School of Law
L341 - ADMINISTRATIVE LAW ∗
Please note that this is a draft. The material is under revision.
∗This material has been prepared by John P. Sangwa and was initially part of a larger study undertaken by the author. The material is meant for students studying L341. The reproduction for any purpose whatsoever of this work or any part thereof in any form or manner is not allowed without the permission of the author.
INTRODUCTION What is Administrative Law? Administrative law, as a subject, has defied definite and concrete definition. Most scholars have confined themselves to formulating working definitions within the context of their works. There is, however, agreement that administrative law is concerned with powers and procedures for the use of those powers by public officers and institutions responsible for the performance of the functions of the state. It includes, especially, the law governing judicial review of administrative actions. Administrative law is law that governs those who administer any part of governmental activities. Administrative law is not the substantive law produced by the agencies, and it is not the substantive law created by the legislative bodies or courts and administered by the agencies; instead, administrative law is the law, which governs the powers and procedures of agencies. It includes procedural law created by the agencies but not the substantive law created by them, such as tax law, labour law, public utility law, transportation law, welfare law, town and country planning law, and the like. Administrative Law Distinguished from Constitutional Law There is a distinction between constitutional law and administrative law. Constitution law refers to the formal rules, in the case of Zambia, embodied in one single document referred to as the constitution, which establish the main institutions of the state, prescribe their powers, their relation with each other and their collective position vis-à-vis the citizens. Administrative law on the other hand focuses on the powers vested in these institutions and how they use them. For instance, the Banking and Financial Services Act, 1994, confers on the Bank of Zambia, the powers to regulate banking and regulated financial services and issue the necessary regulations from time to time. The Act itself and the regulations made pursuant thereto are not themselves of concern of administrative law. However, administrative law would touch on the authority of the Bank of Zambia to make regulations and upon the procedure employed in making them. Administrative law tends to focus on three aspects of administration: rule-making procedure, where the public institutions or officers are conferred powers to make rules, adjudicative procedure where there is power to make decisions and judicial review, which focuses on the power of the court to review decisions of public institution to ensure that they are intra-vires the empowering legal instruments, and to declare them ultra-vires, where they are not 2
The Scope and Administrative Law Administrative law is concerned with public authorities. It is concerned with the way power is acquired, where the public authorities get their powers from and the nature of those powers. It determines whether the exercise of a power subject to any particular procedure, or whether it must be exercised in any particular form. If so, it addresses the effect of failing to do so. It focuses on how to ensure that powers are used only for the purpose for which they are given - and that they are used effectively and efficiently. Administrative law is concerned not only with power but also with liabilities both of authorities and of their employees. It is concerned with the bodies, which exercise these powers - central government departments, public corporations, local authorities and other institutions. The role of the courts, as independent institutions, in providing some checks on...