ppp on chapter-4-Administrative Agencies for defense.pptx

adminisration

1. Masters Program for Defense Leadership Legal Frameworks for Governance (LGG-5011) FASILITATOR, Mebrahtu woldu D/director, Lecturer, ECSU/ILG Sep . 2016 Institute of Leadership and Good Governance

2. UNIT-FOUR ADMINISTRATIVE AGENCIES

3. Contents of the unit 4.1. Meaning of Administrative Agencies 4.2. Formation of Administrative Agencies 4.3. Reasons for Creating Administrative Agencies 4.4. Purposes of Administrative Agencies 4.5. Functions of Administrative Agencies 4.6. Structure of Administrative Agencies 4.7. Controlling Administrative Agencies 4.8. Judicial Review of Administrative Acts 4.9. The Ethiopian Civil Service

4. 4.1. Meaning of Administrative Agencies Black‘s Law Dictionary defines administrative agency as:- “ a governmental body with the authority to implement and administer legislations and policies to meet already set goals ”

5. …. Meaning of Administrative Agencies According to the New York Administrative Procedure act, “ An agency refers to any department, bureau, commission, division, council, committee…of a state or a public corporation or public authority at least one of whose members is appointed by the government, authorized by law to make rules or to make final decisions in adjudicatory proceedings .”

6. 4.2. Formation of Administrative Agencies Administrative agencies in Ethiopia can be formed/created in two ways: by the Constitution and by the Parliament 1. Agencies created by the FDRE Constitution The Ethiopian Institution of Ombudsman The Ethiopian Human Rights Commission The National Election Board The Auditor General The Population and Census Commission These agencies are made accountable to the House of Peoples’ Representatives.

7. …Formation of Administrative Agencies 2. Agencies created by Parliament Agencies can also be created by the House of Peoples’ Representatives through an establishment proclamation All the agencies under the executive organ of the FDRE are supposed to be created and determined by proclamations issued by the HPR These executive bodies include ministries and other bodies accountable to the Ministries, the Council of Ministers or the Prime Minister.

8. …Formation of Administrative Agencies The Parliament can also establish or dissolve executive bodies at any time through an amendment or re-establishment proclamation The Parliament can change the accountability of the agencies Example: The Charities and Societies Agency was first accountable to the Ministry of Justice; now it is accountable to the Ministry of Federal Affairs The Council of Ministers has the mandate to re-structure executive bodies

9. 4.3. Reasons for Creating Administrative Agencies In general, administrative agencies are created for three reasons:- To provide specificity To provide protection To provide services

10. a) Providing Specificity The law making body cannot legislate in sufficient detail to cover all aspects of problems. This is because the law making body lacks:- time and detail expertise in each aspect of problem. personnel to handle multitude of cases. Thus, the law making body issues a general substantive law and creates an administrative agency to implement the law The HPR may also mandate the Council of Ministers to issue regulations to further specify the relevant proclamation

11. b) Providing Protection An administrative agency may also be established to prevent the people from the harms by the business community Examples: The Environmental Protection Authority The Food and Medicine Control Agency The Educational Quality Agency

12. c) Providing Services Administrative agencies are also established to provide public services Usually, the services provided by administrative agencies are: Welfare programs Social security programs Example: The Ethiopian Social Security Agency

13. 4.4. Purposes of Administrative Agencies The central purpose of administrative agencies is to minimize the negative impacts of a free economy by carrying out the following: 1. To control monopoly power 2. To control excess profit 3. To compensate for externalities/ Spillovers 4. To compensate for inadequate information 5. To compensate for unequal bargaining of power 6. Government exactions 7. Disbursement of money or other commodities 8. Provision of goods and services

14. …Purposes of Administrative Agencies 1. To control monopoly power The purpose is to replace or to control competition by monopoly with regulations Examples:- regulation of banking, regulation of labor relations. 2. To control excess profit This is because excess profit endangers the laws of free market and pose a danger to consumers.

15. …Purposes of Administrative Agencies 3. To compensate for Spillovers A government agency must require all companies to make investments to avoid the social and economic costs. Example:- a manufacturing process that creates air pollution for which society pays the clean up costs.

16. … Purposes of Administrative Agencies 4. To compensate for inadequate information Purchasers of food, for instance, cannot analyze the nutritional content or the health hazards of various food products. So that there has to be some organ that ensures these tests are fulfilled. 5. To compensate unequal bargaining of powers Contracts between banks & customers, insurers & insured, employees & employers are adhesive in their nature. An agency sets minimum standards to minimize the effect of unequal bargaining of power.

17. … Purposes of Administrative Agencies 6. Government exactions Because of the natural/traditional powers and responsibilities some agencies need to exact. Examples: collection of taxes military conscription or involuntary labor/service. 7. Disbursement of money or other commodities Agencies disburse public money as payment of pensions for veterans or assistance for the aged, the disabled, the unemployed and generally the needy. The payments and/or the disbursement may be directly through cash or food rations.

18. … Purposes of Administrative Agencies 8. Provision of goods and services Building and maintaining roads, high ways and dams Provision of police force and other protective services. Funding public education and health services and Provision of public housing.

19. 4.5. Functions of Administrative Agencies Administrative agencies are expected to undertake the following three major functions Rule making Implementation/execution Adjudication

20. …Functions of Administrative Agencies a) Rule Making The delegation of rule making by the legislature to administrative agencies involves a number of issues ♠ The legislature should provide adequate guidelines for the agencies through substantive legislation ♠ The agencies are expected to put into effect the intentions of the legislature based on substantive laws ♠ In doing so, they are expected to work within their mandates set by the legislature ♠ Any administrative rule not consistent with the substantive proclamation or regulations will be invalid

21. …Functions of Administrative Agencies b) Implementation Administrative agencies are primarily executive bodies; thus, implementation of the law is their core function Typically, this involves investigative and advisory powers This function of administrative agencies should be exercised within the mandates set by the legislature in the establishment laws If an agency exceeds the substance of the law or its mandate, it will be a case of ultra vires (beyond the powers)

22. …Functions of Administrative Agencies c) Adjudication Administrative agencies apply the law to resolve disputes within their mandates Enforcement of law demands imposition of sanction and taking administrative measures and decisions The decisions may greatly affect individuals’ rights and benefits Examples: revocation of license deportation of aliens dismissal of a civil servant dismissal of a university student These functions are normally subject to review or appeal procedures within the agency and/or the ministry it is accountable to

23. Discretionary Powers It is a power granted either under statute or delegation which do not impose a duty on the decision-maker to exercise them in a particular way. It is freedom to decide in one way or the other in which the decision-maker has the power to make a choice about whether to act or not to act. The use of the word ‘includes’ or a list which ends with a catch-all expression such as ‘any other matters that in the opinion of the decision-maker are relevant

24. … Discretionary Powers Principles Guiding Use of Discretionary Power Use discretionary power in good faith and for a proper purpose. Any decision must be based on logical and consider only relevant issues Give proper , genuine and realistic consideration to the merits of the particular case.

25. …Discretionary Powers Do not make decisions in matters that have an actual or reasonably perceived conflict of interests. Do not Improperly fetter your own discretion and do not exercise discretion in a way that is so unreasonable. Do not exercise discretionary power in such a way that the result is uncertain and the procedure is unfair.

26. 4.6. Structure of Administrative Agencies Structure of agency greatly varies depending on the form of government, nature of policies and programs it is expected to accomplish. In Ethiopia, council of ministers determine the structure/organization of administrative agencies (Art. 77/2 of 1995 FDRE Constitution). The enabling/establishing act greatly influences the form, power, structure and organization that an agency assumes.

27. 4.7. Controlling Administrative Agencies The amalgamation of legislative, executive and judicial functions in the administrative agencies entail the need for control by the three branches of government Thus, administrative agencies are subject to control by:- Legislative branch Executive branch Judicial branch

28. …Controlling Administrative Agencies a) Legislative Political Control Legislative control is the cornerstone of a well functioning democratic system. Political leaders have obligation to answer to the public for their actions and decisions (Art.12). Political accountability has a dual purpose. 1. To check the powers of political leaders, preventing them from ruling in an arbitrary or abusive manner. 2. To ensure that governments operate effectively and efficiently.

29. …Controlling Administrative Agencies Political accountability is implemented by:- Budgetary control (Art.55/11) Questioning power (Art.55/17,18) Appointment of government officials (70/1&2,74/2)

30. …Controlling Administrative Agencies b) Executive Control Determining the organizational set up (77/2) Coordinating their activities (74/4) Appointment of officials (74/9) Supervision of implementations (74/5,6) by:- issuing directives (77/13) requiring report (74/11) controlling the activity (77/4)

31. …Controlling Administrative Agencies c) Judicial control (Art.82) Judicial control has two aspects 1 . Judicial review of administratively made rules Constitutional courts Ordinary courts of law 2 . Judicial review of administrative related to:- decisions acts of an agency

32. …Controlling Administrative Agencies d) Control by Democratic Institutions Two national institutions also control administrative agencies The Ombudsman The Human Rights Commission Ombudsman is an independent institution who has the power to receive complaints about mal administration, conducts investigation and finally submits its findings and recommendations to the parliament. Powers of the ombudsman:- Make recommendations to the mal-administering agency. No power to make a binding decision. Make recommendations to parliament.

33. …Controlling Administrative Agencies The Human Rights Commission ensures that the human and democratic rights provided for under the FDRE are respected/protected/promoted by citizens, organs of state, political organizations and other associations. It ensures that laws, regulations, directives and administrative decisions do not contravene the human rights of citizens guaranteed by the FDRE constitution. Human Rights Commission undertakes investigation on human rights violation issues. Human Rights Commission submits a report to the HPR on matters of human right

34. …Controlling Administrative Agencies e) Other Institutions Ethics and Anti-Corruption Commission Studies or caused to be studied the practices and procedures in public offices and enterprises to secure the revision of methods of work which may be conducive to corrupt practices and follow their implementation. Inform or remind the concerned body when deemed essential to take the proper measure. Give decision, advise or assist on the same. Investigate alleged complaints Prosecute any alleged suspected corruption offences.

35. …Controlling Administrative Agencies Office of the Federal Auditor General Conducting financial, performance and compliance audit. Notify its audit findings to the audited organ If the audit finding shows that a crime has been committed, the office shall notify the same to the concerned body.

36. 4.8. Judicial Review of Administrative Acts JR is the idea that actions of the executive and legislative branches of government are subject to review and possible to invalidation by the judicial branch. JR is also defined as a procedure whereby final administrative actions for which all available administrative remedies have been exhausted are to be re-examined by courts upon compliant of persons aggrieved by the actions of the agency. Judicial Review of Administrative Acts originated in the US legal system ( Marbury Vs Madison ,1803).

37. …Judicial Review of Administrative Acts 4.8.1. Grounds for Judicial Review Judicial review can be conducted based on two grounds:- Constitutionality/Constitutional ground Other legally recognized grounds.

38. …Judicial Review of Administrative Acts a) Constitutionality 1. If any decision, act or law made by the executive is inconsistent with the constitution, it will be of no effect (Art. 9(1) of FDREC ). 2. If the manner, the law, act or decision made is irrational, illegal or procedurally improper, the decision could not be implemented.

39. …Judicial Review of Administrative Acts b) Illegality (Ultra vires ) Ultra vires can be defined as lack of jurisdiction or excising beyond jurisdiction. Decision is made by a wrong person and abuse of discretion. When legally un-delegable power is delegated.

40. …Judicial Review of Administrative Acts c) Irrationality No reasonable/ rational authority could ever have come to it. Arbitrariness of the decision of administrative agencies. d) Procedural Impropriety Procedures prescribed by statute have not been followed or if the rules of natural justice have not been adhered properly.

41. …Judicial Review of Administrative Acts E) Which Court is Competent to Conduct JR? Common law countries entrust their ordinary courts to conduct judicial review. In Civil law Countries, special administrative courts are entrusted to review the decisions of the administrative branch of the government based on legally recognized grounds. Out comes of Judicial Review Affirmation Modification Reversal

42. 4.9. The Ethiopian Civil Service Civil service is the branch of public service that is not legislative, judicial or military. Historically, the civil service lacked autonomy and accountability to citizens. The civil service reform program was launched to do away with such gaps.

43. …. The Ethiopian Civil Service Features of the civil service Merit based employment Political neutrality??? Job security Organization of the civil service Administrative class/the management Executive class(example:- experts) Supporting staff

44. …. The Ethiopian Civil Service Constraints in the public service . Scarcity of skilled and qualified manpower Inadequate working systems and environment Weak performance orientation in management. General Ethical conducts of the civil servant :- Loyalty Competence Devotion/commitment Secrecy/confidentiality

45. …. The Ethiopian Civil Service The Twelve Ethical Principles of the Civil Service Integrity Honesty Impartiality Loyalty Confidentiality Transparency Accountability Responsiveness Rule of law Exercising legitimate power Serving public interest Playing exemplary role