Explain what administrative law is and, making reference to case law discuss its functions in the governance of a country.
AUTHOR: KATALILO JOY
This paper will explain what administrative law is and its functions in the governance of a country.
It is not easy to give a straight forward definition of administrative law. This is so because administrative law is not law as we know it that which is made by elected officials in an assembly like the National assembly or parliament. In lay terms it can be said to be a means by which the law implementation is monitored. This is so as the person in charge of implementing the law from the legislature is mostly given powers to come up with steps or procedures in which that law will be implemented or is given power to use his discretion in the implemention of that law. It can therefore be said that it consists of rules and procedures that encourage good administrative practice in government and also it provides mechanisms for redress to those negatively affected by government decisions or actions. In brief, it can be described as the law relating to the administration of government. Administrative law ensures that one indeed has the authority in coming up with those steps or procedures or using the discretion; that those steps or procedures or discretion applied is fair in nature (i.e. they do not conflict with the Constitution), that the application of the procedure or discretion is abide to in handling all events, and that the person administering the steps or or discretion acts reasonably and fairly. For example, chapter 322 of the Laws of Zambia, in particular, section 198 does confer on the Minister of Finance and national planning the power to make regulations that would regulate the processing of imports and exports in Zambia. Administrative law will therefore, be concerned with the authority of the minister to make the regulations and how these regulations are made. The regulations made by the Minister will not be the concern of administrative law but the procedures used to make them. Administrative law is also concerned with the use of discretion by government officials. The case of Attorney General v Clarke, explains the interests of administrative law better. In the case, the attorney general was appealing a court decision that nullified the deportation of Roy Clarke ordered by the Minister of Home Affairs who was using his powers under section 26 (2) of the Immigration and Deportation Act. The facts were that Roy Clarke submitted for publication a satirical article entitled Mfuwe whose contents ,in the opinion of the Minister, amounted to a danger to peace and good order in Zambia. It was held that deporting the respondent was disproportionate a punishment for the crime alleged and thus the appeal was dismissed. The Roy Clarke case shows that despite one having the powers under the Act, one cannot use them arbitrary or disproportionately to satisfy one’s ego or self interest. Administrative law will thus ensure that powers conferred by the Acts are applied for intended purposes and for public good. The illustration above show that administrative law is the law that governs those that administer any activities of Governance. In this regard thus it is concerned with public authorities such as central and local government departments, public corporations and similar institutions. The administrative law will therefore look at where and how these institutions acquire the power they have. The constitution of Zambia in its entirety is a source of administrative law in that it provides restrictions on what government can do or not do. The statutes that creates the public institutions are also a source of administrative law in that they prescribe the powers and how they are to be applied. Administrative law is also generated by the courts by them deciding cases with similar facts the same. Administrative...