Discretion is a huge part of administrative law in most national systems across the world. The constitution and other legislation cannot possibly contemplate or provide a remedy for every single situation, so the government’s powers are delegated to agencies to administer laws in a more tailored fashion.
These agencies are typically created by statute and authorized by the same statute to make regulations over the subject matter that they govern. Where the principal statute does not create an explicit offence, the agency is usually given a scope of penalties to consider, so that the penalty applied is, more or less, commensurate to the severity of the offence. Similarly, an enabling statute might also give the agency or authority the leeway to waive or suspend penalties for certain offences.
Some believe in fact that discretion once conferred is maximum discretion and cannot be fettered; that it is entirely subjective and the judgement of the person authorized to act or refrain from acting must prevail. This is because, administrative discretion must conform broadly to certain principles. The agency or regulator has:
- A duty to act in good faith;
The principle, respect for fundamental rights and freedoms of citizenry, Justice, fairness, order, good faith, reasonableness and other values set out in the constitution and arising from its substance can be introduced to socio- economic relationships.
- A duty not to be influenced by irrelevant considerations;
A discretionary power must be exercised for proper purposes which are consistent with the conferring statute. It is erroneous to be influenced by irrelevant consideration. An administrative action that goes beyond it power is Ultra vires. There is a great deal of case law on the various reasons why a decision may be Ultra vires for example irrelevant considerations, improper purpose, unreasonableness, bad faith, uncertainty and beyond jurisdiction etc.
iii.       A duty to act reasonably;
An administrative officer owe a duty to act as a reasonable person in carry out his official duties. Avoid actions with the intent to harm others. Where the officers fails to act responsible, and his actions caused harm or injuries, they may be liable for such actions.
The administrative officers must use good sense of judgment in handling practical matters.
- A duty not to exceed the statutory bounds of the discretion.
The constitution and other legislation cannot possibly contemplate or provide a remedy for every single situation, so the government’s powers are delegated to agencies to administer laws in a more tailored fashion.
Where administrative officers goes beyond the statutory provision or acted improper, exceeding the limited bounds could said to have acted Ultra vires.
The Nigerian Police is not left out when the issue of abuse of discretionary power is brought in as a topic of discussion. Police as an organization set up by government, has the responsibility of preventing, detecting, investigating, apprehending as well as prosecuting an alleged criminal offender. In doing these, it inevitably exercises quite a number of discretions.
In Nigeria, the police are seen to abuse their discretionary powers in many ways particularly Section 24(1) of the Police Act of 2020 which empowers the police to conduct a search without a search warrant in instances enumerated in paragraph a-c of Section 24(1) but this provision of the Act has been grossly and overly abused by police officers. The unnecessary stop and search birthed on ill motive and/or intentions of these officers beget the police intimidation and brutality of citizens they swore to protect.
Recommendation:
- Laws or any piece of legislation creating these discretionary powers for officials should be revisited and amended to create proper envisaged, possible and workable alternatives as against to the use of discretion as a way out or totally expunged.
- The position of the Attorney General should be separated from the position of the minister of justice. The Attorney General should not be appointed by the executive or even be appointed by any person, body or arm of government but should be based solely by hierarchy in the respective ministry – Federal or State Ministry of Justice.
iii.       There should be a regulation to the extent to which the officials can exercise such powers and steps be put in place to certify that the process taken to reach such discretion was rational.
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