Whether the Commission on Administrative justice had the mandate to investigate an anonymous complaint about overpaid salaries

Republic v Commission on Administrative Justice & 2 others ex parte Michael Kamau Mubea

Miscellaneous Application No 378 of 2015

High Court at Nairobi

Judicial Review Division

G V Odunga, J

February 22, 2017

Reported by Beryl A Ikamari

Judicial Review-grounds for the grant of judicial review remedies-ultra vires-whether the Commission on Administrative Justice had exceeded its mandate when it investigated a complaint concerning a public officer's salary-whether the mandate on issues of salary was exclusively within the jurisdiction of the Salaries and Remuneration Commission-Commission on Administrative Justice Act, No 23 of 2011, section 8(a).

Constitutional Law-right to fair administrative action & the right to a fair hearing-anonymous complaints-the right to cross-examine and challenge the evidence of an accuser-effect of an anonymous complaint on the right to fair administrative action-Constitution of Kenya 2010, article 47; Fair Administrative Action Act, No. 4 of 2015, sections 4(1), 4(4)(c) & 4(6); Commission on Administrative Justice Regulations, 2013, regulation 5(4).

Constitutional Law-right to fair administrative action & the right to a fair hearing-anonymous complaints-the difference between the right to be heard in investigations and the right to be heard in quasi-judicial processes-whether investigations which culminated in recommendations for a refund of an alleged overpayment of salary would require the affected person to be afforded a hearing-Commission on Administrative Justice Act, No 23 of 2011, sections 36 & 39.

Brief facts

An anonymous complaint was made concerning the Ex parte Applicant’s salary. It was said that he was taking a salary that was higher than the one on the prescribed scale without the approval of the Salaries and Remunerations Commission (SRC.) The anonymous complaint was received by the Commission on Administrative Justice (the Commission.) The Commission did their investigations which culminated in a report and recommendations being made. In the recommendations, the Ex parte Applicant was to refund the overpayment and face any other appropriate action.

The Ex parte Applicant explained that he had negotiated for a higher salary and the Salaries and Remuneration Commission had approved the higher pay. He complained that the Commission’s investigations were improper and violated his right to fair administrative action. He elaborated that the anonymity affected his ability to challenge his accuser’s evidence and that the Commission had no mandate to consider issues which related to his remuneration and were within the competence of the Salaries and Remuneration Commission.

Issues

i) The scope of the mandate of the Commission on Administrative Justice.

ii) Whether an anonymous complaint from an undisclosed complainant could form the basis of investigations by the Commission on Administrative Justice.

iii) Whether the Commission on Administrative Justice afforded the Applicant a fair hearing before making its recommendations.

Commission on Administrative Justice Act, No 23 of 2011; section 8(a)

8. Functions of the Commission

The functions of the Commission shall be to—

(a) investigate any conduct in state affairs, or any act or omission in public administration by any State organ, State or public officer in National and County Governments that is alleged or suspected to be prejudicial or improper or is likely to result in any impropriety or prejudice;

Commission on Administrative Justice Act, No 23 of 2011; section 36

36. Representations if adverse findings, etc.

The Commission shall give any person, State organ, public office or organization against whom an adverse finding or recommendation is made, an opportunity to make representations concerning the finding or recommendation before the Commission includes the finding in its report.

Commission on Administrative Justice Act, No 23 of 2011; section 39

39. Persons likely to be prejudiced or affected to be heard

(1) Subject to subsection (2),if at any stage of an inquiry the Commission—

(a) considers it necessary to inquire into the conduct of any person; or

(b) is of the opinion that the reputation of any person is likely to be prejudiced by the inquiry, it shall give that person an opportunity to appear before the Commission by himself or by an advocate to give evidence in his own defence.

Constitution of Kenya 2010, article 47

47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.

(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.

Held

1. Judicial review entailed constitutional supervision of public authorities which involved a challenge to the legal validity of a decision. It did not allow the Court of review to examine evidence in order to form its own view about the substantial merits of the case. Judicial review involved circumstances where a tribunal did something it had no authority to do or misused or abused the authority which it had or it departed from procedures set by statute or common law which fairness required it to observe. The decision in question could be found to be perverse/unreasonable or irrational or grossly disproportionate to what was required.
2. Judicial review entailed a special supervisory jurisdiction which was different from both ordinary adversarial litigation between private parties and an appeal, a rehearing on the merits. The question was not whether the judge disagreed with what the public authority did but whether there was some recognizable public wrong which had been committed.
3. Section 8 of the Commission on Administrative Justice Act provided for the functions of the Commission. The complaint in question was an anonymous complaint to the effect the applicant's emoluments were never set by the Salaries and Remuneration Commission. Such a complaint would fall within the rubric of what was described as "any act or omission in public administration by any State organ, State or public officer in National and County Governments that is alleged or suspected to be prejudicial or improper or is likely to result in any impropriety or prejudice” under section 8(a) of the Commission on Administrative Justice Act. What was alleged would amount to an abuse of power wherein an entity arrogated to itself powers which it did not possess.
4. Natural justice concerned procedural fairness and it ensured that a fair decision was reached at by an objective decision maker. The ingredients of fairness or natural justice that were to guide all administrative decisions included the following;

1. That a person was to be allowed an adequate opportunity to present his case where certain interests and rights would be adversely affected by a decision maker;
2. That no one ought to be a judge in his or her case and that the deciding authority had to be unbiased when according the hearing and making the decision;
3. That an administrative decision was to be based upon logical proof or evidentiary material.

5. Article 47 of the Constitution of Kenya provided that every person had the right to administrative action that was expeditious, efficient, lawful, reasonable and procedurally fair. Similarly section 4(1) of the Fair Administrative Action Act, No. 4 of 2015 provided that every person had the right to administrative action which was expeditious, efficient, lawful, reasonable and procedurally fair.
6. Section 4(4)(c) of the Fair Administrative Action Act provided that an administrator would accord the person against whom administrative action was taken an opportunity to cross-examine persons who gave adverse evidence against him. However, section 4(6) of the Fair Administrative Action Act provided that an administrator was empowered by written law to follow a procedure which conformed to the principles set out in article 47 of the Constitution and the administrator could act in conformity with a different procedure.
7. The law was clear that where adverse evidence was given concerning a person, that person was to be afforded an opportunity to cross examine the said witness unless that right was excluded in circumstances that justified that course. If there was no justification for failing to avail such a witness for cross-examination, the threshold set under article 47 of the Constitution would not be met. Even where a different procedure was prescribed, that procedure was to follow the spirit of article 47 of the Constitution.
8. Regulation 5(4) of the Commission on Administrative Justice Regulations, 2013 provided that a complaint could be made anonymously or treated in such a manner as to protect the identity or particulars of the complainant, where necessary as directed by the Chairperson. There was nothing illegal about receiving a concern from an anonymous source since the Commission could act on its own motion. However, such a concerned person ought not to be treated as a complainant for purposes of the veracity of the issues raised. The concern would only form a basis for the conduct of independent investigations by the Commission on Administrative Justice.
9. It would be objectionable to place sole reliance on the anonymous informant's information as the basis for the Commission's actions. The Commission on Administrative Justice undertook independent investigations into the matter and arrived at a decision based on the investigations.
10. An investigative process was different from a quasi-judicial process. In a quasi-judicial process an accused person was to be given an opportunity to challenge his accusers. An investigation was designed to obtain further information for purposes of a report or recommendation by a quasi-judicial process which led to a final act or decision.
11. The need to afford a hearing depended on the nature of the report and investigations to be made. Where the report and recommendations could have far reaching implications such as the ruining of careers and reputation as well as being the basis of judicial proceedings, the authority concerned had a duty to act fairly. Under sections 36 and 39 of the Commission on Administrative Justice Act, a hearing was to be afforded to a person under investigation where the Commission made an adverse finding or recommendation against him, where it considered it necessary to inquire into his conduct and where his reputation was likely to be prejudiced.
12. The Commission on Administrative Justice recommended that the Ex parte Applicant refunds the overpayment and for appropriate action to be taken against him. Given the nature of the recommendations, the Commission had a duty to act fairly. Before condemning the Ex parte Applicant or criticising him, the Commission had to afford the applicant a fair opportunity for correcting or contradicting what was said against him.
13. The Commission on Administrative Justice gave details of instances where the Ex parte Applicant was afforded an opportunity to be heard before a report and recommendations were made. On occasion, it was stated that the Ex parte Applicant failed to respond to inquiries relating to the investigations. The law was to the effect that an opportunity to be heard was to be offered not that a party must actually be heard despite refusals to respond to inquiries or non-attendance on their part.
14. The Ex parte Applicant was not given an opportunity to challenge the evidence tendered against him by public officers who included Mr. Edward Kenga Karisa, Ms. Irene Keino and Professor Jane Onsongo. He was unable to cross-examine those persons and to test their evidence. The failure to offer the Ex parte Applicant an opportunity to challenge that evidence was a violation of his right to fair administrative action.
15. From the material presented in Court, it was clear that the Salaries and Remuneration Commission approved the Ex parte Applicant's salary. It appears that during the investigations there was a failure to adequately communicate the existence of the approval at the time of the investigations. The existence of the approval meant that the Commission's decision and recommendations for a refund of the overpaid sums of money were unreasonable, without jurisdiction and unjust.
16. The conduct of the investigatory process by the Commission fell short of a fair administrative action under the Constitution and the Fair Administrative Action Act. The Commission had no jurisdiction to embark on the investigation during the pendency of similar investigations by the Salaries and Remuneration Commission and in light of the approval of the SRC on the Applicant's remuneration.

Application allowed.