Upholding Administrative Law is what will guarantee devolution and democracy

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By Tom Odhiambo

One of the most (ab)used claims about democracy is that it derives from the will of the majority – to live and be governed together. Democrats proclaim from on manner of podiums that theirs is a system of governance that guarantees the rights of all and sundry, but from the votes of the majority. And they swear that democracy is the best form of governance. They insist that democracy is largely ruling by and through the law.

Yet today democracy seems to have little to do with the voices of ordinary people. Money talks a lot in politics. Increasingly, what used to be large group politics, through a party, is shifting from being anchored in ideology to being founded on personalities and small interest groups. Whether one is thinking of America, Europe, Asia, or Kenya, money is key to electoral politics – hence democracy – and the involvement of citizens of a country in their government. Being in government is really about where investments and resources are distributed. It is about determining how much money goes to schools, hospitals, teacher training colleges, employing doctors or police officers etc. It is therefore important that citizens of a country understand how the government works administratively.

It is worth knowing where government officials derive the authority that they exercise in public office. Where does a police officer get the powers to arrest an individual suspected of committing a crime, or offending a State official? What legal reasons justify a refusal by an immigration officer to grant an individual a passport? Can a public servant legally refuse to deliver resources to a region because its citizens don’t support the government of the day? Professor Migai Akech offers an extensive and intensive explanation of the sources of the powers enjoyed by the government in his book, Administrative Law (2016).

In Administrative Law, Migai identifies several “main principles of administrative law”, including “legality, reasonableness, proportionality, the right to participate/the duty to consult, justification, legitimate expectations, independence, and accountability”. These principles determine the relationship between citizens and their rulers, as may be moderated by the courts of justice, in case of a conflict between either citizen and fellow citizen, or citizen and government. In other words, good administration, in which the government of the day performs its functions within the law, is founded on agents of the government relating to the people on whose behalf they run the affairs of the State, as guided by these principles.

Migai notes that the “principle of legality states that every act of government must be justified by specific law.” Here is an expectation that administrators must always behave in a manner that has backing of the law. Cases may arise where the law grants discretionary powers. But even in such a case, the act must be reasonable. The principle of reasonableness demands, “Decision-makers should only make decisions that are reasonable or rational, particularly where they are exercising discretionary powers.” He explains further, “A decision is not reasonable if it is one that no reasonable authority could have come to.” The point to note here is that administrative law helps in countering many of the roadside decrees that politicians and excited civil servants tend to issue whenever they meet adoring citizens.

The principle of proportionality, according to Migai, expects that “… the means used by administrators must be appropriate to achieve the objectives sought, and must not go beyond what is necessary to attain those objectives. In other words, governmental action must be a rational means to a permissible end, which end must not duly invade protected rights and interests. That is, if an administrator has several options to achieve a particular objective, he or she must choose that which puts the least burden on the individual affected.” Here, the government is expected to act in a manner that least affects the constitutional interests of the individual and the community. Excess exercise of an administrator’s discretionary powers is managed under this principle.

The other principles of administrative law all have one objective in mind: to ensure that the State acts in the best interests of the citizenry. However, such an expectation is more idealistic than realistic. Government officials, or the politicians who make the laws that determine the conduct of public servants, are human beings with diverse interests. Individuals can and do abuse public office to serve personal interests. Public office can also be used to harass, intimidate, suppress, oppress or harm ordinary citizens, even in a democracy that is supposedly founded on constitutional principles.

A good Constitution, however, must have remedies, for situations where the citizen feels aggrieved or is treated unjustly by fellow citizens or representatives of the government. The Constitution of Kenya has such avenues for redress. Among the institutions that Migai identifies as mediating between the ruled and the rulers include: The Commission on Administrative Justice and Good Administration, also known as the Office of the Ombudsman. This commission handles complaints and undertakes systemic investigations in abuse of power, unfair treatment, dismissal or suspension from office without due process, and delays and unresponsive conduct, according to Migai. Migai also sees judicial review, which is the ability of the court to declare an act by the government unlawful or vindicate such a measure, as another avenue for Kenyans to seek help when they feel aggrieved by the actions of the government.

The significance of a book such as Administrative Law is in the way it breaks down and communicates a subject that is normally a preserve of specialists. This is a book that an ordinary Kenyan can read to understand – how laws that govern the behaviour of government officials work. In a country where the government is largely depicted as a secretive organisation, it is refreshing to read a book that explains why any government official should always be guided by existing and known laws when acting in the interests of the public.

This expectation is more urgent as several roles and responsibilities that used to be invested in the central government are being devolved to the county governments. What this situation means is that there is an increase in the number of government officials who directly interact with ordinary citizens. The presence of the “government” – national or county – in the immediate lives of mwananchi in the villages and towns of this country means that tensions and conflicts are likely to increase, especially in cases where government officials behave more like superiors to the citizens than as “servants”.

Therefore, Administrative Law can serve as a handbook for many citizens interested in knowing how to hold their government accountable as well as participate in the decision-making processes and management of the affairs of the State.

The writer teaches at the University of Nairobi; Tom.odhiambo@uonbi.ac.ke

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