ETHIOPIAN ADMINISTRATIVE

LAW
A Textbook

Abraham Yohanes
Endryas Tekalegn
Research Assistant: Yesuneh Aweke

February 2023
Addis Ababa, Ethiopia
Table of Contents
 [iv Table of Contents
]
Acknowledgement ....................................................................................................... xi
Preface ......................................................................................................................... xv
Table of Cases.......................................................................................................... xviii
Table of Laws ............................................................................................................ xix
CHAPTER ONE ............................................................................................. 1

INTRODUCTION TO ADMINISTRATIVE LAW .................................... 1

Chapter overview ......................................................................................................... 1

1.1 Introduction ....................................................................................................... 2
1.2 Nature and Definition of Administrative Law ............................................... 3
1.2.1 Definition of Administrative Law ...................................................................... 3
1.2.2 Principles /Values/ of Administrative Law ........................................................ 8
1.3 Emergence and development of administrative law ...................................... 9
1.3.1 Emergence ......................................................................................................... 9
1.3.2 Historical development .................................................................................... 11
1.4 Scope of administrative law ........................................................................... 12
1.4.1 General and special administrative law............................................................ 12
1.4.2 The merits/legality (Procedure/substance) distinction ..................................... 13
1.4.3 Public Law and Private Law ............................................................................ 14
1.4.4 Who is Subject to Administrative Law? .......................................................... 15
1.5 Sources of Administrative Law...................................................................... 16
1.6 General Overview of Federal Administrative Procedure Proclamation .... 18
1.6.1 Exclusions and Exceptions .............................................................................. 21
1.7 Red, Green and Amber Light Perspectives .................................................. 21
1.8 The Relationship between Constitutional Law and Administrative Law . 24
1.9 Administrative law in common law and civil law countries ........................ 25
1.9.1 Common Law: British and American Administrative Law.............................. 26
1.9.2 Civil Law: French and German Administrative Law ....................................... 27
1.9.3 Africa: Kenyan and South African Administrative Law .................................. 29
1.10 Development of Administrative Law in Ethiopia......................................... 30
1.11 Regional/State Administrative Law............................................................... 32
1.12 Summary .......................................................................................................... 34
1.13 Glossary ........................................................................................................... 34
1.14 Review Questions ............................................................................................ 35

1.15 Further reading ............................................................................................... 38

CHAPTER TWO ........................................................................................... 41

CONSTITUTIONAL FOUNDATIONS OF ADMINISTRATIVE LAW41

 [v] Table of Contents
Chapter overview ....................................................................................................... 41
2.1 Introduction ..................................................................................................... 42
2.2 The Notion and development of Rule of law ................................................ 43
2.2.1 Rule of Law as a Basis of Administrative Law ................................................ 46
2.2.2 The Rule of Law in Ethiopia ............................................................................ 50
2.3 Separation of Powers as a Limitation on Administrative Law ................... 52
2.3.1 Nature, Meaning, and Origin of the Principle .................................................. 52
2.3.2 Linking separation of powers to Administrative Law ...................................... 58
2.3.3 FDRE Constitution and Separation of Powers ................................................. 59
2.4 Due process of Law ......................................................................................... 61
2.4.1 Meaning nature and development of Due process of Law ............................... 61
2.4.2 The essential elements of Due Process of Law ................................................ 63
2.4.3 The principle of due process in Ethiopia .......................................................... 67
2.5 Basic Principles of Administrative Law /Good Governance/ ..................... 68
2.5.1 Fairness ............................................................................................................ 69
2.5.2 Reasonableness................................................................................................. 70
2.5.3 Proportionality.................................................................................................. 72
2.5.4 Duty to give reasons ......................................................................................... 73
2.5.5 Transparency .................................................................................................... 74
2.5.6 Public Participation .......................................................................................... 75
2.6 Summary ......................................................................................................... 76
2.7 Glossary ........................................................................................................... 77
2.8 Review Questions ............................................................................................ 78
2.9 Further readings ............................................................................................. 79
CHAPTER THREE....................................................................................... 81

ADMINISTRATIVE AGENCIES ............................................................... 81

Chapter overview ....................................................................................................... 81

3.1 Introduction ..................................................................................................... 82
3.2 Administrative Agency: Historical Development and Definition ............... 83
3.2.1 Historical Development.................................................................................... 83
3.3 Definition ......................................................................................................... 83

3.4 The raisons d'etre for the formation of Administrative Agencies .............. 85
3.5 Formation of Administrative Agencies ......................................................... 87
3.6 Functions of Administrative Agencies........................................................... 87
3.7 Agency Structure and Classification ............................................................. 89
3.8 Form and Nature of Power ............................................................................ 90
3.9 Discretionary Power of Administrative Agencies ........................................ 91
3.9.1 The Necessity of Delegation ............................................................................ 91
 [vi Table of Contents
] 3.9.2 Discretionary Power: Definition ...................................................................... 91
3.9.3 Arguments for and against Discretionary Power of Administrative Agencies 92
3.9.4 Express/Implied Power of Administrative Agencies ....................................... 92
3.10 The Powers of Administrative Agencies ....................................................... 93
3.10.1 Rule-making Power ..................................................................................... 93
3.10.2 Adjudicatory Power of Administration Agencies ........................................ 93
3.10.3 Administrative Power of Agencies .............................................................. 93
3.11 Summary .......................................................................................................... 95
3.12 Review Questions ............................................................................................ 95
3.13 Glossary ........................................................................................................... 96
3.14 Further Reading .............................................................................................. 96
[vii] Table of Laws
 CHAPTER ONE

INTRODUCTION TO ADMINISTRATIVE LAW

Chapter Overview

The present chapter will set the stage for the forthcoming discussions of the
main themes of administrative law. It will define the subject, then consider in
more detail what administrative law is all about, what kinds of things it is
concerned with, and what it seeks to accomplish.

After studying this chapter, you will be able to:

Define what administrative law is and is not.
Identify and distinguish the sources of administrative law in
Ethiopia.
Compare and contrast administrative law in common law and civil
law countries.
Describe the salient features of the Federal Administrative
Procedure Proclamation No. 1183/2020
Differentiate between administrative law and constitutional law

Chapter Table of Contents

1.2 Nature and Definition of Administrative Law ............................................... 3
1.2.1 Definition of Administrative Law.................................................................. 3
1.2.2 Principles /Values/ of Administrative Law .................................................... 8
1.3 Emergence and development of administrative law ...................................... 9
1.3.1 Emergence ..................................................................................................... 9
1.3.2 Historical development ................................................................................ 11
1.4 Scope of administrative law ........................................................................... 12
1.4.1 General and special administrative law ....................................................... 12
1.4.2 The merits/legality (Procedure/substance) distinction ................................. 13
1.4.3 Public Law and Private Law ........................................................................ 14
 [2] Nature and Definition of Administrative Law

1.4.4 Who is Subject to Administrative Law? ....................................................... 15

1.5 Sources of Administrative Law ..................................................................... 16
1.6 General Overview of Federal Administrative Procedure Proclamation ... 18
1.6.1 Exclusions and Exceptions........................................................................... 21
1.7 Red, Green and Amber Light Perspectives .................................................. 21
1.8 The Relationship between Constitutional Law and Administrative Law . 24
1.9 Administrative law in common law and civil law countries ....................... 25
1.9.1 Common Law: British and American Administrative Law .......................... 26
[Link] British Administrative Law.............................................................................. 26
[Link] American Administrative Law ......................................................................... 26
1.9.2 Civil Law: French and German Administrative Law ................................... 27
[Link] French administrative law ................................................................................ 27
[Link] German Administrative Law............................................................................ 28
1.9.3 Africa: Kenyan and South African Administrative Law .............................. 29
1.10 Development of Administrative Law in Ethiopia ..................................... 30
1.11 Regional/State Administrative Law........................................................... 32
1.12 Summary ...................................................................................................... 34
1.13 Glossary........................................................................................................ 34
1.14 Review Questions ........................................................................................ 35
1.15 Further reading ........................................................................................... 38

1.1 Introduction

Administrative law is a branch of public law concerned with the manner of exercise
of power by government administration. The constitution of the Federal Democratic
Republic of Ethiopia vests the highest executive power of the federal government in the
Prime Minister and the Council of Ministers. However, the day-to-day implementation
of laws is not carried out by the ‘highest executive’ but by a complex web of
administrative apparatus. Ministries, agencies, authorities, commissions, tribunals,
boards and the like run the government machinery. They are collectively known as
‘administrative agencies’. These agencies are eastablished the House of Peoples’
Representatives. They are established either directly by proclamations of the House or
through delegation by regulations of the Council of Ministers.

The establishment of these agencies serves to implement different programs and

policies. Some agencies are tasked with regulating trade, competition, labour, food, and
medicine, and other aspects of economic and social activity. Others administer social
welfare like pensions, third-party insurance, health insurance, and others, while others
are in charge of collecting tax and customs or administering government finance and
property.
 [3] Nature and Definition of Administrative Law

The source of the power of administrative agencies is a law that establishes or

constitutes that specific agency. It is commonly referred to as the ‘enabling act’, ‘parent
act’, or ‘organic act’. Such powers may be generally classified as enforcement, decision-
making (adjudicative or quasi-judicial), or rule-making (quasi-legislative powers).

Unlike other fields of law, administrative law is almost everywhere in every piece
of legislation. There is administrative law, for instance, in environmental law,
transportation law, tax law, election law, mining law, and so forth. However, the
substance of these laws is not the concern of administrative law, although, in some
situations, it might be relevant. It is procedure or process with which administrative law
is primarily concerned.

1.2 Nature and Definition of Administrative Law

In simple terms, administrative law is the law that regulates government
administration. It governs how those entrusted with public authority should exercise
their function. Its central focus is on the legal regulation of the executive branch of
government: the ‘administration’. Administrative law is about how administrative
power is constituted and controlled by law.1

Regulation of the exercise of power may be legal or political. Legal control, which
is the main focus of administrative law, includes control by the ordinary courts,
administrative tribunals, and institutions such as the Ombudsman and Human Rights
Commission. This type of control is limited to ensuring the legality of administrative
action. On the other ahnd, political control, which forms the basis of the study of
constitutional law is carried out by representatives of the people. The main focus of
such control is ‘correctness’ or whether agencies have taken the right decision. This
text will focus primarily on the legality of administrative acts. However, control of the
executive by parliament will also be examined as it is significantly relevant in
restraining the excessive exercise of power in a parliamentary government.

1.2.1 Definition of Administrative Law

Defining administrative law is a topic on which few commentators can agree,
because it ultimately depends on what they want out of administrative law.2 There is
also the issue of scope or emphasis. Either the definitions are too broad and include

1
Peter Cane et al (2018). Principles of Administrative Law. ProQuest Ebook Central: Oxford
University Press. P1
2
Mark Aronson, Matthew Groves & Greg Weeks, (2017). Judicial review of administrative action and
government liability (6th ed.). Sydney: Thomson Reuters (Professional) Australia Limited. P9-10
 [4] Nature and Definition of Administrative Law

much more than necessary, or they are too narrow and do not include all the necessary
contents.

What does ‘administrative’ mean?

The term “administrative” in the context of administrative law does not refer to
secretarial duties; it is another term for the executive power of government. The terms
“executive”, “government”, and “administration”, while they do have narrow meanings
in specific contexts, can— for this introduction to the subject— be treated as meaning
the same thing: i.e., the exercise of the administrative, governing power of the state.
This power is exercised through numerous bodies, for example, the Prime Minister,
Council of Ministers, government ministries, and other agencies accountable to the
Prime Minister, Council of Ministers, or a particular ministry.

In everyday language, the word “administration” designates numerous and diverse

realities. For instance, we speak of “administration of property” concerning a tutor of
an incapable person, property administration by a trustee or liquidator, acts of
management (administration) emanating from a general agency, and the like. All of
these and similar usage of the term signify the absence of wide discretionary powers.
Most importantly, when used in this sense, the meaning of the word is confined to the
‘private domain’, i.e., activities within the relationship sphere between individuals,
companies, and other private entities.

“Administrative” in administrative law denotes actions of public institutions

through public officials in carrying out their functions as determined by law.

Some definitions of administrative law

Some standard definitions of administrative law by jurists and scholars in the field
are listed below for comparison.

John Bell and Francois Lichère

Administrative law is the law that defines and regulates the administration.3

This definition by the above two French scholars is very broad; this could be
attributed to the peculiar characteristics of French administrative law. In France,
disputes between the individual and the administration are within the exclusive
jurisdiction of administrative courts. These courts, though independent, are part of the

3
John Bell & Francois Liche`re (2022). Contemporary French Administrative Law. Cambridge:
Cambridge University Press. P26
 [5] Nature and Definition of Administrative Law

executive rather than the judicial branch. They settle disputes arising from not only the
exercise of adjudicative and rule-making powers by the executive but also disputes
about various forms of administrative agencies, civil service law, administrative
acquisition and management of property, public works, obligations of the
administration arising from contracts and quasi-contracts and tort liability. In common
law countries, matters outside of the adjudicative and rule-making power of the
administration fall within the province of private law.

Sir Ivor Jennings

Administrative law is the law relating to administration. It determines the

organization, powers and the duties of administrative authorities.4

Sir Ivor Jennings also considers administrative law as the law applicable to the
administration. However, it differs from the French scholars’ definition above, because
it is more specific and relates administrative law only to public power. According to
I.P. Massey, the definition lays entire emphasis on the organization, power, and duties
to the exclusion of the manner of their exercise. He criticizes Jennings for focusing on
how power is granted or given, but not on how that power is exercised. He says a student
of administrative law is not concerned with how a minister is appointed, but only with
how a minister discharges his functions in relation to an individual or a group.5

The concern of administrative law is indeed the manner of exercise of power. To

determine whether there is a lawful and proper use of power, it is important to have a
closer understanding of the source and power of agencies. Even the definition by
Massey himself includes the study of the “organization, powers, and duties” of agencies
as an element of the meaning of administrative law.

A.V. Dicey

[…] [P]ortion of national legal system determining legal status and liabilities
of all state officials, defining rights and liabilities of private individuals in
dealing with public officials & specifying procedure by which such rights &
liabilities are enforced.6

4
Quoted in M.P. Jain (2011). M P Jain Principles of Administrative Law. LexisNexis. P7
5
I.P. Massey Administrative Law (9th ed.). Delhi: Eastern Book Company. P3
6
Ibid
 [6] Nature and Definition of Administrative Law

Massey criticizes Dicey’s formulation because it mainly concentrates on judicial

remedies against state officials. The definition excludes the study of every other aspect
of administrative law.

K.C. Davis

[…] [L]aw concerning powers & procedures of administrative agencies

including the law governing judicial review of administrative action.7

K.C. Davis represents the American approach towards administrative law. Control
of power through codified procedures governing rule-making and adjudication,
including a strong role for the courts through a judicial review, is the cornerstone of
American Administrative Law.

However, Massey’s criticism is untenable. The list of control mechanisms cited by

Massey is not within the proper scope of administrative law. This is true not only in
common law countries but also to some extent in civil law countries where most
activities of the administration fall within the domain of administrative law.

Stephen G. Breyer

Most broadly, administrative law might be defined as the legal control of

government. More narrowly, administrative law consists of those legal
principles that define the authority and structure of administrative agencies,
specify the procedures agencies must follow, determine the validity of
administrative decisions, and define the role of reviewing courts and other
organs of government in relation to administrative agencies.8

A formal definition of administrative law is that it is a branch of public law

concerned with the composition, procedures, powers, duties, rights and
liabilities of the various organs of government that are engaged in
administering public policies.9

7
Ibid
8
Stephen G. Breyer et al (2017). Administrative Law and Regulatory Policy: Problems, Text, and
Cases (8th ed.). New York: Wolters Kluwer. P3
9
A W Bradley, K D Ewing & C J S Knight (2015). Constitutional and administrative law (16th ed.).
Pearson Education. P569
 [7] Nature and Definition of Administrative Law

This definition could be considered a working definition as it encompasses the

most important aspects of administrative law. In general, a definition of administrative
law should include the following salient features of the law.

 It is a branch of public law

As a branch of public law, its concern is limited to the exercise of public power.
Private activities of agencies like contract, property, and tort are subject to private law.10

 It deals with the organization, powers, and duties of agencies

The study of organization and power is necessary to understand the extent and
characteristics of administrative actions, determine applicable procedures and apply
proper control mechanisms.

 It regulates the procedures applicable in the exercise of power

One of the main elements of the study of administrative law is the procedure by
which an official action is reached. If the means (procedure) is untrustworthy, the end
cannot be just. Decision-making and rule-making procedures determine fairness,
openness, and accountability in public administration. Failure to follow required
procedures renders an administrative decision invalid.

 It governs review of administrative action by courts or other

institutions

Exercise of power could be reviewed mainly by the ordinary courts, administrative

courts (tribunals), internal review mechanisms (within the administration), and
institutions like the Ombudsman and Human Rights Commission. Through its
constitutional supervisory role, the House of Peoples’ Representatives also plays an
important role. Lastly, the House of Federation can review administrative actions and
even decisions of courts for compliance with the constitution.

10
French administrative law which encompasses tort liability of public officials, contract and
administrative contract concluded by agencies within its scope, is an exception in this regard.
 [8] Nature and Definition of Administrative Law

 Provides remedies for those affected by administrative action

The primary aim of administrative law is to ensure administrative justice in

government administration. This entails affording remedies to those whose rights and
interests are adversely affected by actions taken by the administration.

1.2.2 Principles (Values) of Administrative Law

Administrative law ensures that an element of fairness operates in public decision-
making. This is not only to the advantage of the individual citizen. It is also to the
advantage of the government itself.11

Administrative law embodies positive values and principles to facilitate good

administrative practice or good government. Generally, three values underpin the
administrative law system:12

 Administrative justice at its core, is a philosophy that in administrative

decision-making, the rights and interests of individuals should be
appropriately safeguarded;
 Executive accountability is the aim of ensuring that those who exercise the
executive (and coercive) powers of the state can be called on to explain and
justify how they have gone about that task; and,
 Good administration is the principle that administrative decision-making
should conform to universally accepted standards, such as rationality, fairness,
consistency, and transparency.13

The core principles of administrative law vary from country to country. However,
considering common themes across each jurisdiction, it is founded on five fundamental
principles:

1. Principle of legality: decision-makers who exercise powers granted by statute

(“administrators”) must stay within their legal authority or jurisdiction.

2. Principle of reasonableness: administrators must reasonably exercise their

judgment when they have discretion in making decisions.

11
David Stott & Alexandra Felix (1997). Principles of Administrative Law. Great Britain: Cavendish
Publishing P1
12
Robin Creyke et al (2019). Control of Government Action: Text, Cases & Commentary. LexisNexis
Butterworths. P23
13
Ibid
 [9] Emergence and development of administrative law

3. Principle of fairness: administrators must follow fair procedures when making

decisions that affect a person’s rights or interests. This principle is known as
“procedural fairness” or, in some cases, “natural justice.” In common law
countries (the equivalent term in the US is “due process of law”,) procedural
fairness protects the rights and interests of persons affected by a decision by
providing for:

a. the right of persons to be given notice of intended decisions that may affect
them and the right to be heard before such decisions are put into effect; and,

b. the right to an impartial decision-maker.

4. Principle of delegation: to be valid, subordinate (or delegated) legislation must

conform to the statute under which it is passed. In other words, regulations and
by-laws must be consistent with the objectives of their enabling statutes and
the scope of the regulatory powers set out in those statutes.

6. Principle of judicial review: if decision-makers violate any of the above

principles, the superior courts have power to intervene to rectify this failure.
This intervention is called “judicial review.” It is an important mechanism for
preventing abuse of executive power because it is available even when the
legislature has made no provision for an appeal of executive action.

1.3 Emergence and development of administrative law

1.3.1 Emergence
The most notable and important development of the modern state is the rapid
growth of administrative law. The growth in the 20th century can be considered a
radical change. Administrative law is a by-product of the unprecedented growth of the
administrative process in terms of quantity and quality. The rise of the administrative
process parallels the development of the state into a large and complex machinery of
administration. This was characterized by the proliferation of numerous agencies
created to address various perceived problems that need attention from the government.

The primary factor that led to the growth of agencies was the shift in the state’s
role. The shift by itself was a response to the widespread problems and challenges of
the 19th century that continued until the second world war.14

14
M.P. Jain supra note 4 P1
 [10] Emergence and development of administrative law

The rapid growth of administrative law in modern times is the direct result of the
tremendous growth of administrative powers and functions. Its growth is also to be
attributed to a change in philosophy regarding the role and function of the state. The
ruling political gospel of the nineteenth century was laissez-faire which manifested
itself in the theories of individualism, individual enterprise, and self-help. This
philosophy envisaged minimum government control, maximum free enterprise, and
contractual freedom. The state was characterized as the "law and order" state, and its
role was conceived to be negative as its interest extended primarily to a few activities
only, such as defending the country from external aggression, maintaining law and
order within the country, dispensing justice to its subjects, and collecting taxes to
finance these activities. It was an era of free enterprise and minimum governmental
responsibility and functions. The management of social and economic life was not
regarded as the government’s responsibility.15

But the laissez-faire doctrine resulted in human misery. It became apparent that the
bargaining position of every person in the society was not equal, and uncontrolled
contractual freedom led to exploitation of the weaker by the stronger; an example is the
exploitation of labour by the management in industries. On the one hand, there existed
slums, unhealthy and dangerous conditions of work, child labour, widespread poverty,
and exploitation of the masses, but, on the other hand, the concentration of wealth in a
few hands became the order of the day. It became apparent that the state should take an
active interest in ameliorating the conditions of the poor. This act in the interests of
social justice; it assumed a "positive" role.16

This approach led to the demise of the laissez-faire approach, and the growth of
the new political dogma of “collectivism”, favouring state intervention in and social
control and regulation of the individual enterprise. The state started to act in the interests
of social justice; it assumed a "positive" role. Over time, out of the dogma of
collectivism, emerged the concept of the "social welfare state," which emphasizes the
state’s role as a vehicle of socio-economic regeneration and welfare of the people.

These positive roles mainly include regulation of economic activities, delivery of

goods and services, and provision of infrastructure. This led to the creation of agencies
tasked with specific missions. If one takes regulation, the government regulates food,
water, agriculture, medicine, construction, land, property, education, so on and so forth.
Almost every aspect of economic activity is regulated. Regulatory activity is technical
by its nature. Therefore, a specialized agency staffed with experts must be established
for every specific area of regulation. You can think of how many agencies are to be
established if the government is to regulate major economic activities effectively. The

15
Ibid
16
Ibid
 [11] Emergence and development of administrative law

delivery of goods and services and provision of infrastructure also will result in the
establishment of a massive number of agencies.17

So, how is this proliferation of new agencies related to the emergence of

administrative law? It has to do with their extensive powers and the risks they pose to
the citizen. Unless mechanisms are ‘invented’ to check for abuse of powers, erosion of
liberty and freedom of the individual will follow. One of the striking and, to some
extent, shocking reality of the “agency phenomena” is that they were endowed with the
powers of all three branches of government. They combined judicial powers (power to
make administrative decisions), legislative powers (rule-making power), and executive
powers (inspection, testing, investigation, search and seizure, and more). One
commentator described them as “mini-government”. They were also labelled as the “4th
branch of government”.

As Lord Acton famously observed, “Power corrupts, and absolute power corrupts
absolutely.” With the expansion of agencies combining vast legislative and judicial
powers, a parallel set of rules, principles, procedures, and practices of control
mechanism begun to emerge and develop. Administrative law was born as a response
to the increase in government power.

The inadequacy of the traditional courts to respond to this new challenge has led
to the growth of the administrative adjudicatory process. Furthermore, the traditional
administration of justice is technical, expensive, and dilatory. It is unworkable where
the subject matter is dynamic and requires not only adjudication but also development,
as in the cases of industrial disputes. Therefore, in cases where the need is the fair
disposition and not merely disposition on file, the administrative adjudicatory process
seems to be the only answer.18

1.3.2 Historical development

One of the striking facts about administrative law is that, unlike other fields of law,
it is a recent phenomenon. Its recognition as a distinct field of study dates back to the
early half of the 20th century. In the US, until the 1930s, there was no separate and
explicit body of administrative law and no courses on administrative law as such in law
schools.

This is by no means to suggest that there was no law governing the relationship
between the government and the citizen. However, it was treated as part of the
constitutional law except for France and some civil law countries. In the US, for

17
Ibid
18
I.P. Massey Administrative Law (9th ed.). Delhi: Eastern Book Company. P11
 [12] Emergence and development of administrative law

instance, the first casebook on administrative law was authored by Felix Frankfurter of
Harvard Law School, later Supreme Court Justice, in 1932. In Australia, Wolfgang
Friedmann produced the first Australian book on administrative law in 1950. In France,
administrative law scholarship is credited to Maurice Hauriou, who produced a book
on administrative law in 1892 and again in 1925. After four years, in 1929, Dr F.J. Port
published the first book bearing the title "Administrative Law" in England.

The establishment of the Interstate Commerce Act (ICC) in 1887 is commonly

considered to mark the birth of administrative law in the US. In England, administrative
law dates back to the 16th century. Despite its long history, it gained recognition as a
distinct body of law in England around the middle of the 20th century.

1.4 Scope of administrative law

Administrative law is a dynamic subject and is still evolving. One of the topics
inviting debate among scholars in administrative law and other fields like public
administration and politics is its proper scope. The two main issues in this debate relate
to basic questions:

a) To what aspect of administrative action is administrative law concerned?

b) To which institutions are the rules, principles, and control mechanisms of

administrative law applicable?

The first question deals with the distinction between merit versus legality or
procedure versus substance of administrative action. The second is concerned with the
type of bodies subject to the rules of administrative law.

1.4.1 General and special administrative law

Before addressing the first question, it is important to clarify the distinction

between general and special (particular) administrative law. In the field of public
administration, there are specific pieces of legislation that govern particular areas of
administration. For instance, social security law (pension) determines who is entitled,
the entitlement conditions, the amount of contribution from employers and employees,
and so on. Similarly, there is environmental, election, tax, media, education, and even
food laws. All these laws govern the relationship between the citizen and government
 [13] Scope of administrative law

and are within public law. From an administrative law standpoint, they are referred to
as “special administrative law”.19

While studying administrative law, we are not concerned about the specific area of
public law. Administrative law as a field of study is rather concerned with the general
rules, principles, and practices applicable across all areas of “special administrative
law”. Due to its generality, it is sometimes called “general administrative law”.
Administrative law is about general rules common to all to special administrative laws.
It is concerned not with what action should or should not be taken under the special
regulatory laws but with how that action should be taken. In other words, administrative
law is about procedure and process, not substance.

Lastly, even though general and special administrative laws are distinct fields of
study, when a dispute arises in the court, in most cases it may involve both areas of law.
In the above question, the main issue is whether the ten signatories are incompetent or
not. This is mainly an election law issue. However, it also raises administrative law
issue, because it is also a question of the power of the Board and the procedures used
to make the determination. If it is determined that the ten persons could not be regarded
as “incompetent”, then it is beyond the power of the Board to disqualify the candidate.
If the Board used improper procedures, for example, denying a review demanded by
the candidate, the decision would also be invalid.

1.4.2 The merits/legality (Procedure/substance) distinction

The starting point for any consideration of administrative law is the realization that
it is a species of adjective [procedural] law rather than substantive law. Its focus is not
on what decision is reached, but on how it is reached.20 It is mainly concerned with the
legal control of the exercise of power. Therefore, the issue it addresses is whether
administrative action is taken legally. Whether the resulting action is “correct” is
beyond its scope.

When courts exercise a supervisory role on the power of agencies through judicial
review, the merits of the agency’s actions are not an issue. It matters not, for example,
that the agency appears to have made the ‘right’ or the ‘preferred’ decision.

19
Dacian C. Dragos & Bogdana Neamtu, Alternative Dispute Resolution in European Administrative
Law (Springer-Verlag Berlin Heidelberg, 2014) P58
20
Jeffrey Barnes & Roger Douglas (2015). Administrative Law: Q&A LexisNexis (3rd ed.) P3
 [14] Scope of administrative law

Example

Merit vs. process:

Art. 7/8/ of Apiculture Resources Development and Protection Council of

Ministers Regulation No. 372/2016 states:

Any sub-standard beekeeping equipment identified during inspection shall be kept

aside from providing services.

Let’s assume certain equipment belonging to a person engaged in beekeeping

business was set aside by the Regional Agricultural Bureau inspector after
examining it. Here, administrative law is interested in ensuring that the action was
taken following the prescribed procedure, and it was taken by an official authorized
to do so. If on the other hand, the decision was made based on an expert assessment
of technical specification of the particular equipment and other quality factors set
in the standard, without regard to the specific condition of the individual
beekeeper’s equipment it might be “wrong” (or not “wise”) to set aside the
equipment, but it is up to the Bureau (decision-maker) to make his “wrong” right.

1.4.3 Public Law and Private Law

Administrative law (like constitutional law and, perhaps, criminal law and
international law) is a branch of ‘public law’. Public law is contrasted with ‘private
law’. In rough terms, private law is concerned primarily with relations between citizens;
public law deals primarily with the public sector and with relations between citizens
and the bureaucracy.

An administrative agency is established by law with powers, rights, duties, and

objectives. Upon its creation or establishment, the agency attains legal personality. As
a person, some of its functions are public and others private. For instance, owning
property and entering into a contract are private acts governed by the law of contract
and property law. On the other hand, issuing, renewing, and revoking a license; taking
administrative measures; issuing directives; and conducting inspections and
investigations are all ‘public’.

Public law is concerned with public institutions and their relations with private
citizens and with the performance of public functions, while private law is concerned
 [15] Scope of administrative law

with private activities and relations between private citizens (both individuals and
corporations).21

Administrative law, as a branch of public law, is concerned only with the public
activities of agencies. Those actions falling under the private domain of agencies are
outside the scope of administrative law.

1.4.4 Who is Subject to Administrative Law?

If public bodies (government organs) could be governed by private law when they
perform private acts, should individuals and private entities be subjected to
administrative law when they exercise public functions? To answer this question, one
needs to first answer another question: is it possible that individuals and private entities
may exercise public functions?

Private entities like companies and associations may perform public functions
through contract or delegation. In Australia, judicial review may extend to some bodies
which are basically private, but whose powers and functions may have a public aspect
or attract the public interest.22

Administrative law governs the exercise of powers granted by law. Thus, any
individual or body exercising a power granted by laws enacted by the House of Peoples’
Representatives or Council of Ministers is subject to the principles of administrative
law. This means that in addition to government entities, organizations such as
universities, hospitals, and self-regulating professions that are established or given
powers by statute must follow the principles of administrative law when exercising
those powers.

The principles of administrative law should also regulate exercises of power by

public enterprises. In Ethiopia, most of these enterprises were initially established as
administrative agencies. Similarly, when part of the administration is transferred to
private entities through contract, the principles of administrative law should apply
because the main question should be what power is being exercised, not who is the
holder of the power. It would be unacceptable for a public body to diminish the public
law remedies available to citizens by engaging in the contracting out process. The only
question remaining is which body will be liable in public law— the body contracting
out or the body accepting the contract. It is suggested that the body contracting out

21
Peter Cane (2011). Administrative Law. Canberra: Oxford University Press p4
22
Mark Robinson (Ed.). (2009). Administrative law: the laws of Australia. Sydney: Thomson Reuters.
P130
 [16] Scope of administrative law

remains so liable; it should not be allowed to escape pre-existing liability simply by

engaging in the contracting out process.

1.5 Sources of Administrative Law

The various sources of administrative law are arranged in a hierarchy such that
norms lower in the hierarchy must be consistent with higher norms.23

FDRE Constitution

The Constitution of the Federal Democratic Republic of Ethiopia is a significant

source of law in the administrative law context. The principles of the rule of law and
separation of powers embodied in the FDRE’s Constitution greatly shape the nature and
scope of administrative law. The Constitution also lays down the basic principles of
good governance. Art. 12/1/ states that the conduct of affairs of government shall be
transparent. Sub-art. 2 of the same article makes public officials accountable for their
failure in official duties. It also guarantees public participation of the citizen through
their elected representative and direct participation.

Enabling Acts and Other Laws

The source of administrative law also includes statutes— proclamations directed

at a particular agency or to all agencies. The primary source among such statutes is what
is referred to as an agency’s ‘‘organic statute’’ or ‘‘enabling act,’’ the statute that
establishes an agency and prescribes its mission, duties, and powers. Organic statutes
and other statutes directed at a particular agency are essential sources of law regarding
the procedural and substantive constraints on that agency’s actions and should be
closely consulted whenever issues arise concerning the legality of agency action.

In addition to the organic acts, other aspects of administrative law are to be found
in specific legislation. Most of the specific laws provide avenues to ordinary courts by
way of appeal or direct action. Additionally, specific laws determine the jurisdiction,
structure, organization, and, to some extent, administrative tribunals’ procedural rules.
These are important for understanding the tribunal system in Ethiopia.

Often, enabling statutes contain generalized or more detailed provisions than the
Administrative Procedure Proclamation.24 Due to the rules of interpretation, which

23
Peter Cane, supra note 21 P17
24
Federal Administrative Procedure Proclamation No. 1183-2019 (hereinafter to be referred to as
“FAPP”)
 [17] Sources of Administrative Law

affords priority to special laws over general laws, rules and procedure in the specific
proclamations will prevail in case of contradiction.

Generally, applicable federal statutes that govern agency action but are not directed
at any particular agency or set of agencies are also important sources of administrative
law. Freedom of the Mass Media and Access to Information Proclamation No.
590/2008, The Ethiopian Institution of the Ombudsman Establishment (Amendment)
Proclamation No. 1142/2019, and The Ethiopian Human Rights Commission
Establishment Proclamation No. 211/2000, including amendment Proclamation No.
1224/2019, are major laws applicable across all agencies. They are relevant for
Ethiopian administrative law as they set transparency and accountability mechanisms
in government administration.

Administrative Procedure Proclamation

The fourth main source of administrative law is the Federal Administrative

Procedure Proclamation (here after referred to as “FAPP”), a federal statute that became
law on April 7th, 2020. FAPP is the fundamental law governing the procedures that
agencies must use to perform their functions. It governs decision-making and rule-
making procedure by Federal Agencies (including Addis Ababa and Dire Dawa
Administration) and judicial review of administrative action by the Federal High Court.

Decisions of House of Federations

The House of Federations is emerging as an important ‘judicial’ organ passing

decisions on the constitutionality of court decisions, including the constitutionality of
administrative actions. Per the FDRE Constitution, the House’s mandate is limited to
matters related to the constitutionality of laws. Surprisingly, it has never ruled on the
constitutionality of a single proclamation. On the contrary, it is exercising broader
jurisdiction over the constitutionality of administrative decisions and even decisions of
the cassation bench of the Federal Supreme Court. Most of these decisions are relevant
sources due to the close relationship between constitutional and administrative law.

Cassation Decisions

Interpretations of law by the cassation Bench of the Federal Supreme Court are
binding in all Federal and Regional Courts.25 Despite challenges of consistency and
transparency of the bench’s decisions, such binding interpretations are critical to get
insight into the actual practice of judicial control of government administration.

25
Art. 10/2/ & 26 of Federal Courts Proclamation No. 1234/2021
 [18] Sources of Administrative Law

Regulations and Directives

Regulations and directives are laws made by the Council of Ministers and
administrative agencies, respectively, based on the delegation of legislative power by
the House of Peoples’ Representatives. Administrative law is generally not concerned
with the content of these regulations and directives; however, their content might be
relevant in two instances. First, in determining the scope of delegation, the content of
the rules must be compared to the enabling act. Secondly, some regulations and
directives provide substantive rules of administrative law. It is in the second sense that
they become important sources of administrative law.

1.6 General Overview of Federal Administrative Procedure

Proclamation
On July 1st, 2018, the Ethiopian Government, as part of its legal and justice sector
reform initiative, established the Legal and Justice Affairs Advisory Council (LJAC)
under the Ministry of Justice (renamed at that time “Federal Attorney General”). The
Council had 13 members, all legal professionals, drawn from academia, legal practice,
and civil society organizations. The reform mainly concentrated on amending existing
laws such as election, media, anti-terrorism, and civil society laws. The administrative
procedure was an exception in that a new draft proclamation was to be prepared “from
scratch”.

The Council had organized working groups for each specific area of law. After ten
months of research, discussion, and deliberation, the administrative procedure working
group submitted the final draft “Federal Administrative Procedure Proclamation”. The
draft became law on April 7th, 2020.26

The Federal Administrative Procedure Proclamation No. 1183/2020 contains five

sections and 60 provisions. Section one defines important terms. It is short and limited
to the statutory definition of three terms. These are ‘administrative agency’, ‘directive’,
and ‘administrative decision’.

SCOPE OF FEDERAL ADMINISTRATIVE PROCEDURE PROCLAMATION

Now, we will explore the institutions and activities falling under the newly enacted
administrative procedure proclamation. This proclamation governs significant aspects
of government administration and control by the courts. These are:

26
This is the date of signature by the FDRE President. The effective date begins on the date of
publication, which is disclosed on the Federal Negarit Gazette.
 [19] General Overview of Federal Administrative Procedure Proclamation

 Decision-making or adjudication procedure

 Adopting directives or rule-making procedure
 Judicial review

The questions we will try to answer are:

 To which type of institutions or organs of government do the above rules

apply?
 What types of functions are subject to the administrative procedure of the
proclamation?

Federal Administrative Procedure Proclamation No. 1183/2020

Art. 2. Definition

In this Proclamation, unless the context requires otherwise:

1/ “Administrative Agency” means an Executive Organ of the Federal

Democratic Republic of Ethiopia duly established by law and includes the
Executive Organs of City Administrations accountable to the Federal
Government;

Art. 3. Scope of Application

1/ This Proclamation is applicable in all Administrative Agencies except

Prosecutor and Police when they perform duties administered by the Criminal
Procedure Law and Military and Security Institutions.

2/ Notwithstanding what is provided under Sub-article (1) of this Article, issuance

of directives and decisions making relating to regulatory and service provision
functions of these Institutions shall be subject to the requirements of this
Proclamation.

3/ Without prejudice to Article 11 of this Proclamation, National Bank is not duty

bound to implement obligations provided under Article 7-10 of this Proclamation
when it enacts directives concerning exchange rate, interest rate of the country
and other similar secret issues.

Administrative Agency

Institutions subject to administrative law’s rules, principles, and procedures are

usually identified with different nomenclature. ‘Administrative agency’ (or simply
‘agency’), public bodies, administrative organs, or government agencies are some
 [20] General Overview of Federal Administrative Procedure Proclamation

common names. All of these may be used interchangeably. Since the usage adopted by
the proclamation is “administrative agency”, we will stick to this nomenclature
throughout this textbook.

The Administrative Procedure Proclamation applies only to administrative

agencies of the Federal Government. This means agencies established by Regional
Governments are outside of its scope. State administrative law falls within the province
of each regional government.27 However, as Addis Ababa and Dire Dawa
administrations lack the status of ‘Regional Government’, agencies within these
administrations are required to comply with adjudicatory and legislative procedures laid
down by the proclamation. Additionally, their actions are subject to review by the
Federal High Court.28

So, what exactly are agencies? From the definition provided by the proclamation,
there are two elements helpful in identifying these entities. These are:

 Agencies are part of the executive organ of government.

 Agencies are duly established by law

The first aspect of the definition tells us that the proclamation (and administrative
law) is concerned with the executive branch of government. The highest executive
powers of the Federal Government are vested in the Prime Minister and the Council of
Ministers.29 The source of powers of the Prime Minister and the Council of Ministers
is the Constitution itself, and both are not directly involved in the day-to-day
administration of government. The direct target of the proclamation is the
administrative organs below the highest executive.

As per the second element of the definition, the source of powers and duties,
including the legal personality of agencies, is a law enacted by the legislature.
Therefore, a proclamation determining the organization, structure, power, duty, and
objectives, usually called a “parent act” or organic act, is necessary for a certain entity
to exist as an administrative agency. Agencies could also be created by a regulation of
the Council of Ministers provided the House of Peoples’ Representatives delegates such
power.

27
See Chapter 1 of this textbook “Regional/State Administrative Law” for more on regional/state
administrative law
28
Judicial review jurisdiction of directives and administrative decisions is given to the Federal High
Court. See art. 49/1/ of Federal Administrative Procedure Proclamation No. 1183/2020
29
Art. 72/1/ of Constitution of the Federal Democratic Republic of Ethiopia Proclamation No. 1/1999
 [21] Red, Green, and Amber Light Perspectives

In general, being part of or within the executive organ and establishment by law
are the only requirements to be considered ‘administrative agency’.

1.6.1 Exclusions and Exceptions

The fact that an administrative agency is an executive organ of government

established by law normally excludes those government organs which do not exercise
executive power. Therefore, the legislative and judicial branches of government are
outside the scope of administrative procedure proclamation. The President, House of
Peoples’ Representatives, House of Federations, The Federal Supreme Court, Federal
High Court, and Federal First Instance Court, including administrative offices
established within these institutions such as the Secretariat of House of Peoples’
Representatives, Secretariat of House of Federations, Office of the President, and
administrative departments of courts are all outside of the definition of an
administrative agency.

In addition to the exclusion, the proclamation exempts agencies exercising

military, security, police, and prosecutorial functions. Agencies with such functions
include: Ministry of Defence, Ministry of Justice, Federal Police Commission, and
National Intelligence and Security Services. A combined reading of sub-art. 1 and 2 of
art. 3 of the proclamation makes it clear that those government organs are excluded
from the scope of application of the proclamation. However, the exclusion is not
absolute. The issuance of directives and decisions making relating to regulatory and
service provision functions of these organs are still subject to the proclamation.

1.7 Red, Green, and Amber Light Perspectives

The notion of traffic lights— green and red lights— was first employed by two
English law professors, Harlow and Rawlings, in 1948. In their book ‘Law and
Administration’,30 they discussed two alternative approaches towards the objectives of
administrative law. Harlow and Rawlings analyzed various theories of administrative
law in terms of the theory of the state that underlies it. Minimalist theories of the state
translated into red light theories of administrative law, designed to provide maximum
protectection to the individual from the intrusion of the state. Greenlight theories are
more interested in facilitating state action, not limiting it.

30
Carol Harlow & Richard Rawlings, (2009) Law and Administration (3rd ed.). Cambridge University
Press. 22
 [22] Red, Green, and Amber Light Perspectives

Red Light Theory

The red light theorists generally advocate for a more interventionist approach by
the courts to the review of administrative decisions. This approach advocates a vital
role for the courts in reviewing administrative decisions. It considers that the function
of law is to control the excesses of the state. As Harlow and Rawlings put it:

Behind the formalist tradition, we can often discern a preference for a

minimalist state. It is not surprising, therefore, to find many authors believing
that the primary function of administrative law should be to control any excess
of state power and subject it to legal, and more especially judicial, control. It
is this conception of administrative law that we have called 'red light theory'.
The 'green light' theorist, while also acknowledging the need for and
importance of judicial review and the rule of law, tends to place more
emphasis on non-judicial.

Green Light Theory

The green light approach, on the other hand, considers that the function of
administrative law is to facilitate the operations of the state. It is based on the rationale
that bureaucrats will function most efficiently in the absence of intervention. The
administration should aim to help simplify the procedures and enhance efficiency.
Harlow and Rawlings said:

Because they see their own function as the resolution of disputes and because
they see the administrative function from the outside, lawyers traditionally
emphasize external control through adjudication. To the lawyer, law is the
policeman; it operates as an external control, often retrospectively. But a main
concern of green light writers is to minimize the influence of the courts.
Courts, with their legalistic values, were seen as obstacles to progress, and
the control which they exercise as unrepresentative and undemocratic. To
emphasize this crucial point in green light theory, decision-making by an elite
judiciary imbued with a legalistic, rights-based ideology and eccentric vision
of the 'public interest' ... was never a plausible counter to authoritarianism.

Amber Light Theory

It should be noted that a decision-maker may take a green light approach in some
instances but a red light in others. In many instances, it will be a combination of the
two. Considering this fact, a third theory— amber light theory— emerged. The amber
light approach tries to bring a point of consensus between the two theories. It maintains
that administrative law should apply the positive elements of both the theories.
 [23] Red, Green, and Amber Light Perspectives

In summary, the following are the main differences between red, green, and amber
light theories.

Red Light

 See the function of administrative law as 'to control the excesses of the state'.
 Emphasize the role of the law as controlling government in the interests of
individual rights and the protection of autonomy.
 See government subject to and constrained by law.
 Concerned with using the law to control and check government activity and to
hold the government accountable
 Generally advocates a more interventionist approach by the courts to review
administrative decisions.

Green Light

 The function of administrative law is to facilitate the operations of the state rather
than curb them.
 Favours the collective goals of society, which they believe are best carried out by
the government through democratic mechanisms. Therefore, they see the role of
law as being primarily to enable the government to effectively achieve important
public goals, such as education, health care, and social welfare.
 Sees the law more as a tool of effective and efficient government.
 Emphasizes restraint by the courts to the review of administrative decisions.
 Concerned with the role of law in achieving government purposes and getting the
business of government done.
 While also acknowledging the need for and importance of judicial review and the
rule of law, it tends to place more emphasis on non-judicial remedies and
procedures (for example, political processes, internal and external administrative
review, consultative decision-making, and the like.).

Amber Light

 Law is both discrete from and superior to politics.

 The state can successfully be limited by law, although that law should adequately
allow the administration to enjoy a somewhat controlled degree of discretionary
authority.
 The best way of controlling the state is through the judicial articulation and
enforcement of broad principles of legality.
 The goal of this theory is to safeguard a particular vision of human rights.
 [24] Red, Green, and Amber Light Perspectives

1.8 The Relationship Between Constitutional Law and

Administrative Law
Administrative law is closely related to constitutional law since it deals with the
powers of government and the remedies that are open to someone who is affected by
the decisions of public officials. Not surprisingly, there is no sharp demarcation
between constitutional and administrative law. A rough distinction might be that
constitutional law is mainly concerned with the structure of the primary organs of
government, whereas administrative law is concerned with the role of agencies in
providing services and in regulating the activities of citizens.31

Professor S.A. de Smith said:32

I regard constitutional law and administrative law as occupying distinct

provinces, but also a substantial area of common ground.

The common ground between these two laws is that they are both branches of
public law and deal with the functions of government. Both regulate the relationships
between the state and the individual.

Constitutional concepts and doctrines are arguably the most important set of
concepts underlying and supporting administrative law. The concepts include the rule
of law, the separation of powers, representative government and democracy, ministerial
responsibility, and federalism.

Despite the close similarity, there are notable differences between the two. The
following summarises the main difference between constitutional and administrative
law.

Difference Between Administrative and Constitutional Law

(1) One difference is related to scope. Whereas constitutional law deals with the whole
system of government or all the branches of government, administrative law is
limited to the exercise of power by the executive branch of government and
different agencies of administration created by the legislature.

31
A W Bradley, K D Ewing & C J S Knight (2015). Constitutional and administrative law (16th ed.).
Pearson Education. P10
32
Michael Taggart (1997). The Province of Administrative Law. In M. TAGGART (Ed.), The
Province of Administrative Law. Hart Publishing. P1
 [25] Administrative Law in Common Law and Civil Law Countries

(2) The basic principles and provisions of a constitution are in most cases written and
easily identifiable as there is a single codified constitutional text. On the contrary,
the principles, rules and procedures of administrative law are not clearly known
because they are not codified like the constitution.
(3) The sources of constitutional law are mostly found in constitutional conventions,
constitutional texts, international conventions, statutes, and judicial decisions. The
sources of administrative law, on the other hand, are statutes (mainly laws
providing administrative procedure, judicial review, tribunals, and establishment
act (parent act) of agencies), delegated legislation (in Ethiopia, regulations and
directives), judicial decisions, and agencies’ rules, procedure, and practice.

(4) Regarding hierarchy, constitutional law is the supreme and the highest law of the
land, whereas administrative law is subordinate to constitutional law.

1.9 Administrative Law in Common Law and Civil Law

Countries
Administrative law belongs to those fields of law where national peculiarity is most
pronounced. The subject is ‘domestic’ in its nature. It is ‘domestic’ because the values,
principles, and approaches to administrative law in a given country are highly
influenced by the prevailing constitutional, political, economic, and cultural realities of
that country. The constitutional principle of separation of power in France led to the
creation of an administrative court system separate and independent from the ordinary
courts.

For the English jurists and constitutional theorists, especially for A.V Dicey, the
French dual court system was against the principle of the rule of law. For Dicey, one of
the elements of the rule of law is that ordinary courts who solve disputes between
private parties are also the ultimate arbiter of disputes between the government and the
citizen. For this reason and other differences in political culture between the two
countries, administrative law in England developed along different lines to that of its
French counterpart. In short, one can easily discern peculiar characteristics of
administrative law within any given country.

However, the central theme that runs through administrative law is the same
everywhere. That theme is the legal control of governmental powers. The primary
purpose of administrative law is to keep the powers of the government within their legal
bounds to protect the citizen against their abuse.

Administrative law systems aim at achieving an optimum balance between an

effective administration and realization of social interests on the one hand and the
safeguarding of individual interests on the other.
 [26] Administrative Law in Common Law and Civil Law Countries

The aim of seeing social welfare being administered effectively along with the
maintenance and observance of the rule of law is equally dear to both common law and
civil law legal systems. In the pursuit of that aim, the two systems have also employed
the same technique of judicial process through which, in the course of time, they have
developed a body of law that guides the administration and regulates the judicial control
of administrative powers. 33

1.9.1 Common Law: British and American Administrative Law

[Link] British Administrative Law
British administrative law is the prototype of one of the main systems of
administrative law in the modern world. It has influenced all nations which were once
part of the British Empire and some of its features have spilled over into other traditions
as well.

Its most notable characteristics are at least three in number:

1. The emphasis on the regular courts as the ultimate arbiters of administrative

legality;
2. A strong and comprehensive emphasis on the protection of individuals; and
3. All of this within the orbit of the overriding principle of parliamentary
supremacy.34

[Link] American Administrative Law

Due to British influence, administrative law in America initially received less than
an enthusiastic reception among practitioners.

An important characteristic the American system of administrative law shares with

the British and Anglican law world is the single court system in adjudicating
administrative disputes. Challenges to the actions of agencies are brought before the
ordinary courts. Unlike France, judicial review of administrative action falls within the
jurisdiction of the ordinary courts.

33
Mahendra P. Singh (1985). German Administrative Law: In Common Law Perspective. Springer P1
34
H. B. Jacobini (1991). An introduction to comparative administrative law. New York: Oceana
Publications. P75
 [27] Administrative Law in Common Law and Civil Law Countries

1.9.2 Civil Law: French and German Administrative Law

[Link] French Administrative Law

The very concept of administrative law in France differs from what it is in common
law countries. In France, administrative law includes not merely delegated legislation
and adjudication, but also many other areas which we would, in general, place under
the rubric of public administration.

In France, like the common law, the general rules and principles of French
administrative law, especially those relating to judicial review, are laid down not in
codes or legislation, but in the case law of the courts, systematized by legal
scholarship.35

While administrative law in a common law jurisdiction confines itself to dealing

with delegation of legislative and judicial powers to the administration, the procedural
aspects of the exercise of those powers, and the judicial control of administrative action,
administrative law in France includes these as well as various forms of administrative
agencies, civil service law, administrative acquisition and management of property,
public works, obligations of the administration arising from contracts and quasi-
contracts, and tort liability.36

The most apparent characteristic of French administrative law is the dual court
system for civil and administrative matters.37 The most striking fact is that the
administrative courts are part of the executive, not the judiciary.

A second feature of French administrative law is its relative simplicity. The injured
person brings their action directly to one of the administrative courts, and they seek
annulment or damages. Moreover, in practice, only a small aspect of governmental
activity is immune today from administrative litigation, known as “acts of

35
John Bell & Francois Liche`re (2022). Contemporary French Administrative Law. Cambridge:
Cambridge University Press. P4
36
Minattur, J. (1974). FRENCH ADMINISTRATIVE LAW. Journal of the Indian Law Institute, 16(3), 364–
376. [Link]
37
dual court system refers to the existence of two parallel court systems both independent of each
other. Ethiopian court system at the federal and regional level is unitary, meaning we have only one
court system. At the federal level, we have Federal First Instance, High Court and Federal Supreme
Court. Such structure also exists at the Regional level Regional First Instance (Woreda) Courts, High
(Zonal) Courts and Regional Supreme Court. However, in France there exists a court structure for civil
cases and another separate court structure for administrative disputes.
 [28] Administrative Law in Common Law and Civil Law Countries

government,” that is, certain aspects of foreign affairs and the relationship between the
Parliament and the government.38

The French believe that the relations between the citizen and the state should be
governed by different principles from those governing relations between citizensThe
state is acting in the public interest and so is given special powers to achieve that
objective, whereas private citizens act in their interest and have less justification for
interfering with the interests of others.39

French Administrative Law (droit administratif) is largely the creation of the

administrative judges, who were, for the first 150 years, just the members of the Conseil
d’Etat. They shaped the subject not only through judgments but also through the
arguments of the Ccommissaire du gouvernement (now called the rapporteur public)
and through the textbooks and scholarly articles which individual members wrote
extrajudicially.40

[Link] German Administrative Law

The most distinctive feature of German administrative law is a separate system of
courts to settle administrative disputes. This resembles the French system, but there are
material differences between the two, the most outstanding of which is that while the
administrative tribunals in France, including the Conseil d'Etat, are part of the executive
branch of the state, the administrative courts in Germany are fully integrated with the
judiciary.41 In Germany, administrative courts are set up within the judiciary but they
are independent and separate from ordinary civil courts. To be clear, the administrative
courts are not benches or divisions within the ordinary courts, just like those in Ethiopia
at the Federal level. On the contrary, they have their independent existence.

Administrative law is assigned to the category of public law in Germany. The

distinction has important practical significance. The public law disputes, with some
exceptions, are assigned to the jurisdiction of the administrative courts, while the
private law disputes are assigned to the ordinary courts; the Law of Administrative
Procedure applies only to the public law administrative activities of the authorities.42

38
H. B. Jacobini (1991). An introduction to comparative administrative law. New York: Oceana
Publications. P114
39
Bell, supra note 35 P5
40
Bell, supra note 35 P6
41
Mahendra P. Singh, supra note 33 P3
42
ibid
 [29] Administrative Law in Common Law and Civil Law Countries

In German law, as in common law, the executive has no inherent legislative

powers. The executive can exercise only such legislative powers as are either
specifically delegated to it by the legislature or are exceptionally given to it for a very
limited purpose and as a transitional measure under the Basic Law. In this respect,
German law differs from French law, which recognizes an inherent power of the
executive to legislate through regulations (règlements) concerning all matters not
specifically assigned to the legislature. German law goes even further than the common
law in restraining the legislature from delegating its legislative functions to the
executive.

For example, in England, the Parliament may, at least in theory, delegate its
legislative powers to the executive to any extent whatsoever. In countries like the
United States, India, or Australia, the constitution is silent on the question of delegation,
but the courts have evolved some limitations that the legislature cannot cross in
delegating its legislative functions to the executive. However, the limits are so obscure
that they seem as good as non-existent. The German Basic Law, unlike the constitution
of the United States or Australia, does not specifically vest all the legislative powers in
the legislature, but it lays down express limits within which the legislature can delegate
its legislative functions to the executive.43

Another peculiarity of German law is that it draws a clear distinction between the
delegation of legislative powers to the executive or the government departments and
delegation to the autonomous bodies. It also uses specific expressions for the two kinds
of delegated legislation. The legislation made by the executive is called the ordinances
(Rechtsverordnungen or Verordnungen), while the legislation made by the autonomous
bodies is called the bylaws (Satzungen). The two kinds of delegations and the exercise
of legislative powers under them by the delegate are governed by different legal and
constitutional norms and, therefore, they require to be treated separately.44

1.9.3 Africa: Kenyan and South African Administrative Law

The principles of administrative law in Kenya descended from the Great Britain
Government during its colonial period. In the late 19th and early 20th centuries, English
laws and policy practices were brought to Kenya. When Kenya became independent in
1963, it wrote its first constitution.

After almost fifty years, a new constitution was written in 2010. By that time, the
1963 constitution had been amended over thirty times.

43
Ibid P19
44
ibid
 [30] Administrative Law in Common Law and Civil Law Countries

The 2010 Kenyan Constitution includes provisions for administrative law

throughout, most notably in its Bill of Rights, where the 47th section refers to fair
administrative action. It states that “every person has the right to administrative action
that is expeditious efficient, lawful, reasonable, and procedurally fair.” The right to
know why an administrative decision was made is protected by the Fair Administrative
Action Act and the actions of administrative tribunals that review their agency's actions
when they are appealed.

The wording of article 47 of Kenya's Constitution of 2010 is almost identical to

that of section 33, rights to just administrative action in South Africa's 1996
Constitution. Like section 33, article 47 mandates the enactment of legislation to give
effect to these constitutional rights, and Kenya's Fair Administrative Action Act 4 of
2015 was strongly influenced by the equivalent South African legislationthe Promotion
of Administrative Justice Act 3 of 2000 (PAJA).45

1.10 Development of Administrative Law in Ethiopia

The establishment of Ministers in 1918 was the first attempt to structure centralized
power into autonomous administration. Menelik II established the first Cabinet of
Ministers in I907-8 to help administrate the Empire. These Ministers’ powers, duties,
and responsibilities were defined in detail by a decree. Following their appointment,
substantive laws to be enforced by each Minister were enacted. The Ministries were:

1. Ministry of Justice
2. Ministry of Interior
3. Ministry of Foreign Affairs
4. Ministry of Finance and Commerce
5. Ministry of Agriculture and Public Works
6. Ministry of War
7. Ministry of Palace
8. Ministry of Pen
In 1911 a Ministry for Posts and Telegraphs was added, and Foreign Affairs
became a separate ministry.

As a result of a public outcry against malpractices in the Ministries, the first batch
of ministers was dismissed en masse in 1917. The ministerial system was reorganized
and extended by Order No. I of 1943 and other orders that followed to amend it. Twelve
ministries were established, and a council of ministers was set up. The functions of the
ministries and their relationships were defined. Each ministry is headed by a minister

Cora Hoexter “Administrative Justice in Kenya: Learning from South Africa’s Mistakes” Journal of
45

African Law (2018)

 [31] Development of Administrative Law in Ethiopia

responsible for the direction and supervision of his department. He is given a right to
prepare and submit draft laws necessary for the proper administration of his ministry,
to issue regulations per the law for carrying out the work of his ministry, and to transact
state business approved by the Emperor and the Council.46

The Council of Ministers set up by this law was composed of the ministers and
vice-ministers, the latter having no voting right except in the absence of the former. At
first, the Council was presided over by the Emperor and, in his absence, by a minister
nominated by him. Later, the Prime Minister appointed by the Emperor presided.47

The 1931 constitution gave the first written and systematized framework to the
work of re-unification and centralization begun by Emperor Tewodros. One of the
peculiar features of this constitution in light of the development of administrative law
is that it envisage the establishment of independent administrative court in parallel with
the ordinary court. Art. 54 of the constitution states:

Special courts shall judge all matters relating to administrative affairs, which
are withdrawn from the jurisdiction of other courts.

The fact that the drafters had the German Administrative Court system while
drafting the provision can be deduced from constitutional source documents that
influenced the Constitution. The 1931 Imperial Constitution is, to some extent,
influenced by the 1889 Meiji Constitution of Imperial Japan. The Japanese imperial
rulers were keen to avoid ordinary courts entertaining administrative disputes. While
studying for a suitable judicial model where administrative cases could be adjudicated
outside of the ordinary courts, they came up with the German administrative court
system and modelled their own based on the German system.48

The 1931 Constitution is also the first to recognize citizens’ right to petition the
Government. Art. 28 states that all Ethiopian subjects have the right to present to the
Government petitions in legal form. Even though the precise content of the provision is
not clear, it undoubtedly aimed at redressing the mal-administration of abuse of rights
against the citizen. Despite its inclusion in the Constitution, no law was issued
providing the mechanisms of complaint handling system within the administration.

46
Bereket Habte Selassie. “Constitutional Development in Ethiopia.” Journal of African Law, vol. 10,
no. 2, 1966, pp. 74–91. JSTOR, [Link] Accessed 31 Oct. 2022.
47
Ibid
48
John Ohnesorge "Administrative law in East Asia: a comparative historical analysis." In
Comparative Administrative Law, edited by Susan Rose-Ackermanl and Peter L. Lindseth (Edward
Elgar Publishing Limited, 2010) P83
 [32] Development of Administrative Law in Ethiopia

The 1955 revised Constitution goes one step further in this case. Under Article 62,
it is stated that any resident of the Empire may bring suit in the Courts of Ethiopia
against the Government, or any ministry, department, agency, or instrumentality
thereof, for wrongful acts resulting in substantial damage. This Article means immunity
will no longer serve as a defence to government organs against their liability towards
citizens. However, it came with some exemptions and limitations. First, the Emperor
remained immune from any suit by the citizen. Second, action by the citizen may entail
sanction if the court finds the suit was “malicious or unfounded.” Therefore, the
Constitution made it risky to sue the government organs as losing the case created a
right of action for the Government against such residents.

The 1987 Constitution of the People’s Democratic Republic of Ethiopia (here after
referred to as “PDRE Constitution”) under Art. 52 clearly recognized the right of
Ethiopians to submit complaints against government organs and mass organizations or
officials thereof. It dictated that such complaints must be examined and responses given
to complainants.

A similar but more comprehensive right is also to be found under the FDRE
Constitution. Access to justice is now Art. 37, one of the core principles of the
Constitution. It has wide-ranging meanings and applications. In the administrative law
context, it includes the availability of simple and accessible avenues to challenge the
legality of government action through judicial review and procedural fairness in the
administrative decision-making process.

In 1967, during the reign of Haile Selassie, a draft law on administrative procedure
was prepared. Over three decades later, another draft, more detailed and comprehensive
in content, was prepared around 2003. However, the draft dissipated inexplicably,
failing to arrive at the intended recipient, the Council Minister. Again in 2008, there
was a second attempt, but it also failed.

1.11 Regional/State Administrative Law

Ethiopia is a federal state. State power is shared between the federal Government
and the regional states. The total number of regions established by the Constitution is
eleven. On November 23rd, 2019, Sidama Regional State became the tenth regional
state. Another region—South West Ethiopia Peoples' Region— joined the federation
on November 23rd, 2021, bringing the total number of regional states to eleven. There
are also two city administrations— Addis Ababa and Dire Dawa City administrations—
with relative autonomy of self-administration but still accountable to the federal
Government. The former is the capital city of the federal Government and expressly
recognized by the Constitution. However, Dire Dawa is a de facto administration
nowhere mentioned or recognized by the Constitution.
 [33] Regional/State Administrative Law

Both federal and regional governments are organized into three branches of
government— legislative, executive, and judicial. The highest executive powers of the
Federal Government are vested in the Prime Minister and the Council of Ministers.49
On the other hand, the state administration constitutes the highest organ of executive
power at the regional level.50

The three branches of government imply that the relationship between the state and
the individual will be created both at the federal and regional levels. The parallel
relationship gives rise to the existence of two distinct bodies of law: Federal
Administrative Law and Regional Administrative Law. Because states are not federal
government agencies, federal administrative law, including Federal Administrative
Procedure Proclamation No. 1183/2019, does not apply to regional states or state
agencies. This remains true even when states are carrying out federal functions. Instead,
state agencies are governed by state administrative law. Moreover, as is true of other
areas of the law (such as family law), each state’s administrative law is particular to
that state.

There may be areas of interaction between the Federal and regional administrative
laws. The first route is through the judiciary. According to Article 80/1/ and /2/ of the
FDRE Constitution, the Federal Supreme Court shall have the highest and final judicial
power over federal matters. Similarly, State Supreme Courts shall have the highest and
final judicial power over state matters. The Federal Supreme Court has the power of
cassation over any final court decision containing a basic error of law.51 “Any final
court decision” has been interpreted as inclusive of a State Supreme Court's cassation
decision. The power of the federal cassation over state cassation enables it to supervise
the exercise of executive power by state agencies indirectly. When the action of state
agencies is challenged in state tribunals or ordinary courts, the state cassation will
ultimately review the action based on that state’s administrative law. If challenged
before the federal cassation, this final decision will, to some extent, influence the
development of administrative law in the respective state. Surely, the federal cassation
will rely on administrative law principles, rules and procedures of each state in
exercising its cassation power. However, the development of administrative law at the
federal level may influence how the federal bench interprets state law.

The second route of interaction is when states or state agencies are delegated power
of legislation by a federal proclamation. When a state agency issues a directive based
on delegation by the House of Peoples’ Representatives, it raises questions about how

49
Art. 72/1/ of Constitution of the Federal Democratic Republic of Ethiopia Proclamation No. 1/1999
50
Art. 50/6/ of Constitution of the Federal Democratic Republic of Ethiopia Proclamation No. 1/1999
51
Article 80/3/ of Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No.
1/1995
 [34] Regional/State Administrative Law

the directive must be issued and whether control mechanisms of exercise of power laid
down by the Federal Administrative Law should apply. It is submitted that when state
agencies make laws based on the delegation of power by the federal government, they
should comply with the procedural requirements of the Federal Administrative
Proclamation. Similarly, judicial review of directives and decisions emanating from
such delegation should be available to any interested party or individuals affected by
the state agency’s action.

1.12 Summary
Administrative law is part of the legal framework for public administration. Public
administration is the day-to-day implementation of public policy and public programs
in areas as diverse as immigration, social welfare, defence, economic regulation, and
the like. Constitutional law is another element of the legal framework of public
administration. However, there is some difference between two because constitutional
law deals with all branches of government, whereas administrative law is limited to the
executive branch only. Administrative law (like constitutional law and, perhaps,
criminal law and international law) is a branch of ‘public law’. This means its rules and
procedures are not applicable if the issue involved is a matter of private law.

1.13 Glossary
Agency action: refers to the totality of actions of an agency such as sanctions,
measures, decisions including refusing to give decisions and issuance of directives
that affect the rights and interests of individuals.

Administrative agency: a government organ not within the judiciary and executive
that is granted powers decision-making and rule-making

Common law: the body of law created by judges or the system of law that is derived
from judicial decisions instead of from statutes

Civil law/Continental law: a codified system of law that places the main emphasis on
a set of core principles that are codified into a single referrable system serving as
the primary source of law.

General administrative law: consists of rules, principles, concepts, and legal

institutions applicable to all spheres of administrative activity

Judicial Review: Review of legality of administrative action by ordinary courts

Legality: The state or quality of being in conformity with the law; within the scope
power granted by law; lawfulness.
 [35] Review Questions

Merit review: reconsidering the facts, law and policy aspects of the administrative
decision by an administrative tribunal and determine what is the correct and
preferable decision.

Parent act (also called organic act): A law that establishes or constitutes that an
administrative agency

Private law: A branch of the law that deals with the relations between individuals or
institutions, rather than relations between these and the state.

Public law: A branch of the law that deals with the relationships between private
individuals or private organizations and public bodies

Special (Particular) administrative law: consists of the substantive law applicable to

specific spheres of administrative activities, such as building law, transport law,
police law, welfare law, water law, education law, and the like.

1.14 Review Questions

1) Modern government is an administrative government. Explain

2) Administrative law is interpenetrated with regulatory law. How?

3) Do the requirements of the federal FAPP apply to agencies of regional states and
Addis Ababa and Dire Dawa administrations?

4) Identify and discuss three sources of administrative law.

5) Explain, with examples, the difference between public and private law.

6) Why is there disagreement on the definition of administrative law?

7) Explain

Administrative law is about the control of power. In the theory of the modern
state, power derives ultimately from the people. The control of it is therefore,
in the end, for the benefit of the people.

8) Explain how administrative law became its own area of law. What role did the
development of agencies play in the growth and development of administrative law?

8) Laws can be divided into several categories: Into which of these categories does
administrative law fit, and why?
 [36] Review Questions

a) Common law and statute law,

b) Public law and private law,
c) Statute law and subordinate legislation, and
d) Substantive law and procedural law.

9) What are two goals that administrative law tries to achieve?

10) Discuss whether the following statement is true or false.

Administrative law consists of the substantive law applicable to specific

spheres of administrative activities, such as building law, transport law, police
law, welfare law, water law, education law, and the like.

11) The following is a list of powers and duties of Trade Competition and Consumers
Protection Authority established by Trade Competition and Consumers Protection
Proclamation No. 813/2013.

After going through the list, identify which functions fall under public law and private
law domain.

Art. 30. Powers and Duties of the Authority

Without prejudice to other provisions of this Proclamation, the Authority shall

have the powers and duties to:

1/ take appropriate measures to increase market transparency;

2/ take appropriate measures to develop public awareness on the provisions of this

Proclamation and its implementation;

3/ receive, and decide on, merger notifications in accordance with the provisions
of this Proclamation;

4/ undertake study and research in connection with trade competition and consumer
protection, and initiate policy proposals;

5/ regularly announce to consumers goods banned by the government or at the

international level from being consumed or sold;

6/ organize various education and training forums and provide education and
training in order to enhance the awareness of consumers;
 [37] Review Questions

7/ ban advertisements of goods and services which are inconsistent with health and
safety requirements or with this Proclamation when it is aware of them by itself or
when it is reported to it by any person, and order the issuance of announcements
of corrections for such advertisements, in the methods the advertisements were
made at the expense of the person in whose interest they were made;

8/ protect consumers from unfair practices of business persons;

9/ organize judicial organs with jurisdiction on issues of trade competition and

consumers protection in accordance with the provisions of this Proclamation;

10/ establish procedure enable to resolve disputes raised between traders or

consumers and traders by mutual agreement and negotiation;

11/ provide support to industrial self-regulation in order to enable various industrial

sectors regulate anti-competitive and unfair trade practices;

12/ provide secretarial and other services to the Federal Trade Competition and
Consumers Protection Appellate Tribunal established under Article 33 of this
Proclamation;

13/ give necessary advice and support to the concerned regional organs with
respect to consumer protection;

14/ establish relationship and cooperation with domestic and foreign institutions
having similar objectives.

12) Are the acts of the Prime Minister and the Council of Ministers immune from the
principles of administrative law? What remedies are available when they act beyond
the scope of their power?

13) List at least two activities of the federal or regional governments of Ethiopia that
protect or support the citizen.

14) According to the Ethiopian Electoral, Political Parties Registration, and Election’s
Code of Conduct /Amendment/ Proclamation No. 1235/2021 to amend Proclamation
No. 1162/2019, an independent candidate shall secure the endorsement signature of not
less than 2,500 signatures from the constituency’s residents whose voting rights have
not been restricted by law or a court decision or due to insanity. If the Electoral Board
of Ethiopia decides that a candidate is not eligible because ten of the persons who signed
are insane, is it an election law or administrative law issue?
 [38] Review Questions

15) The FDRE Prime minister established a task force comprising different
representatives of federal agencies to tackle the rising cost of living and illegal activities
by the business community that contributed to unjustified increase in price of goods. Is
this task force within the scope of the Administrative Procedure Proclamation? State
your reason/s/.

1.15 Further reading

Australian administrative law

 Roger Douglas & Margaret Hyland, FOCUS Administrative Law

(LexisNexis Butterworths 2015) P1-18

Canadian administrative law

 Colleen M Flood & Paul Daly (Eds.) Administrative Law in Context

(Emond Montgomery Publications Limited 2022) PP5-11
 Robin Creyke et al, Control of Government Action: Text, Cases &
Commentary (LexisNexis Butterworths, 2019) PP3-11

US administrative law

 Keith Werhan, Principles of Administrative Law (Thomson West, 2008)

P1-6
 William F. Funk & Richard H. Seamon, Administrative Law (5th ed. New
York: Wolters Kluwer, 2016) PP1-20

French Administrative Law

 John Bell & Francois Lichère, Contemporary French Administrative Law

(Cambridge University Press, 2022)

British Administrative Law

 Peter Leyland Gordon Anthony, Textbook on Administrative Law (7th

edn: Oxford University Press, 2013) PP1-16
 William Wade & Christopher Forsyth, Administrative Law (New York:
Oxford University Press, 2009) PP3-10
 [39] Further reading

Indian Administrative Law

 Yashomati Gosh, Textbook on Administrative Law (LexisNexis, 2015)

PP1-15

German Administrative Law

 Mahendra P. Singh, German Administrative Law: In Common Law

Perspective (Springer, 1985) PP1-16
[40] Further reading
 CHAPTER TWO

CONSTITUTIONAL FOUNDATIONS OF ADMINISTRATIVE LAW

Chapter Overview

This chapter explains the basic constitutional principles such as the rule of law,
separation of powers, and due process of law and their nexus with
administrative law. The chapter will also explore the basic principles of good
governance in public administration.

After studying this chapter, you will be able to:

Define the rule of law as a constitutional principle of administrative law
Distinguish procedural and substantive elements of the rule of law
Discuss how the rule of law is the foundational basis of administrative law
Define separation of powers
Identify the application of the separation of powers under the FDRE
Constitution
Know how the concept and development of due process
Explain the application of due process in administrative law

Chapter Table of Contents

2.1 Introduction ..................................................................................................... 42

2.2 The Notion and development of Rule of law................................................. 43
2.2.1 Rule of Law as a Basis of Administrative Law............................................ 46
[Link] Procedural Elements ........................................................................................47
[Link] Substantive Elements .......................................................................................49
2.2.2 The Rule of Law in Ethiopia ....................................................................... 50
2.3 Separation of Powers as a Limitation on Administrative Law ................... 52
2.3.1 Nature, Meaning, and Origin of the Principle .............................................. 52
 [42] The Notion and Development of the Rule of law

2.3.2 Linking separation of powers to Administrative Law .................................. 58

2.3.3 FDRE Constitution and Separation of Powers ............................................. 59
2.4 Due process of Law ......................................................................................... 61
2.4.1 Meaning nature and development of Due process of Law ........................... 61
2.4.2 The essential elements of Due Process of Law ............................................ 63
[Link] Substantive Due Process .................................................................................. 64
[Link] Procedural Due Process ................................................................................... 64
2.4.3 The principle of due process in Ethiopia ...................................................... 67
2.5 Basic Principles of Administrative Law /Good Governance/ ..................... 68
2.5.1 Fairness ........................................................................................................ 69
2.5.2 Reasonableness ............................................................................................ 70
2.5.3 Proportionality ............................................................................................. 72
2.5.4 Duty to give reasons..................................................................................... 73
2.5.5 Transparency ................................................................................................ 74
2.5.6 Public Participation ...................................................................................... 75
2.6 Summary ......................................................................................................... 76
2.7 Glossary ........................................................................................................... 77
2.8 Review Questions ............................................................................................ 78
2.9 Further readings ............................................................................................. 79

2.1 Introduction

“Strongly committed, in full and free exercise of our right to self-

determination, to building a political community founded on the rule of law
and capable of ensuring a lasting peace, guaranteeing a democratic order,
and advancing our economic and social development (emphasis added)” 1

These days, theoretical expressions “rule of law”, “separation of powers”, and “due
process of law” is prevalent, and a prestigious formula of Western constitutional and
political foundations. Political writers and journalists, particularly, increasingly use the
phrase “rule of law” to present it as an institutional characteristic which helps define
Western civilization and its contrasts with other civilizations such as Islamic and
Chinese Confucian. Due process of law, though a notion often interlinked with the
United States of America2, its concept as a constitutional principle of Administrative
law is also enshrined in different laws and Administrative jurisprudences.

This chapter, therefore, reconnoitres the relationship between the rule of law,
separation of powers, and due process of law with administrative law and their

1
Preamble, Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No. 1/1995,
(1995).
2
Bird, F. W. (1913). The Evolution of Due Process of Law in the Decisions of the United States
Supreme Court. Columbia Law Review, 13(1), 37-50. P. 37
 [43] The Notion and Development of the Rule of law

implications in the application of administrative law and attainment of administrative

justice. These principles form part of administrative law, although their origin and
development are linked to constitutional law.

In so doing, the chapter begins by presenting the meaning of the rule of law and
examining the origin and development of the concept. It then discusses the principal
ideals that the concept imparts to modern democratic societies, including the rule of law
as a base and foundation of administrative law. This can be capitalized through the
notions of procedural and substantive elements of the rule of law.

While part of the executive, administrative agencies accumulate all the powers of
the three organs of government (lawmaking, implementation, and adjudication). If the
principle of the separation of powers is strictly applied3, none of such agencies should
have the powers of the other organs (legislation and adjudication). Thus, the second
part of the chapter tries to see the relationship between administrative law and
separation of powers and the impact of the separation of power as a limitation on the
scope of administrative law and agency practice.

The third part of the chapter explains the due process of law as a constitutional
foundation of administrative law. Due process of law is a means or a tool by which
private rights to life, liberty, and property are safeguarded from the arbitrary actions of
administrative agencies. This explanation will examine substantive and procedural due
process of law. While substantive due process is concerned with unreasonable and
arbitrary legislative enactments, procedural due process recognizes that procedural due
process is required to deprive a person’s right to life, liberty, or property.

The final part discusses the basic principles of public administration. While
different principles are developed in public administration and good governance, this
chapter explores the basic elements of both and their relationship to administrative law.

2.2 The Notion and Development of the Rule of law

For many centuries it has been recognized that the possession of coercive powers
by the state that may be used to oppress individuals presents a fundamental problem
both for legal and political theory. Since the days of the Greek philosophers, there has

3
Though this is something to be explained in detail in the upcoming discussion, the principle of
Separation of powers refers to the division of government responsibilities into distinct branches to limit
any one branch from exercising the core functions of another. The intent is to prevent the concentration
of power of one branch of government on the other and provide for checks and balances.
 [44] The Notion and Development of the Rule of law

been recourse to the notion of law as a primary means of subjecting governmental

power to control.4

The rule of law is used as shorthand for the English and American system, while
the German and Dutch regarded it as rechtsstaat, and its French conception état de
droit.5 However, the term "rule of law" is believed to be derived from the French phrase
la principe de lègalitè (the principle of legality) which refers to government based
principles of law and not of men.6 In this sense, the concept of la princpe de lègalitè
was opposed to arbitrary powers.7

Early Greeks relate the concept of the rule of law to "right reason", which must
inform all state actions. 8 Aristotle (384-322 BC) made a difference between procedural
justice and moral justice, and located the rule of law in moral justice.9 Sir Edward Coke
is believed to be accredited with formulating the first statement of the rule of law in
English Law when he said that the king must be under God and the law and, thus,
vindicated the supremacy of law over the pretensions of the executive.10

Despite this, the best-known articulation of the doctrine of the rule (or supremacy)
of law is found in the writings of Professor A.V. Dicey.11

In his book ‘Introduction to the Study of the Law of the Constitution’, Dicey
considers three characteristics of the rule of law based on distinct principles.12 These
are the Principle of the Supremacy of Law (Principle of Legality), the Principle of
Equality, and the Principle of Constitutionalism.

First, the rule of law means “no man is punishable or can be lawfully made to
suffer in body or goods except for a distinct branch of law established in the ordinary
legal manner before the ordinary courts of the land.”13 In Dicey's terms, the rule of law
refers to absolute supremacy or predominance of regular law as opposed to the

4
Anthony Bradley & Keith Ewing (2007). Constitutional and Administrative Law (4th ed.). Malaysia:
Pearson Education Limited. P. 95
5
Smits, J. M. (Ed.). (2006). Elgar encyclopedia of comparative law. Edward Elgar Publishing. P. 190
6
Massey, I. P. (2016). Administrative law. Eastern Book Company. P. 24
7
Ibid
8
Ibid
9
Ibid
10
Barnett, H. (2002). Constitutional & administrative law. Routledge. P. 80
11
Cane, P. (2011). An introduction to administrative law. Oxford University Press, USA. P. 35
12
Dicey, A. V. (1915). Introduction to the study of the law of the constitution/by AV Dicey. London:
Macmillan, 1915. P. 110-122
13
Ibid
 [45] The Notion and Development of the Rule of law

influence of arbitrary power and excludes the existence of arbitrariness, of prerogative,

or even of wide discretionary authority on the part of the government.

Second, the rule of law means “not only that with us no man is above the law, but
(what is a different thing) that here every man, whatever be his rank or condition, is
subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary
tribunals.”14 Here, Dicey believes that everyone should be treated equally before the
eye of the law. It means the equal subjection of all persons to the law of the land
administered by the ordinary law courts without any discrimination between citizens,
be it government official or ordinary citizen.

Third, the rule of law means “that the constitution is pervaded by the rule of law
on the ground that the general principles of the constitution….are with us the result of
judicial decisions determining the rights of private persons in particular cases brought
before the Courts; whereas under many foreign constitutions the security….given to the
rights of individuals results, or appears to result, from the general principles of the
constitution.”15 That is to mean, the rules which in other countries naturally form part
of a constitutional code, are not the source but the consequence of the rights of
individuals, as defined and enforced by the courts, thus the constitution is the result of
the ordinary law of the land.

From the first conception of the rule of law by Dicey where it provides means "no
man is punishable …except ….before the ordinary courts of the land” reveals that Dicey
was indeed inclined to criticize all administrative discretion, particularly where it
seemed to supersede what had traditionally been regarded as judicial functions. Despite
this assertion of the rule of law by Dicey, Professor Wade has criticized Dicey in his
introductory note written on Dicey’s ‘Introduction to the Study of the Law of the
Constitution’ 10th edition book.16 Wade criticized Dicey’s conception of the rule of law
as forgetting the role of administrative agencies.17 He noted that the legislature had
delegated much of its authority in day to day decision making to a wide range of
administrative agencies.18 In so doing, these agencies must work within the law and are
governed by it, but points out that their regulation depends upon the fundamental
principle of the supremacy of parliament and not on the more limited constitutional
concept of the rule of law.

14
Ibid
15
Ibid
16
Dicey, A. V. (1985). Introduction to the Study of the Law of the Constitution, edited by ECS Wade.
P. x-xxii
17
Ibid
18
Ibid
 [46] The Notion and Development of the Rule of law

The rule of law is a dynamic concept which does not have an exact definition. This
does not mean there is no agreement on the basic values and concepts it is meant to
represent.

The rule of law has to be distinguished from ‘a rule of law’, ‘rule by law’, and ‘rule
under the law’. The phrase ‘a rule of law’ refers to any rule of conduct binding on the
citizens or public officials. ‘Rule by law’, on the other hand, is particularly applicable
in a totalitarian state wherein laws are used as an instrument for enforcing tyrannical
rule and curbing individual rights and freedoms through rule by law. In the case of rule
by law, the law can serve as a mere tool for a government that suppresses in a legalistic
fashion. The concept of ‘rule under law’ emphasizes that public officials are themselves
bound by laws.

Therefore, the rule of law means that the law rules based on the principles of
freedom, equality, non-discrimination, fraternity, accountability, and non-arbitrariness.
That is to say, as Tamanaha noted, the rule of law should be “The rule of law, not man”
“a government of laws, not men;” law is reason, man is passion; law is non-
discretionary, man is arbitrary; law is objective, man is subjective.19

The rule of law should not be understood as either ‘rule’ or a ‘law’. It is should
generally be understood as a doctrine of “state political morality” which concentrates
on securing a “correct balance” between “rights” and “powers”, and between
individuals and the state in any free and civil society.

2.2.1 The Rule of Law as a Basis of Administrative Law

True “rule of law” plays an important role in administrative law. It is said in the
definition above that the rule of law provides protection to the people against the
arbitrary action of the administrative authorities. Besides this, Tamanaha distinguishes
‘thin’ and ‘thick’ definition of the rule of law. 20 He asserted that, in its ‘thin’ definition,
the rule of law means that government officials and citizen are bound by and abide by
the law.21 This thin conception of the rule of law does not impose any requirements
with respect to the content of the law. A more substantive or ‘thicker’ definition of the
rule of law refers to fundamental rights, democracy, and/or criteria of justice or right.
The thick definition requires that there must be a system of laws, and law, by its nature,
involves rules set forth in advance that are stated in general terms. A particular decision
or an order made for an occasion is not a rule. The law must be generally known and
understood. The requirements imposed by the law cannot be impossible for people to

19
Tamanaha, B. Z. (2004). On the rule of law: History, politics, theory. Cambridge University Press.
20
Tamanaha, B. Z. (2007). A concise guide to the rule of law. P. 2-5
21
Ibid
 [47] The Notion and Development of the Rule of law

meet. The laws must be applied equally to every one according to their terms.
Mechanisms or institutions must enforce the legal rules when they are breached.

The definition provided by the Secretary General of the United Nations seems to
comprise the thick and thin conception of the rule of law by Tamanaha. The Secretary
General, in its report, defines rule of law as:

“a principle of governance in which all persons, institutions and entities,

public and private, including the State itself, are accountable to laws that are
publicly promulgated, equally enforced and independently adjudicated, and
which are consistent with international human rights norms and standards. It
requires, as well, measures to ensure adherence to the principles of supremacy
of law, equality before the law, accountability to the law, fairness in the
application of the law, separation of powers, participation in decision-making,
legal certainty, avoidance of arbitrariness and procedural and legal
transparency. (Emphasis added)”22

Thus, recent scholars of the rule of law espouse the broader definition of the rule
of law to lay out the foundations of administrative law. This conception of the rule of
law is comprised of procedural and substantive elements.

[Link] Procedural Elements

Following Tamanaha’s footsteps on the notion of the rule of law as ‘thin’ and
‘thick’, Bedner identifies four conceptions of procedural elements of the rule of law.
These are: 1) Rule by law, 2) State actions are subject to law, 3) Formal legality (law
must be clear and certain in its content, accessible, and predictable for the subject, and
general in its application), and 4) Democracy (consent determines or influences the
content of the law and legal actions).23

Rule by Law

The first category of procedural elements concerns the mode of governing and its
legality. Dicey’s conception of the supremacy of the ordinary laws of the land over the
actions of public officials and administrative agencies is the cornerstone of the
procedural element of the rule of law.24 Present in any definition of the rule of law, even

22
Annan, K., & Secretary-General, U. N. (2004). The Rule of Law in Conflict and Post-Conflict
Societies. New York: United Nations. P. 4
23
Bedner, A. (2010). An elementary approach to the rule of law. Hague Journal on the Rule of
Law, 2(1), 48-74. P. 56-72
24
Dicey, supra note 12, P. 119
 [48] The Notion and Development of the Rule of law

if only implicitly, is the element that the state ‘rules by law’ which suggests that the
state has law at its disposal as a powerful weapon to rule without being subject to any
restraint it inherently imposes. Thus, rule by law implies that there must be a law and
such law should, in principle, be general in its content and that it should be known.
Bedner noted that any case of state building at some point requires introducing rule by
law, no matter how partial or awkward these attempts may look from a contemporary
perspective.25

State Actions are Subject to Law

The second procedural element of the rule of law can be labelled the common core
of all rule of law definitions. It first adds to the ‘rule by law’ element by requiring a
legal basis for every government action, the so-called principle of legality. Lawmaking
also needs such a basis. Second, it demands that the government obey its own rules. As
noted above, one aspect of Dicey’s idea of the rule of law is absolute predominance, or
supremacy of law over arbitrary, government actions. In simple terms, it means every
administrative action that should be taken according to the law.26 Applied to the powers
of government, this requires that every government authority which does some act
which would otherwise be wrong (such as taking a man’s house), or which infringes a
man’s liberty (such as refusing him a trade license), must be able to justify its action as
authorized by law. An administrative agency or public official is required to justify its
action by clearly establishing that it is expressly or impliedly empowered or authorized
by an act of the parliament. This also means that, in the absence of any authority, the
affected party whose rights and liberties have been violated as a result of the action of
the government should be able to take the case to court and have it invalidated.

The demand that every state action has a legal basis can be rendered meaningless
if this legal basis lacks specificity, sometimes leading to the uncontrolled exercise of
discretion by the government. For example, ‘open concepts’ of authority, such as ‘the
public interest’, the ‘common good’, and others can be filled in by the government
according to its wishes and preferences.

Formal Legality

Formal legality refers to the publicity of the laws to enable citizens to plan their
behaviour and predict how the state will respond. The previous two elements are
meaningless to a large extent for determining whether rules are clear, consistent, and
accessible if formal legality is not achieved either by codifications or case law. In fact,
there are debates about the proper way of achieving formal legality, for instance,

25
Bedner, supra note 23, P. 64
26
Dicey, supra note 12, P. 112
 [49] The Notion and Development of the Rule of law

whether law must be written, codified, restated, or produced through case law. In the
modern era, the adoption of rules and regulations (directives) have provided a degree
of this formal legality.

Democracy

While the previous elements in this category have been generally accepted as
essential elements for the rule of law, democracy is much less acclaimed. Democracy
is a vast field of research on its own, and one easily overburdens oneself by including
it in the concept and then attempt to say something useful about the rule of law in a
particular country.

However, that idea of democracy is included as a procedural element of the rule of

law to make the government responsive to citizens. This is because as the authority of
any administrative agency derives from laws adopted by the legislature and the power
of a democratic government from its people, democracy, at its most fundamental level,
includes the democratic election of the legislature and the government’s responsiveness
to the legislature accordingly.

Democracy here can be used as an ideal to pursue or an inventory of means to

control the state. That is to say, there should be procedures for participation in drafting
a spatial plan or the principle that a citizen is heard before a legal decision is taken by
the government that will affect him or her. In that sense, democracy here is translated
into a procedural device, which comes close to the principles of good government used
to limit the exercise of governmental discretion by participating citizens that might be
affected by such a law before fully enforcing it. Thus, the consent of citizens determines
or influences the content of the law and legal actions afer that.

[Link] Substantive Elements

The modern concept of the rule of law is relatively broad and, therefore, sets up an
ideal for government to achieve. As discussed above, the procedural element of the rule
of law is concerned with procedures to prevent misuse of power. The substantive
element of the rule of law also does the same by introducing substantive standards to it.
Accordingly, similar to the procedural element, Bedner identifies four conceptions of
substantive elements of the rule of law. These are: 1) Subordination of all law and its
interpretations to fundamental principles of justice, 2) Protection of individual rights and
liberties, 3) Furtherance of social human rights, and 4) Protection of group rights.
Unlike subordination and adherence to the natural justice principle, the rest of the
concepts are almost all related to the respect of the human and democratic rights of
citizens, either individually or in a group. Therefore, for swift discussion of the
substantive elements, it is better to narrow the conceptions in to two: 1) Adherence of
 [50] The Notion and Development of the Rule of law

all law and its interpretations to fundamental principles of natural justice and 2)
Protection of individual and group rights.

The substantive element is vital to the legitimacy of the legal system in the eyes of
a state’s citizens. The most important elements include fundamental principles of
natural justice such as; morality, fairness, and due process. No matter how well
procedural elements are followed, they cannot substantively guarantee the just outcome
of the law’s application if the government’s actions are unfair and immoral. That is to
say, if many consider the outcomes of the law as unjust, the entire system may be
endangered despite it fulfilling procedural element.

Accepted by almost all the states in the world and with some of them considered
as international customary law, the respect and protection of individual rights and
liberties, social human rights, and the protection of group rights are one of the
benchmarks for the substantive elements of the rule of law. Perhaps the main reason to
include human rights into the rule of law framework is that this field has become the
central rallying theme of international development cooperation and that gradually it
has become clear that in order to achieve any improvement in the realization of human
rights needs an effective legal system to achieve this. Thus, including human rights,
social rights, and group rights into the definition of the rule of law in the end may
resolve beneficially, as it should force concerned bodies to think carefully about the
relations between these rights and legal institutions.

2.2.2 The Rule of Law in Ethiopia

During much of Ethiopian history, the emperors’ limitless power and rule prevailed
over the rule of law. The emperors were the supreme legislatures, magistrates, and
administrators of the people. It was the emperors who were responsible for proclaiming
laws and again emperors who removed governments and judges, administered revenues
and a communal army. No person, no action, no aspect of life lay outside of the
authority of the throne. The kings, by “divine appointment”, remain the center of every
power in Ethiopia. They were said to be ‘elects of God’ and none challenged their acts
and limitless authorities, and whatever they may do, no concept of ultra vires applied
to the king. On the other hand, society respects the laws because respecting the laws
was taken as respecting the king, whose word made such laws. The people made a
synonymous reference and understanding between the king and the laws. In most
instances, the people looked up to their rulers than the rules. One possible effect on a
ruler who was arbitrary or unfair in their administration of justice is not because they
were responsible; rather, they would no longer enjoy the confidence of the people under
his jurisdiction. Thus, it is the people’s sense of injustice that could impose a limitation
on the existence of the power and action of the rulers more than the rule of law.
 [51] The Notion and Development of the Rule of law

The 1931 Constitution was not meant to distribute the power of the emperor
between himself and other organs of the state; rather, it is was enacted to formalize the
powers of the emperor, reflecting the traditionally and historically acknowledged
imperial power. This Constitution made the first appearance of institutional setting
possible, even if it was practically a mere formality. Despite such institutionalization,
there was no provision which entails the limitation on the supreme position of the
emperor in all spheres of state activities. The emperor could veto any law proposed by
the parliament. He had the right to draw up the procedure of the parliament and to
dissolve it. It can be said that the parliament served merely as a decorative political
institution. The emperor was also the chief justice, and could hear any case from any
court in the land. He was also the chief executive. Thus, it can be said that the
Constitution was nothing more than a means to institutionalize the powers of the
emperor. Despite this, the fact that the practical application was very much under
question, the Constitution had contained certain provisions of human rights in the
Ethiopian legal system that contributed to the inception of the rule of law in Ethiopia.

Similarly, the revised Constitution of 1955 continues the formalization of the

traditionally and historically acknowledged imperial power. The emperor had powers
and functions, which were executive, legislative, and judicial in nature. The legislative
branch, which was bicameral, was almost under the full supervision of the emperor.
Senators were directly appointed for a six-year term by the emperor, while deputies
were elected by the people whom they represented for a term of four years. The emperor
had absolute power to dissolve the parliament when he deemed it necessary, and call
up for a new parliamentary election. He shares considerable power with the parliament
in the law-making process.

The emperor also retained a level of judicial function, which was not clearly
defined in the Constitution, giving him general power— "...the power to maintain
justice" under Art. 36, to continue the traditional institution of the imperial Chilot.
Despite this, some of the rule of law principles were laid down in this Constitution. For
example, Art. 110 states “The judges shall be independent in conducting trials and
giving judgment in accordance with the law. In the administration of justice, they
submit to no other authority than that of the law.” It follows that courts are bound to
follow the law, and their independence is also respected. Similarly, matters connected
with human rights such as freedom of the press, speech, assembly, movement, and
many others were stipulated in the Constitution as provided under Article 37 and the
following provisions. Generally, the concept of the "supremacy of the law” came to be
the rule in the Constitution. The laws were taken to be beyond anything or anyone, and
there were even certain implications that the king himself was subordinate to the law,
as can be inferred from Art. 110. Under this constitution, the power of the king and
other executive and administrative departments of the state was defined, and it was to
a relatively less degree limited compared to the previous 1931 Constitution.
 [52] The Notion and Development of the Rule of law

The other Constitution adopted in Ethiopia was the 1987 (Peoples Democratic
Republic of Ethiopia (PDRE) Constitution. According to this Constitution, the highest
legislative authority was vested in the National Shengo. It was also the highest organ of
the state. This organ was given the power of legislating laws in conformity with the
Constitution. Additionally, any act contrary to the Constitution was null and void. The
Constitution embodied human rights, which are the manifestation of the respect for the
rule of law. However, the concept of judicial review, which is one symbolizing factor
of democratic constitution and one of the corner stone to the realization of rule of law,
is not clearly recognized under this constitution. There is a general envision under Art.
118 of the constitution that any law or decision contrary to the constitution shall be null
and void. The Shengo was given the power to supervise the constitutionality of laws by
either approving or invalidating them. It can be said that the legislature of the laws was
at the same time a judge for the constitutionality of the laws or the decisions it adopted.
It was like being a judge in one’s own case.

The present Constitution, the Federal Democratic Republic of Ethiopia

Constitution of 1995, embodies a chapter (chapter three) devoted to “fundamental rights
and freedoms”. The first part of this chapter deals with human rights covering Articles
14-28, and the second chapter deals with democratic rights covering Articles 29-44.
Rights that manifest the rule of law such as the right to life, security of person, liberty,
prohibition against inhuman treatment, the right to be presumed innocent before
conviction, non-retroactivity of criminal law, equality, privacy, right of thought, and
opinion and expression were recognized. However, just like its predecessor, this
constitution confers the power of interpreting the constitution to an organ whose
representatives were elected through their ethnic background and political affiliation
rather than to the courts of law. Therefore, one of the salient requirements of the
principle of the rule of law, which is the requirement to confer all judicial power to the
courts, is lacking. Because of this, courts can not review the constitutionality of the acts
of the legislature and the executive.

In general, it can be said that, in Ethiopia, the concept of the rule of law is gaining
increasing attention over time as can be seen from our preceding discussions. At the
same time, the rights of citizens and the accountability of government officials were
positively improved in the course of time.

2.3 Separation of Powers as a Limitation on Administrative

Law
2.3.1 Nature, Meaning, and Origin of the Principle
The doctrine of separation of powers, which is the second constitutional principle
that played an influential role in the growth of administrative law, helps evaluate the
legal and constitutional arrangements of a modern state. The underlying idea was that
 [53] Separation of Powers as a Limitation on Administrative Law

concentration of power facilitates and encourages its abuse and that ‘the separation of
powers’ provides a bulwark against such abuse. Separation of power refers that none of
the three branches of government (ithe legislative, executive, and judiciary) should ever
exercise the powers of the other. It means that governmental functions frequently
denoted as legislative, executive, and judicial must be maintained as separate and
distinct. That is to say, each organ of government is to be independent of one another,
and each can exercise only one type of authority— legislative, executive or judicial.

The origin of the doctrine is traceable to Aristotle because he is believed to have

anticipated the separation of powers when he wrote that “all constitutions have three
parts …One of the three deliberates about public affairs; the second concerns the
offices; ...and the third is what decides lawsuits.”27 The first modern design of the
doctrine of separation of powers is to be found in the constitutional theory of John
Locke (1632-1704).28 The main objective of the doctrine is to prevent the abuse of
power within different spheres of government. In his assertion of the doctrine,
separation of power is comprised of the legislative power of making laws, the executive
power of administering the affairs of state (which included the power of adjudication),
and the federative power that relates, broadly speaking, to foreign relations. Despite
this, however, Montesquieu’s writings gave the doctrine of separation of powers a base
on which modern attempts to distinguish powers between the three organs is
grounded.29

Montesquieu’s Esprit des Lois (the Spirit of Laws) offered the first widely
recognized articulation of the doctrine of separation of powers as it is understood
today.30 Though Montesquieu still viewed the legislative and executive powers as the
two major branches of the government, he argued for a politically independent judiciary
whose personnel would not be drawn from the legislative or executive branches of the
government.31

The following excerpt from the textbook Administrative Law by Yashomati Ghosh
is worthy for understanding the meaning and origin of the separation of power.

The doctrine of separation of power is the second constitutional principle

which played an instrumental role in the growth of administrative law. The
increased functions of the Executive organ of the state had given rise to few

27
Barnett, Supra note 10, P. 105
28
Van der Vyver, J. (1993). The separation of powers. SA Publiekreg SA Public Law, 8(2), 177-191.
29
Kurland, P. B. (1986). The Rise and fall of the" Doctrine" of Separation of Powers. Michigan law
review, 85(3), 592-613. P.595
30
Krause, S. (2000). The spirit of separate powers in Montesquieu. The Review of Politics, 62(2), 231-
265. P. 254
31
Ibid
 [54] Separation of Powers as a Limitation on Administrative Law

legal challenges relating to the functioning and accountability of the

executive. One of the important issues was whether the increased functions of
the executive was contrary to the principles of separation of powers and
whether such increased powers would lead to executive dominance over other
organs of the state.

The three core state functions of law making, execution of the law and judicial
functions have been traditionally entrusted with the three organs of the State
- Legislature, Executive and the Judiciary respectively. The doctrine of
separation of power was founded on the premise that concentration of power
in one or more organs of the state would give rise to unregulated and
tyrannical exercise of power which would threaten the rights and liberties of
the citizens.

Lord Acton speaking on the issue of whether the Pope and the King should be
treated in a manner different from other ordinary men and should be presumed
that they can never do wrong observed. If there is any presumption it is the
other way against holder of power increasing as the power increases. Historic
responsibility has to make up for the want of legal responsibility. Power tends
to corrupt and absolute power corrupts absolutely. Great men are almost
always bad men even when they exercise influence not authority. If this
principle is applied to state functionaries it would necessarily imply that if the
legislature or the law makers are conferred with absolute power to administer
the law made by them as well as determine all disputes involving the law then
the common people would have no opportunity of a fair redressal of their
claims and would have to suffer from injustice in the absence of alternative
remedial mechanism.

John Locke was one of the earliest scholars and philosophers to conceptually
formalize the doctrine of separation of power his Second Treatise of
government (1689). In a well-ordered society different powers of the state
should be exercised by different institutions. He divided the state powers into
three categories - legislative power, executive power and federative power.
The Legislative or law-making power was deemed supreme whereas the
executive was relating to the internal affairs of the state and the Federative
powers were maintaining the external affairs during war and peace,
information of alliance and leagues. Locke advocated that for proper
functioning of the state it was necessary that the legislative powers and
executive powers, including the federative power should be exercised by
different institutions so that the law making authority is also made subject to
the same laws. However the credit for laying down the foundational stones of
the doctrine is popularly conferred to Frenchman and lawyer Montesquieu.
Montesquieu was greatly inspired by the writings of Locke and the
 [55] Separation of Powers as a Limitation on Administrative Law

parliamentary form of governance in England, and was convinced that under

a despotic rule where both the executive and the legislative powers were held
in the same hands it would be detrimental for the protection of the rights and
freedoms of the citizens. He advocated for the implementation of separation
of power similar in the lines of which existed between the English Monarch
and the Parliament as necessary for securing citizens' rights because
Parliament being the representative of the people would not enact arbitrary
laws similarly the denial of the legislative powers to the king would ensure
that no unfair or arbitrary laws are made. In the 17th century England, the
legislative and tax imposing powers were exercised by the Parliament and the
government headed by the king administered the laws passed by the
Parliament. Judges were also assured of freedom through the act of settlement
which secured them tenure of service during their good behavior
differentiating from the earlier practice of tenure during the pleasure of his
Majesty. Hence Montesquieu felt that the secret of English’s men liberty was
the separation of power and the functional independence of the three
department of the state from one another.

Montesquieu laid down the underlying principle of the doctrine in his book
Esprit des Lois (the Spirit of Laws) 1748. His fundamental proposition was
that legislative and executive powers should not be united in the same person
or in the same body or magistrates as there will be no liberty to the common
people. There will always be the possibility of tyrannical laws being enacted
and similarly executed to the detriment of the people. Similarly, there will be
no liberty if the judicial power is not separated from the legislative and
executive power because the judiciary through the power of judicial review
protects the rights of the citizens by exercising effective control against
arbitrary exercise of power by administrative officers. If the judicial power is
clubbed with the executive power then the judge behaves with violence and
oppression. Thus, the doctrine implies that one person or body of persons
should not exercise all three types of powers. Legislative, executive, and the
judiciary should be separate and one organ must not perform or interfere with
the functions entrusted with the other bodies.32

Vyver then conceptualizes the idea of Montesquieu and noted that the notion of
separation of power by Montesquieu eventually developed into a norm, comprising four
basic principles: the principle of trias politico (horizontal separation of powers), the

32
Yashomati, G. (2016). textbook on Administrative. Law LexisNexis. P.35-37
 [56] Separation of Powers as a Limitation on Administrative Law

principle of the separation of personnel, the principle of the separation of functions, and
the principle of checks and balances.33

(a) The principle of trias politico requires that there should be a clear and formal
distinction between the three arms of government (legislative, executive, and
judicial)

(b) The principle of the separation of personnel requires that the power of making
laws, implementation/administration, and adjudication be vested in different
officials and employees staffed separately to every three distinct organs.

(c) The principle of the separation of functions demands that every organ of state
authority be entrusted with its appropriate function only; that is to say, the
legislature ought only to legislate, the executive to confine its activities to
administering the affairs of state, and the judiciary to restrict itself to the function
of interpretation of laws and adjudication.

(d) The principle of checks and balances requires that each organ of state authority
be entrusted with special powers designed to keep a check on the exercise of
functions by the others in order that the equilibrium in the distribution of powers
may be upheld.

Despite this, the theory of separation of powers, as explained by Montesquieu, has

been subject to controversy from the moment of its conception. There are often different
suggestions to contest his descriptions of the seventeenth-century English Government
as a symbol of the separation of powers. In contrast to his view, many writers hold that
there was no clear-cut separation of powers in seventeenth-century England.

However, Wade and Phillips have summarized the doctrine of separation of powers
from three perspectives.

A) The same person should not form more than one organ of the government. That
is to say, a person serving in one organ of state authority is disqualified from
serving in any of the others.

B) One organ of the government should not exercise the function of other organs
of the government. For example, the executive branch cannot enact laws nor can it
adjudicate cases.

33
Van der Vyver, J. (1993). The separation of powers. SA Publiekreg SA Public Law, 8(2), 177-191. P.
178
 [57] Separation of Powers as a Limitation on Administrative Law

C) One organ of the government should not encroach with the function of the other
two organs of the government. For example, the executive should not interfere in
the administration of justice by the courts.34

It should be noted that the doctrine of separation of powers, as an established

political doctrine, is based on the fact that the accumulation of all powers— legislative,
executive, and judicial— in the same hands would be tyranny. However, the doctrine
does not mean that the various departments should be completely independent of each
other. This is because each organ is, to a large extent, dependent upon another,
especially for check and balance purposes. For example, in the United States of
America, Congress has the power to make laws, but this power is subject to executive
and judicial control. The executive exercises checks and balances in respect to the
legislature through the qualified veto of the President. When a bill has been passed in
identical form by both houses of Congress, it is presented to the President for approval,
and should the President-elect veto the bill, it may again be presented to Congress but
will only become law if (after a presidential veto) both houses approve the bill with a
two-thirds majority. The judiciary exercises checks and balances in respect to the
legislature through the power of procedural and substantive review of the Supreme
Court. Enactments of the legislature can be tested by the Court against provisions of the
Constitution, and the Court has the power to invalidate such enactments if it finds them
to be unconstitutional.35

It should also be noted that, had the doctrine of separation of powers been followed
rigidly in any country, the development of modern administrative agencies would have
been impossible. Complete separation is found to be impossible. Thus, complete
separation of powers, in the sense of the distribution of the three functions of
government among three sets of organs, with no overlapping or coordination, would
bring the government to a standstill for the purposes they are destined for.

The division of governmental powers into legislative, executive, and judicial is not
an exact classification. It is an abstract and general theory which is impossible to apply
in actual practice to create complete separation. There are many powers which may be
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
departments. Thus, the true meaning of the theory of separation of powers, as it has
been modified by practice, is that the whole power of two or more departments shall
not and should not be lodged in the same hand and that each department shall have and

34
Singh, T. B. (1996). Principle of Separation of Powers and Concentration of Authority. Institute's
Journal, 1, 1-11. P.2; see also Aberham Yohannes & Desta G/Michael. (2009). Administrative Law
Teaching Material. Justice and Legal System Research Institute.
35
Ibid
 [58] Separation of Powers as a Limitation on Administrative Law

exercise such inherent powers as shall protect it in its performance of its major as well
as minor duties.

2.3.2 Linking Separation of Powers to Administrative Law

As said above, the essential functions theory advocates that every organ of the state
has been charged with certain essential or core functions which the organ is required to
perform without the interference of other organs. In this regard, the doctrine of
separation of power was initially considered as an impediment to the growth of
administrative powers under the modern welfare state functions. The increase of state
responsibilities had imposed additional burdens on different organs of the state, but due
to the various factors, the legislature and the judiciary were often unable to cope with
the new responsibilities. Although the principle of separation of powers demarcates a
line between the three arms of government (legislative, executive, and judiciary),
administrative law runs contrary to the principle of separation of powers. In practice,
technicalities of matters, unforeseen problems, limited time of the legislature, pressure
relief, and dynamism of events are the rationale behind the delegation of legislative and
judicial power to executive agencies. The legislature and the judiciary were compelled
to transfer some of their legislative and judicial powers to the administrative agencies
because, otherwise, without wider powers, administrative agencies could not attain the
purposes for which they were established.

The growth of residuary powers in the hands of the administrative organs was a
violation of the essence of the separation of power doctrine even though administrative
agencies are conferred with different powers to ensure efficient and effective
undertaking of their responsibilities. These powers of the administrative agencies are
quasi-legislative and quasi-judicial, which could be manifested with a mere
examination of the powers of administrative agencies.

While it is true that according to the principle of separation of powers, the power
and function of the executive branch of government are limited to the execution or
enforcement of laws, administrative agencies are nonetheless delegated additional law-
making powers.

Another primary function of an administrative agency is to adjudicate cases and

controversies that arise under its purview. Agencies also share some of the judicial
powers, although traditionally judicial power (the power to adjudicate and decide cases)
belongs to the ordinary courts. Here Administrative agencies can decide matters
affecting individual rights and freedoms.

It should be noted here that most of the judicial functions of the agencies are
usually exercised through administrative courts or administrative tribunals which may
 [59] Separation of Powers as a Limitation on Administrative Law

exist within or outside that agency, enjoying relatively little independence compared to
the rule-making power of administrative agencies.

Giving judicial power to agencies violates the core principle of the separation of
powers. As said above, the rationale for conferring such power on the agencies is the
existence of technical expertise and the lengthy, costly, and rigid process followed in
courts in deciding cases. This is because, as opposed to courts, it is believed that
administrative agencies have efficient technical expertise in that specific field, and can
also decide cases in a more efficient, less costly, and more flexible process.

This shows how the doctrine of separation of powers limits the scope of
administrative law. Thus, granting legislative and judicial powers to administrative
agencies can be seen as an exception, or it may be said a ‘necessary evil’. This leads to
the conclusion that agencies shall be delegated legislative and judicial powers, but these
should be exercised strictly and narrowly, i.e., only when it becomes a compulsive
necessity to do so.

The same is true of ordinary judicial powers. Essential judicial functions such as
deciding disputes among society, interpreting laws, determining the legality of
government actions, and determining the civil and criminal liability of private persons
and state officials should not be given to administrative agencies or administrative
courts. The delegation of judicial powers to administrative tribunals should be limited
only to matters which are technical by nature and require the expertise of the
administration.

In general, the doctrine of separation of powers imposes a limitation on the extent

of the legislative and judicial power of administrative agencies as well as on the scope
of administrative law. In addition, the principle of separation of powers limits the scope
of administrative law by making courts not question the substance of the actions of
administrative agencies and their day-to-day activities except for the legality of their
actions.

2.3.3 FDRE Constitution and Separation of Powers

According to the FDRE Constitution, federal and regional Government structure
was formed. Accordingly, the Ethiopian state was made to consist of regional
Governments and the federal Government. Under the federal level, three organs of
government— the legislative, executive, and judiciary— were established in line with
the principles of parliamentary supremacy in the Constitution under Article 45.
Similarly, the regional Government is also formed with three levels of government (the
legislative, executive, and judiciary).
 [60] Separation of Powers as a Limitation on Administrative Law

In this Government structure, the legislature (which is composed of two Houses:

the House of Peoples’ Representatives and the House of the Federation) is the highest
authority of the federal Government. The people elect members of the legislature for a
term of five years. As the supreme organ, this legislative body of the Government
controls the other two organs. The main function of this organ, as the name indicates,
is to legislate laws. However, it also interprets laws, especially the Constitution, through
the House of Federation as provided under Article 62 of the FDRE Constitution.

The highest executive powers of the federal Government are vested in the Prime
Minister and the Council of Ministers. These two organs are responsible to the
legislature (House of Peoples’ Representatives). The Prime Minister, per Article 73 of
the Constitution, in addition to being the head of the executive organ, must be a member
of the People's Representatives (the legislature); while other ministers may or may not
be members of the same. The House of Peoples’ Representatives has also delegated the
Council of Ministers to enact regulations, at the same time, each administrative agency
can issue directives and manuals for the effective and efficient administration of their
power. As the power to make law is left to the legislative branch of Government,
delegation of legislative powers by the House of Peoples’ Representatives to the
Council of Ministers and each of the ministries and departments accordingly is clearly
against the principle of a pure separation of powers.

It should be noted here that the delegation of legislative powers should be limited
only to the technical or detailed matters necessary to fill the gap in a proclamation
issued by the House of Peoples’ Representatives. Agencies should not delegate
essential legislative powers or areas primarily left to the legislature. Essential legislative
powers, such as monitoring and supervising the policy of the government, passing of
budgets, ratification of treaties and international covenants, enacting proclamations,
and discussing various actions and policies of the government, shall be performed by
the legislature itself.

According to Article 79 of the Constitution, judicial powers, except constitutional

disputes both at federal and state levels, are vested in the courts. By the Prime Minister’s
recommendation, the president and vice president of the Federal Supreme Court are
appointed by the House of Peoples’ Representatives. Regarding other federal judges,
the Prime Minister submits a list of candidates from which the Federal Judicial
Administration Council selects candidates for appointment to the House of Peoples’
Representatives.

The Judiciary at the federal level is accountable to the legislature. In general, when
examined from the principles of the separation of powers theory, the 1995 FDRE
Constitution recognized the three organs of the government. However, there is no
separation of power between the three organs in the strict sense of the term as members
of the executive branch, including the Prime Minister, are members of the legislative
 [61] Due Process of Law

organ. Similarly, cancellation of title deeds, revocation of license, imposing fines, and
the like, which could properly be categorized as judicial functions, are being exercised
by administrative agencies. A prominent example of this can be the Federal Supreme
Court cassation decision, where it has decided that the power to give and cancel title
deeds is left to the administrative agency, not the courts.36 Nonetheless, this does not
mean that the courts have no power to entertain cases where the title deed is given or
cancelled in violation of the law. In this regard, the Federal Supreme Court cassation
bench has decided that, although agencies have the power to issue or cancel title deeds,
if the manner of cancellation and issuance violates the law, courts can entertain and
check the legality from there.37

2.4 Due Process of Law

2.4.1 Meaning, Nature, and Development of the Due Process of Law
Due process of law means law in its regular administration through courts of
justice. Due process of law in each case means such an exercise of the powers of the
government as the settled maxims of law permit and sanction and under such safeguards
for the protection of individual rights.

Collier's Encyclopedia, on the other hand, defines it as “Due process is a principle

of the constitutional law, which protects the life, liberty, and property of a person
against unreasonable or arbitrary laws and procedures by national state, and local
governments... due process implies fair process and fair laws.”

This last definition by Collier's Encyclopedia is very broad and embraces both the
procedural and substantive aspects of the term. It provides that due process is a
constitutional limitation on the legislative and executive departments of the
government. This is evident when it says, “...against arbitrary laws and procedure... and
fair process and fair laws.” So is the definition according to Black. However, Webster's
definition of the concept seems to denote only the procedural aspect and thus narrow.

Generally, from the previous definitions, we can understand that the due process
of law is a means or a tool in the hands of individuals by which private rights of life,
liberty, and property are safeguarded from the arbitrary actions of government
departments.

36
Tsige Atnafe Vs Balambaras Wube Shibeshi, Federal Supreme Court Cassation Decision Volume 3
file no 14554
37
See W/ro Abrehet Dekria Vs W/ro Fatuma Jemal, Federal Supreme Court Cassation Decision
Volume 13 file no 64014 and Vol. 18 file no file no 99071
 [62] Due Process of Law

The principle of due process of law, which contains the idea that no person shall
be deprived of his life, liberty, and property by government actions without notice and
opportunity to be heard for such deprivation, is believed to be contained for the first
time in history in chapter 39 of the Magna Carta.38 However, there are options to the
effect that the concept is older than that and known before the Magna Carta.39 This, of
course, is jus naturale or natural law, which acquired Christian content and progressed
through the medieval and canon lawyers into the common law of England as it was
being developed.40

It is even argued or held by some natural lawyers that the principle begins with the
eviction or expulsion of Adam and Eve from the Garden of Eden. “I remembered to
have heared it observed by a very learned man that even God himself did not pass
sentence up on Adam, before he was called up on to make his defence”.41

What we can consider from this argument is that the due process concept is a
historical product other than written constitutions and is ancient in origin.

Generally, however, the central point in the history and development of the notion
of the due process of law is the Magna Carta. Article 39 of the Magna Carta declares:

“No man of what estate or condition that he shall be put out of land or
tenement nor imprisoned nor disinherited nor put to death without being
brought to answer by due process of law.”42

This principle was transplanted from the Magana Carta to the written constitution
of America in the 18th century. Additionally, it was New York that first used the phrase
‘due process of law’ in its basic law in 1821.43

At this juncture, it is worth mentioning that the US constitution, as first adopted in

1787, contained no provision guaranteeing the citizens of the new federal union the
rights of the due process of law, as a result of which raised several objections to this
venerable document. In response to this objection, the first Congress, led by James

38
Bird, F. W. (1913). The Evolution of Due Process of Law in the Decisions of the United States
Supreme Court. Columbia Law Review, 13(1), 37-50. P. 37
39
Groves, H. E. (1961). Due Process of Law-A Comparative Study. Marq. L. Rev., 45, 257. P. 259
40
Ibid
41
Schauer, F. F. (1976). English natural justice and American due process: An analytical
comparison. Wm. & Mary L. Rev.,18, 47. P. 51
42
McSweeney, T. J. (2014). Magna Carta and the right to trial by jury. P. 146
43
Emery, R. (2002). New York's Statutory Bill of Rights: A Constitutional Coelacanth. Touro L.
Rev., 19, 363. P. 365
 [63] Due Process of Law

Madison, in 1789 passed twelve proposals for amendment, of which ten were ratified.
Out of these, the Fifth Amendment to the Federal Constitution reads:

“No person shall be deprived of life, liberty or property without due process
of law”44

This amendment has been held to be a limitation imposed on the national

government's actions. Moreover, in the absence of a constitutional provision, restricting
arbitrary state action was meaningless. To that effect, a similar provision to the Fifth
Amendment is included in the federal Constitution under the Fourteenth Amendment
which states:

“Nor shall any state deprive any person life, or property without due process
of law”45

These constitutional guarantees of individual liberties, commonly known as the

due process clause, put a restriction on all organs of the federal and state Governments,
the legislature, the judiciary, and the executive branch, unlike “the law of the land” in
Britain, which restricts the arbitrary action of only the executive but not of parliament.

The tradition of adopting a written constitution spread all over the world from the
US, and nowadays, several countries have enshrined the concept of due process,
although there are variations in the phrasing of the guarantee in their constitutions. In
Ethiopia, for example, the Constitution has used the phrasing “except in accordance
with the law”46

2.4.2 The Essential Elements of Due Process of Law

At the earliest development of the principle, which is during the time of the Magna
Carta, there was no such clear demarcation between the substantive and procedural due
process of law. However, through the passage of time and thereby modernization, this
distinction began to appear and was fully developed in the USA where powers of
government are dichotomized between the executive, the legislature, and the judiciary.

Hence, the doctrine of due process of law has been divided into two major broad
categories depending on the part of the government organ it binds. These are the
substantive due process which binds the legislature from enacting unfair laws, and

44
Crema, M., & Solum, L. B. (2022). The original meaning of" due process of law" in the Fifth
Amendment. Va. L. Rev., P108, 447.
45
Ibid
46
Groves supra note, 39
 [64] Due Process of Law

procedural due process, which affects the executive branch of government in its action
toward private citizens. In the subsequent parts, an attempt is made to discuss these two
categories of the doctrine.

[Link] Substantive Due Process

Substantive due process limits the legislature from enacting laws which would
arbitrarily limit individual freedom of action. Substantive due process is concerned not
with the procedures used to make a rule or adjudicate an individual case but with the
substance of a rule or adjudication. Constitutional procedures can be used to implement
a rule but for the rule itself to violate the constitution. Substantive due process protects
people from arbitrary laws. In that sense, substantive due process is a requirement that
laws be related to the purpose intended or that the government has some substantial
reason for the regulation.47

In general, substantive due process is a limitation upon the legislative power that
it should not enact laws which would result in arbitrary deprivation of certain
fundamental private rights, such as freedom of speech and individual freedom of action.

For example, statutes not providing for notice and hearing to deprive a man's right
or for payment of compensation for property expropriated or which arbitrarily
discriminate against a person singling him out of the same class to which he belongs
are contrary to the principles. Hence, they can be held null and void.

[Link] Procedural Due Process

Beginning from Magna Carta, the procedural meaning of the term due process of
law was related to procedures to be followed before depriving someone of their rights
by government organs. Procedural due process implies that, when a government acts in
such a way that it denies a citizen of life, liberty, or property interest, the person must
be given notice, the opportunity to be heard, and a decision by a neutral decision-maker.
That is to say, a given procedure is unfair and unjust if their life, liberty, or property is
to be deprived by the government.48

Due process of law in its procedural aspect means that a person should be afforded
some sort of fair procedure if by governmental power he is to be denied his private
rights of life, liberty, or property. Hence, the individual has the right to— and the

47
Riggs, R. E. (1990). Substantive Due Process in 1791. Wis. L. Rev., 941. Cited in Harrison, J. (1997).
Substantive due process and the constitutional text. Va. L. Rev., 83, 493. P. 3
48
Eberle, E. J. (1987). Procedural due process: the original understanding. Const. Comment., 4, 339. P.
343-45
 [65] Due Process of Law

government owes him or her— a certain just process to consider, and final
determination of the basis for, and legality of such action.

Hence, government deprivation of individual basic rights without such hearing and
notice is contrary to procedural due process. In dealing with individuals, the
government must proceed with settled usage and modes of procedure.

Procedural due process also implies fair process, and it generally requires that a
person shall receive notice and charge, be heard, have the right to confront by proof
those allegations adduced against him, and be rendered an impersonal judgment based
on the material facts presented.49

Generally, to deprive a person's life, liberty, or property procedural due process

requires steps such as a public trial, notice, a competent tribunal, (which is, a court
having jurisdiction on the case or matter), an opportunity to be heard, and an impartial
and disinterested tribunal.

The requirements of procedural due process as noted above are many and diverse.
The most important elements, however, are the following four.

1) Notice

Notice to a party, which is the action of informing the person sought to be deprived
of a right, especially as regards to property rights, that the matter is pending before
tribunals enabling him/her to prefer what actions to take about such suit, is one of the
essential elements of due process.50 It is a summon to a party to appear and defend,
meaning to declare something which she/he wants to say concerning the facts in issue,
and which will positively affect the judgment to be rendered in favour of him. Statutes
regulating adjudication and the establishment of liability without notice— expressly or
implicitly— and judgment in courts without notice breach due process of law.

The objective of notice is to bring the party into the proceeding and to afford
her/him a chance to be heard on the claim or charge made againt her/him, and defend
her/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.51

49
Ibid
50
Ibid
51
Ibid
 [66] Due Process of Law

2) Opportunity to Be Heard

According to this requirement, no one may be deprived of his/her fundamental

rights before being heard without contesting the charge brought against him/her and
defending himself on the laws and facts in dispute.52 The hearing accorded must be, in
each case, fair, complete, appropriate, full, reasonable, and before the final disposition
of the case.

The opportunity to be heard embraces such rights in the trial process as the right to
appear in person or be aided and represented by counsel; be present during the taking
of evidence or testimony; know the claims of his opponents; hear evidence adduced
against him; confront, cross-examine and set up any defence against his/her litigant and
witness thereof; introduce evidence in support of himself; and prepare and present
appropriate arguments as to law and fact.53

3) An Impartial Tribunal

This clause requires some neutral and impartial decision-maker, whether it is a

judge, agency, or government hearing officer— a fair trial in a fair tribunal.54 It is said
that a hearing is essential for due process, but such a hearing or defence should be before
a tribunal having competent jurisdiction as well as before a just, equitable, fair, and
impartial tribunal.

In a nutshell, whether the decision is judicial, executive, or administrative, the

decision-maker should be disinterested and impartial. That is to say, it must not have a
direct, personal, or pecuniary interest in the judgment to be rendered.

4) Publicity

The fourth essential requirement of procedural due process is a public hearing that
the trial is held in public as opposed to the judge's chamber.55 Nevertheless, it should
be remembered that there are some circumstances where the trial or hearing may be on
camera in the interest of the accused.

52
Ibid
53
Groves supra note 39, P. 262
54
Ibid
55
Ibid
 [67] Due Process of Law

Generally speaking, the purpose of this guarantee of due process of law is to protect
individuals regarding their rights of life, liberty, or property against arbitrary
deprivation by exercising governmental powers.

2.4.3 The Principle of Due Process in Ethiopia

The introduction of modern laws in general, and constitutional principles in
particular, to Ethiopia is a recent phenomenon that began with Emperor Haile Selassie.
Although due process was enshrined in the 1955 revised Constitution for the first time,
it has its inception a few years back, before the revised Constitution.

The 1931 Constitution of Ethiopia contained the concept under Article 23, which
provides “No Ethiopian subject may be arrested, sentenced or imprisoned except in
pursuance of the law has the notion of the due process guaranty in that it prohibits
government officials to deprive a man of his liberty without the support of the law and
without following certain procedures laid therein. Article 27 of it also, though to a
limited extent, protects an individual's property rights from governmental arbitrary
deprivation.”

Generally, Articles 22-28 of this Constitution more or less embodied the basic idea
of due process of law. However, if viewed from the perspective of modern
constitutions, this Constitution had some limitations. For instance, its protection was
extended only to Ethiopian subjects excluding aliens residing in Ethiopia. Further, the
Emperor, in emergencies, could deprive an Ethiopian of life, liberty, or property
without due process of law.

It was in the revised Constitution of 1955 that this constitutional guarantee was
explicitly recognized. Article 43 of this constitution provided that:

“No one within the Empire may be deprived of life, liberty, or property without
due process of law.”

Also, this Constitution recognized basic human rights that were enshrined in the
Universal Declaration of Human rights (UDHR) of 1948, which deeply deals with due
process of law.

The 1955 revised Constitution was suspended in February 1974 upon the coming
into power of the Provisional Military Administrative Council (PMAC), and until 1987
Ethiopia had no constitution. Thus, during these times, no constitutional limitations
were imposed on the government to ensure the prevalence of thr rule of law. In 1987,
however, the PDRE Constitution was enacted, but it had no clear provision on the
guarantee of due process.
 [68] Due Process of Law

Nevertheless, it can generally be inferred from a cumulative reading of Articles 16,

17, 43, and 44 that a person is guaranteed his life, liberty, and property against arbitrary
governmental deprivation.

The next constitution, which is the Federal Democratic Republic of Ethiopia

Constitution of 1995, under Articles 14-17 cum Article 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 and the requirements of public order and the general welfare which alone justify
any restrictions, individuals are guaranteed the basic rights of life, liberty, and property.

From the reading of Article 9(1) and (2), it appears that this constitutional
guarantee is a restraint on all powers of the federal and state government’s legislative,
executive, and judiciary branches.

In general, in comparison with the country's modern legal system development,

this constitutional guarantee of private rights, due process of law, has a long life.
Additionally, it has been incorporated into the nation's basic laws since the time of the
first and historical constitution up to the present Constitution, although the practical
application of the principle may be different depending on the nature of the government
in power.

2.5 Basic Principles of Administrative Law /Good Governance/

In the past few decades, public concern over the operation of administrative
agencies of government has increased in different parts of the world. Most importantly,
doubt has arisen about whether the public power entrusted to the agencies is being used
adequately, transparently, and effectively, while long-standing questions about the
exercise of these powers by certain agencies have been raised with new urgency. As a
result, proposals for radical changes in agency organization, especially the separation
of major policy functions from the function of adjudication, have been made with
augmented force; measures to reform administrative procedure across the board have
received increased attention; and numerous laws to cope with the influence problem
have been introduced and made the subject of hearings.

Johnston defines good governance as "legitimate, accountable, and effective ways

of obtaining and using public power and resources in the pursuit of widely accepted
social goals".56 It is a process whereby public institutions conduct public affairs and

56
Johnston, M. (2006). Good governance: Rule of law, transparency, and accountability. New York:
United Nations Public Administration Network, 1-32. P. 3
 [69] Basic Principles of Administrative Law /Good Governance/

manage public resources in a manner that promotes the rule of law. Good governance
is linked with the rule of law, transparency, and accountability and embodies
partnerships between the state, society, and citizens.

The following are the basic principles of administrative law (good governance).

2.5.1 Fairness
Fairness can be culturally specific and is often a product of moral judgment. It is
shaped by a person’s life experience, values, ethics, expectations, and environmental
factors. It is the process by which people determine what is morally right and wrong.
In the context of public servants’ duties and obligations, fairness is much more than just
a fair hearing or a provision of service. It includes the key element of non-
discrimination towards all persons and providing easily found, accessed, and
understood information. Fairness uses concepts like empathy and understanding and
accounting for another person’s needs, interests, and well-being when making moral
decisions. It is about treating the public with dignity and respect and providing an open,
accountable, and timely service.57

By following a fair process, members of the public can better understand the
reasons for decisions made by those in positions of authority. It helps to build public
trust in public services if decision-makers can demonstrate and explain how and why
decisions are made. Fairness in public administration can be procedural or substantive.

Procedural fairness is a central concept in administrative law. It means fairness in

the procedures followed when arriving at an administrative decision. Procedural
fairness is concerned with how the decision is made.58 It is about the process or the
steps to follow before, during, and after a decision is made. At a minimum, procedural
fairness requires clear communication of a decision, proper notice, an opportunity to
present their case, clear reasons for the decision, timeliness, and proper records to that
effect.

Substantive fairness, on the other hand, is a case where decisions are given in
accordance with power and without treating similar individuals differently. 59 The
doctrine of substantive fairness is employed to check whether the impact of the decision
of an administrative agency is so substantively unfair that it amounts to an abuse of

57
Broome, J. (1990, January). Fairness. In Proceedings of the Aristotelian society (Vol. 91, pp. 87-
101). Aristotelian Society, Wiley. P. 88
58
Ventose, E. (2012). Commonwealth Caribbean administrative law. Routledge. P. 313
59
Stewart, C. (2007). The doctrine of substantive unfairness and the review of substantive legitimate
expectations. Australian Administrative Law, Fundamentals, Principles and Doctrines, 280-298. P. 283
 [70] Basic Principles of Administrative Law /Good Governance/

power. The use of substantive unfairness as grounds for review of administrative action
has become a recent development, and for a better understanding of substantive
fairness, it is better to elucidate substantive unfairness.

Citing Professor Craig, Cameron Stewart has identified four instances where
substantive unfairness could arise. These are cases where:60

A general norm of policy choice, which an individual has relied on, has been
replaced by a different policy choice;
A general norm or policy choice has been departed from in the circumstances
in a particular case;
There has been an individual representation relied on by a person, which the
administration seeks to resile from in the light of a shift in general policy;
and,
There has been an individualized representation that has been relied on. The
administrative body then changes its mind and makes an individualized
decision that is inconsistent with the original representation.
Stewart noted here that, in any of the above situations, the doctrine of substantive
unfairness is employed to check whether the impact of the decision is so substantively
unfair that it amounts to an abuse of power.61 Thus, an agency acts unfairly if it wrongly
neglects an interest of a person affected by the decision. The neglected interest here is
an interest that the outcome becomes substantively unfair to a person, leading to abuse
of power.

In general, fairness in public administration allows people to be heard in processes

that affect them, ensures that decisions are made without bias, and acts consistently
with the rules that apply. It is also about making decisions that consider the individual’s
needs and circumstances and are based on relevant information.

2.5.2 Reasonableness
Reason is an important element for a human being to make decisions consciously.
This state of need to act with reason and how it helps in the creation and assessment of
laws has led to the creation of the doctrine of reasonableness in administrative law.
Furthermore, by common understanding, we can say law and reasonability go hand in
hand. In every system, reasonability (the idea of examining an act based on whether it
is reasonable or not) is the key to the appraisal of the legal system. Reasonableness

60
Ibid
61
Ibid
 [71] Basic Principles of Administrative Law /Good Governance/

requires the identification of an end and of the means to that end, and an assessment of
the relationship between the means and the end.62

Administrative decisions or actions were said to be unreasonable if they are

‘absurd’, ‘perverse’, or especially ‘outrageous’ in their defiance of logic or of accepted
moral standards. In that sense, the doctrine of reasonableness in administrative law can
be used as a substantive standard to review the content and material of administrative
action, and this way provides guidelines to public authority in administrative functions.
In that sense, public authorities’ decision can be deemed unreasonable if they do not
logically follow all the legally and reasonably relevant dimensions or of accepted moral
standards.

Thus, we see that doctrine of reasonableness plays a critical role in the field of
administrative laws, and it is safe to say that today, judicial review of administrative
action, including reasonableness review, is widely available to challenge final agency
action that affects parties.

A given decision, action or law may not be set aside merely because he or she
considers that the matter should have been decided differently. However, in
exceptional circumstances a decision may be set aside for unreasonableness
and if this ground for review is raised the court will have the difficult task of
considering whether a decision that is otherwise within the powers of the
authority may be said to be ‘unreasonable’. 63

In the case of Associated Provincial Picture Houses Ltd v Wednesbury

Corporation, the court has set out criteria to determine unreasonableness. In this case,
Associated Provincial Picture Houses Ltd is concerned with the Sunday Entertainments
Act 1932 that gave a local council power to permit cinemas to open on Sundays,
‘subject to such conditions as the council thinks fit to impose’. The Wednesbury
Corporation then allowed cinemas to show films on Sundays, on condition that no
children under 15 should be admitted to the performances, with or without an adult.
Very many types of councils permitted children to go to the cinema on a Sunday if an
adult accompanied them. The condition in Wednesbury was challenged by Associated
Provincial Picture, alleging that the condition was ultra vires and unreasonable, and
requested the court for certiorari. The court has provided three conditions on which it
would intervene to correct a bad administrative decision, including on grounds of its
unreasonableness. The judgment emphasized that unreasonableness is closely related

62
Zaring, David. "Rule by Reasonableness." Admin. L. Rev. 63 (2011): 525. P. 528
63
Ibid
 [72] Basic Principles of Administrative Law /Good Governance/

to other grounds of review, such as irrelevant considerations, improper purposes, and

error of law. Thus, the court held, the condition was neither ultra vires nor unreasonable.

2.5.3 Proportionality
The doctrine of proportionality is that the means employed by the statutory rule
must be 'appropriate and necessary' to attain the authorized object.64 It means that the
public authority has to maintain a sense of proportion between the particular goals and
the means it employs to achieve the goals which emphasize the individual rights to
preserve the public interest. If the burden imposed by the rule is clearly out of
proportion to the authorized object, the rule will be invalid.

The principle requires that action taken by the agency must be proportionate to its
objectives. In other words, a public authority may not impose obligations on a citizen
except to the extent to which they are strictly necessary for the public interest to attain
the purpose of that measure.65 The doctrine of proportionality ensures that there is a fair
balance between pursuing a legitimate aim and the protection of rights. The principle
of proportionality is a civil law doctrine now creeping into common-law jurisdiction,
replacing the Wednesbury doctrine of unreasonableness.66 However, it should be noted
here that proportionality is not the same as Wednesbury unreasonableness. It requires
of the court a structured analysis of the decision challenged and the justification of the
decision-maker for that challenge. In so doing, Massey has provided a three-step check
to be applied by the court while reviewing any law or administrative action based on
proportionality.67 These are:

(a) Means check: the means adopted by the administrative authority are within
its power and are least burdensome besides being rationally connected to the
end.
(b) End check: that end to be achieved is legitimate and within the power of the
authority.
(c) Proportion or balance check: that there is a balance between means and
ends. Balancing is difficult as realities on the ground and value priorities
cannot be ignored.

Thus, the doctrine of proportionality can be invoked to invalidate or quash

administrative decisions or laws. If there is any arbitrary action by the administration,
it shall be controlled by the administration itself, but if it fails to do so, the judiciary

64
Cane supra note 11, P. 190
65
Ibid
66
Massey, I. P. (2016). Administrative law. Eastern Book Company. P. 378
67
Ibid
 [73] Basic Principles of Administrative Law /Good Governance/

will come into play, and shall invalidate such administrative action based on
proportionality.

2.5.4 Duty to Give Reason

The giving of reason is considered to be inextricably bound up with natural justice
or the right to be fairly heard, and is fundamentally important as a principle of
administrative law.68 That is to say, administrative agencies should provide reasons for
their decisions, at least in situations where the decisions may seriously affect an
individual’s rights, privileges, or interests, or where reasons are necessary for the
exercise of the right of appeal.

The issue of whether and to what extent a decision-maker is required to provide

persons affected with a decision has become increasingly important in recent years.
However, the question of whether administrators should be under a legal duty to provide
reasons, and the rationales for imposing such a duty, has proved contentious in domestic
administrative law systems. Some jurisdictions have addressed the issue legislatively,
simply imposing the duty in constitutions and administrative law
statutes/proclamations, while others developed this duty through case law. 69In
Ethiopia, for example, the duty to give reasons is stipulated under Article 30 of the
proclamation.70 This provision provides that the person rendering administrative
decisions should give sufficient reason for deciding how it is made. The explanatory
note on the Administrative Procedure Proclamation further stipulates that all
administrative decisions should be reasoned whether they are bound or discretionary,
irrespective of whether they denied or favoured the right or interest of the applicant. 71
The reason can emanate from the substance, legal ground, or evidence of the case.

Giving reasons is important because it is believed that forcing decision-makers to

give reasons for their decisions will lead them to make better and more accurate
decisions. The provision of reasons also facilitates judicial review by providing
information to the courts on the relative expertise of the initial decision-maker. The
provision of reasons by public authorities is essential for demonstrating that laws are
being applied consistently and carefully, thereby helping to promote public confidence

68
Kushner, H. L. (1985). The Right to Reasons in Administrative Law. Alta. L. Rev., 24, 305. P. 306
69
Opdebeek, I., & De Somer, S. (2016). The duty to give reasons in the European Legal Area: a
Mechanism for transparent and accountable administrative decision-making? a comparison of Belgian,
Dutch, French and EU Administrative Law. Rocznik Administracji Publicznej, 2. P. 97
70
Federal Administrative Procedure Proclamation, Proclamation No. 1183 /2020, Negarit Gazette No.
32 , April 7th 2020. (here in after called the proclamation)
71
The Legal and Justice Affairs Advisory Council of the Federal Democratic Republic of Ethiopia
Attorney General. (2021). Explanatory Note for the Provisions of Federal Administrative Procedure
Law. P. 34
 [74] Basic Principles of Administrative Law /Good Governance/

in public institutions. In addition, to give reasons is to invite accountability and

transparency, and to expose oneself to criticism; this helps to ensure that power is not
abused or arbitrarily exercised.

This is not to say, however, that inadequate reasons have no legal consequences.
The basis of the decision must be explained, and this explanation must be logically
linked to the decision made. Although inadequacy of reasons is not a “stand-alone”
basis for quashing an administrative decision, a judicial review of a decision may
succeed where the reasons for the decision do not support the decision. Where reasons
for a decision are provided, for the decision to be upheld on judicial review, it is
necessary for the reasons to clearly explain how that decision was reached.

To be sufficient, reasons do not need to include all the arguments, statutory

provisions, jurisprudence, or other details the judges presiding over the judicial review
might have preferred. A decision-maker is not required to make an explicit finding on
each element; however, reasons must be sufficient to fulfill the purposes required of
them, particularly to let the individual whose rights, privileges, or interests are affected
know why the decision was made and to permit effective judicial review.

In that regard Article 39 of the proclamation stipulates that an administrative

agency shall notify the concerned person of its decision and the reasons in writing. This
is because giving only the decision to the applicant is not sufficient as the applicant has
the right to know the substance, legal grounds, evidence, and/or other reason for the
decision. This assists in ensuring transparency and accountability.72

2.5.5 Transparency
Transparency means being open, communicative, and responsive. It is a principle
which advocates that refers to public bodies should be open to society to inform citizens
about their activity. 73 It means that public bodies should act openly to ensure the right
of the party or citizen to be informed about stages and the progress of the proceedings,
access to the files, and the right to be notified about the appropriate remedies to be
used.74 Transparency in decision-making makes decision-makers less prone to errors,
makes them subject to broader scrutiny. Transparency is a fundamental requirement for
a responsible government. This is because transparency promotes accountability and

72
The Legal and Justice Affairs Advisory Council of the Federal Democratic Republic of Ethiopia
Attorney General. (2021). Explanatory Note for the Provisions of Federal Administrative Procedure
Law. P. 35
73
Fisher, E. (2010). Transparency and administrative law: a critical evaluation. Current Legal
Problems, 63(1), 272-314. P. 275
74
Ibid
 [75] Basic Principles of Administrative Law /Good Governance/

provides information to citizens about what their government is doing. That is to say,
transparency in public administration greatly impacts on the process of public
administration and promotes efficiency, effectiveness, and responsiveness.

Ensuring transparency in Ethiopia is a constitutional duty stipulated under Article

12 of the FDRE Constitution. For that reason, Article 35 of the proclamation provides
a duty for administrative agencies to ensure that their decisions are transparent.
Accordingly, the person making administrative decisions should make the process and
the decision it gives transparent.

2.5.6 Public Participation

Public participation can be seen as any process/procedure that directly involves the
public in decision-making by which public concerns, needs, and values are incorporated
into governmental and corporate decision-making, aiming for better decisions that give
full consideration to public input in making that decision.75

There is also a growing recognition on the part of administrators that decision-

making without public participation is ineffective.76 Public participation has gained
importance in recent times’ administrative decisions as a result of a number of factors,
including the demand for more accountability from public officials. When citizens
participate in the decision-making process, public officials take their recommendations
or opinions into account. The main reason certain decisions encounter resistance and
dissatisfaction from citizens is that the citizens believe that the policymakers are
destined to address the problems of some interest groups and not the general interest of
the society.77

Thus, to promote open exchange, each agency shall endeavour to provide the
public with an opportunity to participate in the regulatory process.78 To the extent
feasible, each agency shall afford the public a meaningful opportunity to comment
through various means on any proposed regulation and all pertinent parts of the rule
that might affect the community.79 That is to say, before a given rule is enacted, each

75
Cătălin, B. A. B. A., CHERECHEȘ, R., Cristina, M. O. R. A., & ȚICLĂU, T. (2009). Public
participation in public policy process–case study in seven counties from North-Western region of
Romania. Transylvanian Review of Administrative Sciences, 5(26), 5-13. P. 6
76
Haruta, C., & Radu, B. (2010). Citizen participation in the decision making process at local and
county levels in the Romanian public institutions. Transylvanian Review of Administrative Sciences,
(31 E), 76-92. P. 78
77
Cramton, R. C. (1972). The Why, Where and How of Broadened Public Participation in the
Administrative Process, 60 Geo. LJ, 525, 538. P. 529
78
Ibid
79
Ibid
 [76] Basic Principles of Administrative Law /Good Governance/

agency shall seek the views of those likely to be affected, including those likely to
benefit, and those potentially subject to such rulemaking. In so doing, the Federal
Administrative Procedure Proclamation provides the requirement of notice under
Article 8 with the aim of ensuring public participation, transparency, and predictability
in the formulation and implementation of directives.

In that regard, whenever an administrative agency prepares a directive, it shall

publish a notice to enable citizens to participate in a meaningful way that allows having
a meaningful impact and to ensure that the directive is developed with qualitative input
from a variety of sources.

One of the reasons for making public notice mandatory is to enable anyone
interested to participate in the consultation process through written submissions and/or
oral hearings rather than limiting the consultation to the narrow circle of formally
invited guests.

In addition to the public notice under Article 8, an administrative agency is required

to directly solicit the opinion of relevant administrative agencies and other key
stakeholders and conduct public deliberation per Article 10 of the proclamation. In
general, an agency is required to consider specific conditions that could guarantee
public participation such as keeping records, publishing notices, and collecting
feedback through various means. Despite this, however, public deliberation may not be
necessary for some exceptional circumstances. These exceptions are provided under
Article 11 of the proclamations. These are the urgency of the matter in a context where
it is not appropriate to take time to fulfil these procedures, where prior notice may be
contrary to the public interest, and where prior notice will undermine the
implementation of the directive.

2.6 Summary

Though the rule of law is known by different terminologies in different parts of the
world, it is believed to be founded by Sir Edward Coke through formulating the first
statement of the rule of law when he said that the king must be under God and the law
and thus vindicated the supremacy of law over the pretensions of the executive.
However, the best known articulation of the doctrine of the rule of law is found in the
writings of Professor A.V. Dicey when he formulates three characteristics of the rule
of law— the principle of the supremacy of law (principle of legality), the principle of
equality, and the principle of constitutionalism. Accordingly, by the rule of law, we
mean that a decision or measure by any public official or administrative agency should
be made according to the law and should be supported by a law, which gives a clear
mandate or power to the decision-making organ. If a decision of any power or mandate
is exercised in the absence of a valid legal authority, it is considered null and void in
the eyes of the law.
 [77] Glossary

In addition to the rule of law, separation of power as the constitutional foundation

of administrative law helps evaluate a modern state’s legal and constitutional
arrangements. The underlying idea of the separation of power is that concentration of
power facilitates and encourages its abuse and that the separation of power provides a
foundation against such abuse. Thus, by separation of power, we mean none of the three
branches of government— the legislative, executive, and judiciary— should ever
exercise the powers of the other. Based on the clear notion of separation of powers,
administrative law violates the principle of the separation of powers since it recognizes
the exercise of judicial and legislative powers by administrative agencies.

This could only be justified on practical grounds and specific reasons relating to
expertise, and so on. However, the scope of delegation and exercise of such powers by
administrative agencies should be construed narrowly as administrative agencies’
judicial and legislative powers offend the traditional notion of the separation of powers.
Similarly, the judiciary in exercising its power of judicial review, should restrict itself
only to checking the legality of the administrative action without further moving to the
merits of the case.

Due process of law, as the constitutional foundation of administrative law, also

requires that no person shall be deprived of his life, liberty, and property by government
actions without notice and opportunity to be heard for such deprivation. This
constitutional guarantee of individual liberties, commonly known as the due process
clause, restricts on all organs of the federal and state governments, the legislature, the
judiciary, and the executive branch.

The mere existence of these constitutional principles do not guarantee the full
respect of individual rights and freedoms unless accompanied by the fundamental
principles of public administration such as fairness, reasonableness, proportionality,
duty to give reasons, transparency and accountability, and public participation.

2.7 Glossary
Good Governance:- is the process of administration of public institutions and
resources thereby guarantying the realization of human rights in a manner
essentially free of abuse and corruption and with due regard for the rule of law.

Tribunal: - is any person or organ destined with the authority to judge, adjudicate on,
or determine claims or disputes. This may include courts of law, arbitrations and
organs with the power to adjudicate

Magna Charta:- (Magna Carta Libertatum) is a royal charter (a formal grant issued
by a monarch under Royal prerogative) of rights agreed to by King John of England
at Runnymede John on June 15, 1215
 [78] Glossary

Check and balance:- is system whereby each organs of government control the other
or amend acts of another branch so as to prevent any one branch from exercising
beyond its power.

Public administration:- is a practice in which leaders and administrators administer

societies to advance the common good and effect positive change to the public at
large.

2.8 Review Questions

1) Discuss the difference between procedural elements of the rule of law and
“procedural justice”.

2) The rule of law is the foundation or cornerstone of administrative law.

However, in some respect, it is also a limitation on the scope of administrative
law. Explain.

3) Do you think administrative law violates the principle of the separation of

power? If yes, how do you justify such a violation?

4) Courts may review by moving to the merits of the case! Comment on the
validity of this assertion.

5) Does the FDRE Constitution explicitly refer to the rule of law as the
cornerstone of the Constitution?

6) How do you think substantive due process is respected?

7) How do you see the basic principle of good governance in line with the
Constitution? Do you think the FDRE Constitution guarantees such principles?

8) How do you think the rule of law maintains or facilitates economic

development?

9) Discuss the difference between “the rule of law” and “rule by law” briefly.

10) How do you see A.V. Dicey’s conception of the rule of law in line with
Wade’s notion of the supremacy of parliament?

11) One of the powers of the regional states under Article 52/2/a/ of the FDRE
Constitution is to establish a state administration that best advances self-
government, a democratic order based on the rule of law, to protect and defend
the federal Constitution. However, none of the provisions of the Constitution
 [79] Further readings

places the duty of establishing “a democratic order based on the rule of law” on
the Federal Government. Does it mean the Federal Government has no such duty
under the Constitution?

12) Is there any difference between "separations of powers," "separation of

functions", and “division of power”?

13) Separation of power is a nominal division of power among the three organs
of government. Do you agree?

14) What is the essence of due process in administrative proceedings?

15) Can you analyze the provisions of the FDRE Constitution that guarantee
procedural due process of law?

2.9 Further readings

 Wade, H. W. R. (1955). The basis of legal sovereignty. The Cambridge Law

Journal, 13(2), 172-197.
 Barnett, H. (2017). Constitutional & administrative law. Routledge. P. 59-96
 Krause, S. (2000). The spirit of separate powers in Montesquieu. The Review
of Politics, 62(2), 231-265.
 Conkle, D. O. (2006). Three theories of substantive due process. NCL
Rev., 85, 63.
 Waldron, J. (2021). The rule of law and the role of courts. Global
Constitutionalism, 10(1), 91-105.
 Eberle, E. J. (1987). Procedural due process: the original
understanding. Const. Comment., 4, 339.
[80] Further readings
 CHAPTER THREE

ADMINISTRATIVE AGENCIES

Chapter overview

This chapter explains what administrative agencies are, the form and nature of
their power, how they are created, and the types of agencies that governments
establish and why they establish them. It also explains the major functions and
powers of administrative agencies. In general, it gives students a brief
overview of administrative agencies in a constitutional or democratic system.

After studying this chapter, you will be able to:

Define administrative agencies
Analyze how the system of agencies developed
Discuss the kinds of agencies that governments establish and
why they establish them
Sort and define functions of administrative agencies
Explain the structure and classification of administrative
agencies
Define and explain the form and nature of the powers of
administrative agencies power

Chapter Table of Contents

3.1 Introduction ..................................................................................................... 82
3.2 Administrative Agency: Historical Development and Definition ............... 83
3.2.1 Historical Development ............................................................................... 83
3.3 Definition.......................................................................................................... 83
3.4 The raisons d 'etre for the formation of Administrative Agencies ............. 85
3.5 Formation of Administrative Agencies ......................................................... 87
3.6 Functions of Administrative Agencies........................................................... 87
3.7 Agency Structure and Classification ............................................................. 89
3.8 Form and Nature of Power ............................................................................ 90
 [83] Administrative Agency: Historical Development and Definition

3.9 Discretionary Power of Administrative Agencies ........................................ 91

3.9.1 The Necessity of Delegation ........................................................................ 91
3.9.2 Discretionary Power: Definition .................................................................. 91
3.9.3 Arguments for and against Discretionary Power of Administrative Agencies92
3.9.4 Express/Implied Power of Administrative Agencies .................................... 92
3.10 The Powers of Administrative Agencies.................................................... 93
3.10.1 Rule-making Power ..................................................................................... 93
3.10.2 Adjudicatory Power of Administration Agencies......................................... 93
3.10.3 Administrative Power of Agencies............................................................... 93
3.11 Summary ...................................................................................................... 95
3.12 Review Questions ........................................................................................ 95
3.13 Glossary........................................................................................................ 96
3.14 Further Reading .......................................................................................... 96

3.1 Introduction

The structure of the legislative and judicial branches of government has remained
largely the same over the past century. However, the structure of the executive branch
has changed dramatically. Departments presided over by ministers are still the core of
the executive branch, and the staffs of these departments continue to exercise powers
and make decisions subject to administrative law.

However, many of the former functions of departments are now carried out by a
complex network of administrative agencies, boards, and commissions collectively
known as “agencies” that are at an arm’s length from the minister, to whom they
report, and from department staff. This system gradually evolved in response to the
growing complexity of society. There are now such large numbers of departmental
branches or freestanding agencies that they have become recognized as a separate
“sector” within the executive branch. Some commentators go so far as to call them the
“fourth branch” of government, which has deranged our three-branch legal theories
because 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 power principle.1

Thus, under this chapter, attempts have been made to bring the fundamental
elements of administrative law together. In so doing, a comparative analysis of the
existing literature and laws has been made to portray administrative agencies’
historical evolution and definition. Additionally, the modes of creating administrative

1
Strauss, P. L. (1984). The place of agencies in government: Separation of powers and the fourth
branch. Columbia Law Review, 84(3), 573-669. P. 578
 [83] Administrative Agency: Historical Development and Definition

agencies and their ultimate functions are sorted and analyzed. Besides, agencies'
structures and their classification have also been elaborated by considering various
feasible factors. Furthermore, the form and nature of agencies' powers have also been
presented in this chapter. Finally, administrative agencies' tripartite functions have
been discussed in this chapter.

3.2 Administrative Agency: Historical Development and

Definition
3.2.1 Historical Development
A bird’s-eye-view of Ethiopian history reveals that the history of administrative
agencies in Ethiopia is a recent phenomenon and came into existence after the
establishment of the different ministries in 1908. Hence, the reign of Menelik II can
be considered the foundation for the formation of administrative agencies in the
history of the country. Later, the 1931 Constitution drew up a provision empowering
the emperor to organize and regulate administrative bodies. The aftermath of
liberation has also complicated the structure of administrative agencies following the
prime minister’s introduction in 1943 ministerial setup. Order no. 1 was issued to ease
the difficulties and created new ministries that raised the number of the ministries to
eleven in 1961.

The 1995 Constitution of the FDRE2 has developed a more comprehensive

approach to setting up administrative agencies in Ethiopia. By doing so, Article 77/2/
of the Constitution empowers the Council of Ministers to decide on the organizational
structure of the ministries and agencies responsible for them.

Moreover, the Constitution also included an enabling clause for forming

independent administrative agencies. The Parliament recently adopted the Federal
Administrative Procedure Proclamation No. 1183 /20203 to regulate administrative
agencies’ intervention against people’s rights and interests.

3.3 Definition

Structural differences, along with the growing and complex functions of

administrative agencies beyond their natural jurisdiction in the areas of legislation and
adjudication in the radical and modern notion of state, have made it much more
challenging to provide a precise and descriptive definition of administrative agencies

2
Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No. 1/1995, (1995).
3
Federal Administrative Procedure Proclamation, Proclamation No. 1183 /2020, 26th Year No.
32(2020).
 [83] Administrative Agency: Historical Development and Definition

that portrays the entire process of public administration.

Hence, any attempt to define “administrative agency” will be challenging.

However, looking at the available scholarly literature and norms is extremely
important for insight into defining and understanding agencies. Various definitions
from the available literature and laws are noted here below.

Some accords on administrative law4 provide that an administrative agency is a

"governmental authority, other than a court and other than a legislative body, which
affects the rights of private parties through either adjudication or rule-making."
Likewise, the US Administrative Procedure Act5 takes the same position as the previous
definition and defines "agency" to mean any branch or agency of the government "other
than Congress, the courts, or the governments of the possessions, territories, or the
District of Columbia."

The aforementioned definitions have included various elements of the executive

wing, including the heads of state and other medium and lower-level cabinet officers
involved in public administration affecting the rights and freedom of individuals.
However, though such definitions may be appropriate for legal control, they are rather
broad and diffuse for study and analysis.6 Thus, looking at existing legislation may shed
some light on the definition of administrative agencies in Ethiopia, and is discussed
below.

Article 2(1) of the Federal Administrative Procedure Proclamation7 defined

“Administrative Agency” as an Executive Organ of the Federal Democratic Republic
of Ethiopia duly established by law and includes the Executive Organs of City
Administrations accountable to the Federal Government.

Likewise, the definition of the proclamation has adopted a very broad definition
that would incorporate all executive organs of the Federal Government, including the
executive organs of Addis Ababa and Dire Dawa City Administration, to the exclusion
of the legislative and adjudicatory branches of government. It is useful to raise
questions— such as, what are the executive organs of the federal government?— to
shed some light on the definition of administrative agencies under Ethiopian law. In

4
Clark, C. E. (1958). Davis: Administrative Law Treatise--A Symposium Review. Minn. L. Rev., 43,
601.
5
United States Code: Administrative Procedure 60 Stat. 237 (1946), 5 U.S.C. § 1001(a) (1964).
6
Loevinger, L. (1964). The Administrative Agency as a Paradigm of Government--A Survey of the
Administrative Process. Ind. LJ, 40, 287. p. 288.
7
Federal Administrative Procedure Proclamation, Proclamation No. 1183 /2020, 26th Year No.
32(2020).
 [85] The Raisons D'etre for the Formation of Administrative Agencies

so doing, consulting the expose de motif8 of the proclamation is helpful.

The legislature has envisaged two organs that would be fundamental definitional
elements of an administrative agency. Accordingly, government ministries which are
the permanent members of the Council of Ministers are recognized as the primary
executive organs of the Federal Democratic Republic of Ethiopia.9 Moreover, in the
same category, while at different levels of government bodies, which do not have the
status of ministries but are established by law (by proclamation or regulation), which
comprises agencies, commissions, or authorities, and other organs with similar status
and accountable to the executive are also considered as essential executive organs that
would constitute a key definitional element.10

The other organs that bring the definition of administrative agency of the
proclamation into existence are independent administrative agencies such as the
Electoral Board, the Federal Auditor General, and the Office of the Ombudsperson11,
which are directly accountable to the parliament.

Hence, “Administrative Agency”, under the proclamation, means an executive

organ, which includes the ministries and other medium and lower-level authorities,
the executive organs of Addis Ababa and Dire Dawa City Administration that are
ultimately accountable to the Council of Ministers, and independent agencies
accountable to the Parliament.

3.4 The Raisons D'etre for the Formation of Administrative

Agencies
There are various reasons behind the formation and operation of administrative
agencies. From the outset, the legislature has formed agencies to enable them to fill
the possible gaps left by the parliament and the judiciary in addition to their inherent
power of enforcing laws and ultimately solving prevailing social, economic, and
political problems.

For instance, generality is the basic feature of parliamentary legislation since the
lawmaker cannot legislate each and every detail of the prevailing problems with
sufficient precision. Hence, putting administrative agencies in place and delegating

8
The Legal and Justice Affairs Advisory Council of the Federal Democratic Republic of Ethiopia
Attorney
General. (2021). Explanatory Note for the Provisions of Federal Administrative Procedure Law.
9
Ibid.
10
Ibid.
11
Ibid.
 [85] The Raisons D'etre for the Formation of Administrative Agencies

specific tasks would be paramount. Similarly, it is not possible to expect courts to

preside over all disputes and dispose of accordingly. Establishing administrative
tribunals under the executive’s auspice would then ease the caseloads of the court and
provide expedient and fair justice for persons in need of it. Therefore, creating
administrative agencies would provide the advantage of specificity.

Another reason for creating agencies is the critical need to protect society. Some
circumstances need the protection of administrative agencies. For instance, in the
absence of the Environmental Protection Agency, controlling environmental pollution
would have been challenging. Hence, protecting the environment in particular and the
society in general are among the rationales for bringing administrative agencies into
existence.

The other possible reason may be to demonstrate independence. The government

may want to ensure that decisions on specific issues are not seen to be “political”. An
independent agency that is also perceived to be independent can demonstrate that its
function and decisions are free of political influence.

Sometimes, to reduce the size, workload, or budget of a department, the

government may establish an external agency to carry out some of the functions of
that department in order to save space, achieve more efficiency in the delivery of
services, or reduce costs. Similarly, where several departments or ministries carry out
similar or related functions, the government may create a new agency to carry out
those functions, or it may set up an advisory agency to help coordinate the activities
of all the departments to achieve coordination or uniformity. In addition, where one
government department carries out two or more functions that may come into conflict,
the conflict may be resolved by “hiving off” some of the department’s functions to
independent bodies to reduce conflicts of interest between departments’ tasks.

Another important reason is to provide expertise and specialization. The

government may want to obtain expertise in a particular subject matter that is not
readily available within the civil service. The use of outside bodies to bring expertise
to a problem is common in the setting of technical standards, the provision of advice,
and the regulation of specialized businesses, trades, and professions.

Last but not least, providing services is also among the rationale for forming
administrative agencies. Providing service is among the major responsibilities of the
government. Thus, the parliament may create administrative agencies and act
accordingly to discharge its responsibility. The Public Servants Social Security
Agency and Private Organization Employees' Social Security Administration provide
pension services to public and private employees. The Ministry of Health provides
health services to citizens through public hospitals and other health institutions.
 [87] Formation of Administrative Agencies

3.5 Formation of Administrative Agencies

Administrative agencies are established by the law. Enacting specific legislation

that would give birth to administrative agencies preceded the latter. Administrative
agencies do not come into operation in a vacuum. Enabling laws are fundamental
precondition for bringing administrative agencies into existence. However, there are
two ways of creating administrative agencies: one is through the constitution, and the
other is through an act of parliament. Depending on the nature of the agencies, the
enabling act may differ from one to another. While most federal administrative
agencies are within a department of the executive branch, sometimes called regular
agencies, the House of Peoples’ Representatives has designated some agencies as
“independent”- not within any department of the federal government and not under
the supervision of the Prime Minister or the Council of Ministers. For instance, the
FDRE Constitution expressly requires establishing some independent agencies, such
as the Office of the Federal Auditor General, the National Electoral Board of Ethiopia,
and the Human Rights Commission.

Even though those independent agencies are the Constitution’s creation, they do
not have material and legal existence unless the Parliament enacts a specific law to
that effect. Thus, one can argue that the Constitution has conceived independent
agencies and that the act of the Parliament birthed them. Independent agencies, which
have a constitutional basis, still require an enabling act of the parliament for their legal
existence. On the other hand, dependent agencies are created only through the enabling
act, and their existence is completely contingent upon the assent of the Parliament.

3.6 Functions of Administrative Agencies

Administrative agencies serve certain governmental purposes more efficiently
than traditional judicial and legislative organs.12 Administrative agencies serve three
distinct functions— executive, quasi-legislative, and quasi-judicial.13 The
fundamental functions of administrative agencies are presented as follows.

Unlike other functions, enforcing or executing regulations is the ordinary power

of administrative agencies. In so doing, the administrative agencies investigate
complaints and identify conducts that are alleged to violate applicable laws. Moreover,

12
Functions and Character of Administrative Agencies. Available at:
[Link]
13
Jason Gordon. (2021, September 23). Functions of Administrative Agencies – Explained. The
Business Professor. [Link]
administrative-agencies.
 [87] Formation of Administrative Agencies

they monitor compliance and advise the legislature in drafting a bill and promulgating
laws.

The other fundamental function of administrative agencies is issuing regulations

that have a binding effect, like laws enacted by Parliament. Enacting laws is an
inherent power of the legislature; however, due to the generality attribution of the
status, the laws are not specific enough to address all the remaining issues in detail.

The regulations issued by administrative agencies are specific and outline how
individuals should proceed to comply with the regulations and will identify conduct
that fails to comply with the regulations. Conduct that fails to comply with the statutes
would be unlawful and may be redressed accordingly.

Likewise, adjudication is an inherent jurisdiction of a court. However, some cases

arise out of regulations that are beyond the reach of the regular court. Some matters
are properly adjudicated within agencies due to the strict procedure followed by courts
and the technicality of the issues involved.

In their proceeding, administrative tribunals follow a seemingly similar but more

flexible procedure compared to regular courts. Thus, the tribunals may resolve a
dispute and impose fines or sanctions for unlawful conduct. The sanction may include
issuing an injunction directing a person to cease doing a specific action that violates
the regulations. However, administrative tribunals cannot authorize or order the
detention of individuals.

Besides these, administrative agencies have the following functions:

Distribution of Benefits: Administrative agencies distribute government benefits

such as welfare, disability benefits, old-age benefits, medical care for poor people and
seniors, loan guarantees for home buyers and students, and subsidies for industries
such as agriculture. Agencies often adjudicate disputes that arise in these areas.

License and Permit Granting and Enforcement of Standards: Agencies rule

on requests for licenses and permits in a wide variety of areas, including the
construction and operation of nuclear power plants, logging on federally owned forest
land, operation of stockyards, ownership and operation of television and radio stations,
the sale of insurance, the operation of commercial airlines, and the scores of
occupations that require licensing, such as lawyers and doctors. In addition to granting
licenses, agencies monitor and enforce compliance with regulatory standards in the
areas in which licenses and permits are required.

Policymaking: Agencies make important policy decisions in most of the areas in

 [89] Agency Structure and Classification

which they administer government programs.

Management of Resources and Government Property: Agencies manage

natural resources such as parks and wilderness areas, and they oversee the use,
maintenance, acquisition, and disposal of government property.

3.7 Agency Structure and Classification

The structure of an administrative agency may vary depending on government

policy and the program the agency is aspiring to carry out. Furthermore, since the law
simply defines the power, duty, function, and structure of administrative agencies in
broad terms, the structure of administrative agencies, including their internal
regulation, would consider multiple factors.

As a result, the type and scope of government program, the extent of its power,
and the nature of the mission to be accomplished by the agency outlined in the
enabling act are among the factors to be taken into consideration before designing the
appropriate structure and organization.14

Moreover, establishing the structure and internal administration of agencies

requires expertise and specificities beyond the legislature’s reach. To this end, the
FDRE Constitution empowers the executive, specifically the Council of Ministers, to
determine the structure and internal administration of administrative agencies. In so
doing, the Council of Ministers shall form administrative agencies' structure and
internal regulation to ensure efficiency and quality in public administration.

Thus, some administrative agencies are ministries with overwhelming power to

enforce the existing legislation. However, others are lower-level administrative organs
with the mandate to deal with specific tasks of governmental undertakings. Therefore,
the structures of administrative agencies may be comprised of boards, ministries,
commissions, departments, and other governmental institutions established to perform
certain narrowly defined tasks or to be responsible for particular governmental
functions.

Based on the question of whom these administrative agencies are accountable, we

may classify administrative agencies into two categories. Those administrative
agencies directly accountable to the executive wing of the government are called
executive agencies. On the other hand, administrative agencies which are accountable

14
Abyssinia Law. (2022). Formation of Administrative Agencies. Abyssinia Law.
[Link]
administrative-agencies.
 [89] Agency Structure and Classification

to the parliament are known as independent agencies.

In Ethiopia, executive agencies are accountable to a concerned ministry

depending on the nature of the agencies and, ultimately, they are accountable to the
Council of Minisers, headed by the Prime Minister, since Article 72(1) of the FDRE
Constitution has made the Prime Minister and the Council of Ministers the highest
executive organ in the country. As a result, the executive branch of the government,
headed by the Prime Minister and his cabinet, has a constitutional mandate to ensure
the implementation of laws, regulations, directives, and decisions of the House of
Peoples’ Representatives.

However, while most agencies are under the auspices of the executive branch of
government, the Parliament has also established the remaining agencies with a high
degree of autonomy, fundamentally free from control by other parts of the executive
wing of the government. These independent agencies are accountable to the House of
Peoples’ Representatives.

Even though the Parliament is mandated to bring administrative agencies to life,

these agencies were first conceived by the Constitution, as discussed before.
Independent agencies are generally not part of any executive department headed by
the Prime Minister. This is to protect these agencies from undue influence by the
executive. Additionally, their establishment and existence are not dependent on the
volition of the House of Peoples’ Representatives. Since the source of their existence
is the Constitution, Parliament must bring about their physical existence through an
enabling act. Among independent agencies, notable ones are the Ethiopian Human
Rights Commission, the Institution of the Ombudsman of the Federal Republic of
Ethiopia, and the National Electoral Board of Ethiopia.

3.8 Form and Nature of Power

The powers of administrative agencies have been primarily derived from

legislative delegation. As discussed, an administrative agency lacks the inherent and
constitutional authority to act. However, the Parliament also has no practical capacity
to address and enforce each and every specificity of the law; hence, the legislature
must delegate some of its own power to the administrative agencies. As far as the
extent of delegated jurisdiction is concerned, there are no common denominators, and
it may vary depending on the aspiring objectives that need to be achieved by
administrative agencies.

Nevertheless, the enabling acts that gave birth to administrative agencies and
delegated power to those agencies must put reasonable limitations in place on the
delegated authorities of administrative agencies. Thus, delegation and its limitation
are among the cardinal principles of administrative law.
 [91] Discretionary Power of Administrative Agencies

Moreover, depending on the very nature of the activities supposed to be

performed, the delegation may be quite specific and confined to a limited number of
undertakings, or it may be quite broad, authorizing more discretionary power for
administrative agencies.

3.9 Discretionary Power of Administrative Agencies

3.9.1 The Necessity of Delegation
As pointed out before, there are visible limitations on the legislature to forecast
and address all specificities of the regulations. The Parliament cannot forecast and
incorporate general legal norms that could regulate all cases that may occur in real
life.15 Hence, it is a must to delegate some natural and inherent jurisdiction of the
legislature to administrative agencies since the latter is supposed to possess the
required expertise and time to deal with each specificity of the regulations. As a result,
administrative agencies cannot be tied to rigid and abstract legislation but inevitably
must be free to assess the circumstances of each particular case.16

3.9.2 Discretionary Power: Definition

The term “discretionary authority” means an authority with which the

administrative authority has been entrusted with a certain degree of freedom in terms
of making a decision, in other words, to choose one of many legally admissible
decisions that it considers most appropriate.17 However, in so doing, the discretionary
power of the administrative agency must be brought within the authority and per the
objective to be achieved by such authorization.18 Hence, the enabling act that
delegated administrative power should determine the objectives of the delegation in a
clear and precise manner to curtail possible abuses of power by the agencies.

Moreover, the discretionary acts should be taken by the competent authority, in

prescribed procedure and on the basis of established legally relevant and facts.19 In
addition, some critical issues, such as the ultimate jurisdiction of the Parliament and
the procedure for the adoption of the act cannot be subject to the discretionary power

15
Ventose, E. (2012). Commonwealth Caribbean Administrative Law. Routledge. P.149-150
16
Dejan Vitanski. (2025). Discretionary Powers of the Administration. Journal of Process
Management – New Technologies, International, 3(2), 27-29.
17
Компилација на инструменти на Советот на Европа. (2005). Compilation of the instruments of
the Council of Europe. Cited in Dejan Vitanski. (2025). Discretionary Powers of the Administration.
Journal of Process Management – New Technologies, International, 3(2), 27-29. P.28
18
Ibid.
19
Richard B. Lillich. (1991). International Human Rights: Problems of Law, Policy and Practice.
Cambridge University Press.
 [91] Discretionary Power of Administrative Agencies

of administrative agencies.

3.9.3 Arguments For and Against Discretionary Power of

Administrative Agencies
There are two-fold arguments concerning the discretionary power of
administrative agencies. The first line of argument is based on the following
proposition: Since administrative agency rules and regulations often have the force of
law against the rights and freedoms of individuals, some scholars criticize the
discretionary power of agencies to do different activities. From the outset, allowing
discretionary power for administrative agencies violates the basic constitutional
maxim that allows the legislature to make laws. Rulemaking is the inherent and
constitutional mandate of the legislature. Hence, any undertaking that could take away
the inherent and constitutional rights of the legislature in any form should be
unconstitutional and void.

Proponents of discretionary power for administrative agencies, on the other hand,

emphasize that administrative agencies are most often the creations of Parliament, and
the latter has established the former with discretionary power to act on its behalf in
cases where it has been unable to reach the specifics of the regulation. Furthermore,
they also note that administrative agencies are much more effective than the judiciary
in providing adequate, flexible, and expedient justice on relatively minor or
exceedingly complex disputes.

3.9.4 Express/Implied Power of Administrative Agencies

The “express power” of administrative agencies refers to the power expressly
granted to the administrative authorities under their enabling act. As stated before, the
enabling act— sometimes called an agency’s organic act, parent act, or establishment
act— is the fundamental source of power that has expressly allocated defined powers
for administrative agencies. However, there are also implicit powers that have not been
expressly provided under the parent act since the legislature is not accurate enough to
forecast the day-to-day activities of the regulation and public administration. In this
case, the implied power should, in any case, be made in the public interest.20 A brief
description of the three powers of the administrative agencies is presented here below.

20
Compilation of the instruments of the Council of Europe. (2005).
 [93] The Powers of Administrative Agencies

3.10 The Powers of Administrative Agencies

3.10.1 Rule-Making Power
Delegated legislation of administrative authorities refers to the power of
administrative agencies that the Parliament has delegated to make binding legal rules.
As discussed, human fallibility coupled with the complex and dynamic nature of the
modern notion of the state obliged the Parliament to delegate some of its inherent and
constitutional mandates, including law-making power to administrative agencies.
Administrative agencies are supposed to be capable enough to address the day-to-day
business of public administration with adequate specificity. Besides, efficient and
quality public administration requires the enactment of legal rules, flexibility to the
existing situation, and dealing with complex technical matters as a fundamental pre-
condition. In so doing, the agencies should exercise their power within the limits of
the laws to attain their foundational objectives. However, sometimes practical
challenges or abuse of power may occur in the execution of regulation. Hence, the
Parliament should introduce a controlling mechanism, including providing specific
rule-making procedures along with the delegated authorities.

Likewise, Article 4(1) and (2) of the Federal Administrative Procedure Law has
also empowered administrative agencies to adopt the directive based on the power
delegated to them by law. Hence, administrative agencies are at liberty to make rules
only within the space left by the parent act.

3.10.2 Adjudicatory Power of Administration Agencies

To provide speedy and inexpensive justice to society, parliament delegates some

of the inherent and constitutional power of the judiciary to administrative agencies.
Delegated adjudicatory power of the judiciary may include the imposition of sanctions
and making administrative decisions, including but not limited to revocation of
licenses and deportation of aliens. In so doing, administrative agencies follow a similar
procedure in the disposition of justice for the needy. However, agencies may abuse
their mandates in presiding over the cases and disposing of decisions. Thus, while
granting such powers, the Parliament has put some oversight mechanisms in the
adjudication process such as judicial review in place.

3.10.3 Administrative Power of Agencies

Administrative agencies are assigned by the legislature with the authority to direct
and supervise the implementation of legislative acts. Thus, they have important
functions, which are discussed below.

Regulation is the primary function of administrative agencies. It is quite clear that

 [93] The Powers of Administrative Agencies

there have been instances where certain sectors of the country have failed to regulate
themselves. In this case, putting the regulatory role of administrative agencies in place
would be helpful in protecting that particular sector and society from possible
disasters. For example, there were critics of liberal economic philosophy because it
advocated for a free market economic system with no significant state intervention.
However, various historical incidents have demonstrated the market's inability to self-
regulate and revealed economic and environmental casualties. As a result, scholars
have advocated for the state’s intervention in the market. In so doing, establishing
administrative agencies and putting them into operation would be paramount since,
unlike the lawmakers or the court, administrative agencies should have sufficient time
and expertise to regulate the market.

Moreover, administrative agencies may also intervene in the market to control

monopolies. Unregulated competition may lead to the monopoly of the sector by a few
individuals or groups and nurture unequal bargaining power. Hence, establishing
administrative agencies and putting them into operation is very important to level the
playing field since they may determine rates in sectors such as transportation, and
regulate financial markets and the banking sector. Furthermore, agencies may also
regulate the economy to compensate for externalities, such as discrepancies between
the cost of producing something and society’s true cost for producing goods. Hence,
administrative agencies may require industries to make the necessary investments,
such as installing essential equipment to mitigate the effects of their waste on the
environment and thereby spread the costs of pollution control over the entire industry.

The second function of administrative agencies is government exactions. Under

this function, administrative agencies are supposed to discharge their primary
responsibilities, such as the collection of taxes. The provision of goods and services is
the third major function of administrative agencies. The government has an obligation
to provide goods and services such as education, health, roads, and so forth to the
public. To do this, creating administrative agencies is a must. Finally, the fourth major
function is the disbursement of money or other commodities by administrative
agencies. In so doing, the government, through its social security scheme, disburses
public money as payment for pensions.

Furthermore, administrative agencies have other subsidiary powers. Their power

consists of advisory and investigative powers. In their advisory function,
administrative agencies submit reports of their law enforcement activities to the head
of the executive and, ultimately, the parliament. Under their advisory power, the
agencies may take legal action when there is a violation of laws, publicize the
necessary information for the general public, and propose new legislation to the
parliament since they have first-hand information on the implementation of legislation.
 [95] Summary

Under their investigative power, agencies may also investigate activities and
practices that are alleged to be unlawful. As a result, agencies can gather and compile
information concerning the organization and business practices of any corporation or
industry engaged in commerce to determine whether there has been a violation of any
law.21

3.11 Summary
Under the Administrative Procedure Proclamation, the term ‘administrative
agency’ means an executive organ, including the ministries and other medium and
lower-level authorities, the executive organs of Addis Ababa and Dire Dawa City
Administration, all of which are ultimately accountable to the Council of Ministers.
The definition also includes independent agencies which are accountable to the
Parliament.

Enabling laws are a fundamental precondition for establishing administrative

agencies. There are two ways of creating administrative agencies: one is through the
Constitution, and the other is through an act of Parliament. Hence, agencies can be
classified as executive or independent based on their accountability.

The enabling act is the fundamental source of power for administrative agencies;
hence, the scope of their power should be interpreted in line with their enabling acts.
Administrative agencies serve three distinct functions— executive, quasi-legislative,
and quasi-judicial.

3.12 Review Questions

1) What is an administrative agency?

2) Read Article 37 of Proclamation No. 416/2004 and discuss whether or not Dire
Dawa City Administration Council can set a tax rate for real property. If yes, is it
rulemaking or adjudication, and why? Where would one go to contest the rate?

3) Some argue that allowing administrative agencies to have delegated legislative

and judicial jurisdiction would affect an individual’s rights and liberty. Would you
agree? Why? Or why not?

4) List as many reasons as you can why a government might set up a separate

21
Cane, cited in Aberham Yohannes & Desta G/Michael. (2009). Administrative Law Teaching
Material. Justice and Legal System Research Institute.
[95] Summary

agency instead of having a department carry out a function.

5) What are the basic criteria to qualify a certain entity as an administrative agency?

6) "Independent agencies are the creation of the Parliament, and they do not have a
separate existence from the acts of the Parliament". Do you agree? Why? Or why not?

7) What is the fundamental difference between a regular (dependent) agency and an

independent agency? What branches of government are independent agencies?

8) Discuss instances under which the regulatory function of the administrative

agencies is needed.