By : Dr. Odhiambo and Mr. Wandera ( Lecturers MUK)
Discretionary Powers (herein abbreviated as DP) are granted for purpose of attainment of specific objectives in particular legislation. Discretionary Powers must be exercised judicially i.e. in
a) Accordance with the law.
b) Basing the decision on facts or available evidence.
c) Taking into account principles of natural justice.
The general principle is that there is no absolute discretion. The law does not expect public officials to do whatever they like from the powers granted to them. Reasons for discretion could be different depending on circumstances that need to be taken into account before reaching a certain decision.
Discretion may however be used as a flexible tool of managing public affairs; enabling public officers to make flexible decisions based on circumstances. Like all powers, discretionary powers may be abused and administrative law intervenes where Public Authorities abuse their powers of discretion.
How can discretionary powers be abused?
1. Where power is used for improper purposes.
2. Where discretion is based on irrelevant consideration.
3. Unreasonableness.
4. Where P.A does a wrong thing.
5. Where discretion is fettered/ restricted.
6. Acting without evidence while making decisions.
Failure to give reasons, Error on record,
a) Improper purposes.
P.A is expected to use D.P to achieve objectives which are stated / anticipated under a particular legislation. I.e. consequential to the legal framework.
In Padfield Vs Minister of Agriculture, it was stated as a principle that a public authority uses statutory powers to achieve the stated objectives. Where a P.A acts otherwise, it will be deemed to have abused its discretion even if the result is beneficial to the relevant community.
In Sydney Municipal Council Vs Campbell, a Public Administration had statutory powers which it could exercise with absolute discretion and this statutory power was given to the P.A to acquire land for the purpose of developing the city. Mr. Campbell's land was acquired using this D.P in acquiring the land; the stated objective was that the land would be disposed of at a future date and at a higher price. The acquisition of land in this case for purposes of speculation was Held to be a situation where P.A had used its statutory powers for an improper purpose. Court went ahead and issued an injunction to the council restraining it to acquire the land.
In Wheeler Vs Leicester C.C (1985) AC 554 / (1988) 2 ALLER, the appellant sought judicial review to compel the city council to quash a resolution of the council which had prevented the appellant from using one of the council recreational grounds. The council had statutory powers to allow or withhold permission for use of its grounds. The stated reason for refusal was that members of the Right Wing club had toured South Africa during the time of apartheid. The resolution .of the council had been motivated by the desire to harmonise race relations within the city. Court agreed with the appellant and Held that it was an abuse of discretionary powers to deny the appellant recreational facilities because of the desire to harmonise race relations within the city. That this was an example were D.P was used to achieve something beyond the scope of the statute.
In Robert Vs Hopwood, powers were given to the local authority to fix the level of wages that would be paid to the employees of the local authority. The local authority went ahead and fixed equal wages for both males and females. Prior to that, women were earning less. Court refused to confirm that this D.P had been properly exercised. That their discretion had been based on Eurocentric principles of socialist philanthropy or feminist ambition to secure equality of sexes in wages in the world of labour.
NB. Power should be used to link the works to establish objectives.
b) Irrelevant considerations.
The exercise for discretion calls for taking into account relevant facts. Relevant facts may be expressly stated or implied depending on the circumstances.
In Associated provincial picture houses Vs Wednesbury Corporation, the Judge stated " that the exercise of discretion must be a real if in the statute conferring discretion there is to be found expressly or by implication matters the authority ought to have regard to and then in exercising this discretion, it must have regard to those mattersthat the authority must disregard irrelevant collateral matters." In this particular case a licensing authority had powers to licence cinema halls and to impose such conditions as it deemed fit. The condition was that no children under 15 years shall be admitted to any entertainment whether accompanied by an adult or not and one of the issues was whether age was relevant in licensing those particular activities. Court held that this was a reasonable and relevant fact which was motivated by desire to protect the welfare of children.
There are cases where courts have interfered with administrative decisions on grounds of irrelevant considerations. In Re; Gymkhana Club, the club applied for a renewal of its licence which it had held for over 34 years. The licencing authority refused to renew the licence on grounds that the club was still largely discriminatory in it's membership and the licencing authority based it's accusations of discrimination on internal rules of the club which required that a person can only become a member if she/ he is supported by an existing member that due to such exclusive membership. The club challenged the decision of licencing authority on grounds that it is internal rules were irrelevant in the issue of application before the licencing authority. Court held that the decision had been based on admission rules which were not relevant to the exercise of discretion.
In Fernandes Vs Kericho Licencing Court, the licence was denied to Fernandes on grounds that he was not a Kenyan citizen. There were no statutory requirements for this citizenship to acquire a licence. Court held that the licencing authority had abused its D.P by using irrelevant considerations. Equally, in Shah Vs Transport Licencing Board, a licence was denied to Shah (applicant) on grounds that it was aimed at removing imbalances between Kenyans and non- citizens. Court held that this was abuse of discretionary powers using irrelevant reasons.
In Mandhwa Vs City Council of Nairobi, allocation of stalls was denied because of the desire to allocate stalls to Kenyans of African origin. Court held that issue of race and citizenship were irrelevant and should not have taken into account.
Other irrelevant considerations include;
-place of origin
-nationality in sense of tribe
-race
-gender consideration unless for purpose of affirmative action
-colour
-religion
c) Unreasonableness.
Discretionary powers are expected to be exercised within the grounds of reason. What is reasonable depends on circumstances of each case. P.A is expected to act reasonably so as to achieve the objectives of a particular statute. Examples where judicial discretion has been challenged for having acted unreasonably include the following; In Associated Provincial Picture Houses Vs Wednasbury Corporation court held that P.A must act reasonably and must take into account relevant considerations.
In Robert Vs Hopwood, Court held that it was unreasonable for P.A to use its discretionary powers regarding wages and put in place provisions that require payment of equal wages to men and women. Similarly in Prescott Vs Birmingham Corporation, A local authority officer was held to have been unreasonable were he used his powers to set fares which were payable to local transport system by allowing free travel for senior citizens.
In Re; Bukoba Gyamukhana Club, Court held that a licencing authority had acted unreasonably where he refused a licence by considering irrelevant factors. The question of reasonableness depends on what is acceptable in that particular society or establishment.
Procedural defects (additional authorities)
1) Consultation.
-It involves some indication of what the obligation involves. In Rollo Vs Minister of Town and county planning (1948) 1 ALLER 13, a Minister was obliged under the Town & County Planning Act to consult with " any local authorities which appear to him to be concerned " before making an order designating an area as the site of a new town, Bucknill, L.J said " on the one side the minister must supply sufficient information to the local authority to enable them to tender advise and on the other hand, a sufficient opportunity must be given to the local authority to tender that advise" therefore the essence of consultation is to tender genuine invitation extended with acceptable mind to give advise.
In R Vs Secretary of state for social services Exparte Association of Metropolitan Authorities (1986) 1 ALLER 164, Webster J explained "... it must go without saying that to achieve consultation, sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advise. Sufficient time must be given... to enable it to do so and for such advice to be considered..."
Consequence of failure to consult
At all / properly -courts will hold that there has been breach of a mandatory procedural requirement of the enabling act rendering the subordinate legislation invalid and of no effect.
In Kruse Vs Johnson, Lord Russel C.J said ;" unreasonableness in what sense? if for instance they (bye laws) were found to be partial and unequal in their operation as between different classes. if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in minds of reasonable men, court might well say " parliament never intended to give authority to make such rules; they are reasonable and ultra-vires therefore I conceive unreasonableness only in this sense.
Appeals
Error of law may be seen;
1. by referring to express misstatement of law contained in the reasons given for a decision.
2. Showing that no tribunal properly directed as to the law could have reached a particular conclusion it had reached, given the facts it had found. In Global plant Ltd Vs Secretary of state for health and social security (1972) 1 QB 139, court considered the scope of appeal on a point of law when it was alleged that the minister had wrongfully taken the view that 2 drivers were employed rather than independent contractors so requiring the employing company to pay the national insurance contributions. The company was unable to establish such error and so failed to show error of law in its appeal.
c) Divesture of discretionary powers/ rules against divesture. (Fettering/ restriction of divestiture of discretionary powers (Rule against divestiture of discretionary powers)
A public authority is given discretionary power on the understanding that the power will be exercised by that particular authority. As a result, the general rule is that a delegate cannot delegate. In South Port Corporation V Birkdale District Electricity S.S, Court stated that, It is a well established principle that a person or public authority entrusted by the legislature with certain powers can not divest themselves of the powers. They cannot enter into any contracts or take any action incompatible with the due exercise of their powers.
Public authorities can divest their powers through a number of ways;
Question; How can a public authority divest its powers?
-by way of contract
-by way of acting under dictation
-by way of transfer of discretionary power
Contract
A P.A enters a contract with a person not to exercise the discretionary power. The general rule is that a P.A can not bind itself not to exercise discretionary powers. It can not enter a contract which limits it to exercise its discretionary power. In S.S. Amphitrite Vs the King, Court held that an executive authority can not enter into a contract that limits its freedom to exercise executive powers and by nature executive powers are discretionary. The brief facts of this case are that, an agreement for a contract was entered into between the British representative and owners of shipping amphite. The substance of the agreement was that the ship would be allowed to sail and dock into any English port and also that it would be allowed to carry away goods from an English port. This was a time of war and because of the war situation, the British government declined to put in place this contract. The ship owners sued for breach of contract. Court held that the contract was unenforceable in so far as it bound the British government not to exercise its discretionary powers.
Similarly in Stringer Vs Minister of housing; a contract that purported to take away D.P was held to be illegal and unenforceable. In this case, a local authority had entered an agreement with Manchester University where by it was agreed that the local authority would not allow any development within the neighbourhood of the university's radio telescope. The complainants were denied a planning permission because of the agreement. Court held that the local authority had abused its D.P by signing an agreement which restricts its freedom of operation.
Adherence to policy
The local authority may also be deemed to be fettering its discretionary powers where it strictly adheres to policy. Policy may be self imposed; the public authority puts in place policies which restricts its powers. An example of self imposing policy is found in the case of Singh V Municipal Council of Nairobi, where a local authority refused to exercise discretion regarding licensing. It refused to reconsider an application for a license on its merits. The reason was that the Municipality had passed a resolution that there would be no issue of that type of license for that type of business. Court held that that was limiting exercise of discretionary powers.
Likewise, in Municipal Council of Brocken Hill V Patel, the local authority refused to give Patel a license for running a bar. The reason given was that there were many bars in that area and that the council had decided not to license any more bar operators. This was held to be a self imposed policy.
Dictation
P.A with discretionary powers is expected to apply its own judgement in matters relating to discretion. It is not supposed to be directed as to how the power should be exercised. It does not matter whether the direction comes from superior officers. Public officers/ authorities who follow the law are protected under act.173 of constitution.
In Simms Motor Units Vs Minister of labour and national service, emergency regulations provided that employees who had been dismissed for serious misconduct could complain to an officer within ministry of labour and there was also provision for appeal to labour against the officer's decision. The minister of labour directed the board on how it should handle certain cases. The minister specifically directed that whenever the board was unanimous and the complaint required re-instatement in service the board will always order for re-instatement. The employers had challenged such a directive and court agreed. Court held that the minister's directives made it impossible for the relevant officers to exercise their own dictation.
In Dent Vs Kiambu Liquor Licencing Board, the licencing board refused to renew Dents licence and licencing court based its decision on the views of the local residents who argued that Dent should not be given a licence because he was not easy to deal with. Locals even voted against the granting of the licence. Dent challenged their refusal on grounds that it had been arrived at through the process of dictation. Court held that the P.A had not exercised its D.P by itself but had been overwhelmed by views of the person's to reach that decision.
Dictation may also arise where there is over reliance on established policies which may be departmental or national. A policy which is not a law can not affect the exercise the statutory discretionary powers, unless the policy is translated into law to become effective through parliament. The general principle is that policies can not be used to undermine the exercise of discretionary powers.
In Shah Vs Municipal Council of Nairobi, a licencing authority refused to give Shah a licence because of its own policy of not licencing that type of business any more. Held; that the licencing authority had been restricted by its own policies and had not exercised it's discretion given the law.
P.A may also be challenged where they followed national policies in a manner which defeats its own discretion. In Mandwa Vs City Council of Nairobi, A trading stall was denied to the applicant because of the government policy of Africanisation of commerce. Similarly in Fernandes Vs Kericho Licencing Court, a licence was refused on grounds that the applicant was not a Kenyan citizen. The applicant challenged the refusal to issue the licence because the L.C had acted under policy and not exercised discretion.
Policy may however, be taken into account during the process of exercising discretion. What the law prohibits is rigid adherence to established policies. In some cases, consideration of policies has been upheld as relevant. In Kenya aluminium works Vs Minister of agriculture; court accepted that in some cases, policy may influence exercise of discretion.
d) Acting without evidence.
Public authorities are expected to exercise discretionary powers judicially, meaning they must take into account relevant facts / evidence. Relevant facts are normally obtained by way of evidence. Evidence is by way of testimony or submission before the relevant authority.
Discretion is not absolute and evidence available may indicate whether discretion was judicious or not. In Peera Vs Dellasanta, the rent tribunal fixed a rent payable under its powers given under statute. The rent tribunal however did not indicate the basis of arriving at the rent which they fixed. The High court overturned the decision on grounds that it was arrived at without any evidence on record.
Similarly in Dent Vs Kiambu Liquor licencing court, one of the issues was whether the licencing authority had acted without evidence. Court established as a matter of fact that the facts that were relied upon to deny the applicant a licence were not adduced as evidence and not proved to exist before the licencing authority and held that the licensing authority was wrong to rely on such allegations.
In Munene Vs R, the applicant was a medical doctor who had been charged of infamous and disgraceful conduct before medical board. The board ordered the applicant's name to be struck off the medical register for 2 years and applicant appealed to high court on grounds that the decision had been based on wrong facts / allegations. The applicant was especially against the severity of the sentence. The board had arrived at the sentence on the basis that several doctors had been charged of the same offence. There was however no evidence to support that assertion; as a matter of fact only one doctor had been charged for a similar offence. The High court reduced the severity of the sentence because it had been arrived at without evidence.
e) Failure to give reasons.
As a general rule, P.A has no duty to give reasons for every particular decision it makes. The duty may however arise, where a statute expressly or by implication requires reasons to be stated. In such cases, P.A will be under a duty to give reasons for a particular decision.
Judicial authorities also suggest that mandamus may lie where a P.A fails to state reasons where there is a duty to state reason. In cases where P.A has to choose from various options, it is normal to state the reasons why a particular option was chosen.
Read the case of Brayhead VS Birkshire Town Council (1964) 2QB 467
f) Error on record
Where there is a mistake in the proceedings either by way of record or otherwise, the error may be in recording evidence, assumptions of jurisdiction. An error which influences the outcome of a particular decision may result into judicial review. Many procedures in civil law and administration normally give room for correction of mistakes.
Comments
Post a Comment