3.

CATEGORIZATION OF PUBLIC POLICIES

CONTENTS

3.1 Introduction
3.2 Regulatory, distributive and redistributive
3.3 Ideological classification
3.4 Hierarchical classification
3.5 Classification based on the body/organ that has final authority
to make/ approve them before they are implemented [the main/
recommended classification]
3.6 Other forms of categorization

3.1 INTRODUCTION

Policies are of different types. So, they can be categorized.

However, this categorization must not be seen/ taken as rigid.

The categorization can be on five bases as shown below:

[a] Whether they are regulatory, distributive or redistributive

[b] Ideological
[c] Hierarchical
[d] The body/organ that has final authority to make/ approve them
before they are implemented [the main/ recommended
classification]
[e] Other forms of categorisation

3.2 Regulatory, distributive and redistributive

3.2.1 Regulatory policies

These embody rules of conduct with sanctions. Many government

policies are of this nature. The policies lead to the formation of
regulatory bodies like, in Uganda, the National Environmental
Management Authority [NEMA] and the Electricity Regulatory
Authority [ERA].

3.2.2 Distributive policies

They provide tangible benefits to individuals and groups in a non
competitive manner. Examples are government policies and
programmes on social security, unemployment, insurance and
medical care.

3.2.3 Redistributive policies

These re-allocate resources between groups in society. Example:

tax policy. Latter is used to take money from rich people and
redistribute [give] it to the poor in various welfare or subsidized
benefits.

3.3 Ideological classification

3.3.1 Liberal policies

These include all sorts of policies that are variously called left-wing
or socialist. They cover the policies pursued by socialists, social
democrats, communists and the Greens [as those in Germany and
France].

These policies seek government intervention to bring about some

type of social or economic gain. E.g. high taxes, free medical care in
government hospitals and nationalization or the pursuit of public
enterprises [or, for Tanzania since 1999, the creation of Executive
Agencies, which are a version of public enterprises]

N.B. The Tanzania Public Sector Reform Programme has introduced

these bodies. It is intended to create 50 of them between 1999 and
2011. As at June 2005, 20 had been established. They include the
Tanzania Government Flight Agency [TFGA], a body currently [June
2005] owning 4 aircraft to cater for VIPs but with plans to expand
its operations to cover private persons.

Source: East African, The [2005] Pull “Out Supplement [on

Tanzania]”. The East African; 20-26 June.

3.3.2 CONSERVATIVE POLICIES

These:
 Seek to bring about some type of social gain through
individual effort.
 Oppose government intervention.
 Favour private, non governmental solutions to problems.

Examples: privatisation.

3.4 Classification based on “Policy Objectives” and “Policy

instruments”

Policy objectives are seen as ends: what the policy intends to

achieve.

Policy instruments are considered the means/ the actions/ the

methods to achieve the objectives. Examples of instruments:
legislation plus rules.

N.B. I do not find this classification helpful.

3.4 Hierarchical classification

3.4.1 Introduction

One might ask: is there a hierarchy of public policies?

According to Sai, E.A, in Mutahaba and Balogun pp 64-66, the

answer is yes.

He maintains [quotation p. 64]

“Policies tend to exist in a certain descending order, and each

level has to have a specific institution that serves as the
clearing house and/or lead agency with respect to each policy
or group of policies.”

The following sub-section is built largely around his four categories.

But we have added, at the beginning, a fifth level – the supra
national one to cater for policies made at levels above the nation.
3.4.2 The hierarchy

[a] Supra national policies.

These policies are made the supra national one to cater for policies
made at levels above the nation – e.g. East African Community,
African Union and United Nations. The policies take effect through
localisation/ domestication/ ratification.

[b] National level or macro-policies.

These are policies of a national nature.

Examples are policies related to security, defence, economics,

industry and fiscal activities.

The body to take charge is the “highest policy making body in each
country”, whatever that body might be (E.g. Office of Head of State,
Cabinet etc.).

[c] Sectoral policies

These are sector specific policies. They are located within specific
ministries

They are expected to be in alignment with the main policies of

government; Sector specific policies are micro policies

[d] Operational policies

They are implemented by implementing agencies or government

departments.

These agencies or departments derive their operational policies from

the policies of the sectors [ministries] under which they operate.

[e] Local-level policies

This category embraces public policy management at the local,
community and grassroots levels.

3.5 Classification based on the body/organ that has final

authority to make/ approve them before they are implemented
[the main/ recommended classification]

3.5.1 Public policies of an administrative nature

Description

Public policies of an administrative nature are ultimately decided on

by a cabinet and implemented straightaway. They do not go higher.

They are examples of where a government decision and a

government policy are indistinguishable.

The distinguishing characteristic of this type of policy is that there

is no Act of Parliament to back it.

Before making some of these policies, many governments practise

what is known as leaks or the “trial balloon”.

According to Mule [2004], the latter “are meant to assess political

reactions and public opinion before official action is taken. This is
usually done in an attempt to guarantee a positive acceptance for
the [proposed policy] action [or decision]”.

In true democracies, strong opposition to a policy will lead to its

abandonment.

But please note also that the strategy can be applied – initially at
least – to the second category of policies

Example

Location of the responsibility for nurses training. In this

connection, Nabirume [2009] reports that, according to an
announcement by the Minister of Health, Stephen Malinga, at the
Media Centre,

Cabinet has decided that, starting 18 March 2009, medical and

tertiary training institutions be relocated to the Ministry of Health –
after 11 years under the Ministry of Education and Sports.

We are told that in 1998, government resolved that all training

institutions be presided over by the Ministry of Education and
Sports as it is the Ministry in charge of training Uganda’s human
resource. However, some experts felt this was erroneous as the
Ministry of Education and Sports presides over too many training
institutions and this could not give nurses the special attention
they need.

Source: Nabirume, Diana [2009] – “Nurses training Kanungu now

has electricity, Eagle Air”. The Observer [Kampala]; 30 March – 1
April; p.12

In a related story, Bugembe [2009] adds that Cabinet decision was

linked to President’s Museveni directive of 19 January 2009 to this
body [Cabinet] to resolve the issue [location of the training –
whether in the Ministry of Health and Sports or that of Health]. He
also specifies that the 1998 decision to transfer the training from
Health to Education and Sports followed a recommendation from
the World Bank]

Source: Bugemebe, Anthony [2009] – “Nursing aids managing

health centres”. The New Vision. 1 April; p.4.

3.5 Policies which, before implementation, must first become

laws

These, which can be described as major policies, are subdivided

into two – those introduced to parliament by the executive; and
those introduced to Parliament by private members of the same,
who are not members of the executive.

I. Those introduced to parliament by the executive

These are the overwhelming majority.

They must follow the “usual” path - from the initiating/ originating
ministry [or public organization or any other source, even
individual, but strictly through the parent and/ or relevant
ministry] through cabinet, then to parliament [although, at this
stage, they can be decreed where there is no parliament] to being
assented to by the head of state when they become laws - before
implementation.

II. Those introduced to Parliament by private members of the

same.

They can do so under clause 4 [b], of article 94 of the Constitution.

It says: “a member of Parliament has the right to move a private
member’s bill”.

But the private member is prevented from introducing bills

touching on certain matters. These – which are spelt out in article
93 – and which deal mainly with financial matters [including the
imposition of taxation],are the preserve of the Executive.

According to clause 4 [c] – [d] of article 94, the department of

Government whose area of operation is affected by the bill shall
afford the member “reasonable assistance” in his/ her task. For its
part, the office of the Attorney General shall afford the member
moving the bill “professional assistance” in drafting the bill.

Luckily, in Uganda, and additionally, the Parliamentary Service

Commission had by 2005 recruited about ten officers qualified in
research methods and law to assist members of parliament with
their research and drafting needs.

According to Henderson [2004], and as far as Uganda is concerned,

laws introduced via this route are very few indeed. He says that
during the Sixth Parliament [mid 1996 – early 2001], only four bills
were introduced. Of these, only two became law. During the
Seventh Parliament [mid 2001 – mid 2006], and, so far [up to 15
January 2004], no bill has been introduced.

3.6 Other forms of categorization

These can be any – e.g. foreign versus domestic; or public versus

private.

See internet materials below concerning justifiability

Definition of what is “justiciable”

Source of the material immediately below:

http://legal-dictionary.thefreedictionary.com/justiciable Accessed
on 6 January 2010.

Capable of being decided by a court.

Not all cases brought before courts are accepted for their review.
The U.S. Constitution limits the federal courts to hearing nine
classes of cases or controversies, and, in the twentieth century, the
Supreme Court has added further restrictions. State courts also
have rules requiring matters brought before them to be justiciable.

Before agreeing to hear a case, a court first examines its

justifiability. This preliminary review does not address the actual
merits of the case, but instead applies a number of tests based on
judicial doctrines. At their simplest, the tests concern (1) the
plaintiff, (2) the adversity between the parties, (3) the substance of
the issues in the case, and (4) the timing of the case. For a case to
be heard, it must survive this review. In practice, courts have broad
power to apply their tests: they commonly emphasize whichever
factors they deem important. This irregularity has made the
analysis of justiciability a difficult task for lawyers, scholars, and
the courts themselves.
Behind the tests for justiciability are a number of legal doctrines.
The Supreme Court has declared that the doctrines have both
constitutional and prudential components: some parts are required
by the Constitution, according to the Court's interpretation of
Article III, and some are based on what the Court considers prudent
Judicial Administration. This distinction has important
consequences for the limits of judicial power. Congress has the
authority to pass laws that override only the prudential limits of
Judicial Review; it cannot pass laws that override constitutional
limits. Thus, the Supreme Court has insulated the federal courts
from congressional influence in some but not all areas of
justiciability.

Among the most complex justiciability doctrines is standing, which

covers the plaintiff. Standing focuses on the party, not on the issues
he wishes to have adjudicated (Flast v. Cohen, 392 U.S. 83, 88 S.
Ct. 1942, 20 L. Ed. 2d 947). A claimant said to have standing has
been found by the court to have the right to a trial. To reach such a
determination, the court uses several general rules. These rules
require that the claimant has suffered an actual or threatened
injury; that the case alleges a sufficient connection (or nexus)
between the injury and the defendant's action; that the injury can
be redressed by a favorable decision; and that the plaintiff neither
brings a generalized grievance nor represents a third party. In
addition, separate rules govern taxpayers, organizations, legislators,
and government entities.

The question of justiciability also involves the legal relationship of

the parties in the case, as well as the substance of their dispute. To
be found justiciable, the case must involve parties who have an
adversary controversy between them. Moreover, the issues in the
controversy must be "real and substantial," and therefore more
than mere generalized interests common to the public at large. A
related rule forbids the federal courts to issue ADVISORY OPINIONS.
Dating from the late eighteenth century, it holds that they must
decline to rule on merely hypothetical or abstract questions. In
addition, they are restricted from taking cases that address purely
POLITICAL QUESTIONS, which are beyond management by the
judiciary. Certain state courts do issue advisory opinions on legal
questions.

The fourth concern of tests for justiciability, the timing of the case,
is evaluated under the concepts of Ripeness and mootness. The
ripeness doctrine holds that a case is justiciable if "the harm
asserted has matured sufficiently to warrant judicial intervention"
(Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343
[1975]). The mootness doctrine prevents a court from addressing
issues that are hypothetical or dead. A case may become moot
because of a change in law or in the status of the litigants. Most
commonly, it is held to be moot because the court is presented with
a fact or event that renders the alleged wrong no longer existent.
For example, in 1952 the Supreme Court refused to review a state
court decision in a case challenging Bible reading in the public
schools. The child behind the suit had already graduated, and the
parents and taxpayers who brought the suit could show no
financial injury (Doremus v. Board of Education, 342 U.S. 429, 72 S.
Ct. 394, 96 L. Ed. 475). However, the Court did agree to hear the
landmark Abortion case ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705,
35 L. Ed. 2d 147 (1973), even though the plaintiff was no longer
pregnant. The Court gave as its reason the length of a woman's
gestation period (nine months), which is too short to permit
appellate review.

One reason justiciability is complex is that it is replete with

numerous arcane rules and exceptions. Another is that courts
apply it on an ad hoc basis, inconsistently choosing to emphasize
one element of its tests over another. This fact has led legal scholars
to despair of ever reaching a unified analysis of justiciability. Some
have taken the cynical view that courts will find a case justiciable
when they want to hear it, and refuse to find it justiciable when
they do not wish to hear it.

FURTHER READINGS

Chemerinsky, Erwin. 2001. "Bush v. Gore Was Not Justiciable."

Notre Dame Law Review 76 (June).
——. 1990. "A Unified Approach to Justiciability." Connecticut Law
Review 22 (summer).

Galloway, Russell, W., Jr. 1990. "Basic Justiciability Analysis."

Santa Clara Law Review (winter).

Tsen Lee, Evan. 1992. "Deconstitutionalizing Justiciability: The

Example of Mootness." Harvard Law Review 105 (January).

West's Encyclopedia of American Law, edition 2. Copyright 2008

The Gale Group, Inc. All rights reserved.

justiciable n. referring to a matter which is capable of being decided

by a court. Usually it is combined in such terms as: "justiciable
issue," "justiciable cause of action," or "justiciable case."

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All

Right reserved.