Law
& Administrative Authorities
Dr.
Dwasi Jane
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, local authorities etc. 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
laws include
1. Acts of Parliament; ie. 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.
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
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