Whether natural justice has no place in administrative law in Uganda is true or not is a matter of legal debate, but I for

one My view is that for one to say that natural justice has no place in administration law in Uganda would be a misnomer because Uganda as common law country has adopted most of the common law precepts, which contain natural justice, more over deeply enshrined in the 1995 constitution are the principles of natural justice as we shall rightly see. But first what is natural justice? The rules of natural justice / fairness are a set of un codified common law rules offering procedural safeguard that have been developed over time by the judicially them selves to ensure that decision makers act according to basic standards of fairness. In a nutshell, natural justice is about the concept of fairness encapsulated in old adage. Justice should be done and seen to be done these have been gradually extended to the administrative bodies and now often incorporated in statute law.

It should be stressed that natural justice is of central importance; in the words of Frank Furter, J. in MCANAB Vs UNITED STATES[1] the history of liberty has largely been the history of the observance of procedural safeguards

Their importance can clearly be observed when one considers the crucial role performed by procedural rules in helping to ensure that a case is decided according to all the relevant facts. And a demonstrably fair hearing will help in the perennial objective of impartiality towards parties to the action and observance to the rule of law. At the same time, if these rules function so as to restrict the freedom of administrative action, there by offering protection to the citizen, they also operate to protect officials.

In Uganda the rules of fairness and just can be seen in article 42 of the constitution of Uganda, 1995, which is to the effect that a person who appears before an administrative body is entitled to be treated fairly and justly and has a right to apply to court in case of any public or administrative authority acts contrary. Future more the Judicature Act[2] authorizes courts to apply principles of natural justice and equity. Natural justice occurs at least in two ways; first by making decision takers keenly aware of their legal responsibilities they are likely to lead to a more considered exercise of the powers at the disposal of the body in question. Secondly, their proper observance should affect the quality of decision making for the better, avoiding the need for intervention by the courts.

Lord Morris comments in FURNELL Vs WHANGAREI HIGH SCHOOLS BOARD[3] that natural justice is but fairness writ large and judicially this has been suggested to mean a general duty to act fairly when using administrative powers. In practice these rules are both variable and flexible, equally, while these rules applied originally to adversarial process of courts, they have steadily been extended to quasi judicial and administrative bodies ranging from tribunals, arbitrators, to ministerial decision making and other bodies having the duty to act judicially[4] even when statutes may attempt to exclude natural justice but as Byles J.remarked. In COOPER Vs WANDS WORTH BOARD OF WORKS[5] as justice of the common law will supply the omission of the legislature

Administrative law means the law relating to the discharge of functions of public nature in government and administration. It includes functions of public authorities and officers. And of special tribunals, judicial review of the exercise of those functions, the civil liability and legal protection of those purporting to exercise them and aspects of the means where by extra judicial redress may be obtainable at the instance of persons aggrieved[6]. Administrative law deals with legal limitations of the actions of governmental office officials and on the remedies, which are available to any one affected by transgression of these limits. The subject invariably, involves the question of lawful authority of an official to do a particular act which in the absence of such authority,

might well be illegal (or such ultra vires) and gives rise to an actionable wrong[7] in essence, administrative law is a branch of public law which relates to public administration. Its purpose is to facilitate, regulate and control exercise of public power.

Article 42 and 43 of the constitution 1995 shows the nature of administrative law any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her while article 43 is about general limitation s on fundamental and other human rights and freedoms. The primary purpose of administrative law in their legal bounds is to protect the citizen against their abuse[8]. This administrative law is exercised in form of the central government, local authorities[9], public corporations, tribunals, regulatory agencies, inquiries, civil service[10], discretions[11] , sub delegation , judicial review.

There are two primary rules underlying the concept of natural justice the first audi alteram partem (hear the other side) or right to a hearing. Meaning a person whose interests will be affected by the decisions should be given a hearing before that decision is made. Second, Nemo debet esse judex in propria sua causa (no one shall be judged in his own case) also rule against bias meaning the decision maker must be un biased and if a person has pre conceived opinions, avested interest or personal involvement in a matter they should not attempt to settle that matter. Conventionally, a person is expected to declare any interest and step aside if it could be deemed that the decision was arrived at for reasons other than the merits of the case.

The right to a fair hearing is founded in article 28, 42, 44 of the 1995 constitution it encompasses the following rights, first there should be a general right for both sides to be heard. This principle has been the source for the development of the law of fairness and legitimate expectation its a rule that embraces almost every question of fair procedure. For there to be a fair hearing there is an assumption that there will be sufficient notice given to allow the case to be adequately prepared that at any hearing a person will be entitled to know what evidence has been produced against him or her. In addition there should be a fair opportunity to contest, correct or contradict any such evidence. Usually this would be in writing but there is some times depending on the sliding scale a presumption in favor of an oral hearing. Although a fair hearing may include being given a proper opportunity to bring matters before the appropriate body and also being provided with legal representation, we should remember that natural justice only provides a minimum standard of fairness[12], and that the requirements that are expected will vary widely according to the context.

The constitution of Uganda 1995 article 28 guarantees the right to a full trial this right gives opportunity to throw the case against the defendant and also grants the right to make presentation in a case against the defendant, it includes the following elements;

Natural justice requires that due notice should be given to persons affected or likely to be affected by the decisions of an administrative body[13] e.g. for there to be a fair hearing it is requirement that notice should be given to allow the case to be adequately prepared as it was rightly pointed out in Hulsburys laws of England[14] no rule that no man shall be condemned unless he has been given prior notice of the allegations against him and a fair opportunity to be heard is a cardinal principle of justice in R Vs CHANCELLOR OF THE UNIVERSITY OF CAMBRIDGE[15] mandamus was granted when Dr.Bentley had his degrees taken away by the vice chancellors court with out being given any notice so that he could make a defence or be allowed any kind of hearing. Notice usually has to be sufficient to enable the other side prepare their case[16] includes place, time[17], date as Hulsburys laws puts it compliance with the rule requires that parties liable to be directly affected by the outcome should be given prior notification of the action proposed to be taken, of the time, and

the outcome should be given prior notification of the action proposed to be taken, of the time, and place, of any hearing that is to be conducted and the charge or case they will be upon to meet. All who are likely to be so affected must be notified. The particulars set out in the notice should be sufficiently explicit to enable the interested parties to understand the case they have to meet and prepare their answer and their own cases

In nutshell notice of hearing or conciliation conference should be served on the parties with reasonable time to enable them to prepare their case, the time and place must be clearly specified

A crucial aspect of fair hearing is having a right to know the opposing case in advance this gives a party to any proceedings the chance to challenge, contradict, or correct any thing that is presented to a decision maker that might be prejudicial to its case. A case in point is one of ERRINGTON Vs MINISTER OF HEALTH[18] where Green LJ stated there had been a breach of this rule by not giving the objectors details of the corporations evidence. In R Vs CHIEF CONSTABLE OF NORTHWALES POLICE, EXPARTE, EVANS[19] lord Brightman reached a similar conclusion in a case involving the dismissal of probationary constable it was the duty of the chief constable to deal fairly with the respondent in relation to adverse factors upon which he was proposing to act. The chief constable failed in performance of his duty because these supposedly adverse factor where never put to the respondent. He was given no opportunity to offer one word in explanation. Usually all relevant submissions and evidence must be considered. This includes the right to be informed of all evidence before used against a person. Article 28(3) (b) calls on a person to be informed immediately in a language that the person understands of the nature of the offence. Such a person as in article 28(3)(f) should be afforded an interpreter and any evidence against him should be interpreted to him as in section139 (1) of the Magistrate court act. These provisions of natural justice are relevant by creating a balanced, open, fair application of the law to all people. The people involved are made to understand actions against them in languages they understand before binding decisions are reached by the administrative bodies.

Another important aspect of fair hearing strongly asserted is the right to legal representation founded in article 28 (3) (d) of the constitution, S 7 (1) of the advocates act, S 13 of the Trade Disputes (arbitration and settlement Act). Where each side should be given equal capacity to present its case. Its stating the obvious to point out that there are many individuals affected by decisions that are not capable of arguing their case in the most favorable light possible. Lord Denning[20] in his eloquent judicial pronouncement points out; it is not every man who has the ability to defend himself on his own he can not bring out the point in his own favor or the weakness in the other side. He may be tongue tied or nervous confused or wanting in intelligence. He cannot examine or cross-examine witnesses. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has been trained for the task? I should have thought, therefore, that when a mans reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by counsel or solicitor. Here an injunction was granted that in order that a solicitor could represent Mr. Pett.

Moreover research in Administrative Quasi-Judicial bodies show that representation will contribute to a persons success in the outcome of a case. However despite the fact that access to representation might serve to redress the balance in some situation, critics have been guarded about suggesting that legal representation is necessary in every case. This is mainly because of the desire to avoid the formality and protracted nature of court proceedings. The expense and the delay that a mere formal process might involve outweighing the advantages especially in certain areas, for example benefit appeals. However. Taking into account the over riding consideration of fairness, it appears that question of representation the courts will be inclined to consider legal representation as a requirement when the proceedings are unmistakably judicial or where proceedings could lead the loss of a persons livelihood.

In certain circumstances being denied the right to cross-examination may be a significant issue in determining whether there has been fair hearing in ERRINGTON Vs WILSON[21]. After a food authority had ceased batches of cheese, which were allegedly contaminated by listeria, Magistrates refused to allow the authoritys witnesses to be cross-examined. In view of the difference of opinion between experts and the nature of proceedings this was held to be in breach of the principles of natural justice. Cross-examination is normally a statutory requirement and is intended to check the credibility of the witnesses, this right is guaranteed under article 28 (3) (g) be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court and the magistrates court act Sec 128 (1) cap 16, the same opportunity is given to the accused giving evidence on oath, to examine any witnesses and he/she may also be cross-examined. However incase of failure by the accused to take opportunity to examine no action may arise.[22]

There is also a duty to give reasons and all relevant documents used in judgement on a case must be discussed to both parties and there are many occasions when reasons will be given for decision. Indeed, this is highly desirable because the existence of reasons will tend to support the idea that justice is seen to be done, and done on a rational basis. Providing reasons for decisions is a topical and developing area of administrative law, and this is largely because the publication of reasons boosts public confidence in the administrative process. If there has been a failure to act properly the supply of reasons will often provide subsequent grounds for an appeal (rather than judicial review) in PADFIELD VS. MINISTER OF AGRICULTURE[23] it was held that the absence of express reasons for his decision. Despite this it clear it has never been a rule of natural Justice that decisions have to be supported by reasons, except that reasons may be necessary to show that the body has acted lawfully. However, there are recent authorities, which indicate that the courts in many situations are close to imposing an implied requirement to give reasons. According to Lord MUSTILL`S analysis, in Doody it essentially boils down to whether in the circumstances, it is fair to refuse to give reasons. This approach, acknowledging, as it does an implied duty, still stops short of the Justice all souls report (1988) which advocated that there should be a general rule that there should be given for administrative decisions. . NB statutes may require reasons to be given for a decision moreover Sedley J.[24] giving reasons is not a bureaucratic chore or opportunity for lawyers to find fault, but a fundamental aspect of good public administration as it has effect of focusing the decision makers mind on exactly what it was that had to be decided.

Further more is the right to adjournment this entails aright to postponement of the case this right is provided for under sec 112(1) of the Magistrates Court Act as long as sufficient cause is shown [25] this right enables the adjourning party to have an opportunity to acquire more relevant and necessary evidence needed for the case in issue in RE,MARCES APPLICATION[26],the applicant was denied an adjournment and could not consult his lawyer, it was held to be a denial of aright to be heard.

Its also true that there should not be undue delay in hearing the matter if a complainant/ respondent fails to appear on a number of occasions the case might be determined on the evidence of the party appearing

The second of the two rules of natural justice is normally taken to be one of stricter application than the first. Article 28(1) and 126(2) the law requires that any person acting judicially or quasi judicially, must be impartial and dis interested in the case at hand. its based on the fundamental requirement which is encapsulated in Lord Hewart CJ. famous statement in R VS SUSSEX JUSTICES,EXPARTE MC CARTHY[27] that it is not merely of some importance, but of fundamental importance, that justice should not be done only but should manifestly and undoubtedly be seen to be done the implication are that you either have a case of bias or you do not. And more over this is a safe guard, which is not concerned with the fact that the decision marker was biased but with the possibility that he or she might have been biased. In NDEGWA VS NAIROBI LIQUOR LICENCING COURT[28] two members of the liquor licensing board toured the premises of the applicant and gave evidence of their findings and later participated in the judgment and denied the applicant a license since they gave evidence against the appellant. It was held that as the two members had acted as judges and witnesses in the same case, they had acted as judges in their own cause.

This principle that a man shall not be a judge in his own cause (Nemo judex in causa sua) is intended to ensure that judges and arbitrators are as independent as is practicable. It asserts that they must not have any personal interests in the matter under consideration. Only such persons can make fair decisions. The principle applies strictly to courts of law, adjudicating members of the tribunals, and also to minister s exercising judicial functions. It means that an adjudicator who is likely to show bias ought to be disqualified from acting. And if such persons have participated, when they should not have, it means the decision making process may well have been invalidated by their involvement, or simply by their presence; originally there two main aspects of the rule. (a) The person who adjudicates must not have any financial or property interests in the proceedings; (b) There must be no suspicion of likelihood of bias; the same person should never be judge and prosecutor.

Under direct pecuniary interests it appears that if the adjudicator has pecuniary interest in the case how ever small it will be enough for the decision to be set aside, in DIMES VS GRAND JUNCTION CANAL PROPRIETORS[29] Land adjourning a canal was subject to litigation between the Grand Junction proprietors and Dimes. A local landowner, it culminated in the Lord Chancellor affirming decrees that had made in favor of the properties. Dimes later discovered it that Lord Cotton ham, the Lord Chancellor, had several thousand pounds worth of sales in the company. Because he was a shareholder in one of the companies that was party to the proceedings the ruling was set aside; with the result that the Lord Chancellor was, disqualified as a judge in the case. This was not because it created a real probability of bias, but because it created a possibility which a reasonable person might have suspected would taint the fairness of the proceedings. As Lord Campbell said; No one can suppose, Lord Cotton ham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. This will be a lesson b a lesson to all inferior tribunals to take care not only that in their decrees they are not informed by their personal interests, but to avoid the appearance of laboring under such an influence This rule against bias is relevant in Administrative law, and has encouraged transparency in proceedings and decision on making. Also the rule is promoted.

On the other hand it may be argued, that natural justice seems to have no place in Administrative law in Uganda although what is true is that natural justice has a place in Administrative law in Uganda, but what lacks may be the good will to champion the cause of natural justice in Administrative law this factor coupled with technical disadvantages like ignorance of the law,

illiteracy, poverty, corruption. Etc has greatly reduced its effectiveness. Its these short comings coupled with the deliberate carelessness of the custodians of Administrative authorities, like Government, police, judicially, parliament, etc that have defeated the cause of natural justice in Uganda by compromising the standards, ignoring and purposely evading these principles of natural justice

Take fore example the issue of notice, being given via the gazette, how many in Uganda read the Ugandan gazette later on the only two reliable and yet expensive papers of the monitor and New Vision which the majority of the illiterate masses can not read but also can not afford.

Also the concerning issue of legal representation, how many can really afford the expensive lawyering services, and yet the free state services ere only to a few capital offenders leaving the majority of the smaller offenders to go un assisted. So we see that natural justice though present in administrative law has been greatly hindered by alack of clear machinery to enforce it.

In conclusion therefore for one to assert that natural justice has no place in Administrative law would be an over sight as we have rightly seen above particularly in the Laws of Uganda and common Law replicas as evidenced in our case law but despite their presence the rules of natural justice should not be regarded as strict rules, perhaps not even as rules at all. They are guidelines that have developed to provide safe guards against possible injustices indecision making. (Administration law) and there is no way a society governed by the rule of law can divorce it self from the principles of natural justice.

O D

B L E S S

Y O U

BIBLIOGRAPHY

1. CONTITUTION OF THE REPUBLIC OF UGANDA 1995

2. ADVOCATES ACT

3. TRADE DISPUTES (ARBITRATION AND SETTLEMENT) ACT

4. MAGISTRATE COURT ACT. NO. 16 1970

5. INDUSTRIAL LICENSING BOARD

6. JUDICIAL SERVICE ACT. CAP 14

7. TAX APPEALS TEIBUNAL CAP. 345

8. LOCAL GOVERNMENT ACT CAP. 243

9. Peter Leyl and, Terry woods;

ADMNISTRATIVE LAW.2nd EDN. Black stone press Ltd.

10. H.W.R Wade;

ADMISTRATIVE LAW 4th EDN. Claredon press, oxford,1977

11. Oluyede;

ADMNISTRATIVE LAW IN E.A

12. Jones and De villars; LAW.

PRINCIPLES OF ADMNISTRATIVE `

13. INTERNET SOURCE;

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[1] 318

Us 332(1943), also quoted in wade and For SYTH, 1994, P,463 of 1996, sec 16 (2) 660,at P.679 Vs A G(1970) AC538 CB (NS)180 laws of England vol. 1 4 th edn

[2] Act No13

[3] [1973] AC [4] Collymore [5] (1863) 14

[6] Per, Hulsburys [7] pg3Jones

and De Villars

[8] Per, Wade, pg5 [9] Local Government Act sec [10] see [11] see [12] see [13] see

33, 34 (a) ,(b), see also article 176 206. 1995 Constitution

also article 166, 175 (1995) constitution also SCHMIDT Vs Secretary of state for home affairs (1969) 2ch. 149 Lord Haldane in Local Government Board Vs Aldridge [1915] AC 120 Patel Vs Plateau Licensing Court [1981] law. Par,74 pg.90

[14] vol 1, on administrative [15] (1721) 1 [16] see [17] see

STR 557, see also R Vs Board of visitors of Hull prison

Desouza Vs Tanga Township Council[1961] E.A 77 RVs Thames Magestrates Court, Exparte Polemis[1974] 2 ALLER 1219 KB 249

[18] [1935] 1

[19] [1982] 3ALL ER 141 [20] Pett Vs

Grey Hound Racing Association [ 1968] 2 ALL ER 545, see also Mymard Vs Osmound (1977) RQB 240
[21] 1995

SLT 1193

[22] see

University of Cylon Vs Fenando [1960] EA 640 997

[23] [1968] AC [24] See

R vs. Solihull metropolitan council housing Benefits review Board, exparte Simpson (1994) 92 LGR 719
[25] Para.76

of Hulbarys laws of England on Administrative law it may be centrally to natural justice to refuse an adjournment requested by party who needs further time to prepare his case or produce evidence
[26] (1958) 1

259 256,at p.259

[27] [1924] 1KB

[28] [1957]EA.709 [29] (1852)3

HLC 759