DISCRETIONARY POWER

L202
UNIT 4
SCOPE OF ADMINISTRATIVE POWER

• Legislation is by far the most dominant source of administrative power

• ̵The scope of administrative power is an empowering statute/empowering
provision
• A basic distinction is drawn between powers and duties: while powers enable
things to be done, duties require them to be done
• E.g. : if an official has a duty, she is obliged to perform it, where she has the power, there is a
level of discretion or choice implied
• Whether a legislative provision confers a power or imposes a duty depends to
a large extent on the language use
• Public powers are always accompanied by duties of some kind, whether
express or implied. The power must be exercised by a competent authority
EXPRESS POWER AND IMPLIED POWER

• As a general rule, express powers are needed for the actions

and decisions of administrators.

• Implied powers may be ancillary to express powers or exist as

a necessary or reasonable consequence of the express powers.
 DISCRETIONARY POWER
Definition
• In it’s general use, discretion signifies an option to do an
act, free decision, unrestrained will to do something.

• It also means the freedom to decide for oneself what

should be done. i.e. personal judgment

• Admin law ; It means the freedom or right of public

bodies or public decision makers to choose between
several alternatives in the exercise of their functions.
DISCRETIONARY POWER…
• Though the law gives discretionary powers to the
public decision makers, it is mandatory that
discretionary powers;
o Must be exercised reasonably in good faith and on proper grounds –
other words, it must not be abused.

o Must comply to the rules of natural justice

The law can control, to a limited but important extent,

both the substance of discretionary decisions and the
procedure under which they are made.
WHEN DOES DISCRETIONARY POWER
EXIST
 Discretion involves the liberty to choose between alternatives.

 The choice may be with regard to the act itself or as to the

manner of doing the act. However, if both the act and the
manner in which it may be done have been fixed by statute,
then there is no discretion.
DISCRETIONARY POWER…
 Examples of discretionary powers by Executive:

 Article 35(3) The President may, at anytime by writing under his hand addressed to the

speaker of the national assembly resign his position.

 Article 92(2)(a) Appoint ambassadors, High Commissioners, Plenipotentiaries,

Diplomatic representatives, Head of Consuls and head of International Organizations

 Article 92(2)(d) Establish, Merge Govt ministiries

 Article 92(2)(e) Make appointments as provided by the Constitution

 Article 97 Prerogative of Mercy

DISCRETIONARY POWER…

• Article 69 : The President may, at anytime after a general

election to the National Assembly is next dissolved, appoint
such number of persons as he considers necessary to enhance
the representation in the National Assembly as regards special
interests or skills, to be nominated members of the National
Assembly, so, however, that there are no more than eight such
members at any one time.
 CLASSIFICATION OF DISCRETION

1. Legislative Discretion
2. Adjudicative Discretion
3. Executory Discretion
4. General Discretion
5. Personal or individual Discretion
6. Unqualified Discretion
7. Qualified Discretion
 CLASSIFICATION OF DISCRETION
1. Legislative Discretion
When an administrative authority is empowered to lay
down a general rule, within his discretion in a
particular situation.

• the exercise of such discretion is predominantly

legislative in nature and may be called Legislative
Discretion.
 CLASSIFICATION OF DISCRETION

2. Adjudicative Discretion
Where the exercise of Administrative discretion involves a
function in the nature of Judicial function, such as licencing,
dispute settlement, it may be called adjudicative discretion

3. Executory Discretion
When the exercise of Admin. Discretion is primarily
concerned with executing a legislative policy that is applying
or dispensing with the application of law to a particular
situation, then such discretion may be called executory
discretion.
 CLASSIFICATION OF DISCRETION
4. General Discretion
This is when discretion is vested in the Executive body of the
Govt. and is not tied to the particular office holder or individual.

• For example; where the Statute provides,

“A Minister may in its discretion ….” then the
discretion is generally applicable to Ministers”

5. Personal or Individual Discretion

Where an Administrative Discretion is vested in a n particular
individual/office it is said to be personal or individual discretion.
 A PRACTICAL EXAMPLE FROM CPC

“ 81. (1) In any criminal case and at any stage thereof

before verdict or judgment, as the case may be, the
Director of Public Prosecutions may enter a nolle prosequi,
either by stating in court, or by informing the court in
writing, that the People intend that the proceedings shall
not continue, and, thereupon, the accused shall stand
discharged in respect of the charge for which the nolle
prosequi is entered, …..”
 CLASSIFICATION OF DISCRETION

6. Unqualified Discretion
The discretion vested is absolute and unfettered ( Unrestricted) or
unqualified neither in purpose nor the legislative standards
specified.

7. Qualified Discretion
The discretion is qualified where both the purpose and standards
are specified in statute to guide the exercise of discretion. E.g.
Appointment of Ministers.
DISCRETION OF LEGISLATURE, JUDICIAL AND
EXECUTIVE BODIES
• When applied to public bodies in generic sense the term “discretion” denotes
or indicates the right of public bodies or public decision makers to choose
between several alternatives in their functions.

• In these, all the three Governmental organs Judiciary, Executive and

Legislature exercise discretion.

• The Legislative bodies have in general a broad discretionary power to select a

variety of policies in the enactment of law.

• From the very nature of the functions performed by the legislative bodies, the
area of Legislative discretion is wider than either of the two branches of Govt.
 DISCRETION OF LEGISLATURE,
JUDICIAL AND EXECUTIVE BODIES
• The discretion of the Judiciary is its power to Choose
between the various rules in deciding cases.

• The area of judicial discretion varies from case to case and are
narrowest where the facts of the case are covered by pre
existing decision or legislative provisions and widest where
neither applies yet.

• It is Limited because of the theory of stare decisis and by the

general recognition that judicial processes must be followed by
Courts in deciding cases.
 DISCRETION OF LEGISLATURE,
JUDICIAL AND EXECUIVE BODIES
• The discretion of the Executive in general is its power or
liberty to choose between alternatives in carrying into
effect policies laid down in Legislation.

• The Executive discretion though narrower than Legislative

Discretion is wider than that of the Judiciary.

• The Executive in the discharge of it’s functions has a larger

choice of alternatives. The novelty of the situations faced by
the Executive is more apparent than in the case of the
Judiciary.
 DISCRETION OF LEGISLATURE, JUDICIAL AND EXECUIVE
BODIES

• Besides the executive is not affected or hampered by the

principle or rule of stare decisis in that there is no general
rule that the executive must follow a judicial process in
the exercise of their discretionary powers.

• Apart from the general discretion of the executive there

is a particular discretion vested in the Executive by
statute, to exercise its choice in a particular manner.
DISCRETION OF LEGISLATURE, JUDICIAL AND EXECUIVE BODIES

• In Administrative law, we are primarily concerned with the

discretion exercised commonly known as administrative
discretion.

• This is due to the direct impact which administrative

decisions have on the lives of people.

• The bulk of administrative law cases available (e.g detention

or deportation, denial of permits) involve the challenge of
administrative actions or inactions)
DISCRETION OF LEGISLATURE, JUDICIAL AND EXECUIVE BODIES

• The exercise of Legislative discretion has limited impact as

it affects people affected by the law passed by the
Legislature.

• In 1996 an amendment to the Constitution barred

candidates from standing for Presidency if their parents
were born outside Zambia. This requirement does not affect
everyone.

• Equally the exercise of Judicial discretion affects more

often than not the parties before the Court.
 VESTING OF ADMIN. DISCRETION
• Discretion can be vested in public authorities either by the
Constitution itself or by statute.

• In a written constitution, discretion must be traced directly or

indirectly to the Constitution.

• A statute vesting discretion must be Constitutional

• There is no discretion vested by virtue of law or judge made law, but

since it is the Judges who are the ultimate interpreters of statutes,
they determine the scope and extent of discretionary power
 VESTING OF ADMIN. DISCRETION

• A statute confers discretion when it refers to the use of the

power by an official according to his beliefs, expectation or
tendancies instead of facts.

• It may also use such terms as adequate, advisable,

appropriate, competent, beneficial, equitable, fair,
expedient, fit necessary, safe, sufficient, proper, reasonable
or their opposites.

• The concepts embodied by these terms are incapable of

exact legislative definition
 DISCRETION VESTED BY STATUTE
• A serious problem in the interpretation of statutes arises when a statute
conferring power uses the terms may or shall.

• A statute may provide that a licensing authority “may grant a licence” or that
“It shall grant a licence”

• The question that arises is whether discretion has been vested in the authority
in either or both situations.

• Generally, the term “may” is indicative of an option or discretion whereas the

use of the term shall indicates that no discretion is vested in the authority and
that the order is mandatory.
DISCRETION VESTED BY STATUTE
• However, the use of these words is not in itself
conclusive.

• Even though the term “shall” has been used in the

statute, the power conferred may still be
discretionary. For example, the sentence “ The
minister shall grant a licence if he thinks necessary.
 DELEGATION OF DISCRETION
• The person upon whom the discretion is conferred must be the
one to exercise the discretion.

• Power must not be sub-delegated to an unauthorised 3rd party

neither should it be surrendered nor be exercised at the
instruction of a 3rd party. This is summarised in a latin maxin
“Delegatus non protest delegare”

• This is not tenable for the proper functioning of the system as it

may cause chaos. As such many statutes provide for delegation of
statutory authority.
 IMPORTANCE OF DISCRETION
• Emergencies
• Flexibility
• Saves time
• Getting things done
PROBLEMS RAISED BY DISCRETION

 Rule by discretion necessarily means rule by men and not

rule by law
 Control of discretionary power is one of the difficult
questions of our time.
 Undemocratic
 Prone to abuse

 Chilufya v City Council of Kitwe (1967) ZR 115 (HC) -

look at how the issue of discretionary power was tackled in
this case