Administrative Law

V. Cheelo
Administrative Law
 Administrative Law is the branch of law concerned
with the regulation of governmental power.

 It is intrinsically related to the constitutional

framework and political theory from which it has
developed.

 Principal objectives of administrative law include the

accountability of governmental power and the
resolution of grievances of those affected by
administrative decision-making.
Administrative Law
 Whilst some commentators would stress the issue of
control of administrative action, others are interested
in the way the administrative legal system can
improve the effectiveness of administrative action.

 Administrative law is concerned with all relevant

institutional arrangements that regulate public
decision-making.

 The role of some of the most important of these

institutions is considered below.
THE COURTS
 The theory that has dominated the development of
administrative law has been the doctrine of ultra vires.

 This is based on the understanding that all public

powers stem from legislative (lawmaking) authority
and must be exercised within the boundaries of those
delegated powers.

 It follows that the role of the court is supervisory

and must not be concerned with the correctness or
merits of a decision that is made by a public authority.
THE COURTS
 The key to the ultra vires theory is the statutory
interpretation by the courts of powers delegated by
Parliament.

 There has been increasing criticism of the ultra vires

theory as an explanation of judicial decision-making in
this area.

 Nevertheless, it is the theory that continues to

dominate judicial explanations of decisions in this
context.
THE COURTS
 The grounds for judicial review are classified under three
broad headings: illegality, procedural impropriety, and
irrationality.

 Illegality: covers cases where a body has made an error

of law.

 Procedural impropriety: is a ground of procedural

attack available where a body is considered to have acted
in breach of natural justice.

 This may be because a person has been refused an

adequate hearing or because the decision-maker is
alleged to be biased.
THE COURTS
 Irrationality: is intended as a safety net, allowing
challenge where a body is considered to have acted
perversely or in a way that no sensible person would
have in making decisions.

 The appropriate procedure to challenge a public

decision is an application for judicial review.

 Judicial review has a number of important safeguards

for public authorities.
THE COURTS

 An applicant must secure leave from a judge and must

adhere to strict time limits, usually within three
months from the date a decision was made.

 The applicant must be considered to have a sufficient

interest in bringing the proceedings, although the
courts have shown considerable flexibility in the
interpretation of this standing requirement.
TRIBUNALS
 In an increasing number of areas, tribunals have been
established in preference to courts.
 Examples include adjudication (negotiation) on social
security benefits, immigration, employment, and
discrimination.
 Procedurally, tribunals have certain advantages over
courts.
 They are usually more accessible, cheaper and more
informal than courts.
 Despite these advantages, there are some areas of
concern. In particular, legal aid is not available before a
tribunal and empirical research on representation before
tribunals suggests that individuals acting without such
support are less likely to succeed.
PUBLIC INQUIRIES
 Public inquiries provide an institutional framework for
the participation of relevant interests in public
decision-making.
 A public local inquiry is held before an inspector
appointed by the minister.
 The inspector must give reasons for a decision and
must report to the relevant minister.
 There is no financial provision to support public
participation at public inquiries, which are often
lengthy and costly.
Classification of law
 Every law is either substantive or procedural and
either criminal or civil
Substantive and procedural laws
a. Substantive law establishes what one can and
cannot do, while procedural law defines how
something is to be done.

 For example Mubita holds up a Shoprite supermarket.

 The police obtain an arrest warrant and a search

warrant and go to his house.

 When they enter, they immediately place the Mubita

under arrest and read him his rights.
Substantive and procedural laws
 While searching the house for Mubita’s gun and the
money from the robbery, an officer finds 4 kilograms
of marijuana

 Substantive law describes the crime of robbery which

is what the police allege Mubita committed.

 Substantive law also defines the crime of illegal

possession of a controlled substance-in this case,
marijuana.
Substantive and procedural laws
b. Procedural law
 Procedural laws define steps that the police took in
obtaining the warrant, arresting Mubita and searching
his house.

 But categorizing a law as procedural does not make it

less important than one categorized as substantive.

 In this example, the procedures are required by the

Constitution.
Substantive and procedural laws
 If the police fail to observe them, a court may not
admit the evidence the police found in Mubita’s house
or, perhaps may not permit Mubita to be tried for
either crime because the arrest was invalid.

 Procedural law will also govern how the court system

treats the case against Mubita.
Civil law
 Civil law Relating to ordinary citizens – concerns
wrongs between individuals hence termed as private
law.

 The term “civil law” is also employed to distinguish

those legal codes that deal with civil relationships
(such as citizenship, marriage, divorce, and certain
contractual arrangements) from other codes such as
those dealing with criminal law.

 Criminal suspects are always prosecuted by the

government.
Criminal law
 Criminal Law, branch of law that defines crimes and
fixes punishments for them.

 Substantive criminal law is always statutory.

 Also included in criminal law are rules and

procedures for preventing and investigating crimes
and prosecuting criminals, as well as the regulations
governing the constitution of courts, the conduct of
trials, the organization of police forces, and the
administration of penal institutions.
Criminal law
 In general, the criminal law of most modern societies
classifies crimes as offences against the safety of the
society; offences against the administration of justice;
offences against the public welfare; offences against
property; and offences threatening the lives or safety
of people.

 Crimes are wrongdoings seen from the point of view

of the society in which they occur: the convicted
wrongdoer may be punished.
Criminal law
 Torts include the same wrongdoings seen from the
point of view of their victim: the wrongdoer may be
ordered to pay compensation.

 Sins include the same wrongdoings seen from the

point of view of a faith; they call for repentance and
atonement.

 Thus, all three systems agree in condemning the most

common acts of wickedness—murder, rape, robbery,
violence, and theft, for example.
Criminal law
 Once such acts occur, however, the secular responses
seem in practice weak.
 Relatively few crimes are solved, few criminals are
convicted. Almost never are the culprits made to
compensate their victims.
 Many societies attach great importance to a system of
criminal justice: that is, laws that define crimes and
provide the sanctions; procedural rules for establishing
guilt in a court; and a set of methods and places of
punishment and rehabilitation.
 Furthermore, the types of actions declared to be criminal
are, in all major matters, much the same everywhere.
Basic Premises (properties) of Criminal
Law
 Whatever their origin, most legal systems agree on
certain basic premises.
1. That no one can be guilty of a crime unless the offence
is defined as such beforehand, and the conviction
arrived at by a lawful procedure. Inherent in this is the
requirement of clarity in criminal law, a prohibition
against its retrospective effect, and certain notions of
“fair trial” and the availability of legal representation.
2. That no one can be prosecuted twice for the same act.
3. That deliberately criminal conduct can be punished even
if it did not succeed—it is a crime to attempt a crime,
or to conspire with others to commit one.
Basic Premises (properties) of Criminal
Law
4. The fourth common premise is harder to explain.
 The essential ingredients of a crime contain both a factual and
a mental element.
 The first covers certain (not involuntary) human conduct in
certain circumstances, and sometimes with certain
consequences: for example, stealing involves taking someone
else’s property; on a charge of homicide the prosecution must
prove that the victim is dead.
 The second means that it must normally be shown that the
accused deliberately or recklessly performed the forbidden act.
 The important point here is that, as a general principle, mere
carelessness (or stupidity) is not a crime calling for
punishment, but at worst a tort calling for compensation.
Example
 Thus, if Mr. A makes off with Mr. B’s raincoat, honestly
thinking it was his and not even seeing the risk that it
might not be, Mr. A is not a thief: he did not deliberately
or recklessly intend to take someone else’s property.
 Of course if Mr. B’s name is marked inside it then he may
have been careless, in which case he may owe Mr. B
compensation.
 However, Mr. A is not a criminal: stealing is dishonesty and
Mr. A was (though negligent) perfectly honest.
 To this general principle there are important exceptions:
careless driving is an obvious example and, where death is
caused by gross negligence, there may be a homicide
charge below the level of murder.
Basic Premises (properties) of Criminal
Law
 Furthermore, in many systems a number of (relatively slight)
offences may be committed without any mental culpability at
all.
 Such offences are treated in this way due to, for instance, the
need to protect the public and the difficulty of proving any
mental element.
 Examples include the use of vehicles that are not roadworthy
on a public highway.
 Most systems accept that criminal liability is not to be imputed
to certain classes of people: for example, the very young or
people with severe mental illnesses.
 Systems also recognize a number of exculpating or mitigating
circumstances, such as self-defense, provocation, or suicide
pacts.
Customary Laws
 In many parts of the world, unwritten local or tribal
custom sets the standard of behavior and provides
for conciliation and dispute settlement.

 Most of the African countries, for instance, have a

formal constitutional and commercial law inspired by
French, Belgian, or English models, but remit the
relations between private individuals to the
appropriate customary framework.
Judicial systems
 Courts, branch of government established to
administer the civil and criminal law.

 The term “court” is also applied to the international

tribunals intended to provide for the resolution at
law of controversies among governments, namely, the
Permanent Court of International Justice, established
by the League of Nations after World War I, and the
International Court of Justice, established by the
United Nations after World War II.
Classification of Courts
i. Courts of record and courts not of record- In courts of
record the proceedings are recorded completely
ii. Courts of superior jurisdiction and courts of inferior
jurisdiction - Courts of superior jurisdiction, often called
higher courts or appellate courts, are generally those to
which appeals are made from decisions of courts of
inferior jurisdiction, referred to as lower courts or courts
of first instance
iii. Courts of first instance and appellate courts; and
iv. Civil courts and criminal courts - Civil and criminal courts
deal with cases arising from infractions of the civil law and
the criminal law, respectively.
Classification of Courts
v. Courts with special, limited jurisdictions are known by
the names of those jurisdictions. For example, probate or
surrogate’s courts are tribunals dealing with the probate
of wills and the disposition of estates.

vi. Military courts. They have jurisdiction over infractions by

military personnel.

vii. Admiralty courts have jurisdiction over cases arising

from maritime contracts and from violations of maritime
law. Other courts are designated by the territorial limits
of their jurisdictions.
Classification of Courts
 In Zambia the judicial system includes
1. Supreme Court,

2. High court, and

3. Lower courts the magistrate courts patterned on

the British model.

4. African customary law is applied in special courts

called local courts.
Arbitration
 Arbitration is a system of settling disputes by reference
to an independent judge, following an agreement by the
parties.

 Arbitration is a way of dealing with issues, most

commonly in commercial matters, without recourse to
law: it is considered to be cheaper and quicker than a
formal law case.

 It may also enable a matter to be settled with less

acrimony, which is valuable if the parties are to deal with
each other in the future, under the same contract or
under another.
ARBITRATION BY AGREEMENT
 Arbitration is a course often provided for in commercial
contracts.
 The complexity of contracts means that disputes are
likely to arise as to the duties of the parties to each other.
 Foreseeing this, they agree to refer matters, either in
specified areas, or in any matter related to the contract,
to an arbitrator.
 This agreement will be binding on the parties; if a dispute
does arise, none of the parties can then ignore the
arbitration clause and go to law.
 The only matters that can be referred to arbitration are
those that can be settled by the payment of money from
one side to another.
APPOINTMENT OF ARBITRATORS
 The appointment of the arbitrator is often seen as
significant to the outcome of the dispute.

 It is not uncommon for two arbitrators to be

appointed to decide the matter, and either they, or
the parties by agreement, appoint an adjudicator in
case the arbitrators disagree.

 Equally common is for the arbitrator to be appointed

by agreement between the parties.
APPOINTMENT OF ARBITRATORS
 This is not as difficult as it may appear, since there are
registers of arbitrators, both general and in
specialized fields; the parties have a duty to negotiate
reasonably in making the appointment, which is
enforceable at law.

 Arbitrators may be full-time specialists, or people

with other jobs; many arbitrators are lawyers who
specialize in the field of commerce which is the
subject of arbitration.
PROCEDURE
 Arbitration should be judicial; that is to say, the arbitrator
must apply the law of the land to the dispute.

 The arbitration will generally be phrased in the contract

as dealing with matters arising under the contract, or out
of the contract; the latter phrase allows the arbitration to
deal with things that are not actually in the contract, but
which occurred in the circumstances of carrying it out.

 The only legal prohibition on what the arbitration may

consider is whether the contract itself is binding on
either of the parties.
PROCEDURE
 That is an issue that can only be decided by a court, since
the contract is the source of the arbitrator's jurisdiction.

 The procedure of hearing the case, or deciding it on

written statements, is usually less formal than a court
hearing.

 Arbitration is generally enforceable in the same way as a

court judgment.
APPEALS
 Either party to arbitration may seek to appeal from a
decision to the High Court.

 The court may interfere with an arbitrator's decision by

setting it aside if there was a serious flaw in the process:
this may be anything from bias on the part of the
arbitrator to the arbitrator dealing with matters that
were not supposed to be covered.

 Otherwise, the court may hear an appeal on a point of

pure law, if it gives leave; this means that there is usually
no appeal from the arbitrator's conclusion about the facts
of the case.
APPEALS
 Leave to appeal will be granted if the question of law is
significant.
 There is also provision for the parties to go to court
before the hearing to get a decision on a point of law, and
so prevent the need to appeal afterwards.
 This can only be done if both parties agree, or if the
contract allows a party to refer the matter unilaterally.
 If a matter which could go to arbitration is taken to court,
the court may agree to stop the case in favour of
arbitration, but it may decide any legal issues before doing
so.
OTHER ARBITRATIONS
 The benefits of arbitration, in cost and informality, and
particularly in avoiding bitterness, have led to its being
adopted outside the purely commercial sphere.
 It has been used fairly widely in industrial relations, when
a wage claim, for example, goes to arbitration between
employer and trade unions.
 It has also been suggested as an alternative to court
action in divorce disputes, combined with mediation,
which is an attempt to help the parties come to an
agreed settlement of their respective claims.
 Arbitration is also the procedure followed in the County
Court to deal with small claims.
INTERNATIONAL ARBITRATION
 Arbitration is used between nation states and in
international commercial matters.
 Nation states refer disputes over boundaries, the
interpretation of agreements, and claims over war
damage, to arbitration.
 In Europe, the Hague Convention of 1899 created a
permanent Court of Arbiters.
 Commercial arbitration is used to avoid the need to
litigate in the “home” courts of one party or another, and
often uses a neutral forum.
INTERNATIONAL ARBITRATION
 Most trading nations outside Latin America are
signatories to the United Nations Convention on the
Recognition of Foreign Arbitral Awards, which makes any
arbitration enforceable against the parties in all the
signatory states.
 Centres for international arbitration are situated in
London, Paris, Zurich, Geneva, New York, Tokyo, Hong
Kong S. A. R., and Stockholm.
COURT PERSONNEL
 JURY: a group (usually between 6 and 12) of people who
decide the outcome of a trial. The parties present
evidence to the jury, and the judge instructs the jury
about legal rules.
 MAGISTRATES: are laypeople who sit on a bench of three
with a legally qualified clerk who advises them on the law.
 ADVOCATE: in a general sense, one who pleads for
another in a court of law or other tribunal.
 JUDGE: decides and instructs the jury on the law, and the
jury decides on factual issues.
COURT PERSONNEL
 ATTORNEY: in law, any person authorized by another to
represent him or her.
 An agent who has been granted express authority to bind
his or her principal is called an attorney in fact.
 Such authority is usually granted by a written instrument
called a power of attorney.
 The powers conferred may be general, as when one gives
another a mandate to manage all one’s affairs during an
absence, or special, as when the authority extends only to
a particular business, or is otherwise limited or qualified.
 The term “attorney at law” is used in the United States to
denote a legal adviser or representative in all manner of
business.
COURT PERSONNEL
 SOLICITOR: Solicitors, unlike barristers, practice in
partnerships. This means that solicitors are personally
liable to their clients if they are negligent.
 A popular definition of the distinction between solicitors
and barristers is that barristers do the court work and
solicitors do the office work.
 In practice, however, the majority of court work is done
by solicitors, and barristers do much office work.
 Experienced solicitors may now represent their clients in
the higher courts, but they must first be licensed to do
so.
THE END
QUESTIONS????