The process by which administrative agencies make decisions that affect the rights and obligations of individuals is a cornerstone of administrative law. This procedure encompasses all proceedings from the initiation of a case to its final resolution by a decision-maker. A fair and transparent process not only ensures justice for the individual but also promotes public confidence in governmental agencies. This chapter delves into the critical elements of the adjudicatory decision-making procedure as outlined, and notably, as omitted, by the Federal Administrative Procedure Proclamation No. 1183/2020 (FAAP).
Core Elements of Adjudicatory Proceedings
A sound decision-making procedure is built on several key pillars that ensure fairness and accuracy. These essential components include the right to notice, the opportunity to present a case and evidence, the provision for an oral hearing, the right to cross-examine adverse witnesses, and the right to legal counsel. The primary legal basis for these procedures within the FAAP is Article 37, though other provisions offer supplementary guidance. However, a comparative analysis with other established adjudication procedures reveals that the FAAP does not comprehensively cover all necessary aspects of the proceeding.
The Foundational Requirement: Notice
The principle of prior notice is the bedrock of procedural fairness. It marks the formal commencement of an adjudication process and serves the crucial function of informing a party that a case has been initiated against them, thereby enabling them to prepare an adequate defense. Without sufficient information that proceedings have begun, an individual cannot meaningfully defend their interests.
Contents and Timing of Notice
For a notice to be effective, it must contain certain minimum information. This includes the time, place, and purpose of the impending hearing. It should also specify the legal authority that will conduct the hearing and provide a clear description of the specific charges. The ultimate test for the adequacy of a notice is whether it provides enough information for the affected person to prepare their defense effectively.
A critical aspect of this requirement is providing reasonable time for case preparation. This involves gathering evidence, consulting with witnesses or experts, and formulating a written response—tasks that demand adequate time. A notice demanding an appearance the following day, for example, would be considered inadequate. Many statutes specify an average period of 10 days, which is often considered the minimum. In the absence of a statutorily defined timeframe, a “reasonable time” must be granted.
The Federal Civil Servants Disciplinary and Grievance Procedure Council of Ministers Regulations No. 77/2002 provides a robust example, mandating that a summons indicate the place, date, and time of the hearing and be served at least ten days prior to that date.
Serving of Summons
To fulfill its purpose, the notice must reach the defendant personally, which is the preferred method of service. However, practical challenges can arise when a defendant cannot be located. While legal frameworks like the Civil Procedure Code offer multiple alternative methods for serving a summons, these can be costly and inefficient for administrative agencies. A more practical and fair approach in such instances is to post the summons on the agency’s notice board. The Civil Servants Regulation, for instance, requires a notice to be posted for fifteen days if the defendant cannot be found or is unwilling to receive it.
A Critical Omission in the FAAP
Despite its fundamental importance, the requirement for notice is conspicuously absent from the main body of the Federal Administrative Procedure Proclamation. This is considered a significant drafting error, as it is difficult to envision how the hearing process described in Article 37 could function without a preceding notice. Notice is a mandatory prerequisite even in informal administrative settings. Other specific laws in Ethiopia that govern administrative adjudication consistently require that notice be served before a hearing takes place. For instance, in disciplinary hearings before the Accounting and Auditing Board of Ethiopia, it is mandatory to inform the respondent about the nature of the complaint lodged against them.
The Charge: Detailing the Allegations
Distinct from the notice, which informs about the proceeding itself, the charge details the specific allegations or acts committed by the defendant and the legal basis for the potential liability. While it does not need to be as formal as a statement of claim in a civil suit or a charge in a criminal trial, it must provide clear and sufficient information about the facts and the source of liability.
For example, under Ethiopia’s Overseas Employment Proclamation No. 923/2016, a license can be suspended for various violations, such as obstructing a labor inspector. If an employment agency is accused of such an obstruction, the charge must clearly specify this alleged violation and indicate when the incident occurred. Furthermore, if administrative penalties are tied to the gravity or repetition of an offense, the charge must clarify whether the accusation is for a first-time violation or for repeated actions.
The Hearing: Presenting the Case
The hearing is the forum where parties present their cases. A party’s defense may be submitted in written or oral form, depending on the gravity and formality of the proceedings. In more formal settings, a written defense that includes a list of documentary and oral evidence is appropriate. In informal hearings, the defense might be a simpler written or oral explanation.
The Role of Oral Hearings
An oral hearing, where all participants are physically present, offers distinct advantages. It can reduce the need for extensive documentation, saving time and costs, and allows for direct and efficient communication. The physical presence of participants enables the tribunal and the parties to assess the credibility of witnesses and allows for more dynamic procedures like cross-examination. The tribunal maintains direct control over the process, and the public nature of oral hearings promotes transparency and accountability.
Despite these benefits, an oral hearing is not considered an indispensable element of fair hearing in all administrative cases. Because they can be time-consuming and expensive, agencies cannot be expected to provide them universally. Consequently, the submission of a written explanation is often accepted as a valid substitute.
Article 37 of the FAAP stipulates that the parties to a case have the right to appear in person. This provision grants them the right to give testimony, produce evidence, and examine the evidence presented to the administrative authority.
Presentation of Evidence
A fundamental principle of a fair hearing is that a party must have the opportunity to present all relevant evidence supporting their case and rebut evidence presented against them. An adjudicating authority’s refusal to accept relevant evidence from an affected party can constitute a breach of fair hearing rules and invalidate the final decision.
Article 37 of the FAAP not only allows parties to present their own evidence but also empowers the hearing body to compel third parties to produce evidence. The proclamation states that the agency may use “all legal methods to get documents of investigation and other any evidences from the party participated in the argument, witnesses and professional persons”.
However, the phrasing of this provision suffers from a lack of clarity. If “party participated in the argument” is interpreted to mean only the prosecuting party within the agency, it would severely limit the hearing body’s power, as both the hearing officer and the prosecutor often belong to the same government agency, albeit in separate departments. Since crucial evidence may often be held by third parties outside the agency, an inability to order its production could seriously hamper a defendant’s right to a fair defense.
Cross-Examination
Cross-examination is a vital tool for testing the veracity of evidence and is considered an integral part of the right to rebut adverse claims. As a key component of the adversarial system, it allows an aggrieved person to challenge charges and discredit unfavorable evidence.
However, in the context of administrative adjudication, the right to cross-examination is not absolute. It is typically required only in circumstances where its absence would fundamentally compromise the fairness of the adjudication. It is a feature of more ‘judicialized’ or formal types of decision-making and is generally not permitted when proceedings are based solely on written submissions. For instance, under the American Administrative Procedure Act, cross-examination is permitted in formal adjudications only to the extent required for a “full and true disclosure of the fact”. Similarly, in England, the need for cross-examination arises only when an oral hearing is required, and even then, its necessity is weighed against the specific circumstances of the case.
A comprehensive administrative procedure code should specify the types of cases where cross-examination is required and the exceptional circumstances under which it might be denied. While Article 37 of the FAAP seems to imply that an opportunity for cross-examination will be provided, this is more suited to formal hearings. Given that most administrative decision-making is informal, this provision may not be universally applicable.
The Right to Counsel
The right to be represented by legal counsel is another critical procedural safeguard. In many common law jurisdictions, this right is recognized when an individual is entitled to an oral hearing and the circumstances suggest that a fair hearing is impossible without legal representation. English courts consider several factors, including the seriousness of the charge, the potential penalty, the likelihood of legal questions arising, the individual’s capacity to present their own case, procedural complexity, and the need for timely decision-making.
In the Ethiopian context, the right to counsel typically requires an express legal provision rather than being determined on a case-by-case basis by courts. An example is Article 38(4) of the Financial Reporting Proclamation No. 847/2014, which explicitly grants the right to counsel in its proceedings.
Article 37(1) of the FAAP, which calls for the personal appearance of the parties, does not explicitly prohibit representation by an attorney. An argument can be made that where a case’s complexity warrants legal assistance, denying representation could violate the general requirement of an “adequate opportunity of hearing” laid down in Article 36(1) of the proclamation. In such a scenario, a refusal to allow counsel could render the hearing inadequate.