Administrative Rule Making

Contrary to the general rule that the Executive only implements the law, the Executive makes laws in some circumstances. These Executive bodies include the Ministries, Departments or Agencies (MDAs) or government parastatals, etc. The powers of the Executive to make laws is delegated to them by the Legislature originally saddled with the responsibility of making laws. This situation does not contradict, but instead supplement the theory of Separation of Powers.

Justification for rule making

Regardless of the principles of Separation of Powers, it is modern practice that the Legislature delegates their law making powers to the Executive organs for some of the reasons set out below:

1. It enables experts to complement law makers or the Legislature in law making. This becomes paramount in modern times where demand for legislation in technical aspects appear to be on the increase. For instance, the Air Force legislation which aided in the adjudication of the case of Nigeria Air Force v James.
2. It allows flexibility, adaptability and quick response to local needs.
3. It reduces the workload of the National Assembly.
4. Most often, delegated legislation or administrative rule making is a medium of bringing an Act of Parliament into operation.
5. Rule making is suitable and useful in times of war or in a State of emergency, as it is devoid of extensive debate or procedure.

Rule making procedure

There are four types of Rule making procedure:

1. Investigational procedure

Here, the administrative agencies set up committees to investigate the need for rule making. The committee is tied to the responsibility of establishing the need in assessing the need for rule making. The outcome of this investigation will form the basis for rule making. This procedure is synonymous with legislative law making procedure. The synonym lies in the fact that when law makers make laws, they first set up committees to investigate the needs to make law. An administrative agency can also set up committees to find out issues which need law to aid in its solving.

2. Consultative procedure

This is a participatory procedure. It involves the participation of all necessary stakeholders. Stakeholders are invited to make submissions. This can be done by correspondence and verbal communication. The essential requirement of this procedure is wide consultations with interested parties. This procedure can be seen in section 2 of the Legal Practitioners Act of 1962. However, this procedure is often expensive and members of the Public do not normally participate. Note that where the enabling law imposes a duty to consult before making a rule, and an administrative agency fails to consult before making such rule, whatever rules or regulations made pursuant to, would be void as it was in the case of Popoola v Adeyemo.

3. Auditive procedure

This is a hearing procedure which may be likened to judicial processes where the Judge listens to both parties to arrive at a decision. This is usually published and interested parties are permitted to hold intelligent decisions.

4. Adversary procedure

This is the trial law making procedure. Presentation may be made through legal representatives, evidence and testimonies held, presentations made and recommendations made. Here, parties are allowed to oppose each other.

From the foregoing, it can be concluded that administrative agencies may adopt any of the above stated procedures. The factors that inform the procedure to be adopted include:

• The characteristics of the parties affected.
• The nature of the problem to be dealt with.
• The type of administrative agency.
• The nature of enforcement.