Mode of Creating an Agency

In Ethiopia, whether it is at the Federal or state level, agencies are creatures of the legislature. They do not spring up on their own, and courts or the council of ministers cannot create them. The F.D.R.E. constitution expressly requires the establishment of some independent agencies. They do not have i.e. material and legal existence unless the house of people’s representatives enacts a specific law for their establishment. Hence, agencies that are in function so far those that  a legislature has given them the authority to function. The authority may be exceptionally broad or incredibly narrow.

Hence, it may be said that agencies are created in two ways: one is through the constitution, and the second is through act of parliament. However, one important point that should be emphasized. Is that the independent agencies, which have a constitutional basis, still require an enabling act of  the parliament for their legal existence. The only difference between the two modes of creating an agency is that when the constitution requires the establishment of some agencies the house of people’s representatives has a duty to promulgate the enabling act for that specific agency. When an agency is created only through the enabling act, in the absence of constitutional duty from the parliament, its existence is totally dependent on the will or option of the parliament.

Apart from the above two modes, there is no other means of creating an agency. Neither the prime minister, nor the council of ministers has the power to create an administrative agency.

3.2.2 Reasons for the Creation of Agencies

Agencies are created and assigned specific tasks by the legislature. They carry out the tasks making decisions of various sorts and supervising the procedure by which the decisions are carried out. There are many reasons why administrative agencies might be needed. Almost every governmental agency has been created because of a recognized problem in society, and from the belief that an agency may be able to help in solving the problems. The following are the main reasons for the creation of the administrative agencies.

A. Providing Specificity

The legislative branch of government cannot legislate in sufficient detail to cover all aspects of many problems. The house of the people’s representatives cannot possibly legislate in minute detail and, as a consequence, it uses more and more general language in stating its regulatory aims and purposes. For instance, the house of people’s representatives cannot enact a tax law that covers every possible issue that might arise. Therefore, it delegates to the council of ministers and ministry of revenue the power to make rules and regulations to fill in the gaps, and create the necessary detail to make tax laws workable. In many areas, the agency has to develop detailed rules and regulations to carryout the legislative policy.

It is also true that courts could not handle all disputes and controversies that may arise. They simply do not have the time or the personnel to handle the multitude of cases. For instance, the labour relations board entertains and resolves so many number of collective labour disputes between employees and employers. Similarly, the tax appeal commission and the welfare (pension) appeal tribunal adjudicate and decide vast number of administrative litigations within their jurisdiction. The creation of such adjudicatory agencies (usually known as quasi- administrative agencies) is necessary, because of the fact that they have, specialized knowledge and expertise to deal effectively with the detailed, specific and technical matters, which are normally beyond the competency of judges of ordinary courts.

A reason many agencies are created is to refer a problem or area to experts for solution and management. The National Bank of Ethiopia, Ethiopian Science and Technology Commission, Intellectual Property Office are examples of such agencies with expertise beyond that of the house of people’s representatives or council of ministers. The development of sound policies and proper decisions in many areas requires expertise. Similarly, administrative agencies often provide needed continuity and consistency in the formulation, application, and enforcement of rules and regulations governing business.

B. Providing Protection

Many government agencies exist to protect the public, especially from the business community. Business has often failed to regulate itself, and the lack of self- regulation has often been contrary to the public interest. For instance, the Environmental Protection Agency is created to regulate environmental pollution. In the absence of such agency, business could not voluntarily refrain from polluting the environment. The same can be said with respect to quality of private higher education and unjustified and unreasonable increase in the price of essential goods. The Ministry of Education and Ministry of Trade and Industry, regulate respectively both of these cases to protect consumers and the public at large.

Most of the time, an agency protects the public   from the negative impacts of business through regulation. When a business organization is given monopoly power, it loses its freedom of contract, and a governmental body is given the power to determine the provisions of its contract. We have some government companies that have monopoly power in Ethiopia, like the Ethiopian Electric and Light Corporation and Ethiopian Telecommunication Corporation, which have the monopoly of power over electricity and telecommunication. Previously, there was no agency regulating such business. Currently, we have the Electric Agency and Telecommunication Agency, which have the power to set the rate for the utility.

Similarly, agencies also regulate transportation, banking and insurance because of the disparity in bargaining power between the companies and consumers. The ministry of transport for instance determines the rate taxi and bus owners may charge the customer for their service. The National Bank of Ethiopia is given wider power to regulate banking and insurance due to the difference in bargaining power between bankers and customers.

C.  Providing Services

Many agencies are created simply out of necessity. If we are to have roads, the Ethiopian Roads Authority is necessary. Welfare programs require government personnel to administer them. Social security programs necessitate that there should be a federal agency to determine eligibility and pay benefits. The Ethiopian Social Security Authority is established to process pension payment and to determine entitlement to such benefit. The mere existence of most government programs automatically creates new agencies or expands the function of the existing ones.

3.3 Structure and Organization

The structure and internal organization of an administrative agency may greatly vary depending on the government policy and the programme it is expected to accomplish. Some of them may have different departments enjoying a substantial portion of power given to the agency by the enabling act. Still there will be lower organs labeled usually as sections with the specific tasks of the day-to-day governing. Usually, the arrangement of the internal organization will take so many factors into considerations, like budget implication. However, the main objective of the form of structure is aimed at ensuring efficiency and effectiveness in administration. Since this requires expertise, such task is left to the executive branch. In Ethiopia, the constitution specifically authorizes the council of ministers to determine the structure and organization of the administrative agencies.

Due to the limitation on parliament to deal with structure and organization of an agency, which is justified on the lack of expertise, the pardiment does not interfere with the internal form of that agency. The enabling act simply provides in broader terms, the function, power, duty and rights of the agency. This being the case, it has to be noted that the enabling act greatly influences the form and scope of structure and organization that an agency assumes. The type and scope of government programme, the extent of its power and the nature of mission to be accomplished by the agency outlined in the enabling act are factors to be taken in to consideration before designing the appropriate structure and organization.

Agencies are created with varying size, structure, functions and powers. Some of them may be established with broader powers; in charge of regulating a certain sector of the economy. This is typically the case with ministries, which are headed by a high-level government minister. Ministries not only enforce a government program or policy, but they also supervise and overview other lower agencies that are accountable to them. Others are comparatively   small in structure and are charged with a very specific task of implementing a certain portion of government policy or programme. With the exception of few, almost all agencies  are under  the direct control and supervision, in their day to today implementation of government task law, or policy assigned to them by the enabling act. The remaining very small agencies function independently outside the direct control of   the executive branch and they are accountable to the legislature. Agencies are classified or categorized based on such mode  of accountability.

Accordingly, those agencies directly accountable to the executive branch are known as executive agencies, where those accountable to parliament are called independent agencies. In Ethiopia, executive agencies are usually accountable to a certain ministry, or council of ministries, or the prime minister. Even though the enabling act may subject an agency to the control of another ministry, it    has also to be noted   that they   are ultimately accountable to either the council of ministers, or to the prime minister. This is true because the F.D.R.E constitution    grants the highest executive authority to the Prime Minister and the Council of Ministers (Article 72 sub 1 of F.D.R.E constitution). This fact can also be inferred from the cumulative reading of Articles 74(2) and 77(3) which   similarly confer the power of ensuring the implementation of laws, regulations, directives and decisions of the house of people’s representatives. Such powers mainly include the power to follow up and supervise the activities, functions and exercise of power of specific administrative agencies. Besides, even though an agency is made accountable to a certain ministry or another,   superior agency or   authority of the ministry is directly   accountable to the   Prime Minister,   or the     Council of Ministers.

The executive impacts the work of agencies in so many ways. The Prime minister may freely appoint the head of an agency, and dismiss him at any time even without valid reasons. However, the appointment of ministers and other commissioners is subject the approval of the house of people’s representatives. An executive agency has also a duty to submit report of its activities to the higher executive organ. The budget to be allocated to a certain executive   agency is also greatly determined and influenced by the decision of the executive branch. Even though the budget has to be prepared and be   submitted to the house of people’s representatives for approval, most of the time the demand of the executive is affirmatively accepted by the house.

Can you mention at least two executive agencies having the name of a ministry, authority, agency and commission?

It has been said that independent agencies, are accountable to parliament, i.e. to  the house of people’s representatives. The establishment of these agencies, even though they need the act of the house of people’s representatives for their material and legal existence, their is predetermined by the constitution. This implies that their creation is not dependent on the will of the parliament. Normally, the parliament retains exclusive right to bring a certain executive agency into existence, which includes the power to modify, increase, or decrease the power and function   of that    agency. By the same token it is up to the parliament to terminate that agency. However, this is not the case with independent agencies. The constitution clearly imposes a duty to establish independent agencies indicated in the constitution. There are time agencies falling under this category are listed below.

• The Federal Ombudsman
• The Human Right Commission
• The National Election Board
• The Auditor General
• The Population and Census Commission

With respect to these agencies parliament has the right to appoint heads. and remove them if there are valid reasons.

Nature, Meaning, and Classification of Administrative Agencies

Nature of agencies

There is hardly any function of modern government that does not involve, in some way, an administrative agency. The 20th century has witnessed an unprecedented proliferation of agencies with varying size, structure, functions and powers charged with the task of day – to- day governing. Their existence and growth have been the typical characteristics of the modern administrative state (welfare state.) For this reason, they have been responsible for the expansion and development of administrative law greatly influencing its content, scope and future. In the broadest sense, administrative law does not involve the study of how those parts of our system that is neither legislature nor courts make decisions. It is concerned with the study of the procedures, powers and control mechanisms of the administrative agencies. For this reason, the complex web of the administrative process of agencies constitutes an essential aspect of administrative law.

Administrative agencies have become a major part of every system of government in the world. In Ethiopia, for instance, they are the primary tools through which local, states and the federal government performs regulatory functions. The vast increase of agencies in number and power has been observed by a U.S. Supreme Court judge who makes the following remarks:

“ The rise of administrative bodies probably has been the most significant legal trend of the last century and perhaps more values today are affected by their decisions than by those of all the courts . . . They have become a veritable fourth branch of government.”

3.1.2 The Meaning of Administrative Agency

Defining an administrative agency is not an easy task. Agencies come in a huge array of sizes and shape. This is coupled with their wide ranging and complex functions and their power to legislate and adjudicate, in addition, to their normal executive powers, makes it challenging and difficult to precisely provide a precise and concise definition covering all these aspects of the administrative process.

Agencies may be defined as governmental entities, although they affect the rights and duties of persons are neither courts nor legislatures. For one thing it is true that agencies are not located within the legislative or judicial organ of the government. Although they are within the executive branch, most of them are not mainly accountable to the executive branch. The term executive branch of government is used either to refer to the president (e.g. in U.S.), or the prime minister and the council of ministers (e.g. Ethiopia). This definition lacks some precision. A government entity outside of the judiciary or the legislature does not necessarily qualify as an administrative agency. This does not mean that the     legislature for some public policy reasons may not opt for a wider inclusive approach in determining which agency may properly be called as agency. The American Administrative Procedure Act adopts this and defines agency as any U.S. governmental authority that does not include Congress, the courts, the government of the district of Columbia, the government of any territory or possession, courts martial, or military authority. In this definition, the reference to “authority” signifies a restriction on the scope of government entities that may be properly called as agency. Authority refers to a power to make a binding decision. Therefore, only entities with such power constitute an agency. In a similar fashion, Black’s Law dictionary defines agency as a governmental body with the authority to implement and administer particular legislation. Generally, it can be said that the authority or power of the entity is a common denominator for a precise definition of an agency.

A more detailed definition of an administrative agency is given in the New York Administrative Procedure Act, which reads:

“An agency is any department, board, bureau, commission, division, office, council, committee or officer of the state or a public benefit corporation or public authority at least one of whose members is appointed by the governor, authorized by law to make rules or to make final decisions in adjudicatory proceedings but shall not include the governor, agencies in the legislative and judicial branches, agencies created by interest compact or international agreement, the division of the military and naval affairs to the extent it exercise its responsibility for military and naval affairs, the division of state police, the identification and intelligence units of the division of criminal justice services, the state insurance fund, the unemployment insurance appeals board.”

You can see from the above definition that a very long description is used to avoid the difficulty of identifying the exact location and scope of an administrative agency. Determining whether a certain government entity constitutes an agency or not is greatly a matter of government policy so that the legislature may exclude some organs from the scope of an agency.

Generally speaking, we may identify  two important elements in distinguishing whether a certain government entity is an administrative agency or not. Firstly, the nomenclature may be indicative of the status of an entity as an agency. Most agencies have names like department, authority, commission, bureau, board etc;…Secondly, the government entity should be empowered to legislate (through delegation), or adjudicate individual cases, in addition to its merely executive functions. Generally, an entity is an agency if it has authority to take a binding action. Even though the above two elements are fulfilled, it is also important to check whether there is any express exclusion from the above definition. You can clearly see in the New York Administrative Procedure Act that some entities are excluded expressly by the legislature.

Due to the absence of an administrative procedure act in Ethiopia, there is no comprehensive definition of an administrative agency. There are some specific legislation that make a reference to “government agency”, though failing to provide a satisfactory definition. For instance, the income tax proclamation and the civil servants proclamation similarly define a government agency as an entity fully or party funded by the federal government. Practically, the allocation of fund 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 status of a certain governmental entity, resort has to be made to its nomenclature, and mainly to the existence of legislative and /or adjudicative power of that entity.

The Draft Administrative Proclamation of the Imperial government (draft proclamation No 251/1967) and that of the draft prepared by the federal government define agency relatively in a similar way.

The 1967 draft administrative procedure act uses the term “administrative authority” instead of “administrative agency” and defines it as:

“ Any ministry, public authority or other administration of the imperial Ethiopian government, including chartered municipalities, competent to render an administrative decision.”

This definition combining nomenclature with power of the agency attempts to identify which government entity may be properly called an administrative authority. The reference to competency to render administrative decision indicates that the power of the agency to legislate through delegation is missing as criteria.

The draft does not categorically exclude some entities from the purview of an administrative authority. However, it excludes some administrative decisions such as those regarding selection or tenure of public servants, those based solely on inspection tests or election, decisions as to the conduct of military or foreign affairs functions, decisions of any judicial division by courts of law, and any decision establishing rules or regulations.

Still it could not be known with exact precision what entity falls within and outside the definition of an administrative agency. Lastly, the draft administrative procedure of the federal government defines administrative agency taking the ability to render an administrative decision as criteria.

The 1967 is draft, different from the current Amharic text only in the substitution of “the imperial government” by F.D.R.E government and “chartered municipalities” by Addis Ababa and Dire Dawa Administrations. one may wonder whether the latter draft is simply a translation of the former rather than an original one. Such type of word-for-word translation is not only the characteristic of this definition, also it but extends to the whole text of the federal draft. 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.

Nature and Meaning of the Principle

The doctrine of separation of powers means that none of the government, i.e., the legislative, executive and judicial should ever exercise the powers of the other. It means that the three departments of government are to be separated and distinct.  They are to be independent of one another, and each can exercise only one type of authority, legislative, executive or judicial.