31 January 2012 Written by  Aberham Yohannes and Desta G/michael

Development of Administrative Law

In General

Unlike other fields of law, administrative law is a recent phenomenon and can fairly be described as ‘infant.’ Historically, its emergence could be dated back to the end of the 19th century. This era marked the advent of the ‘welfare state’ and the subsequent withering away of ‘the police state.’ The interventionist role of the welfare state practically necessitated the increment of the nature and extent of power of governments. Simultaneous, with such necessity came the need for controlling the manner of exercise of power so as to ensure protection of individual rights, and generally legality and fairness in the administration. With such background, administrative law, as a legal instrument of controlling power, began to grow and develop too fast. Typically, with the proliferation of the administrative agencies, administrative law has shown significant changes in its nature, purpose and scope.

Presently, administrative law, in most legal systems, is significantly developed and undoubtedly recognized as a distinct branch of law. However the path followed to reach at this stage is not uniform and similar in most countries. Administrative law is unique to a specific country. Such uniqueness can be explained by the fact that it is the outcome of the political reality, economic circumstances and the nature of the legal system prevailing in that country. It is also highly influenced by the constitutional structure, the system of government and principles of the public administration adopted by that country.

Generally, the proliferation of the administrative agencies and the expansion of delegated legislation were two significant factors for the growth of the administrative law in most countries. The 20th century marked with the vast increase of administrative agencies with vast and wide-ranging powers. This necessitated legislative measures and judicial interference aimed at controlling the manner of exercise of power of these entities so as to ensure protection of individual rights and freedoms. As a result, most countries introduced specific and comprehensive rules and procedures governing administrative adjudication and rule-making. In US, the Administrative Procedure Act which was made law in 1946 is one such example of a comprehensive response to deal with the growing power of agencies. Since then, the landscape of the history of the American administrative law has been changed significantly. Similarly, in England the Statutory Instrument Act was promulgated in the same year (1946) even though it was not as comprehensive and influential as the American counterpart. The Act was a direct response to the ever increasing power of agencies, more specifically, the delegation power of agencies. In the 1920s fear developed about the volume and nature of the delegated legislation being produced, which was not receiving parliamentary scrutiny; many sought necessary or desirable.

In 1929, lord chief justice Lord Hewart published The New Despotism in which he railed against what he saw as dangerous and uncontrolled growth of bureaucratic power. In 1932, the report of the Donoughmore-Scott Committee on Ministers’ powers was issued. The report, amongst other things, explained the inevitability of the delegated legislation, and also suggested some safeguards. The report also recommended better scrutiny of the vesting in Ministers of ‘oppressive’ powers. This, finally, led to the enactment of the Statutory Instruments Act of the 1946.

However, the growth of the administrative law is not limited to statutory prescriptions of rules and procedures governing the administrative process. Courts have also played important roles in shaping the form, substance and scope of the administrative law. In England, until the Second World War and in the period immediately following 1945, courts continued limiting the scope of their controls. Such judicial restraint was relaxed after the 1960s and there was judicial revival and activism with the judiciary reclaiming their proper role of ensuring the legality and fairness of exercise of governmental powers. In America, where the judiciary has firmly asserted its strong position in checking the constitutionality of parliamentary legislation, the courts didn’t hesitate to review administrative decision, including delegated legislation.

In France, Italy, Germany and in a number of other countries, there is a separate system of administrative courts which deal with administrative cases exclusively. As a natural consequence, administrative law has developed on its own independent lines, and is not enmeshed with ordinary private law as it is in the Anglo-American system.

1.6.2   Ethiopia

It is very difficult and challenge to talk about the history of administrative law in Ethiopia.   Administrative law is still not well developed, and it is an area of law characterized by the lack of legislative reform. It is also a subject in which too little attention is given in terms of research and publication. Even though it cannot be denied that there are some specific legislations scattered here and there, which are relevant to the study of administrative law, it is still at a very infant stage.

When one looks into some of the specific legislations, one could easily realize that they are not in effect rules and procedures of manner of exercising power, or in general terms tools of controlling governmental power. Rather they are enabling acts conferring power on administrative agencies. However, since administrative law is in essence the mechanism of controlling power such enabling acts granting judicial and legislative powers it could not in any way signify the existence of administrative law in one country.

Hence, the historical development of the administrative law should be studied in terms of the process of legislative and judicial movement to curb the excess of power. In Ethiopia, the history of government is largely characterized by arbitrariness and lack of effective legislative, judicial and institutional control of power. That is why it is challenging to record the historical development or growth of administrative law.

In the final analysis, it becomes convincing that the issue has to be dealt with in terms of describing the growth of administrative power and the respective absence or few instances of legislative, judicial institutional attempts to control the exercise of administrative  power. Ultimately, this task becomes the study of the constitutional history of Ethiopia, as the administrative law history could not be significantly different from its constitutional history.

Up to 1987, the previous three constitutions of the 1931, 1955 and 1974 did not contain any meaningful and practical limit on the power of government.

The 1931 constitution was simply a means of centralizing power of the Emperor, and as Markaris has explained, it was ‘designed as a legal weapon in the process of centralization of governmental power.’ The 1955 revised constitution has showed little improving in this regard as it tried to define and distribute powers of government. It also included provisions entitling the citizen’s fundamental rights and freedoms. But it failed to do away with the accumulation of power in the hands of the Emperor. The Emperor still retained law-making power sharing it with parliament, and judicial powers, which were illdefined in the constitution as ‘the power to maintain justice’ and the essential executive powers were vested directly on him.

Such being the constitutional set up during that time, it is naïve to talk about the control mechanisms of power of the executive since that ultimately means checking the unquestionable power of the Emperor. However, it is be unfair to inter this conclusion as an indicative of the total picture. There were some attempts and signs towards addressing the grievances of citizens against maladministration. There was, for instance, a legislative effort to establish the Ombudsman during the last days of the Emperor Haile Selasie’s regime. In attempt to come up with a new constitution, a draft constitution was prepared which devoted the ninth chapter to the establishment of the office of the Ombudsman. This draft, and thereby the establishment of the Ombudsman, remained in paper as a result of the fall of the Emperor in 1974.

During the same period, an unsuccessful attempt was made to introduce for the first time an Administrative Procedure Act that governs the decision making process of the administrative agencies. The draft was not actually as comprehensive as the American Administrative Procedure Act since it failed to deal with the rule making procedure of the agencies. Its scope is limited only to providing mandatory adjudication procedures of the agencies and the establishment of the administrative court reviewing their decision.

In addition to such unsuccessful attempts, the establishment of some the administrative courts like the Civil Service Tribunal and an administrative tribunal entrusted with the power of reviewing assessment of tax may be taken as one step ahead for the evolution of the administrative law in Ethiopia.

The courts were also not totally silent in exercising their proper role of checking the legality of power of the executive. In very few instances, the courts used their ordinary power of interpretation of laws and entertained disputes between the citizen and the government. In one reported case, a court issued an order of mandamus compelling the agency to discharge its legal duty towards the plaintiff. This, even though, is a single and isolated incident is an indicative of the uncoordinated effort of the judiciary to wake up from the deep sleep of judicial restraint. It should also be remembered that the judiciary be totally blamed for failing to assert its proper place as ‘the guardian of liberty.’ This is mainly due to the fact that the citizen didn’t look to the judiciary seeking redress against the government. There is no role for the court to play in the absence of   a petition made to it. Too many reasons could be mentioned for such incident. But, lack of public confidence in the judiciary reflective of absence of independence of the courts may be cited as one of the contributing factors for the lack of an active judiciary.. This is true not only with respect to the scope and extent of judicial control of administrative action during the Imperial era, but can also be taken as a general truth   about the judiciary to the present day.

Administrative law didn’t show any progress during the Dergue regime. The 1987 constitution was not devised to limit the power of the government. Hence, one should not expect administrative law to deviate from the prevailing constitutional structure and develop as an instrument of checking the executive.

The present Federal Democratic Republic of Ethiopia of the 1995 has laid down the constitutional framework for the development of the administrative law. It contains key principles of government administration like accountability, transparency, and public participation. It also envisages the establishment of the Ombudsman and the Human Rights Commission. Six years after the constitution, the two institutions were established by the parliament.

Last modified on Wednesday, 02 May 2012 13:05