Administrative Agencies.pptx

Masters Program of ILG
Legal Frameworks for Governance (LGG-
5011)
FASILITATOR:- Serkaddis Zegeye
(PhD)
Asst. Prof.
Oct. 2018
Institute of Leadership and Good Governance
By Serkaddis Zegeye (PhD)

UNIT-FOUR
ADMINISTRATIVE
AGENCIES

Contents of the unit
4.1. Meaning of Administrative Agencies
4.2. Formation of Administrative Agencies
4.3. Reasons for Creating Administrative Agencies
4.4. Purposes of Administrative Agencies
4.5. Functions of Administrative Agencies
4.6. Structure of Administrative Agencies
4.7. Controlling Administrative Agencies
4.8. Judicial Review of Administrative Acts
4.9. The Ethiopian Civil Service

4.1. Meaning of Administrative Agencies
Black‘s Law Dictionary defines
administrative agency as:-
“a governmental body with the authority
to implement and administer legislations
and policies to meet already set goals”

….Meaning of Administrative Agencies
According to the New York Administrative
Procedure act, “An agency refers to any
department, bureau, commission, division,
council, committee…of a state or a public
corporation or public authority at least one
of whose members is appointed by the
government, authorized by law to make rules
or to make final decisions in adjudicatory
proceedings.”

4.2. Formation of Administrative Agencies
Administrative agencies in Ethiopia can be
formed/created in two ways: by the Constitution
and by the Parliament
1. Agencies created by the FDRE Constitution
– The Ethiopian Institution of Ombudsman
– The Ethiopian Human Rights Commission
– The National Election Board
– The Auditor General
– The Population and Census Commission
These agencies are made accountable to the
House of Peoples’ Representatives.

…Formation of Administrative Agencies
2. Agencies created by Parliament
 Agencies can also be created by the House of Peoples’
Representatives through an establishment proclamation
 All the agencies under the executive organ of the FDRE
are supposed to be created and determined by
proclamations issued by the HPR
 These executive bodies include ministries and other
bodies accountable to the Ministries, the Council of
Ministers or the Prime Minister.

…Formation of Administrative Agencies
• The Parliament can also establish or dissolve
executive bodies at any time through an
amendment or re-establishment proclamation
• The Parliament can change the accountability of
the agencies
– Example: The Charities and Societies Agency was first
accountable to the Ministry of Justice; now it is
accountable to the Ministry of Federal Affairs
• The Council of Ministers has the mandate to re-
structure executive bodies

4.3. Reasons for Creating Administrative Agencies
• In general, administrative agencies are
created for three reasons:-
1. To provide specificity
2. To provide protection
3. To provide services

a) Providing Specificity
• The law making body cannot legislate in
sufficient detail to cover all aspects of problems.
• This is because the law making body lacks:-
– time and detail expertise in each aspect of problem.
– personnel to handle multitude of cases.
• Thus, the law making body issues a general
substantive law and creates an administrative
agency to implement the law
• The HPR may also mandate the Council of
Ministers to issue regulations to further specify
the relevant proclamation

b) Providing Protection
• An administrative agency may also be
established to prevent the people from the
harms by the business community
• Examples:
– The Environmental Protection Authority
– The Food and Medicine Control Agency
– The Educational Quality Agency

c) Providing Services
• Administrative agencies are also established to
provide public services
• Usually, the services provided by
administrative agencies are:
– Welfare programs
– Social security programs
• Example:
– The Ethiopian Social Security Agency

4.4. Purposes of Administrative Agencies
 The central purpose of administrative agencies is to
minimize the negative impacts of a free economy by
carrying out the following:
1. To control monopoly power
2. To control excess profit
3. To compensate for externalities/ Spillovers
4. To compensate for inadequate information
5. To compensate for unequal bargaining of power
6. Government exactions
7. Disbursement of money or other commodities
8. Provision of goods and services

…Purposes of Administrative Agencies
1. To control monopoly power
• The purpose is to replace or to control
competition by monopoly with regulations
• Examples:-
– regulation of banking,
– regulation of labor relations.
2. To control excess profit
• This is because excess profit endangers the laws
of free market and pose a danger to consumers.

…Purposes of Administrative Agencies
3. To compensate for Spillovers
• A government agency must require all
companies to make investments to avoid the
social and economic costs.
• Example:- a manufacturing process that
creates
– air pollution for which society pays
– the clean up costs.

… Purposes of Administrative Agencies
4. To compensate for inadequate information
• Purchasers of food, for instance, cannot analyze the
nutritional content or the health hazards of various food
products. So that there has to be some organ that ensures
these tests are fulfilled.
5. To compensate unequal bargaining of powers
• Contracts between banks & customers, insurers &
insured, employees & employers are adhesive in their
nature.
• An agency sets minimum standards to minimize the effect
of unequal bargaining of power.

6. Government exactions
• Because of the natural/traditional powers and
responsibilities some agencies need to exact.
• Examples:
– collection of taxes
– military conscription or involuntary labor/service.
7. Disbursement of money or other commodities
• Agencies disburse public money as payment of pensions for
veterans or assistance for the aged, the disabled, the
unemployed and generally the needy.
• The payments and/or the disbursement may be directly
through cash or food rations.

8. Provision of goods and services
• Building and maintaining roads, high ways and
dams
• Provision of police force and other protective
services.
• Funding public education and health services
and Provision of public housing.

4.5. Functions of Administrative Agencies
• Administrative agencies are
expected to undertake the
following three major functions
–Rule making
–Implementation/execution
–Adjudication

…Functions/powers/ of Administrative Agencies
a) Rule Making
 The delegation of rule making by the legislature to
administrative agencies involves a number of
issues
♠ The legislature should provide adequate guidelines
for the agencies through substantive legislation
♠ The agencies are expected to put into effect the
intentions of the legislature based on substantive laws
♠ In doing so, they are expected to work within their
mandates set by the legislature
♠ Any administrative rule not consistent with the
substantive proclamation or regulations will be invalid

…Functions of Administrative Agencies
b) Implementation
• Administrative agencies are primarily executive bodies;
thus, implementation of the law is their core function
• Typically, this involves investigative and advisory
powers
• This function of administrative agencies should be
exercised within the mandates set by the legislature in
the establishment laws
• If an agency exceeds the substance of the law or its
mandate, it will be a case of ultra vires (beyond the
powers)

…Functions of Administrative Agencies
c) Adjudication
• Administrative agencies apply the law to resolve disputes
within their mandates
• Enforcement of law demands imposition of sanction and
taking administrative measures and decisions
• The decisions may greatly affect individuals’ rights and
benefits
• Examples:
– revocation of license
– deportation of aliens
– dismissal of a civil servant
– dismissal of a university student
• These functions are normally subject to review or appeal
procedures within the agency and/or the ministry it is
accountable to

Discretionary Powers
• It is a power granted either under statute or
delegation which do not impose a duty on the
decision-maker to exercise them in a particular
way.
• It is freedom to decide in one way or the other in
which the decision-maker has the power to make
a choice about whether to act or not to act.
• The use of the word ‘includes’ or a list which
ends with a catch-all expression such as ‘any
other matters that in the opinion of the decision-
maker are relevant

… Discretionary Powers
Principles Guiding Use of Discretionary Power
• Use discretionary power in good faith and for a
proper purpose.
• Any decision must be based on logical
justifications and consider only relevant issues
• Give proper, genuine and realistic consideration
to the merits of the particular case.

…Discretionary Powers
• Do not make decisions in matters that have an
actual or reasonably perceived conflict of
interests.
• Do not Improperly fetter your own discretion
and do not exercise discretion in a way that is
so unreasonable.
• Do not exercise discretionary power in such a
way that the result is uncertain and the
procedure is unfair.

4.6. Structure of Administrative Agencies
• Structure of agency greatly varies depending on
the form of government, nature of policies and
programs it is expected to accomplish.
• In Ethiopia, council of ministers determine the
structure/organization of administrative agencies
(Art. 77/2 of 1995 FDRE Constitution).
• The enabling/establishing act greatly influences
the form, power, structure and organization that
an agency assumes.

4.7. Controlling Administrative Agencies
• The amalgamation of legislative, executive
and judicial functions in the administrative
agencies entail the need for control by the
three branches of government
• Thus, administrative agencies are subject to
control by:-
– Legislative branch
– Executive branch
– Judicial branch

…Controlling Administrative Agencies
a) Legislative Political Control
• Legislative control is the cornerstone of a well
functioning democratic system.
• Political leaders have obligation to answer to the public
for their actions and decisions (Art.12).
• Political accountability has a dual purpose.
1. To check the powers of political leaders, preventing
them from ruling in an arbitrary or abusive manner.
2. To ensure that governments operate effectively and
efficiently.

Political accountability is implemented by:-
1. Budgetary control (Art.55/11)
2. Questioning power (Art.55/17,18)
3. Appointment of government officials
(70/1&2,74/2)

b) Executive Control
• Determining the organizational set up (77/2)
• Coordinating their activities (74/4)
• Appointment of officials (74/9)
• Supervision of implementations (74/5,6) by:-
– issuing directives (77/13)
– requiring report (74/11)
– controlling the activity (77/4)

c) Judicial control (Art.82)
• Judicial control has two aspects
1. Judicial review of administratively made rules
• Constitutional courts
• Ordinary courts of law
2. Judicial review of administrative related to:-
• decisions
• acts of an agency

d) Control by Democratic Institutions
• Two national institutions also control
administrative agencies
– The Ombudsman
– The Human Rights Commission
• Ombudsman is an independent institution who has
the power to receive complaints about mal
administration, conducts investigation and finally
submits its findings and recommendations to the
parliament.
• Powers of the ombudsman:-
– Make recommendations to the mal-administering agency.
– No power to make a binding decision.
– Make recommendations to parliament.

• The Human Rights Commission ensures that the human
and democratic rights provided for under the FDRE are
respected/protected/promoted by citizens, organs of state,
political organizations and other associations.
• It ensures that laws, regulations, directives and
administrative decisions do not contravene the human
rights of citizens guaranteed by the FDRE constitution.
• Human Rights Commission undertakes investigation on
human rights violation issues.
• Human Rights Commission submits a report to the HPR on
matters of human right

e) Other Institutions
 Ethics and Anti-Corruption Commission
• Studies or caused to be studied the practices and
procedures in public offices and enterprises to secure the
revision of methods of work which may be conducive to
corrupt practices and follow their implementation.
• Inform or remind the concerned body when deemed
essential to take the proper measure.
• Give decision, advise or assist on the same.
• Investigate alleged complaints
• Prosecute any alleged suspected corruption offences.

Office of the Federal Auditor General
• Conducting financial, performance and
compliance audit.
• Notify its audit findings to the audited organ
• If the audit finding shows that a crime has
been committed, the office shall notify the
same to the concerned body.

4.8. Judicial Review of Administrative Acts
• JR is the idea that actions of the executive and
legislative branches of government are subject to
review and possible to invalidation by the judicial
branch.
• JR is also defined as a procedure whereby final
administrative actions for which all available
administrative remedies have been exhausted are to be
re-examined by courts upon compliant of persons
aggrieved by the actions of the agency.
• Judicial Review of Administrative Acts originated in the
US legal system (Marbury Vs Madison ,1803).

…Judicial Review of Administrative Acts
4.8.1. Grounds for Judicial Review
• Judicial review can be conducted based on two
grounds:-
– Constitutionality/Constitutional ground
– Other legally recognized grounds.

a) Constitutionality
1. If any decision, act or law made by the
executive is inconsistent with the constitution,
it will be of no effect (Art. 9(1) of FDRE
constitution).
2. If the manner, the law, act or decision made is
irrational, illegal or procedurally improper, the
decision could not be implemented.

b) Illegality (Ultra vires)
• Ultra vires can be defined as lack of
jurisdiction or excising beyond jurisdiction.
• Decision is made by a wrong person and abuse
of discretion.
• When legally un-delegable power is delegated.

c) Irrationality
• No reasonable/ rational authority could ever have
come to it.
• Arbitrariness of the decision of administrative
agencies.
d) Procedural Impropriety
• Procedures prescribed by statute have not been
followed or
• if the rules of natural justice have not been
adhered properly.

E) Which Court is Competent to Conduct JR?
• Common law countries entrust their ordinary courts to
conduct judicial review.
• In Civil law Countries, special administrative courts are
entrusted to review the decisions of the administrative
branch of the government based on legally recognized
grounds.
Out comes of Judicial Review
• Affirmation
• Modification
• Reversal

4.9. The Ethiopian Civil Service
• Civil service is the branch of public service
that is not legislative, judicial or military.
• Historically, the civil service lacked autonomy
and accountability to citizens.
• The civil service reform program was launched
to do away with such gaps.

…. The Ethiopian Civil Service
• Features of the civil service
• Merit based employment
• Political neutrality???
• Job security
• Organization of the civil service
• Administrative class/the management
• Executive class(example:- experts)
• Supporting staff

Constraints in the public service.
• Scarcity of skilled and qualified manpower
• Inadequate working systems and environment
• Weak performance orientation in management.
General Ethical conducts of the civil servant:-
• Loyalty
• Competence
• Devotion/commitment
• Secrecy/confidentiality

 The Twelve Ethical Principles of the Civil Service
1. Integrity
2. Honesty
3. Impartiality
4. Loyalty
5. Confidentiality
6. Transparency
7. Accountability
8. Responsiveness
9. Rule of law
10. Exercising legitimate power
11. Serving public interest
12. Playing exemplary role

Administrative Agencies.pptx

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