GROUP 9 ADMINISTRATIVE LAW

PRESENTATION – 09/15
 MEANING OF DISCRETIONARY
POWERS
• Discretionary power means a power which
leaves an administrative authority some degree
of latitude as regards the decision to be taken,
enabling it to choose from among several
legally admissible decisions the one which
finds to be the most appropriate.
IMPORTANCE OF REGULATING
DISCRETIONARY POWERS
• It prevents abuse of power thus reducing the
corruption factor.
• Prevents adverse impacts on citizen’s rights.
• Ensures powers are vested on the right body.
• It allows agencies to use professional expertise
and judgment when making decisions or
performing official duties.
 IMPORTANCE OF REGULATING
DISCRETIONARY POWERS
• To ensure that administrative bodies do not act
ultra-vires to the powers ranted to them.
• It promotes justice by grasping a variety of
facts in individual cases thus avoiding
confusion and unfairness in decision making
 CHALLENGES OF REGULATING
DISCRETIONARY POWERS
• Discretionary power challenges aspects of the
rule of law , first by transferring decisions
from legislators to departments, agencies and
bureaucrats
• The person entrusted with discretion of powers
might be prone to error thus promoting wrong
decision making.
• Risk of unfairness and inequality might occur
in decision making
 CHALLENGES OF REGULATING
DISCRETIONARY POWERS
• Chances of rigidity are high after decisions are
made thus limiting flexibility after rules are
made.
• Lack of incorporation of the public views by
the executive in a court of law
• The law/ regulatory body might indirectly
undermine the actions of the party vested with
the powers of discretion.
 HOW ADMINISTRATIVE LAW REGULATES THE
EXERCISE OF DISCRETIONARY POWERS OF
ODPP
• Administrative law provides guidelines that
the office of the Director of Public
Prosecutions is meant to abide by as stated in
Article 157(4) of the CoK as seen in
Associated Provincial Picture Houses Ltd. V
Wednesbury Corporation case.
• Prosecutors are also guided by the principles
of Administrative law such as reasonableness,
justification, legality etc.
• The ODPP has revised National Prosecution
Policy in 2013 that seeks to ensure that the
decisions made are reasonable and based on
ascertainable criteria and ensure public
accountability in the exercise of prosecutorial
power
• The National Prosecution Policy imposes a
duty on prosecutors to provide written reasons
for their decisions as means of facilitating
public accountability and transparency which
is in line with Articles 47, 49 and 50 of the
Constitution of Kenya. This is important
because it provides a platform for accused
persons to challenge prosecutorial decisions
that is not in line with set policy and
guidelines. It also ensures consistency in
decision making.
• Article 157 sub article 8 of the Constitution of
Kenya Provides the grounds in which the
Director of Public Prosecution must seek
permission for discontinuation of a
prosecution[ Sub article 6 of the Constitution
of Kenya] from a court of law
Pursuant to article 157 (10) of the Constitution,
the director shall :
(a)Not require the consent of any person or
authority for the commencement of criminal
proceedings and also discontinue them as per
article 157 (6) ,(7) of the constitution.
(b) Not be under the discretion or control of any
person or authority in the exercise of his or her
powers of functions under the Constitution ,
this Act or any other written law and
(c) Be subject only to the Constitution and the
law - one way in which the discretionary
powers of the ODPP are regulated.