Updates on the recent administrative procedure proclamation no 1183/2020

Before the enactments of the Federal Administrative Procedure Proclamation, there is a gap in the Ethiopian legal regime due to the absence of administrative procedure law. This is a neglected subject both by the legal academia and practitioners. It is very difficult and challenges to talk about the history of administrative law in Ethiopia. Administrative law is still not well developed, and it is an area of law characterized by the lack of legislative reform.

It is also a subject in which too little attention is given in terms of research and publication. Even though it cannot be denied that there is some specific legislation scattered here and there, which are relevant to the study of administrative law, it is still at a very infant stage. When one looks into some of the specific legislation, one could easily realize that they are not in effect rules and procedures of the manner of exercising power, or in general terms tools of controlling governmental power. Rather they are enabling acts conferring power on administrative agencies. The present Federal Democratic Republic of Ethiopia of 1995 has laid down the constitutional framework for the development of administrative law. It contains key principles of government administration like accountability, transparency, and public participation. It also envisages the establishment of the Ombudsman and the Human Rights Commission. Six years after the constitution, the two institutions were established by the parliament. But there was never any predictable, coherently organized, and clear legislative regime governing the actions of the executive in the performance of its day-to-day activities. Therefore, it is necessary to regulate Administrative Agencies to refrain there intervention against people Rights and Interests; it is necessary to guarantee administrative justice by promoting a culture of transparency and accountability through legally establishing a system of judicial review for persons who might be aggrieved by acts of administrative agencies, in their rule-making and decision-making capacities, The Federal Administrative Procedure Proclamation No. 1183/2020 (hereinafter referred to as the “Administrative Procedure Proclamation” or “Proclamation”) was enacted on April 7, 2020. These short notes will try to give a brief overview of the basic contents of the proclamation.

• Clearly defines administrative agencies

The proclamation under article 2(1) stated that “Administrative Agency” means an Executive Organ of the Federal Democratic Republic of Ethiopia duly established by law and includes the Executive Organs of City Administrations accountable to the Federal Government. In this regard, before the coming into force of this proclamation due to the absence of an administrative procedure act in Ethiopia, there is no comprehensive definition of an administrative agency. There is some specific legislation that makes a reference to government agencies through failing to provide a satisfactory definition. For instance, the income tax proclamation and the civil servant's proclamation similarly define a government agency as an entity fully or partly funded by the federal government. Practically, the allocation of funds by the federal government is unimportant to determine whether a certain entity is an administrative agency or not. Hence, if there is any dispute as to the status of a certain governmental entity, a resort has to be made to its nomenclature and mainly to the existence of legislative and /or adjudicative power of that entity. Therefore, to address these issues, the definition of the administrative agency is clearly stated in the proclamation.  

• Scope of application

As stated under article 3 of the proclamation it is applicable in all Administrative Agencies except Prosecutor and Police when they perform duties administered by the Criminal Procedure Law and Military and Security Institutions. But the issuance of directives and decisions making relating to regulatory and service provision functions of these Institutions shall be subject to the requirements of this Proclamation. National Bank is not duty-bound to implement obligations provided under Article 7-10 of this Proclamation( i.e. procedures before the adopting of the directive; notice; soliciting comment on the draft; oral hearing)  when it enacts directives concerning exchange rate, an interest rate of the country and other similar secret issues. Before the enactment of this proclamation, the following parameters should be used to determine whether a certain government entity is an agency or not.

• The nomenclature used to describe the entity is ministry, authority, agency, bureau, office, commission, board, etc., or any other similar terms.
• That it has legislative and/or adjudicative power granted by the legislature.
• That the head of the agency is appointed by the executive or by the house of people‘s representatives.

Still, it could not be known with exact precision what entity falls within and outside the scope of an administrative agency. Therefore, the scope indicated under article three can help to solve this problem. 

• Issuance of Directives

As prescribed under article 4 any administrative agency can adopt a directive on the basis of Power Delegated to it by Law. This means that Administrative directives are made by the executive under the powers delegated to it by the legislature. When the function of legislation is entrusted to organs other than the legislature itself, the legislation made by such organs is called delegated legislation. Therefore, administrative directives or delegated legislation do not fall within the ambit of the inherent constitutional powers/functions of administrative agencies as they are created only to execute the laws made by the proper law-making body. The power of making administrative directives is entrusted in administrative agencies by way of delegation from the law-making organ of the government. As has been discussed earlier, administrative rules/delegated legislation are made outside the proper lawmaking body; i.e. the legislative organ of the government. Unlike the ordinary laws or parliamentary enactments, they may not be required to meet the requirements of legislative procedures. This may have the tendency of paving the way for uncontrolled administrative discretion/ arbitrariness thereby jeopardizing individual rights and the constitutional order as a whole. For this reason, the following procedure has been stated under article 7-10 of the proclamation.

• At the time of adopting a directive, an administrative agency shall keep a record/file containing the following:

A) The subject matter of the directive being considered and timeline of major steps;

b) information regarding the status of the draft directive in the process of adoption;

c) Notices published in relation to the adoption of the draft directive;

d) A period of time within which the public may comment on the draft;

e) Comments received and positions taken regarding the comments.

2) Notice: Notice is the first and one of the most important principles of administrative rulemaking. From the point of view of citizens affected, the primary safeguard to ensure the proper exercise of powers of administrative rules/delegated legislation lies in the development of adequate procedures to be followed by the administrative process in the formulation of rules and procedures as a means of obtaining participation in the process of making the administrative rules, and one of these means is notice. In order to fulfill this requirement as stated under article 8 of the proclamation an agency shall publish a notice containing the following information on a newspaper with wide circulation, its website and other media, prior to the adoption of a directive:

1/ the legal basis for to draft the law and the subject matters to be covered by the draft;

2/ Indicating that persons may get a copy of the draft and where they may access it

3/ Where, when, and how persons may give comments on the draft;

4/ Where, when, and how persons may get access to the records.

3) Soliciting Comments on the Draft based on article 9 of the proclamation an administrative agency shall solicit comments from relevant administrative agencies and other Stakeholders by sending the draft it publicized.  Agencies and stakeholders who may have comments on the draft should submit such comments in writing within a time prescribed by the agency. The period for comments to be prescribed by the agency shall not be less than 15 working days.

4) Oral Hearing  After the expiry of the date for receiving written comments, the agency shall organize a public forum open for all interested persons and gather inputs.  Persons, who have not had the chance to given comments in accordance with Article 9, may submit written comments at the hearing. The agency shall ensure enough time is allotted for different views to be aired.

Exceptionally, administrative agencies may be exempted from these procedural requirements where there are emergencies, where issuance of advance notice may be contrary to public interest, or where issuance of advance notice may undermine the implementation of the directive. In these instances, the administrative agencies have to keep records of their justification for the exemption.

• Ratification of Directives

Time and manner of Ratifying Directive stated under article 12 based on this an agency may not ratify a Directive before the period for oral hearings and written submissions prescribed under Articles 9 and 10 expires.  An agency shall consider comments submitted on the draft before ratifying a Directive.  In fulfilling this obligation the agency may amend the draft in line with the comments or prepare a written justification for rejecting the comments. Prior to ratification of a Directive, the Agency shall send the draft to the Federal Attorney General for its opinion. The Attorney General shall submit its opinion within 15 working days. Where the Attorney General fails to submit its opinion within the time prescribed here, it shall be considered as though it does not have an opinion on the draft and the agency may proceed to ratification.

• Administrative decisions

Pursuant to article 20 an application for an administrative decision is made by an interested person or his agent. An administrative decision process may be initiated by the relevant administrative agency.

• Manner of Administrative Decision Application

As described Under Article 21 an application for administrative decision shall be made in writing and may be submitted in person, a registered postal address or electronic means.  A written application of administrative decision shall include:

a) Date, name of the applicant or his agent, signature, and address;

b) Name of the administrative agency to whom the petition is made;

c) The right and interest of the applicant being sought;

d) Act that the administrative authority has to do.

e) Facts and evidence relevant for the decision.

    7) Principle of administrative decision making

As mentioned under articles 22-35 the following are the principles to follow when making an administrative decision.

• An Administrative Decision Maker (decision may only be rendered by the Head or Authorized Official/Manager or Staff of an agency.)
• Respecting Scope of Authority (A person rendering an administrative decision shall respect the scope of authority of the agency established by Law.)
• Balancing of Public and Individual Interest (A person rendering an administrative decision shall balance the individual interest of the person regarding whom an administrative decision is being considered with that of the public interest identified in the objectives of the agency.)
• Avoiding Irrelevant Matters and Interests (A person rendering an administrative decision should avoid influence from irrelevant facts or interests.)
• Rendering of Professionalism (A decision, shall abide by the ethical standards, show due diligence and care that is required by the relevant task or profession.)
• Hearing (The person rendering administrative decisions in accordance with articles 23 of this Proclamation shall provide an adequate opportunity of hearing to arguments and evidence presented by the person regarding whom the decision is being made and as the case may be to third parties as well as the public.)
• Good faith (A person rendering administrative decisions should make the decision in good faith)
• Reasoned Decision (The person rendering administrative decisions should provide adequate reason for the decision he makes.)
• Avoiding Conflict of Interest (Where a person rendering administrative decisions has blood, affinity, or any other kind of relationship that may cause a conflict of interest, he shall recuse himself from the case.)
• Keep Customers Equality (A person rendering administrative decisions shall not discriminate between persons based on race, color, ethnicity, sex, language, religion, political view, social background, class, or any other ground.)
• Timely Decision ( the person rendering administrative decision shall give a decision without delay in a reasonable period of time and ensure that interests associated with the decision are not negatively affected as a result of the delay. Failure to render a decision within an appropriate period of time shall be considered as a denial of the petition.)
• Predictability (In matters involving similar facts, the person rendering an administrative decision shall decide in the same manner.)
• Transparency (A person rendering administrative decisions shall ensure the transparency of the decision-making process.)

Judicial review of directives and administrative decisions.

Before the enactment of this proclamation, there is no comprehensive administrative law regulating administrative issues in Ethiopia. The power of the court reviewing administrative action is governed by the constitution, the civil code, and different legislation enacted by the parliament to established administrative agencies. However, the jurisdiction of the court is subject to determination by the legislature and there is no comprehensive administrative law, different administrative agencies establishing proclamation have limited the power of the court to review the legality of administrative action. The number of laws containing finality clauses excluding a review of administrative agency's decision by the ordinary court is increasing over time. Similarly, the ground of review and the nature of remedies that courts can grant to the successful applicants have also diminished the role of courts in the review of administrative action. In order to make the solution for these problems and to make the process more consistent, the Proclamation contains explicit provisions from Articles 48 and 49.  Accordingly, any interested person may file a petition requesting a judicial review of a directive; anyone whose interest is affected by an administrative decision may file a petition requesting a judicial review. Regarding the power of review a petition to review directives or administrative decisions shall be submitted to the Federal High Court and the decision of the Court will be final. A decision of the High Court directive may be appealed to the Federal Supreme Court. The Federal High Court shall establish special benches dedicated to handling petitions for judicial review of administrative acts.  Courts may revoke directives by administrative agencies where procedural rules were not followed during issuance, directives amount to ultra-viruses, or where directives are contrary to higher hierarchy laws. On the other hand, administrative decisions are revoked by courts where principles under the Proclamation have not been followed during their dispensation. Naturally, remedies within the administrative agencies are required to be exhausted before judicial review of administrative acts. During the judicial review, courts are required to render decisions in the shortest possible amount of time and execute these decisions immediately. Moreover, individuals who have incurred damage due to fault in the issuance of directives or administrative decisions are entitled seek compensation from the relevant administrative agencies.

To conclude, the proclamation helps to regulate Administrative Agencies to refrain there intervention against people Rights and Interests and guarantee administrative justice by promoting a culture of transparency and accountability through legally establishing a system of judicial review for persons who might be aggrieved by acts of administrative agencies, in their rule-making and decision-making capacities.