ADMINISTRATIVE LAW

Class Notes by Dr. Dwasi Jane 2004 University of Nairobi Administrative Law is the law relating to publi administration! Administration is the a t o" pro ess o" administering# whi h simpl$ means it is the a t o" meting out# dispensing# managing# supervising and e%e uting et ! It is the law relating to ontrol o" governmental power! It an also be said to be the bod$ o" general prin iples# whi h govern the e%er ise o" powers and duties b$ publi authorities! The primar$ purpose o" administrative law# there"ore# is to &eep the powers o" government within their legal bounds# so as to prote t the iti'en against their abuse! Administrative law is also on erned with the administration and dispensation o" deliver$ o" publi servi es! (owever it does not in lude poli $ ma&ing! Administrative is on erned with the government arries out its tas&s! What are the government tas&s# deliver$ o" publi servi es su h as health# se urit$# "a ilitating trade# arbitration o" disputes# and olle tion o" revenue! We are on erned about various publi institutes o" the government# ministries et ! Administrative law is the law relating to the e%e utive bran h o" government! The law deals with a variet$ o" things i!e! the establishment o" publi authorities e!g! the it$ oun il# establishment o" publi bodies and organs! The nature o" the tas&s given to various publi organs and publi agen ies! The legal relationship between the publi bodies themselves and also between the publi agen ies and the publi and between publi agen ies and the iti'ens! Administrative Law is on erned with the means b$ whi h the powers and duties o" the various publi agen ies# publi bodies and publi institutes an be ontrolled! T(E )*N+TI,NS-.*R.,SES ,) ADMINISTRATIVE LAW It ensures proper dispensation o" servi es! It see&s to prote t iti'ens "rom abuse o" power! The primar$ purposes o" administrative law is /! To &eep the powers o" government i!e powers o" various publi bodies within their legal bounds# so as to prote t iti'ens "rom their abuse! Abuse o" power an arise "rom either lo al authorities# ministers# lo al authorities et ! either "rom mali e# bad "aith or even "rom the omple%ities o" the law! 0! There are duties pla ed in publi bodies 1publi institutions2 su h that another "un tion o" the law is to see that the duties are per"ormed and that the publi /

agen ies an be ompelled to per"orm their duties where there is la%it$ or where the$ re"use or otherwise "ail to do so! The ourse will over /! 0! 4! Stru ture and the onstitution i!e! Ma&e up o" administrative institutions bodies# agen ies et ! e!g! lo al government and ivil servi e! The law relating to the "un tions powers and duties3 The law relating to the ontrol o" the e%er ise o" those powers and duties!

The laws in lude /! A ts o" .arliament3 ie! Statutes reating and governing publi agen ies as well as other statutes! Lo al government A t +ivil .ro edure ,""i ial Se rets A t Servi e +ommission A t Law Re"orm A t 0! The law will in lude ommon law and ommon law prin iple studies! 4! 5udge made rules and do trines as appear in ourt de isions on various ases on erning publi administration otherwise &nown as stare de isis 6! The +onstitution3 1the publi servi e ommission is a reation o" the onstitution2 the onstitution in addition la$s out the divisionaltutions powers between various bran hes o" the government! i!e! the E%e utive the arm that arries out governmental "un tions! The onstitution also reates the Legislature it is the legislature that ena ts the various statutes! The onstitution also provides "or the ontrol o" the e%er ise o" the powers o" publi bodies and organs through the ourts! It does this b$ establishing the (igh +ourt and it also gives the (igh +ourt inherent powers over publi bodies! The (igh +ourt has a supervisor$ power over the onstitution!

(IST,RI+AL 7A+89R,*ND ,) ADMINISTRATIVE LAW: IN EN9LAND In England publi administration b$ the government grew out o" the ne essit$ and the realisation that it was the dut$ o" the government to meet the needs o" the population and to provide remedies "or so ial and e onomi evils o" man$ &inds! It was realised and indeed it was ne essar$ that the government ares "or its iti'ens "rom the ; radle to the grave< it was also realised that it was ne essar$ to prote t the environment "or the people# to edu ate them at all stages# to provide medi al servi es# to house them# to provide them with emplo$ment et etera! The needs were various! Little an be done merel$ b$ passing A ts o" .arliament and leaving it to the ourts to en"or e them! There are "ar too man$ problems o" detail# and "ar too man$ matters whi h annot be de ided in advan e! There must be dis retionar$ power and i" dis retionar$ power is to be tolerable# it must be &ept under two &inds o" ontrol: politi al ontrol through parliament# and legal 0

ontrol through the ourts! E=uall$ there must be ontrol over boundaries o" legal power# as to whi h there is normall$ no dis retion! I" a water authorit$ ma$ lev$ sewerage rates onl$ upon properties onne ted to publi sewers# there must be means o" preventing it "rom rating unsewered properties unlaw"ull$! The legal aspe t o" all su h matters are the on ern o" administrative law! Some o" the evils were pollution and industrial a idents that the government needed to address! 7e"ore mid />th entur$ in England the 5usti es o" .ea e were used "or all purposes o" publi administration upto the lowest level o" authorit$! the$ re eived instru tions "rom the rown or the sovereign through the ommissioners o" assi'e and onve$ed instru tions to the people! The$ also re eived omplaints "rom the iti'ens and onve$ed those omplaints to the rown "or redress through the ommissioners! A star hamber was reated to punish those who disobe$ed instru tions "rom the 8ing! The$ also punished those against whom redress o" grievan es la$! The pro ess was ver$ long and umbersome and man$ grievan es and needs remained without redress! In those da$s the s$stem o" administration as it e%isted in England toda$ did not e%ist "or e%ample the power o" the state or the power o" rown ould not be hallenged at an administrative level! A ma?or hange in the s$stem o" government o urred beginning in the mid />th entur$ with the introdu tion o" a representative s$stem o" government! Through this s$stem iti'ens ould hoose representatives to present their needs and grievan es to parliament "or redress! .arliament responded b$ ena ting a variet$ o" statutes establishing various governmental bodies# organs and o""i es to provide various servi es# to ontrol ertain a tivities su h as industrial pro esses in order to prevent harm to iti'ens and to address man$ other &inds o" grievan es! The reation o" various publi bodies# institutions and o""i es b$ statutes to provide publi servi es and to e%er ise ontrols meant that two things had happened# "irst o" all# the publi bodies have been given various duties to per"orm and two# the$ have been given powers to e%er ise their duties in luding dis retionar$ powers! The grant o" power in luding dis retionar$ powers reates the li&elihood o" abuse o" those powers! Se ondl$ it is alwa$s possible "or grievan es to arise out o" the publi dut$ to provide servi es "or e%ample where a bod$ re"used to deliver servi es and this ne essitated the law to govern the publi bodies! The relevant law governing all these aspe ts o" publi administration be ame &nown as administrative law or law and administrative pro esses and this s$stem o" law was introdu ed into 8en$a through oloni'ation in a gradual pro ess whi h we shall dis uss shortl$! (IST,RI+AL DEVEL,.MENT ,) ADMINISTRATIVE LAW IN 8EN@A: The s$stem o" administrative stru tures that e%ist toda$ did not e%ist in preA olonial so ieties! There was also no s$stem o" ad law or ustomar$ ad law that resembles the 4

urrent s$stem! The urrent administrative s$stem with its s$stem o" administrative laws onl$ ame with the advent o" olonialism in the se ond hal" o" the /Bth +entur$! In the pre olonial period# so ieties were o" simple hara ter in the sense that the$ primaril$ sought to satis"$ immediate basi needs! These were "ood# shelter and se urit$! There"ore the ultures and traditions o" these so ieties and religions whi h onstituted their laws were built around "ood# shelter and a =uest "or basi se urit$! These were the primar$ needs that both the pastrolists and the agrarian so ieties sought to satis"$! Even though their slightl$ di""ering e onomi approa hes di tated a somewhat di""ering &inds o" polit$ 1so ietal politi al setAup2 Invariabl$ s$stems o" leadership e%isted among the di""erent tribes in whi h the politi al leadership was either entrusted with an age set and handed down "rom generation to generation i!e! "rom one ageAset to another as in the ase o" the 8i&u$u tribe or the s$stem o" leadership in luded a "oremost leader# priests# medi ineAmen or warriors as was the ase with the Luo tribe! Some o" the tribes su h as the 8i&u$u entrusted their politi al# ?udi ial and religious "un tions and 1whi h "ormed the primar$ "un tions o" their governan e s$stem to a oun il o" elders2 this oun il o" elders loosel$ omprised persons spe ialising in parti ular matters a ording to &nowledge and interest! )or su h ommunities the oun il o" elders made all the important de isions o" ommon interests! At a larger level onstituting more than one ommunit$# politi al a tions# main militar$ operations were ondu ted as dire ted b$ ageAsets! At this level ea h ommunit$ spo&e through a spo&esman# who was not ne essaril$ a hie" but was no more than the hairman o" a territorial unit! The$ spo&e on matters o" on ern mainl$ "ood# shelter and se urit$! +hie"s hardl$ e%isted! )or other tribes su h as the Luo# publi "un tions were ondu ted at the sub tribe level! 7elow this sub tribe level was the lan! The sub tribe onstituted a higher oun il omprising the heads o" lan! It was also omprising diviners# healers# rainma&ers and warriors! The oun il whi h was presided over b$ the "oremost leader o" the sub tribe dealt with all important publi issues and these were the most important publi issues# homi ide# e%ternal aggression# law and order! Matters on erning "ood shelter and land were dealt with at a lan level! The politi al s$stems whi h also omprised some rudimentar$ administrative elements were on eived and pra ti ed in a ordan e with luo ultures and supported not b$ a s$stem o" "ormal laws and publi administration but b$ various "orms o" religions# b$ ulture# traditions and rituals o" the tribes! The traditional s$stems revealed a simple and relativel$ in"ormal governmental s$stem# lo alised and apparentl$ not designed "or the modern states! In some so ieties there was a remar&able overlap and "usion in the operation o" the various so iet$ institutions! Nevertheless in all ases a "ramewor& o" stabilit$ e%isted whi h even though pre arious "ramewor& whi h served the needs o" the time b$ enabling ea h ommunit$ to meet their basi ne essities and &eep some &ind o" basi pea e!

Traditional so ieties e%isted as the$ were until /CBD when the 7ritish government de lared a .rote torate status over the region over 8en$a! The ommen ement o" the prote torate mar&s the beginning o" dire t 7ritish government administration in the region! This was to see the importation o" 7ritish s$stem o" governan e in luding its s$stem o" publi administration! 7etween /CBD and /CB># the olonial government was mainl$ preo upied with boundar$ demar ations and territor$ a =uisition su h that b$ /CB> no omprehensive s$stem o" "ormal administration o" 8en$a had been established! A"ri an tribes remained sub?e ts o" their lo al leaders under the various politi al s$stems o" the tribes! )ull ?urisdi tion over all the people in the region now 8en$a was not on"erred on the prote torate until the passing o" the East A"ri an ,rder in +oun il in /BE0! The order empowered the 7ritish +ommissioner who had been empowered to a t on behal" o" the Fueen in the region to ma&e ordinan es "or pea e# order and good governan e o" all persons in the prote torate! 7$ the ,rder in +oun il o" /BE0# the (igh +ourt was established with "ull ivil and riminal ?urisdi tion and the establishment o" the regular administration began! This development was di tated in the initial $ears b$ the stronger private demands o" the growing European settlers! )or the most part the new s$stem o" Administrative government developed parallel to the ethni s$stem! The "irst step in this development i!e! the development o" a regular administrative stru ture was the passing in /BE0 o" the Townships ,rdinan e# under whi h Nairobi and Mombasa Townships were established! )urther developments had the e""e t o" bringing native people ph$si all$ and ps$ hologi all$ out o" their so ial ulturall$ and politi al rootage! This in luded the passage o" the (ut Ta% ,rdinan e in /BE4 to provide "unds to support the olonial government stru ture! In the same vein a Legislative +oun il was established! The Legislative +oun il was harged with ma&ing various ordinan es and was omprised o" the 4 people# the governor and 0 other people! +onstitutional law and administrative law are sub?e ts whi h interlo & losel$ and overlap e%tensivel$! The rule o" law# "or instan e# is a basi on ept whi h runs through them both and whi h o""ers s ope "or politi al theor$ as well as "or the dis ussion o" its pra ti al "eatures whi h will be "ound below! 7ut other su h universals are not easil$ "ound in the "ield o" administrative law# and the la & o" them limits the assistan e whi h politi al theor$ an provide! D*TIES ,) T(E TREAS*RER /! (e is the hie" "inan ial o""i er3 0! (e is he "inan ial adviser o" the lo al authorit$ to whi h he has been appointed b$ the lo al government3 4! (e is harged with general responsibilities "or all matters o" "inan e and a ounts o" the lo al authorit$3 D

6! D! G! >! C! B! /E! //! /0! /4! /6! /D!

(e is the pa$master# he is in harged o" salaries pa$ments# servi es rendered et ! (e is the +hie" A ountant "or Lo al Authorit$ (e is the olle tor o" "unds o" the lo al authorit$ e!g! rates and rents3 (e is responsible "or the organisation o" the "inan ial department o" the lo al authorit$3 (e is responsible "or the maintenan e o" the Lo al Authorities a ounting s$stems3 (e is responsible "or the supervision o" "inan ial re ords3 (e is responsible "or the e""e ting o" insuran e "or all departments o" lo al authorit$3 Responsible "or pres ribing a ount pro edures "or the lo al authorit$3 Responsible "or investments o" all monies not immediatel$ re=uired b$ the lo al authorit$3 Responsible "or management o" all "unds o" the lo al authorit$ and in this respe t i" there an$ instru tions "rom the "inan e ommittee3 (e has a personal responsibilit$ to disallow an$ item o" a ounts whi h is ontrar$ to law3 (e has the dut$ to lev$ sur harge 1penalt$2 on an$bod$ who in urs an$ e%penditure ontrar$ to law3

Mwangi H Another V! Tus&er The ase illustrates that the treasurer has the responsibilit$ to lev$ a sur harge on an$bod$ who in urs an$ e%penditure ontrar$ to the law! The ase deals with the Tender +ommittee o" Murang<a +ount$ +oun il! The Tender +ommittee was onsidering tenders to suppl$ the ount$ oun il with gasoline! The tenders were re eived "rom various ompanies and the law re=uires that i" tenders are to be onsidered in a parti ular manner and the Lo al +oun il is obliged to ontra t the ompan$ that =uotes the least amount! (ere the$ awarded the tender that did not =uote the least amount and the$ ame to "ind out that Mwangi and others who ompan$ had tendered was a member o" the ommittee and was there"ore prohibited "rom sitting at that meeting! The$ sat there and in"luen ed the de ision o" the tender ommittee! The$ had aused Muranga ountr$ oun il to spend more on suppl$ o" diesel than the$ would have i" the$ had awarded the ompan$ that had =uoted the least amount! The$ were sur harged to pa$ the di""eren e between he least amount =uoted and the amount at whi h the ontra t was awarded to their ompan$! (ere the treasurer was e%er ising his power and dut$ to lev$ a sur harge! The other mista&e that the$ made was Mwangi and the others sitting on a matter in whi h the$ had a pe uniar$ interest! Note: IN ases where sur harges should be imposed# i" the treasurer "ails to lev$ the sur harge# he himsel" should be sur harged! /G! The treasurer has the responsibilit$ should he disagree with the oun il over an$ e%penditure whi h he "eels is ontrar$ to law# then i" the +oun il goes ahead to G

approve the e%penditure# the treasurer must show that the e%penditure is ontrar$ to his advise! (e must similarl$ indi ate in the Minutes that the e%penditure was approved ontrar$ to his advise! .,WERS ,) T(E TREAS*RER: Se tion /4E o" L9A AND .art II Third S hedule! Attorne$ 9eneral V! Duwinton This is an English +ase# this is a ase on erning borrowing powers o" the lo al authorit$! Lo al Authorities have statutor$ borrowing powers but there are statutor$ limits as to the amount lo al authorities an borrow! In this ase# the lo al authorit$ in =uestion# A borough whi h was governed b$ the Muni ipal +orporations A t had b$ /BE4 Mar h e%hausted its e%hausted its borrowing powers! A"ter e%hausting the borrowing powers# the Lo al Authorit$ pro eeded to ta&e overdra"ts "rom the ban&! The$ too& an overdra"t that was "ar in e% ess o" the amount the$ were allowed to borrow and as usual the ban& started harging interest on the overdra"t! The treasurer had been admitted to open an a ount "or the lo al authorit$ in his name and this is the a ount with the overdra"t! )irst o" all the lo al authorit$ had e% eeded its borrowing powers and authorised pa$ments on the interests on overdra"t! The treasurer de ided to ta&e mone$ in other a ounts belonging to the lo al authorit$ to upset some o" the interest in the a ount made in his name! ,ne o" the members noti ed what was going on and de ided it was illegal and noti"ied the Attorne$ 9eneral re=uesting him to sue on the behal" o" the oun il! While this was going on and be"ore the suit was "iled! The treasurer is a publi o""i ial and he was sued in his apa it$! The ourt ruled that monies that had been borrowed in e% ess o" the borrowing powers had been borrowed illegall$ and the interest was also illegal and that the A9 and members o" the Lo al Authorit$ who had re=uested him to bring the suit were entitled to an in?un tion to restrain the treasurer "rom ma&ing "urther pa$ments o" interest out o" the 7urrow "unds! The ourt also held that the 7orough a ounts in respe t o" the interests i!e! the a ounts maintained in the name o" the Treasurer was going to be impea hed b$ the ourt! The ourt held that the Treasurer was not merel$ a servant o" the oun il but that as ustodian o" the 7orough "unds# he owed a dut$ and stood in a "idu iar$ position to the members o" the Lo al Authorit$ and ould not plead the orders o" the oun il "or an unlaw"ul a t! The treasurer ould not laim that the lo al authorit$ had approved the e% ess borrowing! The ourt held that the overdra"t and pa$ment o" interests were illegal be ause the borough had e% eeded its borrowing powers! It also held that the "a t that the de"endant<s a ounts maintained b$ the treasurer had been audited and passed was no bar to the a tion! The ourt also held that pa$ments o" harges o" interest on overdra"t were illegal# be$ond the powers o" the borough and there"ore a brea h o" trust! The ourt also stated that the 7orough Treasurer is a statutor$ o""i er with statutor$ duties and not merel$ a servant o" the oun il but the ustodian o" the 7orough )unds whi h are Trust )unds and must not part with them e% ept on proper statutor$ authorit$! D*TIES ,) T(E EN9INEER: >

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The Engineer has the general responsibilit$ "or engineering wor&s o" the Lo al Authorit$3 The onl$ e% eption is where a lo al authorit$ has made separate ontra tual arrangements "or the engineering wor&s3 some o" the engineering wor&s is maintenan es and repair o" roads# drains# street and bridges "or whi h the lo al authorit$ is responsible! These duties are the servi es rendered to the publi ! Note Se tion /40 o" Lo al 9overnment A t

D*TIES ,) MEDI+AL ,))I+ER ,) (EALT(: The duties are ontained in the Lo al 9overnment A t and in addition to the L9A there is the publi health A t whi h also governs the duties o" the Medi al ,""i er o" (ealth o" Muni ipalities! /! 0! 4! The Medi al ,""i er o" (ealth is the +hie" Medi al Adviser "or the Lo al Authorit$ to whi h he is appointed! Responsible "or all matters relating to health "or whi h the lo al authorit$ is responsible! Se tion /4/ o" L9A and relevant provisions o" .ubli (ealth A t! ,n matters on erning the appointment o" the medi al o""i er o" health "or the lo al authorit$# the Minister "or (ealth must be onsulted!

The "un tions o" the oun illors appear more li&e poli $ ma&ing "un tions! 7ut the "un tions o" the o""i ials i!e! Town +ler&# Engineer Treasure are more li&e implementing "un tions! The$ will implement the poli ies that are passed b$ the oun illors! )or the smooth running o" the "un tions o" oun il the poli $ de isions are to be made ?ointl$ i!e! de isions on what the lo al authorit$ does is to be made ?ointl$ S! 0G1a2 prohibits an$ individual member o" lo al authorit$ to give individual instru tions on what is to be done! There are a "ew statutor$ restri tions! /! 0! 4! 6! )or the Town +ler& the statutes prohibits him-her "rom engaging in private legal pra ti e S! /4C3 Restri tion regarding dis losure o" interest# i" the$ have a personal interest the$ are mandated to de lare their personal interest in "or e%ample in ontra ts3 The$ are prohibited "rom e%a ting monies and "ees S! /4> 102 o" the Lo al 9overnment A t3 The o""i ials are a ountable Se tion /4G ommittees and subA

RI9(TS: The o""i ials generall$ have a right to attend meetings o" the ommittees! (ow are the ?oint de isions madeI

MA+(INER@ ,) L,+AL 9,VERNMENT: The ma hiner$ is the means b$ whi h lo al authorities a omplish their duties and "un tions! )or ever$thing i!e! all duties and "un tions de isions have to be made and the$ have to be made ?ointl$! What then is the means or the ma hiner$ b$ whi h those ?oint de isions are madeI C

T(E MEETIN9 S@STEM Meeting is one o" the means b$ whi h lo al authorities de isions are made! the statute provides "or both annual and ordinar$ meetings! Se tion >6! authori'es lo al authorities to hold annual meetings and at least 4 other general meetings "or the transa tion o" general business! /! 0! 4! 6! D! G! >! C! The number one thing is that the general business ma$ be the appointment o" the hairman o" a ommittee e!g! a "inan e ommittee3 another general business ma$be the authorisation o" sealing o" do uments e!g! the +oun il ould be bu$ing propert$ and trans"er do uments have been prepared# the$ sit down and de ide3 Appointment o" ommittee members is something that is done at the annual general meeting or the other ordinar$ meetings Approval o" spending3 To approve lo al authorities a tivities3 To onsider pur hase o" land and o" ourse other properties3 To onsider the disposal o" land3 To onsider the granting o" li en es to o up$ oun il<s land3

Se ond S hedule Rule /0 provides that ever$ =uestion and ever$ matter shall be determined b$ a show o" hands and de ided upon b$ ma?orit$ votes o" members present# unless provided otherwise b$ written law! Se tion >D in addition it provides "or spe ial meetings! Rand V! ,dro$d J/BDBK / F7 0E6 In addition to the annual and general meetings# the statutes provides "or spe ial meetings provided "or under Se tion >D and in this ase the statute provides that a ma$or in ase o" a muni ipalit$ or a hairman in ase o" ount$ oun il are to hold spe ial meetings "rom time to time upon re eipt o" re=uests in writing "or a meeting! Meetings ma$ be alled "or e%ample to onsider motions submitted b$ oun illors on matters a""e ting their ele torate! Spe ial meetings ma$ also be held to authorise the signing o" orders "or pa$ments where there is no "inan e ommittee! Loo& at Se ond S hedule In addition# publi meetings ma$ be held and as the name suggests su h meetings ma$ be held with inhabitants o" a parti ular lo al authorit$ area to onsider matters a""e ting them whi h are o" publi importan e! Se tion CG o" the Lo al 9overnment A t! Again the Ma$or will be responsible in ase o" a muni ipalit$ and a hairman in ase o" a ount$ oun il! There are ertain pro edural re=uirements "or meetings the most important one being that o" noti e! Se tion >G ,) L9A re=uires that Noti e o" Meetings be issued indi ating the time# the pla e and the matter to be dis ussed at the meeting or the business to be B

transa ted at the meeting! Su h noti es are re=uired to be published at the noti eAboards o" the lo al authorities! The noti e must also be served on the Town +ler& "or Lo al Authorities and "or other lo al authorities on the hairman! It must also be served on ever$ member o" the Lo al Authorit$! N,TI+ES: The noti es are to be served on ever$ other person as the minister ma$ spe i"$! .lease note that the time "rame "or serving the noti es is spe i"ied! +he & it up! ,ne o" the things re=uired in meetings is the re ord o" attendan e! /! The$ must re ord attendan e3 0! The Minutes o" the .ro eedings o" ever$ meeting must be &ept stating among other things the matter onsidered and the de ision! In addition to minuting the matters dis ussed# the minutes must be entered in boo&s &ept "or that purpose! 7e"ore the$ are &ept in the boo&s the$ must be on"irmed at the same meeting! This is "or eviden e purposes! REF*IREMENT ),R DIS+L,S*RE: Se tion /4> re=uires that oun illors or an$ other o""i er o" the Lo al Authorit$ who has a pe uniar$ interest dire t or indire t in that matter and the matter ma$ be ontra t# bargains or an arrangement that the oun il proposes to onsider! The oun illors must as soon as is pra ti able give noti e that the$ have pe uniar$ interest in a matter to be onsidered as soon as is pra ti able! The re=uirement in addition to dis losing must not ta&e part in the dis ussion o" the matter! I" $ou must sit at the meeting then $ou must not ta&e vote in an$ part o" the matter! I" $ou "ail to dis lose $our interest# $ou are guilt$ and are liable to a "ine o" 0EEE-A or two months imprisonment or both and $ou an be sur harged "or an$ loss o asioned to the oun il as a result o" an award "or a ontra t in whi h $ou have an interest! The interest o" ones spouse is deemed to be the interest o" other spouse provided the two are living together! 7esides in the *nited 8ingdom# it has resulted in a oun illor losing his seat! 7rown V! D.. 1/BDG2 0 F7 4GB In this ase we see an illustration o" the meeting as one o" the ma hiner$ "or lo al authorities! It also illustrates that voting is the pro edure at these meetings! A meeting was held b$ a lo al authorit$ and members too& part in that meeting that was going to onsider rent in rease "or the oun il houses that the$ were o up$ing so the$ had pe uniar$ interest and should not have sat! the$ were harged under Se tion >G1/2 o" Lo al 9overnment A t "or parti ipating in a lo al authorit$ "or parti ipating in a lo al authorit$ and voting at the meeting whi h was held to onsider a matter under whi h the$ had a pe uniar$ interest! The interest was that the$ were tenants o" the Lo al Authorit$ and the meeting was about rent in reases! 7rown sued the D.. sa$ing the de ision went against them and that the$ did not bene"it! The ourt held:

/E

LRegardless of whether or not the decision on additional rent payment were in their favour, they had contravened the law by participating in the meeting and therefore their being fined for the offence was upheld. .arliament has not said that the$ ma$ vote against their interest but not "or their interests but that the$ ma$ not vote in a matter in whi h the$ ma$ have an interest! In other words the$ are prohibited "orm sub?e ting themselves against the law! 7rown and his "riend also lost their seats as oun illors! The lo al government authorises the minister "or Lo al 9overnment to allow oun illors who have all interest in the matter to sit and parti ipate i" he "inds that the number o" those with an interest is greater than the number o" those without an interest# he ma$ allow them to sit! The Minister must be noti"ied and their interest de lared! The Minister has to ondu t his own investigation and the Minister is to spe i"i all$ remove the disabilit$ o" members with an interest# barring them "rom sitting! /! Dis lose their interest3 0! Noti"$ the Minister3 4! I" the Minister "inds that the number with an interest is greater then the number without an interest# the minister ma$ give his onsent to sit or vote! Se tion 0D0 A +orruption Se tion 0DD M Dissolution Se tion 0D6 M Winding up! +ontrol o" Lo al Authorities b$ +entral 9overnment Relationship between +entral govt and lo al authorities We have a entral government that has reated a lo al government# the lo al government is there to enable the lo al government to provide servi es at the lo al level! The relationship is that the lo al govt e%er ises powers that have been delegated b$ the entral govt! The lo al govt is a delegate o" the entral govt! The relationship is that between entral and lo al government an be des ribed as a partnership when it omes to providing servi es and per"orman e in duties! In this partnership the lo al government is supposed to administer lo al areas# provide assistan e and e%er ise ontrol in lo al areas through lo al authorities# the$ administer lo al areas through the lo al govt the entral govt administers the ountr$ as a whole! Lo al govt thro lo al authorities administers lo al areas! The "un tions o" the lo al govt through lo al authorities is supposed to omplement that o" the entral government! The lo al govt is a delegate o" powers b$ the entral government! The entral govt e%er ises ontrols# he &s and balan es over lo al authorities! These he &s and balan es are e%er ised in two wa$s! /! 0! )ormal +ontrols3 In"ormal +ontrols! //

In"ormal +ontrols whi h are e%er ised in the politi al arena where $ou have politi s in"luen ing the person who be omes head o" the lo al government! It in"luen es the manner in whi h manner power is given to the Minister! It also in"luen es the manner in whi h the Minister e%er ises the power! .oliti s will also in"luen e the e%er ise o" power b$ the Minister! ),RMAL +,NTR,LS: /! Ministerial +ontrols These are ontrols e%er ised primaril$ through the Lo al 9overnment A t! The Lo al 9overnment A t ma&es provisions "or he &s and balan es i!e! it provides "or the Minister<s onsent "or a number o" things that lo al authorities that re=uire the Minister<s onsent! S! /64 states that i" the lo al authorities want to pur hase land or dispose an$ land# the$ must see& onsent o" the Minister "or lo al government et ! this re=uirement "or onsent is one wa$ that the +entral govt e%er ises ontrol over the lo al authorities! 0! 1a2 1b2 1 2 )inan ial +ontrols Note that auditing is one o" the wa$s that ontrol is e%er ised over lo al authorities b$ the entral govt! S! 04/! Re=uirement o" preparation submissions and approval o" estimates o" e%penditure and in ome! E%tra ordinar$ inspe tion o" lo al authorities# the Minister has power to ondu t an e%tra ordinar$ inspe tion o" the lo al authorities a ounts i" he suspe ts that something is wrong or i" a"ter submitting o" the auditor general<s report he thin&s that something is wrong! There is a pro edure provided b$ L9A the Minister "irst o" all must give noti e to the auditor general o" his intention to ondu t an e%tra ordinar$ inspe tion! The Minister is also authorised to appoint publi o""i ials to ondu t the inspe tions! These publi o""i ials have powers one o" whi h is that the$ an disallow an$ item o" a ount that is ontrar$ to law or ontrar$ to the powers o" the Minister! The$ also have power to sur harge an$ lo al authorit$ o""i ial who is "ound to have to have in urred an illegal e%penditure! The budget itsel" re=uires approval b$ the Minister whi h approval is part o" the e%er ise o" ontrols! The Minister had the power to determine how mu h mone$ is allo ated to the lo al authorit$ "rom the Trans"er o" )unds )und! 1a spe ial "und established b$ entral govt2 the minister will onsider whether in previous $ears a lo al authorit$ has been able to meet the onditions o" the per entage o" the promotional grants! The per entage o" promotional grants is the grant given b$ entral govt to lo al authorities on ondition that the$ an raise the balan e o" what the$ re=uire to meet their targets! *nder S! 06B L9A the Minister "or Lo al govt is authorised to redu e or to withdraw govt grants "rom the lo al authorit$ i" 1i2 it appears to him that a lo al authorit$ is not utilising the "unds well# or 1ii2 i" it appears to the Minister that the administration or the a""airs o" that lo al authorit$ are waste"ul or ine""i ient3 /0

1d2 1e2

1"2

1iii2

i" the lo al authorit$ has "ailed to a t in on"ormit$ with the L9A3 there are several wa$s that the lo al authorit$ "ail to a t in on"ormit$ with the L9A!

+,NTR,LS T(R,*9( A..,INTMENT ,) N,NA.,LITI+AL ,))I+ERS /! Town +ler& 0! Treasurer 4! +it$ Engineer The entral government hires people dire tl$ answerable to it to wor& "or the lo al authorities! +,NTR,LS T(R,*9( T(E MA8IN9 ,) RE9*LATI,NS: *nder S! 0>/ o" L9A the Minister "or Lo al 9overnment is empowered to ma&e rules "or the better arr$ing out o" the purposes and the provisions o" the A t! In the e%er ise o" this power the Minister has made rules whi h are &nown as subsidiar$ legislation or subsidiar$ regulations whi h appear at the ba & o" the L9A! The power to ma&e these rules is the power o" the Minister "or Lo al 9overnment! The Minister issues rules through Legal Noti es! Through the ma&ing o" these regulations the Minister is e%er ising authorit$ as the$ ma&e provisions "or the arr$ing out o" the "un tions and purposes o" the A t! Sometimes the$ even ite the spe i"i se tions o" the A t under whi h the regulation has been made! .,WERS ,VER DE)A*LTIN9 L,+AL A*T(,RITIES .owers over de"aulting lo al authorities are overed under .art /B o" L9A It begins b$ sa$ing that where the Minister is o" the opinion that the lo al authorit$ is "ailing to per"orm the duties imposed on it b$ the Lo al 9overnment A t# he is given power to do a number o" things 1a2 (e an dire t that a lo al authorit$ per"orms its duties and i" a lo al authorit$ "ails to ompl$# the Minister is re=uired to per"orm the duties this lo al authorit$ is "ailing to per"orm and then re over an$ e%penses "rom that lo al authorit$<s a ount3 1b2 (e ma$ re=uire a de"aulting lo al authorit$ to submit proposals on how it intends to e%er ise the powers on"erred upon it in the per"orman es o" its duties3 i" a lo al authorit$ submits an a eptable proposal to the Minister# the Minister ma$ order that lo al authorit$ to pro eed to e%er ise the power it had been "ailing to e%er ise whi h will in lude an$ duties the$ ma$ be "ailing to e%er ise in the manner pres ribed in the proposal! I" the$ "ail to submit the proposal# then the Minister is re=uired to e%er ise an$ powers a lo al authorit$ "ails to e%er ise in su h manner as he thin&s "it and again he is authorised to re over an$ e%pense he in urs "rom the lo al authorit$! .lease note that instead o" doing 1a2 or 1b2 the 1 2 Minister an remove members o" the lo al authorit$ and instead appoint a ommission to a t in its pla e! Se tion 0D/ /4

1d2

The Minister ma$ also wind up the lo al authorit$ 1to the e%tent o" even dissolving them23 there are ertain pro edures to be "ollowed be"ore powers to wind up are e%er ised! +ertain onditions must be present! 1i2 A period o" 4 months or more must have elapsed between one meeting o" a muni ipal oun il and the ne%t3 in ase o" other lo al authorities a period o" G months or more must have elapsed sin e the last meeting3 1ii2 The lo al authorit$ in =uestion must be "ound to be unli&el$ to meet its "inan ial ommitments i!e! i" its in so mu h debt that it is not li&el$ that the sour e o" in ome an upset the debt the minister an have it wound up3 1iii2 The Minister must "ind that in his opinion the lo al authorit$ is "ailing to e%er ise its "un tions in su h manner as would best serve the interests o" the inhabitants o" its area o" ?urisdi tion3

7e"ore winding up the lo al authorities# the Minister must hold a publi in=uir$ under the +ommissioner o" In=uir$ +ap /E0 and in this publi in=uir$ members o" that lo al authorit$ must be given a han e to be heard i!e! the members o" the lo al authorit$ annot be removed without being given a han e to de"end themselves! The ommission will onstitute 4 people one o" them being the hairman and the statutes provide that in ase a ommission is appointed# the appointed ommission is to last a period o" 0 $ears unless the Minister has good reasons to e%tent their term! While the ommission lasts# it is entitled to e%er ise all powers and duties a orded that parti ular authorit$ under the L9A! Within those two $ears the Minister must ta&e all reasonable steps to re onstitute the Lo al Authorit$ and to ma&e it "un tion properl$! Se tion 06G M 0DD! .lease note that the 4 "a tors earlier mentioned must be present and then the Minister will de ide to wound up the lo al authorit$! there are ertain pro edures that must be "ollowed /! (e must issue a noti e o" intention to wind up a lo al authorit$ whi h must be published in the 8en$a 9a'ette and in at least one newspaper ir ulating in that area3 0! (e must also la$ a dra"t order "or winding up be"ore parliament3 this dra"t is to be laid be"ore parliament within /6 da$s o" the noti e! 4! .lease note that the reason "or tabling the dra"t noti e in .arliament is that parliament must approve the winding up o" the lo al authorit$# it must approve the order laid be"ore it b$ the Minister! I" parliament approves# "rom the date o" that order# the lo al authorit$ then e%ists onl$ "or purposes o" winding up! At the end o" winding up pro ess the Minister is supposed to publish a noti e in the 8en$a 9a'ette and he must spe i"i all$ state the date o" dissolution and "rom that date given in the 9a'ette the lo al authorit$ eases to e%ist! In the pla e o" the dissolved lo al authorit$# the Minister an establish one or more lo al authorities! T(E +IVIL SERVI+E Read +onstitutional Development in 8en$a# Institutional Adaptation and So ial +hange b$ 5 7 ,?wang 1/BBB2 .ages C/A/E> Definition of the Civil Service: /6

The +ivil Servi e an be de"ined as the ore o" o""i ials to whi h is entrusted the implementation o" the poli $ de isions o" the government! )rom this de"inition is lear that the "un tion o" the ivil servi e is to implement government poli $! The ivil servi e "alls under the E%e utive arm o" the government! It is in harge o" implementation o" government poli $! +ivil servants are those servants o" the rown other than holders o" politi al or ?udi ial o""i es who are emplo$ed in a ivil apa it$ and whose remuneration is paid wholl$ or dire tl$ out o" monies voted b$ parliament! E% luded "rom this de"inition are /! Armed )or es Emplo$ees3 0! .oli emen 4! Emplo$ees o" publi orporations 6! Emplo$ees o" lo al authorities e% ept Town +ler&# Treasurer and +it$ Engineer D! Emplo$ees o" Nationalised Industries! We are on erned with the "un tions o" the government to serving the publi ! Administrative law is on erned about the "un tions o" publi o""i ers! We want to understand what the law sa$s about the "un tions# emplo$ment# a ountabilit$ and e""i ien $ o" these publi o""i ials in the duties that the$ have been harged! ,RI9IN ,) T(E IDEA ,) .*7LI+ SERVI+E As with other governmental ma hiner$ in luding lo al government s$stem# the ivil servi e is one o" those publi institutions whi h was inherited "rom the 7ritish publi institutions! Its tenets were reated b$ the 7ritish olonial administration! (owever sin e independen e the ivil servi e has hanged! New dimensions have been added to it and the new hanges have been made to meet the ir umstan es o" the people o" 8en$a! List o" +ivil Servants /! Attorne$ 9eneral3 and all who wor& in the A9<s +hamberrs3 0! +ontroller 9eneral 4! Auditor 9eneral 6! .ermanent Se retaries D! Se retar$ to the +ivil G! +ommissioner o" .oli e >! Ambassadors and (igh +ommissioners C! .ubli ,""i ials in various government ministries Regarding their "un tions their primar$ role is to implement poli ies that have been "ormulated b$ the government! These poli ies are "ormulated espe iall$ b$ the abinet! In their implementation o" government poli ies the$ have duties that the$ per"orm "or the publi ! D*TIES H SERVI+ES /! Issuan e o" Li en es# i!e! trade li en es# driving li en es# marriage li en es# li=uor li en es3 0! +olle tion o" Ta%es3 /D

4! 6!

+ondu t audits o" publi a ounts Represent the government abroad# the "un tions are man$!

In the e%er ise o" these "un tions the$ provide servi es in the interest o" publi and e%er ise ontrols in the interests o" the publi ! A..,INTMENT T, T(E +IVIL SERVI+E: The person appointed to the ivil servi e determines whether or not servi es will be rendered to the publi # the$ also determine whether servi es to the publi will be delivered e""i ientl$! It also determines whether the$ will sta$ in emplo$ment! 7RITIS( W(ITE (ALL TRADITI,N Tradition in respe t o" 7ritish +ivil Servi e "rom whi h we derive our own! 8e$ "a tors As the primar$ agen $ "or poli $ implementation and given the ru ial role o" poli $ implementation# the +ivil Servi e in the White (all tradition re=uired an un ompromised degree o" e""i ien $# high ompeten e 1 apa it$ to "orm the "un tions with whi h an individual has been harged2# lo$alt$ to the government# a eptan e o" governmental authorit$! please note that the$ were also ons ious to appoint people who had e%perien e rather than patronage# patronage was not the determining "a tor! The$ also appointed people who had te hni al ompeten e vis a vis tribal a""iliation! With these =ualities the ivil servi e in the 7ritish the$ were able to e""i ientl$ implement the "un tions that the government had made! to these were added two "a tors /! Autonom$ 0! Neutralit$3 Neutralit$ re"erred to the re=uirement that a ivil servant be deta hed "rom part$ politi s and "or this reason an$ person who was and is appointed to the 7ritish +ivil Servi e is prohibited "rom engaging in part$ politi s# i" the$ engage in part$ politi s the$ must resign! This restri tion ensures /! 7ritish +ivil Servants are deta hed "rom part$ politi s so that the$ are given or an develop a high degree o" sel"Ae""a ement3 the$ have sel" on"iden e to wor& e""i ientl$ no part$ what politi al part$ is in power! 0! It ensured that ivil servants are insulated "rom politi al ontroversies# the$ do not have to worr$ about politi al ontroversies and the e""e t o" the ontroversies su h as instant dismissals! 4! Deta hment ensures that the ivil servants give servi e to a government o" an$ part$ or omple%ion# the$ an serve an$ government that omes to power! Autonom$ means that ivil servants in the 7ritish Tradition had se ured tenure o" emplo$ment and be ause their tenure o" emplo$ment was se ured the$ were se ure and ould wor& independentl$ o" e%ternal in"luen e! The 7ritish Tradition operated on the basis o" the do trine o" politi al responsibilit$! This do trine has ontributed greatl$ to the a hievements o" the 7ritish +ivil Servi e and the do trine o" politi al responsibilit$ is the do trine whereb$ 7ritish Ministers are answerable to parliament "or what is done or what /G

happens in their ministries and departments# e!g! in the Ministr$ o" labour the minister would be answerable to ever$thing that happens in that ministr$! A minister ta&es responsibilit$ "or the a""airs and the ivil servants wor&ing in his ministr$ and the$ are not allowed to blame an$ "aults on the o""i ials! I" an$ o""i ial does an$thing wrong in their ministr$ the minister is responsible and thus has to ensure that o""i ials in his ministr$ wor& e""i ientl$! These "a tors have enabled the 7ritish +ivil Servi e to be ver$ e""i ient and has improved the =ualit$ o" servi e provided to the people and generall$ to the development o" that ountr$! In 8en$a what do we have in re=uirement o" The 8en$an situation In 8en$a the parti ular histori al onte%t o" the growth o" the ivil servi e did not allow "or all o" the attributes that are "ound in the 7ritish +ivil Servi e! In ontrast to the White (all Model# with its emphasis on neutralit$ and autonom$# when the olonial administration introdu ed the idea o" the ivil servi e# it vested the whole ivil servi e with both the powers o" poli $ ma&ing and powers o" poli $ implementation! This was a brea h o" rule number one# the person who ma&es poli $ annot be in harge o" implementation but in 8en$a this is what happened! There was "ailure to maintain the stri t separation between poli $ ma&ers and implementers as in the 7ritish Tradition! The senior +ivil Servants were the governor and his appointed provin ial ommissioners and distri t ommissioners! In this position# the ivil servants were ma&ing poli ies and at the same time the$ too& part in the implementation o" those poli ies! The demand "or law and order ne essitated the growth o" a large provin ial administration manned b$ ivil servants! The$ also e%er ised relativel$ un"ettered degree o" dis retion unli&e the ivil servants in the 7ritish Tradition# the 7ritish ones wor&ed under a spe i"i ode o" regulation but in 8en$a the$ had un"ettered degree o" dis retion! This went on until 8en$a approa hed independen e! Some gradual hanges too& pla e between /BGE and /BG4! towards independen e# the olonial administration made hanges whi h in luded hanges made in the appointment o" ivil servants! ,ne o" the hanges was that he ivil servi e was no longer going to ta&e part in poli $ ma&ing and their "un tions were limited in poli $ ma&ing! Their dis retionar$ powers whi h were until then unrestri ted# and wide were ta&en awa$! The +onstitution was amended and b$ this amendment the ivil servi e was pla ed under supervision o" an independent bod$ whi h was also reated b$ the +onstitution and this was the .ubli Servi e +ommission! 7$ this onstitutional amendment# powers over the appointment o" new ivil servants was given to the newl$ reated .ubli Servi e +ommission# be"ore this time# the ivil servants were appointed b$ the 9overnor! T

/>

The publi servi e ommission was given power to e%er ise dis iplinar$ ontrol over persons appointed to the publi servi e! )or this purpose a detailed government ode o" regulation was reated on the basis o" whi h the publi servi e ommission e%er ised ontrol over ivil servants! This ode o" regulations made ertain provisions# ie! It re=uired maintenan e o" good ondu t! The ode o" regulations also "ormed part o" the terms o" emplo$ment o" ivil servants! It spe i"i all$ pros ribed engagement in politi al a tivities b$ ivil servants! It prohibited ivil servants "rom presenting themselves as andidates "or politi al o""i es unless the$ had resigned "rom the ivil servi e! +ivil Servants were also prohibited "rom ?oining an$ politi al asso iations or parties be ause it was onsidered that su h asso iations were not onsistent with their duties and obligations as publi servants be ause the$ were re=uired to implement governmental poli $ without an$ bias and without partialit$ regardless o" an$ politi al views that the$ ma$ hold! In this ode people in the higher ran&s li&e the ontroller general were totall$ barred "rom parti ipating in the politi al a tivities or politi al part$ matters! In this +onstitution# the tenure o" +ivil Servants was se ured to ma&e +ivil Servants dis harged their "un tions independentl$ and e""i ientl$! A ivil servant ould not be dis harged "rom servi e unless the$ did matters whi h warranted their dismissal as stipulated in their ode o" regulations! Ine""i ien $ would be one o" the grounds or engaging in politi al a tivities would be grounds "or dismissal! Mis ondu t was another ground o" regulations! This se ured tenure meant that it was not eas$ to dismiss a ivil servant! No ivil servant ould be dismissed unless and until the matter had been re"erred to an independent tribunal and then that parti ular ivil servant would be given a han e to be present and to be heard! With su h a ivil servi e# appointment b$ publi servi e ommission on the basis o" =uali"ied redentials would be e%pe ted to "un tion e""i ientl$! DEVEL,.MENTS IN T(E +IVIL SERVI+E SIN+E INDE.ENDEN+E The situation remained until /BG6 when the ountr$ attained independent status and shortl$ a"ter independen e# "irstl$ it was "elt that in this ountr$ it was advisable to have a neutral and independent ivil servi e! Several onstitutional amendements were made whose overall e""e t was to pla e the ; ivil servi e s=uarel$ under the ontrol o" the .resident! These were the hanges /! ,n attainment o" republi an status in /BG6# members o" the publi servi e ommission were now to be appointed b$ the president at his own dis retion! .reviousl$ the$ were appointed b$ the governor general a ting on the advise o" the 5udi ial Servi e +ommission! Whereas the publi servi e ommission was originall$ re=uired to operate independentl$ o" the e%e utive# all o" the o""i ers appointed b$ the e%e utive# now the .resident ould give authorit$ to the .ubli Servi e +ommission to delegate an$ one or more o" its "un tions to one member! These amendments /C

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also a""e ted the position o" the Attorne$ 9eneral# The +ontroller 9eneral# Auditor 9eneral and .ermanent Se retar$# these powers were meant to give the president un"ettered dis retion in relation to this o""i es! In /BGG other amendments enhan ed the position o" the president in relation to the publi servi e! the amendment gave powers to the president o" onstituting and abolishing o""i es "or the Republi o" 8en$a and o" ma&ing appointments to an$ su h o""i es in addition he had the power to terminate an$ su h appointments at his own dis retion! The +onstitution "urther de ided that an$ person who holds o""i e shall hold o""i e at the pleasure o" the .resident! Se tion 06 and 0D o" the +onstitution! The e""e t o" ta&ing awa$ the power o" appointment and termination o" ivil servi es "rom the publi servi e ommission and ta&ing our the tenure o" the ivil servants! The e""e ts were /! It has been observed that the e""e t o" these hanges was one that it relegated the position o" .ubli Servi e +ommission to a limited au%iliar$ role ma&ing it merel$ a te hni al department o" the E%e utive3 0! With respe t o" tenure o" +ivil Servants# the tenure no longer depends on the observan e o" the ode o" regulations# it no longer depends on their per"orman e or reputation but on the pleasure o" the president! Sin e the president ould abolish o""i es at his own dis retion# 4! it "ollows that he idea o" prote ting o""i es b$ vesting their ontrol in an independent bod$ is no longer valid! 6! )urther the president be ame or has be ome in theor$ the emplo$er o" all ivil servants and he an terminate their servi es at will! D! 7e ause o" this the onstitutional me hanism that was intended to insulate publi o""i ers "rom the vagaries o" politi al will was dismantled b$ these amendments! G! The .ubli Servi e +ommission lost independent +onstitutional status and these amendments reated on"li ts in onstitutional provisions! Loo& at Mwangi Stephen Mureithi V! Attorne$ 9eneral

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