Administrative Law- GPR 203
Module 2: EVENING
By: Prof. Migai Akech
Lecture 1 and 2: Thursday October 2012 – B3 5.30-8.30 PM
Administrative law is the law relating to the control relating to government power. The primary purpose of administrative law is to keep the powers of government within their legal bounds, so as to protect citizens against abuse. Nature and Purpose of Administrative law
Article 47 of the constitution
(1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. (3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall— (a) Provide for the review of administrative action by a court or, If appropriate, an independent and impartial tribunal; and (b) Promote efficient administration.
It deals with how power is acquired, used and how to remedy improper use of power. What is Power?
Steven Lukes in his book: Power a Radical View defines power as the capacity to dominate other beings. That domination is expressed in three ways:
1. A person ‘A’ can exercise power over ‘B’ by making ‘B’ act in a manner that is not in the interest of B. It is a one dimensional decision making power. Example: One person wins a political struggle against another then imposes his will by punishing them if they don’t cooperate. The winner takes it all and ‘A’ imposes his will by threatening. 2. Person ‘A’ can impose power over ‘B’ by creating barriers to the public airing policy conflicts and thus ensures public knowledge to things that are harmless to ‘A’. It discourages/ makes its hard for the other person to express themselves and demands for change are suffocated. It is a non decision making power and it favours the elite. Example: The Chinese child labour policies and criminalisation of treason. 3. Person ‘A’ determines his wants thus suppressing B’s interests by controlling how ‘B’ thinks by thought control. It is mainly done through mass media. What does law have to do with power?
1. Law regulates power by insisting that the exercise of power is democratic i.e. Participatory and democratic(accountable) 2. The purpose of the law is to protect individuals from abuse of power 3. Law promotes the value of things we care about as human beings. Dawn Oliver argues that there are a number of values that are moral tenets of how life ought to be for an individual in a democratic society. These values include:
1. Autonomy – Freedom to make ones decisions
2. Dignity – The quality of being worthy
3. Equal respect – Being treated as a citizen
4. Status – A sense of belonging to a society
5. Security – Ability to trust and rely upon others with whom you deal with Democratic Governance; as a right but Insufficient
Thomas Frank argues that the right to democratic governance involves the right of citizens to be involved in governance. E.g. The right to vote. We must trust that if the government says it will do something that it will deliver. It enhances legitimacy and enhances our trust in government, and our willingness to cope with the government. We must be able to rely on it. That is why it becomes important for the law in the context of the principle of legitimate application to say that if as a public authority you have made a promise, then you must see to it, because that promise enhances order, good administration and good life. The expectation from Oliver is that when those who hold power wield and exercise it, they will take these views into point honour, implement and adhere to these views when they exercise power. We can therefore argue from this premise, that it is likely that these values will be protected where the exercise of power is...
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