PRINCIPLE OF ULTRA VIRES 4
Running head: PRINCIPLE OF ULTRA VIRES 1
Should the Principle of Ultra vires be Declared Redundant in Kenya?
Kipkoech Tonui Felix- G34/3031/2017
University of Nairobi
There is emerging literature revolving around the role of the ultra vires doctrine and its position within the sphere of administrative law in Kenya. Others view the doctrine as the central principle of administrative law, devoid of it; judicial intervention would rest on uncertain foundations. For others, it constitutes at best a harmless fiction, which cannot explain all instances of judicial intervention and at worst a device which allows the judiciary to conceal the real justification for developments in judicial review (Field, 2010). Some scholars have argued that this principle of ultra vires should be declared redundant as a principle of regulating administrative power in Kenya, something that I disagree with. In essence, therefore, this article seeks to strongly contribute to the debate on this issue by putting the opposing view.
The ultra vires principle is based on the assumption that judicial review is legitimated on the ground that the courts are applying the intent of the legislature (Bowler, 2014). Parliament has found it wise and necessary to give powers to cabinet secretaries, administrative agencies, local authorities and other such bodies. These powers will always be subjected to certain conditions contained in the parent legislation. The courts serve to police the boundaries stipulated by the parliament. The doctrine of ultra vires is used to achieve this in two related means. In a narrow sense, it embodies the idea that the concerned party must have the legal capacity to act on the subject matter, i.e., an institution mandated to tackle employment issues should not take jurisdiction over non-employment matters. In the broader sense, the ultra vires principle has been utilized as a means of imposing constraints on the way in which the power given to the agency has been exercised; it must comply with the rules of fair procedure, it must exercise its discretion to attain proper and not improper purposes, it must not act unreasonably.
Many cases of the institution acting outside their powers in Kenya or even failing to follow the legally acceptable procedures have arisen. The aggrieved parties have always run to courts to seek justice through judicial review, thanks to the principle of ultra vires. As such, declaring this principle redundant is denying the innocent parties justices. Abandonment of this principle will also make our court’s unable to circumvent ouster clauses as they always did. Additionally, administrative bodies at times misuse the powers granted to them to make subordinate legislation and thus the principle of ultra vires plays a remarkable role in redressing such misdeeds.
Kenya is a constitutional democracy. The constitution is the supreme law of the land, and thus every other law is subordinate to it. So being the case, every law that contravenes the constitution calls for judicial review (Kitenga, 2010). Thus the principle of ultra vires is of much importance in this regard.
The debate about the foundations of a body of law is important in any legal system. This is especially so concerning the public law, given the importance of the subject matter. Few would doubt that a democratic polity requires some measure of judicial review. For some, the primary focus may be on the need to constrain public power. For others, it may be directed towards ensuring that affected interests are represented in the administrative process. Other views are possible. There is no doubt that institution of judicial review must be justified. Without judicial review, bodies would act as they deem fit. They would fail to give attention to procedures required by law.
References
Bowler, T. (2014). HMRC’s Discretion: The Application of the Ultra Vires Rule and the Legitimate Expectation Doctrine. doi:10.1920/re.ifs.2014.0102
Field, G. W. (2010). Doctrine of ultra vires: Illustrated and explained by selected cases, classified and fully annotated. Place of publication not identified: Gale Ecco, Making Of Mode.
Kitenga, G. (2010). Introduction to tax law. Nairobi, Kenya: LawAfrica Pub.