ADMINISTRATIVE LAW NOTES

                    

Administrative Law is the law relating to public administration. Administration is the act of process of administering, which simply means it is the act of meting out, dispensing, managing, supervising and executing etc.

 It is the law relating to control of governmental power.  It can also be said to be the body of general principles, which govern the exercise of powers and duties by public authorities.

                                

The primary purpose of administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse.  Administrative law is also concerned with the administration and dispensation of delivery of public services.  However it does not include policy making.  Administrative is concerned with the government carries out its tasks.

What are the government tasks, delivery of public services such as health, security, facilitating trade, arbitration of disputes, and collection of revenue?  We are concerned about various public institutes of the government, ministries etc.

Administrative law is the law relating to the executive branch of government.  The law deals with a variety of things i.e. the establishment of public authorities e.g. the city council, establishment of public bodies and organs.

The nature of the tasks given to various public organs and public agencies.

The legal relationship between the public bodies themselves and also between the public agencies and the public and between public agencies and the citizens.

Administrative Law is concerned with the means by which the powers and duties of the various public agencies, public bodies and public institutes can be controlled.

THE FUNCTIONS/PURPOSES OF ADMINISTRATIVE LAW

It ensures proper dispensation of services.

It seeks to protect citizens from abuse of power.

The primary purposes of administrative law is

1.                  To keep the powers of government i.e. powers of various public bodies within their legal bounds, so as to protect citizens from their abuse. Abuse of power can arise from either local authorities, ministers or local authorities. either from malice, bad faith or even from the complexities of the law.

2.                  There are duties placed in public bodies (public institutions) such that another function of the law is to see that the duties are performed and that the public agencies can be compelled to perform their duties where there is laxity or where they refuse or otherwise fail to do so.

The course will cover

1.                  Structure and the constitution i.e. Make up of administrative institutions bodies, agencies etc. e.g. local government and civil service.

2.                  The law relating to the functions powers and duties;

3.                  The law relating to the control of the exercise of those powers and duties.

The laws include

1.      Acts of Parliament; i.e. Statutes creating and governing public agencies as well as other statutes.

Local government Act

Civil Procedure

Official Secrets Act

Service Commission Act

Law Reform Act

2.      The law will include common law and common law principle studies.

3.      Judge made rules and doctrines as appear in court decisions on various cases concerning public administration otherwise known as stare decisis

4.      The Constitution;  (the public service commission is a creation of the constitution) the constitution in addition lays out the divisionaltutions powers between various branches of the government.  i.e. the Executive the arm that carries out governmental functions.  The constitution also creates the Legislature it is the legislature that enacts the various statutes.  The constitution also provides for the control of the exercise of the powers of public bodies and organs through the courts.  It does this by establishing the High Court and it also gives the High Court inherent powers over public bodies.  The High Court has a supervisory power over the constitution.

HISTORICAL BACKGROUND OF ADMINISTRATIVE LAW:

IN ENGLAND

In England public administration by the government grew out of the necessity and the realisation that it was the duty of the government to meet the needs of the population and to provide remedies for social and economic evils of many kinds.

It was realised and indeed it was necessary that the government cares for its citizens from the ‘cradle to the grave’ it was also realised that it was necessary to protect the environment for the people, to educate them at all stages, to provide medical services, to house them, to provide them with employment etcetera.  The needs were various.  Little can be done merely by passing Acts of Parliament and leaving it to the courts to enforce them.  There are far too many problems of detail, and far too many matters which cannot be decided in advance.  There must be discretionary power and if discretionary power is to be tolerable, it must be kept under two kinds of control: political control through parliament, and legal control through the courts.  Equally there must be control over boundaries of legal power, as to which there is normally no discretion.  If a water authority may levy sewerage rates only upon properties connected to public sewers, there must be means of preventing it from rating unsewered properties unlawfully.  The legal aspect of all such matters are the concern of administrative law. 

Some of the evils were pollution and industrial accidents that the government needed to address.

Before mid 17th century in England the Justices of Peace were used for all purposes of public administration upto the lowest level of authority.  they received instructions from the crown or the sovereign through the commissioners of assize and conveyed instructions to the people.

They also received complaints from the citizens and conveyed those complaints to the crown for redress through the commissioners.  A star chamber was created to punish those who disobeyed instructions from the King.  They also punished those against whom redress of grievances lay.   The process was very long and cumbersome and many grievances and needs remained without redress.

In those days the system of administration as it existed in England today did not exist for example the power of the state or the power of crown could not be challenged at an administrative level.

A major change in the system of government occurred beginning in the mid 17th century with the introduction of a representative system of government.  Through this system citizens could choose representatives to present their needs and grievances to parliament for redress.  Parliament responded by enacting a variety of statutes establishing various governmental bodies, organs and offices to provide various services, to control certain activities such as industrial processes in order to prevent harm to citizens and to address many other kinds of grievances.

The creation of various public bodies, institutions and offices by statutes to provide public services and to exercise controls meant that two things had happened, first of all, the public bodies have been given various duties to perform and two, they have been given powers to exercise their duties including discretionary powers.

The grant of power including discretionary powers creates the likelihood of abuse of those powers.  Secondly it is always possible for grievances to arise out of the public duty to provide services for example where a body refused to deliver services and this necessitated the law to govern the public bodies.  The relevant law governing all these aspects of public administration became known as administrative law or law and administrative processes and this system of law was introduced into Kenya through colonization in a gradual process which we shall discuss shortly.

HISTORICAL DEVELOPMENT OF ADMINISTRATIVE LAW IN KENYA:

The system of administrative structures that exist today did not exist in pre-colonial societies.  There was also no system of ad law or customary ad law that resembles the current system.  The current administrative system with its system of administrative laws only came with the advent of colonialism in the second half of the 19th Century.  In the pre colonial period, societies were of simple character in the sense that they primarily sought to satisfy immediate basic needs.  These were food, shelter and security.  Therefore the cultures and traditions of these societies and religions which constituted their laws were built around food, shelter and a quest for basic security.  These were the primary needs that both the pastrolists and the agrarian societies sought to satisfy.  Even though their slightly differing economic approaches dictated a somewhat differing kinds of polity (societal political set-up)

Invariably systems of leadership existed among the different tribes in which the political leadership was either entrusted with an age set and handed down from generation to generation i.e. from one age-set to another as in the case of the Kikuyu tribe or the system of leadership included a foremost leader, priests, medicine-men or warriors as was the case with the Luo tribe.  Some of the tribes such as the Kikuyu entrusted their political, judicial and religious functions and (which formed the primary functions of their governance system to a council of elders) this council of elders loosely comprised persons specialising in particular matters according to knowledge and interest.  For such communities the council of elders made all the important decisions of common interests.

At a larger level constituting more than one community, political actions, main military operations were conducted as directed by age-sets.  At this level each community spoke through a spokesman, who was not necessarily a chief but was no more than the chairman of a territorial unit.  They spoke on matters of concern mainly food, shelter and security. Chiefs hardly existed.

For other tribes such as the Luo, public functions were conducted at the sub tribe level.  Below this sub tribe level was the clan.  The sub tribe constituted a higher council comprising the heads of clan.  It was also comprising diviners, healers, rainmakers and warriors.  The council which was presided over by the foremost leader of the sub tribe dealt with all important public issues and these were the most important public issues, homicide, external aggression, law and order.  Matters concerning food shelter and land were dealt with at a clan level.

The political systems which also comprised some rudimentary administrative elements were conceived and practiced in accordance with luo cultures and supported not by a system of formal laws and public administration but by various forms of religions, by culture, traditions and rituals of the tribes.

The traditional systems revealed a simple and relatively informal governmental system, localised and apparently not designed for the modern states.  In some societies there was a remarkable overlap and fusion in the operation of the various society institutions.

Nevertheless in all cases a framework of stability existed which even though precarious framework which served the needs of the time by enabling each community to meet their basic necessities and keep some kind of basic peace.

Traditional societies existed as they were until 1895 when the British government declared a Protectorate status over the region over Kenya.  The commencement of the protectorate marks the beginning  of direct British government administration in the region.  This was to see the importation of British system of governance including its system of public administration.

Between 1895 and 1897, the colonial government was mainly preoccupied with boundary demarcations and territory acquisition such that by 1897 no comprehensive system of formal administration of Kenya had been established.

African tribes remained subjects of their local leaders under the various political systems of the tribes.  Full jurisdiction over all the people in the region now Kenya was not conferred on the protectorate until the passing of the East African Order in Council in 1902.

The order empowered the British Commissioner who had been empowered to act on behalf of the Queen in the region to make ordinances for peace, order and good governance of all persons in the protectorate.

By the Order in Council of 1902, the High Court was established with full civil and criminal jurisdiction and the establishment of the regular administration began.

This development was dictated in the initial years by the stronger private demands of the growing European settlers.  For the most part the new system of Administrative government developed parallel to the ethnic system.

The first step in this development i.e. the development of a regular administrative structure was the passing in 1902 of the Townships Ordinance, under which Nairobi and Mombasa Townships were established.  Further developments had the effect of bringing native people physically and psychologically out of their social culturally and political rootage.  This included the passage of the Hut Tax Ordinance in 1903 to provide funds to support the colonial government structure.  In the same vein a Legislative Council was established.  The Legislative Council was charged with making various ordinances and was comprised of the 3 people, the governor and 2 other people.

Constitutional law and administrative law are subjects which interlock closely and overlap extensively.  The rule of law, for instance, is a basic concept which runs through them both and which offers scope for political theory as well as for the discussion of its practical features which will be found below.  But other such universals are not easily found in the field of administrative law, and the lack of them limits the assistance which political theory can provide.

Administrative Law & Agencies Lesson 4                                  4.10.02

DUTIES OF THE TREASURER

1.                  He is the chief financial officer;

2.                  He is he financial adviser of the local authority to which he has been appointed by the local government;

3.                  He is charged with general responsibilities for all matters of finance and accounts of the local authority;

4.                  He is the paymaster, he is in charged of salaries payments, services rendered etc.

5.                  He is the Chief Accountant for Local Authority

6.                  He is the collector of funds of the local authority e.g. rates and rents;

7.                  He is responsible for the organisation of the financial department of the local authority;

8.                  He is responsible for the maintenance of the Local Authorities accounting systems;

9.                  He is responsible for the supervision of financial records;

10.             He is responsible for the effecting of insurance for all departments of local authority;

11.             Responsible for prescribing account procedures for the local authority;

12.             Responsible for investments of all monies not immediately required by the local authority;

13.             Responsible for management of all funds of the local authority and in this respect if there any instructions from the finance committee;

14.             He has a personal responsibility to disallow any item of accounts which is contrary to law;

15.             He has the duty to levy surcharge (penalty) on anybody who incurs any expenditure contrary to law;

Mwangi & Another V. Tusker

The case illustrates that the treasurer has the responsibility to levy a surcharge on anybody who incurs any expenditure contrary to the law.  The case deals with the Tender Committee of Murang’a County Council.  The Tender Committee was considering tenders to supply the county council with gasoline.  The tenders were received from various companies and the law requires that if tenders are to be considered in a particular manner and the Local Council is obliged to contract the company that quotes the least amount.  Here they awarded the tender that did not quote the least amount and they came to find out that Mwangi and others who company had tendered was a member of the committee and was therefore prohibited from sitting at that meeting.  They sat there and influenced the decision of the tender committee.

They had caused Muranga country council to spend more on supply of diesel than they would have if they had awarded the company that had quoted the least amount.  They were surcharged to pay the difference between he least amount quoted and the amount at which the contract was awarded to their company.   Here the treasurer was exercising his power and duty to levy a surcharge.

The other mistake that they made was Mwangi and the others sitting on a matter in which they had a pecuniary interest.

Note:      IN cases where surcharges should be imposed, if the treasurer fails to levy the surcharge, he himself should be surcharged.

16.             The treasurer has the responsibility should he disagree with the council over any expenditure which he feels is contrary to law, then if the Council goes ahead to approve the expenditure, the treasurer must show that the expenditure is contrary to his advise.  He must similarly indicate in the Minutes that the expenditure was approved contrary to his advise.

POWERS OF THE TREASURER:

Section 130 of LGA AND Part II Third Schedule.

Attorney General V. Duwinton

This is an English Case, this is a case concerning borrowing powers of the local authority. Local Authorities have statutory borrowing powers but there are statutory limits as to the amount local authorities can borrow.  In this case, the local authority in question, A borough which was governed by the Municipal Corporations Act had by 1903 March exhausted its exhausted its borrowing powers.  After exhausting the borrowing powers, the Local Authority proceeded to take overdrafts from the bank.   They took an overdraft that was far in excess of the amount they were allowed to borrow and as usual the bank started charging interest on the overdraft.  The treasurer had been admitted to open an account for the local authority in his name and this is the account with the overdraft.  First of all the local authority had exceeded its borrowing powers and authorised payments on the interests on overdraft.  The treasurer decided to take money in other accounts belonging to the local authority to upset some of the interest in the account made in his name.   One of the members noticed what was going on and decided it was illegal and notified the Attorney General requesting him to sue on the behalf of the council.  While this was going on and before the suit was filed.  The treasurer is a public official and he was sued in his capacity.

The court ruled that monies that had been borrowed in excess of the borrowing powers had been borrowed illegally and the interest was also illegal and that the AG and members of the Local Authority who had requested him to bring the suit were entitled to an injunction to restrain the treasurer from making further payments of interest out of the Burrow funds.

The court also held that the Borough accounts in respect of the interests i.e. the accounts maintained in the name of the Treasurer was going to be impeached by the court.  The court held that the Treasurer was not merely a servant of the council but that as custodian of the Borough funds, he owed a duty and stood in a fiduciary position to the members of the Local Authority and could not plead the orders of the council for an unlawful act.  The treasurer could not claim that the local authority had approved the excess borrowing.

The court held that the overdraft and payment of interests were illegal because the borough had exceeded its borrowing powers.  It also held that the fact that the defendant’s accounts maintained by the treasurer had been audited and passed was no bar to the action.  The court also held that payments of charges of interest on overdraft were illegal, beyond the powers of the borough and therefore a breach of trust.  The court also stated that the Borough Treasurer is a statutory officer with statutory duties and not merely a servant of the council but the custodian of the Borough Funds which are Trust Funds and must not part with them except on proper statutory authority.

DUTIES OF THE ENGINEER:

1.                  The Engineer has the general responsibility for engineering works of the Local Authority; The only exception is where a local authority has made separate contractual arrangements for the engineering works; some of the engineering works is maintenances and repair of roads, drains, street and bridges for which the local authority is responsible.  These duties are the services rendered to the public. Note Section 132 of Local Government Act

DUTIES OF MEDICAL OFFICER OF HEALTH:

The duties are contained in the Local Government Act and in addition to the LGA there is the public health Act which also governs the duties of the Medical Officer of Health of Municipalities.

1.                  The Medical Officer of Health is the Chief Medical Adviser for the Local Authority to which he is appointed.

2.                  Responsible for all matters relating to health for which the local authority is responsible.  Section 131 of LGA and relevant provisions of Public Health Act.

3.                  On matters concerning the appointment of the medical officer of health for the local authority, the Minister for Health must be consulted.

The functions of the councillors appear more like policy making functions.  But the functions of the officials i.e. Town Clerk, Engineer Treasure are more like implementing functions.  They will implement the policies that are passed by the councillors.  For the smooth running of the functions of council the policy decisions are to be made jointly i.e. decisions on what the local authority does is to be made jointly S. 26(a) prohibits any individual member of local authority to give individual instructions on what is to be done.

There are a few statutory restrictions.

1.                  For the Town Clerk the statutes prohibits him/her from engaging in private legal practice S. 138;

2.                  Restriction regarding disclosure of interest, if they have a personal interest they are mandated to declare their personal interest in for example in contracts;

3.                  They are prohibited from exacting monies and fees S. 137 (2) of the Local Government Act;

4.                  The officials are accountable Section 136

RIGHTS:

The officials generally have a right to attend meetings of the committees and sub-committees.

How are the joint decisions made?  

MACHINERY OF LOCAL GOVERNMENT:

The machinery is the means by which local authorities accomplish their duties and functions.  For everything i.e. all duties and functions decisions have to be made and they have to be made jointly.

What then is the means or the machinery by which those joint decisions are made?

THE MEETING SYSTEM

Meeting is one of the means by which local authorities decisions are made.  the statute provides for both annual and ordinary meetings.  Section 74. authorizes local authorities to hold annual meetings and at least 3 other general meetings for the transaction of general business.

1.                  The number one thing is that the general business may be the appointment of the chairman of a committee e.g. a finance committee;

2.                  another general business maybe the authorisation of sealing of documents e.g. the Council could be buying property and transfer documents have been prepared, they sit down and decide;

3.                  Appointment of committee members is something that is done at the annual general meeting or the other ordinary meetings

4.                  Approval of spending; 

5.                  To approve local authorities activities;

6.                  To consider purchase of land and of course other properties;

7.                  To consider the disposal of land;

8.                  To consider the granting of licences to occupy council’s land;

Second Schedule Rule 12 provides that every question and every matter shall be determined by a show of hands and decided upon by majority votes of members present, unless provided otherwise by written law.

Section 75 in addition it provides for special meetings.

Rand V. Odroyd [1959] 1 QB 204

In addition to the annual and general meetings, the statutes provides for special meetings provided for under Section 75 and in this case the statute provides that a mayor in case of a municipality or a chairman in case of county council are to hold special meetings from time to time upon receipt of requests in writing for a meeting.

Meetings may be called for example to consider motions submitted by councillors on matters affecting their electorate.  Special meetings may also be held to authorise the signing of orders for payments where there is no finance committee.  Look at Second Schedule

In addition, public meetings may be held and as the name suggests such meetings may be held with inhabitants of a particular local authority area to consider matters affecting them which are of public importance.  Section 86 of the Local Government Act.  Again the Mayor will be responsible in case of a municipality and a chairman in case of a county council.

There are certain procedural requirements for meetings the most important one being that of notice.  Section 76 OF LGA requires that Notice of Meetings be issued indicating the time, the place and the matter to be discussed at the meeting or the business to be transacted at the meeting.  Such notices are required to be published at the notice-boards of the local authorities.

The notice must also be served on the Town Clerk for Local Authorities and for other local authorities on the chairman.  It must also be served on every member of the Local Authority.

NOTICES:

The notices are to be served on every other person as the minister may specify.  Please note that the time frame for serving the notices is specified.  Check it up.

One of the things required in meetings is the record of attendance.

1.                  They must record attendance;

2.                  The Minutes of the Proceedings of every meeting must be kept stating among other things the matter considered and the decision.  In addition to minuting the matters discussed, the minutes must be entered in books kept for that purpose.  Before they are kept in the books they must be confirmed at the same meeting.  This is for evidence purposes.

REQUIREMENT FOR DISCLOSURE:

Section 137 requires that councillors or any other officer of the Local Authority who has a pecuniary interest direct or indirect in that matter and the matter may be contract, bargains or an arrangement that the council proposes to consider.

The councillors must as soon as is practicable give notice that they have pecuniary interest in a matter to be considered as soon as is practicable.

The requirement in addition to disclosing must not take part in the discussion of the matter.  If you must sit at the meeting then you must not take vote in any part of the matter.  If you fail to disclose  your interest, you are guilty and are liable to a fine of 2000/- or two months imprisonment or both and you can be surcharged for any  loss occasioned to the council as a result of an award for a contract in which you have an interest.  The interest of ones spouse is deemed to be the interest of other spouse provided the two are living together.  Besides in the United Kingdom, it has resulted in a councillor losing his seat.

Brown V. DPP (1956) 2 QB 369

In this case we see an illustration of the meeting as one of the machinery for local authorities.  It also illustrates that voting is the procedure at these meetings.   A meeting was held by a local authority and members took part in that meeting that was going to consider rent increase for the council houses that they were occupying so they had pecuniary interest and should not have sat.  they were charged under Section 76(1) of Local Government Act for participating in a local authority for participating in a local authority and voting at the meeting which was held to consider a matter under which they had a pecuniary interest.  The interest was that they were tenants of the Local Authority and the meeting was about rent increases.  Brown sued the DPP saying the decision went against them and that they did not benefit.  The court held:

“Regardless 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.”

Parliament has not said that they may vote against their interest but not for their interests but that they may not vote in a matter in which they may have an interest.  In other words they are prohibited form subjecting themselves against the law.  Brown and his friend also lost their seats as councillors.

The local government authorises the minister for Local Government to allow councillors who have all interest in the matter to sit and participate if he finds that the number of those with an interest is greater than the number of those without an interest, he may allow them to sit.

The Minister must be notified and their interest declared.  The Minister has to conduct his own investigation and the Minister is to specifically remove the disability of members with an interest, barring them from sitting.

1.      Disclose their interest;

2.      Notify the Minister;

3.      If the Minister finds that the number with an interest is greater then the number without an interest, the minister may give his consent to sit or vote.

Section 252 - Corruption

Section 255 – Dissolution

Section 254 – Winding up.

ADMINISTRATIVE LAW Lesson 9                                        8.11.02

Control of Local Authorities by Central Government

Relationship between Central govt and local authorities

We have a central government that has created a local government, the local government is there to enable the local government to provide services at the local level.  The relationship is that the local govt exercises powers that have been delegated by the central govt.  

The local govt is a delegate of the central govt.  The relationship is that between central and local government can be described as a partnership when it comes to providing services and performance in duties.  In this partnership the local government is supposed to administer local areas, provide assistance and exercise control in local areas through local authorities,  they administer local areas through the local govt the central govt administers the country as a whole.   Local govt thro local authorities administers local areas.  The functions of the local govt through local authorities is supposed to complement that of the central government.  The local govt is a delegate of powers by the central government.  The central govt exercises controls, checks and balances over local authorities.  These checks and balances are exercised in two ways.

1.                  Formal Controls;

2.                  Informal Controls.

Informal Controls which are exercised in the political arena where you have politics influencing the person who becomes head of the local government.  It influences the manner in which manner power is given to the Minister.  It also influences the manner in which the Minister exercises the power.  Politics will also influence the exercise of power by the Minister.

FORMAL CONTROLS:

1.       Ministerial Controls

These are controls exercised primarily through the Local Government Act.  The Local Government Act makes provisions for checks and balances i.e. it provides for the Minister’s consent for a number of things that local authorities that require the Minister’s consent.  S. 143 states that if the local authorities want to purchase land or dispose any land, they must seek consent of the Minister for local government etc.  this requirement for consent is one way that the Central govt exercises control over the local authorities.

2.       Financial Controls

(a)              Note that auditing is one of the ways that control is exercised over local authorities by the central govt.  S. 231.

(b)             Requirement of preparation submissions and approval of estimates of expenditure and income.

(c)              Extra ordinary inspection of local authorities, the Minister has power to conduct an extra ordinary inspection of the local authorities accounts if he suspects that something is wrong or if after submitting of the auditor general’s report he thinks that something is wrong.  There is a procedure provided by LGA the Minister first of all must give notice to the auditor general of his intention to conduct an extra ordinary inspection.  The Minister is also authorised to appoint public officials to conduct the inspections.  These public officials have powers one of which is that they can disallow any item of account that is contrary to law or contrary to the powers of the Minister.  They also have power to surcharge any local authority official who is found to have to have incurred an illegal expenditure.

(d)             The budget itself requires approval by the Minister which approval is part of the exercise of controls.

(e)              The Minister had the power to determine how much money is allocated to the local authority from the Transfer of Funds Fund. (a special fund established by central govt)  the minister will consider whether in previous years a local authority has been able to meet the conditions of the percentage of the promotional grants.  The percentage of promotional grants is the grant given by central govt to local authorities on condition that they can raise the balance of what they require to meet their targets. 

(f)               Under S. 249 LGA the Minister for Local govt is authorised to reduce or to withdraw govt grants from the local authority if

(i)                            it appears to him that a local authority is not utilising the funds well, or

(ii)                          if it appears to the Minister that the administration or the affairs of that local authority are wasteful or inefficient;

(iii)                        if the local authority has failed to act in conformity with the LGA;  there are several ways that the local authority fail to act in conformity with the LGA.

CONTROLS THROUGH APPOINTMENT OF NON-POLITICAL OFFICERS

1.                  Town Clerk

2.                  Treasurer

3.                  City Engineer

The central government hires people directly answerable to it to work for the local authorities.

CONTROLS THROUGH THE MAKING OF REGULATIONS:

Under S. 271 of LGA the Minister for Local Government is empowered to make rules for the better carrying out of the purposes and the provisions of the Act.  In the exercise of this power the Minister has made rules which are known as subsidiary legislation or subsidiary regulations which appear at the back of the LGA.  The power to make these rules is the power of the Minister for Local Government.  The Minister issues rules through Legal Notices.  Through the making of these regulations the Minister is exercising authority as they make provisions for the carrying out of the functions and purposes of the Act.  Sometimes they even cite the specific sections of the Act under which the regulation has been made.

POWERS OVER DEFAULTING LOCAL AUTHORITIES

Powers over defaulting local authorities are covered under Part 19 of LGA

It begins by saying that where the Minister is of the opinion that the local authority is failing to perform the duties imposed on it by the Local Government Act, he is given power to do a number of things

(a)              He can direct that a local authority performs its duties and if a local authority fails to comply, the Minister is required to perform the duties this local authority is failing to perform and then recover any expenses from that local authority’s account;

(b)             He may require a defaulting local authority to submit proposals on how it intends to exercise the powers conferred upon it in the performances of its duties;  if a local authority submits an acceptable proposal to the Minister, the Minister may order that local authority to proceed to exercise the power it had been failing to exercise which will include any duties they may be failing to exercise in the manner prescribed in the proposal.  If they fail to submit the proposal, then the Minister is required to exercise any powers a local authority fails to exercise in such manner as he thinks fit and again he is authorised to recover any expense he incurs from the local authority.  Please note that instead of doing (a) or (b) the

(c)              Minister can remove members of the local authority and instead appoint a commission to act in its place.  Section 251

(d)             The Minister may also wind up the local authority (to the extent of even dissolving them); there are certain procedures to be followed before powers to wind up are exercised.  Certain conditions must be present.

(i)                            A period of 3 months or more must have elapsed between one meeting of a municipal council and the next; in case of other local authorities a period of 6 months or more must have elapsed since the last meeting;

(ii)                          The local authority in question must be found to be unlikely to meet its financial commitments i.e. if its in so much debt that it is not likely that the source of income can upset the debt the minister can have it wound up;

(iii)                        The Minister must find that in his opinion the local authority is failing to exercise its functions in such manner as would best serve the interests of the inhabitants of its area of jurisdiction;

Before winding up the local authorities, the Minister must hold a public inquiry under the Commissioner of Inquiry Cap 102 and in this public inquiry members of that local authority must be given a chance to be heard i.e. the members of the local authority cannot be removed without being given a chance to defend themselves.  The commission will constitute 3 people one of them being the chairman and the statutes provide that in case a commission is appointed, the appointed commission is to last a period of 2 years unless the Minister has good reasons to extent their term.  While the commission lasts, it is entitled to exercise all powers and duties accorded that particular authority under the LGA.  Within those two years the Minister must take all reasonable steps to reconstitute the Local Authority and to make it function properly.  Section 246 – 255.

Please note that the 3 factors earlier mentioned must be present and then the Minister will decide to wound up the local authority.  there are certain procedures that must be followed

1.                  He must issue a notice of intention to wind up a local authority which must be published in the Kenya Gazette and in at least one newspaper circulating in that area;

2.                  He must also lay a draft order for winding up before parliament;  this draft is to be laid before parliament within 14 days of the notice. 

3.                  Please note that the reason for tabling the draft notice in Parliament is that parliament must approve the winding up of the local authority, it must approve the order laid before it by the Minister.  If parliament approves, from the date of that order, the local authority then exists only for purposes of winding up.

At the end of winding up process the Minister is supposed to publish a notice in the Kenya Gazette and he must specifically state the date of dissolution and from that date given in the Gazette the local authority ceases to exist.  In the place of the dissolved local authority, the Minister can establish one or more local authorities.

THE CIVIL SERVICE

Read Constitutional Development in Kenya, Institutional Adaptation and Social Change by J B Ojwang (1999) Pages 81-107

ADMINISTRATIVE LAW Lesson 10                                               9.11.02

Definition of the Civil Service:

The Civil Service can be defined as the core of officials to which is entrusted the implementation of the policy decisions of the government.  From this definition is clear that the function of the civil service is to implement government policy. 

The civil service falls under the Executive arm of the government.  It is in charge of implementation of government policy.

Civil servants are those servants of the crown other than holders of political or judicial offices who are employed in a civil capacity and whose remuneration is paid wholly or directly out of monies voted by parliament.  Excluded from this definition are

1.                  Armed Forces Employees;

2.                  Policemen

3.                  Employees of public corporations

4.                  Employees of local authorities except Town Clerk, Treasurer and City Engineer

5.                  Employees of Nationalised Industries.

We are concerned with the functions of the government to serving the public.  Administrative law is concerned about the functions of public officers.  We want to understand what the law says about the functions, employment, accountability and efficiency of these public officials in the duties that they have been charged.

ORIGIN OF THE IDEA OF PUBLIC SERVICE

As with other governmental machinery including local government system, the civil service is one of those public institutions which was inherited from the British public institutions.  Its tenets were created by the British colonial administration.  However since independence the civil service has changed. New dimensions have been added to it and the new changes have been made to meet the circumstances of the people of Kenya.

List of Civil Servants

1.                  Attorney General; and all who work in the AG’s Chamberrs;

2.                  Controller General

3.                  Auditor General

4.                  Permanent Secretaries

5.                  Secretary to the Civil

6.                  Commissioner of Police

7.                  Ambassadors and High Commissioners

8.                  Public Officials in various government ministries

Regarding their functions their primary role is to implement policies that have been formulated by the government.  These policies are formulated especially by the cabinet.  In their implementation of government policies they have duties that they perform for the public.

DUTIES & SERVICES

1.                  Issuance of Licences, i.e. trade licences, driving licences, marriage licences, liquor licences;

2.                  Collection of Taxes;

3.                  Conduct audits of public accounts

4.                  Represent the government abroad, the functions are many.

In the exercise of these functions they provide services in the interest of public and exercise controls in the interests of the public.

APPOINTMENT TO THE CIVIL SERVICE:

The person appointed to the civil service determines whether or not services will be rendered to the public, they also determine whether services to the public will be delivered efficiently.  It also determines whether they will stay in employment.  

BRITISH WHITE HALL TRADITION

Tradition in respect of British Civil Service from which we derive our own.

Key factors

As the primary agency for policy implementation and given the crucial role of policy implementation,  the Civil Service in the White Hall tradition required an uncompromised degree of efficiency, high competence (capacity to form the functions with which an individual has been charged), loyalty to the government, acceptance of governmental authority.  please note that they were also conscious to appoint people who had experience rather than patronage, patronage was not the determining factor.  They also appointed people who had technical competence vis a vis tribal affiliation.  With these qualities the civil service in the British they were able to efficiently implement the functions that the government had made.  to these were added two factors

1.                  Autonomy

2.                  Neutrality;

Neutrality referred to the requirement that a civil servant be detached from party politics and for this reason any person who was and is appointed to the British Civil Service is prohibited from engaging in party politics, if they engage in party politics they must resign.  This restriction ensures

1.                  British Civil Servants are detached from party politics so that they are given or can develop a high degree of self-effacement; they have self confidence to work efficiently no party what political party is in power.

2.                  It ensured that civil servants are insulated from political controversies, they do not have to worry about political controversies and the effect of the controversies such as instant dismissals.

3.                  Detachment ensures that the civil servants give service to a government of any party or complexion,  they can serve any government that comes to power.

Autonomy means that civil servants in the British Tradition had secured tenure of employment and because their tenure of employment was secured they were secure and could work independently of external influence.  The British Tradition operated on the basis of the doctrine of political responsibility.  This doctrine has contributed greatly to the achievements of the British Civil Service and the doctrine of political responsibility is the doctrine whereby British Ministers are answerable to parliament for what is done or what happens in their ministries and departments, e.g. in the Ministry of labour the minister would be answerable to everything that happens in that ministry.  A minister takes responsibility for the affairs and the civil servants working in his ministry and they are not allowed to blame any faults on the officials.  If any official does anything wrong in their ministry the minister is responsible and thus has to ensure that officials in his ministry work efficiently. 

These factors have enabled the British Civil Service to be very efficient and has improved the quality of service provided to the people and generally to the development of that country.

In Kenya what do we have in requirement of

The Kenyan situation

In Kenya the particular historical context of the growth of the civil service did not allow for all of the attributes that are found in the British Civil Service.  In contrast to the White Hall Model, with its emphasis on neutrality and autonomy, when the colonial administration introduced the idea of the civil service, it vested the whole civil service with both the powers of policy making and powers of policy implementation.  This was a breach of rule number one, the person who makes policy cannot be incharge of implementation but in Kenya this is what happened.  There was failure to maintain the strict separation between policy makers and implementers as in the British Tradition.

The senior Civil Servants were the governor and his appointed provincial commissioners and district commissioners.  In this position, the civil servants were making policies and at the same time they took part in the implementation of those policies. 

The demand for law and order necessitated the growth of a large provincial administration manned by civil servants.  They also exercised relatively unfettered degree of discretion unlike the civil servants in the British Tradition,  the British ones worked under a specific code of regulation but in Kenya they had unfettered degree of discretion.  This went on until Kenya approached independence.  Some gradual changes took place between 1960 and 1963.  towards independence, the colonial administration made changes which included changes made in the appointment of civil servants.  One of the changes was that he civil service was no longer going to take part in policy making and their functions were limited in policy making.

Their discretionary powers which were until then unrestricted, and wide were taken away.  The Constitution was amended and by this amendment the civil service was placed under supervision of an independent body which was also created by the Constitution and this was the Public Service Commission.

By this constitutional amendment, powers over the appointment of new civil servants was given to the newly created Public Service Commission, before this time, the civil servants were appointed by the Governor.  T

The public service commission was given power to exercise disciplinary control over persons appointed to the public service.  For this purpose a detailed government code of regulation was created on the basis of which the public service commission exercised control over civil servants.  This code of regulations made certain provisions, ie. It required maintenance of good conduct.  The code of regulations also formed part of the terms of employment of civil servants.  It specifically proscribed engagement in political activities by civil servants.  It prohibited civil servants from presenting themselves as candidates for political offices unless they had resigned from the civil service.

Civil Servants were also prohibited from joining any political associations or parties because it was considered that such associations were not consistent with their duties and obligations as public servants because they were required to implement governmental policy without any bias and without partiality regardless of any political views that they may hold.

In this code people in the higher ranks like the controller general were totally barred from participating in the political activities or political party matters.

In this Constitution, the tenure of Civil Servants was secured to make Civil Servants discharged their functions independently and efficiently.  A civil servant could not be discharged from service unless they did matters which warranted their dismissal as stipulated in their code of regulations. Inefficiency would be one of the grounds or engaging in political activities would be grounds for dismissal.  Misconduct was another ground of regulations.

This secured tenure meant that it was not easy to dismiss a civil servant.  No civil servant could be dismissed unless and until the matter had been referred to an independent tribunal and then that particular civil servant would be given a chance to be present and to be heard.  With such a civil service, appointment by public service commission on the basis of qualified credentials would be expected to function efficiently.

DEVELOPMENTS IN THE CIVIL SERVICE SINCE INDEPENDENCE

The situation remained until 1964 when the country attained independent status and shortly after independence, firstly it was felt that in this country it was advisable to have a neutral and independent civil service.

Several constitutional amendements were made whose overall effect was to place the ‘civil service squarely under the control of the President.  These were the changes

1.                  On attainment of republican status in 1964, members of the public service commission were now to be appointed by the president at his own discretion.  Previously they were appointed by the governor general acting on the advise of the Judicial Service Commission.

2.                  Whereas the public service commission was originally required to operate independently of the executive, all of the officers appointed by the executive, now the President could give authority to the Public  Service Commission to delegate any one or more of its functions to one member.  These amendments also affected the position of the Attorney General, The Controller General, Auditor General and Permanent Secretary, these powers were meant to give the president unfettered discretion in relation to this offices.

In 1966 other amendments enhanced the position of the president in relation to the public service.  the amendment gave powers to the president of constituting and abolishing offices for the Republic of Kenya and of making appointments to any such offices in addition he had the power to terminate any such appointments at his own discretion. 

The Constitution further decided that any person who holds office shall hold office at the pleasure of the President.  Section 24 and 25 of the Constitution.

The effect of taking away the power of appointment and termination of civil services from the public service commission and taking our the tenure of the civil servants.

The effects were

1.      It has been observed that the effect of these changes was one that it relegated the position of Public Service Commission to a limited auxiliary role making it merely a technical department of the Executive;

2.      With respect of tenure of Civil Servants, the tenure no longer depends on the observance of the code of regulations, it no longer depends on their performance or reputation but on the pleasure of the president.  Since the president could abolish offices at his own discretion,

3.      it follows that he idea of protecting offices by vesting their control in an independent body is no longer valid. 

4.      Further the president became or has become in theory the employer of all civil servants and he can terminate their services at will. 

5.      Because of this the constitutional mechanism that was intended to insulate public officers from the vagaries of political will was dismantled by these amendments. 

6.      The Public Service Commission lost independent Constitutional status and these amendments created conflicts in constitutional provisions.

Look at Mwangi Stephen Mureithi V. Attorney General

Administrative Law & Agencies 4                                   

DUTIES OF THE TREASURER

17.             He is the chief financial officer;

18.             He is he financial adviser of the local authority to which he has been appointed by the local government;

19.             He is charged with general responsibilities for all matters of finance and accounts of the local authority;

20.             He is the paymaster, he is in charged of salaries payments, services rendered etc.

21.             He is the Chief Accountant for Local Authority

22.             He is the collector of funds of the local authority e.g. rates and rents;

23.             He is responsible for the organisation of the financial department of the local authority;

24.             He is responsible for the maintenance of the Local Authorities accounting systems;

25.             He is responsible for the supervision of financial records;

26.             He is responsible for the effecting of insurance for all departments of local authority;

27.             Responsible for prescribing account procedures for the local authority;

28.             Responsible for investments of all monies not immediately required by the local authority;

29.             Responsible for management of all funds of the local authority and in this respect if there any instructions from the finance committee;

30.             He has a personal responsibility to disallow any item of accounts which is contrary to law;

31.             He has the duty to levy surcharge (penalty) on anybody who incurs any expenditure contrary to law;

Mwangi & Another V. Tusker

The case illustrates that the treasurer has the responsibility to levy a surcharge on anybody who incurs any expenditure contrary to the law.  The case deals with the Tender Committee of Murang’a County Council.  The Tender Committee was considering tenders to supply the county council with gasoline.  The tenders were received from various companies and the law requires that if tenders are to be considered in a particular manner and the Local Council is obliged to contract the company that quotes the least amount.  Here they awarded the tender that did not quote the least amount and they came to find out that Mwangi and others who company had tendered was a member of the committee and was therefore prohibited from sitting at that meeting.  They sat there and influenced the decision of the tender committee.

They had caused Muranga country council to spend more on supply of diesel than they would have if they had awarded the company that had quoted the least amount.  They were surcharged to pay the difference between he least amount quoted and the amount at which the contract was awarded to their company.   Here the treasurer was exercising his power and duty to levy a surcharge.

The other mistake that they made was Mwangi and the others sitting on a matter in which they had a pecuniary interest.

Note:      IN cases where surcharges should be imposed, if the treasurer fails to levy the surcharge, he himself should be surcharged.

32.             The treasurer has the responsibility should he disagree with the council over any expenditure which he feels is contrary to law, then if the Council goes ahead to approve the expenditure, the treasurer must show that the expenditure is contrary to his advise.  He must similarly indicate in the Minutes that the expenditure was approved contrary to his advise.

POWERS OF THE TREASURER:

Section 130 of LGA AND Part II Third Schedule.

Attorney General V. Duwinton

This is an English Case, this is a case concerning borrowing powers of the local authority. Local Authorities have statutory borrowing powers but there are statutory limits as to the amount local authorities can borrow.  In this case, the local authority in question, A borough which was governed by the Municipal Corporations Act had by 1903 March exhausted its exhausted its borrowing powers.  After exhausting the borrowing powers, the Local Authority proceeded to take overdrafts from the bank.   They took an overdraft that was far in excess of the amount they were allowed to borrow and as usual the bank started charging interest on the overdraft.  The treasurer had been admitted to open an account for the local authority in his name and this is the account with the overdraft.  First of all the local authority had exceeded its borrowing powers and authorised payments on the interests on overdraft.  The treasurer decided to take money in other accounts belonging to the local authority to upset some of the interest in the account made in his name.   One of the members noticed what was going on and decided it was illegal and notified the Attorney General requesting him to sue on the behalf of the council.  While this was going on and before the suit was filed.  The treasurer is a public official and he was sued in his capacity.

The court ruled that monies that had been borrowed in excess of the borrowing powers had been borrowed illegally and the interest was also illegal and that the AG and members of the Local Authority who had requested him to bring the suit were entitled to an injunction to restrain the treasurer from making further payments of interest out of the Burrow funds.

The court also held that the Borough accounts in respect of the interests i.e. the accounts maintained in the name of the Treasurer was going to be impeached by the court.  The court held that the Treasurer was not merely a servant of the council but that as custodian of the Borough funds, he owed a duty and stood in a fiduciary position to the members of the Local Authority and could not plead the orders of the council for an unlawful act.  The treasurer could not claim that the local authority had approved the excess borrowing.

The court held that the overdraft and payment of interests were illegal because the borough had exceeded its borrowing powers.  It also held that the fact that the defendant’s accounts maintained by the treasurer had been audited and passed was no bar to the action.  The court also held that payments of charges of interest on overdraft were illegal, beyond the powers of the borough and therefore a breach of trust.  The court also stated that the Borough Treasurer is a statutory officer with statutory duties and not merely a servant of the council but the custodian of the Borough Funds which are Trust Funds and must not part with them except on proper statutory authority.

DUTIES OF THE ENGINEER:

2.                  The Engineer has the general responsibility for engineering works of the Local Authority; The only exception is where a local authority has made separate contractual arrangements for the engineering works; some of the engineering works is maintenances and repair of roads, drains, street and bridges for which the local authority is responsible.  These duties are the services rendered to the public. Note Section 132 of Local Government Act

DUTIES OF MEDICAL OFFICER OF HEALTH:

The duties are contained in the Local Government Act and in addition to the LGA there is the public health Act which also governs the duties of the Medical Officer of Health of Municipalities.

4.                  The Medical Officer of Health is the Chief Medical Adviser for the Local Authority to which he is appointed.

5.                  Responsible for all matters relating to health for which the local authority is responsible.  Section 131 of LGA and relevant provisions of Public Health Act.

6.                  On matters concerning the appointment of the medical officer of health for the local authority, the Minister for Health must be consulted.

The functions of the councillors appear more like policy making functions.  But the functions of the officials i.e. Town Clerk, Engineer Treasure are more like implementing functions.  They will implement the policies that are passed by the councillors.  For the smooth running of the functions of council the policy decisions are to be made jointly i.e. decisions on what the local authority does is to be made jointly S. 26(a) prohibits any individual member of local authority to give individual instructions on what is to be done.

There are a few statutory restrictions.

5.                  For the Town Clerk the statutes prohibits him/her from engaging in private legal practice S. 138;

6.                  Restriction regarding disclosure of interest, if they have a personal interest they are mandated to declare their personal interest in for example in contracts;

7.                  They are prohibited from exacting monies and fees S. 137 (2) of the Local Government Act;

8.                  The officials are accountable Section 136

RIGHTS:

The officials generally have a right to attend meetings of the committees and sub-committees.

How are the joint decisions made?  

MACHINERY OF LOCAL GOVERNMENT:

The machinery is the means by which local authorities accomplish their duties and functions.  For everything i.e. all duties and functions decisions have to be made and they have to be made jointly.

What then is the means or the machinery by which those joint decisions are made?

THE MEETING SYSTEM

Meeting is one of the means by which local authorities decisions are made.  the statute provides for both annual and ordinary meetings.  Section 74. authorizes local authorities to hold annual meetings and at least 3 other general meetings for the transaction of general business.

9.                  The number one thing is that the general business may be the appointment of the chairman of a committee e.g. a finance committee;

10.             another general business maybe the authorisation of sealing of documents e.g. the Council could be buying property and transfer documents have been prepared, they sit down and decide;

11.             Appointment of committee members is something that is done at the annual general meeting or the other ordinary meetings

12.             Approval of spending; 

13.             To approve local authorities activities;

14.             To consider purchase of land and of course other properties;

15.             To consider the disposal of land;

16.             To consider the granting of licences to occupy council’s land;

Second Schedule Rule 12 provides that every question and every matter shall be determined by a show of hands and decided upon by majority votes of members present, unless provided otherwise by written law.

Section 75 in addition it provides for special meetings.

Rand V. Odroyd [1959] 1 QB 204

In addition to the annual and general meetings, the statutes provides for special meetings provided for under Section 75 and in this case the statute provides that a mayor in case of a municipality or a chairman in case of county council are to hold special meetings from time to time upon receipt of requests in writing for a meeting.

Meetings may be called for example to consider motions submitted by councillors on matters affecting their electorate.  Special meetings may also be held to authorise the signing of orders for payments where there is no finance committee.  Look at Second Schedule

In addition, public meetings may be held and as the name suggests such meetings may be held with inhabitants of a particular local authority area to consider matters affecting them which are of public importance.  Section 86 of the Local Government Act.  Again the Mayor will be responsible in case of a municipality and a chairman in case of a county council.

There are certain procedural requirements for meetings the most important one being that of notice.  Section 76 OF LGA requires that Notice of Meetings be issued indicating the time, the place and the matter to be discussed at the meeting or the business to be transacted at the meeting.  Such notices are required to be published at the notice-boards of the local authorities.

The notice must also be served on the Town Clerk for Local Authorities and for other local authorities on the chairman.  It must also be served on every member of the Local Authority.

NOTICES:

The notices are to be served on every other person as the minister may specify.  Please note that the time frame for serving the notices is specified.  Check it up.

One of the things required in meetings is the record of attendance.

3.                  They must record attendance;

4.                  The Minutes of the Proceedings of every meeting must be kept stating among other things the matter considered and the decision.  In addition to minuting the matters discussed, the minutes must be entered in books kept for that purpose.  Before they are kept in the books they must be confirmed at the same meeting.  This is for evidence purposes.

REQUIREMENT FOR DISCLOSURE:

Section 137 requires that councillors or any other officer of the Local Authority who has a pecuniary interest direct or indirect in that matter and the matter may be contract, bargains or an arrangement that the council proposes to consider.

The councillors must as soon as is practicable give notice that they have pecuniary interest in a matter to be considered as soon as is practicable.

The requirement in addition to disclosing must not take part in the discussion of the matter.  If you must sit at the meeting then you must not take vote in any part of the matter.  If you fail to disclose  your interest, you are guilty and are liable to a fine of 2000/- or two months imprisonment or both and you can be surcharged for any  loss occasioned to the council as a result of an award for a contract in which you have an interest.  The interest of ones spouse is deemed to be the interest of other spouse provided the two are living together.  Besides in the United Kingdom, it has resulted in a councillor losing his seat.

Brown V. DPP (1956) 2 QB 369

In this case we see an illustration of the meeting as one of the machinery for local authorities.  It also illustrates that voting is the procedure at these meetings.   A meeting was held by a local authority and members took part in that meeting that was going to consider rent increase for the council houses that they were occupying so they had pecuniary interest and should not have sat.  they were charged under Section 76(1) of Local Government Act for participating in a local authority for participating in a local authority and voting at the meeting which was held to consider a matter under which they had a pecuniary interest.  The interest was that they were tenants of the Local Authority and the meeting was about rent increases.  Brown sued the DPP saying the decision went against them and that they did not benefit.  The court held:

“Regardless 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.”

Parliament has not said that they may vote against their interest but not for their interests but that they may not vote in a matter in which they may have an interest.  In other words they are prohibited form subjecting themselves against the law.  Brown and his friend also lost their seats as councillors.

The local government authorises the minister for Local Government to allow councillors who have all interest in the matter to sit and participate if he finds that the number of those with an interest is greater than the number of those without an interest, he may allow them to sit.

The Minister must be notified and their interest declared.  The Minister has to conduct his own investigation and the Minister is to specifically remove the disability of members with an interest, barring them from sitting.

4.      Disclose their interest;

5.      Notify the Minister;

6.      If the Minister finds that the number with an interest is greater then the number without an interest, the minister may give his consent to sit or vote.

Section 252 - Corruption

Section 255 – Dissolution

Section 254 – Winding up.

ADMINISTRATIVE LAW Lesson 9                                       

Control of Local Authorities by Central Government

Relationship between Central govt and local authorities

We have a central government that has created a local government, the local government is there to enable the local government to provide services at the local level.  The relationship is that the local govt exercises powers that have been delegated by the central govt.  

The local govt is a delegate of the central govt.  The relationship is that between central and local government can be described as a partnership when it comes to providing services and performance in duties.  In this partnership the local government is supposed to administer local areas, provide assistance and exercise control in local areas through local authorities,  they administer local areas through the local govt the central govt administers the country as a whole.   Local govt thro local authorities administers local areas.  The functions of the local govt through local authorities is supposed to complement that of the central government.  The local govt is a delegate of powers by the central government.  The central govt exercises controls, checks and balances over local authorities.  These checks and balances are exercised in two ways.

3.                  Formal Controls;

4.                  Informal Controls.

Informal Controls which are exercised in the political arena where you have politics influencing the person who becomes head of the local government.  It influences the manner in which manner power is given to the Minister.  It also influences the manner in which the Minister exercises the power.  Politics will also influence the exercise of power by the Minister.

FORMAL CONTROLS:

1.       Ministerial Controls

These are controls exercised primarily through the Local Government Act.  The Local Government Act makes provisions for checks and balances i.e. it provides for the Minister’s consent for a number of things that local authorities that require the Minister’s consent.  S. 143 states that if the local authorities want to purchase land or dispose any land, they must seek consent of the Minister for local government etc.  this requirement for consent is one way that the Central govt exercises control over the local authorities.

2.       Financial Controls

(g)              Note that auditing is one of the ways that control is exercised over local authorities by the central govt.  S. 231.

(h)             Requirement of preparation submissions and approval of estimates of expenditure and income.

(i)                Extra ordinary inspection of local authorities, the Minister has power to conduct an extra ordinary inspection of the local authorities accounts if he suspects that something is wrong or if after submitting of the auditor general’s report he thinks that something is wrong.  There is a procedure provided by LGA the Minister first of all must give notice to the auditor general of his intention to conduct an extra ordinary inspection.  The Minister is also authorised to appoint public officials to conduct the inspections.  These public officials have powers one of which is that they can disallow any item of account that is contrary to law or contrary to the powers of the Minister.  They also have power to surcharge any local authority official who is found to have to have incurred an illegal expenditure.

(j)                The budget itself requires approval by the Minister which approval is part of the exercise of controls.

(k)              The Minister had the power to determine how much money is allocated to the local authority from the Transfer of Funds Fund. (a special fund established by central govt)  the minister will consider whether in previous years a local authority has been able to meet the conditions of the percentage of the promotional grants.  The percentage of promotional grants is the grant given by central govt to local authorities on condition that they can raise the balance of what they require to meet their targets. 

(l)                Under S. 249 LGA the Minister for Local govt is authorised to reduce or to withdraw govt grants from the local authority if

(i)                            it appears to him that a local authority is not utilising the funds well, or

(ii)                          if it appears to the Minister that the administration or the affairs of that local authority are wasteful or inefficient;

(iii)                        if the local authority has failed to act in conformity with the LGA;  there are several ways that the local authority fail to act in conformity with the LGA.

CONTROLS THROUGH APPOINTMENT OF NON-POLITICAL OFFICERS

1.                  Town Clerk

2.                  Treasurer

3.                  City Engineer

The central government hires people directly answerable to it to work for the local authorities.

CONTROLS THROUGH THE MAKING OF REGULATIONS:

Under S. 271 of LGA the Minister for Local Government is empowered to make rules for the better carrying out of the purposes and the provisions of the Act.  In the exercise of this power the Minister has made rules which are known as subsidiary legislation or subsidiary regulations which appear at the back of the LGA.  The power to make these rules is the power of the Minister for Local Government.  The Minister issues rules through Legal Notices.  Through the making of these regulations the Minister is exercising authority as they make provisions for the carrying out of the functions and purposes of the Act.  Sometimes they even cite the specific sections of the Act under which the regulation has been made.

POWERS OVER DEFAULTING LOCAL AUTHORITIES

Powers over defaulting local authorities are covered under Part 19 of LGA

It begins by saying that where the Minister is of the opinion that the local authority is failing to perform the duties imposed on it by the Local Government Act, he is given power to do a number of things

(e)              He can direct that a local authority performs its duties and if a local authority fails to comply, the Minister is required to perform the duties this local authority is failing to perform and then recover any expenses from that local authority’s account;

(f)               He may require a defaulting local authority to submit proposals on how it intends to exercise the powers conferred upon it in the performances of its duties;  if a local authority submits an acceptable proposal to the Minister, the Minister may order that local authority to proceed to exercise the power it had been failing to exercise which will include any duties they may be failing to exercise in the manner prescribed in the proposal.  If they fail to submit the proposal, then the Minister is required to exercise any powers a local authority fails to exercise in such manner as he thinks fit and again he is authorised to recover any expense he incurs from the local authority.  Please note that instead of doing (a) or (b) the

(g)              Minister can remove members of the local authority and instead appoint a commission to act in its place.  Section 251

(h)             The Minister may also wind up the local authority (to the extent of even dissolving them); there are certain procedures to be followed before powers to wind up are exercised.  Certain conditions must be present.

(i)                            A period of 3 months or more must have elapsed between one meeting of a municipal council and the next; in case of other local authorities a period of 6 months or more must have elapsed since the last meeting;

(ii)                          The local authority in question must be found to be unlikely to meet its financial commitments i.e. if its in so much debt that it is not likely that the source of income can upset the debt the minister can have it wound up;

(iii)                        The Minister must find that in his opinion the local authority is failing to exercise its functions in such manner as would best serve the interests of the inhabitants of its area of jurisdiction;

Before winding up the local authorities, the Minister must hold a public inquiry under the Commissioner of Inquiry Cap 102 and in this public inquiry members of that local authority must be given a chance to be heard i.e. the members of the local authority cannot be removed without being given a chance to defend themselves.  The commission will constitute 3 people one of them being the chairman and the statutes provide that in case a commission is appointed, the appointed commission is to last a period of 2 years unless the Minister has good reasons to extent their term.  While the commission lasts, it is entitled to exercise all powers and duties accorded that particular authority under the LGA.  Within those two years the Minister must take all reasonable steps to reconstitute the Local Authority and to make it function properly.  Section 246 – 255.

Please note that the 3 factors earlier mentioned must be present and then the Minister will decide to wound up the local authority.  there are certain procedures that must be followed

4.                  He must issue a notice of intention to wind up a local authority which must be published in the Kenya Gazette and in at least one newspaper circulating in that area;

5.                  He must also lay a draft order for winding up before parliament;  this draft is to be laid before parliament within 14 days of the notice. 

6.                  Please note that the reason for tabling the draft notice in Parliament is that parliament must approve the winding up of the local authority, it must approve the order laid before it by the Minister.  If parliament approves, from the date of that order, the local authority then exists only for purposes of winding up.

At the end of winding up process the Minister is supposed to publish a notice in the Kenya Gazette and he must specifically state the date of dissolution and from that date given in the Gazette the local authority ceases to exist.  In the place of the dissolved local authority, the Minister can establish one or more local authorities.

THE CIVIL SERVICE

Read Constitutional Development in Kenya, Institutional Adaptation and Social Change by J B Ojwang (1999) Pages 81-107

ADMINISTRATIVE LAW Lesson 10                                              

Definition of the Civil Service:

The Civil Service can be defined as the core of officials to which is entrusted the implementation of the policy decisions of the government.  From this definition is clear that the function of the civil service is to implement government policy. 

The civil service falls under the Executive arm of the government.  It is in charge of implementation of government policy.

Civil servants are those servants of the crown other than holders of political or judicial offices who are employed in a civil capacity and whose remuneration is paid wholly or directly out of monies voted by parliament.  Excluded from this definition are

6.                  Armed Forces Employees;

7.                  Policemen

8.                  Employees of public corporations

9.                  Employees of local authorities except Town Clerk, Treasurer and City Engineer

10.             Employees of Nationalised Industries.

We are concerned with the functions of the government to serving the public.  Administrative law is concerned about the functions of public officers.  We want to understand what the law says about the functions, employment, accountability and efficiency of these public officials in the duties that they have been charged.

ORIGIN OF THE IDEA OF PUBLIC SERVICE

As with other governmental machinery including local government system, the civil service is one of those public institutions which was inherited from the British public institutions.  Its tenets were created by the British colonial administration.  However since independence the civil service has changed. New dimensions have been added to it and the new changes have been made to meet the circumstances of the people of Kenya.

List of Civil Servants

9.                  Attorney General; and all who work in the AG’s Chamberrs;

10.             Controller General

11.             Auditor General

12.             Permanent Secretaries

13.             Secretary to the Civil

14.             Commissioner of Police

15.             Ambassadors and High Commissioners

16.             Public Officials in various government ministries

Regarding their functions their primary role is to implement policies that have been formulated by the government.  These policies are formulated especially by the cabinet.  In their implementation of government policies they have duties that they perform for the public.

DUTIES & SERVICES

5.                  Issuance of Licences, i.e. trade licences, driving licences, marriage licences, liquor licences;

6.                  Collection of Taxes;

7.                  Conduct audits of public accounts

8.                  Represent the government abroad, the functions are many.

In the exercise of these functions they provide services in the interest of public and exercise controls in the interests of the public.

APPOINTMENT TO THE CIVIL SERVICE:

The person appointed to the civil service determines whether or not services will be rendered to the public, they also determine whether services to the public will be delivered efficiently.  It also determines whether they will stay in employment.  

BRITISH WHITE HALL TRADITION

Tradition in respect of British Civil Service from which we derive our own.

Key factors

As the primary agency for policy implementation and given the crucial role of policy implementation,  the Civil Service in the White Hall tradition required an uncompromised degree of efficiency, high competence (capacity to form the functions with which an individual has been charged), loyalty to the government, acceptance of governmental authority.  please note that they were also conscious to appoint people who had experience rather than patronage, patronage was not the determining factor.  They also appointed people who had technical competence vis a vis tribal affiliation.  With these qualities the civil service in the British they were able to efficiently implement the functions that the government had made.  to these were added two factors

3.                  Autonomy

4.                  Neutrality;

Neutrality referred to the requirement that a civil servant be detached from party politics and for this reason any person who was and is appointed to the British Civil Service is prohibited from engaging in party politics, if they engage in party politics they must resign.  This restriction ensures

4.                  British Civil Servants are detached from party politics so that they are given or can develop a high degree of self-effacement; they have self confidence to work efficiently no party what political party is in power.

5.                  It ensured that civil servants are insulated from political controversies, they do not have to worry about political controversies and the effect of the controversies such as instant dismissals.

6.                  Detachment ensures that the civil servants give service to a government of any party or complexion,  they can serve any government that comes to power.

Autonomy means that civil servants in the British Tradition had secured tenure of employment and because their tenure of employment was secured they were secure and could work independently of external influence.  The British Tradition operated on the basis of the doctrine of political responsibility.  This doctrine has contributed greatly to the achievements of the British Civil Service and the doctrine of political responsibility is the doctrine whereby British Ministers are answerable to parliament for what is done or what happens in their ministries and departments, e.g. in the Ministry of labour the minister would be answerable to everything that happens in that ministry.  A minister takes responsibility for the affairs and the civil servants working in his ministry and they are not allowed to blame any faults on the officials.  If any official does anything wrong in their ministry the minister is responsible and thus has to ensure that officials in his ministry work efficiently. 

These factors have enabled the British Civil Service to be very efficient and has improved the quality of service provided to the people and generally to the development of that country.

In Kenya what do we have in requirement of

The Kenyan situation

In Kenya the particular historical context of the growth of the civil service did not allow for all of the attributes that are found in the British Civil Service.  In contrast to the White Hall Model, with its emphasis on neutrality and autonomy, when the colonial administration introduced the idea of the civil service, it vested the whole civil service with both the powers of policy making and powers of policy implementation.  This was a breach of rule number one, the person who makes policy cannot be incharge of implementation but in Kenya this is what happened.  There was failure to maintain the strict separation between policy makers and implementers as in the British Tradition.

The senior Civil Servants were the governor and his appointed provincial commissioners and district commissioners.  In this position, the civil servants were making policies and at the same time they took part in the implementation of those policies. 

The demand for law and order necessitated the growth of a large provincial administration manned by civil servants.  They also exercised relatively unfettered degree of discretion unlike the civil servants in the British Tradition,  the British ones worked under a specific code of regulation but in Kenya they had unfettered degree of discretion.  This went on until Kenya approached independence.  Some gradual changes took place between 1960 and 1963.  towards independence, the colonial administration made changes which included changes made in the appointment of civil servants.  One of the changes was that he civil service was no longer going to take part in policy making and their functions were limited in policy making.

Their discretionary powers which were until then unrestricted, and wide were taken away.  The Constitution was amended and by this amendment the civil service was placed under supervision of an independent body which was also created by the Constitution and this was the Public Service Commission.

By this constitutional amendment, powers over the appointment of new civil servants was given to the newly created Public Service Commission, before this time, the civil servants were appointed by the Governor.  T

The public service commission was given power to exercise disciplinary control over persons appointed to the public service.  For this purpose a detailed government code of regulation was created on the basis of which the public service commission exercised control over civil servants.  This code of regulations made certain provisions, ie. It required maintenance of good conduct.  The code of regulations also formed part of the terms of employment of civil servants.  It specifically proscribed engagement in political activities by civil servants.  It prohibited civil servants from presenting themselves as candidates for political offices unless they had resigned from the civil service.

Civil Servants were also prohibited from joining any political associations or parties because it was considered that such associations were not consistent with their duties and obligations as public servants because they were required to implement governmental policy without any bias and without partiality regardless of any political views that they may hold.

In this code people in the higher ranks like the controller general were totally barred from participating in the political activities or political party matters.

In this Constitution, the tenure of Civil Servants was secured to make Civil Servants discharged their functions independently and efficiently.  A civil servant could not be discharged from service unless they did matters which warranted their dismissal as stipulated in their code of regulations. Inefficiency would be one of the grounds or engaging in political activities would be grounds for dismissal.  Misconduct was another ground of regulations.

This secured tenure meant that it was not easy to dismiss a civil servant.  No civil servant could be dismissed unless and until the matter had been referred to an independent tribunal and then that particular civil servant would be given a chance to be present and to be heard.  With such a civil service, appointment by public service commission on the basis of qualified credentials would be expected to function efficiently.

DEVELOPMENTS IN THE CIVIL SERVICE SINCE INDEPENDENCE

The situation remained until 1964 when the country attained independent status and shortly after independence, firstly it was felt that in this country it was advisable to have a neutral and independent civil service.

Several constitutional amendements were made whose overall effect was to place the ‘civil service squarely under the control of the President.  These were the changes

3.                  On attainment of republican status in 1964, members of the public service commission were now to be appointed by the president at his own discretion.  Previously they were appointed by the governor general acting on the advise of the Judicial Service Commission.

4.                  Whereas the public service commission was originally required to operate independently of the executive, all of the officers appointed by the executive, now the President could give authority to the Public  Service Commission to delegate any one or more of its functions to one member.  These amendments also affected the position of the Attorney General, The Controller General, Auditor General and Permanent Secretary, these powers were meant to give the president unfettered discretion in relation to this offices.

In 1966 other amendments enhanced the position of the president in relation to the public service.  the amendment gave powers to the president of constituting and abolishing offices for the Republic of Kenya and of making appointments to any such offices in addition he had the power to terminate any such appointments at his own discretion. 

The Constitution further decided that any person who holds office shall hold office at the pleasure of the President.  Section 24 and 25 of the Constitution.

The effect of taking away the power of appointment and termination of civil services from the public service commission and taking our the tenure of the civil servants.

The effects were

7.      It has been observed that the effect of these changes was one that it relegated the position of Public Service Commission to a limited auxiliary role making it merely a technical department of the Executive;

8.      With respect of tenure of Civil Servants, the tenure no longer depends on the observance of the code of regulations, it no longer depends on their performance or reputation but on the pleasure of the president.  Since the president could abolish offices at his own discretion,

9.      it follows that he idea of protecting offices by vesting their control in an independent body is no longer valid. 

10. Further the president became or has become in theory the employer of all civil servants and he can terminate their services at will. 

11. Because of this the constitutional mechanism that was intended to insulate public officers from the vagaries of political will was dismantled by these amendments. 

12. The Public Service Commission lost independent Constitutional status and these amendments created conflicts in constitutional provisions.

Look at Mwangi Stephen Mureithi V. Attorney General

 Courtesy of Dr Jane Dwasi