Bahir Dar University

Faculty of Law

Administrative Law Module

For Distance Students
Prepared by: Mekdes Tadele (Ass.
Lecturer)

Editors: Benyam Tafesse (Ass. Lecturer)

Taye Minale
(Ass. Lecturer)

2007
 Contents
Introduction...................................................................................................................................3
Chapter One..................................................................................................................................6
AN INTRODUCTION TOADMINISTRATIVE LAW...............................................................................6
1.1. What is Administrative Law?...........................................................................................7
1.2. Scope of Administrative Law.........................................................................................10
1.3. The purposes of Administrative Law.............................................................................14
1.4. Origin and Historical Development ofAdministrative Law............................................16
1.4.1. Common Law Legal System............................................................................................17
1.4.1.2In the United States of America.....................................................................................17
1.4.2. In the civil Law Legal System...........................................................................................25
1.4.3. Historical Background of Administrative Law in Ethiopia..........................................29
1.5. Administrative Law Vs Constitutional Law....................................................................35
1.6. Sources of Administrative Law......................................................................................37
Review Questions.....................................................................................................................39
Chapter two.................................................................................................................................41
ADMINSTRAYIVE FUNCTIONS and PROCESSES.............................................................................41
2.1. What are Administrative Agencies?..................................................................................42
2.2. The Necessity for Administrative Agencies........................................................................46
2.3. The Powers of Administrative Agencies.............................................................................47
2.3.1. Mandatory and Discretionary power of Administrative Agencies.............................47
2.3.2. Administrative or Executive Powers..........................................................................51
2.3.3. Legislative Functions.................................................................................................58
[Link]. Procedures for Rule Making..................................................................................68
2.3.4. Adjudicative Power...................................................................................................74
Chapter three...............................................................................................................................88
FUNDAMENTAL CONSTITUTIONAL PRINCIPLES RELATED to ADMINSTRATIVE LAW.....................88
3.1. Separation of Powers....................................................................................................90
3.1.1. Recognition of the Doctrine in Britain, U.S.A. and France.........................................96
3.1.2. The Recognition of Separation of Powers in Ethiopia.............................................101

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 3.2. Rule of law..................................................................................................................108
3.2.1. Historical Development...........................................................................................109
3.2.2. The Meaning of Rule of law....................................................................................111
3.2.3. Recognition of Rule of Law in Ethiopia....................................................................116
3.3. Due Process of law......................................................................................................121
3.3.1. The Meaning of Due process of Law.......................................................................121
3.3.2. Historical Development of Due Process of Law.......................................................125
3.3.3. Dichotomy of Due Process of Law...........................................................................127
3.3.4. The Principle of Due Process of Law in Ethiopia......................................................131
3.3.5. The Significance and Relevance of Due Process of Law to Administrative Agencies
133
Chapter Four..............................................................................................................................135
MECHANISM of CONTROLLING the POWERS of ADMINSTRATIVE AGENCIES...........................135
4.1. Why do we need to control administrative agencies?................................................136
4.2. Internal Control...........................................................................................................137
4.3. External Control..........................................................................................................138
4.3.1. Control by the Parliament.......................................................................................139
4.3.2. Control by the Courts (Judicial Review)..................................................................144
[Link]. Judicial Review as Distinct from Appeal..............................................................145
4.3.3. Control by the Ombudsman....................................................................................181
[Link]. The Office of Ombudsman in Ethiopia................................................................196
Review Questions...................................................................................................................212
Chapter five................................................................................................................................213
REMEDIES AGAINST IMPROPER ADMINSTRATIVE ACTS.............................................................213
5.1. The Nature and Role of Remedies..............................................................................215
5.1.1. What are “Administrative and Judicial Remedies”?......................................................215
5.1.2. Remedies vs. Penalties..................................................................................................216
5.1.3. Available Remedies.......................................................................................................218
5.2. Sources of Remedies........................................................................................................220
5.2.1. Remedies available through administrative agencies.............................................220
5.2.2. Remedies available from judicial institutions................................................................222
5.3. Prerequisites for claiming remedies...........................................................................234

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 5.4. Alternative Dispute Resolution Mechanisms as a means to resolve administrative
Disputes..................................................................................................................................237
Review Questions...................................................................................................................242
List of Consulted Materials.........................................................................................................243

Introduction
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This module is prepared for distance students for the course
Administrative Law. It is the strong belief of the writer that students
will benefit a lot out of the module and understand the course very
well. In order this purpose be achieved, the writer has tried to use a
plain and clear language as well as an easy approach throughout the
module. Critical questions are raised for students to enable them
analyze the issues involved in relation to the course.

The course, administrative law, is one of the courses with fundamental

importance that every legal professional should be acquainted with. In
the contemporary world, it is a plain fact that most, if not all, of us
keep in touch with administrative agencies in one way or another.
Because of the complexity of modern life and technology, the activities
and responsibilities of these agencies have been increasing. The
accumulation of huge extent of powers in their hands is prone to be
abused. As a consequence to this, individuals’ rights and freedoms
become at sake. It is not unusual for lawyers to encounter cases
involving administrative law in their day to day life. Understanding of
the basics of administrative law has both practical and theoretical
significance.

Administrative law is essentially a branch of public law that gives

powers, responsibilities, duties and rights to administrative agencies. It
sets different procedures to be followed by them while exercising their
powers and responsibilities. It also provides for various controlling
mechanisms.

The course is all about administrative law and agencies. The module
starts with discussing what administrative law is, its purpose, scope
and historical development. In the second chapter, we will discuss

4
about the essence, powers and functions of administrative agencies,
and the procedures that they are supposed to follow.

Administrative law is closely related to constitutional law and its

principles. In addition to making comparison between the two laws, in
the first chapter of the module, a separate chapter is devoted to
discuss on the main constitutional law principles that are related
closely to administrative law and agencies. Recalling your
constitutional law course will help you understand this course easily.

The course will also introduce students with different controlling

mechanisms of administrative agencies. Parliamentary control, judicial
review and control by the ombudsman institution are the main ones.
Any individual aggrieved by agencies’ actions and decisions has
different available remedies. The last chapter will deal with these
remedies in a more or less detail.

Enjoy your study!

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 CHAPTER ONE
AN INTRODUCTION TOADMINISTRATIVE
LAW
Objectives: - After completing the study in this chapter, the distance
learner is expected to;
 Understand the meaning and nature of administrative law;
 Know the scope of administrative law;
 Understand the purposes and objectives achieved by
administrative law;
 Know how administrative law developed in the common law &
civil law legal systems including ours;
 Make distinction between administrative law and other kinds of
laws such as the constitutional law;
 Be acquainted with different sources of administrative Law.

1.1. What is Administrative law?

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Dear distance learner, have you ever thought what an administrative
law is all about? Have you come across with the terms administration
and administrative Law? Please, try to discuss with your colleagues
about the definitions and concepts of the terms, before you read the
following.

Well, Administrative Law is understood differently by different people,

and various definitions are forwarded by different scholars. As a result,
there is no universal, single and acceptable definition for the term
administrative law and as to what it consists of. According to a
scholar, sir Jennings, administrative law is a law that relates to
administration and it determines the organization, power and duties of
administrative authorities. In order to understand and criticize this
definition, it is crucial to define what ‘administration’ is. It is an activity
performed through cooperation in order to achieve a certain end.
Hence it is possible to say that administration incorporates
government authority and responsibility performed by individuals at
every stage, and includes any activity carried out in order to
implement laws. Therefore, administrative law, according to the above
definition, is concerned with activities and responsibilities performed
by government authorities and individuals through cooperation in
order to achieve certain end, usually implementation of laws.

Dear distance learner, do you agree with sir Jennings definition? Why
and why not? This definition has its own pitfalls and attracted
widespread criticism as it failed to make distinction between
administrative law and the constitution which also determines the
structure, power and duties of different government organs including
administrative agencies. The definition is also too narrow to describe
what an administrative law is.

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Another writer also defined administrative law as the area of law
concerned with the control of government powers, powers which
originate in parliamentary legislation or the prerogative. This definition
does not explicitly state which governmental power (the Judiciary,
executive or the legislative) is susceptible for the control of
administrative law. Since it is mostly administrative agencies that
acquire power from parliamentary legislations, they are the one that
are controlled by administrative law. This law embodies general
principles which can be applied to the exercise of the powers and
duties of agencies in order to ensure that the rules and any
discretionary powers available to them conform to the basic standards
of legality and fairness. Dear distance learner, we will see what
administrative agencies are in detail in the next chapter but for the
time being it is important to know that administrative agencies are
government organs mainly structured with in the executive branch of
the government and vested with the power of rule making,
adjudication and enforcement of rules.

As a body of law, administrative law deals with the decision making of

administrative units of government in such areas as international
trade, manufacturing, environment, taxation, broadcasting,
immigration and transport. It is a law that controls how government
agencies deal with individuals and how individuals deal with them.

Not being far from the ideas incorporated in the above definition,
another writer considered the term as the body of largely procedural
requirements resting up on administrative agencies which affect
private interests through making rules, adjudicating cases,
investigation, threatening, prosecuting, publicizing, disbursing benefits
and advising. This writer has tried to describe administrative law rather

8
than defining it. What do you observe from this definition? Have you
recognized that the writer considered administrative law as a body of
law made up of procedural rules? Yes, the writer seems to conclude
that administrative law is a procedural law. Do you remember what a
procedural law is from your Introduction to Law Course? Procedural law
is that body of law consisting of rules governing the manner how rights
are enforced; the law prescribing the procedures to be followed in a
case. Generally, it is the law that dictates how rights are presented for
interpretation and enforcement, as distinguished from substantive law,
which creates legal rights. Hence from the above definition, we can
conceive that administrative law is a law that describes the steps to
follow to obtain a benefit from an agency. It also signifies rules to be
followed by the agencies themselves during rule making, adjudicating,
decision making etc.

You have to bear in mind; however, that administrative law is not only
a procedural law that simply state different procedural requirements.
Besides from being a procedural law, administrative law incorporates
laws that create (establish) agencies; define the benefits that agencies
dispense; state the power, duties and responsibilities they have; and
the rights they posses. Therefore, it has also the characteristics of
substantive law. Hence, it has both the nature of procedural and
substantive law, and cannot be categorized only under one of them.

According to an American writer K.C. Davis, administrative law is a law

that concerns the powers and procedures of administrative agencies
including, specially, the law governing judicial review of administrative
action. In his definition, Davis does not specifically state which kind of
administrative powers are governed by administrative law. He mainly
focused on one form of controlling mechanisms of agencies, i.e. judicial
review, and excludes other control mechanisms such as control by the

9
legislative, higher administrative authorities, ombudsman ,human
rights commission and the mass media that represents public opinion.

The American Corpus Juris Secondum, on the other hand, defined

administrative law in a brooder manner, as the body of law which
relates to the organs of administrative agencies, its relations to other
departments of government, the rights and duties of holding office, the
nature and extent of the powers, regulation and methods by which the
objectives of the government are carried out administratively, the
liability of the officers and of the government for illegal acts which
injure the citizens and the remedies, judicial and administrative, which
the government provides in order to assure relief. Unlike the previous
definitions, this latter definition has disproved the thinking that this law
is blind to other branches of the government. The three branches of
government are interrelated in their function. For example,
administrative agencies, as part and parcel of the executive branch of
government, are checked by the legislative and the Judiciary. As it can
be understood from the definition, this law, not only states the power,
duties and rights of agencies but also put limits on the exercise of
these rights and powers, and the remedies that are available to
citizens.

Generally, it is safe to define administrative law as the branch of public

law which deals with the organization, Powers and duties of
administrative agencies, and describes the principles and rules by
which an official’s action and decision is reached and reviewed in
relation to individual rights and freedoms. From our discussion, it can
be understood that administrative law is a branch of public law as it
primarily deals with the relationship of individuals with administrative
agencies, and the relationship these organs have amongst themselves.

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Thus, those branches of private law do not fall under administrative
law.

1.2. Scope of Administrative Law

The scope of administrative law is broad, and it ranges from describing
the power, responsibility and structure of government agencies, as a
branch of public law, to stating procedures that ultimately describe
how government’s authorities can and ought to be exercised. It directs
when and how governmental power can be employed. It incorporates
different controlling mechanisms that enable to control the exercise of
excessive administrative powers. Moreover, it deals with redress
mechanisms for wrongs done against individuals by administrative
agencies.

In most countries, including ours, bureaucratic agencies make up the

largest part of the governmental sector, and render most of the
decisions, which have direct impacts on citizens’ lives. Administrative
law governs the decisions of such agency which grant licenses,
administer benefits, conduct investigation, enforce laws, impose
sanctions, award government contracts, and hire employees. It
addresses a wide and varied array of governmental actions. All these
governmental actions are governed and controlled by administrative
law. These basically show how wide the scope of administrative law is
in its application.

Generally, administrative laws specifies:-

1. Powers and responsibilities of administrative

agencies

As we have discussed previously, modern government carries out a

great variety of functions including exacting of taxes, disbursement

11
 of money and good, national defense, police, fire protection; and
services such as health, housing, planning, education, immigration,
social security and so on. These kinds of functions, powers or duties
are conferred by legislations to administrative agencies. Hence,
legislations that establish or organize administrative agencies,
provide the powers and duties of those agencies are categorized
under administrative law.
2. prescribing procedures

Administrative law defines procedures to be followed by agencies.

It is difficult to imagine a just and fair outcome without a pre-
determined and fair procedures. There are various procedures that
agencies should follow based on the kind of powers and duties they
have. Such procedures might be laid in separate procedure code
which every administrative agency is bond to follow, like the
American Administrative procedural act of 1946, or it can be found
in every enabling legislation of administrative agencies (legislation
that establish administrative agencies).

3. controlling mechanisms and Remedies

It is obvious that the state has the responsibility to take care of its
citizens. In this respect administrative agencies may pose serious
problems, given their excessive and discretionary power unless
effective controlling mechanisms are devised. Legal controls are,
therefore, one of the major concerns of administrative law.
However, regardless of the method of control, individuals may be
aggrieved by administrative agencies. Administrative law also
concerns about the remedies to redress wrongs done by agencies
against individuals.

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The controlling mechanisms can be classified in to internal and
external controlling mechanisms. Internal controlling mechanism is
control designed within the agency itself through making inferior
organs accountable to the supreme one. The supreme organ
controls, directs and checks on the acts of the lower organ. For
example, administrative decisions or actions taken by an authority
lower in rank in an administrative agency, can be taken on appeal
to the higher decision making body of the same agency. External
control, on the other hand, is a mechanism arranged out side of the
agency taking the act or decision. There are a number of external
controlling mechanisms which check and control the acts and
decisions of administrative agencies. Among the external
controlling mechanisms are the following:-

(1) Judicial control- this kind of control is carried out by

the regular courts, and may take the form of appeal or
judicial review
(2) Executive control- this is control by other higher
government authorities outside of the agency concerned,
for instance control over different ministry by the Council of
ministers.
(3) Legislative control- in most countries, inducing
ours, the legislative being the supreme organ, has
controlling power over other branches of the government
and also over administrative agencies. The parliament has
constitutional power to call for and question different
authorities, which inturn have the duty to present reports.
(4) Control by other authorities- There are also
different institutions mainly established to control
administrative agencies through hearing grievances of
citizens. Among these, we have ombudsman institution,

13
 Human rights commission and Federal Ethics and Anti
corruption commission.

Lastly, it is important to note that administrative law, in almost all

cases, is not found in a codified form under a single book like the penal
law and the commercial law. It is found in piecemeal legislations such
as the proclamations, regulations, and sometimes in some legal
systems, it is found in the form of court decisions.

Dear distance learners, the writer of the module hopes that you
understand what administrative law is, what administrative agencies
are, their powers and responsibilities, and the need to control their
actions. Now let us see the purposes administrative law serve in any
legal system. Before directly embarking on it, try to figure out the
functions that you think administrative law has.

1.3. The purpose of Administrative Law

As we have discussed earlier, administrative law is the kind of law that

deals with administrative agencies. As organs of government, agencies
make decisions affecting citizen’s lives, and they set general policies
that can affect an entire economy. As it will be discussed in the next
chapter, these organs of the government have three important powers-
rule making, adjudication and enforcement of law and also
discretionary power. If not controlled, these powers may be subjected
to abuse. Administrative law, as its first function, put limitation on the
power of agencies through setting standards, stating clearly the
powers and functions they have, specifying the procedures and
internal decision processes through which administrative agencies may
act, remedies to individuals when these rules and procedures are

14
violated. So this law has a control function, acting in a negative sense
as a brake or check in respect of the unlawful exercise or abuse of
executive administrative power. This law addresses questions such as
whether the government is acting lawfully when it expropriates lands,
or whether it is in the public interest to expropriate.

In addition to what we have said earlier, administrative law has a

command function that can make public bodies perform their statutory
duties including the exercise of discretion under statute. As the main
function and responsibility of administrative agencies is execution of
law, administrative law plays greater role in the implementation of
deferent kinds of laws. In doing so, it tries to ensure that agencies
operate within their statutory limits. Mainly, it applies the constitution
to the administrative process since it incorporates different
constitutional principles such as the rule of law and due process of law.
Since this law states the power and function of agencies by imposing a
duty at the same time, it gives legitimacy and authority to state’s
actions. Generally, as its core objectives, administrative law can affect
the behavior of governmental officials and organization in such a way
as to promote important social objectives

Administrative law also embodies positive principles to facilitate good

administrative practice, for example, in ensuring that the rules of
natural justice are adhered to. As a result, it encourages
administrators to exercise their discretion in a reasonable and
responsible ways. Transparent procedures and opportunities for the
public give the ability to represent oneself in the administrative
process. Those procedures include the one providing for open
meetings, access to government information, hearings and
opportunities for comment, and the ability to a legal action against the
government. Issues such as could a taxi driver be deprived of his

15
license because of alleged misconduct without first being given a
chance to put his side of the case are the concerns of administrative
law .

Administered law operates to provide for accountability and

transparency, including participation by interested individuals and
parties in the process of government. These contribute a lot to reduce
the tendencies towards arbitrariness and unfairness in bureaucratic
government. It defines, for instance, the procedures that an agency
must follow before it can revoke a business license. From the above
discussions, it is possible to conclude that administrative law is part of
a political control on the use of power, thus keeping the use of power
within democratic boundaries.

Lastly, it is important to note that administrative law has a purpose of

providing a remedy for grievances occasioned at the hands of public
authorities. Justice requires that an individual whose right is violated,
as a result of administrative agencies or administrative act, need to be
remedied. The legal implication of the issues such as what can an
individual, who has suffered injustice as a result of maladministration
by a public body, do? Can an ombudsman be consulted? And similar
questions are the concern of this law.

Dear distance learner, have you recognized the different functions that
administrative law has? Try to compare these functions with what you
have already discussed with your friends.

1.4. Origin and Historical Development

of Administrative Law

16
Administrative law, unlike other branches of laws, such as the criminal
law, family law and property law, is a remarkably new field. This law
has started to be considered as an independent discipline since the
18th C. It has expanded greatly during the 20 th C. as legislative bodies
worldwide created more government agencies to regulate the
increasingly complex social, economic and political spheres of human
interaction.

Initially, there was a traditional thinking that limits governmental

intervention in economic and social activities. In other words, there
was a firm understanding that modern state virtually should not
involve in significant economic or social activities; these activities are
untouched by national administrative policy making. The overall
activity of the government was supposed to be limited to the barest
possible. This thinking may be ideally possible in an ancient state
where the overall social and economic affairs and interactions were
simple and fragile. However, the tremendous economic, social and
political growth with the emergence of large business enterprises
called for much administrative powers. The growth and the
sophistication of modern technology demanded the intervention and
establishment of new government agencies. Gradually, the duties and
responsibilities of the government have increased. Consequently,
administrative law developed with the view to empower, legitimize,
control and limit the authority of administrative government so as to
reduce arbitrariness and unfairness in bureaucratic government.

It is safe to conclude that the development of administrative law is

highly premised by the development and growth of modern state itself.
Nevertheless, administrative law did not develop throughout the world
in a similar fashion. In certain states, it has developed based on, and
being influenced by statutes and laws enacted by the law making

17
organ of the state while in other countries its development is highly
intermingled with custom and tradition as recognized by courts of law
in the administration of Justice. In order to appreciate the different
ways of development of administrative laws, it is helpful to discuss the
origin and development of this branch of law in the Anglo-American
and civil law legal systems. We will also discuss its development in the
Ethiopia legal system in the following sub-sections.

1.4.1. Common Law Legal System

In the Common law legal system, the Unites States of America and
Great Britain are the most representative states in the development of
modern administrative system.

1. In the United States of America

In the U.S.A., administrative law has started to develop as a separate

branch of law since 1880’s. However, government organs that used to
enact different regulations, render decisions and perform similar tasks
of government were established before this period. In the beginning of
the 19th C, government executive organs used to estimate duties on
imported goods, hear cases involving pension, entertain patent and
related matters, and they had a wide authority to administer
relationships between different states with respect to trade. The so-
called independent potencies begun to appear in 1887 with the
establishment of the first independent administrative agency called
interstate commerce commission. This has been increased, and in the
middle half of the 1970’s, there were over 60 independent agencies
and hundreds of departments engaged in the administrative activates.

18
Historically, the development of administrative law in the United States
is usually said to have progressed through four overlapping stages;
(1) An initial period that emphasizes on the constitutionality of
administrative agencies
(2) A period in which judicial review was paramount
(3) A period in which procedures for formal adjudication and rule
making were developed and
(4) A final period in which control of direction has got attention. This
will be discussed in the separate sub-topics herein under.

(1) Constitutional Period

With the establishment of the first agencies, different lawyers

questioned about the constitutionality of these agencies, especially, on
matters relevant to the American system of separation of powers and
up on delegation of powers and its legitimacy. Also during the early
period, the leadership of the American Bar Association (ABA), a private
organization of lawyers established in 1879, raised questions about the
constitutionality of Administrative agencies on the grounds that
congress had unconstitutionally delegated its legislative authority to
agencies and that these agencies violated the principles of due process
by adjudicating conflicts involving their own rules and regulations

The point is the principle of separation of power, as developed by

Locke and Montesquieu, requires the three activities of the
government, i.e. law making, implementing and interpretation, to be
carried out by three district branches of the government- the
legislative, executive and the judiciary. General rules formulated by
politically responsible groups of officials should be implemented by
separate officials responsible for executing the rules. The principle also
advocates for an independent judiciary in the legal system.

19
The principle has developed with the view to ensure uniformity and
impartiality in the application of sanction. If the organ, who is given the
power to make law at the same time, executes it, there would be a
probability that this organ may reflect its private advantage of
prejudice through disregarding individual rights and freedoms. Hence,
government organs should not be versed with the three activities of
the government at the same time. The U.S.A. Constitution has
incorporated this principle. As we will discuss in detail in the next
chapter, administrative agencies may exercise all the three power of
the government at the same time, and they acquire their rule making
and adjudicatory power through delegation. The principle has been
threatened by the creation of administrative agencies as they have all
the three combined powers of the government. Agencies are given the
authority to promulgate legislative type rules and simultaneously apply
these rules in given cases. They have been resolving disputes between
private parties. This is the reason why their constitutionality became
questionable during their early period of establishment. There were
also many individuals who had considered administrative agencies as
the fourth branch of the government.

Thus, during this period until 1930, the Americans exerted their effort
to reconcile the functions and existence of administrative agencies
with their constitutional principle, separation of powers.

(2)Judicial Review

This second period emphasizes the role of judicial review. Within the
context of American administrative law, judicial review refers to the
right of the courts to review agencies’ actions to determine their
conformity to the law, including the constitution. During the early
period of American administrative law history, there was firm thinking

20
that the acts of agencies are unreviewable. Courts used to tend to
decline to review the legality of administrative actions. This was
because courts were considered as unqualified to review the decision
of agencies since the persons working for agencies were believed to be
experts. But all these gradually changed, especially, beginning from
the 1930’s, and today the presumption is the action of administrative
agencies is reviewable. The courts, however, before reviewing, have to
have substantial evidence which enables them to review, reverse, and
reconsider the decisions of administrative agencies. Gradually, the
issue shifted from constitutionality to devices of control.

(3) Enactment of procedural rules

This was the third period in which procedure for adjudication and rule
making that are still applicable in U.S.A. are developed. From the
outset, beginning from its establishment, the American Bar Association
(ABA) was arguing against administrative agencies on the ground that
they violate the principle of due process by adjudicating conflicts
involving their own rules and regulation. By early 1930, however, ABA
lobbied for a statute that would impose legal procedures on
administrative agencies in order to bring procedural fairness to the
client such as the right to be heard, and if agencies departed from the
procedures, judges should strike down the agencies’ decision. On the
contrary, some groups of individuals argued that the courts needed to
give agencies more free reign to make decisions based on their own
expertise, and they encouraged courts to defer their power to
agencies’ expertise in policy making when possible.

However, later on some politicians and administrators agreed that a

general administrative procedure statute might be useful even though
they disagreed over the extent to which the legislation should force

21
agencies to act like courts. Following this event, congress, the law
making organ of the U.S., passed the Walter- Logan Bill in 1940 with
the aim of bringing uniformity of action among different agencies. This
bill required agencies to follow court-like procedures for nearly all their
acts of adjudication. The bill also authorized regular courts to review all
agencies’ decisions. With regard to rule making, it provides that any
administrative rules and statutes affecting the rights of persons or
property shall be issued only after publication of notice and public
hearings. It also attempted to enforce common law due process, which
is normally applicable to adjudication, up on the legislative process of
administrative agencies through recognizing a right to petition for
interested persons to the agencies to reconsider any rule, and demand
further hearing. Nevertheless, in 1946 congress passed the modest
version, the most popular and renowned procedural law-the American
Administrative procedural Act (APA) with the backing and support of
the ABA.

The American Administrative procedural Act (APA), unlike Walter-

Logan Bill, requires agencies to follow court-like hearing only when the
legislation creating the agency expressly requires the agency to hold
hearing. It does not also authorize judicial review of anything the
agency does. Writers stated that although APA is one source of
administrative law in the U.S. legal system, it has become an important
document, like the U.S. constitution for administrative agencies. The
act governs adjudication and rule–making through setting different
procedures. It governs judicial review by establishing the standards
that courts must apply when reviewing agency actions.

(4) Control of Discretion

22
Administrative agencies had and have, normally, discretionally powers
that enable them to give different kinds of appropriate decisions
choosing between alternatives based on various grounds. The last and
the fourth period in the American administrative law history was
characterized by efforts to control discretions in those areas where it is
thought to be excessive.

2. In Great Britain
British administrative law is prominent and influential system of
administrative law in the common law legal system.

Anyone attempting to describe the system of administrative

government in England is confronted with departments, agencies,
public corporations and regulatory bodies. The heart of British
government and administration is expressed as a process that
ministers and their advisors develop policies, that these polices
through legislative process emerge eventually as statutes and those
legislative process emerge eventually as statutes and that these
statutes then go back to ministers and the departments for
implementation, for which the Ministers are then answerable to
parliament.

English administration has always been a mixture of central

departments and special boards, offices and commissions some
created by statute others operate under prerogative. In this legal
system, ancient institutions and practices that are the foundation of
the state have evolved naturally, being influenced by custom and
usage in parallel with the common law tradition. Hence, British
contemporary administrative law can be traced to an unbroken history
from the 17th c until the present day. Even it can be traced back to the

23
medieval time, to the origins of the unit system and the rules of
natural justice which were first recognized during this period

At that time, monarchs were absolute rulers primarily concerned with

raising taxation and dealing with the administration of affairs of state.
Parliament had a very limited role in approving the raising of revenue
and in responding to grievances submitted from citizens in the form of
petitions. But later on, in order to discharge routine tasks such as the
raising of revenue and the administration of justice, the king’s council
spited. This led to division of function and delegation of responsibilities
away from this royal council to other organs.

The emergence of a group of individuals, known as “Justices of the

peace”, as the executive agents of the monarch throughout the
century in the medieval period is an important event occurred in the
England administrative law and state’s history. They were given
statutory power to maintain law and order and they acquired many
administrative and governmental responsibilities. From the allocation
of their power, it is noticeable that there was a significant overlap of
judicial and administrative functions. They effectively acted as courts
as well as administrators.

The next step that we need to take into account is the challenges to
the absolute executive authority of the monarch. The courts of the
time were challenging the unlimited exercise of the prerogative power
of the monarch and restricted the right of the king to create new
offences. The Glorious Revolution of 1688 is also another event to
prove an irrevocable shift of power away from monarchial government.
By enactment of the Bill of rights in 1688, parliament gained supreme
sovereign legislative authority. Ministers now had to account to the
parliament for their actions and this led to the development of a

24
recognizable form of individual ministerial responsibility. But this does
not mean that they had reached at the pick of good governance
immediately. Even during the 19th Century itself, some agencies were
sometimes characterized by scandalously wide and unregulated
powers, often neither accountable to the parliament nor ministerial
supervision.

Specially, in the 20th century, a number of local authorities and

statutory boards were established, a wider range of powers and
functions were delegated to them. The implementation of a stream of
legislative measures originating in this century, led to a steady
increase in the size and range of activities performed by existing
government departments. This and also the sophistication of the
techniques that were employed to implement complex policy
measures saw the formation of several new departments. The new
agencies have legislative documents which define their objectives,
their relations with other departments, the minister and parliament
and also a range of other matters relating to finance, personnel and
performance

Different controlling mechanisms were provided under a statutory

frame work such as appeal. This allowed matters to be challenged on
grounds specified in the relevant statute. The courts were also
exercising supervisory function based on judicial review, having
exclusive powers to grant the prerogative remedies of certiorari,
prohibition, Mandamus and award for damage (These will be discussed
in the last chapter of this module)

The other recent development in the administrative system of UK is

the creation of one rage of authorities whose specific functions are
scrutinizing and reviewing the activities of agencies. Among these

25
organs we have tribunals and Ombudsman that are engaged in hearing
complaints and appeals lodged by individual persons aggrieved by the
administration process. An organ, known as Parliamentary Commission
of Administration, has been set up in 1967 in order to investigate
complaints about central government.

Generally, this is the brief administrative law history of England. The

development of administrative law in this country took a long time and
passed through different challenges to take its present shape.
Currently, the British administrative law is, at least, characterized by
the following bases:-

1. the ultimate power to review and to give final decision on the

action of administrative agencies rests on regular courts;
2. A strong and comprehensive emphasis exists on the protection
of individual rights and freedoms;
3. There is parliamentary supremacy in the British governmental
structure.

1.4.2. In the civil law legal system

It is the French Droit Administratife (administrative law) which is the
most important model for administrative jurisprudence in the cavil law
legal system. The French Legal system, not only known by exerting
substantial influence up on different states by its codification of the
civil code, but also its administrative law has influenced and widely
imitated by different countries such as Belgium, the Netherlands,
Luxembourg, Italy, Spain, Portugal and Greece. Hence it would be
crucial to have a look at the development of the French Droit
administrative.

26
The “duality” of the Droit civil and the droit administratif in France, and
more particularly the dual system of courts, cannot be understood
without some appreciation of French’s constitutional history, and the
present Constitution of the 5th Republic. In fact, the French
administrative law history was highly influenced by the constitutional
principle of separation of powers.

The ordinary courts of France used to interfere with the activities of the
administration. Before the French Revolution (1773), there were
regional institutions know as ‘regional supreme court’ which adjudicate
cases and exercise control over executives. The courts played active
roles in challenging against executives. Later on, however, it was
proposed to eliminate such kind of arrangement which may likely
result in conflict among these institutions. As a result, in 1789 it was
devised that ordinary courts lost their power of interfering with the
activities of the administration. French denied any state responsibility.
But officials were not immune as there were rules which made them
personally liable for damage based on injuries caused by them.

The ideas of the original leaders of the French revolution in 1789 and
1790 had been encouraged and inspired by the success of the
American Revolution and the constitution, following Montesquieu’s
theory- division between the three powers of government, i.e. the
executive, the judiciary and the legislature. When Napoleon came into
power on the ruins of the Revolution, he restricted the jurisdiction of
the courts in his desire to create a strongly centralized autonomy.

Generally speaking, the administration of post revolutionary France

was thought as separate machinery independent of both legislature
and the ordinary judiciary. Even in 1799, the French has created an
organ known as ‘Conseil d’Etat’, a body of lawyers trained in

27
administration. Its main aim was to resolve difficulties which might
occur in the course of the administration. It was established as
consultative body. Nevertheless, through passage of time, it started
exercising judicial powers in matters involving the administration. It is
during 1870s that Conseil d’ Etate had formally started to exercise
exclusive jurisdiction over administrative acts. And the court de
cassation has retained its private jurisdiction over the acts of
individuals. In other words, civil courts were expressly excluded from
adjudicating matters involving the administration. By the famous
Blanco case and the jurisdiction of the administration courts was
confirmed as being exclusive. This situation created a dual court
structure in France, the ordinary courts (court de cassation) and the
administrative courts (conseil d’Etat).

Disputes with regard to jurisdiction between Conseil d’ Etate and court

de cassation were made to be settled by an organ known as ‘tribunal
des conflits’. This tribunal consists of an equal number of ordinary and
administrative judges and is presided over by the minister of justice.
The strength and development of this kind of system in France has
partly streamed from the relative weakness of the other powers of the
government, the judiciary and the legislative.

With regard to the legislative power of agencies, under the 3 rd and the
4th Republics, it was an accepted constitutional principle that in certain
circumstances the government (the executive) enjoyed autonomous
powers to make regulation by decree, even when such Prowers had not
been delegated to it by the parliament. This was, however, challenged
latter on, based on absence of statutary authorization.

Until 1958, the parliament could legislate on any regulation by decree.

This principle was apparently swept away by the constitution of 1958.

28
The constitution specifically listed matters up on which the parliament
may legislate statutes while it provided by way of complement that all
matters not listed shall fall exclusively with in the regulatory power of
the executive. Moreover, even in the domain reserved to the
parliament, the government may obtain its consent to legislate by
ordinance for a limited period.

Thus, regulations, made under a specific delegation, or based on

constitutional authorization, are classified as administrative decisions
(laws) and, accordingly, always subjects of the jurisdiction of the
administrative courts. The French droit administratif also consists of
rules developed by judges of the administrative courts. Principles and
rules laid down by the French parliament did not represent French
administrative law

Generally, droit administratif or the French administrative law

incorporates the following rules:-

1 Rules developed by the judges of the administrative courts.

These are decisions rendered by administrative courts including
conseil d’ etat
2 Rules that govern administrative authorities and official. These
rules deal with the appointment, dismissal, status, salary and
duties of administrative authorities.
3 Rules dealing with the operation of public services to meet the
needs of citizens.

Dear distance learner, from our discussion we can summarize the

characteristics for the French administrative law system in the
following manner:-

29
  There exist dual system of courts, administrative courts and
ordinary courts; and dual system of laws, droit civil and droit
administratif;
 Matters concerning state and administration are to be decided
by the administrative courts, and not by the ordinary courts of
the land;
 In deciding matters concerning state and administrative
litigation droit administratif that include rules developed by the
administrative courts are applicable;
 conflict of jurisdiction that arise between ordinary courts and
administrative courts are decided by an organ known as tribunal
des conflicts;
 It protects government officials from the control of the ordinary
courts.

Dear distance learner, have you realized the characteristic differences,

with regard to administrative law, between the civil law legal system
and the common law legal system? What do you think are the strength
and drawbacks of the two administrative systems?

Yes, as we have discussed previously, in the civil law legal system,

particularly in France, administrative agencies and authorities are
subject to administrative courts and not to ordinary courts. On the
contrary, in the common law system it is the ordinary courts, and not
special administrative courts, that decide cases involving the validity of
government action. Besides, it is the ordinary law of the land that is
applicable to decide cases, involving administrative agencies, before
ordinary courts. Hence, the main advantage of the common law legal
system is that it creates public, as citizens can turn to courts of high
standing in the public esteem whose independence is beyond question
where efficient remedies are available. Under this circumstance, the

30
government is seen to be subject to the ordinary law of the land. But
the problem that we can observe here is that judges of this system are
not experts in administrative law.

In the civil law legal system, however, the judges in administrative

courts are trained in administrative law, even though there is a fear
that they might be biased in favour of the government. As a result of
this the public might lose confidence in the administrative system.

1.4.3. Historical Background of

Administrative Law in Ethiopia

Despite the fact that Ethiopia is a country with long history, a strongly
developed and extensive administrative structure was non-existent for
a long time. A century ago, there was no regularly established royal
council, no clear cut system of local governmental or taxation, no
established national army or police force and civil service system. Due
to the absence of uninterrupted monarchical rule there were no well
structured, institutionalized, permanent and formal organ of
government throughout the country’s territory, and it was only in 1970
that the first ministerial structure was established by Emperor Minilike
the II.

Attempts, however, were made by Emperor Tewodros in the mid 19 th

century who has tried to establish police force and civil service system.
He has also tried to abolish the slave trade, suppress the custom of
vendetta and the regulation of the power and lands of the church as
part of his reform. These reforms were developed with the need to
decentralization of the administration. For this purpose the Emperor
sought to turn the local chiefs in to salaried officials responsible to the
imperial power. A territorial police force was also established in order

31
to preserve the territorial integrity of the provinces and to ensure the
observance and application of imperial proclamations. He also
established a regular army in order to attain the same end, and filled
lower level administrative posts with imperial as well as provincial
personnel. This, however, created dissatisfactions on the feudal chiefs
as well as on the church. Besides, absence of strong social or
institutional base such as national unity, historic bureaucracy, national
administration, urbanization and well developed class of feudal nobility
created obstacle up on the realization of the Emperor’s dreams.

According to some writers the nature of the monarchy itself has

contributed for the failure to develop a formal and permanent
administration. The monarch was resistant to change and autocratic
with divine kingship power. There was also a negative attitude towards
delegation of power or responsibility since it was equated to lowering
of status. Because of this feeling the monarchs had retained the whole
power on their hands.

The physical /topographical natural of the country/ was another

obstacle to establish strong administrative system. High mountains
deep cut valleys and heavy terrain which characterized the Ethiopian
topography and whether condition made communications almost
impossible. In addition to this, absence of fixed capital, established and
strong military power with centralized command, lack of educated
executive personals and financial resources discouraged the
development of the administration.

Even though Emperor Tewodros was not as such successful in creating

a strong administrative system, his efforts to invent modern
administration in Ethiopia is worth considering. Four primary heads of
departments under this emperor were also identified by historians.

32
These were Yettor Abegaz (commander in chief of the army), Afe
Negus (judge on all appeals in the name of the Emperor, save those
involving the death sentence), Tsehafe Tezaz (keeper of the Great seal
of the Emperor and writer of all imperial orders) and Ligaba
(communicator of all imperial orders)

The successor of Emperor Tewodros, Emperor Yohannes IV was in

continuous wars with the Egyptians, Mehadists, and Europeans; and he
was concerned more with religious uniformity than with political
transformation. Hence, during this time no significant developments
were recorded.

The next leader, Emperor Minilike the II took up the standards and
methodologies of Emperor Tewodros and implemented them more
successfully in all provinces of the empire. He had first broken, through
the use of force, the powers of the local chieftains and then brought
them under the framework of the government. During this time,
communication throughout the country was greatly improved and a
fixed capital was established. Improvements in the areas of public
health, education, internal and external commerce and public
transportation were recorded. Generally, Emperor Minilike was able to
hold the country together. The economic and social improvements
called for the creation of organs to sustain the development. As a
result, the first ministerial frame work in Ethiopia was created by
Minilike in1907. This ministerial framework consists of the following
ministers:
1. Ministry of Justice
2. Ministry of Interior
3. Ministry of Agriculture and foreign affairs
4. Ministry of Finance
5. Ministries of Agriculture and Industry

33
 6. Ministry of Public Works
7. Ministry of War
8. Ministry of Pen
9. Ministry of Palace

The effort to create a strong administrative structure has continued

during Emperor Haile Sellassie. The emperor promulgated the first
constitution in 1931 which counts to a major change in the country’s
government history. The constitution, through laying the foundation for
the doctrine of separation, established the three branches of the
government including the executive branch. Article 11 of the
constitution empowered the Emperor to lay down ‘the organization and
the regulation of all administrative departments’. Pursuant to this
power, the Emperor established a number of ministerial posts and
other administrative bodies that were directly accountable to him.
However, power was centralized in the executive branch of the
government headed by the Emperor.

In 1943, Order No.1 and No 2 were issued to regulate and decentralize

the power of the executive. The orders introduced the title of Prime
Minster for the first time in Ethiopian history. This has changed the
accountability structure. The role of the Emperor, as the head of each
and every agency, was terminated and replaced by the Prime Minster.
The Ministers became accountable to the Prime Minster rather than to
the Emperor directly. The Prime Minister was, in turn, held accountable
to the Emperor and by this the essence, of delegation of power began
to actualize.

But, the Revised Constitution of 1955, under article 22, changed the
early attempt to decentralize administrative power by making the
ministers and the Council of minister directly accountable to the

34
Emperor. Further, the Constitution empowered the emperor to appoint,
transfer and dismiss all executive personnel including the prime
minister. He had the power to determine the internal organization of
the executive branch. A number of agencies were established in
various fields and all of them were answerable to the parliament as per
article 73 of the constitution.

The other important development in Ethiopian administrative history is

the establishment of the Imperial Ethiopian Central Personnel Agency
(CPA) in 1962. This agency was vested with the power to classify jobs,
to recruit public servants, to establish pay scales and to issue
regulations necessary for the establishment of homogeneous public
service.

Until 1974, the Emperor established various administrative agencies

bearing the names ministry, commission, authority or agency. The
number of agencies named by the term ministry reached 21 before the
fall of the Emperor.

After the coming in to power of the Provisional Military Government,

and until the enactment of the 1987 Constitution, the changes made
on the administration were not as such significant. But after the
enactment of 1987 socialist Constitution, a number of administrative
agencies were established and made accountable to the Council of
Ministers which in turn was accountable to the National Shengo and
when the Shengo is not in session, to the council of state and to the
president of the republic. The Constitution, under article 89(1), gave all
administrative powers to the council of ministers. The council was
composed of the prime minister, Deputy prime ministers, ministers and
other members including heads of authorities and commissioners.

35
Major change occurred in the government structure of Ethiopia in1991
when the current government came in to power. The country was
transformed from unitary form of government into federal. The state
was divided in to 9 regional states and one federal government. Both
the regional states and the federal government are composed of law
making executives and judicial organs. The 1995 constitution also
introduced some agencies dealing with execution of laws. Currently we
do have a number of administrative agencies established both at the
federal and state level. Their number is also increasing in response to
the growth and development in the responsibilities and of government.
Pursuant to proclamation no 256/2001, there were 18 ministries, 7
commissions, 13 authorities and 19 agencies, only at the federal level.
Among the recently established ministries, we have the ministry of
capacity building and ministry of women Affairs.

Before concluding our discussion on this part, it is important to bear in

mind that Ethiopia has never had administrative procedural law which
is similar to the American Administrative procedural Act/APA/,
applicable uniformly over all administrative agencies. Attempts to
enact the procedural law was made in 1967, but was not successful.
The second draft was also prepared in 2002, but remains a draft until
now. The presence of such procedural law has a number of benefits
such as bringing efficiency and control of administrative agencies. It
does not, however, mean that Ethiopia does not have administrative
law at all. Administrative procedure laws are found in different
legislations.

1.5. Administrative law Vs

Constitutional law

36
Making comparison between administrative law and other branches of
law helps to have clear understating on the concepts of administrative
law, as the latter shares some features with other branches of law.
Often times, it poses problems to make a distinction between
administrative law and constitutional law. These branches of laws have
their own similarities and differences. This section is devoted to the
discussion of the similarities and differences between administrative
law and constitutional law.

Dear distance learner, as you might remember from your constitutional

law courses, constitution is a document which incorporates different
general and basic principles and rules which govern the relationship
between state and its citizens. It is the law which establishes and
gives legitimacy to the government.
The constitution of a certain state defines the powers and duties of the
three branches of the government including the executive branch.
Similarly, administrative law defines and states the powers,
responsibilities and duties of the executive, particularly of each
administrative agency. This could be a point of similarity between the
two. But the deference is administrative law is concerned only with
the executive branch of the government while the constitution has a
wider scope, dealing with the three branches of the government,
namely legislative, executive and judiciary. This does not mean,
however, that administrative law has not completely to do with the
other branches of the government. It states how agencies are
controlled by the judiciary and the parliament. It is simply to say that
the main concern of administrative law is the executive, and not the
parliament or the judiciary, unlike the case with constitutional law.

The other point is constitutional law states general and basic principles
that serve as guideline for other branches of laws. It does not deal with

37
each and every detail matter. Administrative law, on other hand,
incorporates detailed principles and rules. Administrative law deals
with the power, structure, function, duties and control of each and
every administrative law exhaustively. Both laws try to guarantee rule
of law by ensuring that everyone is under the law. Both laws are
concerned with making every action of the government in accordance
with law, and accountability and responsibility. In every administrative
system, it is crucial to make sure that individual right and freedoms are
not violated. Most concepts incorporated in administrative laws have
paramount places in different countries’ constitutions.

Besides, both laws govern the relationship between the government

and its citizens. As a result, they belong to the same category of laws
i.e. public law. As branches of public laws, they share a number of
similarities which are peculiar to public law domains. Administrative
law, unlike the constitution, deals with day to day activity of the
government agencies, thus considered as active law. The constitution,
compared to administrative law, is passive.

The other main difference lies on the fact that constitutional law is
supreme and fundamental law in almost all democratic counties. It is
the law that establishes the government and represents the will of the
ultimate sovereign, the people. Administrative law, on the other hand,
consists of parliamentary legislation, subordinate legislation of the
executive, and in certain countries, decisions of the courts. It is always
subordinate to the constitution in the hierarchy of laws.

1.6. Sources of Administrative law

In some countries there are instances by which some parts of

administrative law are found in a codified form like the civil code and

38
the criminal code. In these countries, these administrative codes serve
as principal sources for administrative law. Nevertheless, as we have
discussed from the outset, since administrative law incorporates both
substantive and procedural rules, which deal with various
administrative matters, it is difficult to codify them under one
comprehensive book. As a result, in some other countries, like ours,
these laws are found In different piecemeal legislations in a scattered
manner.

Generally, it is possible to classify the source of administrative law in

to three broad categories. One major source of administrative law is
the constitution, which establishes and defines the power and
responsibilities of some administrative agencies. The constitution, as
the supreme law establishes and determines the power, responsibility
and hierarchy of the main organs of the government. Among these
governmental organs, the executive (the administration) is the first.
The constitution, not only establishes the executive, but also provides
basic principles of administration, that put basic guidelines to be
followed by the administration while conducting their duties. In other
words, the organization and structure of administrative agency can
be shaped by the constitution. The procedures used by agencies can
be dictated by certain constitutional principles such as due process of
law and rule of law. These basic principles and rules can be considered
as main sources of administrative law.

The second sources of administrative law are deferent legislations

enacted by different organs of the government. These legislations may
be primary or secondary in their nature. Primary legislations are the
one made by the legislative branch of the government. For instance,
different proclamations enacted by the House of Peoples’
Representatives are primary legislations in our country. These

39
legislations establish and determine the power and duties of agencies.
Thus, they are the main sources of administrative law

A number of regulations may also be issued by different organs of the

executive branch of government in order to give effect to the
implementation of various proclamations enacted by the legislator.
These regulations constitute secondary legislations. The executive
acquires its power to enact regulations either from the constitution or
primary legislations through delegation. In Ethiopia, secondary
legislations vary from regulations of the Council of Ministers to
directives and internal Rules and regulations of administrative
agencies. All these can be considered as one source of administrative
law.

Apart from this, in some countries, precedents or case laws, judicial

opinions, customs and reports may constitute part and parcel of the
legal regime that governs the administration. This is the case
particularly in countries that follow the common law legal system. Case
laws are evolved through interpretation of statutes by courts, and
gradually decisions rendered by the courts became binding on
subsequent similar cases. Thus decisions rendered by courts in
connection with administrative agencies and administrative matters
are considered as laws for the disposition of subsequent similar cases.

Other than the countries that follow the common law legal system,
precedents or decisions rendered by the French Administrative Court(
conseil d’ Etate) serve as one source of administrative law in France. In
Ethiopia, there is no such kind of arrangement, and administrative
tribunals and courts are not duty-bound to follow earlier decisions of
the same or higher courts with regard to cases involving similar issues.
Recently, however, courts are made to follow decisions of the

40
cassation division of the federal Supreme Court as far as interpretation
of federal laws is concerned.

Review Questions

1. Try to define the term administrative law?

2. What are the matters governed by administrative law?
3. What is the purpose of administrative law?
4. State the reasons why administrative law is categorized under
public law?
5. Discuss the similarities and differences between administrative law
and constitutional law?
6. Discuss the sources of administrative law?

41
42
 Chapter two
Administrative functions and
Processes

Dear distance learner, this chapter is devoted to the discussion of what

administrative agencies are, and the functions they perform in the day
to day activities of the government. Different processes, which
administrative agencies are supposed to follow while performing their
functions, are also discussed.

At the end of the chapter the student is expected to:

 Know what administrative agencies are;
 Be acquitted with the three functions of administrative agencies;
 Know why administrative agencies are created;
 Understand why administrative agencies are vested with all the
three powers of the government;
 Be familiar with the procedures to be followed by agencies while
they adjudicate cases and enact rules.

43
 2.1. What are administrative agencies?

Scholars try to define the phrase ‘administrative agency’ in terms of

the purpose that agencies dispense, or functions or powers that
agencies are vested with. We will discuss some of these definitions in
the following paragraphs.

According to a writer, administrative agencies are authorities of

government, other than a court or legislative body, with power to make
and implement law. The officials of administrative agencies are
employed neither as legislators or legislative staff nor as judges or
other personnel in the judicial system. From this definition it is possible
to understand that agencies are government organs that implement
rules and policies. Administrative agencies are, however, not
institutionally structured under the legislative and executive branch of
the government; they are endowed with legislative, judicial and
executive functions.

The United State’s Federal Administrative Procedural Act (APA) defines

administrative agencies similarly, but in a more comprehensive
manner as “…each authority of the government of the united State
whether or not it is with in or subject to review by another agency, but
does not include the Congress and the courts of the United States.”
Thus, in U.S.A., Federal Agencies consist of the Cabinet (Council of
Ministers) level executive departments, the independent regulatory
commissions, and other authorities of the Federal government such as
Interstate commission, Securities and Exchange Commission and
National Labour relations board. Accordingly, it is possible to say that
there is no distinction between the executive branch of government
and administrative agencies.

44
Some lawyers define administrative agencies as government entities
which have the power to give decisions that might affect the rights of
citizens either positively or negatively. Hence, here those organs of the
executive branch, such as the defense and foreign affairs, whose
powers are turned against the outside world than against private
persons or property inside the nation, are not considered as the
subject matter of administrative law. To be precise, these latter organs
are not considered as administrative agencies unlike the definition
given in APA.

Dear distance learner, do you agree that such executive organs like
the Ministry of defense and Foreign affairs should not be considered as
administrative agencies? Why? Why not? Please, discuses this question
with your colleagues.

H.C. Black, on the other hand, defines the term administrative

agencies as a government body charged with administering and
implementing particular legislation. He also stated that the term
agency includes any department independently established,
Commission, administration, authority, board, or bureau and other
bodies with a similar name. This definition seems to be narrow, as it
disregards the other two powers of agencies i.e. law making and
decision making powers of agencies.

A broad definition for the term is given by John H. Reese. According to

him, an agency is a governmental entity that possesses some
combination of the governmental powers constitutionally vested in the
three separate branches of the government; executive, the legislative
and the judiciary. They are created to achieve legislatively assigned
goals. This definition includes that agencies are vested with the three
powers or authorities of the government. Their power may range from

45
prescribing what shall or shall not be done in a given statute to
determining whether the law has been violated or not. Some of the
agencies have power to impose fines while others dispense benefits for
promoting social and economic welfare. As we will discuss in
subsequent part of this module, agencies are engaged in different
activities of the government.

Administrative agencies are created by the legislative body through

some formal enactment process in order to achieve a certain goal.
Expressions of agency authority and responsibility are contained in the
enactment; and from these expressions, its personnel and ultimately
the courts, derive the limits of its authority. Thus, an administrative
agency is a legislative creation; and as a result, it only has the
authority that conferred up on it by that legislation.

In our legal system, it is difficult to get a comprehensive definition for

administrative agencies. The only definition that we have to consider is
the one given under Article 2(1) of the draft Administrative Procedural
proclamation which defines administrative agencies as “any ministry,
commission, public authorities of the Federal Democratic Republic of
Ethiopia, including the Addis Ababa and Dire Dawa Cities
Administrations Competent to render administrative decisions and
exercising regulatory or supervisory functions. The term shall include
the agency’s head or agency’s employees or other persons directly or
indirectly purporting to act on behalf or under the authority of the
agency head.”

The above definition of the draft administrative procedural

proclamation has followed a unique approach. It tries to enumerate
those institutions that it considers as administrative agencies. It stated
standards that enable to determine which organs of the government

46
are administrative agencies. These standards inform us that in Ethiopia
for a certain institution to be considered as an administrative agency,
it has to be capable of rendering administrative decisions, and must
exercise regulatory or supervisory functions. Unlike the above
definitions, the term administrative agency refers not only to an
institution but also the head(s) and employee(s) of the institution.

Generally, from the above definitions, it is possible to pin point the

following basic features of administrative agencies:-
 All administrative agencies are government institutions. This
means, for an institution to be considered as administrative
agency the first criteria is to be a government entity.
 In most cases, administrative agencies are structured under the
executive branch of the government. But it is wrong to disregard
those agencies created as independent institutions, established
outside the direct control or supervision of the executive branch.
Among such agencies we have the Election Board and the
Federal Auditor General.
 Agencies are created mainly to implement or execute a
particular legislation. They are intended to regulate certain fields
of activities. For example, Environmental Protection Authority is
established to regulate and implement environmental policies
and rules.
 Administrative agencies are vested with the three basic functions
of the government, namely, legislating, implementing and
interpreting laws. Even thought the main function of
administrative agencies is implementation of laws, on top of this,
almost all of them are empowered to enact subordinate
legislations, in their specific fields of activities, and/or adjudicate
cases that are related to their main functions.

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Dear distance learner, based on our discussion, we can define
administrative agencies as government entities vested with the power
to enact, implement and interpret laws. Based on this definition and
the preceding discussion, try to figure out which organs of the
government are administrative agencies. Try to state also your reason
for considering a specific governmental body as an administrative
agency. Do you think that public enterprises such as the Ethiopian
Telecommunications Corporation are administrative agencies? Why?
Why not? Try to discuss this with your friends. Even though there lacks
definition for the term administrative agencies in our legal system, we
can simply consider the various ministries as well as governmental
bodies such as commissions, authorities and agencies as
administrative agencies.

2.2. The Necessity for Administrative

Agencies

It is possible to say that administrative agencies are the necessary

corollaries of modernization. They developed in response to
development and complexity of life. Traditionally, a state was
considered as a police state, defending a country from external action
and maintaining peace and justice in its boundary. Gradually, the state
was changed to welfare type, started to control the economy and other
affairs. On the other hand, the interests of the people became acute
and their industries grew more complex. As a result, the demand on
the government increased. Hence, in order to address additional
activities of the state, additional government organs became
necessary. This is one of the reasons why agencies have been
established.

48
Besides, the two formal branches of the government, the legislative
and the judiciary are ill-suited to perform the day to day activities that
enable the government to carry out its responsibilities. Members of the
parliament (legislative) have to deal with a multitude of subjects and
they could not be experts in every matter that the government
involves. Much of the substance of administrative adjudication is
outside the area of judicial competence. Agencies have the required
personnel well equipped with experience. Furthermore, there is a belief
that the judicial process is slow and expensive while administrative
tribunals handle controversies with simple, non- technical hearings and
informal proceedings.

These and other reasons necessitated for the creation of

administrative agencies and, currently, agencies handle the day to day
public affairs, more than any organ of the government. In order to
carry out the activities efficiently, they are equipped with different
powers and function. The following section discusses about these
powers and functions.

2.3. The Powers of Administrative

Agencies
When we say the power of administrative agencies, we are referring to
the right, or authority that administrative agencies have in order to
carry out their functions. They exercise mainly executive, legislative,
adjudicative power, or a combination of them. Their executive power
entitles them to manage or supervise the execution, or carry out of
public affairs as distinguished from policy or rule making. Using their
judicial power, agencies can render decisions to settle disputes or
contested cases by interpreting relevant laws. And because of their
legislative power, agencies can issue rules and regulations. The powers
of administrative agencies are either mandatory or discretionary

49
 2.3.1. Mandatory and Discretionary
powers of Administrative
Agencies
Basically, all administrative powers are statutory in their nature. This
means that the statute prescribes the nature and extent of any given
power. The legislative may make specific function obligatory for the
executive to run certain functions, or it may leave the administration of
certain activities to the discretion of the executive. If the legislature
imposes certain conditions of procedure to be followed by the
administrative authorities, it becomes a mandatory obligation to the
administrator to follow such procedures. The non-observance of a
mandatory condition may give rise to the invalidation of the
administrative action. In this case, the administrative authority has to
follow the substantive rules and procedures provided under the
statute. It cannot act beyond what is prescribed in that specific
legislation. This is a mandatory (non- discretionary) power of
administrative agencies.

However, the law may sometimes fail to prescribe every detail rule to
be observed by agencies. Or, the law may sometimes not be
comprehensive enough to cover all the possible contingencies and
problems which arise in the course of the administration. Hence, the
administrative authority has to exercise a reasonable amount of
discretion to adopt its action to the circumstances of the individual
cases it deals with.

An agency may make rules which it thinks expedient to carry out its
functions, depending on the complexity of problems, and their varying
nature. When the problem arises, it should be solved by the
administration, even in the absence of specific rules. If not, the

50
administrative authority would be paralyzed. Hence ,vesting
administrative agencies with discretionary power is crucial. In addition
to this, the expertise and knowledge of administrative agencies by
itself calls for discretionary power.

Dear distance learner, have you ever come across with the word
discretion and its conceptual meaning. Generally speaking, discretion
implies the power to make a choice between alternative courses of
action. But the choice should not be made according to the will of the
administrator. In this connection Lord Halsbury defined administrative
discretion in the following way;

“When it is said that something is to be done within the

discretion of authorities, it means that something is done
according to the rules of reason and justice, and not
according to private opinion or humor. It is not arbitrary,
vague and fanciful, but legal and regular. And it must be
exercised within the limit to which an honest man,
competence to the discharge of his office, out to confine
him. Hence, discretion is the power of administrative
authorities that give an opportunity to make choices
between alternatives in performing its functions. But it is
not something that can be exercised arbitrarily”.

According to Prof. Freund, when we speak of administrative discretion,

we mean that a determination may be reached, in part at least, up on
the bases of consideration, not merely susceptible of proof or disproof.
A statute confers discretion when it refers to an official, for the use of
his power to beliefs, such as “if the agency is satisfied…”, “if the
agency deems it fit/ proper…”and such other expressions indicate the
existence of discretionary power in a statute. The public authority, as

51
free agent of the discretionary power given by the statute, must justify
his action on valid grounds of public interest and statutory provision.
Its importance has increased day by day as the administration is
required to apply vague and indefinite statutory provisions to
individual case. Further, it is very difficult to anticipate and successfully
govern future problems with general rules of comprehensive nature.
Sometimes specific rules and statutory provisions are absent. Even in
these cases the administrator is expected to solve them in a
reasonable manner.

There are some principles governing the exercise of discretionary

powers. The authority with whom discretion is vested can be
compelled to exercise it, but not in any particular manner. That
authority must genuinely exercise it to the matter before him in good
faith, taking in to account all relevant considerations, and must not be
swayed away by irrelevant consideration and also must not act
arbitrarily and capriciously.

Besides, the authority cannot re-delegate his discretionary power

unless he is empowered to do so by the statute. The other important
thing in relation to discretion is that it is susceptible to be abused
easily by the authority. The administrator, therefore, has to adopt a fair
procedure, while exercising his discretionary power. He must exercise
it on reasonable grounds and in favor of public interest. He has to use
his reasoning faculty objectively, and his administrative order must
show the reasons for his decision. Discretion does not empower a man
to do whatever he likes, but he must act reasonably and impartially.

We can say that discretionary power is abused when the administrator

uses his power in bad faith, with dishonest intention or corrupt motive.
The administrator is supposed to use his power for the benefit of the

52
public and in good faith and with the intention of promoting the welfare
of the society at large. But, if the administrator used his discretionary
power for personal animosity or vengeance, we can say that he has
abused his discretionary power. And also that if the administrator used
his discretionary power for a purpose other than what the statute
confers, it amounts to abuse. It is with this fear of abuse of discretion
that some people argue against wide discretionary power to agencies.
For instance Justice Douglas of U.S. Supreme court stated that “where
discretion is absolute man has always suffered. Absolute discretion is
more destructive of freedom than any of man’s other inventions.” On
the contrary, others like Julies Nerere, the former president of Uganda,
argue that agencies should be vested with wide discretionary power
and there should be no judicial review of administrative action. He
based his argument on the idea that giving wide discretionary power
for administrative authorities enables them to utilize their expertise
and capacity to the highest level. Hence, full right must be given to the
executive to take action which it thinks is proper in the public interest.

2.3.2. Administrative or Executive

Powers
Administrative power or function is the principal and inherent power of
administrative agencies. Administrative agencies are mainly
established for the purpose of carrying out administrative functions. It
can be said that the other power of administrative agencies, such as
the rule making and adjudication are incidental powers to their
principal functions. The executive role of administrative agencies is
enforcing a policy which the legislature has already established.
Executive power is an authority assigned to agencies to give effect to
laws. To state it in a more detail manner, the executive function
consists primarily of initiating, formulating and directing general
polices. It also includes taking decisions within existing policy,
53
inspection, inquiries, licensing, enforcement of standards and
subordinate legislation. The responsibility for the enforcement of public
policy is entrusted by the constitution to the executive branch of the
government. In practice such responsibility is discharged by the large
number of administrators under it.

Policy is a kind of planning directed towards the accomplishment of

some goals or objectives. It is the output resulting from the
interactions of governmental and non-governmental bodies and
groups. The legislature, the executive, the judiciary, top executives,
political parties and pressure groups and finally the people participate
in the process of policy formulation.

The first stage of policy formulation is to identify a problem followed by

searching for alternatives to deal with it. After a policy is adopted, its
success or failure must be evaluated. This is how the government
fulfils the promises made to the people in its political manifesto. For
their effective implementation, policies will be converted in to specific
programme of action by the proper administrative authorities.

The administrator has to classify the policies as ideological, macro-

policies and pectoral policies. The ideological policies flow from the
very basic character of the government itself or from the constitution
of the country. Macro-economic and development policies are more
technological in nature and include price policy, fiscal policy, banking
policy etc. Sector policies refer to the organizational sectors like the
defense, foreign, agriculture policy, food policy etc.

Generally, the execution of policy demands at time greater

imagination, resourcefulness, alertness, perseverance, diligence and
sagacity than its formulation. The administrator has to take in to

54
consideration the objectives of his organization, its resources and the
likely reactions of the public affected by it. He has to plan the
implementation of the policy prescribed within the framework of the
statute.

Administrative/ executive/ powers and functions that are exercised by

administrative agencies vary from one agency to another depending
on the kind of policy they execute. For instance, in our country the
powers and functions vested up on the environmental protection
authority is completely different from that of the Ethiopian science and
technology commission. If we see the provisions of their enabling
legislations, we can observe this fact clearly. The aim and objectives
for their establishment is completely different.

Proclamation No. 295/2002 which establishes environmental protection

organs states that environmental protection authority is established
with the objective to formulate and implement policies, strategies, laws
and standards, which foster social and economic development in a
manner that enhance the welfare of the society and safety of the
environment. Furthermore, the organ is vested, among other things,
with the following powers and duties:-
 To coordinate measures in order to ensure that the
environmental objectives provided under the constitution
and the basic principles set out in the environmental
policies of Ethiopia are realized;
 To prepare, review, update and cause the preparation of
environmental policies, strategies and laws, where
necessary, in consultation with the competent agencies;
 Carry out studies to combat desertification and mitigate
the effects of drought and prepare corrective measures
and create favorable conditions for their implementation;

55
  Establish a system of environmental impact assessment of
public and private projects, as well as social and economic
development policies, strategies, laws and programmes;
 Coordinate, promote and as may be appropriate carryout
research on environmental protection;
 To enter any land, premise or any other place that fall
under the federal jurisdiction, inspect anything and take
samples as deemed necessary with the view to discharging
its duty and ascertaining compliance with the
environmental protection requirements;
 To provide advice and support to regions regarding the
management and protection of the environment.

On the other hand, the Ethiopian science and technology commission

is established with the objective to encourage and enhance science
and technology that enable the realization of the country’s socio-
economic development objectives. Pursuant to Proclamation No.
7/1995, the administrative powers and functions of this commission
include:-

 The power to formulate the national science and

technology policy and follow up its implementation;
 To support and encourage research and development
centers and institutions that have contribution in the
promotion of science and technology;
 To provide awards/ incentives/ to individuals and
institutions that have contributed to the development of
science and technology;
 To establish a system for the collection of information on
science and technological accomplishments, research work
and results thereof;

56
  To keep a list of professionals and institutions that engage
in research and development activities.

Dear distance learner, have you realized that the powers and functions
of these two agencies are completely different? The same holds true
for the various other administrative authorities, i.e. ministries,
commissions, authorities and agencies of the country. All of them are
endowed with several administrative powers and duties depending on
the nature and objectives of their establishment.

The various functions discharged by administrative agencies can be

classified in to four broad categories. These are:-
1. Regulation of private conducts
This is a basic and expanding administrative function. Such
regulation is often directed at commercial enterprises. It includes
price, entry and service regulation of electric utilities, railroads,
airlines and other carriers, environmental and consumer
protection regulation, control of sale and prescription of drugs
and regulation of terms and conditions of employment.

Among those agencies that carry out these functions, the

Telecommunications Agency is one in our country. The agency is
established with the objective to promote the development of
high quality, efficient, reliable and affordable
telecommunications services. For this purpose, it regulates tariffs
relating to basic telecommunications service; regulates the type
of telecommunications equipment which may be connected to a
telecommunications system and performs other relevant
activities that enable to achieve its objectives.

57
 National Bank regulates the activities of banks and the value of
foreign currency. Environmental Authority, on the other hand,
regulates the environment and implements environmental
policies and laws. These and other kinds of regulations, most of
the time, are exercised as per the enabling legislation of the
agencies.
2. Government exactions
These are also traditional responsibilities of administrative
officials. Taxation and military conscription are the two most
prominent examples. Among such agencies, we have the
ministry of Inland Revenue and its departments.
3. Disbursement of money or other commodities
There are certain categories of individuals who are entitled to
some benefits because of their age, illness or unemployment
conditions. Disbursing money for these eligible individuals is one
function carried out by agencies under this category. They are
common, especially in western countries. Through the social
security programs and other government system of insurance or
compensation, agencies disburse public money as payment of
pension for veterans. While these payments are often in cash,
they may also take other forms such as food stamps. Subsidies
to business enterprises through “tax- expenditure” and
provisions in the tax laws are another important form of
disbursement. Among such kinds of agencies we have the Social
Security Agency. This agency is established with the objective to
strengthen and expand social security programs as stated under
Social Security Re-establishment Proclamation No. 495/2006. To
carry out this, it determines the adequacy of entitlement claims
evidentiary documents, the types and amounts of social security
benefits to which a beneficiary is entitled as well as it effects

58
 payment of benefits. Generally, it administers social security
funds.

4. Direct Provisions of services

This is the fourth category of agencies’ administrative function.
Traditional examples of this category include the maintenance,
the post office; the construction of public works such as
highways, dams and navigation improvements; the provision of
police, fire and other protective services and funding of public
education. Public hospitals and public housing are also included
here.

There are also some kinds of agencies that are engaged in prevention
activities other than the four broad categories of administrative
function. The Ethiopian Disaster Prevention and Preparation
Commission, for instance, is among such kinds of agencies. This
Agency, as per its enabling proclamation No. 10/1995, is established,
among other things, to prevent disasters by way of removing the
causes and to prevent disasters, and to build in advance, the capacity
necessary to alleviate the extent of damages that could be caused by
disasters. It has also the duty and responsibility to ensure the timely
arrival of necessary assistance to the victims of disaster. For this
purpose, it formulates strategies and policies for future disaster
prevention whether natural or manmade, and follows up its
implementation. It undertakes prior studies on the causes of disaster,
set up systems for advance warning.

In order to carry out all these activities and functions, administrative

agencies employ a great variety of sanctions, incentives and other
tools. In programs involving disbursement and direct government
provision of goods and services, for instance, for the authority to spend

59
money is a basic tool of administration. In other instances, such as
policy protection and prison administration the application of physical
forces is involved. Both sanctions and incentives are found as tools in
regulatory programs fixing rates, prohibiting pollution and so on. In
special circumstances, regulatory officials may be empowered to
impose immediate sanctions such as the confiscation and destruction
of adulterated foods or drug products. Environmental protection
authority, for instance, may take any measure that reach up to closure
or relocation of any enterprise where any of its activity poses a risk to
human health or environment in order to prevent harm (Article 3(5) of
Environmental Pollution Control Proclamation No. 300/2002). They may
also issue regulations and render decisions employing their
discretionary power where it is proper.

Licensing is another widely used regulatory technique that is

characteristically employed to limit entry in to a given field of activity
or to enforce minimal qualifications of competence. The issuing agency
typically enjoys the authority to revoke or suspend licenses or impose
other sanctions for failure to meet standards of competence, service or
other aspects of performance defined by the agency. Such kind of
power is vested on the Ethiopian Telecommunications Authority. The
agency has the power to license and supervise the operation of
telecommunications services (Article 6(5) of Telecommunications
Proclamation No. 49/1996). The Ministry of Trade and Industry through
its department, Commercial Registers, registers and issues licenses to
individuals engaged in commercial activities (Article 4(2) of
Commercial Registration and Business Licensing Proclamation No.
67/1997). Ministry of Justice also has similar power. It issues and
supervises licenses to advocates for practice before courts of the
Federal government (Proclamation No. 256/2001).

60
Some administrative agencies are empowered to control private
conduct by taking legal actions against individuals. For example, you
can take the Social Security Agency. This Agency has the power to
take legal actions against employers and individuals who fail to pay
social security contributions (Social Security Agency Re-establishment
Proclamation No. 495/2006). The Environmental Protection Authority
also has the power to take administrative or legal measures against a
person who, in violation of law, releases any pollution to the
environment (Article 3 of Environmental Pollution Control Proclamation
No. 300/2002). In order to carry out these functions, these agencies
may need to initiate court litigation where they lack jurisdiction.

Others have the authority to investigate and disclose information. Such

kind of activity is carried out by environmental inspectors established
under environmental protection authority. These inspectors, in order to
ensure compliance with environmental standards and related
requirements, employ investigations by entering any land or premise
at any time without prior notice or court order, where necessary,
question any person alone or in the presence of witnesses; check, copy
or extract any paper or file; take free of charge, samples of any
material in order to determine whether or not it causes harm to the
environment or to life and seize any equipment or any other object
which is believed to have been implemented for the commission of the
act that caused pollution to the environment. Based on the
investigation, it can take appropriate corrective measures such as
sanctions.

2.3.3. Legislative Functions

It is obvious that the principal rule making power rests on the

legislative branch of the government. This is clearly indicated under

61
the constitutions of different countries, including ours. For instance,
Article 55(1) and 50(5) of the FDRE Constitution state that the law
making power at federal and state levels rests on the House of
People’s Representatives and State Councils respectively. In the United
States, Article 1 of the Constitution states that all legislative power is
granted to the Congress of the U.S.A, Currently, however, it is
impractical for the legislature to provide regulation to every detail
matters. Hence, the delegation of law making power to the
administration has become necessary.

The legislative need not specify each and every act that may be
involved in the discharge of an administrative duty. It may simply
impose the duty to be performed within a prescribed field for a
designated end, leaving the discretion to the administrative body as to
the selection of appropriate methods and other administrative details.
Agencies, therefore, enact detailed rules or regulations that specifically
deal with what is already set by the legislature.

Administrative authorities exercise their rule making function through

the power they acquire from the legislature by delegation. It is known
as the rule making action of the administration, or quasi- legislative
action. Rule making, in administrative law, represents the procedure
agencies follow in formulating, amending or repealing regulations. The
kind of laws enacted by the administrative is known as delegated or
subordinate legislation.

[Link]. The Nature of Delegated

Legislation

Dear distance learner, we have said earlier that the ultimate power to
enact laws is vested on the legislature. Administrative agencies make

62
laws through a power delegated to them by the legislature. At this
juncture, it is important to make a distinction between primary
legislations, which are made by the supreme law- making body, and
delegated or secondary legislations enacted by administrative
authorities.

Like primary legislation, delegated legislation also has the

characteristics of generality, and creation of rights and duties. But
when we closely scrutinize the nature of delegated legislations we can
observe that delegated legislations are detailed. These legislations are
detailed because they are issued to implement other superior
legislations that is drafted in broader terms.

Delegated legislations are considered as if legislated by the legislature

in so far as they are enacted following the proper procedure. They are
also considered as part and parcel of the main legislation under which
they are issued. This is because, first of all the power of administrative
agencies to enact laws emanates from the legislature itself. It is a
principle of agency law that whatever activity done by the agent, with
in the scope of authority, is considered as if it is carried out by the
principal.

The legislative power of administrative agencies has constitutional

base in our country, at least in relation to regulations. Article 77(13) of
the FDRE Constitution clearly states that the Council of Ministers shall
have the power to enact regulations. But the Council of Ministers can
exercise this power whenever the House of People’s Representatives
empowers it to enact regulations for the proper implementation of
proclamations. Clauses that empower the council to enact regulation
are usually included in proclamations. For instance, the Council of
Ministers is given the power to issue regulations necessary for the
effective implementation of Environmental Pollution Control

63
Proclamation No. 300/2002 pursuant to article 20. So, regulations are
one form of delegated legislations.

The Council of Ministers is also vested with the power to issue

emergency proclamation. As we will see later on, the council of
Ministers is vested with this power because of the nature of the
emergency decree that needs an immediate action. Article 93 of the
FDRE Constitution clearly states that the power to issue emergency
decree is given to the Council of Ministers.

Not only that administrative agencies are vested with the power to
issue the above kinds of laws, but also they have the power to issue
directives. Agencies issue directives to implement regulations and
other primary legislation. Even though the constitution provides
nothing in this regard, the enabling legislations of administrative
agency allow them to issue directives. For example, Article 5(2) of the
Ethiopian Science and Technology Commission Establishment
Proclamation No. 7/1995 states the commission has the power to issue
directives for the formulation of sartorial science and technology
policies. Similarly, the House of People’s Representatives gave the
power to issue directives to the Environmental Protection Authority for
the effective implementation of Environmental Impact Assessment
Proclamation No. 299/2002 (Article20).Hence; the source of authority
to issue directives by administrative agencies is the proclamation that
is going to be implemented by the specific agency and/or the enabling
legislation itself.

[Link]. Reason for Delegating

Legislative power for
Administrative Agencies

64
The reason for the delegation of legislative power to administrative
agencies mainly lies on the complexity of modern administration. The
growth of massive governmental responsibilities and activities called
for the enactment of new legislations.. Hence, the delegations of some
part of legislative power become compulsory. Generally, we can
summarize the reasons for delegation as follows:-
1. Pressure on the legislature
The main reason for delegation of legislative power for
administrative agencies is to reduce the burden on the legislative
organ of the government. The legislature has no sufficient time and
energy to on details. Parliament in its legislative work barely gets
time to discuss essential principles. If the parliament were not
willing to delegate law making powers, it would be unable to pass
the kind and quality of legislation which the modern complex age
requires. The legislature by delegating its rule making power to
agencies can reduce workloads, save its time and energy.

2. Technicality of Subject matters

The second justification for delegating legislative power for
administrative agencies is the technicality of subject matters.
Currently, law making requires technical knowledge as a result of
the complexities of a modern government. The legislature is not
composed of techno crafts since they are mere representatives of
the people. Sometimes, the subject matter on which legislation is
required may be too technical in nature for the parliament to fully
appreciate it. As a result, the legislative power needs to be handed
over to administrative agencies which are full of experts in
respective fields. Besides, technical matters as distinct from policy
issues are not susceptible to discussion in parliament and therefore
can not readily be included in legislation. Therefore, it is convenient

65
for the legislature to confine itself to policy matters only and leave
the technical law-making to administrative agencies.

For example, the members of the House of People’s

Representatives may not have adequate knowledge about the
emission of which kinds of chemicals can pollute the environment
and cause environmental disasters. The House, instead of enacting
detailed laws, simply formulates and sets environmental policies
and standards and leaves the power to enact detailed laws to the
Protection Authority for the proper and effective implementation of
the policies.

3. Flexibility of the law making process

Dear distance learner, do you remember law making process

adopted and followed by the legislature from your Introduction to
Law Course. The law making process of the legislature is a long
process. It passes through initiation to publication stages. It is time-
consuming and rigid. But through delegation, it is possible to
achieve flexibility.

Besides, the modern complex conditions of life and society hampers

the legislature from foreseeing all the contingencies that might
happen in the future. Some legislative acts need to be flexible so
that they may be adapted to changing conditions. The device of
subordinate legislation enables an agency to achieve the necessary
level of flexibility.

4. Secrecy

66
 In some situations it is necessary that law must not be known to the
public before it comes in to effect. For example, in case of
imposition of restrictions on private ownership, the legislature
needs to keep the law secret until it becomes operational. If that is
not the case, people may arrange their property in a manner that
defeats the purpose of the law. The same applies to increase of tax
and the price of Gas or oil. Secrecy can be achieved only through
administrative action because the ordinary legislative process is
always very open to the public.

5. Emergency Power
During emergency, because of the nature of the situation it requires
timely and appropriate action. It is obvious that the parliament can
not always be in office unlike the executive does. The parliament
can not act quickly because of the time that it requires to pass a
law. Moreover, it is only the administration that can have immediate
knowledge as to the existence of situations that necessitate an
emergency decree. For example, under our constitution, article
93(1), one of the situations that enable the Council of Ministers to
declare emergency is the expansion of an epidemic disease. The
Ministry of Health is more close to the information than the
parliament. Besides, administrative agencies have more experience
to control the situation. Legislative power must be conferred up on
the executive to enable the government to take actions quickly.

Dear distance learner, these are, generally, the main reasons for the
delegation of legislative power to administrative agencies. However,
the delegation of the legislative function to agencies is not something
without controversy and criticism.

67
 [Link]. Arguments Against the
Legislative Function of
Administrative Agencies

The first criticism against the legislative function of administrative

agencies is raised based on the non-delegation doctrine. There is the
Latin maxim called “delegate potestas non-potest delegari” which
means delegated authority can not be further delegated. To elaborate
it, the people are the source of authority and have vested the law
making power on the legislature, and the latter may not delegate this
power to the executive branch of the government without securing
permission from the original holders of the power.

The issue of delegating legislative power to administrative agencies

gives rise to the question of constitutionality. Some people argue that
delegating this power to agencies has no constitutional foundation. In
the United States, specially, the constitutionality of delegation of
power to agencies has been challenged since 1890’s. Questions such
as whether Congress in fact possesses the particular power given by
the constitution that it purports to delegate; the conditions or
guidelines for delegation and similar questions were among the issues
raised repeatedly by different scholars. Such kinds of controversies
were raised in the U.S.A. as a result of a clear indication in the
constitution that vests all legislative powers to the Congress.

However, writers argue that the constitutional provision that states all
legislative powers shall be vested in the Congress does not forbid
every form of delegation by Congress. They further argue that
legislative powers granted to congress also include the “implied
power” which gives congress the necessary resources of flexibility and
practicality to perform its legislative functions.

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The courts of the time have addressed the problem by giving
constitutional support for delegating authority to administrative
agencies. In 1892 in the case field Vs. Clark, an exporting company
challenged the constitutionality of delegated legislative power to
another branch of government. The Act granted the president of the
authority (Agency) to transfer certain articles (tea and sugar) from the
duty-free list to the duty list if it was found that other countries were
treating U.S. exports unequally. The Supreme Court, however,
reasoned that congress itself had said what duties would be charged to
what products and thus it had established the policy which the
president was merely to execute. The president’s authority to make
such determination, the court argued, did not amount to delegation of
legislative power; rather it supplies factual details to activities already
established by legislative policy. The court also reaffirmed that there
should be a clear limits on the power that are delegated to agencies.

The courts of the U.S. also justified broad delegation on the ground
that there are practical limitations on legislative time and expertise,
thus delegation were a “necessity” of modern government. But they
still propagate that there should be a limit on administrative authority.
Based on this assertion, the Supreme Court, in the case of Hampton
and Co. vs. United States (1982), formulated a general rule for placing
such limits on administration.

Unlike the U.S. Constitution, our Constitution has adopted a different

approach. There is a clear provision in the FDRE Constitution that
empowers the House of People’s Representatives to delegate its rule
making power to the Council of Ministers. Article 77(13) of the
Constitution states that the Council of Ministers can issue regulations
pursuant to the power vested on it by the House of People’s

69
Representatives. This specific provision indicates the possibility of
delegation of rule making power. Even though there is a maxim that
asserts the non re- delegation of delegated power, the House of
People’s Representatives can re-delegate its power as long as the
Constitution provides a clear provision to this effect. The people, as the
source of power to the house, authorize the latter to re-delegate
legislative function.

Even in the absence of such specific constitutional provision one can

still argue that though there is a principle that forbids re-delegation, it
is practically impossible for a modern government to follow it in a
formalistic way. The principle therefore must be understood in such a
way that prohibits delegation of unlimited power. In order to suit the
demands of modern government the question should not be more on
the re-delegation of power at all; it should instead be on the scope and
manner of such re-delegation. The re-delegated legislative power of
administrative agencies should be limited to those matters which are
administrative in nature. Agencies’ legislative power should be limited
only to adopt rules and regulations to give effect to the will of the
legislature as expressed by the primary legislation or statute.
Generally, the re-delegated legislations of administrative agencies
should not be taken to violate the doctrine of ‘delegated power cannot
be further re-delegated’.
Dear distance learner, what is your opinion in this regard? Try to
discuss the issue with other students in order to have a clear
understanding of the concept.

The other criticism forwarded against delegation of powers to enact

rules for administrative agencies is based on separation of power
principle. This principle divides state power among three branches of
government, and vests law making power to the legislative;

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implementation of rules to the executive and interpretation of laws and
resolving disputes to the courts. According to this principle, each
branch of the government should only carry out one of these functions.
Delegation of law making power to agencies, according to this
principle, amounts to giving two of the powers of the government to a
single branch, i.e. law making and implementation, and this violates
the principle of separation of powers. In order to challenge this
argument, however, some writers argue that the law making power of
agencies is not strictly speaking a legislative power; rather it is quasi-
legislative. Besides, there is no a watertight and absolute separation of
power among the three branches of the government. The doctrine of
separation of powers, according to these writers, must be reinterpreted
in the light of the needs of modern society. The doctrine of separation
of powers will be discussed in detail in the third chapter.

[Link]. Procedures for Rule Making

In administrative law, legislations are critical sources of law. As we

have seen from the outset, administrative agencies make regulations
to fill gaps left by the statutes. When the legislature enacts a statute or
legislation, it may direct the appropriate agency to formulate
regulations to give effect to the Statute. The source of authority for the
agencies to issue laws is, therefore, the legislature itself. Based on this
understanding, some writers argue that administrative agencies should
adopt the legislative procedure of the law making organ.

In our country, the procedures that the House of People’s

Representatives has to follow during law making are provided by

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Proclamation No. 14 of 1995. Of course, this Proclamation is amended
to a certain extent later on. According to this proclamation the
parliament is required to go through three basic steps while enacting
legislations. The first step is initiation; a draft must be presented
before the House for discussion. After the draft is initiated, the next
step is reviewing and endorsement of the bill. The draft must be
submitted to the speaker of the House and the Speaker shall notify the
House about the content and essence of the draft. The draft will be
read out or a copy of it will be distributed prior to the date of
preliminary reading. And if it is not voluminous, discussion will be held
on it. The draft will be referred to the concerned committee of the
House by the Speaker for further discussion. The committee will
deliberate on it and arranges forum for the concerned people to give
their opinion on the matter. Then the draft law will be returned to the
House with reports of its investigation, study and any recommendation
on the matter. Lastly, the House will hold a last, but deep, deliberation
to determine on the fate of the draft legislation. The House will decide
by majority vote either to approve, modify or reject the draft law. In
case of approval, after the speaker of the House made an official
declaration of the position taken by the House on the draft legislation,
it will be sent to the President for signature. Finally, the approved
legislation will be publicized in the official Negarit Gazette. These are,
generally, the procedures followed by the House of People’s
Representatives during law making.

Do you think that administrative agencies should follow the legislative

procedures of the House of People’s Representatives? Do you think
that Proclamation No. 14/1995, which is enacted to govern the
legislative procedure of the House of People’s Representatives, should
be applied by administrative agencies during law making?

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The argument that administrative agencies should follow the same
kind of procedure as the House of People’s Representatives during law
making does not seem sound. This is because; adherence to those
procedures defeats the main purposes of assigning law making power
to agencies. Besides, it is difficult to achieve the purpose of
confidentiality and flexibility while applying the legislative procedure of
the parliament which is open to the public and normally takes long
time. The law making procedures of administrative agencies must be
different and somehow flexible than the House of People’s
Representatives. In Ethiopia there is no separate procedural rule that
sets procedural requirement and governs the law making process of
agencies. Consequently, the manner how agencies make laws lacks
transparency and consistency. In some countries, we can find
administrative procedure acts which dictate agencies to follow certain
procedures while they make laws. These procedural requirements are
laid down by the proper legislative organ-the parliament that delegates
the power to agencies. To be familiar with an instance of the rule
making procedure of administrative agencies, it is very important to
see the famous American Administrative Procedural Act (APA).

The American Procedural Act (APA) sets forth the rule making
procedures that federal agencies must follow when they formulate,
repeal or amend their rules. By doing so, it ensures procedural
uniformity among federal agencies. It provides two methods for rule
making, i.e. formal and informal rule making.

APA requires formal rule making when statutes require the regulations
“to be made on the record after opportunity for an agency hearing”.
APA sets forth detail requirements for formal rule making. It requires
the agency to conduct a trial hearing. The agency should allow parties
who have an interest in the agency’s decision to testify, and cross-

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examine a testimony presented against them. The parties submit
exhibits which become part of the record. The transcript of testimony
and exhibits, together with all papers and requests filed in the
proceedings, constitutes the exclusive record for decision.

The proceeding is, however, less formal than a court trial. At the
conclusion of hearing, the agency considers the evidence and then
issues its regulations. We can understand from this discussion that the
administrative decisions serve as law and are considered as regulation
in the U.S.A. And the formal rule making procedure set forth by APA is
employed in the process of issuing this kind of regulation.

The second method is informal rule making. This is often called notice
and comment rule making. It is the most common procedure used by
agencies to make regulations. Informal rule making adopted by APA
requires administrative agencies to publish notice of proposed
rulemaking in the Federal Register as the first stage of the law making
process. Then the public is given a period of time to submit comments
to the agency concerning the proposed regulations. Finally, the agency
reviews the comments and then publishes the final regulations in the
Federal Register.

The Act requires administrative agencies to state clearly in the notice

either the terms or substances of the proposed rule or a description of
the subjects, and issues involved in the draft rule. The purpose of this
requirement is to alert affected parties so that they have the
opportunity to study the proposed changes and prepare their
comments. Informal rule-making allows interested parties to submit
written data, views or arguments with or without the opportunity for
oral presentation.

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The agency, however, is not bound to accept changes proposed by
interested parties. It must simply consider the comments received and
give a sufficient explanation of why it adopted the final regulations. At
last, after reviewing the comments, the agency publishes its final
regulations in the Federal Register. This is similar with the official
Negarit Gazette in our country.

Parties who oppose an agency’s regulation can challenge it by trying to

find irregularities in the required procedure. Failure to give notice to
proposed rule-making or failure to give opportunity to interested
parties to submit their comments is considered to be violation of
procedural due process of law or procedural ultra vires. This will be
discussed in detail in the fourth chapter. If there is any procedural
irregularity, a reviewing court will declare the resulting regulations
invalid. The administrative agency would have to start the informal
rule-making procedure over again.

One important requirement under this method is “reference to the

legal authority under which the rule is proposed”. This goes back to the
fundamental concept in administrative law that state agencies can
take actions only when they have been delegated with proper
authority. Therefore, they have to mention in the regulation as to
where they have acquired the authority to issue that specific
regulation.

Dear distance learner, are you able to understand how the law-making
processes of administrative agencies differ from the law making
procedures of the legislatures?

The adoption of such kind of procedures helps to safeguard individual

right from being violated by regulations/rules issued by administrative
agencies. It also enables to bring uniformity in the making of laws

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among different agencies. Besides, it is important to have separate
procedural rules that fit to the nature of laws issued by administrative
agencies. Different writers have recommended for the adoption of such
kinds of procedure in our country too. The Draft Federal Administrative
Procedural Law provides some basic procedural steps that agencies
should follow when they make laws. Let us have a brief overview on
the procedures provided under this draft.

Like APA, the Draft Federal Administrative Procedure Proclamation

requires agencies to publish notice to make aware of citizens whose
rights might be affected by the rule. The notice must show the aim,
objective and the purpose of the draft law. The notice must also have
reference to the legal authority of the agency to issue the specific law.
Where, when and how people may comment on the subject matter
must also be indicated in the notice. They are also required to publish
the text of the proposed legislation with a short explanation of its
purpose, at least three days before its adoption.

Article 8 of the draft proclamation specifically governs how and when

agencies should hear public opinion. It fixes the period of time within
which a comment is presented. It also imposes a duty up on agencies
to form a forum for oral presentation of comments where it is
necessary. After doing all these, agencies should wait until the time
fixed for the comment expires.

Moreover, the draft states that there should not be substantial

difference between the rule indicated on the notice and the rule made
finally by the agency. This is set by the draft law in order to protect
individuals whose right might be affected as a result of major variation.
The agency can promulgate the rule only after considering the

76
comments or suggestions of the interested parties. Finally, the adopted
rule shall be published.

Besides, the draft proclamation requires the agencies to incorporate in

the regulation the issuance date of the rule, its objective, reference to
authority and the effective date of the rule if it is different from the
issuance date, in addition to the full content of the rule. The agency
should also keep records of every procedure of the promulgation.

The other important requirement stated in the draft proclamation is

review of agency rules. Agencies are required to review all of their
rules, at least annually, to determine whether any new rule should be
adopted.

However, the draft proclamation made some exceptions in relation to

certain regulations from some of the rule-making procedures. When
the regulation is an emergency decree, where public interest demands
or when there is time constraint, the agency is not supposed to ensure
participation of the public to give comments. In the draft proclamation
it is stated, among other things, that rules that relate to agency
management, personnel, budgetary system and ownership of property
are exempted completely form the rule-making procedure. Similar
kinds of exemptions are also available under the American procedural
Act (APA).This rule gives the discretion for agencies not to follow rule-
making procedures where they have good cause.

Generally, we can summarize the basic legislative procedures of

agencies as follows;
1. Setting agenda
2. Publication of notice
3. Public hearing

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 4. Publication of the rule

2.3.4. Adjudicative Power

Adjudicative power is also another supplementary power of
administrative agencies. Commonly, adjudication is the process of
hearing, trying and determining all sorts of cases brought before an
adjudicative organ. Ordinarily, this power is vested up on and
exercised by courts. They, being independent from other organs of the
government, adjudicate disputes between individuals; between
individuals and the government or between government organs.
However, because of different reasons that will be discussed later on in
subsequent part of this module, some judicial functions are conferred
up on administrative agencies. Agencies, using this power, make
binding orders, decide and pronounce judgments for disputes between
persons who bring a case for decision.

The administrative organs which are vested with judicial functions are
known as administrative tribunals. These tribunals are different from
courts in that they exercise this adjudicative power incidentally while
the courts exercise it solely. The judicial power of administrative
agencies is limited in scope, relates only to their main purpose of
establishment, and authorized by Statute unlike courts. Traditionally
judicial function is something left for courts. The constitutions of
different countries also confirm this fact. Article 79(1) of the FDRE
Constitution, for instance, clearly states that judicial power both at
federal and state levels are vested in the courts.

Some scholars criticize agencies’ power of adjudication. However, even

though agencies are vested with judicial power, it is possible to keep
the essential attributes of judicial power in the courts by subjecting

78
agencies’ action to judicial review. Judicial review, which is an inherent
power of courts, enables to preserve judicial power with in the hands of
the courts through correcting agencies’ action and decisions. Hence,
even though judicial power is vested with agencies, judicial review can
preserve the traditional responsibility of the courts in the interpretation
of laws.

Considering the nature of administrative adjudication helps to

ascertain that the essential attributes of judicial power are kept in the
courts. Like the rule making power, the adjudicative power is
delegated or it is secondary or quasi-judicial by its nature. The judicial
power of administrative agencies is not like the inherent power of
ordinary courts of law. It is only limited to their purpose of
establishment or the specific function to which the agency is arranged.
For example, the jurisdiction of Social Security Appeal Tribunal is
limited to examining and deciding on appeals made against decisions
of the agency relating to social security rights and benefits. Besides
agencies are not bound by the strict proceedings of courts and all the
rules that the courts should follow.

In fact, the composition, functions and procedure of these tribunals

vary in different administrative departments according to the nature
and function of the agency within which they are established. The
members of these tribunals are usually experts in different fields such
as trade and industry. Because of this, in most cases, they are limited
to questions of fact and appeal will not lie on this ground to the courts.
But this does not mean that appeal can not be lodged on ground of
law. For example, one can appeal to the high court on the decisions of
tax appeal commission on question of law. Sometimes appeal will not
lie to courts both on question of fact or law from the tribunals. For

79
instance, in our country no appeal lies from the final decisions of the
CPA Tribunal and Social Security Authority Tribunal to the court.

We have discussed earlier that our constitution vests judicial power,

both at federal and state level, with the courts (Article 79(1)). We have
to note also that there are constitutional provisions which indicate the
constitutional recognition of administrative agencies’ adjudicative
power. Among this constitutional provisions article 37(1) state;

Everyone has the right to bring a justifiable

matter to and to obtain a decision or
judgment by a court of law or any other
competent body with judicial power.
(Emphasis added)

The phrase any other competent body with judicial power refers to
administrative tribunals such as Tax Appeal Commission, Social
Security Authority Tribunal and CPA, among others.

The other constitutional provision, Article 78(4) reads as follows;

Special or ad hoc courts which take judicial

power away from the regular courts or
institutions legally empowered to exercise
judicial functions and which do not follow
legally prescribed procedures shall not be
established. (Emphasize added)

Again, the phrase institutions legally empowered to exercise judicial

functions indicates the possibility of establishment of institutions with
judicial power apart from courts. Administrative tribunals are among

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such institutions. Hence, the adjudicative function of administrative
agencies has somehow a constitutional basis.

[Link]. Types of Administrative

tribunals

It is possible to divide administrative tribunals which are entrusted with

judicial power in to three.

1. The parliament may confer up on certain administrative agencies

the task of performing judicial function when it believes
necessary. It is obvious that members of administrative agencies
are experts in different fields unlike judges. This could be one
reason for the parliament to establish the tribunal. This function
of the agencies is not strictly judicial but quasi-judicial and this
function is regarded as the appropriate function of the agency as
part of its administrative work. As we have discussed previously,
appeal may be lodged to courts depending on the circumstances.
But sometimes the decision of the tribunal can be final.
2. Parliament may again confer judicial function to administrative
bodies or persons appointed by the minister. These are known as
ministerial tribunals. The members of these bodies are appointed
by the minister. In most cases, appeal can be lodged to the
minister from these tribunals. Disciplinary committees of each
administrative agency are among such tribunals.
3. Parliament may also create special tribunals for particular
purpose by legislation. These kinds of tribunals seize to exist up
on the completion of their purpose of establishment. The
decisions of these tribunals are sometimes made final while in
some cases appeal on question of law can be brought before
higher courts.

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 [Link]. Reasons for Conferring
Adjudicative power up on
Administrative Agencies

There are several reasons forwarded for allocation of judicial power to

administrative agencies. Some of these reasons are similar to the
purpose of delegation of legislative power to them.

One of the reasons for them to be provided with this function is

specialization. Agencies are assigned and engage in specific functions
unlike courts. This enables them to develop streamlined procedures for
that specific function using their expertise on the area. They are
believed to possess grater technical expertise. Most of the disputes in
modern administration are of technical in nature. To arrive at a
decision and settle the issue in such disputes knowledge and
experience on such matters is extremely essential. This expertise and
streamlined procedures in turn contributes to an inexpensive and
expeditious administrative process. In other words, administrative
tribunals do their work more rapidly, more cheaply, and more
efficiently than the ordinary courts. Just like in the case of rule making
power, in adjudication proceedings, certain procedural requirements
must be observed. Nonetheless, administrative tribunals are not
required to stick to court-like formal procedures. So by conferring
adjudicative power to agencies, it is possible to achieve flexibility.

Besides, the complexity of modern life and the expansion of

governmental activities in various fields create numerous opportunities
for disputes to arouse either between citizens and the government or
between citizens. The natures of the issues involved in such disputes
are also complicated. As a result, many legislations entrust
administrative bodies with the function of deciding disputes and other

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issues in connection with the administration. Ordinary courts are
already overloaded by a number of cases. By taking away some judicial
power from courts and allocating it to administrative agencies, it is
possible to minimize burdens from court; and it helps to achieve
efficiency.

Administrative agencies are believed to give much concern to the

social interest involved in a dispute. Normally, courts give decisions
based on laws while tribunals take in to consideration of policies and
social matters in addition to rules. Moreover, it is obvious that an
ordinary judicial proceeding in a court of law is dilatory and expensive.
The establishment of Administrative tribunals contributes a lot towards
solving such kind of problems. All the above discussed reasons have
necessitated the delegation of judicial power up on administrative
authorities and the creation of administrative tribunals in different
spheres of activities.
[Link]. Arguments against Adjudicative Powers
of Agencies

Dear distance learner, like the legislative function, the adjudicative

power of administrative agencies is not something left without
criticism. Different arguments are raised against the adjudicative
function of agencies.

The first argument is based on lack of legal expertise. The presumption

is that administrative officials to whom adjudicative power and
responsibility is entrusted do not have legal training to handle
delegated judicial matters. The point is they do not know how to
interpret and apply laws. As a result, the right of individuals involved in
a dispute can be affected. It is, however, argued that the nature and
kind of rights involved in administrative disputes are different. These

83
tribunals in most cases are engaged in determining facts rather than
interpreting and applying rules. Besides, appeal can normally be
lodged to the courts form administrative tribunals on question of law.

The second argument is raised based on independence of

administrative agencies. The point is, since administrative agencies are
mostly structured under the executive branch of the government, they
cannot be free under any circumstances from political influences. In
this connection it is difficult to expect fair decisions. There is also a
concept of department bias. Administrative tribunals may entertain
cases that involve citizens and their own departments. The fear, in
such kind of cases, is that they may tend to decide in favor of their
departments. In fact, there is no clear indication in the constitution that
demands administrative tribunals to be independent and free from any
interference unlike courts. Different administrative procedural rules,
however, demand agencies to be impartial.

Others argue that administrative agencies are mainly established to

carry out executive functions, enforcing different laws and policies set
by the legislative, not to adjudicate cases. Therefore, they can hardly
spend their time to conduct hearings and render decisions. Dear
distance learner, how do you evaluate this argument?

In addition to the above arguments, some argue that conferring

adjudicative power up on agencies goes against the principle of natural
law which states “a person can not see and entertain a case to which
he is a party himself”. This principle developed to achieve impartiality.
Hence, if agencies adjudicate cases, they will be judges for the cases
(disputes) to which they are parties, and it is difficult to expect
impartiality.

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However, regardless of all these arguments, a number of
administrative tribunals are found in different legal systems. They
entertain cases as part of their day to day activities. Nevertheless,
different procedural requirements are outlined in legislations in order
to protect individual rights against administrative actions or decisions.
Failure to comply with these procedural requirements renders agencies
activities ultra vires.

[Link]. Procedures to be Followed by

Administrative Tribunals

Administrative agencies are not experts in interpreting laws unlike

regular courts. However, they often render decisions. As a result of
lack of technical knowledge, individuals’ rights may be affected
negatively. In order to avoid, or at least to minimize such
consequences, agencies are required to follow prescribed procedural
rules during adjudication. These procedural standards may be set by
separate procedural legislations and / or by enabling legislations.
Where statutes are silent as to the procedure, the common law rules of
natural justice and procedural due process of law, which confer the
right to have a fair procedure before an adverse decision, must be
observed.

Let us discuss about the famous federal American Procedural Act (APA)
to have some understanding on the procedural requirements. APA
outlined minimum and common procedures to be followed by
administrative tribunals during adjudication. These include prior notice
of the hearing, opportunity to examine and cross- examine witnesses,
opportunity to present documentary evidence, an impartial decision
maker and a written explanation of why the requested relief is granted
or denied. Further, the party seeking relief or benefits has the right to

85
representation. Hearing procedures can be differed depending on the
subject matter of the hearing. Enabling legislations may also provide a
different hearing procedure for agencies.

The core procedural requirement under APA, with regard to

adjudication, is opportunity for an agency hearing. It directs agencies
to issue a decision only after holding hearing. This in turn includes the
right to notice. APA clearly provides that “persons entitled to notice of
an agency hearing shall be timely informed of the time, place and
nature of the hearing”. Parties are also entitled to be notified as to the
legal authority and jurisdiction under which the hearing is to be held;
and the matters of fact and law asserted. These requirements reflect
the concept of due process of law.

The other important requirement is the right to representation. APA

states that “a person compelled to appear in person before an agency
or representative thereof is entitles to be accompanied, represented
and advised by council or, if permitted by the agency, by other
qualified representative”. This simply states that a person who must
appear before an agency is entitled to have a representative. APA
further states that the representative can be an attorney or other
qualified person. But what if the individual to a dispute has no means
to pay for representation or attorney? As you well know, in criminal
cases the accused person has the right to representation. APA does not
provide such kind of arrangement for administrative disputes. Thus if a
party is found to be incapable to pay for representation, the
administrative agency will not pay the representation fee.

The third important requirement found in APA is an impartial decision

making. APA provides that persons who preside over the taking of the
evidence shall perform their functions in an impartial manner. Further,

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APA prohibits agency employees who are involved in investigating or
prosecuting a case from participating in the decision making except as
a witness or council in a public proceeding. The purpose of this is to
ensure that the decision makers are partial.

APA requires the decision makers to explain in writing the decisions

they render and the basis for those decisions. If the decision is
unaffordable, a written explanation is necessary so that appellate
bodies within the agency, as well as the courts, can give meaningful
review. APA specifically demands all decisions to include a statement
of findings or conclusion, reasons or basis; issues of fact; law or
discretion presented on the record and the appropriate rule, order,
sanction , relief or denial thereof. Thus, the decision maker is supposed
to address every issue of fact and law and explain why the relief
sought was denied or granted. By requiring such explanation, APA
forces decision makers to give sufficient explanation to withstand
scrutiny by administrative appellate bodies and the federal courts. In
addition to what we have discussed above, APA demands agencies to
have record of transcript and exhibits together with all papers and
requests filed in the proceeding. Other than APA, specific Statutes may
set additional standards of procedural requirements for agencies in
USA.

As we have said repeatedly, there is no such kind of procedural act in

our country. The necessity for such kind of procedural act is not
disputable as they are aimed at limiting governmental powers within
their boundaries, protecting individual rights and freedoms. They also
serve to achieve efficiency and flexibility within the administration.

In Ethiopia, attempts to issue administrative procedural Act have

started since 1960’s. The committee established to draft the first

87
procedural law, in 1964, affirmed on the necessity of the Act realizing
that the activities and responsibilities of the government have
increased from time to time. They also stated that the actions and
decisions of administrative agencies of the time are not in conformity
to the constitutional principle of due process of law. After a long time,
the second attempt was made in 2002. This draft legislation has stated
a detail procedure for administrative tribunals.

The draft legislation demands administrative agencies, among other

things, to adjudicate and render decisions only according to law. It also
governs how a petition can be made before a tribunal. The petition has
to be made in writing and must show that an agency before which the
matter is presented for adjudication has jurisdiction over it.

Like in the case of APA, here also, the parties to a dispute must be
given the opportunity to be heard. They have the right to get adequate
notice, the right to be represented and to get a legal advice and also
have the right to know any evidence presented against them.

The agency, unless expressed otherwise, has a duty to render decision

within sixty days starting from the day when petition is made.
Individuals who render decisions are supposed to be impartial and free
from biases.

Any person who is a party to an administrative dispute has a right to

get a copy of the decision. A party who is dissatisfied by the
administrative decision is given a right to lodge appeal to superior
administrative organ or to the courts. These are, generally, the
procedural requirements set by the draft procedural acts.

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Specific Statutes may provide some procedural safeguards. For
instance, the Social Security Agency Re-establishment Proclamation
No. 495/2006 clearly states that the social security appeal tribunal
which is established under the agency shall decide all cases based on
the provisions of relevant pension proclamation, regulation and
directives (Article 11(4)). Apart from this, the proclamation empowers
the tribunal to adopt its own rules of procedure (Article 11(7)).

There are people who do not support the existence of such kind of
statutory procedural requirements for administrative agencies. They
believe that this will defeat the very purpose of giving judicial power
for administrative agencies. As we have already discussed, flexibility
and speedy trial are among the reasons for conferring adjudicative
functions up on administrative agencies. If we require agencies or
tribunals to adopt all the procedural requirements, what is the purpose
of delegating agencies with adjudicative power? What is your opinion
on this issue?

From our discussion we can understand that we have to balance

individual freedoms and rights with achieving flexibility and efficiency
within the administration while we enact legislations that set
procedural safeguards or requirements.

Before concluding our discussion on this part, let us summarize the

procedural requirements that tribunals shall observe while disposing
cases. The procedures include the following:-

1. The right to be heard (the right to a fair hearing)

In any civilized society, any individual whose right might be affected

by the decision of an administrative agency should be given the

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opportunity to present his side of the case and to defend himself. A
person must also be given an opportunity to defend himself.

The right to a fair hearing covers every stage through which an

administrative adjudication passes, starting from notice to final
determination.

i) Right to get notice

The first stage in any hearing is giving notice for the accused
person. Unless the individual knows the issues involved in the
case, he cannot defend himself. The notice must be adequate,
i.e. it has to contain the following:-
 time, place and nature of hearing;
 legal authority under which hearing is to be held and;
 statement of specific charges which the person has to
meet.

ii) Right to present his case and evidence

Apart from serving notice, just as part of the hearing right, the
adjudicatory authority should afford reasonable opportunity to
the party to present his case either in writing or orally. The party
must also be given the opportunity to present his evidence.

iii)The right to rebut adverse evidence

This right helps the party to be informed about the evidences

adduced against him. One can normally rebut evidences through
cross examination. So, this right must be respected by agencies.

iv)Reasoned Decision

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 In order to give the final decision, administrative agencies should
indicate framed issues and reasons for the decision. This is one
indication for the presence of a fair hearing.
2) The Right to Appeal

Agencies have to maintain separation of functions in their structure so

that persons aggrieved by the decisions of the lower level
administrative agency can be able to take their case to a higher organ.

3) Rule Against Bias

The requirement of this principle is that the judge must be impartial

and must decide the case objectively on the basis of the evidence. It is
obvious that a person can not take an objective decision in a case in
which he has an interest. Hence, a person shall not be made a judge in
his own case. This rule enables to ensure public confidence and
impartiality of the administrative adjudicatory process.
4) Findings and Conclusions

Findings of the tribunal shall be recorded in writing and decisions of

the tribunal must be supported by reasons. Failure to observe these
procedural requirements can be a ground for courts to review the
administrative decision.
Generally, in this chapter we started our discussion by defining what
administrative agencies are. We have said that administrative
agencies are government organs mainly established to execute laws
but vested with legislative and adjudicative powers. In Ethiopia,
different agencies are known with different names such as ministry,
authority, commission and agency. Most of them are structured under

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the executive branch of the government. Sometimes, however, they
may be established independently. Among the latter types, we have
the Ethiopian Electoral board. We have also discussed the three
functions of administrative agencies in detail; the reasons hat agencies
are vested with legislative and/or adjudicative power; and the various
arguments that are raised for and against such powers of agencies.
Finally we have seen the different procedures to be followed by
agencies while they exercise their powers.

Review Questions

1) Try to define the term administrative agencies, and list out

governmental organs that are administrative agencies?
2) What do you think is the importance of having administrative
procedural proclamation, such as APA?
3) Discuss the reasons behind delegating legislative power to
agencies?
4) Discuss the arguments raised against conferring adjudicative
power up on agencies, and try to forward your own argument.

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 Chapter three
Fundamental Constitutional Principles
related to Administrative law

Dear distance learner, in this chapter we shall discuss different

constitutional principles that are related to administrative law and
administrative agencies. The origin, development and the practical
application of the three constitutional principles, separation of powers,
rule of law and due process of law will be scrutinized as well. We shall
also discuss how these principles are related to administrative law.

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They are, generally, designed to cheek on the arbitrary and
discretionary actions of the administration.

At the end of this chapter, the student will

 Know the essence and the concept of the three constitutional
principles; the principle of separation of powers, rule of law and
due process of law
 Understand the origin, development and the practical application
of these constitutional principles
 Be able to know the relevance of these principles with
administrative law and agencies.
 Be able to scrutinize the recognition of the principles under the
previous and current constitutions of Ethiopia.

3.1. Separation of Powers

Dear distance learner, the principle of separation of powers is an
ambiguous concept both in political and constitutional thoughts. This
principle, generally, denotes the allocation of a state’s powers among
the three branches of the government, namely the legislative (which
makes the law), the executive or the administration (which executes
laws) and the judiciary (which interpret the law). According to this
principle, there must be distinct branches of a government with
distinct powers and responsibilities. Each branch of the government,
therefore, is limited to the power expressly or implicitly entrusted to it.

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One organ of the government should not intervene in the function of
the other branch as far as those powers and responsibilities exclusively
reserved for the latter.

The doctrine of separation of powers, as a political theory, was

developed to ensure that governmental powers are distributed
between different branches of government so that more powers are
not concentrated unnecessarily with any single organ of a state. This
theory is also meant to mitigate abuse of power. Many scholars come
to consensus that the likelihood of committing abuse of power
increases as more power is accumulated with a single state organ. The
constitution, as the source of legitimate state power, therefore, defines
and limits the power meant to be exercised by any single organ or
body.

The concept of separation of powers goes back, along with the rule of
law, to the time of Aristotle in ancient Greek, but it was elevated to the
rank of a grand constitutional principle by the French theorist
Montesquieu in the early 18th century. In ancient Greek Aristotle
distinguished three elements in every constitution, which he classified
as the deliberative, the magisterial and the judicial. History reveals
that some writers had proposed a three fold division of governmental
power under different periods. For example, Charles Dallison, in his
work dated 1648, wrote that ‘it is one thing to have power to make
laws, another to expound the law, and to govern the people which is
different from both.’ He went on to argue that a satisfactory system of
government required these powers to be placed in different hands so
that ‘everyone is limited, and kept within his own bounds.’ But he
proposed that the king should retain an important part in the
legislative process.

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The works of John Lock also served as bases for the development of
the principle. He recommended that the legislative and executive
functions should be placed in separate hands, for the sake of efficiency
as well as for the protection of liberty. His classification of
government’s functions was in to the legislative, the executive, and
the Federative. But the later which involves foreign relations was not a
separate function, rather part of the executive. The legislative should
be separate from the other two, but the executive and the federative
functions can be headed by one and the same organ, the King. He
thought that it was unwise to give lawmakers the power of executing
the laws because they might exempt themselves from obedience and
suit the law to their private interests. This theory of lock has served as
a base for Montesquieu to develop the principle of separation of
powers in a more elaborated manner.

Montesquieu in his great work Del’ Esprit des Lois(1748) argued for a
strict separation of the legislature, executive and the judiciary in order
to protect the liberty of individuals. He stated in his book that;

When the legislative and executive powers are

united in the same person, or in the same body of
magistrates, there can be no liberty… Again,
there is no liberty, if the judicial power be not
separated from the legislative and executive.
Where it joined with the legislative, the life and
liberty of the subject would be exposed to
arbitrary control; for the judge would then be the
legislator. Were it joined to the executive,
however, the judge might behave with violence
and oppression. There would be an end to
everything, were the same man, or the same

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 body… to exercise those three powers that of
enacting laws, that of executing public affairs and
that of trying crimes or individual cases.

The end Montesquieu intended to achieve was avoiding potential

abuse of governmental power, arbitrariness and violation of rights and
freedoms through giving better protection for individual freedom. His
arguments represent an idealized system in which the separation of
powers guarantees individual liberty. He based his idea, partly, on the
belief that human beings by nature are selfish, greedy, jealous and
seeking after power. Hence, he set on to create a system of control by
formulating the separation of the three different types of governmental
organs. His doctrine of separation of power is also based on the study
of Lock’s writings and an imperfect understanding of the 18 th century
English Constitution.

Generally, this is how the principle of separation of powers developed.

However, the theory as explained by Montesquieu has been subjected
to controversy since its conception. Some argue that it should not be
supposed that Montesquieu’s views were based on a literal
understanding of British constitutional arrangements during his own
time. This is because, there was no any clear cut separation of powers
in the 17th century England where he claimed that he based his theory.
We may take note of the fact that the doctrine, as developed by
Montesquieu, can not apply especially to a country with a
parliamentary form of government where members of the legislative
may constitute the executive department.

According to some subsequent writers on the topic, like Wade and

Philips, the principle of separation of powers denotes the following
points:-

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 1. Structural classification of government power- that means the
same person should not form part of more than one of the three
organs of the government. For example, the Prime minister should
not have a sit in the parliament or should not perform judicial
function.
2. Any branch of the government should not interfere in the
activities of any other organ of the government. For example, the
executive should not interfere in the activities of the Judiciary
3. One organ of the government should not exercise the functions
assigned to any other organ. That means any governmental branch
can only carry out one of the three functions of the government,
either law making, implementing or adjudicating. For example; the
legislative branch cannot implement laws or it cannot adjudicate
cases apart from law making.

It is submitted that the power separation is crucially important for the

establishment and maintenance of political liberty. However, such
separation is by no means clear, recognizable and unambiguous set of
concepts. Controversy still subsists. As a result of the ambiguities of
the concept, commentators come to different conclusions even as to
whether there exists separation of powers or not in any a given
constitution. Even Montesquieu himself did not explain exactly what he
meant by ‘separation.’ He assumed, apparently, that there should be
three distinct branches of government. But, the question is what kind
of relation could exist between them?

Montesquieu gave some support to the notion of ‘checks and balance’,

a method by which different branches of the government legitimately
influence or even impose certain limits on each other’s actions. He
thought that the chief executive should have a veto power the
legitimate duration of meeting of the legislature. The legislature, he

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suggested, should have the power to examine the manner in which its
laws have been put in to effect and should have the power to impeach
ministers.

A system of checks and balances obviously involves one government

branch interfering in the preserves of another. You might wonder
whether this latter concept is consistent with the doctrine of separation
of powers. The answer for the question whether checks and balance is
compatible with, or infringe the doctrine of separation of powers
depends up on how we define the doctrine. The problem lies on the
fact that different definitions are attached to the doctrine. If we argue
that there should be absolute separation of powers between
government branches, then, the theory of checks and balances will
contravene with the principle.

An American writer argues that both the doctrine of separation of

powers and checks and balances are dangerous to good government if
they are taken in their extreme form. Absolute separation of powers
prevent the unity and coordination necessary to administer the legally
expressed will of the state; extreme checks and balances create
frictions and deadlocks, and it impedes smooth and efficient
government. Apart from, this it is possible to argue that Montesquieu
wrongly emphasized on complete separation of functions. Government
is an organic whole and it is impossible to cut its organ in to water-
tight compartments. A complete separation of powers, in the sense of
distribution of functions of government among three sets of organs,
with no overlapping or co-ordination would bring government to stand
still. Besides, it would have been impossible to develop modern
administrative agencies had the doctrine of separation of powers been
followed rigidly in any country as agencies exercise all the three
functions of the government. It can clearly be observed that the

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functions of administrative agencies contravene the principle of
separation of powers if it is defined in an absolute sense.

There were also times in which agencies were considered as a fourth

branch of government, specially, in American administrative law
history. Justice Robert Jackson once described administrative agencies
in the following way;

Administrative agencies have become a veritable 4th

branch of government, which has deranged our
three-branch legal theories must as the concept of a
fourth dimension unsettles our three dimensional
thinking. Courts are differed in assigning a place to
these seemingly necessary bodies in our
constitutional system. Administrative agencies have
been called quasi- legislative, quasi- executive or
quasi – judicial, as the occasion required, in order to
validate their functions within the separation of
powers scheme of the constitution. The mere retreat
to the qualifying ‘quasi’ is implicit with confession
that all recognized classification has been broken
down and ‘quasi’ is the smooth cover which we draw
over our confusion as we might use a counterpane to
conceal a disordered bed.

This shows how the establishment of administrative agencies is

criticized based on separation of powers principle. However, it is
obvious that the adoption of absolute separation of powers between
the three branches of government is impossible where the
responsibility of government is becoming complex and wide. Unlike
governments prior to the 19th century, which was concerned only with

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some particular matters such as controlling external relationships and
dealing with crimes and disorder, contemporary governments have
assumed new duties and at the same time new powers. The
responsibilities and challenging tasks of modern government agencies
are increasing whose legal status and functions inherently violate the
doctrine of separation of powers.

There is also a thought that responsibility should not be divorced from

efficiency. Responsibility implies representation; efficiency demands
expert knowledge, the two can scarcely be united in a single organ of
government. It is rightly feared that the separation of governmental
functions, as designed by Montesquieu, would inevitably create
frequent deadlocks as such department acting in defense of its own
powers would never lend its aid to other and the consequent loss in
efficiency would outweigh all the possible advantages arising from
independence.

Currently, because of the above discussed reasons, it is almost

impossible; to find a constitution that has adopted a strict and absolute
separation of powers doctrine. Let us have moments to examine the
constitution of different countries to understand how the principle has
got recognition.

3.1.1. Recognition of the Doctrine in

Britain, U.S.A. and France

1. Great Britain

Dear distance learner, as you might remember from your constitutional

law courses, Great Britain does not have a written constitution. The
unwritten constitution, however, firmly recognizes the principle of
separation of powers. Accordingly, the parliament makes laws; the

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judiciary interprets them and the Cabinet (executive) implements laws
and policies. The principle of separation of power is also a base for
parliamentary sovereignty under the British constitution, the idea that
the parliament will set the frame work of general rules and an
independent judiciary will resolve disputes over the meaning of those
rules and will, in particular, keep the executive within the boundaries
of the law. Recent judicial decisions also show the continuing
recognition of the doctrine. Sir John Donaldson remarked in RVs HM
Treasury case that although the UK has no written constitution, it is a
constitutional convention of the highest importance that the legislature
and the judicature are separate and independent of one another,
subject to certain ultimate rights of parliament.

It is important to note, however, that in UK, there is no absolute and

formal separation between the principal constitutional organs- the
parliament, Crown and Cabinet and the judiciary so that the personnel
of each would be kept rigidly distinct with no overlap. There is no
absolute and formal separation of powers which forbids all members of
the executive from being members of the legislative. The executive
branch itself emanates from parliament. Indeed, it is a convention of
the constitution that all ministers must come from the two houses of
the parliament; either the commons or the lords.

Furthermore, one member of the judiciary, the Lord Chancellor, was

not only head of the judiciary and responsible for recommending most
judicial appointments; he was also a cabinet minister with his own
executive department and a prominent member of the House of Lords.
The Lord Chancellor could, moreover, sit as a judge. Constitutional
Reform Act of 2005, nevertheless, specifically eliminated this judicial
role of the Lord Chancellor and established a mechanism which limited
his contribution to the most senior judicial appointments. This can be

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typical example to show how the arrangements made by the
constitution violate the doctrine which requires that the same person
should not form part of more than one of the three organs of the
government. The reality in Britain also violates the other formulations
of the doctrine that requires one organ of the government not to
interfere with any other organ of the government, as the House of
Commons ultimately controls the executive.
Similarly, at a functional level it is not possible to find a strict allocation
of tasks so that law making functions are carried out only by legislative
bodies; judicial functions are performed by full-time members of the
judiciary and executive tasks are undertaken only by those who are
appointed to office in central and local government. Rules are made by
legislatures, civil servants and by judges. They are also applied by the
courts as well as by the executive. Equally, both ministers and judges
render decisions. Even though the executive is responsible to the
parliament, in practice, it can exert influence on legislative proposals
since it assumes power after securing majority seat in the parliament.
There are only rare occasions by which government policies are
abandoned. The consequent dominance over parliament enables the
executive to make legislation and thus to pass the judicial check which
is based up on the principle of legality. This shows the dominance of
the executive over the parliament.

2. The United States

In the United States of America, the principle of separation of powers

was introduced by the government of Virginia in 1779 when the
government declared that “the legislative, executive and judiciary
departments shall be separate and distinct so that neither exercise the
powers properly belonging to the other; nor shall any person exercise
more powers than one of them at the same time, except that the

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justice of the country courts shall be eligible to either House of
Assembly.” This declaration became a base for the adoption of the
principle both under many American States and the Federal
Constitution.

The government system of the United States is largely credited to

James Madison and even sometimes called the Madisonian model. He
set forth his belief in the need for balanced government power and
played a leading role in persuading the majority of the farmers to
incorporate the concept of separation of powers in to the Constitution
at the Constitutional Convention of 1787.
The constitution ensures a clear distinction between legislative,
executive and judicial powers. Article I Section I vests all legislative
powers in the Congress. Article II Section I vests all executive powers in
the president of the United States. He is the commander-in-chief of the
armed forces and is responsible for the formation of foreign policy. The
president personally proposes appointments to government posts, and
the government, once appointed is responsible for implementing policy
by being able to introduce legislative measures in congress. Article III,
Section I vests all the judicial powers in the courts.

Unlike the case in the British constitution, the parliament is not a

sovereign body under the US Constitution. They believe that the
sovereignty rests on the people and must be restrained. For this
purpose, a method of internal check of bicameralism is introduced
under the constitution. The executive also exercises veto over the
legislative while the courts use their power to invalidate legislation in
order to ensure that the legislature heeded the authority of the people.

We discussed that under the U.S. Constitution, each branch of the

government is independent, has a separate function, and may not

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usurp the functions of another branch. However, the different branches
are interrelated. They cooperate with one another and also prevent
one another from attempting to assume too much power. This
relationship is described as one form of checks and balances, where
the functions of one branch serve to contain and modify the power of
another. Through this elaborate system of safeguards, the framers of
the constitution sought to protect the nation against tyranny. Hence, in
these ways the US Constitution succeeds entirely in eliminating the
overlap and duplication of functions. For example, the president is
responsible for the appointment of judges of the Supreme Court,
subject only to the approval of Congress. The president also interferes
with the exercise of powers by the Congress through his veto power.
Besides, he exercises the law- making power through his treaty making
power.

Similarly, the Congress, in collaboration with the senate, has the power
to advise and consent on presidential appointments and can therefore
reject an appointee. The congress interferes with the powers of the
president through voting on budgets, approval of appointments by the
senate, and the ratification of treaty. It can also pass procedural laws,
create special courts and approve the appointment of judges. By doing
this, the Congress interferes with the activities of the judiciary. It is
also possible to raise the case of judicial review where courts can
exercise their power of control and interfere with the decisions and
activities of the Congress and the president. These illustrate the
arrangements made in US where the power exercised by any organ of
government is subject to checks and balances by the others. In
conclusion, under the US Constitution, even though the 18 th century
idea of separation of powers has come nearer to full realization, there
is still no absolute separation of powers in the strict sense of the term.

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 3. France

In France, the Constitution of the Fifth Republic tried to adopt the pure
doctrine of separation of powers unlike the Constitution of the United
States and Britain. It is stated under Article 16 of the 1989 Declaration
that the constitution, among other things, must organize the
separation of powers. Based on this, the Constitution established an
executive with two heads, the president, the head of state, and the
prime minister.

The president has important powers, such as the power to appoint the
prime minister and then, on the latter’s proposal, the other members
of the government. He can call a referendum, dissolve the National
Assembly and negotiate and ratify treaties. The legislative power rests
up on the parliament that has two chambers, the National Assembly
and the Senate. Lastly the judicial power rests up on the courts.

However, in France, it is important to note that the law making

function of parliament is clearly distinguished from the rule making
power of the administration. Dear distance learners, to understand this
more clearly, try to remember our discussion on the nature and
development of administrative law under the first chapter.

Ordinary courts are also precluded from reviewing the validity of the
actions of the administration or executive acts. Cases involving the
administration or any question on the legality of any official act cannot
be presented before the ordinary courts but to administrative courts
established within the executive. The parliament could not exert any
kind of control over the executive. This shows how Montesquieu’s
separation of powers doctrine exerted influence over the constitution.
This doesn’t mean, however, that there exists absolute separation of
powers among the three branches under the French constitution as the

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executive in many ways forces the parliament to take decisions. Also,
as we have discussed earlier, the president interferes with the National
Assembly, one of the two Chambers, while exercising its power of
dissolution.

3.1.2. The Recognition of Separation of

Powers in Ethiopia
In Ethiopia, the principle of separation of powers was alien to the
Imperial government before the first Constitution in 1931. Different
writers of the time described that the “Emperors were absolute Lords
of all lands within his dominions and they were above all laws…they
are supreme in all cases, ecclesiastical and civil, and the land and
persons of all their subjects are equally their property and every
inhabitant of the kingdom was born their slaves.”
Particularly, Mahitama Sellassie in his Zekre Neger comments on the
Imperial powers that “the power of the Emperor of Ethiopia over the
territory he rules is vast and undisputable. He engages both in
temporal and ecclesiastical affairs with the power of supreme authority
vested in him, he appoints and dismisses, gives and takes imprisons
and releases, amputates or kills. He grants pardons and exercises
various similar authorities.”

The presence of this absolute and extreme imperial power could not
allow for the emergence of administrative frame work in the traditional
Ethiopia. The doctrine of separation of powers could not exist as we
can easily perceive that all powers were concentrated in the hands of
the Emperors.

It is only after the establishment of the first governmental frame work,

in 1908, that government tasks were allocated to different authorities.
Emperor Minilike II divided the government in to 12 Ministries and

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appointed some of his ‘competent’ and ‘loyal’ men as ministers. This
has laid the ground in its crude and rudimentary form, for the
development of the principle of separation of powers in Ethiopia.

(1) The 1931 Constitution

The process of developing the government frame work and separation

of powers continued and culminated in 1931 by the adoption of the
first constitution. The Constitution provided for the establishment of
the three governmental branches, the executive, legislative and the
judiciary. The Constitution, introduced for the first time, a two
deliberative chambers of parliament consisting of the senate and
chamber of Deputies. The members of the senate were appointed by
the Emperor from among the nobility and the local chiefs which in turn
select members of the chamber of Deputies.

The parliament was not empowered to make laws without obtaining

prior approval from the Emperor. The constitution clearly states, under
its articles 34 and 35 that “No law may be put in force without having
obtained the confirmation of the Emperor.” It is possible to say that the
Chambers were mere initiators of laws because the final decision for
the enactment of a proposed legislation rested on the Emperor. Article
36 of the Constitution also affirms this position as it vests power up on
each chamber to express separately its opinion to the Emperor on
questions of legislation and other matters. Furthermore, for your
surprise, the parliament was excluded from enacting laws on matters
which are exclusively reserved for the Emperor; hence the Emperor
was also a law maker.

The other important point is, the Constitution provided that judges
were made to administer justice and their appointment to be made

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from men having experience of judicial affairs. But the Emperor had
retained his judicial power of ‘Zufan Chilot’.

The Constitution also formalized the establishment of ministerial

organs. In terms of power, however, it was no more than an advisory
body to the Emperor whenever he asked their opinion on any matters
of the government.

Generally, it is possible to say that the Constitution had set the

foundation for the development of separation of powers principle. But,
we have to note that the constitution also served as a means of
consolidating the traditional powers of the Emperor. It also gave the
power for the Emperor to control the parliament and the judiciary.

(2) The 1955 Revised Constitution

Like the 1931 Constitution, the Revised Constitution defined and

distributed powers and duties within the government. It provided for
four organs of government, i.e. the Emperor, the Legislative, the
executive and the judiciary. The Emperor was vested with powers and
functions which are “executive”, “legislative”, and “judicial” in nature.
Article 26 of this constitution clearly states that the sovereignty of the
Empire was vested in the Emperor and the supreme authority over all
the affairs of the Empire was exercised by him as the head of state.

Apart from this, the Emperor had the power to organize the various
administrative agencies and empower them to declare emergency
decrees (Article 27 and 92). He was also the Supreme justice pursuant
to Article 35 of the constitution and Article 361 to 370 of the Ethiopian
civil procedure code. Furthermore, the executive power of the
government was vested in the Emperor. He was conferred with the

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power to select, appoint and dismiss the prime Minister and all other
ministers and vice ministers (Article 66 of the constitution).

He, not only had the power to create the ministries, executive agencies
and the administration, but also appoint, promote, transfer, suspend
and dismiss the officials. According to article 68 of the Constitution,
each administrative agency was made responsible to the Emperor and
to the state both individually and collectively in the discharge of its
duties in its respective ministry or council.

Generally, the arrangement by the constitution shows that, the

Emperor involved and intervened in the remaining three branches of
the government. He participated in the law making process of the
parliament using his veto power. Using his executive power, he could
create government agencies and determined their internal regulation.
He was also a supreme judge in his Zufan Chilot. In view of all these
powers vested on the Emperor, it would be difficult to conclude that
the doctrine of separation of governmental powers, in its modern
sense, existed under the Revised 1955 Constitution.

(3) The 1987 Constitution of the People’s

Democratic Republic of Ethiopia

The 1987 Constitution had created three governmental organs,

namely, the National Shengo, the Executive Branch and the Judiciary.
Pursuant to Articles 62 and 63 of the constitution, the National Shengo
was vested with the power of legislating laws and determining basic
national issues. It was also the supreme organ of the state. However,
since the National Shengo was supposed to be in session only once in a
year, a standing body known as Council of State was created in order
to perform basic national issues including legislating laws. This council

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of state was headed by the president of the Republic (Article 81 and
82).

The power to nominate the prime Minister, the Deputy prime Minister,
members of the council of Ministers, presidents and Vice Presidents
including judges of the Supreme Court was entrusted to the president
of the Republic (Article 86). According to Article 9 of this constitution,
the highest executive and administrative power was vested on the
Council of Ministers. The council was accountable to the National
Shengo and to the council of State and the President of the Republic,
where the Shengo is not in session. The Constitution vested judicial
authority on the courts as stated under Article 100.

It can easily be observed that the PDRE Constitution clearly established

the three organs of the government. Nevertheless, the powers given to
the legislative, executive and judiciary contravene with the principle of
separation of powers as envisaged by Montesquieu as there are a
number of overlaps in the powers assigned to each branch of the
government. To put it differently, the powers of the three branches of
government are arranged in such a way that one organ of government
intervenes in the affairs of the other in many ways. You have to bear in
mind; however, that strict separation of powers as recommended by
Montesquieu is not practical in any modern government.

(4) The 1995 Federal Democratic Republic of

Ethiopian Constitution

The 1995 constitution of Ethiopia (FDRE Constitution, hereinafter)

came up with a different governmental arrangement, Federalism. Both
the Federal government and States have their own powers, and each
of these governments have their respective legislative, executive and

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judicial organs. It must be emphasized that the Constitution does not
explicitly enumerate the principle of separation of powers. However, it
recognizes the doctrine tacitly, at least in principle. The Constitution
establishes the legislative branch of the government, which consists of
two houses-the house of Peoples’ Representatives and the House of
Federation (Article 53). It should be born in mind that the House of
Federation, strictly speaking, is not a law making organ, because
nowhere in the constitution is stated that this House shall participate in
the law making process except in amendment of the constitution when
need arises (Article 105(2)). The House of Federation, On the other
hand, is vested with the power to interpret the Constitution. This
makes things more difficult to conclude that the house is a legislative
organ of the government.

Under Article 72 of the Constitution, it is clearly indicated that the

highest executive power of the government is vested in the prime
minister and council of Ministers. The executive is responsible and
accountable to the parliament, the House of People’s Representatives.

Pursuant to Article 79 of this constitution judicial powers are vested in

the courts. The Constitution establishes an independent judiciary with
exclusive judicial power. Hence, it can be clearly observed that the
constitution established the three branches of the government and
recognized the principle of separation of powers. However, there is no
strict separation of powers, within the terms of Montesquieu, among
the legislative, executive and the judiciary under the constitution. We
can state a number of examples that show interference of one branch
of the government to another.

The constitution made the House of Peoples’ Representatives a

supreme organ of the government at Federal level (Article 50(3))
where both the executive and judiciary are made accountable to the

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house. The House of Peoples’ Representatives, therefore, intervenes in
the activities of the executive in the form of control. The House
approves the nomination of ministers and federal judges up on the
recommendation of the prime minister. The prime minister and other
ministries are made to present periodical report to the house (Article
74(11)).

The prime minister, as per Article 73(1) of the Constitution shall be

elected from among members of the House of People’s
Representatives and the constitution does not state anywhere whether
he loses his sit in the House. Further, he can nominate for ministerial
posts from among any of the Councils (Article 74(2)). That means both
the prime minister and other ministers may, at the same time, be
members of the House of People’s Representative. This arrangement
in the constitution directly contravenes the principle of separation of
powers that based itself on the premise that the same person should
not form part of more than one of the three organs of the government.
The prime minister also has the power to recommend the appointment
of the President and Vice -President of the Federal Supreme Court to
the House of Peoples’ Representatives (Article 81(1)). Some scholars
argue that this arrangement may lead the prime minister to exert
some kind of influence on the judiciary that might amount to
interference.

Furthermore, the legislative (the House of Peoples’ Representatives) is

empowered to delegate its law making power to the executive (the
council of Ministers) as it can be understood from Article 77(13) of the
Constitution. The establishment of administrative tribunals also has
constitutional basis (Article 37(1)). Under the principle of separation of
powers, parliament cannot delegate any part of its legislative power;
also judicial power must exclusively be exercised by the courts. Hence,

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the establishment and recognition of administrative agencies (organs
that exercise all the three function of the government at the same
time) under the constitution is said to contravene the principle.

Generally, we can understand from our discussion that the division of

the governmental powers in to legislative, judicial and executive is not
an exact classification in any legal system. Also in practice it is
impossible to have a complete separation of powers. There may be
numerous powers assigned to one department, or delegated to a
commission or agency created for the purpose of administering a law
while they are inherent powers of the other department. The
administration makes rules and regulations that have the force of law,
and adjudicate cases. However, this by no means gives the
administration the status of the legislature or of the judiciary.

3.2. Rule of law

Rule of law is one of the fundamental constitutional doctrines that is
related with administrative law. Its notion, as a component part of
democracy, is a common denominator of modern democratic
constitutions. Yet, the meaning of this doctrine is far from being
precise, and it may mean different things to different people at
different times. Dear distance learner let us have a moment to discuss
on its historical development before considering the various meanings
attributed to the concept by different scholars

3.2.1. Historical Development

For many centuries it has been recognized that the possession by the
state of coercive powers that may be used to oppress individuals
posed a fundamental problem. Since the day of the Greek

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philosophers, there has been recourse to the notion of rule of law as a
primary means to control governmental powers. Aristotle in third
century BC argued that government by laws should be superior to
government by men. He explained that positive law could indeed be
unjust, while still remaining valid, justice requires that defects of
formal legality need to be remedied by looking in to basic principles
behind those laws. Only then can the rule of law work to prevent men’s
total domination by government and to promote liberty and other
objectives, thereby quality of life in society. The concept of the
principle can also be found in the works of Plato.

Taken up by Romans and considerably developed by Christian

thinking, particularly in the works of St. Thomas Aquinas in the 13 th C,
the principle of the rule of law has since become a central feature of
western liberal democratic governments. In the middle ages, the
theory held that law of some King- the law either of God or man- ought
to rule the world. Gierke wrote: ‘Medieval doctrine, while it was truly
medieval, never surrendered the thought that law is by its origin of
equal rank with the state and does not depend on the state for its
existence. Brancton, in his famous book on English law, which was
written in the 1st half of the 13th century, mentioned that rulers were
subject to law: ‘The King shall not be subject to men, but to God and
the law: since law makes the King.’ He deduced from this theory the
proposition that the King and other rulers were subject to law. He
wrote that law bounded all members of the state, whether rulers or
subjects; and that justice according to law due both to rulers and
subjects. He further stated that ‘the law is the highest inheritance
which the king has, for by the law he and his subjects are held, and if
there was no law there would be no King and no inheritance.’

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In Britain, the rise of the power of the parliament in the 14 th and 15th
century both emphasized and modified this theory. This is shown by
the manner in which the theory of supremacy of the law was combined
with the doctrine of the supremacy of the parliament. The law was
supreme, but parliament could change and modify it. The Bill of Rights
in 1689 affirmed that the monarchy was subject to the law. Not only
was the Crown thereby forced to govern though Parliament, but also
the right of individuals to be free of unlawful interference in their
private affairs was established. The value of personal liberty, the
necessity of protecting personal property against official interference,
and the remedy of habeas corpus were developed during this time.
Formal adherence to the law was one of the public values of 18 th
century Britain, although not all people gained equally from it.
Generally, in England, the rule of law is accepted as underlying the
basic requirement that government should operate according to laws
made by a democratically elected parliament and applied and
interpreted by an independent judiciary. As such, it clearly has links
with both the doctrine of the separation of powers and the sovereignty
of the parliament.

Currently, the idea of rule of law exists in almost all democratic

constitutions. Apart from this, since 1945, the rule of law, in parallel
with human right movement, has become an issue for much
international discussion. The Universal Declaration of Human Rights,
Convention on Civil and Political Rights and other international and
regional treaties incorporate the doctrine as a means to create
machinery for protecting certain human rights.

3.2.2. The Meaning of Rule of law

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Even if the exact content, application and indeed desirability remains a
subject of intense controversy and debate, the core notion of the
concept is clear- all persons must be subject to law and government
must act according to law. There is much less agreement as to the
elaboration or worth of the principle based on the philosophical, moral
and political view-points of individual theorists. Most commentators, in
relation to the concept agree that:-
 No person or institution is above the law, and the state itself is
subject to legal regulation.
 Legal rules must be clearly defined and precisely stated
 Legal rules should be interpreted and applied by individual
judges and thus the rule of law implies the existence of some
concept of the separation of powers.

However some scholars controversially argue that the rule of law

implies a system of law that has a basis in morality and a system of
laws which does not comply with such a moral requirement is not truly
a legal system. While others argue that the rule of law implies a notion
of equality before the law, vindication of their rights and protection of
their interests. The principle, therefore, guarantees liberty and accepts
the notion of natural justice.

Rule of law also reflects the principle of legality. In this respect rule of
law simply means that the actions of government must have a basis in
law. Ministers or officials should be able to refer to some sources of law
which authorizes any decision or action they take. Every government
authority which does some act, which would otherwise be a wrong
(such as taking a man’s land), or which infringes a man’s liberty, must
be able to justify its action as authorized by Act of parliament.

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However, some argue that the rule of law demands more than
exercising governmental power according to the law. This is because
the government may also enact rules that could justify its actions and
it may operate based on the power it acquired from this law which may
possibly be oppressive and unjust in its nature. Others, on the other
hand, maintain that the law is the law if it is clear to those subject to it.
According to this latter argument, a legal system must be recognized
as such, provided its laws are publicized so that all may know what the
law is. Besides, law must possess a degree of stability in order for
subjects to know the likely consequences of their acts in advance. It is
also generally agreed that the rule of law requires that the law, in
general, not be retroactive in effect, i.e. conduct innocent at a past
point of time should not be made criminal by a later change in the law.
Similarly, legal rules should be coherent and not contradictory.

In the same way, Joseph Raz argues that the basic idea of the rule of
law is that not only should law be obeyed, but that the law should be
such that people will be able to be guided by it. For this, he proposes
eight principles, which are divided in to two groups. If law or the
procedures for making law are secrete or vague, or law is retroactive
or constantly changing, then people will have difficulty in recognizing
it. Raz’s second group of principles refer to the machinery for
enforcement of law and seek to ensure that it will not distort the law
but supervise conformity to the rule of law and provide effective
remedies where there is deviation from it. These principles require: the
judiciary must have a guaranteed independence; there should be easy
access to the courts, which should have the power to review the
implementation of the other principles of the rule of law; procedures
must be fair and the discretion of crime prevention agencies must not
be allowed to prevent the law. This theory proposes the idea that
compliance of law by the government alone does not suffice, rather

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due emphasis must be given to the content of the law, its formulation,
procedural requirements and its enforcement.

Lastly, let us see the explanation given for the rule of law principle by
Dicey, a great expounder of English constitution. He forwarded three
meanings. For Dicey, it means, in the first place, that “the absolute
supremacy or predominance of law as opposed to the influence of
arbitrary power, and excludes the existence of arbitrariness, or
prerogative, or even of wide discretionary authority on the part of the
government…a man may be punished for breach of law, but he can be
punished for nothing else.” This interpretation conveys that no man is
punished or can be lawfully made to suffer in any ways, except for a
distinct breach of law established in ordinary legal manner before the
ordinary court of the land. In essence, therefore, the rule of law
requires that there should be government according to law. This
definition emphasizes the central feature of administrative law as a
means of limiting the scope of statutory powers through the doctrine of
ultra vires. Nonetheless, Dicey did not describe what is meant by
‘arbitrary power’. Does ‘arbitrary power’ refer to powers of government
that are so wide that they could be used for a wide variety of different
purposes; powers that are capable of abuse if not subject to proper
control; or powers that directly infringe individual liberty? If ‘arbitrary
power’ or ‘wide discretionary authority’ alike is unacceptable, how are
the limits of acceptable discretionary authority to be settled? If it is
contrary to the rule of law that discretionary authority should be given
to government departments or public officials, then the rule of law
applies to no modern constitution. Today, the state regulates national
life in multifarious ways. Discretionary authority in most spheres of
government is inevitable. While there are still certain powers which we
are unwilling to entrust to the executive except when national
emergencies dictate otherwise.

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Dicey’s second definition of the rule of law concerns the necessity for
equality before the law, or the equal subjection of all classes to the
ordinary law of the land administered by the ordinary courts of law. In
Dicey’s view, this implied that no one was above the law; that officials
like private citizens were under a duty to obey the same law; and that
there were no administrative courts to decide claims by citizens
against the state or its officials. As you remember from our discussion
on the features of administrative law in chapter one, in some countries,
notably France, there is a special system of administrative courts, the
sole concern of which, is administrative law and has separate
jurisdiction over administrative agencies. Dicey criticized this system
which, in France, comprises local administrative courts headed by a
central Conseil d’Etat, on the ground that it imported special rule of
law and legal immunities for the administrative agencies of
government. He believed that droit administratif in France favored the
officials and that English law (Britain has no administrative courts on
the French Model, but in October 2000 a section of a high court in
London was named as the administrative court) gave better protection
to the Citizens. However, administrative courts as they exist in many
European countries, not least in France, protect individuals against
unlawful acts by public bodies. The need for administrative law is now
almost universally recognized even though there is still controversy as
to whether administrative law should be subject to the jurisdiction of
separate administrative courts, or to that of the ordinary courts.

The third part of Dicey’s formulation of the rule of law is that

constitutional law is not a source but the consequence of rights of
individuals as defined and enforced by the courts. Whereas most
countries have a written constitution which expressly guarantees
fundamental rights such as freedom from arbitrary arrest, any

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constitutional right in UK are products of the ordinary law. Therefore,
the rights of individuals were secured not by guarantees set down in a
formal document but by the ordinary remedies of private law available
against those who unlawfully interfered with his or her liberty, whether
they were private citizens or officials. This third definition of Dicey
emphasizes the importance of the courts’ role in protecting individual
liberty through their ability to interpret and apply the ordinary law. In
other words, the courts are the final arbiters of individual rights. In this
context, such rights are usually referred to as civil rights which include
freedom of person, freedom of speech and freedom of association.
Dicey believed that the common law gave better protection to the
citizen than a written constitution. Today, it is difficult to share Dicey’s
faith in the common law as the primary legal means of protecting the
citizen’s liberty against the state. First, fundamental liberties at
common law may be eroded by Parliament and thus acquire a residual
character. Second, while it remains essential that legal remedies are
effective, there is value in a declaration of the individual rights under
different human rights conventions and in creating judicial procedures
for protecting those rights.

Dear distance learner, it is the belief of the writer that you have by
now a good understanding about the concept and the meanings of rule
of law. We have also tried to see how the notion relates to
administrative law and agencies incidentally. In relation to
administrative agencies, rule of law requires that the implementation
of law laid down by the representative of the people should be
discharged reasonably and free from arbitrariness. Agencies should act
according to the law prescribed in legislations. They have to observe
the rule of law while they adjudicate cases and render decisions. While
they enact laws, they have to be cautious that the rules do not violate
basic human rights principles. Apart from this, it is a widely agreed

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notion that the power of administrative agencies must be subject to
control for the realization of the rule of law. The subordination of the
administration to the law is ultimately to serve the individual members
of society; individuals who have suffered damages as the result of the
illegal acts of the executive or administrative agencies must be given
appropriate remedy.

3.2.3. Recognition of Rule of Law in

Ethiopia

(1) Before the 1931 Constitution

Dear distance learners, as we have discussed repeatedly, the

Emperors of Ethiopia were absolute monarchs, especially before the
1931 constitution. The Kings were said to be ‘elects of God’ with
immeasurable authorities and no one could challenge their acts. Using
their ‘divine appointment’, they were able to control the center of
every power in Ethiopia. Markakis described the power of the King as
follows:
No one, no action, no areas of life lies outside the
throne. The monarch may act wisely or not, with
justice or contrary with it, humanly or with cruelty
but he can never be said to lack authority for his
action, whatever they may be no concept of ultra
vires applied to the king.

Not being far from the previous description, another writer commented
that “the kings of Abyssinia were above all laws. They were supreme in
all cases and ecclesiastical; the land and persons of all their subjects
are equally their property and every inhabitant of the kingdom is born
their slave.”

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History reveals that the Emperors, for protracted time, were the
supreme legislatures and administrators of the people. It was the
prerogative of the king to proclaim the law, remove governors and
judges, administer revenue and command the army. The overall
authority of the state was represented by the king. Under such
circumstances, it is possible to conclude that, during this time, it was
the rule of the king which prevailed over the rule of law. The rules may
be said to be above the law. The people made a synonymous
understanding and reference between the king and the law. As a
result, they obeyed the law believing that respecting the law is
respecting the king whose words made such laws. The law was not
seen as separation from the men administering it. In general, it can be
said that there was no any concept of rule of law in Ethiopia prior to
the 1931 constitution.

(2) The 1931 Constitution

Although some argue that the 1931 constitution was nothing more than
a means to institutionalize the power of the Emperor, it, however,
introduced new concepts to the traditional system of Ethiopia. It
established the legal framework within which governmental power
should be channeled and distributed, and thereby provided statutory
basis and limits for the exercise of such power. It was against the
personal, arbitrary and ill-defined power traditionally willed by the
nobility. This constitution, however, was not meant to distribute the
power of the Emperor between himself, on one hand, and other organs
of the state, on the other hand. The Emperor retained his law making
and the supreme adjudicative powers. . He had veto power on any law
proposed by the parliament. He had the right to draw up procedure of
the parliament and dissolve it as well. It is possible to say that the
parliament was a mere consultative and decorative political organ.

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The constitution, however, granted some personal freedoms to
individual citizens. For instance, Articles 23 and 24 of the constitution
provide that no Ethiopian subject may be arrested , sentenced or
imprisoned except in pursuance of the law, and may against his will be
deprived of his right to be tried by a legally established court.

Generally, even if the constitution failed to decentralize the power of

the Emperor to the required level, it has defined it for the first time in
Ethiopian history. Furthermore, it had contained certain provisions of
human rights in to the Ethiopian legal system. Hence, this constitution
has contributed to the development of the rule of law principle in
Ethiopia.

(3) The 1955 Revised Constitution

Like the 1931 constitution, this constitution was also concerned mainly
with defining and distributing powers, rights, and duties of the
government. As ‘sovereign’ and ‘head of state’ the Emperor received
pre-eminent place in the constitution. He had powers and functions
which were executive, legislative and judicial in nature.

The Emperor had full supervisory power over the parliament which was
bicameral, including appointing the members of the Senators. He had
also an absolute power to dissolve the parliament when he deemed it
necessary and call up for a new parliamentary election. He shared
considerable power with the parliament in the law making process.

On the other hand, Article 110 clearly laid down the rule of law
principle and the independence of the judiciary, stating that the state’s
courts are bound to follow the law. Apart from this, Article 122 stated
that the constitution was the supreme law and that any inconsistent
law with the constitution was void. This shows the recognition of the

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review power of the courts which relates, in one way or another, to the
rule of law.

The Constitution also recognized certain human rights principles.

Freedom of press, speech, assembly, free movement and others were
incorporated in the constitution. In essence, an arrested person should
be immediately brought to trial. Such act like torture and physical
violence would amount to violations of conational rights.

Generally speaking, the Constitution incorporated the concept of

‘supremacy of law.’ The laws were taken to be beyond anything or
anyone and there were also certain implications that the king himself
was subordinate to the law (Article 110.)

(4) The 1987 Constitution of the Peoples

Democratic Republic of Ethiopia

The constitution vested the highest law making power in the National
Shengo which is also the highest organ of the state. This organ had to
enact laws in conformity with the constitution, the supreme law of the
land. Any act or law contrary to the constitution was null and void
(Article 118). Human right provisions were also embodied in the
constitution.

Nevertheless, the power to interpret the constitution was not vested on

the courts. Contrary to the traditional democratic constitutional
practice which vests the power of judicial review to courts, it appears
that the power of reviewing whether a given law is constitutional or
unconstitutional was given to the National Shengo. But it seems
impractical for this organ to perform this duty especially in relation to
the laws enacted by itself. Besides, the purpose behind judicial review
and bringing both the executive and the legislative organs to a legally

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subordinate position under a constitution would have been best
achieved if the power was vested on the courts.

(5) The 1995 Constitution of the Federal

Democratic Republic of Ethiopia

The FDRE Constitution, like the previous two constitutions, declares

that the constitution is the supreme law of the land and any law,
customary practice or a decision of any organ of a state or public
official that contravenes the constitution shall be of no effect (Article
9(1)). Accordingly, the constitution is supreme over all agencies of
government and all other laws implying that every man, grouping,
state organ, is subordinate in rank and should be ready to the
mandates of the constitution. The constitution not only imposes the
duty to respect it-by not doing any activity that essentially contradicts
the sprit of the constitution but also the duty to protect and abide by it,
i.e., to do what the constitution demands.

The constitution also embodied a chapter that is devoted to

‘fundamental rights and freedoms’. Rights that manifest rule of law
such as the right to life, security of persons liberty, prohibition against
inhuman treatment, the right to be presumed innocent before
conviction, non- retroactivity of criminal law, the right to equality, the
right to privacy, right of thought and many others are recognized.

As we discussed from the outset, the rule of law and independence of

the judiciary are usually linked, even can be considered as opposite
sides of the same coin. The exercise of rule of law demands full
independence of the judiciary and complete professional freedom of
judges. Article 79(3) of the constitution declares the complete
independence of judges and that they are solely directed by law. The
constitution also states that the conduct of the government shall be

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transparent and public officials are accountable for any failure in
official duty (Article 12(1) and (2)). These can be considered as
manifestations of the rule of law principle under this constitution.

However, like its predecessors, this constitution does not confer the
power of interpreting the constitution to the courts of law and it rather
gives this power to the Federation Council, an elected political organ.
Hence, one of the salient requirements of the principle of rule of law,
i.e., the requirement to confer all judicial power to the courts is lacking.
Consequently, as we will discuss it in detail under the next chapter, the
power of the courts to review the constitutionality of the acts of the
legislative and the executive became extremely narrow.

To wind up our discussion on this part, it is possible to realize that the

notion of rule of law is gaining good attention and recognition from
time to time in our country. As time goes on, the right of citizens is
getting better protection under the law and the accountability of
government officials is positively improved.

3.3. Due Process of law

3.3.1. The Meaning of Due process of law

The principle of due process of law is one of the most fundamental

constitutional guarantees of individuals against violations of rights and
freedoms by the government. It has no exact and comprehensive
definition. The postulate that the process be due varies with time and
place. Thus, it is never a term of fixed and invariable content. Although
nearly all constitutions, in one way or another, embody the due
process guaranty, none has so far attempted to define it. Under this
circumstance, the only available option is to consider the definitions
given in deferent literatures.

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As we will discuss it later on, the principle has two aspects; procedural
and substantive. In many literatures, due process of law is defined in
light of procedural requirements of due process guaranty. Black’s law
dictionary defines the concept as follows:
Due process of law means law in its regular
course of administration through courts of
justice… Due process of law in each particular
case means such an exercise of the power of
the government as the settled maxims of law
permit and sanction, and under such safeguards
for the protection of

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individual rights… Due process of law implies
the right of the person affected thereby to be
presented before the tribunal which pronounces
judgment up on the question of life, liberty, or
property…, to be heard…, and to have the right
of controvert by proof, every material fact which
bears on the question of right in the matter
involved.

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The concept is defined in Collier’s Encyclopedia as ‘a principle of the
constitutional law… which protects the life, liberty and property of a
person against unreasonable or arbitrary laws and procedure by
national state and local governments…due process implies faire
process and faire law.’

Similarly, Judge Cooly offers the following definition

Due process of law, in each particular case,
means such an exercise of the powers of
government as the settled maxims of law permit
and sanction and, under such safeguards for the
protection of individual rights as those maxims
prescribe for the class of cases to which the one
in question belongs.

When Judge Cooly said ‘settled maxims of law’, he is referring to such

accepted principles of law which are firmly established in the United
States legal system. Government powers should be exercised in so far
as the general principles of law permit and sanction. In other words,
powers of government should be exercised in accordance with
accepted principles of law. At this juncture, the judge is referring to the
substantive aspect of due process of law. The laws or actions of the
government should not depart from these accepted principles, i.e., laws
of the government should not be unreasonable, arbitrary or contradict
modern principles of government.

The last two definitions embody both the procedural and substantive
aspects of the principle, i.e., the content of the law and fair processes
for enforcement of the law. Obviously, the justice system is equally
concerned with the means and the end. And this is the basic aspect of
due process. Keeping all these mind, the definitions, in general, show
that this principle is a means or a tool in the hands of individuals by

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which private rights of life, liberty, and property are safeguarded from
the arbitrary actions of the government departments.

As it is said from the outset, the meaning of the term due process of
varies with the nature of the matter involved. Due process of law as
applied to judicial proceedings, for instance, means law in its regular
course of administration through courts of law in accordance with the
basic principles of free government or a course of proceeding according
to principles established for the protection and enforcement of
individual rights. As regards legislative enactments the term denotes
laws that are general in their application, i.e., laws that affect the rights
of all alike without discriminating against a person or group of persons
from a given class of persons. In a criminal trial due process of law
consists of a law creating or defining the offence, an impartial tribunal
of competent jurisdiction, accusation in due form, notice and
opportunity to defend, trial according to established procedure, and
discharge unless found guilty. In short, it means no punishment without
a violation of definite and validly enacted laws and before a trial being
conducted as per the specific procedural safeguards.

By nature this due process is said to be a negative right- a right that

prohibits the government from depraving a person’s life, liberty, or
property arbitrarily. It safeguards fundamental rights which are
personal to the individual and belong to all citizens. Basic rights are
limitations on state action and cannot be taken away, suspended or
abridged except as expressly provided in the constitution. Due process
as such is a guaranty against arbitrary depravation of fundamental
individual rights of life, liberty or property. It is not, however, an
absolute right but is relative to and restrained by the similar right of
others and the interest of the public. Concerning its scope of
protection, in some countries, like America, the guaranty is a restriction

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imposed on all the three branches of the government; while in some
other countries, like Britain, the guaranty does not restrain the action
of the legislature.

3.3.2. Historical Development of Due

Process of law
The idea that no person shall be deprived of life, liberty and property
by governmental action without notice and opportunity to be heard for
such deprivation was clearly and expressly contained for the first time
in history in chapter 39 of Magna Charta. Nevertheless, the creation of
the principle could be traced as back as 1037 A.D., when the Holy
Roman Emperor, Conard III, in his edict proclaimed that, ‘no man shall
be deprived of his tier whether held of the emperor or a demi- lord, but
by the laws of the Empire and judgment of his peer.’

It is even argued by some natural lawyers that the principle has its
beginning with the eviction or expulsion of the first man Adam and Eve
from the Garden of Eden. As Blackstone says ‘…I remembered to have
heard observed by a very learned man that even God himself did not
pass sentence upon Adam, before he was called upon to make his
defense.’ From these arguments we can understand that due process
of law is a historical product order than written constitutions and of
ancient origin.

Even though the concept was known for a long period of time, the
phrase ‘due process of law’ was used for the first time in history in the
statute of 28 Edward III also called the ‘Statute of Westminster of the
Liberties of London’ of the 14th century( 1354). Chapter three of this
statute reaffirming Article 39 of the Magna Charta declares: ‘No man of
what estate or condition that he be, shall be put out of land or

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tenement, nor imprisoned nor disinherited, nor put to death without
being brought in answer by due process of law. ‘
Later on, this principle was transplanted from Magna Charta to written
constitutions of America in the 18 th century. The first American state to
adopt the principle of due process was Virginia in June 1776 followed by
New York which used the word ‘due process of law’ in its basic law of
1821.

The US constitution as first adopted in 1787 contained no provision

guaranteeing the citizens of the new federal union the right of due
process of law as a result of which were raised several objections to
this document. In response to this objection the first Congress led by
James Madison passed in 1789 twelve proposals for amendment ten of
which were ratified. Out of these, the fifth Amendment of the Federal
constitution reads: ‘No person shall be deprived of life, liberty or
property without due process of law.’

This amendment has been held to be a limitation imposed upon the

national government actions. And in the absence of a constitutional
provision restricting arbitrary state action, pressers were exerted to the
effect that a similar provision to the Fifth Amendment be included in
the Federal constitution, as a result, the fourteenth Amendment was
ratified. The amendment under Section 1 states that ‘all persons born
or naturalized in the United States, and subject to the jurisdiction are
citizens of the state where in they reside. No state shall make or
enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of
life, liberty or property without due process of law; nor deny to any
person within its jurisdiction the equal protection of the law.’ These
constitutional guarantees of individuals liberties commonly known as

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the due process clauses put a restriction up on all organs of the federal
and state governments.

Currently, almost all modern constitutions, explicitly or impliedly,

recognize that ‘due process of law’ as one among the most crucial and
high sounding constitutional guarantees to individuals.

3.3.3. Dichotomy of Due Process of Law

In the earliest development of the due process of law, there was no
dichotomy in the principle. Gradually, however, courts came up with
two kinds of due process of law in their course of development. There
are; procedural due process and substantive due process of law. This is
,partly, claimed to be a result of the evolution and development of
separation of power principle ,particularly in USA, which lead to division
of the principle depending on the part of government organ it binds.
Substantive due process of law binds the legislature from enacting
unfair laws and procedural due process concerns the executive branch
of the government in its action towards private citizens. In the following
section, we will discuss each in detail.

(A)Procedural Due Process of law

Procedural due process of law focuses on the methods or procedures

by which governmental actions are exercised. It grants fairness in the
process by which government imposes regulations and sanctions.
Procedural due process requires that a person be formally notified of
proceedings and be afforded an opportunity for an impartial hearing.
Thus, the individual has the right to and the government owes him/her
a certain just process in a determination of case or decision.

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Procedural due process as Justice Daniel Webster precisely put it is ‘a
process of law which hears before it condemns: which proceeds up on
inquiry and renders judgment only after trial. ’Hence, government
deprivation of individual basic rights without such hearing and notice is
contrary to due process. In dealing with individuals, government must
proceed with settled usage and modes of procedure.

Generally, the procedural aspect of due process implies fair process

and it requires at minimum notice and hearing. It demands that a
before life, liberty or property rights of a person are deprived, she/he is
entitled to notice and hearing. It also requires varies steps such as
public trial, competent tribunal, etc and we will discuss the most
important once in the following part. It is important to note, however,
that due process is an elusive concept , its boundaries are indefinable
and its content varies according to specific factual context.

1. The right to notice: this right demands that no decision having

adverse consequence to the fundamental rights of citizens would
be made unless those affected by the decision are given
adequate notice and opportunity to present their side of cases in
full and fair hearing. It is a requirement to give summon to a
party to appear and defend, i.e., declare something which he
wants to say concerning the facts in issue and which will
positively affect the judgment to be rendered in favor of him.
Hence the parties will be able to prepare themselves and prefer
what action to take in reference to such suite.

The objective of notice is to bring the party in to the proceeding

and to afford him a chance to be heard up on the claim or the
charge made and defend his case before a tribunal legally formed
to adjudicate rights and as such it should be fair to the party,
likely to be received and plain to be understood by the party. For

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 this purpose, the notice is required to formulate the subjects and
issues involved in the case adequately.

2. Opportunity to be heard: this requires that no person shall be

condemned without being given a reasonable opportunity for his
case to be heard. This enable a party to contest the charge
brought against him and defend himself on the laws and facts in
dispute. The hearing accorded must be in each case fair,
complete, appropriate, full, reasonable, and prior to the final
disposition of the case.

The opportunity to be heard incorporates rights such as the right

to appear in person or be aided and represented by council; be
present during the taking of evidence or testimony; the right to
present evidence (both testimonial and documentary, and also
arguments); the right to know the claims of the opponent and
rebut adverse evidence through cross- examination and other
appropriate means; and the right to have the decision based only
up on evidence introduced into during the proceeding of hearing.
3. An Impartial Tribunal: this clause requires some sort of neutral
and impartial decision- maker, whether it is a judge, agency or
government hearing officer- a fair trial in a fair tribunal. Fair and
impartial decision presupposes an independent judge.

It is obvious that a fair decision cannot be expected from a judge

infected with bias. If the outcome of the case has repercussion on
the interest of the judge, it is unlikely that this judge is going to
handle the case freely and render an impartial decision.
Consequently, judges must be one that have no contact of what
so ever nature with the case. Hence no one may be a judge in his
own case.

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 4. Public attendance: this is a requirement that the hearing
should be held in public as opposed to in the judge’s chamber or
in secrete. Through holding hearings in public it is believed that it
is possible to achieve transparency of the procedure to the public
and to bring accountability, in case ,where there is partiality or
bias on the part of the tribunal. However, there are
circumstances whereby trail or hearing may be held in camera ,
usually in the interest of the accused or the public.

5. Reasoned Decision: the judges or any organ hearing the matter

is required to have a written record, which consists of the
testimony and arguments together with the documentary
evidence. At the end of the hearing, the decision should only
based on the evidence introduced in to during the proceeding of
the hearing. And the decision must be well reasoned and must
contain evidence justifying the court or agency’s order.

6. The Right to Appeal: the party who is aggrieved or dissatisfied

by the decision of the tribunal must be given the opportunity to
present the case before a superior organ or court of law.

(B) Substantive Due Process of law

The second kind of due process of law is its substantive aspect. This
aspect of due process of law requires the content of the law up on
which the case is disposed to be reasonable. If the laws lack legislative
objectivity or they are arbitrary or too vague to be applied by courts,
these laws are contrary to substantive due process of law.

One writer explains substantive due process as ‘…judicial

determination of the compatibility of the substance law or government
action with the constitution. The court is concerned with the

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constitutionality of the underlying rules rather than with the fairness of
the process by which the government applies the rules to an individual.
Therefore, every form of review other than that involving procedural
due process is a form of substantive review.’ Hence, if the laws or
regulation and decisions rendered, on the basis of these laws are
unreasonable, arbitrary or capricious, substantive due process comes
to the picture to rectify such laws and decisions. Substantive due
process is not about the procedure followed by the organ that rendered
decision but with the content of the law.

When it was first used, due process was not intended to give protection
against the law. In other words, the clause was not to set up a
limitation against the power of the legislature but confined to the
exercise of governmental power. It grew out of the general idea that
governmental power should be limited. After the development of the
substantive aspect of due process of law, the clause has become a
limitation against the legislature.

3.3.4. The Principle of Due Process of Law

in Ethiopia

Dear distance learner, as you may remember from your legal history
course, modern laws in general and constitutional principles in
particular are recent phenomena to Ethiopia which began with the
reign of Emperor Haile Sellassie. Writers claim that the principle of due
process was enshrined for the first time in a clear and express manner
in the 1955 revised constitution. However, its inception was few years
back to the revised constitution.

As we discussed in relation the rule of law, the 1931 constitution of

Ethiopia contained certain human right provisions which can be
considered as one step towards the introduction of the concept. Article

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23 of this constitution provides that ‘No Ethiopian subject may be
arrested, sentenced or imprisoned except in pursuance of the law’. This
provision has the notion of due process guaranty in that it prohibits
government officials to deprive a man of his liberty with out the
support of the law and without following certain procedure laid therein.
Article 27 of the constitution also protects an individual’s property
rights from governmental arbitrary deprivation.

Generally, Articles 22-28 of the 1931 constitution more or less

incorporated the basic idea of due process of law. However, the
constitution has its own limitations. One of such limitations lies on the
fact that it only addressed Ethiopian citizens and excludes aliens
residing in the country. Besides, the Emperor could deprive the right to
life, liberty or property without due process of law during emergency.

The 1955 Revised constitution, nevertheless, recognized this

constitutional guaranty explicitly. Article 43 of the constitution clearly
provides that ‘no one within the Empire may be deprived of life, liberty,
or property without due process of law.’ Apart from this the constitution
recognized basic human rights that were enshrined in the Universal
Declaration of Human rights (UDHR) of 1948 which deeply deals with
due process.

When we come to the 1987 Peoples Democratic Republic of Ethiopian

constitution, it had no clear provision on the guaranty of due process.
However, it can generally be inferred from a cumulative reading of
Article 43-44 and 16-17 that a person is guaranteed of his life, liberty
and property against arbitrary governmental deprivation.

The present 1995 constitution, under Article 14 -17 cum 40 has

embodied the notion of due process of law. According to these
provisions, except for the respect of the rights and freedoms of others

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and the requirements of public order and the general welfare which
alone justify any restrictions there in, individuals are guaranteed the
basic rights of life, liberty, and property. Terms incorporated in the
provisions like, ‘as determined by law’, ‘established by law’, ‘except for
public interest’, etc, enshrine due process of law. These terms,
however, presuppose subordinate legislations that elaborate the above
discussed procedural requirements. Hence, legislations such as the
American Procedural Act (APA) of 1946 that lay down the procedures in
detail are crucial. In Ethiopia, we don’t have a similar kind of standard
administrative procedure. This hampers the effective realization of the
due process of law principle in our country.

3.3.5. The Significance and Relevance of

Due Process of Law to Administrative
Agencies
Dear distance learner, as we discussed in detail previously, though the
doctrine of separation of powers asserts that each function of
government should be vested in three separate branches of the
government , the enormous complexities of present day government
which made it impossible for the courts to adjudicate every dispute and
for the legislative to enact laws, forced the establishment of
administrative agencies. As a result, administrative agencies exercise
all the three powers of the government. This may endanger the
constitutional right of individuals. Many people may go through life
without being a party to a law suit, while the administrative process
affects nearly every one by many ways.

On the other hand, administrative agencies are expected to implement

policies of the government. The problem of modern governments is,
thus, how to ensure the balance between the demands of the executive
and protecting freedom and justice of private citizens.

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Specially, rule making and adjudicative powers of administrative
agencies largely affect life, liberty and property rights. Usually,
administrative agencies are empowered to adopt rules that it finds
‘appropriate’, ‘adequate’, or ‘advisable in the circumstances.’ The
standards to be applied in exercising adjudicatory power are also
vague and indefinite. For example; an administrative agency is granted
with the power of revoking a license if it thinks there is ‘good cause’.
Such phrases are so broad that give administrative agencies much
discretionary power.

If there is constitutional due process of law guarantee accompanied by

subordinate legislations, it is possible to challenge arbitrary
administrative decisions. It is one of the most important mechanisms
used to prevent violation of rights and freedoms of individuals by
administrative agencies. Since administrative decisions involve life,
liberty and property rights, it is crucial to put administrative agencies
under the general obligation to comply with the requirement of due
process of law. Hence, administrative decisions should be free from
bias and prejudice, the decision should be based on the facts presented
during the proceeding and the person adjudicating the case should not
have any personal or pecuniary interest in the case. Nevertheless,
hearings held by administrative agencies in their judicial proceeding
may be more or less informal ,and as a result some procedures may be
disregarded unless they are essential elements of fair hearing.

Review Questions

1. Discuss the concept of separation of power principle and its

relation with administrative agencies?

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 2. What is the relevance of rule of law with administrative agencies
and administrative law?
3. Explain the deference between procedural due process of law
and substantive due process of law?
4. Discuss Dicey’s second definition for rule of law principle in
relation to the French administrative system?
5. Critically examine the incorporation of separation of power
principle under the 1995 FDRE constitution?

Chapter Four
Mechanism of controlling the power
of administrative Agency

Objective:- After the completion of the study under this chapter, the
student is expected to:-

 know the reason behind controlling administrative

agencies;
 be familiar with different controlling mechanisms such as
parliamentary control and the Ombudsman;
 understand the concept of judicial review, its scope,
grounds and limitations;
 Be able to scrutinize the existence of the controlling
mechanisms in Ethiopia.
 Be able to understand the strength and weakness of the
Ethiopian Ombudsman Institution;
 Learn different experiences from the practices of other
countries.

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 4.1. Why do we need to control
administrative agency?

Dear distance learner, we have discussed in the second chapter that

administrative agencies developed in response to high public demand
on government. The complexity of modern life and technology
necessitates the government to intervene in the various day to day life
of the public. The wide variety of functions of the modern government
call for extortion and intensification of the state machinery, and this
ended in the establishment of administrative agencies. These organs
are conferred with all forms of governmental powers, namely
executive, legislative and judicial.

Practicability and simplicity, together with the expertise and

knowledge they possess, demands for the granting of discretionary
power to administrative agencies that helps them to discharge their
functions properly. These powers are essential to make them efficient
and flexible so that social values and objectives can be realized. It is
clear that over concentration of power in the hands of agencies might
lead to abused of individual’s rights and freedoms. As a matter of fact,
whether due to political motives or administrative bungling,

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government always tined to abuse powers entrusted to it by its people.
Hence, in bestowing discretionary power to agencies we need to
provide an apparatus that enable us to check and supervise the power
of administrative agencies, if not, they would go beyond the power
given to them, and affect fundamental constitutional rights of citizens.
Besides, it is a general practice that every power of government is not
left without limitation. If there is no strong controlling mechanism,
every government power is prone to abuse. Control is important to
avoid arbitrariness, and curb possible abuse of power

Some writers argue that there is a close interrelation between the

need to control and human behaviors. For instance, Madison stated
that “control of abusive power of a government is necessary; if men
were angels, there would not be a need to have even a government,
men are by nature greedy, power mongers, selfish biased and partial
in nature”. Montesquieu also, in stressing the need to control, said
“men are creatures totally untrusted who need control of a
government”. But how far this is true? Do you agree with these two
scholars? Discuss on this point with other students.

Generally, the tension between the necessity of administrative

discretion and power for the proper performance of administrative
functions and the desirability of safeguarding other public, social and
individual interests against abuse and arbitrariness has resulted in the
evolution of some forms of controls over administrative agencies.
These mechanisms of controlling of the power of agencies may be
broadly categorizes as internal and external controls. These
mechanisms of control have developed in order to restrain undue
extension and abuse of power by administrative agencies. The entire
chapter is devoted to the discussion of different forms of controls
exercised against administrative agencies.

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 4.2. Internal Control
Internal control is control exercised over administrative agency by the
organ found structurally in the administrative agency itself. In
agencies, there is hierarchical power within their organizational
structure. Always, the higher in hierarchy regulates, coordinates and
guides the lower in hierarchy. In other words, those organs that are
found at the bottom are accountable to those organs found above
them. For example, in any ministry, we have the minister who is the
highest in the internal hierarchy of the institution; and next to the
minister there are usually two deputy ministers. The two deputy
ministers are to be accountable to the main minister. Bellow the
deputy ministers, there are number of offices headed by different posts
that are answerable to the deputy ministers. So, in every case, the
immediate officer will supervise and coordinate the subordinate
employee. Decisions rendered at any level may be revised by the
superior officer or body if they found to be wrong or unsuitable. This is,
generally, what we call internal control.

Internal control of administrative agencies is also sometimes known as

administrative review. The vast hierarchy of modern administration
paved the way for the possibility of appeal to and rectification by a
higher level organ within the hierarchy. Citizens can lodge appeal to
superior authority within the administrative agency against the
decision given by subordinate officials. In this case, there is no limit as
to the scope of review. That means the review can reach much deeper
to the merits of a decision. For instance, decision rendered by a
department within the agency, can be reviewed by the deputy
minister, or even it can be further reviewed by the minister. Still, if

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parties are not satisfied by the internal control mechanism and
remedy, they can resort to the external control methods.

4.3. External Control

Unlike internal control, external control is exercised by organs that are
found outside of the agency. We have different kinds of external
controls. The examples of this control include: control by the
parliament, judicial review and control by the ombudsman.

4.3.1. Control by the Parliament

Dear distance learner, as you know the main function of the parliament
is to make laws. These laws, among other things, impose obligations
on citizens and government authorities. And obedience to these
obligations is enforced by the courts. Apart from this major function,
the parliament exercises controlling power over the legislative,
executive and adjudicative functions of administrative agencies.
Control by the law maker can compel administrative agencies to
perform their duties with in legal boundaries. It can make agency
activities and decisions legal, transparent, and it can force them to
respect individual rights and freedoms. This power of the parliament to
control the administration and the executive basically emanates from
three sources.

i. First of all, among the three organs of the government, the

parliament is the one entrusted with the power of legislating
laws. The executive/ administrative agencies/ acquire their
power of enacting subordinate legislation through delegation
from the parliament. It is the parliament that delegates part of its
power to agencies. Accordingly, this organ, not only has the
right, but also the duty to control the delegated organs,

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 agencies, because it delegated part of its power to the unelected
organs of the government.

ii. In any government the parliament is the only branch of

government that fully consists of representative of the people.
Because of this the parliament enjoys omnipotent position,
particularly in the parliamentary systems. It is taken to be a right
place to ventilate people’s grievances against the administration.
In this respect, persons aggrieved by administrative decisions
frequently notify to their members of the parliament so that the
latter may raise it in their deliberations.
iii. When we look at the nature of the parliament, particularly in
countries that follow parliamentary system like ours, we can
realize that it is the highest authority of the government to which
the other organs are accountable. Hence, as the highest organ of
the government, the parliament has the right and the duty to
control the activities of the agencies.

Generally, because of the aforementioned reasons, the parliament

controls agencies.

The modality of control exercised by the parliament may take different

forms. In some countries, while delegating the legislative powers to
other bodies and authorities, the parliament requires the subordinate
legislation to be laid before it. This practice of placing the rules and
regulations on the table of the parliamentary required by the Act of the
parliament is known as ‘lying before Parliament.’ This practice of
placing rules and regulations before the parliament enables the
parliament to exercise controlling power over delegated legislative
function.

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Enabling legislations of agencies sometimes provide that regulations
made by the subordinate authority shall be laid before parliament with
no further directions. In some cases the regulations may be laid and
made subject to annulment within a specified period. There is also a
mechanism by which the draft regulation is presented for affirmative
resolution before the law maker and it shall not operate until approved
by the parliament. The legislature will investigate the regulations as to
whether they are made pursuant to the power vested up on agencies
and within the scope of the parent legislation, i.e. the proclamation.
However, this kind of control, lying before parliament, is not recognized
in our country although it was included in the 2002 draft administrative
procedural law. The methods of control exercised by the parliament in
Ethiopia are the following;

i. Deciding powers and Procedure- Administrative agencies are

the creations of the law maker. It is the parliament that
establishes agencies. Not only it establishes administrative
agencies, but also vests powers and duties up on them. Using its
law making power, the parliament can determine their
organizational framework and also the procedures to be followed
by them during exercising their powers.

In addition to determining and putting beforehand the powers

agencies have and the procedures they should follow, it is
possible to restrict them from acting arbitrarily. Procedural laws,
which are guidance in the operation and exercise of agency’s
powers, are intended to direct and control how agencies operate.
They are also believed to be guarantees of individual rights and
liberties. Thus, if agencies fail to comply with them while
legislating the subordinate laws or rendering decisions, the laws
they enacted or the decision they rendered will be declared null

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 and void. This is one possible way by which the parliament
exercises controlling power over administrative agencies.

ii. Appointment of Officials- In countries that follow

parliamentary form of government, most of the time, the
parliament has the power to appoint and removes the main
officials and ministers of the county. While it appoints officials,
the parliament is believed to take in to consideration the
personality and qualification of the candidate, and other criteria.
Under the FDRE constitution, Article 55(13), the House of Peoples
Representatives is also vested with the power to approve the
appointment of members of the Council of Ministers,
commissioners, and other officials whose appointment is
required by law to be approved by it. The candidates or the
nominees are presented for approval by the Prime Minister
(Article 74(2)). Hence the power of the House is only limited to
approval of what is proposed by the Prime Minister. With regard
to the power to remove these officials, the constitution is silent.
As a result, some argue that this power is given by the
constitution to the House impliedly, because there is a consensus
that ‘the organ that empowers is also entitled to remove’. Do you
agree with this assertion? Why? Why not?

iii. Submission of Periodic Reports- As we have said from the

outset, the parliament is the highest organ to which other organs
are accountable. Hence, administrative agencies are required to
present reports to the parliament on periodic bases. For
instance, the Prime Minister is required by Article 74(11) of the
FDRE constitution to submit periodic reports on works
accomplished by the executive as well as on its plans and
proposals to the parliament. While administrative officials submit

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reports to the parliament, questions may be raised to them with
regard to the decisions they made or the activities they carried
out. In addition to this, the parliament may call and inquire any
executive governmental organ about their enactments and
decisions they made. In countries such as the US and Britain, the
parliament may at any time call any head of agency whether the
President or the Prime Minister and ask any question which they
deem proper. In our country too we have a provision that sets
out similar kind of controlling mechanism in the FDRE
constitution. Article 55(17) provides that the house of peoples
Representatives has the power to call and question the Prime
Minister and other Federal officials and to investigate the
Executive’s conduct and discharge of its responsibilities’. It can
also discuss, at the request of one- third of its members, any
matter pertaining to the powers of the executive and take
decisions or measures it deems necessary in such cases (Article
55(18)). These give the house considerable power to control the
executive.

Yet, it is argued that the contemporary form of government,

especially the parliamentary one, where all cabinet or executive
members are members of the party holding the majority of seat
in the parliament at the same time, renders the parliament to be
unreliable organ to control the operation of the executive
officials. Because, the majority in the parliament will not expose
the misdeeds of the executive officials as that would amount
betrayal against their party allies. Furthermore, it is obvious that
no minister would admit his/her fault openly, as that admission
tantamount, sometimes, to commission of political suicide.

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iv. Control by Committee- In some countries parliamentary
control is also affected through establishing scrutinizing
committees. These scrutinizing committees are small standing
committees in the parliament that are established to consider
and report on legislations conferring law-making powers and on
regulations and rules made in pursuance of such powers. The
committee is not to consider the instruments from the point of
view of desirability but only to see whether the effect of the
instrument was intended or expected by the legislature. If on
scrutiny it is found that there is something unexpected, the
committee will consult the department concerned and grant
them an opportunity to submit explanations. And if explanation
submitted by departments do not appear to the committee as
satisfactory; the committee is then to report the matter to the
parliament and draw its attention to such instrument. These
committees try to observe how an agency is carrying out its
obligation and responsibility through devoting their time to visit
the agencies.

v. Through Approval of Budget- the parliament, through its

power to approve budget, can also exercise control over the
executive by restricting the budget. Pursuant to Article 55(11)
the House of Peoples Representative is vested with the power to
ratify the Federal budget.

4.3.2. Control by the courts (Judicial Review)

[Link]. Meaning and Nature of Judicial Review.

Control by the courts is one type of external control which is commonly

referred to as judicial review. It is an essential mechanism that enables

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courts to control over administrative discretion and power. Using this
mechanism, courts can compel administrative agencies to proceed
according to established law, and may keep them within their
jurisdiction. Since the application and scope of judicial review varies
across each legal system, it is quit difficult to come up with a
comprehensive definition for the term judicial reviews. In spite of this,
it can broadly be defined as the power of the courts of a country to
examine the actions of the legislative, executive and administrative
arms of government, and ensures that such actions conform to the
provisions of the constitution. It is the practice of courts to decide on
the constitutionality of laws and other governmental actions, where the
issue of constitutionality is properly raised in a judicial proceeding.
Nevertheless, the courts’ power to pass decision based on judicial
review is not limited to the issue of constitutionality, but extends to
abuse of discretion, arbitrary, illegal, capricious or unreasonable acts
of agencies in different legal system.

Black’s law dictionary, on the other hand, defines judicial review as

“the power of courts to review decisions of another department or
level of government; form of appeal from an administrative body to
courts for review of either the finding of facts or law, or of both. It may
also refer to appellate court review for decisions of trial court or an
intermediate appellate court ’’. This definition failed to make clear
distinction between appeal and judicial review. Even though it is not
an easily matter to make a clear distinction between judicial review
and appeal, the two concepts are essentially different. An attempt to
make distinction will be made in the next section of the module.
Finally, in relation to administrative law, we can define judicial review
as the power of ordinary courts and other quasi judicial organs to
check and control the legality of administrative acts.

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 [Link]. Judicial Review as Distinct from Appeal

At this juncture, in order to have a clear understanding of the essence

of Judicial review, it is important to pinpoint the distinction and
demarcation between the concepts of judicial reviews and appeal.

Appeal is usually lodged to the hierarchically superior body from the

decisions of the lower organ, and based on the premise that the lower
authority has the power to dispose the case. During the proceeding of
appeal, the appellate court is to be concerned with rectification of any
error committed by the lower judicial tribunal. In so doing the
appellate court would consider the lower court’s decision in its merits,
to test whether or not such decision is worthy of being given in the
particular case. To be more precise, the court considers and tries to
decide whether the decision of the lower court is “right or wrong”.

However, in subjecting some administrative acts to judicial review, the

court is concerned only with its legality. In Judicial review, the
aggrieved party, from the decision of the lower decision making body
usually argues that the administration acted without any legal support,
and thus its acts are illegal. Hence, the review proceeding is limited to
test of ‘legality’, whether the act or the decision is ‘lawful or unlawful’.
In review proceeding, the court would stick to the law- statutes or
constitution to ascertain whether or not the challenged authority has
over stepped statutory power or constitutional limitations. It is held to
afford protection against unauthorized and erroneous decisions.

The court, exercising reviewing power, may only decide whether the
decision under review was legal or not. If the decision is illegal, it can
be quashed; otherwise the court can not intervene, even if it thinks the
decision is wrong in same respect. The question as to whether the

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decision was ‘legal or not’ is sometimes decided in light of whether it
was intra vires or ultra vires.

The other important point to note is that appeal against the decisions
of administrative agency cannot be taken to ordinary courts as a
matter of right. This is because public administration does not fall
under the judicial hierarchy. Besides, it is an established principle of
law that the right to appeal is not a natural or inherent one. Courts,
therefore, have no inherent jurisdiction to act as court of appeal from
administrative authorities and tribunals. Appeal is possible if there is
specific statutory authorization to that effect. In other words, one can
lodge appeal if there is a clear provision of law to this effect. In
practice, however, any aspect of the decision of lower organs can be
appealed. Sometimes, statues clearly limit the right of appeal only to
those cases involving question of law. That means if the case involves
question of facts, it cannot be appealed. When there is the right to
appeal from the decision of an organ, the appellate court render
decision which shall either affirm or substitute the one given by
authorities, and which shall dispose the case conclusively.

Judicial review, on the other hand, is the discretionary and inherent

power of courts to determine whether a certain action or inaction is
lawful or not. For this purpose, no statutory authority is necessary; the
court is simply performing its ordinary functions in order to up hold the
rule of law. In relation to this, judicial review is not mentioned in
various constitutions of countries like the United States of American. It
has evolved first from judicial interpretation and later strengthened
with legislative assistance. Hence, the court during judicial review, in a
different way from appeal, can consider administrative decision
without a need to inquire the existence of statutory authorization.

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However, it is important to not that there are lawyers who do not agree
with the idea that judicial review is the inherent power of courts.
According to these lawyers, the right to judicial review is entirely
statutory and there is no right to review if a statute does not expressly
provide for review. Dear distance learners, which side of view you
support? Why? Please discuss these views with your colleagues.

During judicial review, the court, instead of substituting its own

decision for that of administrative agency’s decision, the court is
concerned only with the question whether the act or order under
attack should be allowed to stand or not. For example, if the ministry
of justice revokes an advocacy license unlawfully the court may simply
declare that the revocation is null and void. If the administrative action
is in excess of power or ultra vires, the court has only to quash it or
declare it unlawful. If any of the matters in issue have to be decided
again, this must be done by the original deciding authority, and not by
the reviewing court. It is also open to the court, in appropriate cases,
to issue an order requiring the authority to reconsider its own decision.

To summarize, in appeal proceedings the court has the power to

substitute its decision on the matter in issue, while the basic power of
the courts in case of review is to quash the illegal decision or to hold it
to be invalid and refer the case back to the original deciding authority
for fresh consideration of the matter.

[Link]. The purpose of Judicial Review

We have discussed from the outset that administrative agencies are

vested with multiplicity of powers and functions. If they are not put
under some kind of control, they are prone to abuse their power and
may violate individual rights and freedoms. Among the various

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controlling mechanisms designed to control agency action, judicial
review is the main one. The primary purpose of judicial review is,
therefore, to ensure that agencies do not go beyond their statutory
powers in carrying out their tasks, or to keep the government under
legally defined rules and accepted standards. It serves as a means by
which executive action is prevented from exceeding the powers and
functions assigned to it by law. Thus it enforces rule of law over
executive action.

Review jurisdiction of courts is an essential element of the fundamental

principle- rule of law. When applied to administrative law, it means that
government authority which does some act must be able to justify his
action as authorized by law. It also demands that justification be held
before ordinary courts of law. Hence, judicial review is an important
condition for ensuring the practical enforcement of Rule of law.

Judicial review also serves as a means to protect individuals from

unlawful, arbitrary action or order of administrative bodies. If we
assume an ideal world where government authorities always exercise
their functions within the limit permitted by law, it will be not
necessary to bring about the concept of judicial review. Authorities
exhibit administrative malfunctions either deliberately or by mere
ignorance. It is mandatory to bring about judicial review to force
government bodies to comply with substantive and procedural rule of
law. Judicial review helps to determine whether substantial rights of
parties are violated and ensures fairness of administrative action.
Individuals whose rights are violated by agencies action may also be
redressed.

Generally, judicial review has dual purposes protecting individuals from

arbitrary, illegal, capricious, unreasonable or unauthorized action, and

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ensuring that public powers are exercised within their legal limits.
Nevertheless, this power of courts presupposes principally the
independence and strength of the judiciary.

[Link]. Historical development of Judicial Review

The evolution of judicial review is closely connected with the

development of administrative agencies and theory of natural law. It is
possible to say that law is as old as organized society itself. The Greeks
traditionally regarded law as being closely related both to justice and
ethics. Their philosophers maintained the notion of law as a primary
means of subjecting governmental power to control. For instance,
Aristotle argued that ‘government by law was superior to government
by men’. The Romans recognized law to be as both a set of rule that
are changeable because they depend on man’s will and those that are
universally accepted and immutable for they depend on reason. The
universal and immutable law has been ever since referred to as natural
law.

In the middle ages, an administrative act, which happened to be

contrary to natural law norms, was made null and void. The Christians
father extended the authority of natural law by ascribing it to divine
origin. During this period natural law enjoyed popularity. This was so
because natural law was proved to be appealing to everybody. The
development of this concept was also strengthened by the writings of
ancient philosophers. Thomas Aquinas considered natural law as a
superior law of Devine origin to which all norms were subjected.
Members of a society who sustained any damage by the government’s
administration repugnant to natural law principle have sufficient
ground not to be bound by that rule. Judges of the time were required
to consider as void both administrative decisions and laws which were

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contrary to natural law even if the former emanated from the pope or
the emperor. Generally speaking, natural law has greatly influence and
shaped the development of legal systems in the 17 th and 18th
centuries.

The middle age has, therefore, laid a strong ground for rule of law. The
whole application and wide acceptance of natural law implies the
subordination of the monarchs’ unrestricted power to law. Every
human being should be under the law and the principle strives to build
a society where law reigns over men. This was an advocacy to
establish a system that guarantees the supremacy of law. Some
writers believe that the need for a rule of law would in turn give rise to
the need for an organized and independent institution that was
supposed to accomplish the task of controlling the act of government.

The creation of an independent judiciary was deemed to be necessary

because judges who were influenced by other bodies could not
discharge the duty of administration of justice. It is obvious that
judges can never freely and impartially discharge their duties without
having independence. The essence of judicial independences is the
preservation of separate institutions of government that can adjudicate
cases or controversies without any external influence. This, in one way
or another, is closely related with the concept of separation of
government’s power as developed by Lock and Montesquieu.

It is the charter of Magna Carat, which was considered as the

constitution of England, had introduced the concept of judicial review
to England. Every state administration of the time was required to work
in accordance with that charter. As a corollary to this was introduced a
system where by administrative decisions could be reviewed in light of
the charter if there was a deviation from the latter.

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From earliest time the courts of common law have asserted a right to
determine the proper jurisdiction of courts administering other systems
of law, and keep them within that jurisdiction by writs of prohibition.
But it is only after 17thc that the modern concept of judicial review took
shape even in England.

The prominent judge, Edward Coke had substantially contributed to the

development of judicial review. He had exerted a great deal of effort
for the creation of a legal system to limit the king’s powers. He argued
that the king should not have judicial power, and only judges have to
interpret the law and should guarantee the supremacy of the common
law against any arbitrary administrative decision. He insisted that the
common law would control Acts (legislations) of parliament to the
extent of making it void when they are against common law rights and
reasons, or impossible to be performed. This is referred to as coke’s
theory of judicial review. Subsequently, the civil war that surfaced as a
result of conflict in the years 1640-1649 and the Glorious Revolution of
1688 marked the triumphs of legislative supremacy in England. This
spurred the development of the doctrine of judicial review.

The introduction of separation of power in the structural set up of the

government and a written constitution which indicates the limitation of
powers of the government are critical to determine the existence of
the notion judicial review in a legal system. However, in England the
state’s power, for all practical purposes, is concentrated on the
parliament. Members of the executive are drawn from the parliament,
and judges are appointed by the executive. In addition, the judiciary
cannot invalidate legislative enactments. In this regard the concept of
judicial review as understood in England is not the same as with the
united states.

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In the history of modern judicial review, the USA supreme court’s
decision in Marbury Vs Madison (1803) is regarded as a great
breakthrough whereby the power of courts not only to interpret
legislation, but also to determine its validity was established. This case
is considered as a land mark for the effective implementation of
judicial review. The concept of natural law and the practice by the
colonialists paved the way for the development of judicial review in the
United Stat. In this country, it is a basic rule of constitutional law that
the organs of government must themselves operate through law.
Officials must be able to show legal authority for their action. The
doctrine of government according to law requires that a person directly
affected by government action must be able, if necessary, to challenge
the legality of that action. In the USA there exists separation of powers
in the structural set up of the government in which branches of
government check each other. Taking the constitution as a spring
board and supreme law of the land, the judiciary has full power to
invalidate legislative enactments and executive acts.

Judicial review developed in France in different pattern from that of the

common law countries. France had witnessed a conflict between the
judges and monarchs. Under the ancient regime there was a system
where by decisions of administrative agencies were taken on appeal to
the Parliament. Latter on, however, the parliament was barred from
entertaining cases involving administrative agencies. This resulted in
dual system of courts- a complete separation not only of the judicial
and administrative function of the government, but also of the judicial
and administrative court jurisdictions. As we have discussed it in detail
under chapter one of this module, this is one point of disparity between
France administrative law system and the common law administrative
system, i.e. the USA and England.

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Separation of powers in the French context means to restrict the courts
and the administration strictly to their respective responsibilities. The
courts, after 1790, were never in any way to interfere in the province
of the administration. Hence, in France, an independent judicial body
which invalidates legislative enactments does not exist as such.
Nevertheless, there are administrative tribunals that play a gap filling
role in every administrative agency which render justice, in case where
abuse of power arises. We have to bear in mind that the fact that
regular courts do not have power to invalidate executive decisions
should not be taken as a disadvantage to the development of judicial
review.

Dear distance it is the opinion of the writer that you have understood
how judicial review developed in different countries. We have seen that
the concept has evolved gradually from the principle of natural law and
supremacy of law. This later on resulted in the creation of the system
of judicial review.

[Link]. Development of judicial review in Ethiopia.

One of the features of the administration of justice in Ethiopia is

absence of separation between the different function of government.
Governors naturally assumed the judicial functions as part of their
executive responsibilities and dispensed justice in the traditional
manner. Disputes were decided from the lowest ranking
administrators successively all along to “Afe Negus”, the chief justice,
and appeal was open even to the Emperor himself. The power of the
Ethiopian Emperors was multifaceted and inalienable. They had
sovereign authority over the people and their property. Separation of
power at least in its classical sense is traced back only to the reign of

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manlike II. As we have seen under chapter one, he had set up the first
mistrial structure by his order in 1908, and by doing so he had
decentralized his power in a certain extent.

The establishment of different ministers to run the state administration

was a good contribution to the development of modern administration.
An order was also issued by Emperor Minilike II that empowered the
Minster of justice to be the head of the judges. Minilike declared the
minister to take full responsibility to administer justice in accordance
with the Fetha Negest. In fact, separation of powers, in its modern
sense, and consequently judicial review of administrative action was
unimaginable during this time. There was a perceivable overlap of
functions between the executive and the judiciary. Besides, the King
was on the top supervising these two organs. The legal history of the
country at that stage of development would reveal the fact that there
was no system of rule of law. The administration of justice can
therefore be characterized by the fact that rule of law was not different
from the person administering justice. In the absence of rule of law, it
is difficult to imagine rules of conduct founded in reason and fairness
by which administrative officials must govern them in the exercise of
their power. Consequently, it was unthinkable to have judicial review.

As we have discussed earlier the notion that government in

accordance with the law has started since the introduction of “Fetha
Nagest”. It is a codex of law providing for secular and religious legal
provision. In addition to this ‘kebre Negest’ that dictate about the
legend of the Solomonic dynasty and “ Serate Mengist” of the 19 th
century provided certain administrative directives. Nevertheless, none
of them were constitutions in the modern sense, but they are believed
to pave the way for the development of constitutionalism in Ethiopia.

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As a result, the first constitution of Ethiopia was promulgated in1931, a
modest step towards a regulated and modern state administration.

The 1931 constitution introduced a bilateral form of parliament

composed of members from the upper classes of the society, whose
power was limited to discussions over draft laws. It has introduced the
rule of law principle to the state and tried to dictate in detail the
respective executive organs of the government. It provided division of
power between courts and the administration which were traditionally
merged. In spite of this, the Emperor retained his judicial power at the
top of both the courts and the administration. Hence, it is not possible
to conclude that there exists full judicial supervision of the
administration where real separation of power was yet lacking.

In 1955, Ethiopia was forced to revise its constitution because of

general economic and political changes. The fact that Ethiopia was
one of the founding members of the United Nations Organization, and
the federation of Eritrea, in 1952, necessitated the improvement of the
then existing constitution. This constitution, not only recognized rule of
law, but also had provisions that protect indicial rights and freedoms.
It, in theory, assigned the respective powers of the three branches of
government. However, some writers argue that even though the idea
of separation, in terms of function, appeared to be strengthened, the
executive was more dominant over the other branches.

The adoption of the concept of judicial review in the constitution has

been argumentative. Some argue that since separation of power did
not exist in Ethiopia, there was no judicial review. Other such as Dr.
Robert did not agree with this idea, and argue that article 122 of the
constitution provides that the constitution is the supreme law of the
land and article 110 declares the independence of judiciary. Hence,

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courts could invalidate legislative enactments and executive acts if
they are inconsistent with the constitution. These indicate the
existence of the notion under this constitution.

Article 122 of the constitution states that any legislation, order,

judgment, decision and acts inconsistent with the constitution are
declared to be null and void. This provision said nothing as to who
should determine on the meaning of the constitution. But article 110 of
the constitution states “the judges shall be independent in conducting
trials and in giving judgment in accordance with the law and they
submit to no other authority than the law”. From the reading of the
provision it can be inferred that the responsibility to interpreter the
constitution was on the courts.

The constitution also lays the fundamental constitutional principle due

process of law under article 43 which reads “no one with in the empire
may be deprived of life, liberty and property without due process of
law”. This principle was meant to ensure that government authorities
cannot deny citizens of their rights except in accordance with the law.

The other important provision of the constitution was article 62 (b). It

stated that “any resident of the empire may bring suit in the courts of
Ethiopia against the government, or any ministry department, agency
or institution thereof, for wrongful act resulting in substantial damage.”
This and the above provisions of the constitution undeniably had same
elements of the principles of separation of powers and judicial review.
We can safely conclude safely the existence of judicial review under
the revised constitution of 1955. According to different writers, the
Emperor, in practice, was co- legislator, supreme executive and judge
at the same time.

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In 1974, the military Junta assumed power and exercised de facto
governmental functions without a constitution until 1987. The period
was characterized by absence of rule law, separation of powers, due
process of law etc. Every organ, including courts, were under the
supervision of the socialist party. In such instance, the existence of
judicial review is unthinkable.

The 1987 people’s democratic republic of Ethiopia constitution adopted

the principle of rule of law under article 118 stating ‘… any law or
decision contrary to the constitution shall have no effect’. It also
provided for important principles like the independence of the
judiciary. Nevertheless, article 86(1) (e) bestowed up on the president
of the republic an unlimited discretionary power to interfere in the
functions of the judicially. Article 87(1) also empowers the president of
PDRE to even appoint and dismiss the president, vice president and
judges of the Supreme Court. In this fact situation, the independence
of the judiciary was highly questionable. . Consequently, absence of
judicial independence, that remains to be the best safeguard of
legality, makes the non–existence of judicial review self–evident.

[Link]. Judicial review under the FDRE

constitution

Dear distance learner, do you think the concept of judicial review has
constitutional basis in our legal system? Have you come across with
any proclamation providing for judicial review of administrative acts?
Try to discuss with your colleagues about the legal and practical aspect
of judicial review.

In many legal systems administrative acts are susceptible to review by

courts. The extents of courts’ power to review decisions of

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administrative agencies vary from one legal system to another. In
some countries courts’ power to review is limited only in relation
question of laws. This, in other words, means that question of facts are
not susceptible to review by the judiciary. In some countries, however,
courts have review from the decisions of agencies both in relation to
question of facts and laws. In some legal system judicial review is
taken as inherent power of courts. This means that courts can review
the acts f agencies regardless of the fact that that power is explicitly
given to them by the constitution or any other laws. However,
practices show that review power of courts necessarily emanates from
the explicit authorization of laws in some countries. The practical
implication of this arrangement is that courts cannot review
administrative decisions unless there is an express provision of law
authorizing them to do so. Legal scholars come to the consensus that
the extent and nature of judicial power in any country to review
agencies’ acts is determined by the legal theory prevails in those
countries. The general consensus, in every country, however, is that if
administration with in agencies is to proceed in accordance with
predetermined objectives; if lines of responsibility are to be clear; and
if decision makings by public officials to be fair and rational with some
explicit terms of reference, there must be judicial review. In this
connection it is firmly argued that courts provide the best forum to
resolve disputes between aggrieved citizens and agency officials even
though they are not the only organs to control official actions and
redressing official wrongs.

It has for long been a forum for academic and practical debate as to
whether judicial review has a firm constitutional basis in the Ethiopian
legal system. Some scholars argue that judicial review has
constitutional support. They base their arguments on different
provisions of the constitution. Other scholars, on the other hand, argue

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that courts cannot claim to have inherent reviewing power from the
decisions of administrative tribunals. According to these scholars,
courts can have this power only where clear provision to this effect is
provided by statute.

It is crucial to see some of the provisions of the FDRE constitution in

order to take a poison in this regard. The FDRE constitution vested
judicial power, both at federal and state levels, on courts under article
79(1). This provision lends support to many lawyers to think that courts
are constitutionally empowered to review acts and decisions of
administrative agencies. The fact that all judicial power is vested on
courts would mean, to these lawyers, that the final authority to decide
on any matter is reserved to ordinary courts. For these lawyers,
therefore, courts’ power to review is always reserved regardless of
whether or not there are explicit provisions to this effect in different
legislations.

Besides, article 80 of the constitution vests the highest and final

judicial powers over federal and state matters on federal and state
supreme courts, respectively. Sub-article 3(b) of the same provision
further states that the federal Supreme Court has the constitutional
mandate to review and correct, in its cassation division, any final
decision with a “basic error of law”. This provision strengthens the
arguments of these scholars. They interpret this provision to mean that
the decisions of administrative tribunals, customary or religious courts
or any governmental authority can be brought to the courts through
the procedure of judicial review in so far as question of laws are
concerned. This argument leads some scholars to conclude that courts
have constitutional power to review decisions of administrative
agencies.

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 Some lawyers argue, in the contrary, that the reading of the
provisions of article 79 does not in any ways show that courts can
review the decisions of administrative agencies. According to these
people article 79 simply provides the principle that judicial powers are
vested on the courts, and it has nothing to do with judicial review. If
this provision is interpreted in the strictest sense of the term, it would
have the message that judicial functions cannot be performed by any
organ other than courts. However the constitution provides for
provisions to the effect that other organs, such as administrative
agencies, can carry out judicial functions. For instance, article 78(4)
states that special courts with judicial power or institutions legally
empowered to exercise judicial functions and which do not follow
legally prescribed procedure cannot be established. Contrary reading
of this provision gives the meaning that there can be institutions, apart
from ordinary courts, with judicial power to the extent that they are
made to follow legally prescribed procedures. Here the phrase
“institutions… legally empowered to judicial function” may refer to
administrative tribunals such as the labour board and tax appeal
commission. The point that we have to emphasize at this point is that
article 78(4) does not provide any indication as to whether citizens
aggrieved by the decisions of those organs can take their cases to
ordinary courts for judicial review. This fact give some support to some
lawyers that the power of courts to review administrative decision
cannot be justified by the reading of article 79 or 78.

However the constitution under article 37(1) specifically provided that

every person, group of persons or association shall have the right to
bring justice able matter to court of law and obtain a decision or
judgment. This provision gives right to every individual to take any
justicable matter to ordinary courts. The issue at this point is what
really constitutes justicable matter within the meaning of article 37(1).

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We may raise an issue as to whether a case is a justicable one if an
individual, being aggrieved by the decision of the administrative
agency, takes it to the court. Assume that you are aggrieved by the
decision of the woreda administration which distributes your farm land
to other people. Do you think you can take the case to regular courts
for review? The answer to this question lies on whether the matter you
are trying to take to court is a justicable one. If you are convinced that
your case is justicable, nothing in the constitution forbids you to take it
to regular courts.

It is important to determine what constitutes justicable matter. Some

lawyers argue that the issue whether or not a certain matter is
justicable is to be determined by courts as part of their inherent task.
Black’s law dictionary defines justicable controversy as ‘a controversy
in which a present and fixed claim of right is asserted against one who
has an interest in contesting. According to this definition, any kind of
controversy, whether administrative dispute or not, can fall under the
purview of justicable matter as long as it is capable of being
determined.

The FDRE constitution offers no explicit clue as to what “Justice able

mater” exactly represents. Nevertheless, from the nature of judicial
power and the spirit of the provision of article 37 we can deduce that it
refers to controversies that courts traditionally resolve. In this sense,
courts have the constitutional power and duty to entertain concrete
cases of any nature.

The term “any other competent body with judicial power…” under
article 37 refers to administrative tribunals with judicial power such as
tax appeal commission and labour board. Generally, from the reading
of the above provisions we can conclude that judicial power, as a

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matter of principle, is vested mainly on regular court. Administrative
organs also have judicial power in pursuance of the above mentioned
constitutional provision. What is not clear from the constitution is
whether or not judicial review is vested on courts. In the opinion of the
writer of this module courts can review acts of agencies in pursuance
of article 37(1). I also argue that matters that an individual bring to
court for review should be taken as justicable. Pursuant to article 37
justicable matters can be decided by courts.

Sometimes, however, courts are completely forbidden to review

decisions of administrative agencies. For example, some lawyers argue
that courts cannot review constitutionality of the decisions of
Administrative agencies. They base their argument on article 62(1) of
the FDRE constitution which confers the power to interpret the
constitution on the House of Federation. According to these lawyers
whenever the question of constitutionality arises, it is the House, not
ordinary courts, that has the competence to decide. Furthermore, they
firmly insist that every decision requires interpretation of law, and as a
result courts should not entertain cases involving constitutional issues.

Some lawyers, on the other hand, argue that any dispute whether on
the constitutionality of agencies’ decisions or otherwise, has to be
decided by the courts as long as that does not necessitate
interpretation of the constitution. If the provisions of any law, including
the constitution, are clear enough, there is no need to interpret them;
rather they have to be directly applied to the cases at hand. Article 83
of the constitution which states “all constitutional disputes shall be
decided by the house of federation” must be read in conjunction with
article 37 and 79 of the constitution. If that is not the case, the courts
will be forced to refer any case that need the application of the
constitution to the House of Federation. This cripples the application of

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the constitution and destroys the regular judicial system. Therefore,
courts by using their judicial power, may declare a certain
administrative action unconstitutional.

Dear distance learners, which argument or views do you support? Do

you think that our regular courts can exercise judicial review based on
constitutionality. Discuss on this issue with your friends.

During the debate on the draft constitution different opinions were

forwarded for and against the idea of giving the power to interpret the
constitution to the House of Federation. Some argued that allowing
courts to interpret the constitution is the same as inviting subversion
of the democratization process. Since the constitution is essentially a
political document for people, nations and nationalities, it would be
inappropriate to subject it to the interpretation of judges.

It is provided under article 61 (1) of the constitution that members of

the House of Federation are composed of representatives of nations,
nationalities and peoples. It is logical to say that as representatives of
states, the members are expected to represent and defend the interest
of their respective states. It is with this thought that the responsibility
to interpret the constitution is vested up on them.

On the other hand, article 74(20) of the constitution provides that the
prime minister can nominate for ministerial posts among the two
councils. Thus, it is obvious that there might be a possibility that some
members of the House of Federation may join the executive and take
part in making of rules, regulation and also decisions without losing
their seats in the House. A member will, therefore, be able, by virtue of
his/her position, to review the constitutionality of the laws, and
decisions of its own. This is so because members of the House of

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Federation who participate in the review process may at the same time
make administrative laws and decisions using their executive posts
whose constitutionality might subsequently be questioned. This shows
conflict of interest that some members of the House of Federation may
face.

[Link]. Grounds for Judicial Review

Courts exercise review power over administrative decisions based on

different grounds and these grounds vary from one jurisdiction to
another. In U.S.A, For instance, courts review agencies’ actions on
unconstitutionality basis. Considering constitution as a popular will and
supreme law, acts of any organ contrary to the constitution are null
and void. So, in USA ordinary courts have the power to decide on all
question of law, and interpret the constitution in order to determine
the meaning and applicability of terms for agency actions, even though
there is no explicit authority for the doctrine of judicial review in the
constitution.

American courts also base their review power on the constitution

guarantee of due process of law. Unlawfulness, arbitrariness,
capriciousness, abuse of discretion and unreasonable delay, all being
considered to be contrary to constitutional right, power, privilege or
immunity, serve as grounds of judicial review. Unreasonable delay,
exceeding statutory jurisdiction, non observance of procedures
required by law and being unsupported by substantial evidence are all
grounds of judicial review. These grounds serve to ensure compliance
of administrative authorities to the law.

In Britain, ultra vires doctrine, legal error and natural justice are basic
grounds for judicial review. Courts, in exercising their power of review,

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assume that an act of parliament presupposes the applicability of
natural justice implicitly. Natural justice retains a higher rank in the
hierarchy of interpretative norms.

In France, it is the council d’ Etate that is charged with and can always
review abuses of administrative action, requires all executive acts,
decrees, and ordinance, even those legislative in nature, to conform
not only with enabling statue and the constitution, but also with the
general principle of law. Any violation of the principle of legality that is
a line of conduct for administration without departing from the law can
be a ground for review and will make the administration act void.

In France, even though they are not mutually exclusive and there are
instances by which a particular case can be considered under one head
rather than the other, there are four traditional grounds for review.
These are substantive ultra vires (incompetence), procedural ultra
vires (vice de forme), error of law (violation de la loi) and abuse of
power (Detournement de pouvoir).

Dear distance learner try to identify which reasons serve as grounds

for judicial review in one country, and not in another? Let us now
discuss in detail about the grounds.

1. Unconstitutionality

In different legal systems of the world, the constitution is the supreme

law of a land. The term supreme suggests a superior subordinate
relationship. If something or somebody is supreme, there logically
follows that there is something or somebody that is subordinate in
rank, and ready to obey the will of the former. Hence, when we say the
constitution is supreme, we are emphasizing that no law or

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government body is above or beyond the constitution, among other
things.

Dear distance learner, do you remember from your constitutional law

course the rationale behind the supremacy of the constitution? It is
because the constitution is the will of the people, the product of the
exercise of the constituent power inherent in the people. It is an
original constituent act, from which other legislative acts derive their
authority. After all, it is the constitution that creates the government
itself and its organs. Thus it is logical to say that government organs
can have only such powers as are granted to them by the constitution.
Actions or decisions of government organs including agencies can not
be valid and acceptable in any way if they do not conform to the
constitution.

As we have discussed under chapter two of this module, administrative

agencies are established by enabling statutes /legislations/ which also
state at same time their powers and responsibilities. Their
establishment and action must not contravene with the principle of the
constitution. If the agency regulation set forth procedures that are
precluded by the constitution, those regulations are unconstitutional.

Unconstitutionality serves as a ground of review in many countries,

especially in USA. In these countries the courts are permitted to review
legislations including rules and regulations enacted by administrative
agencies. If they find any inconsistency with the terms and provisions
of the constitution, they have a power to declare the legislation
unconstitutional. The same applies to decisions rendered by agencies.
If it is unconstitutional, it is appropriate ground for judicial review.
Unlike the case in USA, in England this ground does not have a

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significant place as a result of absence of a written constitution and
doctrine of parliamentary supremacy.

When we came to Ethiopian case, article 9(1) of the constitution clearly

declared that the constitution is a supreme law of a land. And any law,
customary practice, a decision of an organ of a state or public official
which contravene the constitution shall be of no effect. In this case the
wordings “the decision of the organ of the government” includes the
executive branch of the government which is mainly engaged in the
act of administration. Any act or decision rendered by these organs, as
long as it is unconstitutional, will be rendered null and void. Thus, it is
safe to conclude that unconstitutionality is one of the grounds for
judicial review in Ethiopia.

2. Ultra vires doctrine

Dear distance learner, we have repeatedly said that administrative

agencies are vested with multiplicity of powers and functions. They
also have a reasonable degree of discretion which enables them to
effectively discharge their responsibilities. Nevertheless, such power
has a limitation; agencies are not allowed to act in excess of their
power (jurisdiction) or in violation of procedural requirements. If they
act beyond the scope of power they have, the acts that they perform
will be made invalid as being ultra vires.

The term ultra vires literally denotes excess of legal authority, or

acting without authority. The essence of this doctrine is that a person
or body acting under a statutory power can only do things as the
statute authorizes him or her to do. This doctrine is the courts principal
weapon in quashing unauthorized administrative action.

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Judicial review based up on ultra vires varies from one jurisdiction to
another. In USA, the courts may consider both the authorizing
legislation and the act (decision) in question to be intra vires. The
courts must therefore determine the constitutionality of the act or
decision, only after deciding the intra vires question on the legislation.
In Britain, however, the doctrine cannot be used to question the
validity of acts of parliament, but only to control those who exceed the
administrative power which the act has given.

However, the problem judges face while they base their review power
on this ground is that the limits of authorities’ power are often not
clear. This is because, the power of an authority includes not only
those expressly conferred by statute but also those which are
reasonably incidental to those expressly given powers. But, still the
principle that public authority may not act outside its power (ultra
vires) remains to have an important place in administrative law, and
failure to observe the principle furnishes the basis for judicial review.

It is important to note that an act may be ultra vires even though it is

exercised by the authority having power who used it in unlawful
manner. This is referred to as procedural ultra vires. So the doctrine of
ultra vires has two aspects i.e. substantive ultra vires and procedural
ultra vires. Let us discus on these aspects of ultra vires in the following
part.

(a) substantive ultra vires

Substantive ultra vires refers to those acts done without any legal
authority, or acts done in excess of legal authority. If an authority has
attempted to deal with matters outside the range of power conferred
on it, then we can say that there is substantive ultra vires. It

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presupposes the existence of predetermined power of administrative
agencies within the scope of which they were supposed to act. It is
important to keep in mind that acts done without having authority also
fall under this.

Unauthorized acts refers to an act done without being conferred to

legal authority, expressly or impliedly, where as an act done in excess
of power refers to acts done on due extension of a legal authority. This
situation includes cases of civil servants who are dismissed by their
immediate superiors where the superior has not had delegated
authority from the minister (concerned body) to take such action. We
can raise the case of an act of an agency which revoked a business
license without having or exceeding its legal authority.

When the courts have jurisdiction on the ground of substantive ultra

vires, they must examine the nature, object and scheme of legislations
in the light of that examination they must consider the exact area over
which powers are given by the section under which the competent
authority purported to act.

(b) procedural ultra vires

There is a belief that though administrative agencies are created by

law and are equipped with powers to carry out policies, they should act
not only within the scope of their jurisdiction but also comply with
procedural requirements so that rights and freedoms of citizens will
not unduly be sacrificed. It is with this understanding that the
legislature prescribes the procedures to be followed by agencies while
excising their power on their enabling legislations. Thus, violation of
required procedures or failure to follow certain procedural

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requirements amounts to procedural ultra vires and will render the
acts done by the agencies null and void.

However, it is important to note that not every failure to observe

procedural formalities invalidate administrative action. Distinction is
made by different courts of different countries. English courts, for
instance, often distinguish between procedural requirements which are
mandatory and those which are discretionary, while the French make
distinction between essential and inessential formalities. Only failure to
observe mandatory or essential formalities will lead to nullification of
the decision or act of the agency.

So far we were discussing that even if the decision of an agency is

made with in the statutory limit, the decision may be challenged on a
procedural ground. Such requirements are found in the statutes which
confer power up on agencies. It may also emanate from the common
law doctrine of natural justice such as procedural due process of law.

The requirements of natural justice and procedural due process of law

are in most cases, embodied in enacted legislations. But where
statutes fail to incorporate such procedural requirements, they play a
gap filling role. Rule against bias and the right to a fair hearing are the
main rules of natural justice. The point is that it is difficult to imagine a
fair administrative decision where such decision is made by an
impartial judge. Fair hearing, on the other hand, presupposes a general
right to put one’s case before an administrative decision making body.
It also requires any administrative decision to be supported by reason.
Generally, if the agency failed to observe such procedures while
rendering the decision, the court will have jurisdiction to review the
action.

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3. Abuse of power

Sometimes, agencies may employ their administrative power or

discretion for some other objective or purpose other than that for
which power or discretion was conferred by the statute. This
circumstance may exist even if the agency or official acted within its
jurisdiction or power by applying the necessary procedures. In other
words, abuse of power comes in to picture, when an agency performs
an act which is within the authority but not for the purpose/objective
for which it should be legally used. Such acts may be performed for
personal motive, political motive or for the interest of third party.
Whatever the motive behind could be, if the power is exercised for a
purpose not intended by the legislature, it amounts to be abuse of
power and can serve as a ground for judicial review.

Public administration of modern times is richer in terms of

discretionary power. There are immense advantages with the grant of
wide discretion, one of which is that it enables the authorities to have
free hand to deal with needs of the public, which is in a continuous
flex. However, wide discretion could easily be abused. Modern
government is crippled without delegating discretion to administrative
authorities. Thus discretion would remain as a necessary evil that
cannot be done away with.

Discretionary powers are given in widest permissive terms that are

hardly possible to draw limits. Courts in Britain, however, demanded
that there should be limit on the powers of public authorities,
discretion be exercised reasonably and for proper purpose by taking in
to account relevant consideration. In USA also, in principle no
discretion is immune from control of courts.

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4. Unreasonableness

We can generally say that a decision is unreasonable if it is manifestly

absurd and outrageous in its defiance of logic, something so absurd
that nobody could think that it was within the authority power to act in
that way.

Agencies are required to render reasonable decisions. But if the

reasoning is illogical or unconstitutional, or because it is unreasonable
that no reasonable person could adopt it, the court can assume
jurisdiction based on judicial review. For instance, let us assume that
an applicant for a trade license to open a boutique is entitled as of
right to get a license. If the concerned agency refused to issue the
license where all conditions are met and without adequate and sound
reason, we can say that there is unreasonableness.

[Link]. Limitations on Judicial Review

We have so far discussed different grounds that serve as basis for the
courts to exercise review power over administrative authorities. But
this power of the courts is not something unlimited. Now let us have a
moment to discuss on the limitations of judicial review. As a matter of
fact judicial review is perceived as the most basic remedy available to
those whose right is affected by illegal administrative action. There
are circumstances on which courts do not have review power. It is
important to discuss about the issues that courts have jurisdiction to
review.

1. Availability of Judicial Review

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When a matter is presented before a court for review, the first issue
the court is expected to address is whether or not review is available
on the particular case at hand. However, with regards to availability of
judicial review, different views are forwarded by scholars. Some
scholars hold the extreme position and argue that the availability of
judicial review must always be presumed and courts must always
assume jurisdiction over administrative acts and decisions. These
scholars base their argument on the idea that judicial review is an
inherent power of the courts and as a result this right of the courts
should not be barred by statutes. Hence an individual whose interest is
acutely and immediately affected by an administrative action has
always a right to bring his case for judicial determination as far as
availability is concerned. In the contrary, others argue that there is no
inherent right to judicial review. The right to review is entirely statutory
and in order to review any administrative act or decision, there has to
be statutory authorization. In other words, if a statute does not
expressly provide for review, the court cannot have a right to review
any case involving administrative decision.

Others try to compromise the above extreme views stating that the
availability of judicial review may either be conferred by a special
statute enacted by the legislature or it may exist under general
jurisdiction of courts. Special statutory jurisdiction is simply conferred
when the legislation specifically provides a form of review. In this case
jurisdiction may not be presumed. Instead, in each case the plaintiff
must show that the legislature has by statute authorized the court to
hear that particular case. However, where in the circumstances of
absence or inadequate of special statute that provide review power,
the courts may review an administrative action under general
jurisdiction. Hence, the fact that a statute does not provide for judicial
review does not necessarily mean that there is no power or right of

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review. In other words, legislative silence with regard to review is not
necessarily to be construed as a denial of the general power of the
courts. In many cases, the constitution is held to require judicial review
even though a statute does not.

Dear distance learners, which view you support? Why? Try to discuses
on this with other students.

Even though there is a strong presumption that the agency action is

revisable by the courts, some specific statutes exclude such power of
the courts. In other words, these statutes specifically state that the
decision or act of the agency is not reviewable. Those, who argue in
favor of this, forward that such exclusion of review provides the agency
the opportunity to correct its own errors and to afford the parties the
benefit of agencies experience and expertise. Besides, it enables
some public bodies to function best without disruption by the courts.

Nevertheless, preclusion of review power of the courts seams to

disregard the principles of rule of law and separation of powers and
check and balance. This contradicts with the judicial power
constitutionally granted to the courts and the role they play in a
government system based on the principle of separation of power.
Under this principle courts stand as a check against the absolutely
uncontrolled and arbitrary actions of administrative officers.

In this connection it is crucial to raise statutes that provide finality

clauses in our country. For instance, article 11(1) of the social security
authority establishment proclamation states that the decision of the
social security appeals commission relating to social security rights
and benefits is final. Does this finality clause preclude judicial review of

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the decision of this organ? What is the status of provisions of laws that
provide finality of administrative decisions?

Some people argue that such provisions of the law providing for finality
of administrative decisions preclude judicial review. According to them
administrative decisions in such cases are final and are not subject to
any further judicial scrutiny. They also take the matter as a deliberate
act of the legislature to exclude certain matters from the reach of the
judiciary and making them the exclusive jurisdiction of administrative
agencies so as to reduce congestion in the courts. However, others do
not agree with the previous argument and contend that finality in such
kind of statutes refer to administrative finality and it does not in any
way preclude judicial consideration of the matter after final
administrative decision has been rendered.

Dear distance learners, which position you think is valid? How do you
see these arguments with the fact that judicial review is
constitutionally guaranteed in our country? If we say that judicial
review is guaranteed in our constitution, then the special provisions of
statutes that preclude or exclude review power of the courts, in any
way, cannot be valid. Thus, it is the latter view or argument which
seems sound.

Exclusion of judicial review also exists in other countries. In USA, the

American administrative procedural act (APA) clearly states that
sometimes the congress can by statute preclude judicial review of a
certain agency’s action and decision. But such preclusion is possible
only up on showing a clear and convincing evidence of a contrary
legislative intent. This means that for the courts to deny access to
judicial review there must be a law which clearly indicate the

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preclusion of such right. Otherwise, they have no right to preclude
judicial review.

The other reason that blocks the right to review agencies’ action is the
existence of discretionary power. Discretion, as a general principle, is
unreviewable. But if the discretion is abused and used arbitrarily by the
agency, it can be reviewed by the courts.

2. Scope of Judicial review

The power of the judiciary to check the acts of other branches of the
government is not left without a limit itself. Determining the proper
scope and limit of the judiciary has a paramount importance in
adjusting the courts’ relation ship with other branches. This is because,
as it is repeatedly said, the courts’ task of ensuring that public bodies
are kept within their powers has the aspects of rule of law and
separation of power. And, the principle of separation of powers
requires courts not to trespass up on the sphere of other branches of
government. Judicial review tries to compromise between control of
the other branches of the government, including administrative
agencies, and interference in the affairs of the other branches of the
government.

The general frame of the power of the courts in this respect is to keep
administrative agencies within their legal bounds and keep them from
unreasonable excess in the exercise of their functions. The scope of
review must be limited only to issues that courts are accustomed to
decide, and the law maker should not impose non-judicial powers up
on the courts.

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Even though the scope and extent of the review power of the courts
varies from jurisdiction to jurisdiction, it is generally agreed that
judicial review is ordinary limited to questions of law. In fact, it is a
difficult task to make distinction between question of fact and question
of law. But it is possible to say that question of law address the
interpretation of statutes while question of fact addresses of factual
disputes, the existence of some state of affairs of events in the world
outside the law and depends on evidence. The special knowledge and
expertise that administrative agencies are acquainted with makes
them preferential to consider questions of fact. Hence the courts’
power to review is limited in this regard. If the courts are going to
review agency action based on question of fact, this will defeat the
very purpose of establishing agencies. In addition, it destroys the value
of adjudication of facts by experts or specialist in the field involved.
Thus, the role of the courts is limited to serve as a check against
excess of legal power and abusive exercise of power in derogation of
private rights which can be considered as question of law.

So far we have seen that judicial review is limited to or concerned only

with the question of legality. Policy considerations and political issues
do not fall within the scope of the courts’ power to review agency
actions. Decisions, such as whether Ethiopia should join the World
Trade Organizations, is purely economic and policy consideration, and
as such not susceptible to judicial review.

The other limitation is that judges’ power, in case of judicial review, is

limited to declaring the unlawfulness or the nullity of the
administrative action. Therefore, the judge cannot go beyond this and
decide on the way the case should be administered since this amounts
to intervention in the function of the administrator. It is left for the

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administration to rectify the grounds for nullity and design an
alternative course of action.

[Link]. Prerequisites for Judicial review

There are different prerequisites that must be fulfilled before an

aggrieved party takes his case for judicial review.

1. Locus Standi (Standing)

Locus standing refers to the legal capacity of having a vested interest

to bring a law suit before a court of law. In order for a person to bring
justicable matter to the court of law, she/he should have vested
interest on the case at hand. To state it otherwise, unless some
interest of the aggrieved party has been adversely affected by the
decision of the administrative agency, the plaintiff is not allowed to
take the case before court of law.

In the context of administrative law, a writer said that sanding holds

that any person who lodges his petition before the court for judicial
review must be the one whose right has been affected by the action of
the administrative agency. In addition, the person who alleges that his
is affected by the action of the administrative agency must show that
his constitutional or other rights are infringed by the administration. If
not, the court normally declines to entertain his case. Generally, what
is required from the plaintiff by the court is to show an injury which
results from an illegal action taken by the administrative agency.

A plaintiff is required to show standing not to subject the

administration (defendant) to undue litigation and there by contribute
to delay of justice. In some conditions, however, locus standi may not

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be required. For instance, in case of a writ of habeas corpus any
person can file a suit to secure the release of a person in illegal
detention, public or private. A writ of co warrant can also be filed by
any person to challenge the appointment of a person to a public office,
whether or not he has personal interest in it. Standing is not required
in this case on the ground that everyone has an interest that public
money must not be wasted on invalid appointment.

2. Exhaustion of Administrative Remedies

Exhaustion of administrative remedies presupposes that a litigant

must, as a condition precedent, exhaust all the available remedies
within the administrative channel before he resorts to judicial relief. It
means that the case must proceed through the entire administrative
proceedings before an application for judicial review is secured. The
rule of exhaustion precludes judicial consideration of a matter while
there remains any possibility or further administrative action. Thus, a
party seeking judicial review can not apply for the court before the
agency fully completed its work and the impact of the administrative
action is apparent.

We can say that administrative remedies have not been exhausted if a

party has not applied for a hearing before an administrative agency
prior to applying for judicial relief. Such kind of rule may be provided in
a statute. The doctrine does not merely require the initiation of the
prescribed administrative procedure before resorting to the courts, but
also needs the litigation to reach in to its appropriate conclusion.
Usually, relief against proposed or pending hearings is denied for
failure to exhaust the administrative remedies.

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There are different justifications for the importance of the rule of
exhaustion. By rule of exhaustion, it is believed that there is a
possibility of reducing case burden of the courts and delay. If the
courts have jurisdiction on a matter still pending before an
administrative agency, the effect would be producing much delay and
case load up on them. Besides, the rule helps to avoid the premature
interruption of the administrative process by the courts. This allows the
administrative process to go forwards without interruption.

In addition to this, administrative agencies are equipped with special

knowledge and expertise, and the existence of the rule enables the
litigant to make use of the expert knowledge of agencies. As a result,
the judiciary remains to be a guardian of fundamental constitutional
rights, rather than intervening in premature cases. Moreover, the
doctrine gives a chance for the administrative agency to rectify the
error committed by lower administrative authorities. Whatever error
made by subordinate employees are likely to be corrected by the
superior officials. Hence, agencies must be given the opportunity to
correct their mistakes taking in to consideration of their own policy
objectives.

Even though individuals are required, as a general rule, to exhaust all

available remedies with in agencies, under exceptional circumstances
this may not be mandatory. For instance, if there is undue delay of the
case by agency officials, which is contrary to the statutory time limit
for deciding a case, the party is deemed to have exhausted that
particular administrative remedy. In such case, if the court denies
jurisdiction, it may amounts to affecting the substantive rights of
citizens and the requirement of exhaustion should not in any way
hamper the right of citizens to get access to judicial relief. The other
instance is where the matter in dispute is beyond the jurisdiction of the

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government agency. In this case, the litigant is not required to exhaust
administrative remedies but the allegation must be well-founded and
supported by evidence.

Failure to exhaust administrative remedies has its own consequences.

First of all, when a petitioner seeking judicial relief on the ground that
he has failed to exhaust the entire administrative remedies, the
petitioner must go back to the administrative agency and proceed to
exhaust the remedies available to him. Nevertheless, it may happen
that while the petitioner goes back to the agency, she/he may find that
it is too late to seek further administrative consideration of the cases
especially when the time limit for taking a case to an agency has
passed. In such cases, the unfortunate petitioner must go without relief
and this is known as doctrine of estoppels for failure to exhaust the
available administrative remedies.

3. The doctrine of primary Jurisdiction

This doctrine requires litigants to address their complaints initially to

administrative organs rather than to the courts. It allows agencies to
have primary jurisdiction and determine over a matter before it is
presented before a court of law. It is only after the consideration of the
matter by the administrative agency that the courts are entitled to see
and determine the case.

The doctrine of primary jurisdiction is similar with the doctrine of

exhaustion of administrative remedies in that both preclude judicial
consideration of a matter until it passes through the administrative
channel. However, the difference is, in case of exhaustion of
administrative remedies, the court rejects the suit on the ground that
an administrative consideration of the matter is not yet over. But in

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case of primary jurisdiction, the court refers the matter to
administrative agencies because the jurisdiction over the controversy
lies on the latter.

The rationale behind establishing the doctrine of primary jurisdiction is

that it enables to take advantage of the administrative expertise. Since
agencies are in a better position in finding of fact, they must be given
the chance to see and determine the case first. Besides, it is believed
that agencies are best to promote united regulatory through informal
opinion and flexible procedure. Generally, the doctrine of primary
jurisdiction enables administrative agencies to have an exclusive initial
consideration of cases which fall within its jurisdiction as granted by
the legislature, and at the same time it precludes the courts from
having original jurisdiction over such matters.

4. Ripeness of the case

It is obvious that it is important not to file the lawsuit that is too late. It
is not also possible to file a premature law suit. In such kinds of cases
courts cannot assume jurisdiction automatically based on judicial
review. Rather, they have to consider whether the issue that is
presented to the court is sufficiently crystallized to be a dispute with
which a court can deal with. The principle of ripeness foresees that the
person who claims for remedy through judicial review must show that
the challenged act is real and immediate. It is only when right is at
stake that one can invoke for remedy through legal proceedings. In
other words, we can say that an agency’s action is ripe for judicial
review when the issues presented fit for judicial decisions and the
parties will suffer if judicial consideration is not received. This principle
helps to avoid premature adjudication, protect agencies from judicial

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interference until an administrative decision has been formalized and
its effects felt in a concrete way by the challenging parties.

Both principle of ripeness and exhaustion of administrative remedies

serve to keep out courts from interfering in the administrative process
so that they will not hear controversies that are not designed for them.
This makes the two doctrines similar. However, the difference lies in
that in case of ripeness the facts need to develop yet, the matter is not
complete to be considered. But in case of exhaustion the matter is full-
fledged and the agency may provide a relief, however, the litigant
failed to go thought the available procedural administrative remedies.
Thus even though they seem identical, they refer to different things.

5. Finality of an administrative action

The doctrine of finality of administrative action presupposes that

judicial review of administrative action is not possible until the agency
gives its final determination of a matter. To state it differently, courts
can only exercise their review power on final agency actions. Thus
pending case before administrative agencies or tribunals cannot be
presented for review until final judgment is rendered. The principle is
designed to avoid undue burden and case conjunction in the courts like
the doctrine of exhaustion and ripeness. The rule of finality is also
designed to prevent premature intervention in the administrative
process.

4.3.3. Control by the Ombudsman

As the machinery of administration increased, as a result of the

complexity of modern life, neither disciplinary measures nor
parliamentary control are found to be able to control the

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administration at the desired level. The type and the form of
grievances that citizens have are different from time to time which
includes negligence, unfair policy, delay, partiality, rudeness,
maladministration, unfairness, arbitrariness, discrimination and other
acts of injustice. This can be committed intentionally or unintentionally
by government officials and affect the life of citizens in every
considerable aspect, the probabilities of administrative faults touching
the life of a person or property is tremendously increasing. This has
lead to search for an effective mechanism that can protect a person
from administrative fault. This produced the idea of ombudsman which
is considered to be a watch dog of the administration, or the protector
of the little man.

The term ‘ombudsman’ refers to a special official or officer(s) to whom

people aggrieved by government officials’ or agencies’ act present
their grievances. Ombudsman is an officer of government whose
official duty is to investigate and report to the parliament based on
complaints of citizens against servants of the government and other
authorities. These acts may or may not include the administrative acts
of the judiciary or the legislature, depending upon the statute of each
country. It is also possible to say an ombudsman is someone who
handles complaints and attempts to find mutually satisfactory
solutions. The word ‘ombud’, as used first in Sweden, refers to a
person who stands in representation and protection of the interest of
others. It is a unique institution which leads to an ‘open government’
by providing a democratic control mechanism over the powers of the
state.

Ombudsman is a gender neutral term, used throughout the word by

women and men who hold the office. It is also known by different
names in different countries. For example in the Republic of South

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Africa- ‘Public Protector’; in United Kingdom- ‘Parliamentary
Commissioner for Administration’; in Spain – ‘Defensor Civico’; in
Philippines- ‘Tanodbayan’; in India- ‘Lokayukta’; in France- ‘Le
Médiateur’; and in Ethiopia- ‘Enba Tebaqi’. All these names denote or
represent the term Ombudsman in different countries but established
with the same purpose.

The primary function of the institution is to protect the rights of

individuals who believe themselves to be the victim of unjust acts on
the part of the public administration. In other words, the ombudsman
operated to ensure fairness and legality in the public administration. It
has the objective of supervising the public administration so as to keep
public officials with in their legal limits. It serves as a ‘watchdog’ or a
guardian of the right and freedom of citizens in the wide field of public
administration.

This institution was first developed and established in Sweden in 1809.

Then spread soon throughout the world because of the increasing
complexity of the administration and with peoples’ need for impartial
and informal handling of complaints. It became a standard of the
machinery of any modern government. The manner in which it
operates may vary from place to place. However, in most cases, the
ombudsman receives complaints from members of the public and
investigates these compliant as long as they fall within its jurisdiction.
In the process of investigation, the ombudsman is generally granted
access to the documents of all relevant public authorities. The
ombudsman will then issue a statement of recommendations based on
this investigation.

The Ombudsman is a paradox, being both powerful and powerless at

the same time. As illustrated previously, they can, in most cases,

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investigate complaints, choosing which are the most important and
initiate investigations without complaints. They set an agenda by what
they choose to investigate. They can determine whether a complaint is
justified and seek remedies for it. They can compel people to talk to
them and produce records, subject to the protections witnesses have
in court. But they cannot make an agency do anything. They can,
however, make their reports public. Aside from choosing what
questions to ask and issuing subpoenas, their powers are mainly
persuasive and publicity.

In most countries, an ombudsman generally does not have the power

to investigate the organ that appoints the ombudsman and other
elected officials, and does not have the power to look at the judicial
acts of courts. Voters have remedies such as recall or impeachment for
elected officials. Unfavorable court decisions can be appealed to a
higher court. Complaints about judicial misconduct may result in an
administrative sanction of a judge or rejection of an incumbent at the
polls. The ombudsman is not an alternative to these traditional
remedies.

Enabling legislation for many ombudsman offices requires the

complainant's identity be kept confidential. People need to be able to
talk to the ombudsman and staff in confidence. Some choose not to file
complaints. Others want their complaints recorded but not pursued.
Confidentiality is critical to creating confidence that complainants can
talk to the ombudsman without their identity being disclosed against
their will.

Enabling legislation for many ombudsman offices requires the

complainant's identity be kept confidential. People need to be able to
talk to the ombudsman and staff in confidence. Some choose not to file

194
complaints. Others want their complaints recorded but not pursued.
Confidentiality is critical to creating confidence that complainants can
talk to the ombudsman without their identity being disclosed against
their will.

[Link]. Historical Development and the features of

the Institution of Ombudsman in different
countries
1. Ombudsman in Scandinavian Countries

A. Sweden

Dear distance learner, as it has been said earlier, the office of

ombudsman first originated in Sweden and spread into a number of
countries over the years having diverse forms and acquiring different
names.

In fact, compliant handling mechanisms have never been new to

government. Kings of ancient Egyptians had officers at their disposal.
To deal with complaining Hebrews, Moses appointed grievance officers.
During the Roman Republic, two censors were established both in
order to scrutinized administrative actions and receive complaints
alleging maladministration. In the Middle Ages, intermediaries between
rulers and ruled, administrators and administered were common in
government. Absolute monarchs appointed special representatives to
see that the public officials obeyed the law.

The Swedish monarchs were no exception. In fact, like any other

monarchs, they had difficulty in maintaining their kingdom and their
authority. And hence they were frequently under compulsion to
compromise with the nobility and the church who sought to impose

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limitations and constraints on their power through the representative
assembly (Riksdag).

In 1709, Charles XII was forced to free to Turkey as a result of the

Swedish defeat by Russia. During his exile there, he became
acquainted with Turkish office of chief justice which ensured that
officials followed Islamic law. He thereupon ordered the creation of an
office to be headed by his highest ombudsman to ensure that Swedish
officials followed the law and fulfilled their obligations.

The adoption of a new constitution by Sweden in 1719 set up a

parliamentary government and ushered the Enlightenment in which
democratic values were nurtured. Nevertheless, it was the 1809
Swedish constitution which incorporated a justice ombudsman, a
position to be filled by a person of known legal ability and outstanding
integrity. This Swedish Constitution divided and balanced power
between the King and Parliament with the King having executive
powers and Parliament retaining legislative power. The Ombudsman,
who was appointed by and responsible to Parliament, was to protect
individual rights against the excesses of the bureaucracy.

The objective of the institution was to supervise public administration

as part of the legislature and was to report to parliament rather than to
the monarch. The justice ombudsman would ensure the legality of
official actions and would protect the public from excessive official
enthusiasm by investigating public complaints of official wrongdoing.
The justice ombudsman would scrutinize official actions and, if
necessary, prosecute officials who committed unlawful act or
neglected to perform official duties properly.

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As time went by, the justice ombudsman evolved more as a citizen
defender, concerned with resolving public complaints against the
public bureaucracy, and less as a prosecutor of official wrongdoing.

Generally, this is how the institution of ombudsman developed in

Sweden. In the following section we will discuss how the institution
developed in other countries.

B. Finland
The office of the parliamentary ombudsman was established in the
constitution Act of Finland in 1919. Article 49 of the constitution states
briefly the essential features of the position and functions of the
parliamentary ombudsman. According to this provision of the
constitution Act, a Parliamentary Ombudsman shall be elected for a
term of four years at a time in a regular session of Parliament. The
ombudsman must be known as eminently versed in the law. A Deputy
Parliamentary Ombudsman, who assists the Parliamentary
Ombudsman and discharges his or her duties as necessary, and a
Deputy Ombudsman's substitute, who discharges the duties of the
Deputy Parliamentary Ombudsman when the latter is disqualified, shall
be elected for an equal term of office using the same kind of
procedure. In case the Parliamentary Ombudsman dies or resigns
before the expiration of the term of office, Parliament may elect a new
Parliamentary Ombudsman for the remaining term of office. All the
ombudsmen must have a formal legal education and a long carrier in
law before they became ombudsman. The ombudsman is elected by
parliament through a secret ballot and without formal nomination of
candidates.

The duty of the Parliamentary Ombudsman is, in accordance with the

regulations approved by Parliament for the Parliamentary Ombudsman,

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to oversee that the courts of law, other authorities and public officials
in the performance of their duties as well as employees of public
corporations and other persons in the discharge of public functions
observe the law and fulfill their obligations. In discharging his or her
functions the Parliamentary Ombudsman shall also oversee the
implementation of fundamental rights and human rights.

The Ombudsman of the Parliament has the duty to present an annual

report concerning his activities as well as the state of the
administration of the law to the Parliament, and the deficiencies
observed by him in the legislation. If there is miss conduct on the part
of the Ombudsman in the conduct of his office, the Parliament may
decide that a charge be raised against him.

The Finland Ombudsman can be one example for the kind of

Ombudsman created by the constitutional law of a certain country. In
other countries, such as ours, the ombudsman is established by an act
passed by the legislature. In fact, the legislature may be empowered
by the constitution without stating the basic provisions which
determine the feature of the institution. Sometimes, the office may be
created by directive or orders of the executive.

C. Norway
The principle of separation of powers which made the executive
sovereign and beyond control of the parliament was introduces by the
Norwegian constitution of the 1814. But later on, the executive
became responsible to the parliament through the introduction of the
Cabinets system in 1983. As a result, the parliament has the right to
control public agencies and exercise its general supervision in many
ways.

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Nevertheless, as public administration grew, there was also a need for
more detailed control of administrative decision and growing desire to
establish a separate institution to which citizen could appeal when they
felt unjustly treated by the administration. In 1951, a commission was
appointed to study whether more adequate safeguards are needed
against public administration. The institution of ombudsman, based on
other Scandinavian model, was proposed and, after a considerable
public debate, the office was established with amendment. The civil
ombudsman is elected for four years term and he/she must be a law
graduate and over thirty years of age.

[Link]
In Denmark, the institution of ombudsman, which took the Swedish
system as its model, was established upon recommendation of the
constitutional commission of 1946. However, in various ways, the
Danish office differs.

In Denmark the office was designed to pursue two goals. Fist of all, the
ombudsman was established to act on behalf of parliament to
strengthen the control traditionally exercised by the supreme elected
body. Secondly, the ombudsman was to safeguard law and order as an
appellate institution for citizen who came in to conflict with
administrative agencies.

The ombudsman is elected by the parliament and after each general

election she/he may be re-elected. A member of the parliament may
not be elected as ombudsman unless the parliament’s (Folketing) legal
committee consented to it.

2. The Spread of the Institution of Ombudsman out

of Scandinavian countries

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The first adoption of the office outside Scandinavia came in the Federal
Republic of Germany in 1957 with the controversial establishment of
the military ombudsman, following the creation of the new German
Army, to maintain parliamentary control over the military and to
ensure that the army would develop according to the new democratic
spirit of the citizen in uniform.

Mean while, the Danish Ombudsman, Professor Stephen Hurwitz, had

been giving the institution publicity of a more positive kind. Indeed,
throughout the 1960’s, the institution became better as a result of the
efforts made by the United Nations Division of Human Rights at
Seminars held in different countries at different time. Accordingly, the
1960’s opened a new chapter for the ombudsman. In 1962 New
Zealand became the first British Commonwealth country to adopt the
institution.

Chronologically, from Sweden, where the institution had its beginning,

the idea of ombudsman has spread to the rest of Scandinavian
counties and then to Western Europe. The Russian ombudsman has
been copies in Eastern Europe. After New Zealand adopted a variation
of the Swedish model, other British Common Wealth countries followed
the same.

A. England
In England, in the mid twentieth century a feeling grew up that the
constitution in its classical form was inadequate to give protection
against ever growing powers of government. The absence of
administrative courts that have the advantage of administrative
training and better control of mal-administrative action of agencies in

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England, unlike in the France, made the former to pay attention to the
Scandinavian device of ombudsman.

In 1961, a group of lawyers and representatives of all party

organizations agreed on the establishment of the office and proposed
that the primary function of the ombudsman should be to investigate
allegations of mal administration. Pursuant to this proposal, the
ombudsman in an informal manner enquires into the matter of the
complaint fully, and has access to the department files and then issues
his report, which is published in the national news papers.

In 1967 the Parliamentary Commissioner Act which established the

first ombudsman was passed by the parliament and the commissioner
was given the task of investigating complaints of injustice in
consequence of mal administration. For all practical purposes the
commissioner was an ombudsman.

The commissioner was appointed by the crown on the Prime Minister’s

advice. He holds office during good behavior. His terms of reference
are to investigate complaints by individuals and bodies corporate who
claim to have sustained injustice in consequence of mal administration.

The Parliamentary Commissioner is, as the name suggests,

accountable to Parliament. In exercising his statutory function, the
Parliamentary Commissioner reinforces the capacity of parliament to
deal with complaints against the executive. The Commissioner reports
to parliament through a series of annual reports, including reports of
particular investigations and matters of concern, and his activity
comes under the scrutiny of the selected committee to the
Parliamentary Commissioner for Administration.

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Act of 1967 contains a schedule which includes all of those
Government departments and authorities whose administrative
functions may be investigated on a complaint to the Parliamentary
Commissioner. The list may be amended but may not include any body
or authority whose functions are not exercised on behalf of the Crown.
The Parliamentary Commissioner is empowered to investigate actions
taken by or on behalf of any of the bodies or authorities listed in the
schedule.

But the parliamentary commissioner Act contains various restrictions.

The commissioner may receive complaints only from members of the
House of Commons. He cannot act on his own initiative. He cannot be
approached directly by a member of the public. He can only act in
pursuance of a written compliant to a Member of Parliament forwarded
to him by a member of parliament with the consent of the compliant.
The commissioner has, however, adequate power to investigate a
compliant thoroughly.

The Act does not define the terms injustice and mal-administration.
The term injustice may include hardship and a sense of grievance
which ought not to have arisen and mal-administration covers
corruption, bias, unfair discrimination, harshness, etc.

The Act expressly excludes the following matters from investigation by

the Parliamentary Commissioner;
 Foreign relations
 Action taken overseas
 Action affecting the administration of government in overseas
territories such as colonies
 Action taken to extradite individuals by virtue of extradition
treaties and to extradite fugitive offenders
 Investigations of crimes
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  Proceedings before any court of law, international court or
tribunal or disciplinary body in the armed forces
 Action taken in connection with the prerogative of mercy
 The health service
 Commercial and contractual transactions
 The grant of honors, awards, privileges and charters
 Personnel matters in the civil service and armed services.

B. United States of America

We have discussed earlier that as long as government has existed,

guaranteeing citizens fair and equitable treatment under the law has
been an issue and various protections have been utilized over the
years. In modern times the office of Ombudsman, where instituted, has
been a successful and valuable guarantor of citizens' rights. By
impartial and independent investigation of citizens' complaints, it has
provided an informal and accessible avenue of redress.

The first offices of Ombudsman in the United States were established

in the mid 60's. This was a time when government movements such as
civil rights and good government created a political atmosphere more
favorable to openness, and to establishing recourse for the aggrieved.
Hawaii established the first office in 1967. Since then a number of
states, counties and municipalities have followed the same by
establishing offices of general jurisdiction. The Ombudsman movement
in the U.S.A. has also been characterized by offices that represent a
departure from the Swedish model. These variations would include
offices with general jurisdiction but appointment by a governor or
mayor, legislative offices with special jurisdiction such as corrections,
single agency ombudsman with statutory authority.

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Early in the Ombudsman movement, the American Bar Association
recognized the value of the institution and wrote in 1969 the criteria
that remain the guidelines for creating an Ombudsman Office. The
American Bar Association recommends;

1) That State and local governments of the United States should

give consideration to the establishment of an ombudsman
authorized to inquire into administrative action and to make
public criticism.
2) That each statute or ordinance establishing an ombudsman
should contain the following twelve essentials:
1) authority of the ombudsman to criticize all agencies,
officials, and public employees except courts and their
personnel, legislative bodies and their personnel, and the
chief executive and his personal staff;
2) Independence of the ombudsman from control by any
other officer, except for his responsibility to the legislative
body.
3) Appointment by the legislative body or appointment by
the executive with confirmation by a designated proportion
of the legislative body, preferably more than a majority,
such as two-thirds;
4) Independence of the ombudsman through a long term, not
less than five years, with freedom from removal except for
cause, determined by more than a majority of the
legislative body, such as two-thirds;
5) a high salary equivalent to that of a designated top officer;
6) freedom of the ombudsman to employ his own assistants
and to delegate work to them, workout restraints of civil
service and classifications acts;

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 7) freedom of the ombudsman to investigate any act or
failure to act by any agency, official, or public employees;
8) access of the ombudsman to all public records he finds
relevant to an investigation;
9) authority to inquire into fairness, correctness of findings,
motivation, adequacy of reasons, efficiency, and
procedural propriety of any action or inaction by any
agency, official, or public employee

10)Discretionary power to determine what complaints to

investigate and to determine what criticisms to make or to
publicize;

11)Opportunity for any agency, official, or public employee

criticized by the ombudsman to have advance notice of the
criticism and to publish with the criticism an answering
statement.

12)Immunity of the ombudsman and his staff from civil

liability on account of official action.
3) That for the purpose of determining the workability of the
ombudsman idea within the Federal government, the Federal
government should experiment with the establishment of an
ombudsman or ombudsman for limited geographical area or
areas, for a specific agency or agencies or for a limited phase or
limited phases of Federal activity.
4) That establishment of a Federal government-wide ombudsman
program should await findings based on the experimentation
recommended.

The United States Ombudsman Association, the national organization

of public sector Ombudsman, has incorporated these criteria in its By-

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laws. They also are integral to the USA annotated Model Statute for
Ombudsman Offices which builds on 30 years of experience with the
concept in the USA.
In US the jurisdiction of Ombudsman varies according to the law
creating an office. For a general jurisdiction Ombudsman, the
administrative acts of most, if not all, agencies in a local or state
government are within an ombudsman's mandate. A specialty
ombudsman looks at the acts of a single agency or a group of agencies
that work in a single area of concern such as children issues.

With regard to appointment of an Ombudsman, enabling legislation

determines the appointment process of an Ombudsman. So it depends
on the kind of the Ombudsman. The efficacy of an office is largely
dependent upon a widely held view of the Ombudsman as a person of
integrity, who works with partisan fairness and ethical behavior. As a
result, it is recommended that the selection process be one that is not
unilateral but shared by appropriate legislative and/ or administrative
committees and bodies.

Complaints that come to an Ombudsman's Office are screened to

determine if the complaint is in the jurisdiction of the Ombudsman,
whether the complainant has utilized the government agency's
established complaint process, and whether there is validity under the
law to the complaint. The Ombudsman helps citizens understand how
government agencies operate, what are the appropriate laws, rules,
policies, or how citizens may handle complaints themselves.

Those complaints that are accepted are objectively investigated by the

Ombudsman. Informal resolution is often attempted with the agency.
When this is not possible, the full power of the office may be utilized,
which could result in a public report containing recommendations to

206
the agency or to the legislature. In USA, many jurisdictions provide
whistle blower protection for both complainants and witnesses who
may contact or be interviewed by the office. This is done to ensure the
ombudsman has access to all of the facts in a matter and prevent
retaliation against those who seek help from the office. In resolving
complaints, it is also the responsibility of the Ombudsman to identify
patterns of abuse of power or negligence by government that would
require legislative attention.

Most public sector Ombudsmen are required to report annually to the

appointing authority. With much of the Ombudsman's work being done
quietly and in confidentiality, the annual Report is an opportunity for
the Ombudsman to speak publicly on issues of concern. Annual Report
will contain statistical information on the contacts by citizens during
the prior year, an analysis of these statistics, and recommendations
that flow from this analysis.

[Link]. The Office of Ombudsman in Ethiopia

In Ethiopia the first attempt to establish the office of the ombudsman

was made during the last days of the Emperor Haile Selassie’s regime.
During that time the people of Ethiopia who had been embittered by
the manipulative and oppressive rulers rose in concurrence against
them irrevocably determined to bring about a change. The monarch,
after realizing that everything went wrong, had grudgingly consented
for the establishment of the office. In order to achieve this a committee
was established which was entrusted with responsibility to come up
with a new constitutional order through which it has been intended to
place the supreme executive power in the hands of a cabinet
government, while the Emperor was to be the head of state of Ethiopia
and the symbol of the nation’s unity and history.

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The draft of the proposed constitution consisted of eleven chapters of
which the ninth chapter was devoted to dealing with the establishment
of the office of Ombudsman. In line with the classical Ombudsman
system which originated in Scandinavian countries, it has intended that
the Ethiopian Ombudsman would be accountable to the National
Assembly which was to be the legislature of the time.

Even though the accountability of the Ombudsman to the legislature

seems to have been modeled on the Scandinavian ombudsman
system, the provisions pertaining to Ombudsman in the proposed draft
constitution differ substantially, for instance, from a comparable
provision concerning the same institution in the Swedish Constitution.
The National Assembly was entitled to appoint only one Ombudsman
unlike the Swedish Parliament (Riksdag) which is entitled to appoint
more than one. Apart from this while the Swedish Ombudsman may
initiate legal proceeding as per the instructions of the Riksdag and may
be present at deliberation of a court, the Ombudsman envisaged by
the proposed draft constitution was not at all vested with such similar
powers.

Generally, the Ombudsman envisaged by the proposed draft

constitution of 1974, deals with matters relating to the appointment of
Ombudsman; the inspection of administrative malpractices by the
office; the independence of the Ombudsman in discharge of his
obligations; the evacuation of the Ombudsman from office save in few
instances and the Ombudsman’s authority to set up his own office to
administer his staff in accordance with the civil servant administration
law. However, the office was not able to be established.

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The second attempt to establish the Ombudsman institution in Ethiopia
came up with the adoption of the 1995 FDRE constitution. This
constitution introduced the system of federalism. Base on Article 50 of
the constitution the Federal Democratic Republic of Ethiopia comprises
federal and state governments. And within the Federal state there are
two councils; the House of People’s Representatives (HPR) and the
Federation Council (FC). The House of People’s Representatives is
empowered by the constitution to established the institution of
Ombudsman pursuant to Article 55(15) which reads as follows:-

It (The House of People’s Representatives) shall establish

the institution of the Ombudsman, and select and
appoint its members. It shall determine by law the
powers and functions of the institution.

Hence the office is established by the House of People’s

Representatives through proclamation number 211/2000. However the
office commenced operation on July 14, 2005.

A. The Nature and Institutional Structure of the

Ombudsman Institution in Ethiopia

The legal framework of the office creates a multi-member institution

appointed by and accountable to the legislature, the House of People’s
Representatives. Article 3 of the proclamation declares that the office
is established as an autonomous organ of the Federal Government
having its own juridical personality, and accountable to the HPR.

The Ethiopian Ombudsman is a hybrid human right Ombudsman body.

One Ombudsman will head women’s affair and children’s department.
Article 8 of the proclamation describes the institutional organization of
the office as follows;

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The Institution shall have:
1) A council of the Ombudsman
2) (a) a chief Ombudsman;
(b) a Deputy Chief Ombudsman;
(c) an Ombudsman heading the children and women affairs;
(d) Ombudsman heading branch offices; and
(e) the necessary staff.
Article 9, on the other hand, states that ‘the institution shall have its
Head office in other places to be determined by the House of People’s
Representatives’.

Even if much of the literatures on Ombudsman stress on the need for a

single ombudsman to harmonize the office and give it a personal
touch, Ethiopia moved towards a system of multiple Ombudsmen. In
fact the trend was changed recently in to a system of multiple
Ombudsmen or Ombudsman bodies or commissions. Even Sweden, the
originator of the idea of Ombudsman, amended its system in 1968 to
provide for four Ombudsmen. Other countries like Tanzania, Zambia,
Nigeria and Papua New Guinea have an Ombudsman board or
commission. Multiple Ombudsmen has its own advantages, one of
which is specialization in different aspects of administration. The other
is they can make final decisions more quickly. In a large office with a
single Ombudsman where all cases must be referred to him, it is
difficult to carry out tasks in a short period of time. Hence, multiple
Ombudsmen may be preferable especially in the complex modern
administration system where human right violations and abuses by the
administration are prevalent.

An organ known as Council of Ombudsmen of the Institution is also

established by the legislation. Based on Article 30 of the proclamation
this organ consists as members the Chief Ombudsman as a chair

210
person; the Deputy Chief Ombudsman as Deputy Chair person and
other Ombudsmen as members. The council has the following powers
and duties (Article 31);
1) To adopt directives and by- laws necessary for the
implementation of this proclamation;
2) To discuss on draft budget of the Institution;
3) To adopt staff regulations in conformity with the basic
principles of Federal Civil Service laws;
4) To appoint department heads;
5) To examine and render a final decision, within a short period
of time, on cases, petitions or complaints submitted to it
within short period of time in relation to staff administration;
6) To hear disciplinary cases relating to department heads,

The Council is mainly engaged in carrying out tasks that relate with
internal matters and administrations of the Institution.

B. Objectives of the Ombudsman Institution

As it is clearly stated in the preamble of the enabling legislation, the

office of Ombudsman is designed in order to promote good governance
by way of setting up an easily accessible means for the rectification of
maladministration or prevention of unjust decisions of executive
organs and officials committed against citizens. The proclamation does
not define what it means by maladministration, but it tried to show
elements that can be included under the act maladministration.
Pursuant to Article 2(5), ‘maladministration includes acts committed,
or decisions given, by executive government organs, in contravention
of administrative laws, the labour law or other laws relating to
administration’. Hence any act committed by public officials or
administrative organs contrary to these laws is maladministration. It is
important to note, However, that this is not exclusive as the term
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‘includes’ in the provision indicates. Maladministration may therefore
comprise other act or decisions of administrative agencies other than
what is discussed earlier.

Generally the objective of the institution as stated under Article 2

reads as follows;
The objective of the institution shall be to see to
bringing about good governance that is of high
quality, efficient and transparent, and are based on
the rule of law, by way of ensuring that citizens’
rights and benefits provided for by the law are
respected by organs of the executive.

C. Power and Function

With regard to its power and function, Article 6 of the proclamation

states the following;
The institution shall have the powers and duties to:
1) Supervise that administrative directives issued, and
decisions given, by the executive organs and the practices
thereof do not contravene the constitutional rights of citizens
and the law as well;
2) Receive and investigate complaints in respect of
maladministration;
3) Conduct supervision, with a view to ensuring that the
executive carries out its functions in accordance with the law
and to preventing maladministration;
4) Seek remedies in case where it believes that
maladministration has occurred;
5) Undertake studies and research on ways and means of
curbing maladministration;

212
 6) Make recommendations for the revision of existing laws,
practices or directives and for the enactment of new laws and
formulation of policies, with a view to bring about better
governance;
7) Perform such other functions as are related to its
objective.

Thus, its primary function is to receive and investigate complaints in

respect of maladministration and seeks appropriate remedies in case
where it believes that maladministration has occurred.

Dear distance learner, try to read carefully the following provisions of

Proclamation number 211/ 2000 carefully before proceeding to the
next discussion.

[Link] of Procedures of the Institution

Article 22. The Right to Lodge Complaints

1) A complaint may be lodged by a person claiming to have
suffered from maladministration or, by his spouse, family
member, his representative or by a third party.
2) The Institution may, in consideration of the gravity of the
maladministration committed, receive anonymous
complaints.
3) Prior to lodging a complaint with the Institution in respect
of an act of maladministration from which he has
suffered, any person shall bring the complaint before the
relevant organs.
4) Without prejudice to the provisions of Article 7 hereof,
the right to lodge complaints, as under this Proclamation
shall be no bar to the institution of criminal or civil
proceedings over the same case.

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 5) The institution shall receive and investigate complaints
free of any charge.

Article 23. Lodging Complaints

1) A complaint may be lodged with the Institution orally, in
writing, or in any other manner.
2) Complaints shall, to the extent possible, be submitted
together with supporting evidence.
3) Complaints may be made in Amharic or in the working
language of the Region.

Article 24. Investigation

1) The Institution may conduct investigation on the basis of
complaints submitted to it.
2) The Institution shall have the power to conduct
investigation on its own initiation, where it so finds it
necessary.

Article 25. Ordering the Production of Evidence

In order to undertake necessary examination within a
reasonable time, the Institution may order to it:
1) Those complained against appear for question or that they
submit their defense
2) Witness appear, and give their testimony;
3) Any person in possession of evidence relevant to the case,
produce same.

Article 26. Remedies

1) The Institution shall make all the effort it can summon to
settle, a complaint brought before it amicably

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2) It shall notify, in writing, the findings of its investigation and
its opinion thereon, to the superior head of the concerned
organ and to the complainant.
3) The remedy proposed by the Institution, pursuant tp Sub-
Article (2) of this Article, shall expressly state that the act
or practice having caused the maladministration be
discontinued, or that the directive having caused same be
rendered inapplicable, and that the maladministration
committed to rectified, or that any other appropriate
measure be taken.
4) Complaints submitted to the Institution shall be accorded
due response, within a short period of time.

Article 27. The Right to Object

1) Any compliant or accused shall have the right to object to
the appointee or official in hierarchy where he is
aggrieved by a remedy proposed by subordinate appointee,
or official of the Institution, within one month from the time
he is notified, in writing, of such proposed remedy.
2) An official who received as objection, pursuant to sub-
Article (1) of this Article, may modify, stay the execution of,
reverse or confirm the remedy having been proposed.
3) A decision rendered by the chief Ombudsman shall be final.

Article 28. Duty to Notify a Fault

Where the Institution, in the process of conducting
investigations, believes that a crime or an administrative
fault has been committed, it shall have the duty to,
forthwith, notify in writing, immediately to the concerned
organ or official.

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 Article 29. Overlap of Jurisdiction
1) Where cases falling both under the jurisdiction of the
Institution and of the Ethiopian Human Right Commission
materialized, the question of which of them would
investigate shall be determined upon their mutual
consent.
2) Failing determination of the matter as under Sub- Article
(1) of this Article, the organ before which the case is
lodged shall undertake the investigation.

From these provisions of the enabling legislation we can perceive that

the Office of Ombudsman will start investigation either based on
compliant submitted to it by a person claiming to have suffered from
maladministration or his spouse, family member, his representative or
by a third party, or on its own motion where it finds it necessary. The
complaint can be made in any form; orally, in writing, or in any other
manner. However, there is an obligation to exhaust all the available
remedies within the administration before lodging complaint before the
Institution. This is may be designed to avoid premature intervention in
the affairs of the administration by the Ombudsman. Further, if every
matter, including those that can easily be rectified by the
administrative agencies, are presented before the institution, it will
create work load on the office. Then, the office will start investigation
up on the complaint and for this purpose it can order witnesses to
appear before it to give their testimony and/or to present evidence
relevant to the case. It can also order the official or the representative
of the administrative agency against whom the complaint is lodged to
appear before the office.

The Institution of Ombudsman, after it finds out that maladministration

is committed, will make all the necessary efforts to settle the matter

216
amicably. It notifies its findings and opinion to the officials of the
administrative agency expressly stating that the act or practice that
caused the maladministration should discontinued or the directive that
caused the same shall be rendered inapplicable and also notify the
complaints in writing. It may also alert the administrative organ to take
any appropriate measure in order to rectify its misconduct. Any
complainant or accused dissatisfied with the investigation of the
Ombudsman has with the power to take the matter before the superior
official in hierarchy of the Institution.

Sometimes the complaint presented before the Institution of the

Ombudsman may fall both within its jurisdiction and that of the
Ethiopian Human Right Commission. In such cases the two institutions
decide up on the matter as to who will have to undertake enquiry on
the compliant based on mutual consult. In the absence of such
consensus, the Institution before which the compliant is lodged shall
undertake the investigation.
E. Factors Affecting the Effectiveness of the
Institution of the Ombudsman
I. Appointment

The enabling legislation of the Ombudsman Institution empowers the

House of People’s Representatives to appoint the Chief Ombudsman,
the Deputy Chief Ombudsman and other Ombudsman (Article 10).
Appointees shall be recruited by a Nomination committee which
consists of the Speaker of the House of People’s Representatives; the
Speaker of the House of Federation; five members elected by the
House from among the members of the House; two members of the
House of People’s Representatives to be elected by joint agreement of
the opposition parties having seats in the House; and the president of
the Federal Supreme Court. The nominees proposed by the committee

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shall be presented before the House of People’s Representatives for
approval and the nominees will be appointed if they are able to secure
two-third vote of the House.

Similarly, in most developed countries, including Sweden and UK, the

Ombudsman is appointed by the Parliament, the legislative organ of
the government. However, in most African countries like Tanzania,
Zambia and Nigeria, the sole responsibility to appoint the Ombudsman
rests on the head of the state.

Who will be appointed as Ombudsman? Article 12 of Proclamation

number 211/2000 clearly answers this question. It reads as follows;
Criteria for appointment
Any person who
1) is loyal to the constitution of the Federal Democratic
Republic of Ethiopia;
2) is trained in law, administration or other relevant
discipline or has acquired adequate knowledge through
experience;
3) is reputed for his diligence, honesty and good conduct;
4) has not been convicted for a criminal offence other than
petty offence;
5) is Ethiopian National
6) is of enough good health to assume the post; and
7) is above thirty five years of age;
may be appointed as an Ombudsman.

Dear distance learner, try to discuss and find out with your friends the
reasons behind stating the above criteria for the appointment of the
Ombudsman. Do you think that all these criteria are crucial? Why?
Why not?

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Once the Ombudsman is appointed he is duty bout to keep and not to
disclose any information known to him in connection to its duty unless
ordered by the court or permitted by the Chief Ombudsman.

II. Accountability

We have discussed from the outset that the Ombudsman is

accountable to the House of People’s Representatives. Article 13 of the
proclamation also affirms this point. It states that the Chief
Ombudsman shall be accountable to the House of People’s
Representatives while the Deputy Chief Ombudsman is accountable to
the Chief Ombudsman. Accordingly, the Institution is duty bound to
issue official report to the House with regard to the activities it carried
out (Article 39). This helps the House to evaluate the effectiveness of
the institution.

Unlike our case, in some countries such as Tanzania and Uganda it is

made, by the respective constitutions, answerable to the President.
Nevertheless, some Ombudsman, practitioners and scholars in the
liberal democracies claim that Ombudsmen linked to the legislative are
more impartial and less subject to political pressure. An accusation has
also been made that an executive political appointee is likely to be less
qualified, if not unqualified, for the job of Ombudsman. This, executive
ombudsman would be less effective compared to their parliamentary
counterparts.

In response, governors and their executive ombudsman go to great

length to deny these assertions and claim that the executive
ombudsman are just as impartial and effective as their parliamentary
counterparts. For example, Kimweri, legal officer of the Parliamentary
Commission of Enquiry (Tanzanian Ombudsman Office) contends that
“by placing the Parliamentary Commission of Enquiry in the hands of

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the President who is the head of state and chief executive, it was
expected that this would ensure the effective operation of such
sensitive organs.” He further points out that “even those countries
where the Ombudsman is answerable to a Committee of Parliament,
there have been instances of conflict between the legislature
committee and an Ombudsman; sometimes so series that the
Ombudsman had to resign.” One of the reasons to put the
Ombudsman in to the executive seams to avoid possible conflicts that
may arise between the institution and the legislature.

Having in mind that the Ombudsman is by its nature politically

sensitive because of his wide ranging powers to investigate the acts of
the government, which approach of institutionalization do you think is
efficient? Please try to pin point the advantages and disadvantages of
both approaches?

III. Term of Office

The term of office of the Ombudsman is five years pursuant to Article
14(1) of the proclamation. This does not, however, preclude the
Ombudsman from being re-appointment. He/ She can be re-elected up
on the consent of the parliament.

IV. Removal from Office

Based on Article 15 of proclamation number 211/2000, the
Ombudsman can be discharged form responsibility based on the
following grounds;
I. when the Ombudsman resigns from responsibility based on his
free will;
II. When it is ascertained that he is incapable of properly discharging
his duties due to illness;

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 III. When he is found to be corrupt or to have committed other
unlawful act;
IV. Where it is ascertained that he is of manifest incompetence;
V. Up on termination of his term of office.

The Ombudsman can be removed from office based on the grounds

enumerated from II – IV only after a Special Inquiry tribunal decided by
majority vote and approved by the two-third majority vote of the
House of People’s Representatives (Article 16). The Special Inquiry
Tribunal is consisted of the Deputy Speaker of the House; the Deputy
Speaker of the House of Federation; three members to be elected by
joint agreement of opposition parties having a seats in the House and
the Vice-President of the Federal Supreme Court (Article 17).

V. Limitation of Power

We have discussed so far that the Institution of Ombudsman has the

power to receive and investigate complaints lodged against the
government organs. Yet, this power of the Ombudsman is not left
without limitation. These limitations, as described under Article 7 of the
proclamation, are;
 Decisions, given by Councils established by election, in their
legislative capacity. This directly implies, but not limited to, the
decisions rendered by both of the Federal houses; the House of
People’s Representatives and House of Federation. It may also
include the decisions of the State Councils.
 Cases pending in courts of law at any level
 Matters under investigation by the Office of the Auditor- General;
or
 Decisions given by Security Forces and units of the Defenses, in
respect of matters of national security or defense.

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 VI. Immunity

Article 35 of the proclamation states the most important legal

protection accorded for the Ombudsman which at the same time
enables him/ her to carry out her/his duty and responsibility freely and
without restriction. This the immunes the Ombudsman (appointee) and
the investigator from being detained or arrested without the
permission of the House of People’s Representative or the Chief
Ombudsman respectively, unless caught in fragrant delicto for a
serious Offence. But how far do you think this is effective in the
parliamentary form of government where the party who has acquired
majority seat establishes the government, executive branch of
government? Do you think that the majority members of the
parliament will be honest towards the Ombudsman who acted against
or expelled the maladministration of the executive under such
circumstance?

VII. Penalty

The Proclamation that established the Ombudsman Institution also has

a penalty clause which reads as follows;
1)Any person who, having received summons from the Institution,
or been called upon by it otherwise, does not appear or respond
without good cause; within the time fixed, or is not willing to
produce a document or to have same examined shall be
punishable with imprisonment from one month to six months or
with imprisonment from one month to six months or with a fine
from two hundred to one thousand Birr or with both.
2)Unless punishable with more severe penalty under the penal law,
any person who causes harm to persons who have witnessed
before the Institution, or to persons having produced a document
before it, or who without good cause, fails to take measures

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 within three months from receipt of reports, recommendations,
and suggestions of the Institution, or does not state the reasons
for such failure, shall be punishable with imprisonment from
three to five years or with a fine from six thousand to ten
thousand Birr or with both.

From this it is possible to realize that the suggestions and

recommendations given by the Ombudsman Institution are more than
mere recommendations as failure on the part of agencies to implement
them without good cause results in penalty. Apart from this, the
penalties may assist the Institution to perform its responsibilities and
duties to achieve its objectives. It may somehow force individuals to
appear as witnesses or to present documentary evidences before the
institution in addition to protecting the witnesses themselves. But the
question is how the Institution is going to enforce it? The only option
seams through bringing legal action before appropriate court of law
against individuals, who fail to appear before the institution being
properly summoned, and agencies that failed to implement
recommendations. It is for this reason that the Office is called by some
people as a ‘toothless’. It is also important to question the amount of
penalty. Do you think that the penalties are sufficient to force agencies
to implement recommendations forwarded by the Institution and
restrict government officials from taking action or vengeance against
complainants and witnesses? Please discuss on these questions with
others?

Review Question

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1. Discuss the various forms of controls exercised by the parliament
in light of the FDRE constitution?
2. What is the deference between exhaustion of local remedies and
ripeness of the case? What is the rationale behind these
prerequisites of judicial review?
3. Do you think that the FDRE constitution recognized judicial
review? Why? Why not?
4. What are the strength and weakness of the Ethiopian
Ombudsman Institution?
5. What is internal control?

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 Chapter five
Remedies against Improper
Administrative Acts
Until the nineteenth century the responsibilities of the state were few
and classical – the maintenance of public order, the conduct of foreign
affairs and the disposition of the armed forces. It is far different now a
day. In the interests of protecting the public and regulating the
economy, the state intervenes in a very considerable degree in to the
lives of its citizens. Certain types of businesses – such as banking,
employment agencies and livestock markets, may not be carried out
without a licence; and that licence may be subject to such conditions
as the licensing authority sees fit to impose. A variety of discretionary
grants, most notably in the area of industrial development, is available,
as is a wide range of benefits in the spheres of health, social welfare,
education and unemployment. The administration of these controls
and services brings many people and institutions into contact with
administrative agencies and naturally provides a fertile source of
grievances. It is the task of courts to ensure that administrative actions
and decisions are taken in accordance with law, once a case is brought
before them.

Usually individuals whose rights are substantially affected by the acts

of administrative agencies resort to court proceedings or to superior
administrative organ to obtain remedies. It is obvious that cases are
brought and litigated before these organs in order to get a remedy
which will have the effect of protecting from and redressing for
wrongful acts pending or purported by public authorities.

Remedies are practical methods of enforcing rights. Unless they are

enforced and protected, they are meaningless. Effective remedies are

225
of the utmost importance. Hence, courts and other institutions must
employ effective remedies in enforcing individual rights.

Dear distance learner, this chapter is devoted to the discussion of

possible and available remedies against improper, unfair, unjust and
other administrative wrong doings. The remedies can broadly be
divided in to administrative and judicial remedies. We will also discuss
the sources by which these remedies can be obtained.

At the end of the discussion, the student will;

 understand the basic concept of remedies, the role and the
nature they have;
 know the kind of remedies that can redress administrative faults;
 be familiar with the available judicial remedies;
 able to make the distinction between the various judicial
remedies;
 able to scrutinize whether the remedies are available in the
judicial practice of our country; and
 Know the prerequisites to claim remedies.

5.1. The Nature and Role of Remedies

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“Administrative and judicial remedy” is a legal concept with immense
practical importance in administrative disputes. The existence of
effective legal remedies in every country is the primary means by
which parties obtain certainty about their rights, and know how they
will be protected. It is the duty of the government to adopt legislative,
administrative and judicial measures to recognise and protect
individual rights and freedoms. Legal remedies are the tools for
ensuring the protection of individual prosperities, securities and rights.
An important question is what these remedies are. Remedies are of
different kind. The most important of these rights are administrative
and judicial remedies.

5.1.1. What are “Administrative and Judicial

Remedies”?

When used in law, the word “remedy” has a meaning that is very
different from its normal dictionary definition. In normal usage,
‘remedy’ means a cure or action by which problems and illnesses are
addressed. In legal language, the term “remedy” refers to the use of
laws, courts and administrative agencies to “cure” a legal problem.
Legal “cures” generally occur in several ways:

 by bringing a non-complying situation into compliance;

 by compensating (with money or other benefits) losses

suffered, including the failure to receive a legally
vested payment or other expectation;

 by issuing an order mandating required actions, or

prohibiting those that are illegal or do not comply with
legal requirements, and

 other legal prescriptions.

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Remedies are created and applied by law. In some situations, primary
legislations or subordinate laws on a particular topic may specify the
remedy, by stating a precise amount that must be paid, or action that
must be taken in a particular situation. Often, however, the law cannot
specify all of the variables in the situation. In that case, a law will
authorise particular courts, agencies or other officials to declare and
enforce a remedy – providing specific guidance (called a “legal
standard for decision-making”) to ensure that those decisions are legal
and fair. In these remedy decisions, agencies and judges sometimes
have wide discretion, but are still held to legal standards of fairness,
equity and due process of law. In nearly all countries, remedy
decisions are subject to oversight or appeal rights, which ensure that
other agencies or higher levels of government will challenge against
improper decisions and secure the rights of all parties and the “rule of
law.”

The following sections explain three critical points: (i) the difference
between “remedies” and “penalties”; (ii) the kinds of ‘remedy’ that can
be obtained in law; and the legal conditions (pre-requisites) that must
be met by a party seeking a remedy.

5.1.2. Remedies vs. penalties

Dear distance learner, it is the firm belief of the writer that you came
across with these two terms; remedies and penalties. What do you
think is the difference between them? Try to figure out in which
context you have used the two words?

The most important point about remedies is that they are different
from penalties in the objectives they aim to achieve. The purpose of a
penalty is to identify the violator and punish him in some way; whereas

228
the purpose of a remedy is to “fix” or “cure” the person/entity/etc. who
has, as a consequence of the violation, been injured or suffered a
financial loss.

The second difference between a remedy and a penalty relates to who

collects any funds that are awarded. In a penalty, any financial
amounts assessed (fines) are paid to the government of the country
(or sub-national jurisdiction) in which the action is brought. A financial
remedy, by contrast, produces an amount that is paid to the person or
persons who have suffered a loss caused by the violation. Similarly, a
penalty may result in imprisonment, a term of “public service,” loss of
permits, or other means of punishing violators. By contrast, a non-
financial remedy may include an order requiring the defendant to
comply with terms of a contract (e.g., to provide reports, give access
to records, etc.), sharing non-financial benefits (e.g., data, contacts,
etc.) and other actions that directly “cure” the situation for the
complaining party.

The third important difference is the fact that, in the context of

remedies, the claimant controls the claim. He brings the action, and
he determines whether to continue or drop it. The only way that his
claim will be dismissed is by his decision, or by the court’s conclusion
that the claim may not be prosecuted. By contrast, penalties are
assessed and prosecuted by decision of the government and its
prosecuting officers. This control has a downside, however. In most
cases, the party who controls the legal action is also the party that
pays for it. Governments do not normally take action to provide
remedies to injured parties – they create legal systems and institutions
that enable the injured party to seek a remedy.

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In some cases, the remedy-penalty distinction is blurred. For example,
in some countries, it may be possible to increase the amount of a
remedy, as a way to punish the violator. This practice is often called
“exemplary damages” or “punitive damages.” Their purpose is
basically to protect against repetition by the defendant. In the absence
of possibility of “punitive damages,” very wealthy defendants might
feel that they can commit the same actions tomorrow, so long as they
are willing to pay the remedy. The claimant (not to the government)
receives the added funds, as a sort of “bonus.” Do you think that
“punitive damage” is available in our legal system? This kind of
remedy is prevalent in the common law legal system particularly in
USA. But, in our legal system, as a principle, what is awarded as a
compensation that is equivalent to the harm the compliant has
sustained.

More rarely, in some penalty laws, the court may require the defendant
to recompense the victim, as one part of the final judgement. In many
countries, however, the rights of the victim to receive a remedy are
tried in a separate process (civil court), usually after the penal claims
have been adjudicated. And it is the later trend that exists in Ethiopian
legal system.

5.1.3. Available remedies

Another important characteristic of remedies is that they must be

created in law. Over the 3000 years, since King Solomon’s decision to
cut a baby in half as a means of resolving a dispute over parental
rights, the concept of governance has become more rigorous, and the
list of remedies that may be awarded has been very clearly defined.
Even with this limitation, there are many different types of remedies
that may be awarded. It is important to remember that all remedies
are not available in all situations. Whether a particular remedy is

230
authorised in a particular case will depend on the nature of the basic
legal right involved, and the legal and institutional source of the
remedy.

Some of the kinds of remedies that exist in different legal systems, and
may be relevant to claims based on administrative wrong doings and
discriminations include the following:

 compliance orders, (legal writs mandating or prohibiting certain

actions);

 compensation for harms caused (payment of ‘damages’ or

‘restitution’ calculated based on the value of the injury, damage
or financial loss suffered by the claimant), including ;

 “compensatory” remedies (i.e., the direct value of the

harm suffered), and

 “punitive” remedies (discussed above);

 rescission, cancellation, revision or termination of permits,

licenses or other government instruments;

 reformation or invalidation of a contract or other agreement;

 declaratory decisions (the court’s binding determination of

questions regarding rights under certain kinds of relationships.
In some countries, the rights to obtain declaratory remedies is
only available in a limited number of situations);

 contractual remedies, including, among others:

‘specific performance’ – i.e., ordering a party to perform his

responsibility under a contract;

accounting (calling on a party to provide a record of relevant

matters within his sole knowledge);

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 lien rights (in cases where the law enables the creation of a
lien against certain properties for certain purposes –
especially where the claimant gave property or services that
are incorporated into a valuable property) ;

other special rights (sometimes called ‘constructive trusts’) in

property, where the property of the claimant is later legally
exchanged for other property.i

 estoppels (an order which prevents a party from taking certain

actions in the future.)

5.2. Sources of Remedies

The existence of a particular remedy or group of remedies in the laws
of certain country does not necessarily enable individuals or
complaints to utilise those remedies to obtain redress. Thus, after
determining the existence of a legal remedy, the second step in
determining the availability of remedies is to consider the path by
which the remedy is obtained – to ask ‘Where (from what law or legal
category) is the remedy obtained?’ ‘Through what institution or system
can I seek the remedy?” and ‘What limits or restrictions apply when
seeking remedies through this path?’ The nature of the remedies
available, the processes of seeking them and many other factors
depend on the source of the remedy. Under this chapter we will
consider four basic sources of remedy – judicial institutions,
administrative bodies, direct contract mechanism and
arbitration/mediation panels. Despite their various names, each of
these sources represents a component of “administrative and judicial
remedies”.

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 [Link] available through
administrative agencies

The first general category of remedy is “administrative” remedies that

are available through government ministries, agencies and other
bodies that are not formal courts. Most countries authorise
administrative bodies to undertake some “administrative” decision
processes in response to claims.

The most common remedy for a person affected some way by

administrative action is appeal to the superior administrative authority
or administrative tribunals. For example, in our country a tax payer
who thinks that the tax authority imposed up on him excess amount of
tax can appeal to the tax appeal commission which is structurally
found under the administration. Again disciplinary committees
established under different agencies can hear complaints against
public officials. These can be good example for a kind of remedy
acquired from administrative agencies themselves.

In some countries the justification for administrative remedial

processes is that they might reduce demands and caseloads on the
formal court system. These countries might call on a claimant to
“exhaust his administrative remedies” (i.e., to attempt to resolve his
problems through administrative processes), before bringing an action
in the courts. As we have discussed under the previous chapter this
kind of prerequisite also exists in our legal system. In other countries,
the opposite justification applies – citizens do not normally want to go
through the cumbersome procedure of bringing an action to courts.
Instead, they prefer to the informally process by speaking directly to
an agency official.

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It is important to note that in both of these situations, government
agencies and officials need to have clear administrative regulatory
standards to guide their judgement. These tools enable the agency to
control and manage claims, and to ensure that fair decision will be
taken. National administrative processes are designed to help,
regulate and control both the process and the impact of personal
contacts, while providing a comfortable avenue for legitimate claims.

An administrative body’s powers to hear and resolve claims are limited

in several ways. First, only specific types of claims can be brought
before an administrative agency, and only within the specific
substantive area of the agency’s mandate. For example, conservation
agencies may act only in conservation-related matters, pollution
control agencies to pollution-related matters, etc. More importantly,
direct administrative remedies are usually tied to very particular
decisions or authorisation of the agency. For example, an agency that
has the power to grant a concession will often have the right to
adjudicate matters brought by applicants who have been denied of his
right. They may also have the right to review claims that the permit-
holder is violating the permit. But they may not have the power to
award a remedy to neighbouring landowners who are injured by the
concession-holder’s actions. Similarly, an agency that has the power
to conduct inspections and issue compound penalties will often have
the administrative authority to hear appeals related to these actions.

5.2.2. Remedies available from judicial

institutions

The term “judicial remedies” refers to the range of actions that may be
taken by a court, judge, appellate panel, magistrate or other judicial
official, (or in some cases the legal bodies of traditional communities
where authorized by national laws) when acting formally in that

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capacity. In most countries, these officials may act in a variety of
specified ways to suit the needs of the situation. For example, in very
urgent cases, a judge may often issue an emergency writ or some
other order such as “ex parte” process (that is, a hearing where the
defendant does not appear). The fairness of these procedures is
ensured by requiring that they be reviewed in a formal legal process at
a later date. Most judicial decisions, however are given through a
more complete judicial process, where both parties are present and
able to argue in their own behalf.

The powers of the judiciary are not unlimited. Each court may only act
within its “jurisdiction” – that is, it may only decide cases that (i) occur
within geographical boundaries and involve specified financial levels,
(ii) are assigned to the court’s judicial level and division, and (iii)
(sometimes) that addresses the particular kinds of law or subject
matter of the particular court’s portfolio. Most importantly, courts are
authorised to act only as regard to matters governed by law. This last
category of authority may include concepts such as negligence,
endangerment, breach of contract and other matters.

There are various kind remedies available for courts which they grant
when ultra vires or improper act or decision are made by
administrative agencies. Currently, however, many countries courts
face the problem of multiplicity of remedies available. Since there are
overlaps between these remedies, it becomes difficult to choose the
appropriate remedy in a given case. In such circumstances it is
advisable for an aggrieved party to come up with alternative remedies.
In most legal systems, however, the party seeking for remedy is not
allowed to request alternative remedies. In this connection Hayne J in
Re Refugee Review Tribunal; Ex parte Aala explains the following as a
means of demarcation between the remedies;

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 "In the case of each writ the focus of inquiry is upon the
authority, or "jurisdiction", that is given to the person or
body to whom it is sought to have the writ issue. In the
case of prohibition, what are the limits of that person's
authority to decide a question or exercise a power? In the
case of mandamus, has the person failed to exercise a
power which he or she was bound to exercise? The inquiry
is not about whether a decision which was made in
exercise of the authority was right or wrong on its merits.
It is an inquiry about the boundaries of the power
conferred. ...”

Generally, the remedies available before the courts can be classified in

to two categories; Ordinary remedies of Private law and Prerogative
remedies of Public law. Private law remedies are those remedies which
are available in suits between private individuals. Private individuals
can invoke any of the private law remedies against public authorities in
the same way as they could have done against private individuals.
There are three kinds of Private law remedies. These are Injunction,
Declaration and Action for Damage. All these remedies are available in
our legal system.

The Public law remedies, on the other hand, are remedies that not only
enforce private rights but also keep the administrative and quasi-
administrative machinery within proper control. They are effective in
the areas where private law remedies do not reach or proven
ineffective. A person would be given a private law remedy only if he
could show that the challenged act has directly and substantially
affected him. The main types of public law remedies are certiorari,
prohibition, and mandamus.

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[Link]. Private Law Remedies
A. Injunction
Injunction is one of the standard remedies of private law. It may be
defined as an ordinary judicial process that operate in personum by
which any person or authority is ordered to do or refrain from doing a
particular act which such person or authority is obliged to do or refrain
from doing under any law. The remedy is coercive but not rigid and
can be tailored to suit the circumstances of each individual case. It can
be negative or affirmative, absolute or conditional, temporary or
perpetual or it can operate immediately or at a future date. The court
in its proceedings for injunction can review all actions: judicial, quasi-
judicial, administrative, ministerial or discretionary.

Private person who is threatened by some decision of the

administration can apply for injunction; if granted the injunction would
incapacitate the administrator from acting and thereby it will wash out
the fear that administrative decision will be executed in the future.

Injunctive relief is not only negative but also positive and can compel
an authority to do something which under law he is obliged to do and
may, therefore, be very effective as a control mechanism of
administrative action.

Courts grant temporary injunction as an interim measure on an

application by the plaintiff to preserve the status quo until the case is
heard and decided. In granting temporary injunction, the court takes in
to consideration the prima fascia case of the plaintiff, nature and
extent of his injury (he must show that if he is not granted the
injunction, he would suffer irreparable injury), balance of convenience
and the existence or otherwise of the alternative remedy.

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A perpetual injunction is only granted at the conclusion of the
proceedings. It is issued after determination of the rights of the parties
to the proceedings and it may be granted for a fixed period or for a
period which can be extended through application, or for indefinite
period terminable when conditions imposed on the defendant have
been complied with.

Nonetheless, injunction may not be granted under the following

circumstances;
1. to restrain agencies or authorities from instituting or prosecuting
any judicial proceeding, civil or criminal;
2. to restrain agencies from petitioning to any legislative body;
3. to prevent the breach of contract which cannot be specifically
enforced.

Generally, injunction is an effective method of judicial control of

administrative action where the authority has acted without jurisdiction
or has abused its jurisdiction or has violated the principles of natural
justice. It is also an effective instrument in controlling the exercise of
administrative discretion. Therefore, if the administrative authority has
either not exercised its discretion at all, or it is arbitrary, or has been
exercised on extraneous considerations or for an improper purpose,
injunction would be ordered.
B. Declaration

A declaratory order or judgment is simply a court's declaration or

statement resolving a dispute as to the meaning or application of the
law to a situation in which the applicant has a sufficient interest. As its
name implies, declaration only declares what the legal position of the
parties is; it does not change the legal positions or rights of the parties.
That means, in a strictly technical sense, the order or judgment has
almost no mandatory or restraining effect at all. The orthodox view is
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that whilst declarations are often accompanied by consequential relief
ordering or restraining certain conduct, a mere declaration cannot be
executed or enforced. Theoretically, a declaration neither commands
nor restrains action.

But, it may provide a non- coercive alternative to one of the other

judicial review remedies. By granting a declaration that a decision is
invalid a court may give guidance to future decision- makers or help
individuals in order to avoid some negative consequences of the
decision. Injunction has the effect of putting forward the law based on
facts before the court. By doing so it merely declares its true legal
position.

The main characteristic of declaration is it is not targeted to anyone.

Rather it reminds the parties not to violate the right of the other part
by declaring or stating their respective rights. For example, in case of
individual possession right to property and interpretation of will, the
court investigates and declares the right of individuals before they file
any suit to the court. Hence, by making a declaratory order of the
rights of the parties the court will be able to settle the issue at a stage
before the status quo is disturbed.

According to Jennings this kind of remedy is the result of the 20 th

century democratic right. It is during this period that declaration began
to be used in the field of judicial review of administrative action. Where
the life of the individual is highly interlinked with the administration,
this kind of remedy helps to solve public problems easily. He asks,
lastly to stress on the benefit of declaration that if it is possible to
delimit administrative power within their boundary without taking
coercive measures, then why do we need to stick to the later?

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In fact if the other party or the administrative agency continued to do
the action contrary to the declaration and if it infringes the right of the
claimant, she/he has the right to apply before the court of law for
another remedy.

In many legal systems, for a party to have sufficient standing to seek

and obtain the grant of declaratory relief, he must satisfy a number of
tests which have been formulated by the courts; some of these
requirements are alternative while others are cumulative. For example
in Australia, the following prerequisite must be full filled;

a) The proceeding must involve the determination of a question

that is not abstract or hypothetical. There must be a real
question involved, and the declaratory relief must be directed to
the determination of legal controversies. The answer to the
question must produce some real consequences for the parties.
b) The applicant for declaratory relief will not have sufficient status
if relief is claimed in relation to circumstances that have not
occurred and might never happen'; or if the Court's declaration
will produce no foreseeable consequences for the parties.

c) The party seeking declaratory relief must have a real interest to

raise it.

d) Generally there must be a proper contradictory right.

These rules should in general be satisfied before the Court's discretion

is exercised in favour of granting declaratory relief.

Under the law of England more or less similar kind of requirement

exists for the court to render declaration remedy. First of all the
claimant must be entitled to a legal character or a right to any
property. Secondly, there must be some danger or detriment to such

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right or character. And lastly, plaintiff must seek further relief if he is
entitled to it. This places a restriction on the power of the courts to
grant a mere declaration.

In situations where the plaintiff is entitled to consequential relief and

does not claim it, the court will not grant declaratory relief.
Consequential relief is the relief which directly flow from the
declaration. For instance, in a suit for declaration in a case of wrongful
dismissal, the consequential relief would be reinstatement and arrears
of salary. Injunction may be a consequential relief in certain situations.
However, in England and USA courts are entitled to grant ‘mere
declaration’, and the plaintiff may reserve further relief for a separate
action.

C. Action for Damage

Public authorities are repository of powers which might pose potential

danger up on property and personal dignity of citizens. They can, for
instance, order the demolition of houses, the revocation of licences,
the detention of persons and other similar acts which can affect
individual rights and interests. These kinds of harms to individual
interests can give rise to legally sustainable claim for damage unless
the damage is inflicted pursuant to a clear statutory power.

Whenever any person sustains damage/ harm as a consequence of

contractual breach or tortuous/, she/he has the right to file suit before
court of law against such authority for compensation of damage. In this
regard the action brought against the administrative organ is similar to
the one brought against ordinary individuals. And it will be governed
by ordinary civil procedure and the relevant substantive laws of the
country.

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This remedy of damage, in addition to its contribution for enhancement
and protection of individual rights against public officials, it also
creates desirable incentive for avoiding mistakes and reckless exercise
of power by the government authorities. In other words, it serves as a
means of ensuring that powers are exercised responsibly, in good faith
and with due diligence.

The remedy can also be equally used by the public authority against
individuals who sustain damage against the property or officials of the
authority.

[Link]. Public Law Remedies

A. Certiorari

The Certiorari is a word with a Latin origin and denotes the term
‘inform’. It was essentially a royal demand for information. Using his
prerogative the King used to order that the necessary information be
provided for him. Initially, certiorari was never used to call for record of
proceedings of an Act or decisions for quashing. But gradually, the
scope of certiorari has gone under change and currently pursuant to
this remedy high or supreme courts can order lower courts and also
administrative agencies to submit records of proceedings to them for
review, and may quash them if found to be unreasonable.

Hence, certiorari is a remedy issued to call up the records of

subordinate tribunals or authorities for examination if there was an
excess of jurisdiction or some other similar vices. It is in essence a two
part remedy. The first part is an order removing the official record of
the impugned decision-maker into the superior court issuing the
certiorari order. The second part is an order quashing the impugned
decision, and the record thereof. That is, certiorari is used to wipe the
slate clean.

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The writ of certiorari proceeds from an understanding that all
subordinate courts and authorities have limited jurisdiction and power
and must be kept within the legal boundary. Based on this
understanding, certiorari can be issued to rectify faults such as

 Excess of jurisdiction, i.e. when an authority acts beyond its legal

authority
 Denial of natural justice, i.e. where the decision of an authority is
found out plagued with bias or/ and it has rendered decision with
out giving opportunity to be heard for the parties.

 where the decision is flawed by an error of law on the face of the

record.

 Abuse of jurisdiction, i.e. when the authority has jurisdiction but

abuse it

 Lack of jurisdiction, i.e. when the authority has no jurisdiction at

all

 Fraud, if the decision of the agency has been obtained through

fraud

Hence, certiorari is one of the various methods by which an ultra

vires and other illegal act of an administrative agency can be
challenged before a judicial institution. However, the court, by
granting the writ of certiorari, it will not impose its own decision. It
simply quashes the original decision, there by conferring implicit
authority to the original body for a fresh reconsideration of the
matter. It is important to note that certiorari does not compel the
decision-maker to start again. Nor can a certiorari application be
regarded as analogous to an appeal. It is merely an application for

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 judicial review of the decision, so that the superior court cannot
substitute its own decision for that which is quashed.

A certiorari order operates retrospectively, in the sense that once the

order is made the quashed decision is treated as null from the moment
it was first pronounced. Sometimes, this may give rise to great
inconvenience and injustice. In such a situation, the court might be
reluctant to grant certiorari and resort to declaration.

B. Prohibition

Prohibition is an order made by a high court or Supreme Court to

prevent subordinate court or tribunal from exceeding or continuing to
exceed the jurisdiction or infringing the rule of natural justice.
Prohibition is simply a negative or restraining order (a little bit like an
injunction). It does not quash anything. In other words, it is prohibitive
in its nature, that it is fashioned to prevent the commission of errors.
Hence, its purpose is to prevent rather than cure. The court can grant
a partial prohibition where the applicant asked for an unlimited
prohibition.

The remedy of prohibition is very similar to the order of certiorari in the

sense that both can be resorted to in seeking to prevent ultra vires
action or action in breach of natural justice pending a final decision by
a statutory agency exercising public functions. Both certiorari and
prohibition had their origins in supervision by superior courts of the
actions of subordinate courts, and later tribunals exercising judicial or
quasi-judicial functions. The main difference between certiorari and
prohibition is in the timing of the application to the court. Certiorari
cannot be resorted to until there is something to quash e.g. a decision,
or warrant. Prohibition can be granted before a time when the
decision-maker has not reached a final decision. Indeed, prohibition

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can only be used where there is still something remaining to be
prohibited. The remedies therefore largely overlap, and are commonly
sought cumulatively or in the alternative. The usual practice is to pray
for prohibition and alternatively certiorari because it may happen that
pending proceedings for prohibition the agency may hand over its
decision.

Certiorari and prohibition would both be sought, for example,

whenever a final decision requires the taking of further steps to
enforce it. Both remedies would also be sought where, although the
final decision needs no further enforcement, it is still operating to the
applicant's disadvantage.

The grounds on which prohibition will be issued is similar to that of

certiorari, and includes jurisdictional defects on natural justice, and
excess, abuse, or failure to exercise a discretionary power except in
case of error of law on the face of the record. Specifically, prohibition
lies only for actual or threatened excess of power, but is not available
in respect of non-jurisdictional error of law on the face of the record.

Prohibition can be granted to prevent further action from being taken.

It can also be granted to prevent the decision-maker from committing
that act in the first place. It can be even issued before the decision-
maker has actually asserted jurisdiction over the merits of the subject
matter. It is even possible, in principle, to issue prohibition at any time
after a matter has been entrusted to a decision-maker for
consideration or after the agency made order to stop the authority
from enforcing its decision. However, it is very rare for prohibition to
be issued at such early stage. Generally, prohibition is an effective and
fast remedy if a person does not desire any other relief except to stop
the administrative agency.

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 C. Mandamus

Mandamus is an order which commands a public body to perform a

public duty and is usually employed to compel public authorities to
exercise their jurisdiction. It is designed to enforce performance by
government bodies of their duties. In most cases mandamus is
employed, at the request of a person intended to benefit from it, to
ensure the performance of a clear statutory duty at any occasion when
the administrative agency has plainly and unlawfully refused to
undertake.

In order to grant the writ of mandamus against administrative agencies

the following conditions must be fulfilled,

(1) The existence of legally enforceable duty. Mandamus lies to

compel public official to perform a public duty which is created
either by a statute, the constitution or by some rule of common
law but unperformed. The public duty enforceable through
mandamus must also be an absolute duty. Absolute is one which
is mandatory and not discretionary. A discretionary power is not
a duty, and a statute which says "may" usually grants only
discretion. Nevertheless, mandamus is frequently issued in a
context where the statute used "may", but the repository of the
discretionary power is usually under a duty at least to exercise
his discretion where an appropriate request is made if there is
no alternative reason indicating why he should not do so.
(2) A specific demand and refusal. Before mandamus is ordered the
administrative agency must be demanded by the applicant to
perform the specific duty and the agency must be unwilling to
perform the duty. This means, it is required that the mandamus
applicant must prove that he/she demanded the respondent to
perform the relevant duty, and the respondent had actually or
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 impliedly refused. This is partly because it was felt that the
respondent should not be sued without first being clearly
warned. It seems that proof of a distinct demand is a matter of
evidence as whether the respondent actually or impliedly
refused to perform the relevant duty.

In some cases, however, specific demand for the performance of

duty may not be necessary. This comes to the picture where it
appears that the demand is unavailing, or where the respondent,
by his own conduct, has made the demand impossible, or where
a person has by inadvertence omitted to do some act which he
was under a duty to do, and the time within which he can do it
has expired.

(C) There must be a clear right to enforce the duty. Mandamus

will not be issued unless there is a right to compel the
performance of some duty. The right to enforce the duty must
subsist till the date of the petition. If the right has been lawfully
terminated before filing the petition, mandamus cannot be
issued.

Generally speaking, mandamus consists of an order to do a positive

act, rather than to desist from doing something. In relation to
mandamus the relevant duty should not be of a continuing nature.
Mandamus has no quashing effect -- if one needs to quash a decision
she should seek certiorari, or exercise a statutory appeal right.

Dear distance learner, which of these remedies are available in our

legal system? As we have discussed earlier, the private law remedies
are available in our legal system, both in the civil code and the civil
procedure code. As regard to the public law remedies, their origin and
development is closely linked to the common law legal system. As a

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result, we could not find the terms in our legal system. But in practice,
such kinds of remedies may be available in our courts.

5.3. Prerequisites for claiming remedies

One of the steps in determining whether a particular remedy will be
effective to address a particular legal issue is to consider the primary
conditions that must be met, in order for the remedies to be sought.
Since remedies are created and applied through national laws, any
person seeking for it within a country must research and comply with
the prerequisites established under that national law. There are
several essential prerequisites that must be met in order to obtain a
legal remedy on any claim. We have discussed the necessary
requirements that should be fulfilled to claim each specific remedy in
our previous discussion. But we can still pin point three prerequisites
that seem to be applicable to any application of remedy. There are

(i) a law which forms the basis of the claim;

(ii) “standing” of the claimant to bring the claim under that law;
and

(iii) jurisdiction over the defendant, his actions, or some of his

property.

(i) Legal basis for claiming a remedy

In order for a person to seek redress for harm, damage or financial loss
to a particular right, interest or property, the law must

(i) recognise the right, interest or property as worthy of remedy,

and

(ii) have a basis for determining that the actions that caused the
harm, damage or loss was wrongful or inequitable.

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If these necessary preconditions are not satisfied, courts can not award
remedy. Where the requirements fulfilled, but are unclear at law, many
courts will not award a remedy due to ambiguity. Many kinds of right
or interest have been clear in law from time immemorial. For example,
the legal rights of individuals to own land, plants and animals and to
seek redress when they are taken or used without permission or
payment has been recognised for nearly 4000 years. Hence, the courts
are generally comfortable in making decisions in such cases.

By contrast, the law has only recently recognised the distinction

between the rights to own a computer programme, and the right to
reproduce that programme and sell it commercially. These rights must
generally be spelled out carefully in national laws, and contracts often
include special provisions and clarifications, if the parties feel that the
law is not clear enough on a particular point, or if they want to apply it
in a different way.

(ii) Standing to seek redress

A second element in determining whether a particular claimant may

seek a remedy is whether he has “standing” before the court – that is,
whether the court or agency will allow a particular person to bring a
particular type of claim. For example, if one party to a contract brings
an action based on his fear that the other party will violate the contract
in the future, the question of standing arises, because there has not
been any violation of the contract yet. In most countries, a claimant
may not bring an action for violation until that violation has occurred,
except in very special circumstances. Similarly, in administrative
cases, one is not entitled to litigate his claim unless he sustained an
actual damage by the act of the administrative organ.

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Another aspect of standing is the nature of the party bringing the
action. Normally, in an action for redress of an injury or wrong, the
injured or wronged person must bring the action, or it must be brought
on his behalf. Often, it is necessary to describe the nature of the injury
or wrong, and demonstrate that a legal remedy exists that is capable
of redressing the injury.

(iii) Jurisdiction over the defendant or his property

The other important element in determining the effectiveness of a

remedy is whether it is possible to obtain legal jurisdiction over the
defendant, over the actions that form the basis of the lawsuit or over
some of his property. Hence in relation to claims related to
administrative agencies, it is important to know where to bring the
legal action and how to enforce it.

5.4. Alternative Dispute Resolution

Mechanisms as a means to resolve
administrative Disputes
In different countries, agencies now decide hundreds of thousands of
cases annually--far more than courts do. The formality, delays and
costs incurred in administrative proceedings have steadily increased,
and in some cases the inefficiency becomes similar to courts’. Many
agencies, even though they are better than courts, act pursuant to
procedures that waste litigants' time and society's resources; and the
formality can reduce chances for amicable and successful resolution of
cases. Writers argue that the recent trend towards elaborated
procedures in many cases pose transaction costs to agencies and the
public in general which substantially outweigh their benefits.

A comprehensive solution to reducing these burdens is to identify

instances where simplification is appropriate. This in fact will require a

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careful review of individual agency programs and the disputes they
involve. A more immediate step for agencies is to adopt alternative
means of dispute resolution, or to encourage regulated parties to
develop their own mechanisms to resolve disputes that would
otherwise be handled by agencies themselves. The term “alternative
dispute resolution” (ADR) encompasses several different techniques for
resolving disputes, all of which share the characteristic of being
“alternative” to a judicial trial or administrative agency contested case
proceeding. ADR includes mediation, arbitration, negotiation, mini-trial,
early case evaluation, and negotiated rule-making.

ADR methods have been employed with success in the private sector
for many years, and when used in appropriate circumstances, have
yielded decisions that are faster, cheaper, more accurate or more
acceptable, and less contentious. Although they are not limited to
commercial issues and contracts, arbitration processes are usually
applied to contract dispute, especially where the contracts or
commercial relationships are ‘international.’ Arbitration and mediation
may be used by governments, agencies, private persons, corporations,
NGOs and other types of entities. The same forces that make ADR
methods attractive to private disputants can render them useful in
cases which administrative agency decides, or to which the
government is a party. For these methods to be effective, however,
some aspects of current administrative procedure may require
modification.

The primary alternative mechanism is arbitration, which can be defined

as a form of ADR, governed by an agreement between the parties or
special rules or statutes providing for the process, in which a neutral
third-party issues a decision after a streamlined and simplified hearing.
Arbitrations may be binding or non-binding. In binding arbitration, the

251
arbitrator’s decision is enforceable in the courts and can be challenged
on limited bases, generally not related to the merits of the arbitrator’s
decision. In non-binding arbitration, the ruling by the arbitrator is only
advisory. It is intended to provide the parties with a realistic
assessment of the strengths and weaknesses of their respective
positions so that the parties may be able to reach an agreed
settlement.

It is a set of formalised rules (less strict and detailed than most

national judicial requirements, but still formal procedures) for obtaining
binding resolution of a claim or problem. The use of arbitration
enables all sides of a claim to be resolved less formally, but still result
in a final decision that is binding as between the parties. The decision
rendered by arbitrators (award) will be enforced at court of law like any
court decision. Typically arbitration is used where all of the persons
involved in the legal claim specifically consent to be bound by the
decision.

An even less formal process, mediation, is also used with increasing

frequency. Ideally, mediation operates in a non-adversarial manner.
Mediation processes are generally defined as “an attempt to reach a
common middle ground through an independent mediator as a basis
for a binding settlement.” Mediation is thus different from arbitration,
which operates like a court, where the parties are adversaries, each
seeking to be declared the “winner” in relation to the claim. Mediation
emphasises the use of dialogue among the parties in order to find a
solution, which might be described as “the best compromise.”
Mediation is often conducted in a non-binding format – that is, the
parties do not begin by agreeing to be bound to the results. Rather,
they may wait until the final compromise is achieved, if it is, and have
the option then to agree to be bound. The success of mediation

252
usually depends on the quality, abilities, and impartiality of the
mediator, and the good faith of the parties in desiring a mutually
acceptable solution.

Mediation is particularly appropriate when: the parties have an ongoing

relationship; the consequences of not resolving the dispute are bad --
expensive, time consuming, risky, or otherwise unsatisfactory; or there
is a wide range of potential resolutions to the dispute. On the contrary,
mediation is not appropriate probably when an agency needs a legal
interpretation by a judicial body to guide future actions; an agency is
seeking to establish an important precedent; or an Agency is litigating
the case for a policy reason.

ADR process may allow Parties to ‘sculpt’ their arbitration in whatever

way they can agree on. Arbitration panels and processes are usually
based on particular pre-existing rules and principles, such as the
UNCITRAL Model Law on Commercial Arbitration, and the International
Chamber of Commerce’s Rules and Guidelines on arbitration. While
some of these systems provide a platform of actual arbitrating
services, it is not necessary to use that platform in order for an
arbitration to be conducted under those rules. There are many other
sets of primary rules on arbitration, and the first task in any arbitration
(often decided in the contract or elsewhere, before the claim arises) is
to determine which rules and guidelines apply. Beyond this, however,
most arbitrations begin by setting any special “ground-rules” that the
Parties might choose. For example, the parties may agree that the
financial award may not be less than a specified minimum, or more
than a specified maximum.

There are primary limitations to arbitration and other ADR, however.

These mechanisms can only be used where both parties agree to their

253
use in most cases. In some cases, this consent may be given long
before any claim has arisen. For example, a contract may include an
‘arbitration clause’ in which the parties agree to use arbitration rather
than the courts, in the event of a future claim or controversy, relating
to the contract. If a disagreement is not contractual, the parties may
agree to submit their dispute to binding arbitration. If they do not
agree, however, then independent arbitration or mediation will
normally not be possible.

As a result of various advantages of ADR methods, now days countries

have integrated the mechanisms in the executive branch of the
government. In U.S.A., for instance, administrative agencies use ADR
mechanisms to resolve disputes in the following areas;

 Contract disputes;
 Employee grievance disputes;
 Disciplinary actions against licensees;
 Permitting requests that are protested;
 Enforcement actions; and
 Rule-making and/or policy-making involving many different
interests

And the mechanisms have legislative bases or grounds such as the

Administrative Dispute Resolution Act of 1996 and TEXAS
GOVERNMENT CODE, Chapter 2009. Particularly, Administrative
Dispute Resolution Act (“ADRA”) of 1996 set out a vision of an
Executive Branch that used ADR to: improve the decision making
process that leads to “more creative, efficient and sensible outcomes;”
and save resources.

Apart from this ADRA required federal government entities to consider

alternative means of resolving conflicts in hopes of realizing some of

254
the same benefits as private companies. Agencies are required to
appoint a specific person for training personnel in the use of ADR
techniques and assessing all programs with ADR potential. This served
the dual purpose of both normalizing ADR within the agencies, as well
as establishing specific contexts in which the new tools could be used
effectively.

The ADRA provided that voluntary, binding arbitration would be

authorized when all parties consented, subject to the safeguards of
judicial and agency review. Perhaps most importantly, the act
established a framework of confidentiality in ADR proceedings. Since
the federal government is subject to the Freedom of Information Act
(FOIA), it was important that the ADR strike the right to balance
between maintaining an open and transparent process with protecting
the parties' confidentiality.

Generally, ADR methods can also be one means of resolving disputes

arising from the administration and redressing remedies for individuals
whose right is affected by administrative bodies. In Ethiopia, it is
possible to say that these methods are not practically employed in
public sectors. Their role even in private disputes is also limited though
some of them have cultural bases in different ethnic groups of the
state. The reason behind this requires a more detail investigation and
it is beyond the scope of this course, administrative law, at this level.
Hence, it is sufficient for the student at this point to be acquainted with
the fact that ADR mechanisms also have application in resolving
administrative disputes in recent years.

Review Questions

1. Try to make distinction between public law and private law

remedies?

255
2. How do you make distinction between injunction and prohibition?
3. What is your opinion on the introduction of ADR mechanisms in
the administrative system? Do you think that the method is
suitable for administrative disputes?
4. What is certiorari? Do you think, from your experience, that it is
available in our legal system? Which kinds of remedies are you
familiar with?

List of Consulted Materials

256
1. David Pollard, Neil Parpworth and David Hughes, Constitutional
and administrative law : text and materials, (4th ed., 2007),
Oxford : Oxford University Press.
2. D.C.M. Yardley, A source book of English administrative law,
1963, London.
3. David Foulkes, Introduction to Administrative law,(4th ed., 1976),
London, Butterworth.
4. E.C.S. Wade and Godfrey Phillips, Constitutional and
Administrative law, (9th ed., 1977), London, Longman.
5. Ernest Gellhorn and Ronald M. Levin, Administrative law and
process in a nutshell( 5th ed.), 2006, St. Paul
Minn. ,Thomson/West.
6. Geoffrey, Cases and Materials on Constitutional and
Administrative Law, (2nd ed.,1976), Cambridge, Cambridge
University.
7. Hilaire Barnett, Constitutional & administrative law(6th ed.,
2006) ,London , Routledge-Cavendish.
8. J.A. Griffith and H. Street, Principles of Administrative Law, (4th
ed., 1967), London, Pitman.
9. John Alder, Constitutional and administrative law, (3rd ed.,
1999), Basingstoke, Hampshire[etc.], Macmillan.
10. L. Neville Brown, John S. Bell, French administrative law,
(5th ed., 1998), Oxford : Clarendon Press.
11. Margaret Allars, Administrative law: cases and
commentary, 1997, Sydney [etc.] : Butterworths
12. Maureen Spencer and John Spencer, Constitutional and
administrative law, (2nd ed., 2000), London, Sweet & Maxwell.
13. Michael J. Allen and Brian Thompson, Cases and materials
on constitutional and administrative law(8th ed., 2005),
Oxford, Oxford University Press.

257
14. Neil Hawke, An introduction to Administrative law, (2nd.,
1989), oxford, ESC.
15. O. Hood Phillips, Constitutional and Administrative Law, (5th
ed., 1973), London, Sweet and Maxwell.
16. P.P. Craig, Administrative law, (4th ed., 1999), London ,
Sweet & Maxwell.
17. Peter Cane, Administrative law,(4th ed., 2004), Oxford
University Press.
18. Peter Leyland and Gordon Anthony, Textbook on
administrative law, (5th ed., 2005), Oxford University Press.
19. Robert S. Lorch, Democratic Process and administrative
law, 1969, Detroit, Wayne State U.P.
20. S. H. Bailey, Cases and materials and commentary on
administrative law ,(4th ed., 2005), London, Sweet & Maxwell.
21. Stanley de Smith and Rodney Brazier, Constitutional and
administrative law, (8th ed., 1998), London [etc.], Penguin Books.
22. W. Bradley, K. D. Ewing , Constitutional and administrative
law (4th ed., 2007) Essex , Pearson Longman
23. William Wade and Christopher Forsyth, Administrative law,
(8th ed., 2000), Oxford, Oxford University Press.

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