QUESTION: This discussion will analyze the essential rights associated with the administration of justice, as highlighted in case law.
AUTHOR: KATALILO JOY
INTRODUCTION
This paper aims to explore the key aspects of administrative justice and emphasize the fundamental rights connected to its administration. Governments bear the responsibility of guiding their citizens and consequently make decisions that affect society’s individuals.
The government exercises its decision-making authority through its different agencies. These agencies have been granted both legislative and judicial powers. Legislative powers enable the agency to create laws like regulations, rules, or procedures. Judicial powers allow the agency to settle disputed cases within its jurisdiction. This act of adjudication is commonly referred to as administrative justice.
Administrative justice can be defined as the process of resolving disputes in the realm of administrative law, encompassing the organization, authorities, and procedures of the courts responsible for overseeing the “administration” according to legal standards [1]. These definitions imply the existence of institutions or bodies that administer administrative justice. However, these entities do not fit the strict definition of a court, as they derive their judicial powers from the Executive branch of government rather than the Constitution. Notable among these institutions are Commissions of Inquiry. These Commissions are appointed by the President, who is granted such powers through the Inquiries Act. Section 2 of this Act empowers the President to issue Commissions, providing an opportunity for independent individuals to investigate matters which the President cannot unilaterally decide. Before issuing a Commission, it is a prerequisite for the President to be convinced that the matter in question truly exists and is a serious issue of public interest.
The task of the appointed Commissioners is to gather public views on the matter and provide recommendations to the President. In 1973, Dr Kenneth Kaunda, the first President of Zambia, faced a similar situation. He believed that the multi-party system of governance was unsuitable for Zambia. As a result, he established a Commission of Inquiry led by Mainza Chona to obtain public opinions on the matter. The outcome was the implementation of a one-party system of governance, with UNIP being the only political party.
Other Commissions of inquiry were established by the Second Republican President to investigate the circumstances surrounding the death of Baldwin Nkumbula. The purpose of these inquiries was to examine the widespread belief that Nkumbula’s demise was a result of actions taken by the government. The objective of these Commissions of Inquiry is to alleviate the prevailing suspicion that the government exercises its power over the people without any oversight or restraint. It could be contended that given that the President holds the discretion in selecting these Commissions, their findings and recommendations may be influenced by the preferences of the appointing authority.
It is unlikely that this is true because the individuals typically chosen to lead the Commissions are highly respected and have a reputation to uphold on an international level. One example is the Constitutional Commission of 1993, which was led by John Mwanakatwe and its recommendations accurately reflected the desires of the people. The issue with Commissions of inquiry usually lies with the authority responsible for their appointment. In the situation of the Mwanakatwe Commission, the appointing authority (the President) dismissed the recommendations. b) Tribunals
Tribunals serve the purpose of establishing the facts surrounding a specific situation and reaching a fair and equitable verdict based on the prevailing circumstances. They offer a more efficient and economical approach to resolving conflicts. Administrative and appeals tribunals are the two main categories. The former deals with grievances brought forth by individuals impacted by governmental decisions, such as Zambia’s Lands tribunal.
The purpose of the Lands Tribunal in Zambia is to resolve challenges and disputes arising from land tenure system reorganization. It primarily handles issues faced by individuals affected by these changes. Additionally, there is an Appeals Tribunal that assesses decisions made on appeals by administrative officers or entities. This type of tribunal is common in Zambia and has the power to review appeals against government agency decisions.
There are various types of tribunals, such as the Revenue Appeals Tribunal[2], which was established to handle appeals related to the Customs and Excise Act 1982, the Income Tax Act 1993, and the Value Added Tax Act 2001. It is important to note that tribunals can be either permanent or adhoc. Permanent tribunals include the land tribunal, while adhoc tribunals are created by the Chief Justice under the Parliamentary and Ministerial Code of Conduct Act[3]. Regardless of their classification, all tribunals provide an impartial and unbiased assessment of the matter at hand. Therefore, their decisions are generally considered fair when compared to internal reviews.
Tribunals and inquiries have distinct differences. Tribunals issue legally binding decisions that all parties involved must adhere to, whereas inquiries do not necessarily have the same authority. This does not mean, however, that tribunal rulings are immune to challenge. In the case of The Attorney-General v Steven Luguru[4], the High Court of Zambia overturned a decision made by the Lands tribunal. The initial ruling granted a Tanzanian citizen, who was currently renting, the right to purchase a government pool house. The court determined that the lands tribunal had exceeded its jurisdiction in this matter. Generally speaking, tribunals consist of members who may not be lawyers, with the exception of the Chairman, and their membership is typically part-time.
Compared to courts of law, tribunals are simpler and more flexible. The main responsibility of the parties is to provide evidence and arguments before the tribunal. However, tribunals are limited to handling specific matters as outlined in the relevant legislation. For example, the lands tribunal exclusively addresses matters related to the Land Act. On the other hand, public complaints regarding administrative agencies can be divided into two categories: individuals requesting a reconsideration of a decision with hopes for it being overturned.
When faced with situations like this, individuals can file an appeal to seek resolution. This is when tribunals or courts of law intervene through judicial review. Another form of complaint arises when there are concerns regarding maladministration in the exercise of administrative power. This encompasses instances such as prolonged delays in decision-making or unjust treatment towards those affected. The Ombudsman’s primary focus is on addressing grievances of this nature, aiming to safeguard citizens against any potential misuse or exploitation of administrative power by the Executive[5].
The primary role of the Investigator-General in Zambia is to examine claims of maladministration by the Executive. This position was established in 1974 through the Commission of Investigation Act, which was modified in 1991. The Investigator-General is responsible for investigating allegations or complaints against officials from both central and local government. This office holds significant investigative powers, allowing it to address cases of individual injustice or abuse of power and authority.
The public is able to make allegations regarding various matters such as tribalism, corruption, nepotism, gender-related issues, and more. It is necessary for the Investigator-General to receive allegations in order to perform investigations; he cannot initiate investigations on his own without any allegations. Additionally, the Investigator-General is unable to investigate cases that have alternative methods of resolution, such as through application to the Executive or appeal to a tribunal or the Courts of Law. The investigations conducted by the Investigator-General are limited to allegations that are considered serious.
The Investigator-General cannot investigate allegations that are deemed to be made in bad faith or that are considered trivial. However, even with these restrictions, this office is crucial because it is viewed as independent and unbiased, which gives the public confidence in its findings. Complaints or allegations are informally received and do not require any payment from the complainant. By receiving these allegations and conducting investigations, the investigator-general can offer guidance, reminders, and reprimands to administrative officers and institutions when they fall short.
The office of the investigator-general serves as a check on administrative officials or institutions to prevent improper actions. This office handles all types of cases. The aforementioned has outlined the key aspects of administrative justice that are utilized to resolve any disputes arising from administrative actions or decisions. In the process of resolving these disputes, the parties involved in the matter have certain rights, including the right to legal representation.
There is a need for the ability of a complaint or administrative agency to have legal representation when presenting their case before a tribunal or in response to an inquiry or ombudsman’s findings. This right has been argued to give these dispute resolution mechanisms the qualities of courts of law, and it is believed that legal representation is crucial for justice to be served in such situations. In instances where hearings prohibit legal representation, like those involving individuals and institutions such as the National Health Service in the United Kingdom, parties still retain the right to seek legal advice.
The purpose of excluding legal representation in certain hearings is to guarantee a just and fair process. This is because individuals who lodge complaints against powerful institutions such as the National Health Service might not have access to sufficient legal aid, which may impede their ability to actively engage in the hearing and possibly lead to unjust outcomes. Furthermore, both parties involved have the right to contest rulings made by administrative justice bodies, including tribunals. Such appeals can be based on factual inaccuracies, legal issues, or the overall validity of the decision.
Depending on the nature of the appeal, different judicial bodies can be approached. If the appeal pertains to factual matters, it should be directed to an appellate tribunal. Conversely, if it involves legal issues, it should be presented before the Courts of Law. In Zambia, rulings made by the lands tribunal have the option of being directly appealed to the Supreme Court. This was demonstrated in a specific case titled Attorney General v. Steven Luguru[6], where both sides had legal representation and the government successfully challenged the lands tribunal’s decision. It is crucial for all parties involved to comprehend why administrative justice institutions arrive at their decisions.
It is necessary to provide complete rationales for decisions made, unless there are exceptional circumstances such as cases related to national security or when revealing the reasons might violate the interests of involved parties, such as in medical matters. Failing to disclose the reasons can serve as grounds for an appeal for judicial review or a petition for mandamus to force the decision maker to reveal the reasons. In conclusion, governments lead societies with the main objective of steering them towards economic and social progress. To accomplish this enormous undertaking, governments devise policies that require execution.
The implementation is carried out by different branches of the government that are obligated to make regular decisions. The outcome of this decision-making process includes a disgruntled public. In its wisdom, the government has established mechanisms for resolving disputes within its systems. These dispute resolution mechanisms take the form of tribunals and ombudsman, among others. In their procedures, these mechanisms grant certain rights to the parties involved. These rights encompass the right to have legal representation, the right to appeal, and the right to receive explanations for the decisions made.
