Discretion and control of administrative action in Namibian administrative law in pursuit of adminstrative justice

Abstract

The following is taken from the author's Introductory remarks and context:

I will first describe, define and assess in chapter 2, the basic principles of administrative law as enunciated in the common law and the Constitutlon ot Namibia, and other applicable and relevant statutory mechanisms

In chapter 3 of this essay, I will analyse and describe instances of administrative acts that find application in the statute that is the focus of this essay, namely, the Public Service Act of 1995, and generally, that are discretionary in nature. In chapter 4 I will identify those requirements, also in the aforementioned Act which, again, attempt to secure control over the exercise of administrative acts. The concentration in this part, however, is more about establishing whether the statute in question measures up to the demands of control toensure the legality of administrative actions in the context of the entity generally referred to as the Namibian Public Service

Unlike some other articles on administrative law, especially in the context of the exercise of discretion and its control, this essay does not move from the point of departure where the wide administrative powers of the modern liberal, democratic state is bemoaned. Of course, there remains justification for such views, especially given the fact that in the recent past bureaucrats in Namibia and South Africa have used such powers to enforce the most brutal anti-human rights law. Chapter 5 affords an opportunity to look at some of the 'new' administrative law that characterizes the positive democratic spirit that has enveloped the world since the adoption of constitutionalism. This requires us to look at some interesting theories that administrative lawyers seem to be analysing often in its jurisprudential context with much more enthusiasm than previously. Could it be possible that those empowered with discretionary powers will perform their duties in such a spirit?

There are, however, certain limitations in the drafting of an essay of this nature that requires acknowledgement at this stage already. Firstly, because the subject area is wide-ranging it will not be possible to cover the underlying principles in some detail especially concerning their historical import and development. In this respect, therefore, it is more than likely that the issues raised are bound to raise more intriguing questions than answers particularly for the Namibian context. Secondly, Namibian administrative law is still in the process of developing and, despite a few landmark cases (to be referred to in this essay), we are still far from having a substantive body of indigenous (Namibian) law in this regard. In addition, for historical and cultural reasons, large bodies of common law (much of it case law based), and statutory enactments that still find application (on the basis of article 140 of the Constitution), have as authoritative source, their origin in South African law. Then, again, much of South African law particularly in this area has English and Roman-Dutch law roots. Not surprisingly, this is the case in Namibia as well. Therefore, this essay will feature many references to such sources and experiences. The respective constitutions now underpinning South African and Namibian law are relatively still new, and therefore, we are also learning from the comparative law; in fact it is especially relevant to the Constitutional Court and Supreme Court of Appeal cases of South Africa that remain of persuasive force in Namibia. The aforementioned approach is not necessarily restrictive; rather, as a young democracy, we find ourselves in the position of learning from the best of both worlds, and this applies particularly in administrative law that now has indelible constitutional underpinnings

One cannot lose sight of the fact that the significant features of modern day administrative law remain relevant to Namibia: the pervasiveness of executive power allocated by legislation such as Acts of Parliament, regulations published and promulgated in terms of such Acts, and rules and directives also having their basis in law. Such legal mechanisms remind us that Namibian administrative law affects the llives of people in a variety of ways and the courts have remained vigilant in their own various ways to ensure that government agencies and officials do not misuse discretionary powers. as a recent court case in Namibia again proved, there would always arise instances eveninthe most democratic of states even this late in the 20th century, where power needs checking in some or other way

However, this essay is also about the ways in which discretionary powers are often used to legitimately interfere and control what we do or intend to do. This applies to the official who has the right to interfere as well as the citizen with whose life the official has interfered. The State is more than likely to have the upper hand when it comes to the balance of the interest of the citizen and the state. Administrative lawyers will tell us that there is a discernible shift in this balance of power despite the ever-increasing emphasis on the human rights issues

The nature of this essay is such that it is surely rhetorical whether the Public Service Act of 1995 is an example of the balance having been struck. Nonetheless, it is appropriate that administrative lawyers (and aspiring ones) regularly write about the exercise of State power from a jurisprudential point of view to remain mindful about the state of health of our democracy