Registration of authorities
(d) Inspections
(e) Enforcement of Standards
(f) Licensing.

Consultation
This is a process whereby government bodies or government obtain views,
opinions and suggestions about the proposed policy or about the functioning of an
existing policy.

Consultation is a normal administrative process which reflects good governance.

However, there are some instances where there is legal requirement for
consultation. They are statutes or acts of parliament that give consultative powers

19
to bodies. These statutes normally require that consultation be made before the
decision is arrived at.

The purpose of the consultation is: -

1. Consultation facilitates public participation in decision making.

2. Consultation also leads to acceptable policies – policies which are acceptable

to the public. This may lead to development of issues, suggestions and
assumptions and once a policy is accepted, it will be easier to implement and
enforce.

3. Consultation also enables policies to be based on relevant information and

this information may be technical or based on expert knowledge.

Consultative laws normally have the following provisions: -

a) Specify consultative body

b) It will specify who will be consulted. Such include experts in particular
field, interest groups etc.
c) Sometimes the mode of consultation is given. This can include advice
given by or professional body.

Failure to consult is breach of statutory provisions however there are judicial

opinions which suggests that failure to consult per se is not fatal or does not make
a result fatal. Courts should look at the consequences of the resulting decision.

PUBLIC INQUIRIES

Public inquiries are statutory consultations which are put in place by legal
provisions. The provision of the inquiries act gives the Minister power to institute
the commission of inquiry for any matter of public concern relating to that
Ministry.

Under that Act the Minister has power to

- Name commissioners of the inquiry
- To give the terms of reference .
- The Minister also specifies the time in which the inquiry must be done and
the reporting. E.g. Ssebutinde Commission of Inquiry.

The purpose of the commission of inquiry is to establish the following: -

1. The cause of a particular accident, incident of a series of events. E.g.

corruption.

2. Establishment of responsibility of a particular incident, accident or a series of

events.
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3. Points out the consequences of particular events.

4. Recommendation which address the causes of that particular incident or a

series of events.

Commissions of inquiry are expected to report to the relevant Minister and the
Minister makes a decision of what to do. Where a Minister takes steps to make
report e.g. developing paper for cabinet while takes a final decision on the matter.

“The Commissions of Inquiry are public bodies which are held to attract to
short term complaints without providing long term solutions” Discuss.

SOURCES OF ADMINISTRATIVE POWERS

Administrative authorities exercise powers which are conferred upon by law. All
administrative actions, decisions or any form of exercise of administrative power
must be exercised or justified on the basis of existing law.

A public authority which cannot justify its divisions on the basis of which existing
law risks being challenged that he is acting ultravires.

All public exercise of power must have reference to the known sources of law. For
purposes of the administrative law the sources are: -

a) The constitution.
b) Principle legislation.
c) Subsidiary legislation.

The constitution creates a number of public authorities which derive authority from
constitution itself. The most important state organs and administrative authorities are
created by the constitution and given constitutional powers. These include the
Presidency, the Cabinet, Parliament, Judiciary, Public Service Commission as well as
Senior Public Servants e.g. the Auditor General, the Inspector General of
Government, the Director of Public Service Prosecution and so on to mention but a
few. These constitutional offices normally get additional authority from Acts of
Parliament e.g. IGG Statute, Public Service Act, Judicature Act etc.

The principle legislation: Powers of Legislation are monopoly of parliament unless it

chooses to delegate such powers.

LAW MAKING PROCESS

The general procedure relating to legislation is contained in Article 91 & 92 of the

Constitution as well as the Act of Parliaments Act and the parliamentary rules of
procedure.
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A public authority which purports to derive powers from the Act of Parliament should
be certain that the law was validly passed. Briefly the status of the law making
process are as follows.

i. The government formulates a policy – a plan of action.

ii. The policy is transformed into a draft bill. This is done by the relevant
ministry in conjunction with the Uganda Law Reform Commission and
Parliament. That is the office of the legislative draftsman or woman.
Sometimes private consultants/persons are to help in drafting of bills.
iii. The bill drafted is discussed by the cabinet after the input of the cabinet it is
redrafted into a final bill.
iv. The bill must be published in the Uganda Gazette. This publication is
supposed to give the public an opportunity to know about the proposed law
and if possible give their views to their representatives in parliament and thus
participate in the law making process.
v. The bill is presented to parliament in 3 stages. Stage 1 is the first reading
where the general minister gives a general overview of the bill and its main
objectives. The second stage is the reading where the bill is debated by the
members of parliament. It is scrutinized by relevant Parliamentary
Committee. It is at this stage that all possible commandments to the bill must
be proposed. The amendments may either be adopted or rejected. The third
reading where the bill is formerly passed into an Act and this is done by the
Members of Parliament voting for or against it.

After parliament has passed the law, it must be assented to by a president within 30
days. The President may assent to the law or send it back to parliament for further
debate. However, if the President fails to assent to the bill of 3 times, the parliament
passes it regardless of presidential assistance. Once the bill has been assented to by
the parliament, it is published in gazette and is only when it has been gazetted that it
becomes the law and either into force.

Ref. Semwogerere Vs Attorney General

General characteristics of Acts of Parliament

- It has a short title which is normally the name of the Act.

- It has the long title which gives more details or the purpose. It is sometimes
known as the object clause.
- Most acts have a definition section that defines the major concepts.
- An act where they lay down administrative framework for implementation of law.
The framework may be an administrative body e.g. local authority, licensing body
and so on depending on the subject matter of the Act.
- There is usually a section that lays down offences under the Act or anything that is
specifically prohibited by that Act.
- This section sets out the sanctions that will be imposed on those prohibited by that
Act.

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- This section sets out the sanctions that will be imposed on those who violate the
law.
- The act may give power to a lesser authority to make subsidiary law for the proper
implementations of the Act.

INTERPRETATION OF STATUTES

In administrative law, statutes are normally interpreted in accordance with the

following 3 methods; -

1. In accordance with the interpretation Act.

2. In accordance with the Interpretation of definition section of the statute itself.
3. In accordance with the general principles of statutory interpretation i.e Literal
Approach, the plain meaning (rule) approach or golden rule and the mischief or
persuasive rule

Usually, in administrative law statutes needs to be interpreted to determine the nature

and extent of power granted.

Mainly the issue is to determine whether the law giving power to a public body or a
public official is mandatory or optional.

The consequences of an administrative act i.e. whether or not is ultravires will defend
on whether the public official or body had necessary power under the law and
whether such powers were mandatory or discretionary Mandatory and Optional
Clauses in statutes.

A mandatory clause in an Act is one that imposes a duty upon a public authority.
Such a duty may involve an obligation to do a particular thing in a particular way at a
particular time.

Mandatory clauses are usually drafted using words that suggest that a particular act
must be done mandatory clauses are common in statute because they are the ones
which give legal authority for carrying out acts, that may otherwise don’t have any
legal basis.

A public authority which fails to carryout mandatory duty may be subjected to judicial
review i.e. the courts usually the High Court will require into the matter upon the
application of anyone who has been aggrieved by the failure to perform the duty. The
court will usually grant a remedy of Mandamus. It is an administrative law remedy
issued against an administrative authority to carry out its duty.

Ref. Sempebwa Vs. Attorney General

Optional clauses on the other hand give discretionary powers are normally ascertained
from the words used in the statute and such words include “can”, “may” or where the
official deems fit or “where it appears that” etc.

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Discretionary powers exist where public body or official is given freedom to
determine whether a particular act should be done or how it should be done. The
general principles of statutory interpretation apply in a determining whether powers
are mandatory or discretionary. As a general rule, the plain meaning of words used
should be sufficient to determine the nature of powers granted. However, courts are
normally unwilling to interpret statutes in a such way to as favour discretionary power
there are clear words in the statute to that effect.

Note: The existence of discretionary powers does not in itself determine whether a
public body or official acted property or not that is acted intravires.
To prove that a particular act was intravires a public body or official must establish
the following.

1. That the powers that were exercised were granted by the law.

2. The body or official must show that it, he or she acted within powers granted by
that law.

3. That the proper procedure established by law was followed.

4. That the law applies to the situation under inquiry.

If the above required are not met the official will be deemed to have acted ultravires.

PRESUMPTIONS

When the courts are interpreting statutes in Administrative law, certain presumptions
may be made in order to resolve ambiguities where no single plain meaning can be
found. These presumptions include with the following:

(i) Courts will presume that parliament does not intend to exclude judicial
review of the legality of action taken by administrative authorities under
statutory powers. Sometimes a statute may include a clause that has the
express object of excluding judicial review for example a statute may
declare that the decision of a particular authority “shall not be questioned
in any legal proceeding”

In the case of Animistic Ltd V Foreign Compensation Commission [1969] 2

App. Cases page 147. The House of Lords held that a clause of this kind could
not oust the jurisdiction of the court to declare void a decision of the Commission
which was ultravires.

(ii) The Parliament does not intend to confer the unnecessarily wide
discretionary powers on the executive e.g. in the case of A. G. of Canada
V Harlet and Carey [1952] A.C 427. The government of the Canadian
State of Manitoba had subordinate legislative power to make such rules

24
 and regulations “As he may consider necessary. The Privy Council of the
House of Lords held that the clause did not allow him to do whatever he
may fee, inclined for what he does must be capable of being related to one
of the prescribed purposes of this office in accordance with the law.

(iii) Courts will presume that parliament does not intend to exclude the rules of
Natural Justice in respect to the exercise of statutory powers. In Kakooza
Mutale V A.G which was about the interpretation of IG Act. Annebritt
Aslund’s case.

(iv) Parliament does not intend statutory provisions to apply retrospectively

Exposto facto laws.

(v) Courts will presume that a provision should not be interpreted so as to

impose a tax or a change unless such an intention is very clear.

Ref. Gunners – Administrative Law 7th Edition Page 50 – 52

SUBSIDIARY LEGISLATION

Administrative Law by Wade Page 314-345

It is also known as delegated or subordinate Legislation of Parliament may through

acts or statutes authorize some administrative authorities to make laws and this is in
accordance to Article 79(2) of the Constitution.

Indeed, the bulk of instruments that have legal force are enacted by authorities other
than parliament. These include: - Ministers, Local Governments, Statutory
Commissions and other bodies.

JUSTIFICATION FOR SUBSIDIARY LEGISLATION

Under the doctrine of separation of powers, parliament should be directly responsible

for all Legislation. However, this is quite impossible in a modern stage there the
arguments in favour of subsidiary legislation are as follows; -

1. The bulk of the legislation is so great that parliament has no sufficient resources of
time or personnel to attain to all matters and details that require legislation.

Accordingly, parliament confines itself to passing Acts broadly establish the legal
framework implementing a particular policy or programme. This Acts are usually
passed as mere skeletons with each appropriate Minister or other Administrative
Authority being empowered to add each details by means of regulations and order
made under the authority of the Act thus giving blood to the skeleton so that it may
live. E.g. the Town & Country Planning Act imposes planning controls on building
operations however the details of planning controls as provided for in the Parent Law
are supposed to be made by responsible minister.

25
2. Sometimes, the subject matter on which legislation is required is too technical
nature for the issues to be fully appreciated and understood by parliamentarians
technical matters require specialized experience as opposed to Members of
Parliament who tend to be from diverse educational and professional background.

In such cases legislative power is entrusted to Ministers and other Administrative

authorities who may employ the relevant experts.

3. Subsidiary legislative powers allow flexibility in making rules and regulations to

cater for unforeseen circumstances. Parliamentary legislation can’t provide for
every eventuality and therefore subsidiary legislation may be needed to cater for
unforeseen circumstances that may arise. Equally, Subsidiary Legislation enables
the government to rapidly respond to emergencies of various kinds such as natural
disasters, wars or economic crisis. In such situation, subsidiary legislation enables
the executive branch of government to authorize and take the necessary actions
without need to obtain parliament on each occasion. Moreover, the parliament
does not sit throughout the year and yet time may be of the essence.

4. It enables a focused approach to local issues applicable to particular geographical

areas and this especially with regard to by laws and ordinances made by the sub
county councils and district councils under the Local Governments Act.

The law governing subsidiary legislation is found in this interpretation Act, Cap. 3
laws of Uganda 2000 Section 14 of which provides that where any law confers of the
President, minister or any other authority power to make subsidiary legislation, such
power shall be re-exercised by making statutory instruments e.g. LGA – (See section
38 and 39).

Section 16 provides that any Statutory Instrument shall be published in the Gazette
and shall be judicially noticed. (See LGA).

Statutory Instruments may take various forms e.g. Rules, Regulations, Proclamations,
Order, Ordinances or By-laws.

The parent Act will normally prescribe what form subsidiary legislation should really
take. So according to section 18 of the Interpretation Act, it must be in line with each
parent Act.

DISADVANTAGES OF SUBSIDIARY LEGISLATION

1. It is incompatible with separation of powers because it allows executive aim of

government to make laws. This may be an infringement on the principles of
democracy because it does not allow the people to participate in the law making
process through their elected representatives.

26
2. Controls over subsidiary legislation are inadequate. Parliament lack enough time
and resources to keep a full watch what its delegate enact under its authority.
Accordingly, subsidiar6y legislation violets Human Rights or that it is centrally to
the rules may be passed by administrative authorities.

Although judicial control exists, it normally occurs when the harm has already been
done and only when the aggrieved party is willing goes through the expenses or
inconvenience of going to court.
3. Subsidiary Legislation is generally unavailable lawyers and the general public. So
much if it is being produced all the time that it is almost impossible to keep up
with the various rules and regulations governing different aspects of life.

PROCEDURE FOR MAKING STATUTORY INSTRUMENTS

The procedure for making Statutory Instrument is normally prescribed in the parent
statute whereas a statute may require that a particular procedure should be followed,
there are certain general procedures that apply to the making of Statutory Instruments
which include: -

1. Consultation – Usually before a statutory instrument is made, the relevant

Ministry will ensure that the process of consultation with experts or the people
likely to be affected by law take place.

Consultation may take form of public discussion of allowing members of the public to
submit memoranda.

2. Antecedent publication: Some parent statutes required that the proposed

subsidiary. Legislation should be published for each behalf of the public before it
is passed. E,g, the Local Governments Act provides that proposed by-laws and
ordinances should be published at least 15 days before the proposal is debated by
the district council or sub-county council respectively by affixing the copy of
proposed law on the Notice Board of the Sub-County or District Council offices.
(Sec. 33 – 34).

3. Subsequent Publication – once the Statutory Instrument has been finalized, it

must be published in a gazette before it can enter into force.

Section 14 – 19 of the Interpretation Act Cap 3 Laws of Uganda 2000 Vol. 1.

4. Some subsidiary legislation requires an approval of another authority before the

law can become effective e.g. a statutory instrument made by a minister may have
to be approved by the cabinet before it can become effective similarly ordinances
made by district councils must be approved by the Attorney General. In the case
of R Versus Wakiso Estates [1955]7URL 13 The employment ordinance gave
powers to each governor to make regulations. It provided that such regulation
after being made by the government to be read before the Legislative Council and
approved by it before they could enter force.

27
The rules in question were not made by the governor after they had been approved by
LEGCO. Wakiso Estates was prosecuted for contravening each regulation through
issue was whether the non-compliance with the procedure was fatal to the validity of
the rules.

Held:
The regulations were invalid because they did not comply with the procedural
requirement under the ordinance. The court further said that subsidiary legislation
made in contravention of the procedure provided for in the parent Act is invalid.

CONTROLS IN SUBSIDIARY LEGISLATION

In order to ensure that the power to make Subsidiary Legislation is used for the proper
purpose, a number of controls have been put in place. These include; Statutory
controls, Judicial controls and Ministerial controls.

Statutory Controls
The powers to make subsidiary legislation emanate from particular principle
legislation in which there are in-built safe guards to ensure that the powers are
properly exercised. Such factors that safe guard such include: -

1. The requirements for consultation with concerned groups or technical personnel

before subsidiary legislation can be made. This ensures that the resulting
legislation is acceptable to the concerned people in line with technical realities
governing the legislation.

Where consultation is required, the law normally specifies who should be consulted,
where to consult and the process of consultation e.g. section 33 – 34 of Local
Government Act.

Failure to comply with the procedure may be a ground to judicial review and the
subsequent legislation may be annulled.

2. Acting on advice
Some statutes require that the Minister or concerned body that is required to make
subsidiary legislation be advised before exercising these powers. Such advice
normally come from other public authority e.g. Cabinet, Parliament or any other
Statutory body. Any Subsidiary Legislative powers exercised without such advice
would be ultravires.

3. Formal Approval
Some parent statutes require that subsidiary legislation be formally approved by
some named authority before they can become effective. The again may be
parliament, a Minister, Cabinet or any other authority e.g. a certificate of approval
is required from the Attorney General before a law can be enacted by a local
government council.

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 JUDICIAL CONTROL ON SUBSIDIARY LEGISLATION

The courts have powers to review the Constitution to review Subsidiary Legislation.
Courts have powers to invalidate any subsidiary legislation which is materially,
procedurally or substantively ultavires.

The court will be concerned with any other legislation with certain; reasonable and
unambiguous some of the subsidiary legislation to have been held to be ultravires has
involved one or more of the following defects: -
1. Uncertainty: Laws must be certain and written in a manner which leaves no room
for doubt as to what is prohibited under that law.

A law which is uncertain as to the range and scope of prohibition or application

will be ultravire in R Versus Hermitte [1938] 18 KLK 55. The prohibition in
issue was “No one shall make any disturbance so as to be an annoyance to the
residents or passengers”. It was challenged on grounds of being unclear &
uncertain as to what was prohibited. The Court held that the regulation was
ultravires due to uncertain.

2. Unreasonableness: The test for this is what an average man or woman thinks
unreasonable or reasonable. Reasonableness may defend on the following: -
(a) The scope of prohibition in being too wide or too narrow.
(b) The type of punishment prescribed for transgressing the law may be too heavy
or light.
(c) In legislation that requires payment of fees, the fees may be unaffordable or
they may be totally inadequate. Kruse Vs. Johnson [1898] 2 Q.B 91,
Uganda Cotton Buying & Ginning Co. Ltd Vs. R [1933]5 ULR 57, Repton
Vs. Repton.

3. Conflict with the parent statute : Subsidiary Legislation must comply with the
spirit and letter of the parent statute. Otherwise it may be invalid. See 18 of the
Interpretation Act provides for the terms & expressions used in a statutory
instrument shall have each same meaning as in the Act under which the instrument
is made.

It further provides that any provision of the statutory instrument which is

inconsistent with any provision of the Act under which it was made shall be void
to the extent of inconsistency. Koinange Vs. R [1951] 1KLR 130, Coffe Works
Vs. Coffee marketing Board [1963] EA 148.

4. Conflict with the Constitution: In the case of Nanabal Domadal Kanji Vs.
Tanga Township Authority [1940]1 TLR 239, The Local Government Ordinance
gave power to the Local Authority to enact laws relating to keeping the township
clean and orderly. The town authority enacted a law saying “No one shall deposit
any dust, refuse or obnoxious matter on the street. If any accumulation of rubbish

29
 is found near any person’s house, it will be prime facie evidence that the owner of
the house put it there”.

It was successfully challenged on the grounds that it was in contravention of the

constitutional principle of the presumption of innocence.

5. An unauthorized sub-delegation: Where the powers to make Subsidiary

Legislation are given to a Minister, the Minister may not sub-delegate each
function to another officer such as the Commissioner. Such an authorized sub-
delegation will result in the rules being invalid. Gulamam Vs. R [1936] 1 TLR
2 or 3, R Vs. Jan Mohammed [1937]6 KLR 270.

In Mohammed’s case the crop production and livestock ordinance gave power to
the governor in council to make rules for inspection of any crop or agricultural
produce. The rules which the application was alleged to have contravened had
been made by the Director of Agriculture/

Held:
The Rules were ultravires and the applicant’s conviction was quashed.

MINISTERIAL/POLITICAL CONTROL ON SUBSIDIARY

LEGISLATION

Ministers have the responsibility of overseeing official’s activities in their

departments. They have political responsibility for ensuring that Subsidiary
Legislation emanating from their ministries is in line with approved government
policies and programmes. They may refuse to approve legislation which is illegal
on contrary to public policy.

DELEGATION OF POWERS

The main principle of Administrative Law is that administrative powers must be

exercised lawfully. An element which is essential to the lawful exercise of power
is that it should be exercised by the authority upon whom it is conferred and by no
one else. This principle is usually applied very restrictively except in cases where
it may reasonably be inferred that the power was intended to be delegable.

Normally the courts are strict in requiring that Administrative power be exercised
by the real person or body stated in the statute and will declare ultravires any
action taken by sub-committees or delegated even if the authority empowered by
the statute expressly authorized by a delegate or Sub-Committee to exercise with
power.

The Latin maxim delegatus non potest delgare- meaning a delegate can’t
delegate is used to express the principle that statutory authority should not be
delegated. The following examples illustrated in cases where action was held to
be ultravires because the decision was taken by a person or body to whom the

30
 power did not properly belong. Allingham Vs. Minister of Agriculture and
Fisheries [1958] 1 ALLER 780. Local Committees were empowered by
legislation to direct farmers to grow specified crops on specified fields. A
Committee decided to order 8 acres of sugar best to be grown by a farmer but left
to their executive officer to decide on which field it was being grown.

Held:
That the direction given by the executive officer was void since he had no power
to decide as to the field.

In Bernard Vs. National Dock [1953]2 Q.B 18: Registered Dock Workers were
suspended from their employment after strike. The Power to suspend dock
workers was vested in the Dock Labour Board. The suspension was made by the
Manager to whom the board had purported to delegate his disciplinary powers.

The workers obtained a declaration that their suspension was invalid since the
board had no power to delegate the functions and should have made the decision
itself.

In Vine Vs. National Dock Labour Board [1957]7 AC. A registered Dock
Worker was dismissed and the Court granted a declaration that his dismissal was
invalid because the Board instead of dividing itself entrusted the matter to a
disciplinary committee.

However, it should be noted that a strict application of the rule against delegation
would cause a lot of administrative inconvenience and result in a huge work load
for administrative authorities. Courts therefore allow a delegation to a certain
extent by emphasizing that a subordinate official or body may, merely make a
recommendation but the actual decision should be taken by the official or body
specifically empowered by the law. In sub-delegation- this means that
administrative power will be exercised by the subordinate that makes each
recommendation. Thus it may be concluded that the law allows delegation of
administrative powers as long as such delegation is authorized by the statute either
directly or indirectly.

The advantages of delegation are that: -

i. It promotes efficiency in the government by allowing the sharing of
workloads
ii. It promotes capacity building among junior officers.
iii. etc

The Laws of Uganda allow delegation of some administrative powers e.g. under
Article 99(4) of the executive powers. Clause (4) provides that the executive
authority conferred on the president either directly or through officers subordinate to
the president.

31
According to the Transfers of power & Duties Act Cap 260 Vol. 10 of Laws of
Uganda.

The president may authorize any Minister to carry out his powers and functions by
publishing an instrument to that effect in the gazette.

Similarly, Ministers can delegate their powers and functions to other public servants
such as permanent secretary. However, there are specific powers any delegation may
be challenged as ultra-vires e.g. sec 176 of the local government Act gives power to
the Minister of Local Government to amend the Schedules to the Act but specifically
provides that in power may not be delegated.

- Also delegation of powers will be invalid if it is exercised by another public

official other than the one provided for in the law.
- Delegation must follow the chain of command for example the president can’t
delegate to the permanent secretary but can only delegate to the vice president or a
minister.

- The procedure for delegation of administrative powers is through a Statutory

Instrument published in the gazette in accordance with Section 14 & 15 of the
Interpretation Act.

- Ministerial powers may also be delegated by means of ministerial circulars or

directives and these need not be published in the gazette.

Note: Judicial powers can’t and should not be delegated under any circumstances.
Ref. Vine Vs. National Dock Labour Board.

RATIFICATION

Ratification is a process whereby an illegal Act is validated by a person who had

powers to initially carryout that Act. Ratification arises where the ultravires exercise
of power is likely to be challenged.

The proper authority will confirm that the act was done properly and give it his/her
blessing so that despite the initial want of the authority, the act become valid.

However, ratification can’t be done once the ultravires exercise of power has once
become the subject to judicial proceeding.
Ref. Municipal Board of Mombasa Vs. Kalo [1955]22 EAC

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