Administrative Law of Zimbabwe
Administrative Law is the law relating to the administration of the State. Administration of the State is the detailed and practical implementation of the policies of the central government aimed at the running of the State.
Purpose of Administrative Law
Administrative Law regulates legal relations between public authorities and private individuals and bodies, and between a public authority and other public authorities. One of the primary functions of Administrative Law is to exert reasonable legal control over the way in which administrative authorities exercise their functions in order to ensure that these authorities do not exceed or abuse their powers.
Administrative Law also has the positive role of facilitating good administration by enforcing the rules that are conducive to sound administration. It is not the function of the courts to usurp the role of administrators, and it is certainly not the role of the courts to obstruct the implementation of progressive legislation. The law thus tries to promote effective use of administrative power, whilst at the same time providing protection against misuse of power. It has been said that it tries to achieve a balance between public authorities and those with whom they interact, and in the process to ensure the maintenance of public interest.
Administrative Law has developed a set of remedies that are available to persons who have suffered as a result of illegal or irregular administrative action.
Many decisions pertaining to administrative matters are made by administrative officials or bodies rather than courts of law. Public officials, public bodies and administrative tribunals make a wide variety of decisions that affect members of the public.
It is important when Parliament of Zimbabwe delegates decision-making powers that it spells out clearly by whom the decision is to be made and the factors that should be taken into account in making the decision.
Nature of and reasons for tribunals
The ordinary courts deal with legal disputes. Administrative tribunals are bodies other than courts of law that are given the power to resolve disputes and to decide cases. Most tribunals are set up by legislation. These tribunals are referred to as statutory tribunals. Statutory tribunals are established outside the ordinary court structure in order to resolve conflicts and decide matters within specific areas. There are various reasons that have led to the setting up of numerous tribunals outside the ordinary court system. The main reasons are:
- it would completely overburden the courts if they had to deal with all the many, varied matters which have been allocated to tribunals to deal with;
- tribunals can deal more expeditiously with cases because their procedures are less formal than those used in ordinary court cases. This means that they are less costly to run than ordinary courts;
- tribunals can be manned by persons who possess technical expertise within the specialist areas being dealt with by the tribunals.
As already pointed out, tribunals are not courts of law. They are supposed to operate on an informal and flexible basis. They are therefore not bound to observe the formal and rigid rules of procedure and of evidence that apply in court cases. They must, however, adopt procedures that allow for a fair hearing of cases and, if they do not do so, the handling of the case can be reviewed by the High Court. (See below for the grounds upon which review cases may be brought.)
Whereas courts of law find the facts and then proceed to apply the appropriate law to those facts, the decisions of administrative tribunals are arrived at more on the basis of policy considerations. With statutory tribunals, although the Legislature (Legislative Law in Zimbabwe) may have laid down certain factors which the tribunal may or must take into account, the tribunal finally reaches its conclusion not on the basis of the automatic application of clearly established law to the facts but instead upon the basis of policy considerations, some or all of which may be incorporated into the factors laid down by the Legislature.
Examples of statutory tribunals in Zimbabwe
- The Liquor Licensing Board under Liquor Act [Chapter 14:12] (deals with liquor licence applications);
- The Medicines Control Authority under Medicines and Allied Substances Control Act [Chapter 15:03] (regulates licensing of drugs, conduct of clinical trials etc);
- The Industry and Trade Competition Commission under Competition Act [Chapter 14:28] (encourages and promotes competition in all sectors of the economy, reduces barriers to entry into any sector of the economy or to any form of economic activity; and investigates, discourages and prevents restrictive practices; to ensure that there is reasonable competition);
- The Intellectual Property Tribunal established in terms of the Intellectual Property Tribunal Act [Chapter 26:08] (determines any reference, application, appeal or other matterin terms of the Industrial Designs Act [Chapter26:02], the Patents Act [Chapter 26:03], the Trade Marks Act [Chapter 26:04], the Copyright and Neighbouring Rights Act [Chapter 26:05], the Geographical Indications Act [Chapter 26:06] or the Integrated Circuit Layout-Designs Act [Chapter 26:07];
- The Rent Boards under Housing and Building Act [Chapter 22:07] (deals with disputes relating to rent control);
- The Civil Aviation Authority under Civil Aviation Act [Chapter 13:16] (deals with applications for air operator’s certificates);
- The Commissioner under War Victims Compensation Act [Chapter 11:06] (deals with applications for compensation under the Act);
- Lotteries and Gaming Board under Lotteries and Gaming Act [Chapter 10:26] (deals with applications for gaming licences);
- Licensing authorities under Shop Licences Act [Chapter 14:17] (deals with shop licence applications).
Various professional bodies are empowered by legislation to regulate and discipline members of their professions, for instance the Law Society of Zimbabwe, the Architects Council, the Institute of Chartered Accountants of Zimbabwe and the Estate Agents Council.
By statute decision-making powers can be granted to individuals rather than tribunals. For instance, in terms of section 93 the Labour Act [Chapter 29:01] labour officers are given the power to settle through conciliation a dispute or a complaint of an unfair labour practice.
Tribunals can also be established by voluntary contractual arrangement between private parties. These are referred to as domestic tribunals. Examples of domestic tribunals are bodies such as disciplinary committees of private clubs and other private institutions.
New constitutional guarantee of administrative justice
The new constitution now contains a constitutional guarantee of the right to administrative justice in the Bill of Rights. Previously this right was protected only under an Act of Parliament, the Administrative Justice Act.
The constitutional right is as follows:
- 68 Right to administrative justice
(1) Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. (2) Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct. (3) An Act of Parliament must give effect to these rights, and must— (a) provide for the review of administrative conduct by a court or, where appropriate, by an independent and impartial tribunal; (b) impose a duty on the State to give effect to the rights in subsections (1) and (2); and (c) promote an efficient administration.
The Constitutional guarantee has aspects that were not in the provisions of the Administrative Justice Act. The new aspect in include the following:
- The right to efficient administrative conduct;
- The right to proportionate administrative conduct;
- The right to substantively fair administrative conduct.
This requires that an administrative authority perform its tasks diligently and with reasonable expedition. It overlaps with the requirement that it must perform its duties promptly.
This entails the notion that public officials should not use a sledgehammer to crack a nut. The adverse effects of administrative action must not completely outweigh its beneficial effects. When taking administrative action administrators should always consider whether there are less drastic or oppressive means to accomplish the desired end. It has been suggested that there should be a number of enquiries:
- What is the importance of the end sought to be achieved by the measure?
- Is the measure in question suitable or effective to achieve the desired aim?
- Is the measure necessary in the sense that no lesser form of interference with the rights of a person or persons is possible to achieve the desired aim or is there an equally effective alternative measure that can be used?
- Even though the measure is suitable to achieve the objective, does it not place an excessive burden on a person or persons which is disproportionate in relation to the the public interest at stake?
Previously administrative authorities were only required to carry out their duties in accordance with principles of procedural fairness that is in accordance with principles of natural justice.
Section 68 adds a new requirement that in addition to administrative action being procedurally fair it must also be substantively fair. The old approach where the courts delved only into the manner by which he administrative decisions were taken and avoided dealing with the substantive merits of the decision has thus been largely swept away because now the courts will be obliged to examine the substantive fairness of the administrative action.