ABSTRACT

The legality of administrative actions lies on the administration and the judges. This legality gives Administrative authorities the power either to act or not to act in one way or the other. This power to act or not to act in one way or other is called Discretionary powers. ‘Discretion’ is the power to decide or act according to one’s judgment’. Administrative authorities have to exercise the discretionary powers though it is very complex because in any intensive form of government, the government cannot function without the exercise of some discretion by the officials. As such, discretionary power of the administrative authorities is very important for the fulfillment of their functions but the exercise of this discretionary power should not be unguided and uncontrolled. It has to be limited by certain methods so that they do not become unguided and turn to violate the rights of citizens or violate the actions of the administrative authorities.

To this effect, administrative actions are not free: it is limited by the obligation to respect certain rules of law. This is the meaning of the principle of legality, one of the cornerstones of administrative law. To understand its scope, it is necessary to find out what activities are thus limited, by what rules and what the degree of this limitation is. The principle of administrative legality governs all administrative action that is to say mainly the action of administrative bodies and, secondarily, the administrative action of private persons. So, in attaining the aim of this work, the collection of arguments and case laws shall be employed to analyze the above mentioned.

GENERAL INTRODUCTION

0.1 Background to the study

The public administration is endowed with exorbitant powers. The administrative authorities responsible for exercising such powers must exercise them with moderation. Otherwise, they would be committing illegal acts likely to be censored by the judge. The administration thus enjoys exorbitant prerogatives which are in no way safe-conducts granting the power to perform acts which contravene the law in force. The requirement of legality therefore surrounds the administration, and the administration cannot escape from this requirement, so that the exercise of administrative power is void of any form of arbitrariness. This is in essence, the meaning of the principle of legality which applies to all administrative activity.

The administration cannot act arbitrarily. This aspect of the administration not acting arbitrarily is governed by one principle, that of legality, which happens to be one of the many principles governing the public administration. This principle is cardinal in administrative law. Administrative law[1] generally is perceived as a body of specific rules which are different from those applicable in private relations[2]. This is illustrated by the famous court ruling called Arrêt Blanco^[3]. This court ruling brought to light the fact that administrative law is not only an exception to private law but also most importantly, it is a specific and autonomous system of law. This famous decision breath a new spirit which has been embraced by administrative law and practice today and it is that inasmuch as administrative law provides privileges for the administration it also fights against the arbitrariness [abuses] of the administration.

Thus, the administration, understood from a restricted sense[4], does not act with impunity in complete disregard of the norms governing administrative activity. In fact, the very aspect of spelling out rules which the administration must follow is in itself a means of curbing administrative arbitrariness. But most effectively, a principal means through which this is attained is through the mechanism of a principle: the principle of legality.

The principle of legality is interpreted as being the obligation of the administration submitting to the law. It is therefore only accepted that all the acts that the administration takes are in accordance with the law. By the word law, we are making reference to all the rules governing administrative activity. To be more specific, we are talking about the sources of administrative law. Thus, administrative acts cannot be contrary to the Constitution, to international instruments, to the law, to jurisprudence, to general principles of law and to the rules enacted by the administration itself which are unilateral administrative acts (regulatory acts and individual acts) and as well as administrative contracts.

0.2 Motivation of the study

What caused the researcher to take a look at this topic is due to the increasing tendencies of disputing administrative decisions as a result of their arbitrary nature. This is evident by the wanton disregard of such decisions. This work is thus motivated at bringing to the lime light the requirements for the validity of every administrative action.

0.3 Significance of the Study

This research in its accomplishment will tend to be helpful not only to administrators of the Cameroonian public administration but also to users of the public service to whom this work shall serve as an eye-opener in evaluating the legality of every administrative act.

This work will equally serve its purpose in the academia as a formidable piece of research worthy of consultation by other researchers and students.

0.4 Objective to the Study

The objectives here were classified into two; that is the main objective and the specific objective.

0.4.1 Main Objective

The main objective of this work is to examine the legal rubric governing the legality and illegality of administrative actions in Cameroon.

0.4.2 Specific Objectives

We will be working with the following specific research objectives;

• To examine conditions which affect the legality of administrative actions in Cameroon administrative law.
• To analyse how the administration rectifies administrative arbitrariness.
• To bring to the limelight the existing exceptions to the principle of administrative legality.

[1] Leon DUGUIT defines public law as “a set of rules of law which are applicable to the state, government and to their agents; in their inter-actions and in their interaction with private individuals”. Dr TSALA Victor Yves, Lecture notes on Administrative Law, 2021/2022 academic Year, and the University of Bamenda.

[2] Ibid, Leon DUGUIT defines private law as “a body of ordinary [customary or written] rules that are applicable on private persons [in their interaction]” that is, the rules that govern the activities of private individuals and protect private interest. It is only in exceptional cases that we also include the activities that the administration carries out with private individuals in the definition of private law

[3] 8 February 1873. As concerns the facts, a child was injured by a wagon pushed by employees of a tobacco factory, operated by the state. In order to obtain damages, the father of the child brought an action for liability against the State, represented by the prefet (SDO) of Gironde, on the basis of former articles 1382 et seq. of the Civil Code. As a reminder, the former articles 1382 and following of the Civil Code were the seat of civil liability. According to the father, the State was therefore civilly liable for the damage caused by the employees of the tobacco factory. The father thus brought his action before the civil court. The ruling was that civil law does not apply to the State and its public services, the State is liable for faults committed by employees of its public services (the Blanco judgment therefore puts an end to the principle of non-liability of the State), it is not a question of civil liability, but of administrative liability, it is the administrative courts which are competent to hear it. https://www.conseil-etat.fr/decisions-de-justice/jurisprudence/les-grandes-decisions-depuis-1873/tribunal-des-conflits-8-fevrier-1873-blanco accessed 14th April 2023

[4] Op. Cit., Dr TSALA Victor Yves, Lecture notes on Administrative Law, this is what Jean RIVERO defines as “a set of organs through which public missions are carried out”. Looking at this precise definition therefore, the administration from an organic point of view is “a set of organs that are representing; the executive power, other public bodies of public law as well as the authorities and public agents that carry out public services”. By public bodies of public law, we refer to the local authorities and specialised public institutions as well as state universities.