Law & Administrative Authorities

Dr. Dwasi Jane

Administrative Law is the law relating to publicadministration. Administration is the act of processof administering, which simply means it is the actof meting out, dispensing, managing, supervising andexecuting etc. It is the law relating to control of governmentalpower. It can also be said to be the body ofgeneral principles, which govern the exercise ofpowers and duties by public authorities.

The primary purpose of administrative law,therefore, is to keep the powers of governmentwithin their legal bounds, so as to protect thecitizen against their abuse. Administrative law isalso concerned with the administration anddispensation of delivery of public services.However it does not include policy making.Administrative is concerned with the governmentcarries out its tasks.

What are the government tasks, delivery of publicservices such as health, security, facilitatingtrade, arbitration of disputes, and collection ofrevenue. We are concerned about various publicinstitutes of the government, ministries etc.

Administrative law is the law relating to theexecutive branch of government. The law deals witha variety of things i.e. the establishment of public

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authorities e.g. the city council, establishment ofpublic bodies and organs.

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

The legal relationship between the public bodiesthemselves and also between the public agencies andthe public and between public agencies and thecitizens.

Administrative Law is concerned with the means bywhich the powers and duties of the various publicagencies, public bodies and public institutes can becontrolled.

THE FUNCTIONS/PURPOSES OF ADMINISTRATIVE LAW

It ensures proper dispensation of services.

It seeks to protect citizens from abuse of power.

The primary purposes of administrative law is1. To keep the powers of government i.e powers of

various public bodies within their legalbounds, so as to protect citizens from theirabuse. Abuse of power can arise from eitherlocal authorities, ministers, localauthorities etc. either from malice, bad faithor even from the complexities of the law.

2. There are duties placed in public bodies(public institutions) such that anotherfunction of the law is to see that the dutiesare performed and that the public agencies can

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be compelled to perform their duties wherethere is laxity or where they refuse orotherwise fail to do so.

The course will cover

1. Structure and the constitution i.e. Make up ofadministrative institutions bodies, agenciesetc. e.g. local government and civil service.

2. The law relating to the functions powers andduties;

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

The laws include1.Acts of Parliament; ie. Statutes creating and

governing public agencies as well as otherstatutes.

Local government ActCivil ProcedureOfficial Secrets ActService Commission ActLaw Reform Act

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

3.Judge made rules and doctrines as appear incourt decisions on various cases concerningpublic administration otherwise known as staredecisis

4.The Constitution; (the public servicecommission is a creation of the constitution)the constitution in addition lays out thedivisionaltutions powers between variousbranches of the government. i.e. the Executive

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the arm that carries out governmental functions.The constitution also creates the Legislature itis the legislature that enacts the variousstatutes. The constitution also provides forthe control of the exercise of the powers ofpublic bodies and organs through the courts. Itdoes this by establishing the High Court and italso gives the High Court inherent powers overpublic bodies. The High Court has a supervisorypower over the constitution.

HISTORICAL BACKGROUND OF ADMINISTRATIVE LAW:

IN ENGLAND

In England public administration by the governmentgrew out of the necessity and the realisation thatit was the duty of the government to meet the needsof the population and to provide remedies for socialand economic evils of many kinds.

It was realised and indeed it was necessary that thegovernment cares for its citizens from the ‘cradle to the grave’ it was also realised that it was necessary to protect the environment for the people,to educate them at all stages, to provide medical services, to house them, to provide them with employment etcetera. The needs were various. Little can be done merely by passing Acts of Parliament and leaving it to the courts to enforce them. There are far too many problems of detail, and far too many matters which cannot be decided in advance. There must be discretionary power and if discretionary power is to be tolerable, it must be kept under two kinds of control: political control

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through parliament, and legal control through the courts. Equally there must be control over boundaries of legal power, as to which there is normally no discretion. If a water authority may levy sewerage rates only upon properties connected to public sewers, there must be means of preventing it from rating unsewered properties unlawfully. Thelegal aspect of all such matters are the concern of administrative law.

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

Before mid 17th century in England the Justices ofPeace were used for all purposes of publicadministration upto the lowest level of authority.they received instructions from the crown or thesovereign through the commissioners of assize andconveyed instructions to the people.

They also received complaints from the citizens andconveyed those complaints to the crown for redressthrough the commissioners. A star chamber wascreated to punish those who disobeyed instructionsfrom the King. They also punished those againstwhom redress of grievances lay. The process wasvery long and cumbersome and many grievances andneeds remained without redress.

In those days the system of administration as itexisted in England today did not exist for examplethe power of the state or the power of crown couldnot be challenged at an administrative level.

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A major change in the system of government occurredbeginning in the mid 17th century with theintroduction of a representative system ofgovernment. Through this system citizens couldchoose representatives to present their needs andgrievances to parliament for redress. Parliamentresponded by enacting a variety of statutesestablishing various governmental bodies, organs andoffices to provide various services, to controlcertain activities such as industrial processes inorder to prevent harm to citizens and to addressmany other kinds of grievances.

The creation of various public bodies, institutionsand offices by statutes to provide public servicesand to exercise controls meant that two things hadhappened, first of all, the public bodies have beengiven various duties to perform and two, they havebeen given powers to exercise their duties includingdiscretionary powers.

The grant of power including discretionary powerscreates the likelihood of abuse of those powers.Secondly it is always possible for grievances toarise out of the public duty to provide services forexample where a body refused to deliver services andthis necessitated the law to govern the publicbodies. The relevant law governing all theseaspects of public administration became known asadministrative law or law and administrativeprocesses and this system of law was introduced intoKenya through colonization in a gradual processwhich we shall discuss shortly.

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HISTORICAL DEVELOPMENT OF ADMINISTRATIVE LAW INKENYA:

The system of administrative structures that existtoday did not exist in pre-colonial societies.There was also no system of ad law or customary adlaw that resembles the current system. The currentadministrative system with its system ofadministrative laws only came with the advent ofcolonialism in the second half of the 19th Century.In the pre colonial period, societies were of simplecharacter in the sense that they primarily sought tosatisfy immediate basic needs. These were food,shelter and security. Therefore the cultures andtraditions of these societies and religions whichconstituted their laws were built around food,shelter and a quest for basic security. These werethe primary needs that both the pastrolists and theagrarian societies sought to satisfy. Even thoughtheir slightly differing economic approachesdictated a somewhat differing kinds of polity(societal political set-up)

Invariably systems of leadership existed among thedifferent tribes in which the political leadershipwas either entrusted with an age set and handed downfrom generation to generation i.e. from one age-setto another as in the case of the Kikuyu tribe or thesystem of leadership included a foremost leader,priests, medicine-men or warriors as was the casewith the Luo tribe. Some of the tribes such as theKikuyu entrusted their political, judicial andreligious functions and (which formed the primaryfunctions of their governance system to a council ofelders) this council of elders loosely comprised

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persons specialising in particular matters accordingto knowledge and interest. For such communities thecouncil of elders made all the important decisionsof common interests.

At a larger level constituting more than onecommunity, political actions, main militaryoperations were conducted as directed by age-sets.At this level each community spoke through aspokesman, who was not necessarily a chief but wasno more than the chairman of a territorial unit.They spoke on matters of concern mainly food,shelter and security. Chiefs hardly existed.

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

The political systems which also comprised somerudimentary administrative elements were conceivedand practiced in accordance with luo cultures andsupported not by a system of formal laws and publicadministration but by various forms of religions, byculture, traditions and rituals of the tribes.

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The traditional systems revealed a simple andrelatively informal governmental system, localisedand apparently not designed for the modern states.In some societies there was a remarkable overlap andfusion in the operation of the various societyinstitutions.

Nevertheless in all cases a framework of stabilityexisted which even though precarious framework whichserved the needs of the time by enabling eachcommunity to meet their basic necessities and keepsome kind of basic peace.

Traditional societies existed as they were until1895 when the British government declared aProtectorate status over the region over Kenya. Thecommencement of the protectorate marks the beginningof direct British government administration in theregion. This was to see the importation of Britishsystem of governance including its system of publicadministration.

Between 1895 and 1897, the colonial government wasmainly preoccupied with boundary demarcations andterritory acquisition such that by 1897 nocomprehensive system of formal administration ofKenya had been established.

African tribes remained subjects of their localleaders under the various political systems of thetribes. Full jurisdiction over all the people inthe region now Kenya was not conferred on theprotectorate until the passing of the East AfricanOrder in Council in 1902.

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The order empowered the British Commissioner who hadbeen empowered to act on behalf of the Queen in theregion to make ordinances for peace, order and goodgovernance of all persons in the protectorate.

By the Order in Council of 1902, the High Court wasestablished with full civil and criminaljurisdiction and the establishment of the regularadministration began.

This development was dictated in the initial yearsby the stronger private demands of the growingEuropean settlers. For the most part the new systemof Administrative government developed parallel tothe ethnic system.

The first step in this development i.e. thedevelopment of a regular administrative structurewas the passing in 1902 of the Townships Ordinance,under which Nairobi and Mombasa Townships wereestablished. Further developments had the effect ofbringing native people physically andpsychologically out of their social culturally andpolitical rootage. This included the passage of theHut Tax Ordinance in 1903 to provide funds tosupport the colonial government structure. In thesame vein a Legislative Council was established.The Legislative Council was charged with makingvarious ordinances and was comprised of the 3people, the governor and 2 other people.

Constitutional law and administrative law aresubjects which interlock closely and overlapextensively. The rule of law, for instance, is abasic concept which runs through them both and which

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offers scope for political theory as well as for thediscussion of its practical features which will befound below. But other such universals are noteasily found in the field of administrative law, andthe lack of them limits the assistance whichpolitical theory can provide.

Administrative Law & Agencies Lesson 44.10.02

DUTIES OF THE TREASURER

1. He is the chief financial officer;2. He is he financial adviser of the local

authority to which he has been appointed bythe local government;

3. He is charged with general responsibilitiesfor all matters of finance and accounts of thelocal authority;

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

5. He is the Chief Accountant for Local Authority6. He is the collector of funds of the local

authority e.g. rates and rents;7. He is responsible for the organisation of the

financial department of the local authority;8. He is responsible for the maintenance of the

Local Authorities accounting systems;9. He is responsible for the supervision of

financial records;10. He is responsible for the effecting of

insurance for all departments of localauthority;

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11. Responsible for prescribing account proceduresfor the local authority;

12. Responsible for investments of all monies notimmediately required by the local authority;

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

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

15. He has the duty to levy surcharge (penalty) onanybody who incurs any expenditure contrary tolaw;

Mwangi & Another V. Tusker

The case illustrates that the treasurer has theresponsibility to levy a surcharge on anybody whoincurs any expenditure contrary to the law. Thecase deals with the Tender Committee of Murang’aCounty Council. The Tender Committee wasconsidering tenders to supply the county councilwith gasoline. The tenders were received fromvarious companies and the law requires that iftenders are to be considered in a particularmanner and the Local Council is obliged tocontract the company that quotes the least amount.Here they awarded the tender that did not quotethe least amount and they came to find out thatMwangi and others who company had tendered was amember of the committee and was thereforeprohibited from sitting at that meeting. They satthere and influenced the decision of the tendercommittee.

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They had caused Muranga country council to spendmore on supply of diesel than they would have ifthey had awarded the company that had quoted theleast amount. They were surcharged to pay thedifference between he least amount quoted and theamount at which the contract was awarded to theircompany. Here the treasurer was exercising hispower and duty to levy a surcharge.

The other mistake that they made was Mwangi andthe others sitting on a matter in which they had apecuniary interest.

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

16. The treasurer has the responsibility should hedisagree with the council over any expenditurewhich he feels is contrary to law, then if theCouncil goes ahead to approve the expenditure,the treasurer must show that the expenditureis contrary to his advise. He must similarlyindicate in the Minutes that the expenditurewas approved contrary to his advise.

POWERS OF THE TREASURER:

Section 130 of LGA AND Part II Third Schedule.

Attorney General V. Duwinton

This is an English Case, this is a case concerningborrowing powers of the local authority. LocalAuthorities have statutory borrowing powers but

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there are statutory limits as to the amount localauthorities can borrow. In this case, the localauthority in question, A borough which was governedby the Municipal Corporations Act had by 1903 Marchexhausted its exhausted its borrowing powers. Afterexhausting the borrowing powers, the Local Authorityproceeded to take overdrafts from the bank. Theytook an overdraft that was far in excess of theamount they were allowed to borrow and as usual thebank started charging interest on the overdraft.The treasurer had been admitted to open an accountfor the local authority in his name and this is theaccount with the overdraft. First of all the localauthority had exceeded its borrowing powers andauthorised payments on the interests on overdraft.The treasurer decided to take money in otheraccounts belonging to the local authority to upsetsome of the interest in the account made in hisname. One of the members noticed what was going onand decided it was illegal and notified the AttorneyGeneral requesting him to sue on the behalf of thecouncil. While this was going on and before thesuit was filed. The treasurer is a public officialand he was sued in his capacity.

The court ruled that monies that had been borrowedin excess of the borrowing powers had been borrowedillegally and the interest was also illegal and thatthe AG and members of the Local Authority who hadrequested him to bring the suit were entitled to aninjunction to restrain the treasurer from makingfurther payments of interest out of the Burrowfunds.

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The court also held that the Borough accounts inrespect of the interests i.e. the accountsmaintained in the name of the Treasurer was going tobe impeached by the court. The court held that theTreasurer was not merely a servant of the councilbut that as custodian of the Borough funds, he oweda duty and stood in a fiduciary position to themembers of the Local Authority and could not pleadthe orders of the council for an unlawful act. Thetreasurer could not claim that the local authorityhad approved the excess borrowing.

The court held that the overdraft and payment ofinterests were illegal because the borough hadexceeded its borrowing powers. It also held thatthe fact that the defendant’s accounts maintained bythe treasurer had been audited and passed was no barto the action. The court also held that payments ofcharges of interest on overdraft were illegal,beyond the powers of the borough and therefore abreach of trust. The court also stated that theBorough Treasurer is a statutory officer withstatutory duties and not merely a servant of thecouncil but the custodian of the Borough Funds whichare Trust Funds and must not part with them excepton proper statutory authority.

DUTIES OF THE ENGINEER:

1. The Engineer has the general responsibilityfor engineering works of the Local Authority;The only exception is where a local authorityhas made separate contractual arrangements forthe engineering works; some of the engineeringworks is maintenances and repair of roads,

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drains, street and bridges for which the localauthority is responsible. These duties arethe services rendered to the public. NoteSection 132 of Local Government Act

DUTIES OF MEDICAL OFFICER OF HEALTH:

The duties are contained in the Local Government Actand in addition to the LGA there is the publichealth Act which also governs the duties of theMedical Officer of Health of Municipalities.

1. The Medical Officer of Health is the ChiefMedical Adviser for the Local Authority towhich he is appointed.

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

3. On matters concerning the appointment of themedical officer of health for the localauthority, the Minister for Health must beconsulted.

The functions of the councillors appear more likepolicy making functions. But the functions of theofficials i.e. Town Clerk, Engineer Treasure aremore like implementing functions. They willimplement the policies that are passed by thecouncillors. For the smooth running of thefunctions of council the policy decisions are to bemade jointly i.e. decisions on what the localauthority does is to be made jointly S. 26(a)prohibits any individual member of local authority

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to give individual instructions on what is to bedone. There are a few statutory restrictions.

1. For the Town Clerk the statutes prohibitshim/her from engaging in private legalpractice S. 138;

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

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

4. The officials are accountable Section 136

RIGHTS:

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

How are the joint decisions made?

MACHINERY OF LOCAL GOVERNMENT:

The machinery is the means by which localauthorities accomplish their duties and functions.For everything i.e. all duties and functionsdecisions have to be made and they have to be madejointly.

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

THE MEETING SYSTEM17

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

1. The number one thing is that the generalbusiness may be the appointment of thechairman of a committee e.g. a financecommittee;

2. another general business maybe theauthorisation of sealing of documents e.g. theCouncil could be buying property and transferdocuments have been prepared, they sit downand decide;

3. Appointment of committee members is somethingthat is done at the annual general meeting orthe other ordinary meetings

4. Approval of spending; 5. To approve local authorities activities;6. To consider purchase of land and of course

other properties;7. To consider the disposal of land;8. To consider the granting of licences to occupy

council’s land;

Second Schedule Rule 12 provides that everyquestion and every matter shall be determined by ashow of hands and decided upon by majority votesof members present, unless provided otherwise bywritten law.

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Section 75 in addition it provides for specialmeetings.

Rand V. Odroyd [1959] 1 QB 204

In addition to the annual and general meetings, thestatutes provides for special meetings provided forunder Section 75 and in this case the statuteprovides that a mayor in case of a municipality or achairman in case of county council are to holdspecial meetings from time to time upon receipt ofrequests in writing for a meeting.

Meetings may be called for example to considermotions submitted by councillors on mattersaffecting their electorate. Special meetings mayalso be held to authorise the signing of orders forpayments where there is no finance committee. Lookat Second Schedule

In addition, public meetings may be held and as thename suggests such meetings may be held withinhabitants of a particular local authority area toconsider matters affecting them which are of publicimportance. Section 86 of the Local Government Act.Again the Mayor will be responsible in case of amunicipality and a chairman in case of a countycouncil.

There are certain procedural requirements formeetings the most important one being that ofnotice. Section 76 OF LGA requires that Notice ofMeetings be issued indicating the time, the placeand the matter to be discussed at the meeting or thebusiness to be transacted at the meeting. Such

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notices are required to be published at the notice-boards of the local authorities.

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

NOTICES:

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

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

1. They must record attendance;2. The Minutes of the Proceedings of every

meeting must be kept stating among otherthings the matter considered and the decision.In addition to minuting the matters discussed,the minutes must be entered in books kept forthat purpose. Before they are kept in thebooks they must be confirmed at the samemeeting. This is for evidence purposes.

REQUIREMENT FOR DISCLOSURE:

Section 137 requires that councillors or any otherofficer of the Local Authority who has a pecuniaryinterest direct or indirect in that matter and thematter may be contract, bargains or an arrangementthat the council proposes to consider.

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The councillors must as soon as is practicablegive notice that they have pecuniary interest in amatter to be considered as soon as is practicable.

The requirement in addition to disclosing must nottake part in the discussion of the matter. If youmust sit at the meeting then you must not takevote in any part of the matter. If you fail todisclose your interest, you are guilty and areliable to a fine of 2000/- or two monthsimprisonment or both and you can be surcharged forany loss occasioned to the council as a result ofan award for a contract in which you have aninterest. The interest of ones spouse is deemedto be the interest of other spouse provided thetwo are living together. Besides in the UnitedKingdom, it has resulted in a councillor losinghis seat.

Brown V. DPP (1956) 2 QB 369

In this case we see an illustration of the meetingas one of the machinery for local authorities. Italso illustrates that voting is the procedure atthese meetings. A meeting was held by a localauthority and members took part in that meetingthat was going to consider rent increase for thecouncil houses that they were occupying so theyhad pecuniary interest and should not have sat.they were charged under Section 76(1) of LocalGovernment Act for participating in a localauthority for participating in a local authorityand voting at the meeting which was held toconsider a matter under which they had a pecuniaryinterest. The interest was that they were tenants

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of the Local Authority and the meeting was aboutrent increases. Brown sued the DPP saying thedecision went against them and that they did notbenefit. The court held:

“Regardless of whether or not the decision on additionalrent payment were in their favour, they had contravenedthe law by participating in the meeting and therefore theirbeing fined for the offence was upheld.”

Parliament has not said that they may vote againsttheir interest but not for their interests butthat they may not vote in a matter in which theymay have an interest. In other words they areprohibited form subjecting themselves against thelaw. Brown and his friend also lost their seatsas councillors.

The local government authorises the minister forLocal Government to allow councillors who have allinterest in the matter to sit and participate ifhe finds that the number of those with an interestis greater than the number of those without aninterest, he may allow them to sit.

The Minister must be notified and their interestdeclared. The Minister has to conduct his owninvestigation and the Minister is to specificallyremove the disability of members with an interest,barring them from sitting.

1.Disclose their interest;2.Notify the Minister;3.If the Minister finds that the number with an

interest is greater then the number without aninterest, the minister may give his consent tosit or vote.

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Section 252 - CorruptionSection 255 – DissolutionSection 254 – Winding up. ADMINISTRATIVE LAW Lesson 9

8.11.02

Control of Local Authorities by Central Government

Relationship between Central govt and local authorities

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

The local govt is a delegate of the central govt. The relationship is that between central and local government can be described as a partnership when itcomes to providing services and performance in duties. In this partnership the local government issupposed to administer local areas, provide assistance and exercise control in local areas through local authorities, they administer local areas through the local govt the central govt administers the country as a whole. A local govt through local authority administers local areas. The function of the local govt through local authorities is supposed to complement that of the central government. The local govt is a delegate ofpowers by the central government. The central govt exercises controls, checks and balances over local

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authorities. These checks and balances are exercised in two ways.

1. Formal Controls;2. Informal Controls.

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

FORMAL CONTROLS:

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

2. Financial Controls

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

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

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

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

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

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that they can raise the balance of what they require to meet their targets.

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

authority is not utilising the funds well, or

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

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

CONTROLS THROUGH APPOINTMENT OF NON-POLITICAL OFFICERS

1. Town Clerk2. Treasurer3. City Engineer

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

CONTROLS THROUGH THE MAKING OF REGULATIONS:

Under S. 271 of LGA the Minister for Local Government is empowered to make rules for the bettercarrying out of the purposes and the provisions of the Act. In the exercise of this power the Ministerhas made rules which are known as subsidiary legislation or subsidiary regulations which appear

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at the back of the LGA. The power to make these rules is the power of the Minister for Local Government. The Minister issues rules through LegalNotices. Through the making of these regulations the Minister is exercising authority as they make provisions for the carrying out of the functions andpurposes of the Act. Sometimes they even cite the specific sections of the Act under which the regulation has been made.

POWERS OVER DEFAULTING LOCAL AUTHORITIES

Powers over defaulting local authorities are coveredunder Part 19 of LGA

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

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

(b) He may require a defaulting local authority tosubmit proposals on how it intends to exercisethe powers conferred upon it in the performances of its duties; if a local authority submits an acceptable proposal to the Minister, the Minister may order that local authority to proceed to exercise the power it had been failing to exercise which will include any duties they may be failing to

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exercise in the manner prescribed in the proposal. If they fail to submit the proposal, then the Minister is required to exercise any powers a local authority fails toexercise in such manner as he thinks fit and again he is authorised to recover any expense he incurs from the local authority. Please note that instead of doing (a) or (b) the

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

(d) The Minister may also wind up the local authority (to the extent of even dissolving them); there are certain procedures to be followed before powers to wind up are exercised. Certain conditions must be present.(i) A period of 3 months or more must have

elapsed between one meeting of a municipal council and the next; in caseof other local authorities a period of 6 months or more must have elapsed since the last meeting;

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

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

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

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

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

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

3. Please note that the reason for tabling the draft notice in Parliament is that parliament must approve the winding up of the local

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authority, it must approve the order laid before it by the Minister. If parliament approves, from the date of that order, the local authority then exists only for purposes of winding up.

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

THE CIVIL SERVICE

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

ADMINISTRATIVE LAW Lesson 109.11.02

Definition of the Civil Service:

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

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

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

1. Armed Forces Employees;2. Policemen3. Employees of public corporations4. Employees of local authorities except Town

Clerk, Treasurer and City Engineer5. Employees of Nationalised Industries.

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

ORIGIN OF THE IDEA OF PUBLIC SERVICE

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

List of Civil Servants

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

2. Controller General3. Auditor General4. Permanent Secretaries5. Secretary to the Civil 6. Commissioner of Police7. Ambassadors and High Commissioners8. Public Officials in various government

ministries

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

DUTIES & SERVICES1. Issuance of Licences, i.e. trade licences,

driving licences, marriage licences, liquor licences;

2. Collection of Taxes;3. Conduct audits of public accounts4. Represent the government abroad, the functions

are many.

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

APPOINTMENT TO THE CIVIL SERVICE:

The person appointed to the civil service determineswhether or not services will be rendered to the

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public, they also determine whether services to the public will be delivered efficiently. It also determines whether they will stay in employment.

BRITISH WHITE HALL TRADITIONTradition in respect of British Civil Service from which we derive our own.

Key factors

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

1. Autonomy2. Neutrality;

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

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

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

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

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

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has to ensure that officials in his ministry work efficiently.

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

In Kenya what do we have in requirement of

The Kenyan situation

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

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

The demand for law and order necessitated the growthof a large provincial administration manned by civil

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

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

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

The public service commission was given power to exercise disciplinary control over persons appointedto the public service. For this purpose a detailed government code of regulation was created on the basis of which the public service commission exercised control over civil servants. This code ofregulations made certain provisions, ie. It required

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maintenance of good conduct. The code of regulations also formed part of the terms of employment of civil servants. It specifically proscribed engagement in political activities by civil servants. It prohibited civil servants from presenting themselves as candidates for political offices unless they had resigned from the civil service.

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

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

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

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

DEVELOPMENTS IN THE CIVIL SERVICE SINCE INDEPENDENCE

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

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

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

2. Whereas the public service commission was originally required to operate independently of the executive, all of the officers appointed by the executive, now the President could give authority to the Public Service

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Commission to delegate any one or more of its functions to one member. These amendments also affected the position of the Attorney General, The Controller General, Auditor General and Permanent Secretary, these powers were meant to give the president unfettered discretion in relation to this offices.

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

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

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

The effects were

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

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

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

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

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

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

Look at Mwangi Stephen Mureithi V. Attorney General

Administrative Law & Agencies 4

DUTIES OF THE TREASURER

17. He is the chief financial officer;

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

19. He is charged with general responsibilitiesfor all matters of finance and accounts of thelocal authority;

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

21. He is the Chief Accountant for Local Authority22. He is the collector of funds of the local

authority e.g. rates and rents;23. He is responsible for the organisation of the

financial department of the local authority;24. He is responsible for the maintenance of the

Local Authorities accounting systems;25. He is responsible for the supervision of

financial records;26. He is responsible for the effecting of

insurance for all departments of localauthority;

27. Responsible for prescribing account proceduresfor the local authority;

28. Responsible for investments of all monies notimmediately required by the local authority;

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

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

31. He has the duty to levy surcharge (penalty) onanybody who incurs any expenditure contrary tolaw;

Mwangi & Another V. Tusker

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The case illustrates that the treasurer has theresponsibility to levy a surcharge on anybody whoincurs any expenditure contrary to the law. Thecase deals with the Tender Committee of Murang’aCounty Council. The Tender Committee wasconsidering tenders to supply the county councilwith gasoline. The tenders were received fromvarious companies and the law requires that iftenders are to be considered in a particularmanner and the Local Council is obliged tocontract the company that quotes the least amount.Here they awarded the tender that did not quotethe least amount and they came to find out thatMwangi and others who company had tendered was amember of the committee and was thereforeprohibited from sitting at that meeting. They satthere and influenced the decision of the tendercommittee.

They had caused Muranga country council to spendmore on supply of diesel than they would have ifthey had awarded the company that had quoted theleast amount. They were surcharged to pay thedifference between he least amount quoted and theamount at which the contract was awarded to theircompany. Here the treasurer was exercising hispower and duty to levy a surcharge.

The other mistake that they made was Mwangi andthe others sitting on a matter in which they had apecuniary interest.

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

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32. The treasurer has the responsibility should hedisagree with the council over any expenditurewhich he feels is contrary to law, then if theCouncil goes ahead to approve the expenditure,the treasurer must show that the expenditureis contrary to his advise. He must similarlyindicate in the Minutes that the expenditurewas approved contrary to his advise.

POWERS OF THE TREASURER:

Section 130 of LGA AND Part II Third Schedule.

Attorney General V. Duwinton

This is an English Case, this is a case concerningborrowing powers of the local authority. LocalAuthorities have statutory borrowing powers butthere are statutory limits as to the amount localauthorities can borrow. In this case, the localauthority in question, A borough which was governedby the Municipal Corporations Act had by 1903 Marchexhausted its exhausted its borrowing powers. Afterexhausting the borrowing powers, the Local Authorityproceeded to take overdrafts from the bank. Theytook an overdraft that was far in excess of theamount they were allowed to borrow and as usual thebank started charging interest on the overdraft.The treasurer had been admitted to open an accountfor the local authority in his name and this is theaccount with the overdraft. First of all the localauthority had exceeded its borrowing powers andauthorised payments on the interests on overdraft.The treasurer decided to take money in other

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accounts belonging to the local authority to upsetsome of the interest in the account made in hisname. One of the members noticed what was going onand decided it was illegal and notified the AttorneyGeneral requesting him to sue on the behalf of thecouncil. While this was going on and before thesuit was filed. The treasurer is a public officialand he was sued in his capacity.

The court ruled that monies that had been borrowedin excess of the borrowing powers had been borrowedillegally and the interest was also illegal and thatthe AG and members of the Local Authority who hadrequested him to bring the suit were entitled to aninjunction to restrain the treasurer from makingfurther payments of interest out of the Burrowfunds.

The court also held that the Borough accounts inrespect of the interests i.e. the accountsmaintained in the name of the Treasurer was going tobe impeached by the court. The court held that theTreasurer was not merely a servant of the councilbut that as custodian of the Borough funds, he oweda duty and stood in a fiduciary position to themembers of the Local Authority and could not pleadthe orders of the council for an unlawful act. Thetreasurer could not claim that the local authorityhad approved the excess borrowing.

The court held that the overdraft and payment ofinterests were illegal because the borough hadexceeded its borrowing powers. It also held thatthe fact that the defendant’s accounts maintained bythe treasurer had been audited and passed was no bar

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to the action. The court also held that payments ofcharges of interest on overdraft were illegal,beyond the powers of the borough and therefore abreach of trust. The court also stated that theBorough Treasurer is a statutory officer withstatutory duties and not merely a servant of thecouncil but the custodian of the Borough Funds whichare Trust Funds and must not part with them excepton proper statutory authority.

DUTIES OF THE ENGINEER:

2. The Engineer has the general responsibilityfor engineering works of the Local Authority;The only exception is where a local authorityhas made separate contractual arrangements forthe engineering works; some of the engineeringworks is maintenances and repair of roads,drains, street and bridges for which the localauthority is responsible. These duties arethe services rendered to the public. NoteSection 132 of Local Government Act

DUTIES OF MEDICAL OFFICER OF HEALTH:

The duties are contained in the Local Government Actand in addition to the LGA there is the publichealth Act which also governs the duties of theMedical Officer of Health of Municipalities.

4. The Medical Officer of Health is the ChiefMedical Adviser for the Local Authority towhich he is appointed.

5. Responsible for all matters relating to healthfor which the local authority is responsible.

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Section 131 of LGA and relevant provisions ofPublic Health Act.

6. On matters concerning the appointment of themedical officer of health for the localauthority, the Minister for Health must beconsulted.

The functions of the councillors appear more likepolicy making functions. But the functions of theofficials i.e. Town Clerk, Engineer Treasure aremore like implementing functions. They willimplement the policies that are passed by thecouncillors. For the smooth running of thefunctions of council the policy decisions are to bemade jointly i.e. decisions on what the localauthority does is to be made jointly S. 26(a)prohibits any individual member of local authorityto give individual instructions on what is to bedone. There are a few statutory restrictions.

5. For the Town Clerk the statutes prohibitshim/her from engaging in private legalpractice S. 138;

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

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

8. The officials are accountable Section 136

RIGHTS:

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

How are the joint decisions made?

MACHINERY OF LOCAL GOVERNMENT:

The machinery is the means by which localauthorities accomplish their duties and functions.For everything i.e. all duties and functionsdecisions have to be made and they have to be madejointly.

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

THE MEETING SYSTEM

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

9. The number one thing is that the generalbusiness may be the appointment of thechairman of a committee e.g. a financecommittee;

10. another general business maybe theauthorisation of sealing of documents e.g. theCouncil could be buying property and transferdocuments have been prepared, they sit downand decide;

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11. Appointment of committee members is somethingthat is done at the annual general meeting orthe other ordinary meetings

12. Approval of spending; 13. To approve local authorities activities;14. To consider purchase of land and of course

other properties;15. To consider the disposal of land;16. To consider the granting of licences to occupy

council’s land;

Second Schedule Rule 12 provides that everyquestion and every matter shall be determined by ashow of hands and decided upon by majority votesof members present, unless provided otherwise bywritten law.

Section 75 in addition it provides for specialmeetings.

Rand V. Odroyd [1959] 1 QB 204

In addition to the annual and general meetings, thestatutes provides for special meetings provided forunder Section 75 and in this case the statuteprovides that a mayor in case of a municipality or achairman in case of county council are to holdspecial meetings from time to time upon receipt ofrequests in writing for a meeting.

Meetings may be called for example to considermotions submitted by councillors on mattersaffecting their electorate. Special meetings mayalso be held to authorise the signing of orders for

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payments where there is no finance committee. Lookat Second Schedule

In addition, public meetings may be held and as thename suggests such meetings may be held withinhabitants of a particular local authority area toconsider matters affecting them which are of publicimportance. Section 86 of the Local Government Act.Again the Mayor will be responsible in case of amunicipality and a chairman in case of a countycouncil.

There are certain procedural requirements formeetings the most important one being that ofnotice. Section 76 OF LGA requires that Notice ofMeetings be issued indicating the time, the placeand the matter to be discussed at the meeting or thebusiness to be transacted at the meeting. Suchnotices are required to be published at the notice-boards of the local authorities.

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

NOTICES:

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

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

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3. They must record attendance;4. The Minutes of the Proceedings of every

meeting must be kept stating among otherthings the matter considered and the decision.In addition to minuting the matters discussed,the minutes must be entered in books kept forthat purpose. Before they are kept in thebooks they must be confirmed at the samemeeting. This is for evidence purposes.

REQUIREMENT FOR DISCLOSURE:

Section 137 requires that councillors or any otherofficer of the Local Authority who has a pecuniaryinterest direct or indirect in that matter and thematter may be contract, bargains or an arrangementthat the council proposes to consider.The councillors must as soon as is practicablegive notice that they have pecuniary interest in amatter to be considered as soon as is practicable.

The requirement in addition to disclosing must nottake part in the discussion of the matter. If youmust sit at the meeting then you must not takevote in any part of the matter. If you fail todisclose your interest, you are guilty and areliable to a fine of 2000/- or two monthsimprisonment or both and you can be surcharged forany loss occasioned to the council as a result ofan award for a contract in which you have aninterest. The interest of ones spouse is deemedto be the interest of other spouse provided thetwo are living together. Besides in the UnitedKingdom, it has resulted in a councillor losinghis seat.

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Brown V. DPP (1956) 2 QB 369

In this case we see an illustration of the meetingas one of the machinery for local authorities. Italso illustrates that voting is the procedure atthese meetings. A meeting was held by a localauthority and members took part in that meetingthat was going to consider rent increase for thecouncil houses that they were occupying so theyhad pecuniary interest and should not have sat.they were charged under Section 76(1) of LocalGovernment Act for participating in a localauthority for participating in a local authorityand voting at the meeting which was held toconsider a matter under which they had a pecuniaryinterest. The interest was that they were tenantsof the Local Authority and the meeting was aboutrent increases. Brown sued the DPP saying thedecision went against them and that they did notbenefit. The court held:

“Regardless of whether or not the decision on additionalrent payment were in their favour, they had contravenedthe law by participating in the meeting and therefore theirbeing fined for the offence was upheld.”

Parliament has not said that they may vote againsttheir interest but not for their interests butthat they may not vote in a matter in which theymay have an interest. In other words they areprohibited form subjecting themselves against thelaw. Brown and his friend also lost their seatsas councillors.

The local government authorises the minister forLocal Government to allow councillors who have all

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interest in the matter to sit and participate ifhe finds that the number of those with an interestis greater than the number of those without aninterest, he may allow them to sit.

The Minister must be notified and their interestdeclared. The Minister has to conduct his owninvestigation and the Minister is to specificallyremove the disability of members with an interest,barring them from sitting.

4.Disclose their interest;5.Notify the Minister;6.If the Minister finds that the number with an

interest is greater then the number without aninterest, the minister may give his consent tosit or vote.

Section 252 - CorruptionSection 255 – DissolutionSection 254 – Winding up.

ADMINISTRATIVE LAW Lesson 9

Control of Local Authorities by Central Government

Relationship between Central govt and local authorities

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

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

3. Formal Controls;4. Informal Controls.

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

FORMAL CONTROLS:

1. Ministerial Controls53

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

2. Financial Controls

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

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

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

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contrary to the powers of the Minister. They also have power to surcharge any local authority official who is found to have to have incurred an illegal expenditure.

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

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

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

authority is not utilising the funds well, or

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

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

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CONTROLS THROUGH APPOINTMENT OF NON-POLITICAL OFFICERS

1. Town Clerk2. Treasurer3. City Engineer

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

CONTROLS THROUGH THE MAKING OF REGULATIONS:

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

POWERS OVER DEFAULTING LOCAL AUTHORITIES

Powers over defaulting local authorities are coveredunder Part 19 of LGA

It begins by saying that where the Minister is of the opinion that the local authority is failing to perform the duties imposed on it by the Local

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Government Act, he is given power to do a number of things

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

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

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

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

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

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

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

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

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Local Authority and to make it function properly. Section 246 – 255.

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

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

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

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

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

THE CIVIL SERVICE

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

ADMINISTRATIVE LAW Lesson 10

Definition of the Civil Service:

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

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

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

6. Armed Forces Employees;7. Policemen8. Employees of public corporations9. Employees of local authorities except Town

Clerk, Treasurer and City Engineer10. Employees of Nationalised Industries.

We are concerned with the functions of the government to serving the public. Administrative law is concerned about the functions of public officers. We want to understand what the law says about the functions, employment, accountability and

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efficiency of these public officials in the duties that they have been charged.

ORIGIN OF THE IDEA OF PUBLIC SERVICE

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

List of Civil Servants9. Attorney General; and all who work in the AG’s

Chamberrs;10. Controller General11. Auditor General12. Permanent Secretaries13. Secretary to the Civil 14. Commissioner of Police15. Ambassadors and High Commissioners16. Public Officials in various government

ministries

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

DUTIES & SERVICES61

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

6. Collection of Taxes;7. Conduct audits of public accounts8. Represent the government abroad, the functions

are many.

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

APPOINTMENT TO THE CIVIL SERVICE:

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

BRITISH WHITE HALL TRADITIONTradition in respect of British Civil Service from which we derive our own.

Key factors

As the primary agency for policy implementation and given the crucial role of policy implementation, the Civil Service in the White Hall tradition required an uncompromised degree of efficiency, highcompetence (capacity to form the functions with which an individual has been charged), loyalty to the government, acceptance of governmental authority. please note that they were also conscious to appoint people who had experience

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rather than patronage, patronage was not the determining factor. They also appointed people who had technical competence vis a vis tribal affiliation. With these qualities the civil servicein the British they were able to efficiently implement the functions that the government had made. to these were added two factors

3. Autonomy4. Neutrality;

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

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

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

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

Autonomy means that civil servants in the British Tradition had secured tenure of employment and because their tenure of employment was secured they were secure and could work independently of external

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

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

In Kenya what do we have in requirement of

The Kenyan situation

In Kenya the particular historical context of the growth of the civil service did not allow for all ofthe attributes that are found in the British Civil Service. In contrast to the White Hall Model, with its emphasis on neutrality and autonomy, when the colonial administration introduced the idea of the civil service, it vested the whole civil service with both the powers of policy making and powers of

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policy implementation. This was a breach of rule number one, the person who makes policy cannot be incharge of implementation but in Kenya this is whathappened. There was failure to maintain the strict separation between policy makers and implementers asin the British Tradition.

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

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

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

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Constitution and this was the Public Service Commission.

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

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

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

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

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

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

DEVELOPMENTS IN THE CIVIL SERVICE SINCE INDEPENDENCE

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

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

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

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

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

The Constitution further decided that any person who holds office shall hold office at the pleasure

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of the President. Section 24 and 25 of the Constitution.

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

The effects were

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

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

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

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

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

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

Look at Mwangi Stephen Mureithi V. Attorney General

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