CONTROL  OF ADMINISTRATIVE POWERS

 CONTENTS

1.0      Introduction

2.0      Objectives

• Main Content
• Means of Control
• Legislative Control
• Constitutional Control
• Executive Control

4.0      Conclusion

5.0      Summary

6.0      Tutor-Marked Assignment

7.0      References/Further Readings

 INTRODUCTION

The enduring problem usually associated with delegated legislation is the very wide powers vested in administrative agencies. You  should  recall  that  these  agencies equally exercise  wide discretionary powers.

In order to ameliorate the temptation of administrative agencies to slip into excesses, there are several means of control.

OBJECTIVES

At the end of this Unit, you should be able to:

• Analyze the various means of controlling administrative agencies
• Critique the inadequacy in existing means of control

MAIN CONTENT

Means of Control

The need for control of rule-making power is due to the dangers often associated with such powers. This is because administrative powers are prone to abuse and can easily become arbitrary if unchecked. There are safeguards within and outside the system of administration itself. We are, however, mainly concerned with control outside the administration, which may be parliamentary, presidential, executive or, perhaps, military.

Legislative Control

There are several ways in which the Legislature may control the activities of the executive branch and administrative agencies. Some of them include the following:

• Amending the law setting up the administrative agency with a view to making it more effective and responsive to the demands of the people;
• Repealing the law establishing such agency and, ipso facto, abolishing the agency; (c) Inviting a minister or head of an agency

This is usually done where there are  grey areas  in  the  operations of  the  ministry or agency or where there is public outcry against their conduct or, at any rate, where there are unfavourable media reports of their incompetence or insensitivity.

Under this type of control, which Nigeria operated in the First Republic, there is the requirement of laying before the full House of Parliament which may take various forms:

(a) Mere laying without further direction 

Often, such laying is just for the information of the parliament. (b) Laying subject to Annulment, Amendment or Disallowance

For example, under S.10(3) of the Nigeria Citizenship Act 1961, such regulation becomes void if not so late and the parliament exercises its powers within  specified  days after which it  comes into effect or lapses.

• Laying subject to Affirmative Resolution. For instance, 5  of  the  Emergency Powers  Act 1961 provides that regulations made by the president become void if not approved by a resolution of both Houses within 4 months.
• Another parliamentary procedure which is in force in England but never existed in Nigeria is through having Standing Committees to consider the legislation

SELF ASSESSMENT EXERCISE 1

Explain legislative control of administrative agencies.

Constitutional Control

You should note that it is the legislature or the National Assembly that enforces the constitutional control. This type of legislative control operated under  the  2nd  Republic and it is similar to the one that exists under the U.S Constitution. It is, however, very different from that of the parliamentary type of control and it is not so laborious. This is because the duty of control is left more in the hands of the courts, under the doctrine of separation of powers. Thus, this type of control tends to be more indirect through the requirement of certain standards to which the administration must conform.                                       

But there are some forms of control. Under S.  32  of  the CFRN 1999, for example, the president  has the power to make regulations concerning certain aspects of citizenship. Such a regulation must be laid before the National Assembly. The purpose of this provision is not clear but, according to Nwabueze, this is not the legislature properly so-called since  the  power  is derived directly from the constitution. The reason of such lack of control is, perhaps, because the president is directly responsible for the action of his ministers. Worthy of note is the provision of S. 88 of the CFRN 1999 which  gives  the  National  Assembly  the  power  to direct investigations into any matter or thing for which it has  the  powers to  make laws and into the conduct of affairs of any person, authority, government department  or  minister  charged with the responsibility of executing the laws of  the  National Assembly and  so  on. The purpose of this is to expose and  prevent  corruption, inefficiency or  waste  and  to  enable it make laws or correct defects in existing ones. Whilst this is not a direct type of legislative control, it is there is no doubt that it can indirectly be used by the legislature to control the power of delegated legislation. Under the military, this type of  control  is  probably  more absent in the absence of any express constitutional-type control. Undoubtedly, due to the legislatively unlimited powers of the military power, it can be exercised if desired.

Executive Control

The executive is aware of the need to supervise subordinate legislation in order to keep executive family within the bounds of law. This is essential because of the concept of collective responsibility under the parliamentary system of  government which makes it imperative to call the executive to be  careful  so  as  to  avoid controversy. In  England, for example, there’s the legal committee of the cabinet which is charged with the screening of subordinate legislation. In the US, the  president shares  such power with the  senate and the situation in Nigeria is similar to that of the U.K in some respect and that of the US as well.

The most potent of such powers of control being exercised by the  minister on his subordinate  is through the appointment of the board of statutory corporations. Though these  corporations are in theory independent and charged with dealing with particular social matters, they each have a parent ministry, so that the minister can give general direction as  to  their operation.  This executive control can also be seen within the hierarchy of control in each setting. More specifically, the executive control administrative powers through the following ways:

• Issuing general or specific directives regarding the way administrative agencies should carry out their duties
• Requiring the agency to submit its proposed decision, rules, regulations, budget, etc, for examination or vetting before implementation
• Directing relevant agencies such as the Police, Ministry of Justice, ICPC, EFCC, Code of Conduct Bureau, etc, to initiate criminal proceedings or to prosecute erring officials such as those accused of corruption and money laundering
• Setting up a panel of inquiry to look into the activities of the relevant agency and to make recommendations to the government. Note that the executive often resorts to this measure although the reports are usually not acted upon because of several reasons including the need not to rock the boat of the influential persons found culpable by those panels
• Issuing a query or caution to an erring officer.
• (f) Suspending the officer from duty
• Demoting the officer to a lower rank or status
• Transfer or re-deployment of the erring officer from  his  present  office  to  a different one
• Removal, retirement or termination of service:

SELF ASSESSMENT EXERCISE 2

1. How does the CFRN control administrative agencies?
2. The executive is the most competent body to control administrative agencies. Do you agree?

CONCLUSION

Because power corrupts and absolutely power corrupts absolutely, there is always the need by the donor of power to nip in the bud any tendency on the part  of  the  donee to exceed  its power. Such necessity is the more justified  when  persons  who  may  be  affected by any misuse of power are very many.

Thus, there are various ways by which administrative agencies can be restrained from exceeding their powers.

SUMMARY

In this Unit, we examined the various ways in which administrative agencies may be controlled.

 TUTOR-MARKED ASSIGNMENT

With the various means of controlling administrative agencies, there is little or no room for maladministration. Discuss.

 REFERENCES/ FURTHER READINGS

Ese Malemi, Administrative Law (Lagos: Princeton Publishing Company, 3rd Edition, 2008).