ISLAMIC UNIVERSITY OF UGANDA
KAMPALA CAMPUS
SEMSTER ONE
COURSE WORK: ADMINISTRATIVE LAW
LECTURER: MR. MPAATA IBRAHIM
GROUP: 4
NO. NAMES REGISTRATTION NUMBER
1. KABUGO GERALD 223-053012-25841
2 WALUSIMBI MOSES WALTER 223-053012-25811
3 MUMBYA MURUSHIDÌI 223-053012-25325
4 AYIRE HADIJAH 223-053012-25774
5 ONEN MARY VALERIA 223-053011-25519
6 NABAKOOZA ZULAIKA TETELI 223-053012-25447
7. HAMBA GRACE MARIANN 223-053012-25211
8. WAJJARASU HUSSEIN 223-053012-25595
9. KALUNGABA FATUMA 223-053012-25784
10. NANYANZI PHIONA 223-053012-25818
11 AINEBYONA TRISAH 223-053011-25350
12 BYAMUKAMA BAGUMA 223-053012-25843
ALVINE
13 NAGASHA SHANNITA 223-053012-25521
14 KATENDE LOUIS 223-053012-25851
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15 KIGUNDU KHALID 223-053011-25264
16 SSEKIKOFU SAID 223-053012-25591
17 MAGUMBA ISMAIL 223-053012-25589
18 NALUKOOYA CARMEN 221-053012-22573
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THE CONCEPT OF DELEGATION OF POWER IN ADMINISTRATIVE
STRUCTURES.
INTRODUCTION
There are three main organs of the government-the legislature, the executive and the
judiciary. The legislature has legislative powers to make laws for the country while
the executive has powers to formulate policies, implements and enforce the law; the
judiciary interprets the laws and adjudicates over matters brought before it .In the
modern system of governance, it has imposed on governments social, cultural
economic, agricultural and other matters of human endeavor; legislation in these
areas is too much that it is virtually impossible for the parliament to cope up with it
or legislate on matters main to its functions all alone. As a result of this, the
legislature gives powers to other persons or bodies to make necessary laws as
applicable. This power is normally given to executive entities such as KCCAS, URA
CAA and others. However the sub legislation must be in conformity with the 1995
constitution of Uganda as amended and short of this they can be declared null and
void.1
1
Article2(2)
3
WHAT IS DELEGATED LEGISLATION?
Delegated legislation can be defined as a body of laws created by other organs of
government other than Parliament. It can as well refer to the laws made by
subordinate legislative bodies under the authority of a statutory power. is an Act that
confers on the President, a minister or any authority, a power to make legislation
exercisable by making proclamation, rules, regulations by laws, statutory orders or
statutory instruments, any document by which that power is exercised, shall be
known as a statutory instrument, and the provisions of this Decree shall apply there
to accordingly. Article 79 (2) of the Constitution is the buttress root upon which the
power to delegate rests upon in Uganda.
For example, in the case of Jackson Stansfield v Butterworth2, the minister of works
was empowered under a defence regulation to issue licences for carrying out
construction works, he allowed Local Authorities to issue licences on his behalf. The
authorisation was contained a circular supplemented by a Notice for Guidance. An
issue arose whether the Circular was legislative or administrative. Court court was
of the view that Ministerial Circulars were not merely administrative but legislative
in their nature in that they contain an elaboration of instructions as to the granting
of licenses which were intended to be enforced. Therefore they were to bind the
public and that was legislation proper and could not be challenged or annulled.
METHODS OF DELEGATING POWERS
Delegation normally follows a chain of command. This is so in order to avoid
demoralization of the immediate subordinates. In the case of Jackson v Butterworths,
it was emphasized that where delegation is authorized, it should be exercised by
transfer of powers to civil servants within the ministry and not to another minister
or local authority.
2
[1948] 2 ALL ER 558
4
Delegation can either be general or specific as illustrated below.
GENERAL DELEGATION
The general or simple delegation of powers to make subordinate legislation comprise
a delegation to a donee of wide powers to make laws or act in his or her discretion
within the limits which may have been set for him/her by the giver or the regulatory
authority.
SPECIFIC DELEGATION
Specific delegation enumerates the subject matters on which the regulations may be
made. The donee of such power is restricted to taking action only in respect of the
specified matters. If this boundary line is not adhered to the decisions made can be
challenged for being ultra vires.
TYPES OF DELEGATED LEGISLATION INCLUDE THE FOLLOWING
Orders-usually made by ministers e.g. to dissolve a public body.
Regulations-by ministers. Regulations are the means through which substantive and
detailed law is made, for example setting out how an Act is to be implemented.
Rules-set out procedures or the way in which the parent office deals with
applications. May be made by ministers or if specified in the in the parent Act by a
senior judge.
Schemes, these schemes made by the charity commission to amend how a charity is
governed most of which are non-government organisations such as sanyu babies
home and refugee camps.
Bye laws these are laws made under local government to deal with challenges
affecting people of a given area and its jurisdiction is only binding to the residents
of that particular area. see case of MAY V POWELL3 , A bylaw made by the
3
(1946) 1 K.B. 330
5
county council pursuant of the provisions of s. 23 of the municipal corporation Act
1882 provided:
“no person shall frequent and use any street or other public places either on
behalf of himself or other persons for the purpose of book making or betting or
agreeing to bet or wager or paying or receiving bets” “public place” was defined as
including any common, public park, pleasure ground, roadside waste, foreshore,
church yard or chapel yard, or any open space to which the public have access for
the time being. Court was of a view that a by-law was ultra vires to county council
on the grounds that it was repugnant to the general law of the land as contained in
the street betting act 1906, section 1 sub 1(4) and betting and lotteries Act, 1934, 52
sub 5(1)
Directives these are means by which ministers give legally binding institutions to a
public body about the way it exercises its functions.
REQUIREMENTS OF A DELEGATED LEGISLATION INCLUDE THE
FOLLOWING.
CONSULTATION STAGE
Since subsidiary legislations deal with matters which are technical or localized these
are best addressed through a process of consultation with experts or people likely to
be affected by a particular law. Consultation may take the form of public discussion,
formal submission of memorandum or expert advice.
PUBLICATION STAGE
Delegation to make regulations must be published for public notice.
Some statutes require that all Rules and Regulations made thereunder be published
as a means of informing members of the public about the proposed law before it is
passed. This requirement is necessary whenever Parliament deems public
participation essential for the success in the implementation of legislation. For
example under the Local Council Regulations, any District Local Government
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Council in the process of making an Ordinance is required to publish a draft of the
bill not later than 14 days before the same is debated, by affixing a copy at the
District Council Notice Board, during official working hours so that interested
members of the general public can view the draft bill and given a copy thereof upon
demand and payment of a prescribed fee4.
SUBSEQUENT PUBLICATION
Under S. 16 of the Interpretation Act, it is a requirement to publish all subsidiary
legislations in the gazette, so as to become judiciously noticed.
For example in Simms Motor Units v Minister of Labur5 ,it was stated that a
statutory rule or order must be published in a proper way for the information of the
public and those who are bound to comply with the regulations.
APPROVAL BY LEGISLATURE
Delegation to make regulations may be required to be laid before the legislature for
necessary approval. Some subsidiary legislation requires approval of another public
authority before they can become effective as law. For example S. 175 (2) of the
Local Government Act states that the Minister may by Statutory Instrument and with
the approval of Cabinet amend, replace, alter or revoke any of the Schedules of the
Local Government Act and the Minister shall not have power to delegate this
function. For example in 2020, the local government (amendment) Act 2020 was
passed by parliament on march 4, 2020, to extend the term of office for local
councils. And recently the minister responsible for local government extended the
term in office for local councils for six months.
4
Section 176 ,177 of the local government Act of 2015
5
[1946] 2 ALL ER 201
7
Confirmation
Delegation to make regulations may be subjected to the requirement for
confirmation or approval or by consultation with the minister or other persons.
CONSENT
Some laws require that subsidiary legislation be laid before Parliament before they
become effective. The purpose of this requirement is to obtain Parliamentary
consent. E.g in R v Wakiso Estates, the relevant employment Ordinance gave power
to Governor Sir Heskethbell to make Regulations in accordance with the Ordinance.
It also provided that the Regulations made by the Governor shall be laid before the
Legislative Council before they become effective. Wakiso Estates contravened this
law and was prosecuted. In her defence it argued that the Regulation was invalid in
as far as its making did not comply with the procedural requirement to first be
approved by the Legislative Council. The Court agreed with the defence and was of
a view that, “a subsidiary legislation made in breach of the procedure established
under a parent Act is invalid and of no legal force”.
REASONS FOR DELEGATING POWER
Some of the reasons include the following.
It reduces parliamentary workload
Parliament as a matter of fact, does not have all the time and capacity required to
deal with the volume of legislations required by a modern government or state. The
underlying reason is that a modern organization has many activities to manage and
Parliament cannot expediently cater for all, hence delegated legislation. Delegated
legislation may be given to the executive in order to relieve pressure on
parliamentary time and enable parliament to concentrate on principles rather than
details. If parliament attempted to enact all legislation itself machinery, the
legislative machinery would breakdown due to too much work.
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Some matters require expertise to be dealt with;
Technicality of subject matter; legislation on technical matters necessitates prior
consultation with experts and interests concerned. It enables experts to legislate on
technical and specialized matters on which many of the members of parliament may
lack the requisite knowledge that may be required to legislate in detail. For example,
the British Committee on Ministers Powers in 1932 said;
“The truth is that if parliament were not willing to delegate law making power,
parliament would be unable to pass the kind and quality of legislation which
modern public opinion requires. “Thus justifying need for delegation.
Many delegated legislations deal with technical matters such as mode of tax-
collection, safety at workplaces, precaution to be taken against use of certain drugs;
which Parliament may neither have the skill nor the time to make detailed provisions
for. Therefore, it is said that Parliament must restrict itself to Principal laws and
leave Application of laws to the Administrative arm of government. In this sense,
the practice of delegating legislation is valuable as it provides for a power of constant
adoption to unknown future conditions without necessarily amending legislation;
and also permits for rapid utilization of experience and skill on making laws.
Delegated legislation allows laws relating to technical matters to be prepared by
those with the relevant knowledge.
It is Flexibility enough to deal with the real issues affecting the people
When the power of delegated legislation is properly exercised and not abused, the
administrative authority located in the local community can be reached by the
people. The administrative authority can see the local situation for itself and thus
properly use delegated legislation to make laws or rule that conform to the
needs of the local community. Flexibility helps to address some matters faster .
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Parliament may also not be the best institution to recognize and deal with the needs
of local people-local councillors who are more close to the local people thus know
their local problems may not be best solved by parliament but by councillors.
It affords quick response to a state of emergency
Parliament may not be able to sit and deliberate due to their cumbersome procedures
to be able to respond to situations at hand as they unfold. Delegation of powers is
desirable to address urgent situation. Emergency action is necessary to deal with
urgent situations without waiting for parliament to sit. However it should be noted
that regulations allowing emergency action apply only in war time.
It is ideal in handling detailed matters of procedure
At the time Bills are presented to Parliament for consideration, even the government
may sometimes not know precisely how to handle the problem it seeks to solve
through Parliamentary legislation. The fact that a Minister has a team of experts
(Civil Servants, headed by a Permanent Secretary), makes it ideal to leave such
details for delegated legislation to enable the Minister first consult and benefit from
the advice of the expert civil servants.
It is useful, in setting and communicating a commencement date of an Act of
Parliament
The rationale is that it may not be possible for the Act, or parts of it to be
implemented until certain administrative steps have been taken and it may be
uncertain on how long this may take e.g., the Amnesty Act.
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DISADVANTAGES OF DELEGATED LEGISLATION.
Delegated legislation is a usurpation of the powers of the parliament to make
laws for the nation.
It undermines the doctrine of parliamentary supremacy.
It is a negation of the concept of rule of law as the usual procedures for the
making of laws are not always observed as the process is coupled with waivers
of some procedures.
The control of delegated legislation is inadequate. Parliament has no time,
opportunity or the special expertise that may be required to keep close
surveillance and make needed objections to administrative legislations.
Administrative law makers sometimes have too much power and discretions.
For instance, the delegation of legislative power to ministers, head of
departments and so forth, is often done in phrases such as “As the Hon.
Minister deems fit”, “In the opinion of the Hon. Minister and so on.”
These subjectively worded phrases may lead to arbitrary use of delegated
power.
THE RULE AGAINST SUB-DELEGATION
As a general rule, a delegate may not sub-delegate his/her authority, power
or functions to another person, authority, body or agency. This rule is expressed
in the maxim “Delegatus non potest delegare”. In A. G. (Bendel State) vs. A.G.
(Federation), the Supreme Court was of a view that, two houses of the National
Assembly cannot delegate its law-making functions to a committee of the House.
See also the case of Remtulia Fulamani V R6 .
6
(1936) T.L.R.
11
The appellant was convicted for breach of a rule 11 of the cotton rules, 1931. the
rule read as follows:
“The director of Agriculture may from time to time fix by notification in the
gazette a date prior to which all previous seasons cotton plants and residues and all
plants declared by in the said notice to harbor the pests and diseases of cotton shall
be uprooted and burnt. All cotton plants and cotton residue shall be burnt prior to
such a date.
The appellant failed to comply with the terms of the notice by the named date.
“Rule 11 does not its self-provide for the destruction of plants it mentions. It provides
for their destruction if the director of Agriculture fixes a date there of by notice. The
consequence of this wording is to create in addition to the governor, another
legislative authority whom discretion effects the destruction of the plants.
However, a statute may provide for sub-delegation to certain persons and under
certain conditions. Generally speaking, a delegate may sub-delegate duties that do
not involve exercise of discretion such as:
1) Ministerial powers, which include the signing of letters, memorandum and
instruction on behalf of the person delegating the power.
2) Executive or administrative powers, which involve issuing of license, permits,
institution of legal proceedings, and so on.
However, a delegate cannot sub-delegate the following functions or powers:
Judicial or quasi-judicial powers;
Legislative or rule making powers;
Duties requiring personal performance; and
Duties involving exercise of discretion.
See also the case of Allingham v Ministry of Agriculture and Fisheries7, Local
committees were empowered to direct farmers to grow specified crops on
specified fields. A committee decided to order eight arces of sugar beet to be
7
(1948)ALL E.R 780
12
grown by a farmer but left it to their executive officer to decide on which field it
should be grown. Court was of a view that the direction by the Executive officer
was void since he had no power to decide as to the field.
CONTROL OF DELEGATED LEGISLATION
Powers may be delegated by the legislative arm of the government and may also be
subject to arbitrary use and thus, the need to control and safeguard its use. There are
three machineries available for controlling the delegated legislations. They are the
legislative control, the executive control and the judicial control, as discussed
below.
THE LEGISLATIVE CONTROL
The legislature may delegate powers to the executive to perform certain legislative
functions. In the same way, it possesses the power to control its exercise. According
to LORD COLERIDGE in Huth vs. Clarke 8
But delegations do not imply a denudation of power and authority. The word
‘delegation’ implies that the powers are committed to another person or body,
which are as a rule, always subject to resumption by the power delegating (it) and
many examples of this might be given. Unless, therefore, it is controlled by statute,
the delegating power can at any time resume its authority.
Legislative control is exercised by the legislature. As the donor of the power, it may
prescribe that the proposed delegated legislation shall be laid before the legislature
for purpose of debating, approving or rejecting it, suspend its approval or amend any
part of the legislation etc. It may also prescribe the procedure to be followed before
a delegated legislation may be made. The enabling law may require that any
8
25 QBD 391
13
regulation made under it be laid before the legislature before the legislation is made
or as soon as possible immediately after making it. The operation or determinate
may be time specific or contingent on the occurrence of a prescribed event.
Article 99(4) of the 1995 constitution as amended provides that the functions of
the president as the executive authority of Uganda may be exercised by the president
directly or through officials subordinate to the president. Section 1 of the Transfer
of powers and Duties Act provides that whereby or under any Act of parliament,
the president may, by statutory order, transfer the exercise of that power or
performance of that duty to any line minister or public officer.
THE EXECUTIVE CONTROL
The executive exercises a lot of control over a delegate of power under delegated
legislation. The control may be exercised by authorizing the donee of the power
to submit the proposed rules to the relevant supervisory body and this is intended
to avoid the embarrassment of the government. Executive delegation is buttressed
under chapter seven of the 1995 constitution as amended where the president
delegates some of his powers to ministers.
In addition, the executive exercises such control through the power to appoint and
dismiss unbecoming donee of power. This is more so when the executive is
embarrassed by certain rules and regulations made by a department which do not
receive their approval. However, this power to dismiss must be exercised in
accordance with the laid down rules. However, the delegated power may be revoked
see Ondo State University State vs. Folayan State University9, the Supreme Court
held inter alia that power to delegate function also includes a power to revoke such
delegation.
9
1994) 7 NWLR pt.354, P. 1 SC
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JUDICIAL CONTROL
Article 126 (1) of the Constitution of the Republic of Uganda, 1995 provides that;
“Judicial power is derived from the people and shall be exercised by the courts
established under this Constitution in the name of the people and in conformity
with law and with the values, norms and aspirations of the people”.
The truth about delegated legislation is that every subsidiary legislation is at the
mercy of the courts, which apply settled principles for the interpretation of statutes.
This is sometimes called judicial review. In Okogie & ORS vs. AG. Lagos State10
, Justice Agoro of the Lagos High Court was of the view that while setting aside the
Lagos State Government Circular titled “Abolition of Private Primary Education in
Lagos State” dated 26th March, 1980 and which was to take effect and operate in
the State from 1st September, 1980. His lordship said that it was not necessary for
the plaintiffs to await the happening of the event before applying to the court for
redress. The right to commence action in the court could be exercised by the plaintiff
as soon as there exists a threat or likelihood of their fundamental right being
infringed or contravened. Thus, the application made by the plaintiff was not
premature.
Also in Adewole & ORS vs Jakande & ORS11; a group of parents challenged the
aforesaid Lagos State Government’s circular purportedly abolishing private
primary school education in Lagos State. The defendant’s counsel contended that
the applicants have no right in law, which they can claim to have been
infringed or threatened as the Circular had not yet come into force and that
the parents ought to have waited until September 1, 1980 to know the fate of the
children. Omololu-Thomas J. was of a view that setting aside the said circular as null
10
(1981) I NCLR 218 HC
11
(1981) I NCLR 262 HC
15
and void, that the action of the plaintiffs was not premature. It is trite law that the
courts have power in its equitable jurisdiction, and by the constitution, statute and
rules of procedure and under its inherent powers to make a declaration against
intending infringers, where there is a threatened breach of a right, and where the
apprehended act would be unlawful.
Courts will normally determine the validity of delegated legislation by applying the
test of ultra vires. This is done on the following basis;
1. If it violates the fundamental law of the land, especially the constitution;
2. If it is not authorized by the parent Act;
3. If it is passed in bad faith;
4. If it is unreasonable.
5. If it is vague and uncertain;
6. If it sub delegates powers delegated upon it by the statute; and
7. Once it fails to follow procedure laid down for its enactment.
The doctrine of intra-vires
The word intra-vires is a Latin phrase that "means with in powers". This doctrine
was derived its origin from English laws and it was adopted in Uganda with an aim
of checking and ensuring that corporations, agencies, government bodies and
individuals work with in there scope of authority. This doctrine arise where an
authority exercises its powers, functions and responsibilities that the confers on it in
the following ways;
Legal authority , here organization, agencies or government bodies are expected to
work with in their authorities granted to them by law ie Constitution 1995 as
amended, contract act, penal code act, evidence act and many others.
Subject matter, judicial review, case of Ojok Alphonse and others v Gulu
Municipal Council and Pece Division local Council. Court gave a view that an
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ultra vires agreement cannot become intra vires by reason of estoppel, ratification,
delay or lapse of time.
In the case of Kasule v Attorney General12 Plaintiff brought a premium development
bank bond the number of which was drawn for a prize. The government refused to
pay the prize to the plaintiff relying on orders puportingly made by the minister to
regulate the draw and imposing condition that a bond had to be brought more than
two weeks before the draw to be eligible. Court held that the purported orders were
ultra vires the Premium Development Bond Act. The conditions were therefore
invalid and plaintiff entitled to the prize.
In conclusion, Delegated legislation is the law made by a delegated authority in
exercise of powers to make the laws, which have been conferred by the constitution
or other enabling laws. It is essential in a modern society for various reasons.
Delegated legislation has its pros and cons. It’s also important to note that there are
some powers which cannot and must not be delegated or sub –delegated. In order to
avoid arbitrary exercise of the powers delegated, certain mechanisms are put in place
to check the exercise of such powers. Thus, the legislature, executive and the
judiciary act as checks on the administrator via various controls exercised by the
three arms of government as illustrated above.SA
12
[1971] 29 EA
17
References
1995 constitution of Uganda as amended
The local government Act
Parliament rules of procedure Act.
Case laws
The Transfer of powers Act
The interpretation Act cap 3
Books
Administrative law class notes by EDRINE WANYAMA
Ulii.com
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