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• The emergency of administrative law directly linked to the

transformation of the role of state from laissez-faire state to

welfare state

• In laissez-faire policy, the government's role is to protect the

rights of the individual, rather than regulating business in

any way.

• The term 'laissez-faire' translates to 'leave alone' when it

comes to economic intervention.

• The theory of laissez faire in the 19th century
envisages minimum government control,
maximum free enterprise and contractual
freedom.
• It was characterized as the law and order state in
a sense that its role was limited to the traditional
role of government i.e. as a protector.
• The management of social and economic life was
not regarded as government responsibility.
• But laissez faire doctrine resulted in human misery.

• The unequal bargaining power between labour and

management resulted in exploitation of workers,
dangerous conditions of work and child labour.
• This ultimately led to the spread of poverty and the
concentration of wealth in a few hands
• Finally it came to be recognized that the state
should take active role in ameliorating the
conditions of power.
• This approach gave rise to the favored state
intervention, social control and regulation of
individual enterprise.
• The negative state‘ was then forced to assume a
positive role.
• Contrary to laissez fair philosophy which
emphasized on the limited role of state, welfare state
call for increased role of state.
• The problem was that the increasing role of the state
ultimately resulted in power corruption,
concentration of power in the hand of government
machineries and agencies
• It became recognized that again there shall be
controlling mechanism
• The idea is that concentration of power in the
hands of public officials, unless regulated and
controlled properly and effectively, is always a
potential danger to the rights, freedom and
liberty of individuals
• Administrative law was thus developed as a
response to control abuse of power by
government machineries in the course of
achieving social justice.
• Final point is that the increasing growth of the
two directions, i.e. power vs. control, their
conflict and struggle gave rise to the
emergency of the administrative law

Definition Adm. Law:- Like any other social

science concepts, there is a great divergence of
opinion with regard to defining the Adm. Law
• However, two important must be considared
• Firstly, administrative law is primarily concerned with
the manner of exercising governmental power.

• The decision making process is more important than

the decision itself

• Secondly, administrative law cannot fully be defined

without due regard to the functional approach.

• The function of administrative law should be the

underlying element of any definition
• The ultimate purpose of administrative law is
controlling exercise of governmental power.
• It studies powers of administrative agencies.

• The nature and extent of such powers is

relevant to determine whether any
administrative action is there is an abuse of
power
• It studies the rules, procedures and principles
of exercising these powers
• It also studies rules and principles applicable to
the manner of exercising governmental powers
such as principles of fairness, reasonableness,
rationality and the rules of natural justice.
• It studies the controlling mechanism of power.

• Administrative agencies in exercising their

powers may abuse their power
• Administrative law studies control mechanisms
like legislative & institutional control and control
by the courts through judicial review
• Lastly it studies remedies available to aggrieved
parties whose rights and interests may be affected
by unlawful and unjust administrative actions.
• Administrative law is concerned with effective
redress mechanisms to aggrieved parties.
• Mainly it is concerned with remedies through
judicial review, such as certiorari, mandamus,
injunction and habeaus corpus

Source of Adm.Law
• Administrative law principles and rules are to
be found in many sources.
• The followings are the main sources of
administrative law in Ethiopia.
Constitution :The F.D.R.E constitution contains
some provisions dealing with the manner and
principle of government administration and
accountability of public bodies and officials.
• It mainly provides broad principles as to the
conduct and accountability of government, the
principle of direct and democratic participation
by citizens and the rule of law.
• It also embodies the principle of separation of
powers by allocating lawmaking power to the
house of people‘s representatives, executive
power cumulatively to the Prime Minister and
Council of Ministers, and finally the power to
interpret the laws to the judiciary

Legislation
• Laws adopted by parliament, which may have
the effect of creating an administrative agency,
or specify specific procedure to be complied by
the specific authority in exercising its powers,
can be considered a primary sources for the
study of administrative law.
• The statute creating an agency known as
enabling act or parent act,
• They determines the limit of power conferred on a
certain agency.

• An administrative action exceeding such limit is an

ultra virus, and in most countries the courts will be
ready to intervene and invalidate such action.

• Moreover, parliament, when granting a certain power,

is expected to formulate minimum procedure as to how
that power can be exercised to ensure fairness in public
administration.
• This can be done, on the one hand, by imposing a
general procedural requirement in taking any
administrative action mainly administrative rule
making and administrative adjudication.
• And on the other hand, parliament in every case
may promulgate specific statutes applicable in
different situations.
Delegated Legislation
• Rules, directives and regulations issued by
Council of Ministers and each administrative
agencies are also the main focus of
administrative law

Juridical opinion
 SCOPE OF ADMINISTRATIVE LAW

• The scope of administrative mainly deals with

the boundaries of Adm. Law
• It is about the subject matters that are subject to
administrative law

Public vs Private Law

• The scope of administrative law concerned
whether Admi.Law is private or public.
• The boundaries of administrative law extend
only when administrative agencies and public
officials exercise statutory or public powers, or
when performing public duties.
• These types of functions are called ―public law
functions to distinguish them from ―private law
functions.
• The former govern the relationship between the

state and the individual, whereas the later governs

the relationship between individual citizens and

some forms of relationships with the state, like

relationship based on government contract.

• The point here is that the rules and principles of

administrative law are applicable in a relationship

between citizens and the state; they do not extend

to cases where the nature of the relationship is

characterized by a private law function.

 Procedural Law vs Substantive law

• The focus of administrative law is mainly on the

manner and procedure of exercising power
granted to administrative agencies
•
• The study of administrative law is limited to

analyzing the manner in which matters move

through an agency, rather than the wisdom of

the matters themselves.‘

• In otherworld, it is not concerned with the

merits of the decision, but with the decision

making process.
 THEORETICAL PERSPECTIVE

Red Light Theory

• It is conservative by its nature in sense that it is
control oriented
• It advocates strong role for the courts to review
administrative decisions.
• It considers that the function of law is to
control the excesses of state power
• According to this theory of state, the best
government is the one that governs least.
• Wider power means danger to the rights and
liberty of citizens.
• Hence, the red- light theory serves the function
of controlling excess and arbitrary power, mainly
by the courts.
• Its descriptive feature are two

• On the one hand, it gives much attention on

control of governmental power, and
• On the other hand, it is confident that the
effective controlling instrument are the courts
through judicial review
• It gives put much emphasis on the court and put
the court on the top
 GREEN LIGHT THEORY

• The green light approach considers that the function

of administrative law is to facilitate the operation of
the state.
• It is based on the rationale that bureaucrats will
function most efficiently in the absence of
intervention.
• It is originated from the utilitarian tradition, which
proposes promoting the greatest good for the greatest
• It propose that the state is expected to provide
the minimum standards of provision, including
housing, education, health, social security, and
local services.
• To provide maximum satisfaction for most of its
people, the state should assume a broader role,
hence, should possess wider powers.
• The green light theory broadly supports the
introduction of policies aiming at developing
public service provisions.
• Law is perceived as a useful weapon and an
enabling tool.
 Administrative law vs. other laws

Administrative law Vs. Constitutional Law

• Administrative law is categorized as public law
since it governs the relationship between the
government and the individual.
• The same can be said of constitutional law.

• Hence, it is undeniable that these two areas of law,

subject to their differences, also share some
common features.
• So many administrative lawyers agree that
administrative law cannot be fully
comprehended with out a basic knowledge of
constitutional law.

• As Justice Gummov has made it, the subject of

administrative law can not be understood or
taught without attention to its constitutional
foundation
• This is true because of the close relationship
between these two laws.

• In early England, it is argued that there is no d/c

b/n adm law and constitutional law.
• However, there is inherent difference

• One typical difference is related to their scope.

• Constitutional law deals with the whole
system of government, whereas administrative
law is limited to the exercise of power by the
executive branch of government.
• Administrative law in its scope of study is limited to the
exercise of power by the executive branch of
government.
• The legislative and the judicial branches are relevant for
the study of administrative law only when they exercise
their controlling function on administrative power.

Constitutional supremacy
• Constitutional law, being the supreme law of the
land, formulates fundamental rights which are
inviolable and inalienable.
• Hence, it supersedes all other laws including
administrative law.
• Administrative law does not provide rights.

• It provides principles, rules, and remedies to

protect and safeguard fundamental rights.
 Administrative Vs Human Rights

• Every branch of law has incidental effects on the

protection or infringement of human rights,
whether by constraining or enabling actions
which affect other people.
• Administrative law is, however, particularly
vulnerable to the permeation of human rights
• Like human rights law, it primarily constrains
the exercise of public power, often in
controversial areas of public policy, with a
shared focus on the fairness of procedure and an
emphasis on the effectiveness of remedies.
• At an abstract level, there is a number of
fundamental values underlying human rights law
and administrative law.
• Both systems of law aim at restraining
arbitrary or unreasonable governmental action
and, in so doing, help to protect the rights of
individuals rights
• Both share a concern for fair and transparent
process, the availability of review of certain
decisions, and the provision of effective
remedies for breaches of the law.
• The correction of unlawful decision-making
through judicial review may help to protect
rights.
• Both of them are primarily directed towards
controlling public‘ power, rather than
interfering in the private‘ affairs, despite the
inherent difficulties of drawing the ever-shifting
boundary between the two.
• Both administrative and human rights laws
assert that governments must not intrude on
people‘s lives without lawful authority.
• Further, both embody concepts of judicial
deference (or restraint) to the expertise of the
executive in certain matters.
• In administrative law, for example, this is
manifested in a judicial reluctance to review the
• There are also marked differences between the
two areas of law.

• While human rights law primarily concerned

with protecting and ensuring substantive rights
and freedoms, administrative law focuses more
on procedure
• Human rights law protects rights as a
substantive end in themselves, whereas
administrative law focuses on process as the
end
• Human rights law is underpinned by the
paramount ideal of securing human dignity,
whereas administrative law is more committed
to good decision-making and rational
administration.

Administrative Law vs Good Governance

• Administrative law plays an important role in
improving efficiency of the administration.
• The rules, procedures and principles of manner
of exercising power prescribed by
administrative law are simultaneously
principles underlying good governance.
• They also share a common goal:-one of the
common destinations of administrative law and
good governance is the attainment of
administrative justice.
• The set of values of administrative justice which

mainly comprises openness, fairness,

participation, accountability, consistency,

rationality, legality, impartiality and accessibility

of judicial and administrative individual

grievance procedures are commonly shared by

administrative law and good governance

 Administrative law vs Democracy

• True democracy states that the executive

government would be accountable to the people.

• The term accountability is uniformly applicable

to all branches of government: parliamentary,

judicial and executive accountability.

• The difference is that administrative law is

concerned with executive accountability.

• Another meeting point of administrative law and

democracy is the principle of rule of law.

• Administrative law is rooted in the principle of
rule of law.
• Every truly democratic system of government
rests upon the rule of law, and no system is truly
democratic if it does not
• There are at least two principles that are most
important for a constitutional government
• The first is that the government should be
subject to the rule of law.
• The second is that the government should be
democratic.
• When the rule of law is inconsistent with the
democratic will.
• Such conflicts are resolved at by judicial review
• Judicial review is the means by which the
executive action is prevented from exceeding the
powers and functions assigned to the executive
organs and the interests of the individual are
protected accordingly
• But, unless the scope of judicial review is
properly limited so as to be in harmony with
the principle of separation of powers, it may
encroach upon the values of democracy

• The conflict between democracy and

administrative law is reflected in the challenge
to justify the democratic basis of
administrative agencies
• Administrative agencies make decisions
affecting citizens‘ lives

• They also set general policies affecting an

entire economy through the officials who are
neither elected nor otherwise directly
accountable to the public.
• A common way of reconciling unelected

administrators‘ decision-making with democracy

is to consider them as mere implementers of

decisions made through a democratic legislative

process.

• This is sometimes called the “transmission belt‘

model of administrative law.

• Administrators, under this model, are viewed as

the necessary instruments used to implement the

will of the democratically-controlled legislature.

• Legislation serves as the “transmission belt‘ to

the agency, both in transferring democratic

legitimacy to administrative actions and in

constraining those actions so that they advance

legislative goals.
Administrative Law in Civil Law and Common
Law Countries
• The comparative method is useful in many
branches of law.
• This is particularly true in administrative law,
because of the nature of the leading problems,
related way of controlling government according
to the interests of both state and citizen which is
 common to all the developed nations and
developing countries.
• There is a clear difference with regards to the
scope of and the approach to administrative law
in these two legal systems.
• France is the source of a distinct system of
Administrative law known as -droit
administrative‘, which has a huge impact both on
civil and common law countries,
• In France, Italy, Germany and a number of other
countries, there is a separate system of
administrative court that deals with
administrative cases exclusively.
• In France, droit administrative is a highly specialized
science administered by the judicial wing of the conseil
de etat, which is staffed by judges of great professional
expertise.

• The British system of administrative law, which is

followed through out the English speaking world, has
some salient characteristics, which distinguish it sharply
from the administrative law of other European countries
adopting continental legal system.
• In the Anglo- American system it is that the
ordinary courts, and not special administrative
courts, decide cases involving the validity of
government action.
• This can be attributed to the conception of the
principle of rule of law as developed by Dicey,
which among other things asserts the resolution
of disputes b/n gvn’t and the citizens through the
ordinary courts.
• The scope of Administrative law is also wider in
scope in the continental system compared to its
common law counterpart.
• Administrative law in civil law countries covers
issues such as the organization, powers and
duties of administrative authorities, the legal
requirements governing their operation, and the
remedies available to those adversely affected by
• It also includes subjects like the structure and
composition of the various administrative
agencies, civil service law, the acquisition and
management of property by the administrative
authorities, public works, and contractual and
non- contractual liability of administrative
authorities and public officials.
• In Anglo- American countries, administrative
law is limited to delegation of rule- making
powers, adjudication of administrative cases,
manners and procedures of exercising these
powers, the mechanisms of controlling and the
available remedies.
• It mainly focuses on control through the courts
or judicial review of administrative action by the
• The study of composition and structure of
administrative power is not its primary
concern.
• In Anglo- American countries, administrative
law is limited to delegation of rule- making
powers, adjudication of administrative cases,
manners and procedures of exercising these
powers, the mechanisms of controlling and the
available remedies.
• It mainly focuses on control through the courts
or judicial review of administrative action by the
ordinary courts.
• Hence, the study of composition and structure of
administrative power is not its primary concern.
Wade & Forsyth, commenting on this point have
said:
• An exhaustive account of the structure and
functions of government is not necessary in order
to explain the rules of administrative law.
• Moreover, its domain extends only when public
officials exercise powers and discharge duties,
which are in the nature of public power and
statutory duties.
• In other words, administrative actions which are a
private law nature meaning relations arising out
of contract by administrative authorities and their
extra- contractual liability falls outside the scope
of administrative law.
 CHAPTER TWO

CONSTITUTIONAL FOUNDATION
AND LIMITATION OF
ADMINISTRATIVE LAW
Rule of Law as a Basis of Administrative Law
• The expression rule of law plays an important
role in administrative law.
• It provides protection to the people against the
arbitrary action of the administrative authorities.
• The rule of law‘ has been derived from the
French phrase la principle de legalite‘, meaning a
government based on the principles of law.
• In simple words, the term rule of law, indicates
the state of affairs in a country where, in main,
the law rules. Law may be taken to mean mainly
a rule or principle which governs the external
actions of human beings, and which is
recognized and applied by the state in the
administration of justice
Procedural Elements
• Almost all administrative lawyers or anyone
embarking a research on this dynamic concept
usually starts to treat the subject by espousing the
approach and definition given to it by the renowned
English constitutional lawyer, Dicey. (1888)gave
the most influential definition of rule law which
mainly comprises the following three elements.
Supremacy of Law (Principle of Legality)
• For Dicey (1888 :) the primary meaning of rule of law
is supremacy of the ordinary laws of the land over the
actions of public officials and administrative agencies.
• He wrote: it means, in the first place, the absolute
supremacy or predominance of regular law as opposed
to the influence of arbitrary power, and excludes the
existence of arbitrariness, of prerogative, or even wide
discretionary authority on the part of the government.
• Hence, one aspect of the concept of rule of law
is absolute predominance, or supremacy of law
over arbitrary, government actions.
• Simply stated, it means every administrative
action that should be taken according to law.
• Applied to the powers of government, this
requires that every government authority which
does some act which would otherwise be a
wrong (such as taking a man‘s house), or which
infringes a man‘s liberty (as by refusing him a
trade license), must be able to justify its action
as authorized by law.
• An administrative agency or public official is
required to justify its action by clearly
establishing that it is expressly or impliedly
empowered or authorized by act of the
parliament (i.e. proclamation issued by the
House of People‘s Representatives).
• This means also that in the absence of any
authority, the affected party whose rights and
liberties have been violated as a result of the
action of government, should be able to take the
case to court and have it invalidated.
• However, acting according to law does not
satisfy the meaning of rule of law in the
presence of wide discretionary powers.
Parliament may confer on the specific
administrative agency, wide discretionary
powers that enables the agency to take
unpredictable and in some cases of the arbitrary
actions.
• Hence, the government should be conducted within
the framework of the recognized rules and principles
that restrict discretionary power.
• In many countries, typically in England, many of the
rules of the administrative law are rules for restricting
the wide powers, which acts of parliament confer
very freely on ministers and other authorities.
 Principle of Equality

“ It means equality before the law, or the equal

subjection of all classes to the ordinary law of
the land administered by the ordinary law
courts.”
• One meaning is that disputes as to the legality of
acts of government, are to be decided by judges
who are independent of the executive.
• This aspect of the rule of law, which is typical

characteristics of English administrative law, is largely

based on the principle of the separation of powers

which prohibits interference among the three

government branches.

• Hence, not only civil cases, but also administrative

disputes that should be adjudicated by the ordinary

courts; not by the separate administrative courts.

• Another aspect of the principle of equality is that
states the law should be even- handed between
government and citizen.
• In other words, those laws governing the r/ship
b/n individuals should also similarly be
applicable to the r/ship b/n individuals and
government.
• Government officials should not entertain
different, or special privileges.
• The intensive form of the government and the
complexities of administration necessitate
granting special powers (privileges) to the
government.
• The government should not enjoy unnecessary
privileges, or exemptions from the ordinary law.
Constitution Is the a result of the Ordinary Law
of the Land

“ It means the constitution is the result of the

ordinary law as developed by the courts through
the common law tradition and provides for the
legal protection of the individual not via a bill of
rights, but through the development of the
common law”
• The rule of law lastly means that the general
principles of the constitution are the result of
judicial decisions of the courts in England.
• In many countries rights such as right to
personal liberty, freedom from arrest, freedom
to hold public meetings are guaranteed by a
written constitution.
• However this is not so in England.

• These rights are the result of judicial decisions in

concrete cases that have actually arisen between
the parties.

• The constitution is not the source but the

consequence of the rights of the individuals.

• Thus, Dicey emphasized the role of the courts as

ultimate guarantors of liberty
 Substantive Elements
• The modern concept of the rule of law is fairly
wide and, therefore, sets up an ideal for
government to achieve.
• This concept was developed by the international
commission of jurists, known as Delhi
Declarations, in 1959, which was later on
confirmed at Logos in 1967.
• According to this formulation, the rule of law
implies that the functions of government in a free
society should be exercised so as to create
conditions in which the dignity of man, as an
individual, is upheld
• In recent years, wide claims have been made as
to the proper sphere of rule of the law.
• The presence of representative democracy,
beneficial social and economic services and
conditions, personal independency (privacy)
and independent judiciary has all been taken as
indicators and elements of the rule of law.
• One way to understand the concept is making a
contrast between the two approaches which are
the formal‘ and substantive‘ (ideological)
versions of the rule of law.

• The former is not much m ore than the principle

of legality, and the latter insists on a wide range
of positive content.
Rule of Law as a Foundation of Administrative
Law
• In simple terms, the rule of law requires that
government should operate with in the confines
of the law; and that aggrieved citizens whose
interest have been adversely affected be entitled
to approach an independent court to adjudicate
whether or not a particular action taken by or on
• In these instances, the courts examine a particular
decision made by an official, or an official body
to determine whether it falls with in the authority
conferred by law on the decision maker.
• In other words, the courts rule as to whether or
not the decision is legally valid
• It is in this way that the principle of rule of law
serves as the foundation of the administrative
law.
• It has been repeatedly said that the basic
purpose of the administrative law is to control
excessive and arbitrary governmental power.
• This purpose is mainly achieved through the
ordinary courts by reviewing and checking the
legality of any administrative action.
• Therefore, administrative law as a branch of law,
is rooted in the principle of the rule of law.
• This principle mainly stipulates that every
administrative action should be according to law
• The different control mechanisms of power in
administrative law by preventing government
not to go beyond the authority granted to it by
law ensure that rule of law is respected.
• Hence, the expression Rule of Law plays an
important role in administrative law.
• To clearly understand the relationship between
the rule of law and the administrative law, it is
important to examine a related doctrine of the
administrative law, which is the doctrine of ultra
virus.
• The doctrine to some extent is a derivation of the
principle of the rule of law.
• The former underlines that power should be
exercised according to law.
• The later, goes one step further and states that an
action of any official or agency beyond the scope
of power given to it is ultra virus hence it is
considered as null and void.
• An ultra virus act does not have any binding
effect in the eyes of the law.
• The simple proposition that a public authority
may not act outside its powers (ultra virus)
might fitly be called the central principles of
the administrative law.
• The juristic basic of judicial review is the
doctrine of ultra virus.
• According to Wade & Forsyth an administrative
act that is ultra virus or outside of jurisdiction (in
case of action by administrative court) is void in
law, i.e. deprived of any legal effect.
• This is, in order to be valid, it needs statutory
authorization, and if it is not within the powers
given by the act, it has no legal leg to stand on it.
• Once the court has declared that some
administrative act is legally a nullity, the
situation is as if nothing has happened
• Administrative law by invalidating an ultra virus
act ensures that every administrative action is in
conformity with the law; indirectly guaranteeing
the observance of rule of law
• Rule of law as a foundation of the
administrative law has been briefly explained
above.
• But at the same time, you should also be aware
of the fact that the principle also serves as a
limitation on the scope of administrative law.
Separation of
Powers as a
Limitation on
Administrative
Law
Nature and
Meaning of the
Principle
• The doctrine of separation of powers means that
none of the government, i.e., the legislative,
executive and judicial should ever exercise the
powers of the other.
• It means that the three departments of government
are to be separated and distinct.
• They are to be independent of one another, and
each can exercise only one type of authority,
legislative, executive or judicial.
• According to some writers on the topic, like Wade
and Philips, separation of powers means that the
same person can not compose more than one of
the three departments of the government.
• One department should not control and interfere
with the acts of the other two departments, and
one department should not discharge the functions
of the other two departments.
• Thus, according to them, the theory of separation
of powers signifies three formulations of
structural classification of governmental powers.
 The same person should not form part of more
than one of the three organs of the government;
 One organ of the government should not interfere
with any other organs of the government.
• For example, the executive should not interfere
in the administration of justice by the courts.
 One organ of the government should not
exercise the functions assigned to any other
organ.

For example, the executive branch cannot legislate

laws, and as well it cannot adjudicate cases.
• Given the division of powers, it should also be
noted that the authorities of the three organs or
departments of the government are interrelated.
• They are to a large extent dependent upon
another.
• Ministers are politically responsible to
parliament, and legally responsible to courts.
• Complete separation is found to be not possible.

• A complete separation of powers, in the sense of

a distribution of the three functions of
government among three sets of organs, with no
overlapping or co- ordination, would bring
government to a stand still.
• Similarly, some writers described this situation
as:

“Had the doctrine of separation of powers been

followed rigidly in any country, the development
of modern administrative agencies would have
been impossibility.”
• The division of governmental powers into
legislative, executive and judicial is not an exact
classification.
• It is abstract and general and it is not true only
theory, but it is also impossible in actual practice
to make complete separation.
• There are many powers which may be assigned
to one department, or delegated to a
commission, or agency created for the purpose
of administering a law, while they are inherent
powers of the other departments.
• Thus, the true meaning of the theory of
separation of powers, as it has been modified by
practice, is that the whole power of two or more
departments shall not and should not be lodged in
the same hand, and that each department shall
have and exercise such inherent powers as shall
protect it in its performance of its major as well
as minor duties
Separation of Powers and Administrative Law
• Even though the principle of separation of
powers mainly draws a line between
legislative, executive and judicial functions of
government, administrative law runs, to some
extent, contrary to this principle.
• It violates the principle of separation of powers.

• This could be clearly manifested with little

examination of powers of administrative
agencies, or the executive.

• The power and function of this branch of

government is limited to the execution or
enforcement of laws.
• However, in order to ensure efficient and
effective enforcement of laws, it has become a
compulsive necessity to delegate the executive
and administrative agencies with additional
legislative and judicial powers (functions).
• Administrative agencies are given the power
and function of writing regulations or rules that
have the force of law.
• For instance, the council of ministers, through a
power delegated to it by the house of people‘s
representatives, may issue regulations.
• Similarly, specific administrate agencies can
issue directives in accordance with the power
granted to them by the house of people‘s the
representatives.
• This is clearly against the principle of
separation of powers.
• However, it is justified on practical grounds.

• The lack of time and expertise in the legislature

to provide laws that is necessary to solve a
certain social-economic problem practically
makes to transfer some of legislative power to
administrative agencies necessary.
• Delegation is also justified on the ground that it
makes the administration effective and efficient.
• Agencies could not attain their purposes for
which they are established unless other wise they
have wider power, mainly rulemaking powers.
• Agencies also share some of the judicial powers
which traditionally belong to the ordinary courts.
• They can decide matters affecting individual
rights and freedoms.
• Reversing a license, imposing administrative
penalty, with holding benefits (e.g. pension),
etc. all could properly be called as judicial
functions.
• Most of the judicial functions of the agencies are
usually exercised through administrative courts
which enjoy, relatively, little independence.
• Administrative courts give decision after hearing
the argument of parties by applying the law to the
facts.
• Such function normally belongs only to courts.
• Again this clearly violates the principle of the
separation of powers.
• The justifications are more or less similar with
regard to granting legislative functions.
• Some matters, by nature, are technical and
require detail expertise.
• This expertise is found in the specific
administrative agencies, not the courts.
• The trial process in the courts is also lengthy,
costly and rigid due to the procedural complexity
of rules of the litigation.
• Certain matter may be easily decided by
administrative court with the least cost
• Practical necessities have prevailed over the
principle of separation of powers.
• We have seen how administrative law violates
separation of powers.
• This is accepted due to practical necessities.

• This makes granting legislative and judicial

powers to agencies an exception, or it may be
said ‘a necessary evil’.
• Such powers should be given and exercised
narrowly. i.e. only when doing so necessary.
• In other word, agencies should not be delegated
on areas primary left to the legislature.
• Essential legislative functions should not be
delegated to agencies.
• It should be limited only to the technical or
detailed matters necessary to fill the gap in the
law issued by the legislature.
• In this way, the principle serves to check the
legislature not to delegate wider powers
• In a similar fashion, ordinary judicial powers
should not be given to administrative agencies
or administrative courts.
• It should be limited only to matters which are
technical by nature and require expertise of the
administration.
• Generally, the principle of separation of powers
imposes limitation on the extent of legislative
and judicial power of agencies.
• In addition to this, by making courts not to
question the substance of administrative action,
but only its legality, the principle mainly serves
as a limitation on the scope of administrative
law
• As far as a decision is taken by an agency, which
is within its confines of power, courts should
refrain themselves from reviewing that decision.
• Administrative action that is not beyond the
limits of powers conferred on the decision maker
is not the proper sphere for courts to intervene.
• If they do so, it will be a violation of the
principle of separation of powers
• The FDRE Constitution under art 50 (2) ,
recognizes the notion of separation of power
both at federal and regional level
• It establishes both federal and regional govn’t
comprises of legislative, executive and judiciary
• The Constitution further lists the power of
respective organ. See art 55, 77 and 79
• The power to issue regulation 77(13)
• But the Constitution in nowhere provides the fact
that administrative agencies are delegated with
rule making and decision making power.
• All ministries have been established by the
proclamation. (pro.1263/2022 )
• Their power and responsibilities are provided by
respective proclamation
 CHAPTER THREE

Administrative Agencies: Meaning and

Classification

The Meaning of Administrative

Agency
• There is no universally accepted definition

• Due to structural difference, along with the

growing and complex function of administrative
agencies in the area of legislative and
adjudication, which is beyond their normal
function, in modern state made it difficult to
provide precise definition.
• It is a matter of policy choice of respective polity
• Thus determining whether a certain
government entity constitutes an agency or not
is greatly a matter of government policy so that
the legislature may exclude some organs from
the scope of an agency.
• Generally speaking, two elements are
important to distinguish whether a certain
government entity is an administrative agency
or not.
• Firstly, the nomenclature may be indicative of
the status of an entity as an agency.
• Most agencies have names like department,
authority, commission, bureau, board etc
• Secondly, the government entity should be
empowered to legislate (through delegation), or
adjudicate individual cases, in addition to its
merely executive functions.
• Generally, an entity is an agency if it has
authority to take a binding action.
• Even though the two elements are fulfilled, it is
also important to check whether there is any
express exclusion.
• Some entities may be excluded due to their
nature
• What about the case of Ethiopia?
• Administrative Agency means an Executive
Organ of the FDRE duly established by law
and includes the Executive Organs of City
Administrations accountable to the Federal
Government; (Art 2/1) of proc.no.1183/2020
• What are the executive organ of the gov’t? see
Art 72(1) & 76(1)of the Constitution makes
prime minister, deputy prime minister,
ministers and other determined by law
• Administrative Agency means an Executive
Organ of the FDRE duly established by law and
includes the Executive Organs of City
Administrations accountable to the Federal
Government; (Art 2/1) of proc.no.1183/2020
• What are the executive organ of the gov’t?

• Art 72(1) & 76(1)of the Constitution makes PM,

deputy PM, ministers and other determined by
• We can think of two organs to be included in the
definition stated above.
• First of all, it is to be noted that government
ministries are permanent members of the
Council of Ministers.
• They are thus recognized as the primary
executive organs of the Federal Democratic
Republic of Ethiopia
• Secondly, there are those government bodies,
which do not have the status of ministries but
established by law (i.e. by proclamation or
regulation), which comprises Agencies,
Commissions or Authorities, and other organs
with similar status
• Agencies are created with varying size,
structure, functions and powers.
• Some of them may be established with broader
powers; in charge of regulating a certain sector
of the economy whereas others are
comparatively small in structure and are
charged with a very specific task of
implementing a certain portion of government
policy or programm
• With the exception of few, almost all agencies
are under the direct control and supervision, in
their day to today implementation of
government task law, or policy assigned to them
by the enabling act.
• The remaining very small agencies function
independently outside the direct control of the
executive branch and they are accountable to the
legislature.
• Agencies are classified or categorized based on
such mode of accountability.
• Those agencies directly accountable to the
executive branch are known as executive
agencies, where those accountable to parliament
are called independent agencies.
• In Ethiopia, executive agencies are usually
accountable to certain ministry, or council of
• Independent agencies, are accountable to
parliament, i.e. HPR
• The establishment of these agencies, even
though they need the act of the parliament for
their material and legal existence, their
establishment is predetermined by the
constitution.
• Their creation is not dependent on the will of
the parliament.
• Normally, the parliament retains exclusive
right to bring a certain executive agency into
existence, which includes the power to modify,
increase, or decrease the power and function of
that agency.
• By the same token it is up to the parliament to terminate that
agency.

• However, this is not the case with independent agencies.

• The constitution clearly imposes a duty to establish independent

agencies indicated in the constitution.

• The Federal Ombudsman,

• The Human Right Commission

• The National Election Board

• The Auditor General

• The Population and Census Commission

 Reasons for the Creation of Agencies
• There are various reason that necessities the formation
of administrative agencies

• They are to make government function efficient,

accessible, speed and qualified

• The following are the main reasons for the creation of

the administrative agencies.

Providing specificity:-The legislative branch of

government cannot legislate in sufficient detail to cover all
aspects of many problems.
• The HPR cannot possibly legislate in minute
detail and, as a consequence, it uses more and
more general language in stating its regulatory
aims and purposes.
• It is also true that courts could not handle all
disputes and controversies that may arise.
• They do not have the time or the personnel to
handle the multitude of cases.
• The delegation of such rule making and such
adjudicatory agencies is thus necessary, because
of the fact that they have, specialized knowledge
and expertise to deal effectively with the
detailed, specific and technical matters, which
are normally beyond the competency of
legislative and judicial organ.
 Providing protection
• Many government agencies exist to protect the
public, especially from the business community.
• Business has often failed to regulate itself, and
the lack of self- regulation has often been
contrary to the public interest.
• E,g. the Environmental Protection Authority is
created to regulate environmental pollution.
• In the absence of such agency, business could
not voluntarily refrain from polluting the
environment.
• The same can be said with respect to quality of
private higher education and unjustified and
unreasonable increase in the price of essential
goods. The Ministry of Education and Ministry
of Trade and Industry
• Most of the time, an agency protects the public
from the negative impacts of business through
regulation.
• When a business organization is given
monopoly power, it loses its freedom of
contract, and a governmental body is given the
power to determine the provisions of its
contract.
• We have some government companies that have
monopoly power in Ethiopia, like the Ethiopian
Electric and Light Corporation and Ethiopian
Telecommunication Corporation, which have the
monopoly of power over electricity and
telecommunication.
• Previously, there was no agency regulating such
business.
• Currently, we have the Electric Agency and
Telecommunication Agency, which have the
power to set the rate for the utility.
• Similarly, agencies also regulate transportation,
banking and insurance because of the disparity
in bargaining power between the companies
and consumers.
• The ministry of transport for instance
determines the rate taxi and bus owners may
charge the customer for their service.
• The National Bank of Ethiopia is given wider
power to regulate banking and insurance due to
the difference in bargaining power between
bankers and customers.
 Providing Services
• Many agencies are created simply out of
necessity.
• If we are to have roads, the Ethiopian Roads
Authority is necessary.
• Welfare programs require government
personnel to administer them.
• Social security programs necessitate that there should be
a federal agency to determine eligibility and pay benefits.

• The Ethiopian Social Security Authority is established to

process pension payment and to determine entitlement to
such benefit.

• The mere existence of most government programs

automatically creates new agencies or expands the
function of the existing ones
 Structure and Organization
• The structure and internal organization of an
administrative agency may greatly vary
depending on the government policy and the
programmed it is expected to accomplish.
• Some of them may have different departments
enjoying a substantial portion of power given
to the agency by the enabling act
• Still there may be lower organs labeled usually as
sections with the specific tasks of the day-to-day
governing
• The arrangement of the internal organization will
take so many factors into considerations, like
budget implication.
• The objective is aimed at ensuring efficiency and
effectiveness in administration.
• Since this requires expertise, such task is left to
the executive branch.
• In Ethiopia, the constitution specifically
authorizes the council of ministers to determine
the structure and organization of the
administrative agencies art 77(2)
• Due to the limitation on parliament to deal with
structure and organization of an agency, which is
justified on the lack of expertise, the parliament
does not interfere with the internal form of that
agency.
• The enabling act simply provides in broader
terms, the function, power, duty and rights of the
agency.
• This being the case, it has to be noted that the
enabling act greatly influences the form and
scope of structure and organization that an agency
assumes.
• The type and scope of government program, the
extent of its power and the nature of mission are
factors to be taken in to consideration in
designing the appropriate structure and
 Powers of Administrative Agencies

Nature and Source of Power of Administrative Agencies

At federal and state levels, administrative

agencies gain whatever power they have by
delegation-that is to say, that they don‘t have
inherent, constitutionally mandated power to act.
• Rather, a, higher level of government, normally
the legislature, must delegate some of its own
power to the agency.
• How much power is that? It depends.

• In order for an agency to exist, it must first be

created by the enabling legislation.
What is Enabling Act?
• Enabling act is normally legal framework by
administrative agencies come into existence.
• It is the law by which agencies are legally and
materially created
• Whatever forms a new administrative agency
takes the legislature must enact a statute creating
the agency.
• Even though their establishment has a
constitutional basis, there is n o way in which
they may materially exist
• This statute, sometimes called an agency‘s
organic act, parent act, or establishment act but
more frequently is referred to as an agency‘s
enabling act, is the fundamental source of an
agency‘s power.
• This enabling act is a device that sets up the
basic framework for the agency, the set of rules
and limitations by which it must live.
• These may include a variety of things including
organizational matters, staffing, salaries and
procedures for conducting business.

• The most important is the delegation of power

and its limitation.
• The delegation may be quite broad, giving the
agency virtually complete power within an area
or it may be quite specific and restrict the
agency's authority to a very narrow range of
activities.
• An agency may only exercise authority within the
delegation of authority provided for in its
enabling legislation, or subsequent legislation
granting specific additional power.
Powers of Administrative Agencies:-
 Rule making

 Judicial power and

 Administrative
• The limitation of agency power is an important
concept, since actions taken by an agency which
turn out to be outside the scope of its authority
are not binding.
• A good deal of litigation between agencies and
regulated parties concerns the question whether
the agency acts within the scope of authority
delegated to it, or whether it acts in a manner
 CHAPTER FOUR
Rule Making power: Delegated legislation /Quasi-
Legislation
• What is legislation?

• What is delegated legislation?

• Why for delegated legislation?

• Theoretical objection
• The term legislation refers to the process of
making or enacting and repealing a positive law in
written form by a branch of government
constituted to perform this process i.e legislature.

• The legislative organ of every country has the

power to make laws on every matter concerning
the lives of its citizens and the government subject
to the limitations imposed by the constitution.
• Delegation refers to the act of entrusting another
authority or empowering another to act as an agent or
representative.

• By the same token, delegation of legislative powers

means the transfer of law-making authority by the
legislature to the executive, or to an administrative
agency.
• In line with the power granted to them by the legislature
administrative, agencies can issue rules, regulations and
directives, which have a legally binding effect.

• Delegated legislation means the exercise of legislative

power by an agency that is subordinate to the legislature.

• This subordinate body acquires the power from the act of

the legislature.

• Power is transferred from the principal lawmaker to the

lower body by the mechanism of delegation.
• Delegated legislation‘ is legislation made by a
body or person to whom the parliament has
delegated its power to legislate.
• It refers to a binding law issued by a organ
subordinate to the parliament.
• In Ethiopia, delegated legislations are
regulations and directives issued council of
minister and respective administrative agencies
• They tend to provide detail legislative scheme
setting out matters that are regarded as not
necessary for the parliament itself to approve by
passage of primary legislation.
• Delegated legislation is regarded, at best, a
necessary evil that is only tolerated because of
the growth in functions and requirements of a
modern government.
• This is because of the fact that legislation should
preferably be made by the parliament, and not
delegated to non-parliamentary entities
• A more problematic issue is that delegated
legislation might be regarded as a challenging
concept regarding the separation of powers in
that it is legislative in form and executive in
source‘.
• In Ethiopia, the Federal Administrative Procedure
Proclamation no.1183/2020 is relevant.

• The proclamation does no use the general term “delegated

legislation” agencies' legislative process rather it uses “
directive”

• Directive means “legislative document that is issued by

administrative agency based the delegated power bestowed
up on it by the legislature which affect people’s rights and
interests.

• It includes amending or repealing the existing one (see art2/2)

• The problem is that it does not differentiate rule making
and decision making process of administrative agency.

• There is no clear criteria to determine whether or not a

certain administrative action is rule making or decision
making.

Definitional elements

• Directive is legislative document:- for all purposes

directive is law as the law that is enacted by HPR

• It is a by product of legislative or law making process

 --------Cont'
- by administrative agencies.

• They issued based on the delegated power: administrative

agencies cannot issue directives at their pleasure unless they are
delegated to do so by the legislature.

• That means, unlike administrative decision, rule making is not

their inherent power

• It affects individual rights and interests:- being considered as

a law for all purposes, it creates rights and duties

• It imposes sanction if there is non compliance

• It affects peoples” rights and interests up on implementation

• In fact, not all directives directly or indirectly affect
people's rights and interests

• For instance directive that determine internal

organization of agency

• It applies to amendment or repeal:- amendment is

about making change to existing one whereas repeal
which may be total or partial, revoking or annulling an
effective directives.

• That means legislative procedure of proclamation applies

equally when directive made, amended or repealed
 Why for delegated legislation
• One of the most significant developments of the
present century is the growth in the legislative
powers of the executive.
• Currently, significant volume of legislations are
produced by the administrative agencies
• It is noted that volume of legislations are being
enacted by administrative agencies
• The why for delegated legislation is directly
related the reason for the emergency
administrative agencies in general.
• Transformation of state from minimal role to
maximum role is among the factor
• Modern socio-economic and technological
advancement make modern administration more
compel and complex and flexibility is needed
• A parliament which sits for a limited period of
time and which is required to observe strict
legislative procedures is far from being flexible
without delegating some of its powers to the
executive.
• Therefore, to tackle these problems, an
atmosphere of flexibility is needed.
• Limitation of time : parliament has no sufficient time to
enact law the the required quality and quantity see art
58(2) for example (From final Week of the Meskerem to
Sene 30)

• Technicality of subject matter

• Flexibility

• Emergency
 THEORETICAL OBJECTION

• Delegation is indispensable and inevitable due to

practically convincing needs,
• However, it is not free from theoretical objection

• Principle of non delegablity is the main

constitutional objection raised against delegation
of rule making power to administrative agencies
• This principle holds that power delegated to one
branch may not be redelegated to another.
• The idea is that people elect their representatives
based on their fitness, knowledge and ability to
represent their interest.
• It is a generally accepted rule law making
power is given by the people cannot be
delegated to another individual or organ, which
does not stand in a direct relation to the people.
• It is a cardinal principle of representative
government that the legislature cannot
redelegate the power to make laws to any other
body or authority.
• Commonly cited sources of the rule of non
delegation is the common law maxim delegates
potestas non potest delegari which means that a
delegate can not further delegates his power.
• The maxim indicates that power that has been
delegated originally may not be redelegated.
• Another objection to delegation of power is
based on the doctrine of separation of
powers.
• The doctrine of separation of power is an
essential principle underlying the constitution
and that the powers entrusted to one
department should be exercised exclusively by
that department without encroaching up on the
 PROCEDURES OF ADMINISTRATIVE RULE MAKING

• Administrative rules/delegated legislation are made

outside the proper lawma king body

• Unlike the ordinary laws or parliamentary enactments,

they may not be required to meet the requirements of
legislative procedures.

• This may have the tendency of paving the way for

uncontrolled administrative discretion thereby jeopardizes
individual rights and the constitutional order as a whole
• Thus, whether it is formal or informal, there high
demanding to have some procedure that process of
administrative law making process shall comply with.

• These procedure may be informal where they are not

compiled in a very comprehensive way or formal where
they are compiled in a very comprehensive way.

• In fact, there is no common approach in this regard.

There is no one approach that fits all”
 INTRODUCTORY REMARKS
Any administrative agency can adopt directive on the basis
of Power Delegated to it by Law.(art 4(1))
• This provision underline the fact that it is only through a
duly granted delegation that an administrative agency
can issue a directive.
• This is to mean that an administrative agency needs to be
granted an explicit power of issuing directives through its
establishing law or any subsequent law.
• Administrative agencies do not have an inherent power of
legislating.
• This is for the simple reason that the principle of
separation of powers allocated legislative power to the
legislative organ.
• Moreover, an agency should follow the procedures
provided for under the proclamation in enacting directive

• An administrative agency may issue directives only

through the procedures provided by this Proclamation. Art
4(2)

• This is to ensure the transparency, accessibility,

predictability and other deficiency of administrative rule
making .
• Accordingly, unless there are exceptional circumstances
justifying derogation from the rules, upon the coming into
force of this proclamation, any administrative agency should
strictly follow the procedures stipulated under the
proclamation when issuing directives or other instruments
conforming to the definition of directives as provided under
this proclamation

• For example as per art 3(3, National Bank does not bound
by this proclamation when it enacts directives concerning
exchange rate, interest rate of the country and other similar
secret issues.
 Time of issuance art 5

• The legislature uses a variety of methods when delegating

responsibilities to administrative agencies.

• Sometimes the delegation is specific and clear; in some

case, delegation is formulated in a more general manner.

• In the case of the former one the proclamation determine

three months whereas reasonable time for the latter one.
• Therefore, if an administrative agency is required by law
to issue a specific directive, it must issue such a directive
within three months.

• The reason for choosing the three-month period as

reasonable is the fact that the HPR has determined in its
working system that implementation directive should be
issued within three months from the promulgation of the
parent law.
• On the other hand, if, the delegated power of issuing
directive comes in the form of a general delegation, the
relevant administrative agency should issue a directive
within a reasonable period.

• The obvious question is how can one determine a

“reasonable period”.

• First of all, the need for issuance of a directive in a given

context is to be determined on a case by case basis and
based on practical needs that may arise in the process of
implementation.
• Secondly, once the determination for the need to issue a
directive is made, the scope and depth of further
research needed to develop the directive, the scope of
the subject matter and the need for specialized expertise
required, the time required to adequately obtain and
incorporate stakeholder feedback on the subject matter,
the number of other administrative agencies that may
be involved in implementing the directive, etc. are
factors that can be considered.
 Consequence of failure to issue directive

Article 4(3)

Regarding matters affecting his right or interest, any person

has the right to request an administrative decision even
though an administrative agency has not adopted a directive.

Article 4(4)

Failure on the part of an administrative agency to issue

Directives legally empowered to adopt shall not be a reason
to deny services or rendering an Administrative Decision.
• If the failure to issue directives is taken as valid defense to
deny governmental service, it would enable administrative
agencies to deny service to citizens due to their own
omission.

• This is designed to ensure that citizens are not denied the

rights they are entitled to for the mere lack of failure to
enact directive .
Article 6(1)

• Any person may ask the agency through written application to

adopt a directive, when an administrative agency failed to adopt
a directive it was mandated within a reasonable period of time.

Article 6(2)

• An agency which receives a petition for adoption of a Directive

shall commence the process of adopting [the Directive] a rule
within 30 days or deny the petition, stating its reasons.
• This article provides an opportunity for citizens to initiate
the process when they are of the view that the
administrative agency has failed to issue a directive in a
timely manner.
• In such cases, the administrative agency shall begin the process
of issuing the directive within thirty working days in
accordance with the procedure set out in the proclamation.

• It has to be noted that is the process that should begin

within 30 working days, as the actual issuance may take
longer.
• Because, the notification, the written and oral consultation
process required by the Law is likely to take longer duration.

• However, in some cases the administrative agency may

considers that the proclamation in question may be self-
executed, or existing legal frameworks sufficiently address the
concerns raised by the petitioner or there are other adequate
justifications.

• In such cases deny such a petition but they are required to

provide they reason.
 Maintenance of Registry Article 7 (1)

At the time of adopting a directive, an administrative agency shall keep

a record/file containing the following:
 The subject matter of the directive being considered and time line of
major steps
 An information regarding the status of the draft directive in the
process of adoption
 Notices published in relation to the adoption of the draft directive

 A period of time within which the public may comment on the draft

 Comments received in accordance with Articles 8 and 9 of this

Proclamation and positions taken regarding the comments.
Article 7 (2)

Any person may inspect or get a copy of the records

organized in accordance with Sub Article (1) of this Article,
against payment of expenses.

• This art incorporates of two fundamental points i.e the

fact that any directive making information must be
carefully recoded and deposited and any interested
person access those information.
 The proclamation intended to serve two basic purposes

• The first is that both the agency and persons who are
interested in the directive to be adopted can easily find
information about the process and its content in an
organized manner.

• Even in the context of a high turnover of officials, it

allows for the maintenance of institutional memory so
that the institutions can operate smoothly without being
adversely impacted by the change of officials.
• In this way, both the institution and the concerned parties
will be able to be competently prepared for the
implementation of the directive subsequent to its
approval.

• Second, in case where the validity directive is challenged

on account of procedural irregularity, such a registry can
serve a reconstituted proof for all parties concerned.
Notice Art 8

• One of the main purposes of this proclamation is to

ensure public participation, transparency and
predictability in the formulation and implementation of
directives.

• A quick survey of rulemaking practices in many federal

agencies demonstrated that the system is secretive and
does not exhibit a measure of meaningful stakeholder
participation
• This state of affairs needed a fundamental change.

• Thus, the requirement of notice whenever an

administrative agency prepares a directive is designed to

enable citizens to participate in a meaningful way, in a

way that affords an opportunity to have a meaningful

impact and to ensure that the directive is developed with

qualitative input from a variety of sources.

• Therefore, the administrative agency is required to give

adequate notice in advance of the plan to draw up and

implement the directive.

• One of the reasons for making public notice mandatory

is to enable anyone who is interested to participate in the

consultation process both through written submissions

and/or oral hearings rather than limiting the consultation

within the narrow circle of formally invited guests.

• Such public notice must be published in a newspaper of

wider circulation in order to ensure its wider reach.

• The phrase newspaper with wider circulation should not

be understood to mean government-owned newspaper.

Rather, it should be determined taking not

only the number of newspapers published into

consideration but also the geographic coverage of the

country as much as possible.

• Regarding the minimum content of the notice, it is not

always necessary to publish a full copy of the draft

directive.

• However, in situations where the administrative agency is

engaged in the process to amend a few provisions, it is

assumed that all of these provisions may be included in the

notice.
Article 8
An agency shall publish a notice containing the following
information on a newspaper with wide circulation, its
website and other media, prior to the adoption of a directive
• The legal basis to draft the law and the subject matters to
be covered by the draft
• Indicating that persons may get a copy of the draft and
where they may access it
• Where, when and how persons may give comments on the
draft
• Where, when and how persons may get access to the
records kept in accordance with Article 7 of this
Proclamation.
 Circulation of Directive of further feedback art 9

• One of the problems that has been repeatedly identified

lack of coherence and even a prevalence of contradiction
among directives issued by different administrative
agencies.

• To reduce this problem, it is stipulated that in the process

of issuing a directive, in addition to the public notice, an
administrative agency is required to directly collect the
opinion of relevant administrative agencies and other key
stakeholders as much as possible.
• This implies that, beyond government institutions, efforts
should be made to identify other institutions and civil
society organizations as the case may be.

• For comments submitted in accordance with this Article

to be considered in the adoption of a directive, they
should be submitted in a written form within the time
limit set by the Agency.

• To ensure that such a collection of views is meaningful,

it is stipulated that the Agency that prepared the draft
should give sufficient time to stakeholders
• The size of the draft directive, the technical complexity,
and other considerations should be taken into account in
determining the amount of time it takes to adequately
understand and offer feedback.

• But, it should be noted that it should not be less than 15

working days.
 Public deliberation art 10(1)

• The practice of legislative drafting in Ethiopia reveals that

public hearing on draft legislation is an exception rather
than a procedure that has to be fulfilled in every process to
adopt a directive.

• Providing the opportunity to give oral comment on drafts

has been the discretion of the Agency or upon demand by
a given number of stakeholders to do so.
• In this proclamation, however, taking into account the fact
that the majority of our communities’ lack of technical
capacity and experience to engage in written form, and
the near absence of strong and independently organized
civil society organizations such as consumer associations
and other organized community groups, public hearing on
draft directives is established as a mandatory procedure
that has to be met in every single instance of adopting a
directive.
• Depending on the number of participants and the scope
of the topics covered in the draft directive, sufficient time
needs to be accorded in order to enable meaningful
engagement.

• Failure to do so will make the procedure just a nominal

participation, and as such, unacceptable.

• Occasionally, it is normal to encounter situations where

presenters monopolize the time allotted and do not
provide an opportunity for participants to comment.
 Public deliberation on the Draft
Article 10(1)
After the expiry of the date for receiving written comments,
the Agency shall organize a public forum open for all
interested persons and gather inputs.
Article 10(2)
Persons who have not had the [opportunity] chance to
given comments in accordance with Article 9, may
submit written comments at the hearing.
Article 10(3)
The Agency shall ensure enough time is allotted for
different views to be aired.
 Exception

• There are some cases where trying to complying with the

above mentioned procedural steps resulted in negative
consequences.

• Therefore, the proclamation provides some exceptions

whereby an agency may be exempted from the procedures
provided from art 7-10
 Where there are emergencies and time does not allow to
go through the requirements
 Explanatory note Art 14

Any agency adopting a directive is required to prepare an

explanatory note outlining
 The purpose of the directive and the legal basis for the
directive
 Where there are differences of content from the draft
circulated through notice and the directive adopted, a
note explaining the changes and the rationale thereof;
 A summary of comments on the draft and measures
taken in accordance [with it].

Why it is important?

• To ensure that any ambiguous or vague clause in the

directive is interpreted appropriately,
• It helps to verify whether or not the agency took its
obligation to consider comments given pursuant Article
12 seriously as well as assess the existence of significant
differences in Article 13 above.
• To properly understand the process by which the
directive has passed through.
• It also allows the content to be understood not
only by a professional lawyer but also by any
literate person,
• Whenever future amendment is needed to the
directive, it would serve as an essential document
• If this is the case, a simple reference to the parent
law may not be sufficient
• There must a detailed exposition of the objective that
the directive and its parent law aim to achieve.
• The explanatory note should outline any
discrepancies in the content of a draft directive
published for comments and the final one to be
adopted, along with a summary of comments and
justification for the changes, if any.
 Registration of Directives art 16
• One of the main objective of the proclamation is
to ensure that all acts of administrative agencies
are done in a transparent manner and respecting
the principle of legality.
• Studies consulted during the drafting phase of
the proclamation have shown that there are
agencies that are not able to specify how many
active directives they have; and are not capable
to state whether or not they have directives
governing a certain subject matter within their
competence.
• One of the ways to rectify this drawback is
thought to be a requirement that all directives
be under the custody of a central database.
• Thus, agencies should send the directives they
intend to implement before the intended date of
coming into force. Art 16(1)
• This will facilitate easy administration of the
directives in a centralized fashion.
• This allows easy determination of which
directives are still active, which are amended or
repealed.
• It also allows to easily identify which directives
are adopted in keeping with the legal
requirements from those that are not.
• That the directives will be registered along with the
corresponding explanatory notes is facilitates
accessibility of information for anyone who may have
suspicion about the process of their adoption or who
may want to simply get a better understanding of the
contents of the directives.

• One of the reasons for establishing a central registry is to

facilitate easy access to these documents by users.

• The Attorney General, on its part, has the
obligation to assign a serial number and register
the directives sent to it as well as promptly
confirm the registration to the Agency concerned.

• This will have a bearing on the date of

effectiveness for the directive pursuant to Article

18
• Moreover, the Office of the Attorney General has

the obligation to publicize and ensure public

access to the directives and explanatory notes it

compiles.

• This proclamation only aims to govern the

issuance of directives subsequent to its coming

into force.
• However, leaving the rampant mal-administration

that existed prior to it, as it then existed, would be

extremely unfair and may even jeopardize the

reforms that this proclamation aims to achieve.

• On the contrary, if all directives issued prior to
the coming into force of this law were to be
required to conform to the procedural
requirements of this proclamation, the
overwhelming administrative burden it would
create is not to be understated.
• Hence, a middle-ground approach is chosen.
• Accordingly, all directives that existed prior to
the coming into force of this proclamation will
only be required to be registered and publicized.
• This means they are not required to be reissued
in accordance with the procedure stipulated by
this proclamation.
• Hence, agencies are expected to send to the
Attorney General all existing directives for
purposes of registration and dissemination
within 90 days from the coming in to effect of
this law under the pain of loss of validity.
• A joint reading of this rule in conjunction with
the stipulations under Article 18 implies that
directives that are not duly registered shall
become invalid upon the expiry of this period.
• Should this scenario occur, and a directive
becomes invalid, the concerned agency may
initiate the directive issuance procedure under
this proclamation to adopt it new if it
determines that it still needs such a directive.
See Art 18(1)
•
 Accessibility of Directives Art 17
• For a long time, access to directives has been a
key problem of good governance in Ethiopia.
• Because it was not, unlike proclamations and
regulations, required to officially be published
on the Negarit Gazett.
• Rather it has been a legal instrument to be
accessed only through personal connections or
good will of implementing agencies.
• To mitigate this, though this proclamation did
not decide to go as far as requiring a publication
in the Negarit Gazett, it has laid down multiple
outlets for a greater level of accessibility to
directives for the public.
• First, as has been indicated above, the Attorney General is
obliged to publicize all the directives it has received.

• Second, the Agency which has adopted the directive is also

required to ensure accessibility of its directives through
various modalities.

• It can publish a compilation of its directives and

disseminate them to libraries, or can have them deposited
at its own offices where interested persons can read and
take notes as the case may be.
• Though Article 17(1) requires that the Attorney General
publish directives on its website, it does not preclude any
other additional means of dissemination.

• One of the reasons that such an obligation is directed at the

Attorney General is owing to its general mandate.

• Under its establishment Proclamation No. 943/2016,

Article 6 (5) (b), it is entrusted with the obligation to “carry
out codification, compilation and consolidation of federal
laws; collect regional laws and consolidate them as
necessary”.
• With regard to promoting access to directives, in
addition to the obligations placed upon the office
of the Attorney General, each agency that adopts
a directive has a broad set of obligations.
• The first of this is creating a possibility for
anyone who may want to get a copy of the
directive to be able to do so against payment of
fees
• The Agency is also required to publish the
directive on its own website.
• Moreover, they have to send copies to relevant
stakeholders and agencies.
• The stakeholders who are entitled to receive
copies of directives from agencies could, for
example, be representatives of a section of the
public on whom the directive is intended to be
applied, or associations, or other organizations
with particular focus on the subject matters
covered by the directive.
 Implementation of the Directive art 18

• It is a well-known principle that, the proclamation and

regulations in the Ethiopian legal system come into force
from the date of publication in Negarit Gazett.

• The proclamation does not require publication of

directives on the Negarit Gazett.
• The fact that directives are much more numerous and
come in quick succession, as well as considering that
they are more frequently repealed or amended, tying
the date of effectiveness to date of publication on the
Gazette could create a lot of problem.

• Respecting the principle that no law shall be

implemented before its publication, the proclamation has
devised its own course.
• According to the proclamation, a directive is required to
meet two criteria to become enforceable.

• The first is to be registered at the Attorney General in

accordance with Article 16.

• The second is being uploaded to the website of the

administrative agency in accordance with Article 17 (2
(b)).
• If one of these conditions is not met, the directive will not
enter into force, and hence, a directive that is not
registered with the Federal Attorney General and is not
available on the Agencies’ website may not be enforced.

• Should an agency implement a directive that does not

meet these two criteria, any person may apply to the court
for its nullification.
• However, it needs to be noted that just because a
directive is registered with the Attorney General and
posted on the website does not mean that it is legal
once and for all.

• The directive can still be challenged unless it has been

established that the preliminary procedures set forth in
sub-section two part three of the proclamation has been
complied with.
 Review of Directive art 19
• Several administrative agencies do not know how
many directives they have in force with full
certainty.
• Moreover, often due to overlapping and
successive directives on similar subject matters,
it can be difficult even for officials of the agency
to properly understand and implement the
• Basically, one of the reasons administrative
agencies are allowed to enact laws in the form
of directives is to enable them to make changes
on a regular basis to adapt to fast-changing
circumstances without having to go through the
long and complex formal legislative process.
• Therefore, directives are expected to be more up-to-date
than proclamations and regulations

• It is also believed that they need to be improved on a

regular basis by remedying problems encountered during
implementation.

• Article 19 of the proclamation is meant to enlighten

agencies that they have mind-changing circumstances.
• Finally, in a similar manner to administrative
agencies routinely conduct an inventory of
their fixed and recurrent assets and dispose of
unnecessary stock from their balance sheet,
they are expected to review their directives
from time to time and take action.
• Just as the legislative conducts and monitor the
property management of agencies, it should evaluate
agencies on their management of the stock of
directives.
 CHAPTER FIVE

ADMINISTRATIVE DEC ISION

• Conclusiveness this is to mean that the agency‘s

decision must have a binding effect on the parties in
dispute without any need for confirmation by any other
organ.

• The second test for identifying whether a certain

agency‘s function is judicial or not relates to the
availability of some sort of procedural attributes.
• While exercising their adjudicatory powers,
administrative agencies normally follow preset
procedures.

• The procedure may be formal, which is more or

less similar to the ordinary court procedures, or
informal, which is a simplified procedure that
provides only the minimal procedural safeguards
to the persons subject to the decision.
• This to mean that the decision making process is not arbitrary,
rather it is guided by procedures adopted in advance.

• The third important test to the presence or absence of

interpretation and application of legal rules.

• interpretation of laws, application of laws to resolve specific

factual disputes and declaration of laws are the core functions of
the judiciary whether it is a regular court or an administrative
body.
• it has to be tested whether or not the decision passed is
based on preexisting legal rules or other prescribed
standards.

• The point of controversy could be legal or factual that

involves the interpretation and/or application of the
governing laws to the controversy or mere declaration
of the meaning of laws in issue.
“Administrative Decision” means decision
issued by an administrative agency relating
to persons rights or interest in its day-to-day
function, excluding issuance of Directives
 Day-to-day Activity

• Administrative agencies are entrusted with powers

and functions by their establishing laws and related
substantive laws.

• The agencies make decisions every day when they

exercise these powers and functions.

• This decision making authority is their inherent

power.
 Affecting the Rights and Interests of Persons

• The powers and functions of administrative agencies

may or may not relate to the rights and interests of
persons.

• The agencies may be entrusted with powers and

functions to propose laws and policies to the
government, to execute enacted laws and policies, to
execute development plans,
to license and regulate activities, to give public service, to

employ and administer employees, to sign and execute

contracts, to own and administer property, and so on.

• They make decisions every day when they exercise

these powers and functions.

• The proclamation applicable on the decisions which

directly or indirectly affect the rights and interests of

clients of the agencies and are not covered by other

• the law and policy proposing; the law, policy and plan executing;

and the employment, contract and property administration

functions and decisions of the agencies which are covered by

other laws are not governed by the administrative procedure

proclamation.

• The right or interest affected by the administrative decision may

be monetary or non-monetary as well as the person whose right or

interest is affected may also be a natural or legal person as defined

by the proclamation.

•
• It must be underlined, however, that the major day-to-day

activity of an administrative agency is rendering

administrative decisions.

• In fact, decision making, unlike the issuance of a

directive, is an inherent power of administrative

agencies.

• This attribute makes it different from issuance of

directive that requires delegated authority to undertake.

• Administrative decisions have positive or negative
impacts on service recipients with respect to their
rights and interests.

• Thus, it is considered appropriate that such

governmental actions should be regulated by law.

.
 INITIATION ART 20

• The administrative procedure proclamation is applicable to administrative

decisions which directly or indirectly affect the rights and interests of
persons.

• Due to this, they should be initiated by the person owning the rights and
interests.

• However, the initiation of an administrative decision which does not require

the personal presence of owner of the right or interest can be made by an
agent since the law of agency allows handling of affairs through an agent.
 By the Administrative Agency

• An administrative decision can also be initiated by the

administrative agency itself in the exercise of its powers and
functions.

• This self-initiation makes an administrative agency different

from a court.

• A court makes judicial decision only when requested by an

interested person.
• An application for administrative decision should be
made in writing.

• The writing can be a handwritten or machine print on

paper which is submitted to the agency in person,
through a registered post or an electronic
communication submitted to the administrative agency
by email or means of uploading to the website of the
agency.
• This helps to avail evidence for both the administrative
agency and the persons who seek the administrative
decision.
• It also contributes to modernization of work of the
administrative agencies.
 Head of the Agency

• The Head of an administrative agency gets decision-

making power by law.

• Most laws establishing administrative agencies

expressly confer the powers and functions of the
agencies to the heads.

• The powers and functions of the agencies are also

often
 SCOPE

• The person making administrative decision should

verify the existence and scope of legal authority to
make the decision.

• An administrative decision passed without legal

authority or beyond the scope of authority is illegal.

• This authority emanates from the powers and functions

entrusted to the administrative agency by its
establishing and related substantive laws.
Article 25

[The] person [making] an administrative decision shall

balance the individual interest of the person regarding
whom an administrative decision is being [made and] the
public interest [included] in the objectives [and powers
and functions] of the agency.
Good Faith Article 29

The person [making] administrative decision should

make [it] in good faith.

• The person making administrative decision is

authorized to exercise discretion within the scope of her
authorization.

• She may exercise this discretion with a view to

fulfilling or hurting the right or interest of the applicant.
• Good faith means exercising this discretion with a view
to fulfilling the right or interest of the applicant.

• It is not acting with bad intention to adversely affect the

right or interests.

• Good faith implies that the person making

administrative decision should prefer the option which
best fulfills the right or interest of the applicant unless
there is substantive or legal ground and evidence to
prefer otherwise.
 Chapter Six
Judicial Review
Under this Chapter the matters such as:
who shall file petitions for review
to which organ petitions for review ought to be filed to
 The period of time within which such petitions must
be filed, and
the procedures to be followed to handle and decide
such petitions mainly will be dealt with.