CHAPTER FIVE:

ADMINISTRATIVE DECISION-MAKING (ADJUDICATION)

PRINCIPLES AND PROCEDURE
Chapter Outline:
- Nature, meaning, forms and rationales of adjudication
- Tribunals: meaning, nature and jurisdiction
- Structure and organization of tribunals in France, Britain,
Australia and Ethiopia
- Qualification, appointment and dismissal of judges
- Inquiries in Ethiopia
 Chapter 5
Judicial Power of Administrative Agencies
• Adjudication is the process of hearing , trying, and determining
all sorts of cases brought before an adjudicative organ
• Naturally , this power is vested upon courts. Article 79
• Administrative organs which are vested with judicial functions
are known as Administrative Tribunals
• There is constitutional recognition
Article 37/1/ and 78/4/

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Administrative adjudication Vs judicial adjudication

• Incidentally
• Limited in scope
• Limited to the specific function to which the
tribunal is arranged
• Not bound by the strict proceedings of courts
• The members of tribunals are usually experts from
different fields as they are focused on question
of facts.

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• What are the peculiar features of an agency‘s adjudicatory
powers vis-à-vis its executive and legislative counter parts?
• General Objective Tests
Test I - conclusiveness of the agency‘s decision.
• Judicial act may be differentiated from the rest of other
administrative functions in that if the decision has conclusive
effect, binding nature, have force of law without confirmation by
another body

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• It must have a binding effect on the parties in dispute
without any need for confirmation by any other organ,
• without awaiting for further confirmation for any
other authority,
• Conclusiveness of the decision should not be taken as
the only decisive test.

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Test 2 - Availability of some sort of procedural
attributes
• Such contentious cases must be resolved conclusively
based on preset procedures
• Guided by procedures adopted in advance.
Test 3- Presence or absence of interpretation and
application of legal rules
• Whether or not the decision passed is based on pre-
existing legal rules or other prescribed standards.
• Contentious cases must be resolved conclusively
based on existing legal rules, principles.

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• To summarise, the judicial act of administrative agencies can
be identified by reference to their formal, procedural or
substantive characteristics, or by a combination of any of
them.
• So judicial act may be differentiated from the rest of other
administrative functions in that if the decision has conclusive
effect, binding nature, have force of law without confirmation
by another body, solve questions of law or fact, the function is
treated as judicial

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Exceptions- 2(3), 1183/2020
• Decisions of the FDRE President, for example, granting amnesty
• Decisions of the executive organ of the government related to the
conduct of the military and foreign affairs
Why
• They are discretionary/ prerogative by their nature.
The legislature and the judiciary, despite their role in developing and
shaping administrative laws, are not subject to the regulation of
administrative law
Thus, decisions made by these organs of the government in their respective
spheres of powers are not within the domain of the administrative
adjudication.
Even decisions of the administrative agencies establishing rules and
regulations are excluded from the spectrum of the administrative 8
adjudication
Forms of Administrative Adjudication
A. Formal
Formal adjudication involves an almost full-blown trial
type hearing
Oral hearing must be always there.
• Notification of charges;
• Notification of hearing;
• Representation by an attorney;
• An impartial tribunal/administrative law judge;
• Presentation of evidence;
• Cross examination of the witness of the agency;
• A decision based on the regulation
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Forms of Administrative Adjudication
B. Informal
- Informal administrative adjudication offers only the
minimal statutory safeguards of notice and hearing
- Hearing in the majority of cases does not involve oral
hearing, but written submission of opinions, arguments,
data may suffice
• The informal mode of adjudication, although it may vary
from county to country and from case to case in terms of
content, tries to provide the minimal statutory
safeguards for the protection of fundamental rights of
individuals.

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Minimum Procedures to be followed by
Administrative n Tribunal
1. Fair hearing
The opportunity to defend oneself must be given.
The ingredients of fair hearing
 Notice – it is a starting point of hearing. The hearing must
be started with notice by the concerned authority to the
affected person. - The right to get notice .
The proceedings started without giving notice to the
affected party, would violate the principles of natural
justice.

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The notice must give sufficient time to the person
concerned to prepare his case.
The notice must be adequate and reasonable.
 the right to present once case and evidence
 the right to rebut adverse evidence
2. Rule against bias
3. Final decisions
4. Appeal
5. Review

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Tribunals and the Tribunal System
Meaning and Nature of Tribunals

• The term administrative tribunal is a tribunal with all its attributes, but its
jurisdiction is limited to resolving disputes of governmental nature as
distinguished from disputes of private character.
As suggested by Garner and Jones (Administrative Law), tribunals have the
following five hallmarks:
• Independence from administration;
• Capacity to reach a binding decision;
• Decision taken by a panel of members (as opposed to a single judge);
• A simpler procedure than that of a court; and
• A permanent existence. 13
Tribunals and the Tribunal System
Meaning and Nature of Tribunals

• Different jurisdictions use different terminologies having regard to the

social set up of their own systems.
• The Federal Administrative Procedure Act of America use the term
Administrative Law Judges to connote those persons who adjudicate
administrative disputes.
• Whereas the French uses “Conseil d’Etat”, “Administrative d’Appel” and
“Tribunaux Administratifs” to refer to their three-tier hierarchy
administrative courts that adjudicate administrative disputes.
• Other authorities also use the term “tribunal” with or without the
designation “administrative” to denote the same thing. 14
Reasons for conferring adjudicative power of
Administrative Agencies
(Advantages)
 Specialization - important for appropriate and
effective justice
they have specific functions unlike courts
 Flexibility
 Accessibility – convienance
 Speedy/expediency – better to dispose cases timely
 Minimize burden of courts
 Less expensive- cheaper than court litigation

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Arguments against Adjudicative Powers of Admin. Agencies
(Disadvantages)
1. Lack of legal experts- They consist experts and heads that may
not possess any background of law.
- Such persons do not know how to interpret and apply laws
Counter argument
Tribunals in most cases are engaged in determining facts rather
than interpreting and applying rules. Besides appeal can be lodged
to the courts from administrative tribunals on question of law

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2. Partiality- Related with independence of Administrative agencies
- they can not be free from political influences
Department bias / they may tend to decided in favor of their
department/
Counter argument
Administrative procedural rules ,however, demand agencies to be
impartial
3. Against the principle of separation of powers and rule of law
- Adjudication is the primary business of ordinary courts

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The Organizational Structure of Administrative Tribunals
 The organizational structure of administrative tribunals is different
from jurisdiction to jurisdiction.
 In some countries like France, there are tribunals of general
jurisdiction that are hierarchically organized in a way that
corresponds to the three-tier ordinary court structure.
 But many other countries appear to form tribunals of special
jurisdiction here and there to address specific problems.
(Britain and Austrian models)

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 5.5.3 Ethiopia

• The Civil Service Commission Tribunal that assumes appellate jurisdiction on

complaints of civil servants brought from the various government organs or
bureaus governed by the civil service law,
• The Social Security Appellate Tribunal that entertains appellate jurisdiction on
complaints related to social security benefits and
• The Tax Appeal Commission that hears tax related disputes on appeal are typical
examples of the specialized jurisdiction administrative review tribunals.
• The Labor Relation Board that hears industrial/labor disputes of collective
nature between employers and employees is another example of special
jurisdiction tribunal, although it may not fall within the technical definition of
the term “administrative” tribunal as it is dealing with disputes between two or
more individuals based on the ordinary substantive law of the country as
contrasted to the administrative law.
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5.5.3 Ethiopia
• In Ethiopia, like in many common law countries, there is no
integrated administrative justice system.
• There are some sector wise tribunal-like adjudicating agencies/
known by different names such as:
- disciplinary committees,
- boards,
- commissions and so on that have the first instance (original)
jurisdiction in particular aspects of the administration.
• There are also tribunals that exercise appellant jurisdiction in
particular sphere of the administrative field. 20
5.6 Qualification, Appointment and Dismissal of Administrative Judges

Ethiopia:
 There are different tribunals and tribunal-like adjudicating agencies of special jurisdiction.
 In the Federal Democratic Republic of Ethiopia Many of the first instance jurisdictions
adjudicating agencies are found within the umbrella of many different administrative heads
known with different names such as disciplinary committees, boards, and so on.
 There are also second instance (reviewing agencies/tribunals) that are formed by statutes to
hear grievances on appeal in different areas of the administration activities.
 The Federal Civil Service Commission Appeal Tribunal, the Social Security Appeal Tribunal
and the Tax Appeal Tribunal are the prominent ones.
 There are also regional tribunals that are operating in the respective regions of the federal
units.
 There is no general requirement set governing the qualification, appointment, composition
and tenure of the personnel of administrative tribunals in Ethiopia. 21
 Inquiries
 Inquires are concerned with fact-finding directed towards making
recommendations on questions of policy.
 The statutory inquiry is the standard device for giving a fair hearing
to objectors before the final decision is made on some question of
government policy affecting citizens’ rights or interests.
 Contrasting to the difference between tribunals and inquires, two
joint authors noted as follows:

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Inquiries in Ethiopia
 Having defined inquires as impartial fact finding devices that are established by
law to assist decision makers, it deems now quite important to appreciate
some of the statutory inquires operating in Ethiopia.
 Some inquires are event derived that have temporary existence that remain
valid until accomplishing the specific fact finding assignment given to them by
law.
 Examples of such inquires are the Inquiry Commission established under
proclamation No.398/2004 to investigate the conflict occurred in Gambela
Regional State on December 13,2003, and the inquiry commission established
to investigate the proportionality of the measures taken by the Ethiopian
security forces to control the post election crisis happened in 2005.
 These inquires were established by proclamation with specific mandate of fact-
finding limited to space and time.
 Such type of inquires usually dissolve immediately after accomplishing their
mandate in accordance with the terms of references. 23
 Inquiries in Ethiopia

• There are also inquires that have permanent in nature. Inquires

falling under this category, although they are usually with specific
mandate, have permanent institutional existence.
• The following are prominent example of such inquires:
• The Council of constitutional inquiry established by
proclamation no. 250/2001;
• The Human Rights Commission and the Institution of
Ombudsman;
• Anti corruption commissions established at federal and
regional levels. 24