Question
Classification of Administrative Discretion
Discretionary powers may be exercised by different public officers. As a result of this diversity
in the exercise of these powers, it is important to classify them. There are various classifications
of discretionary powers. These are:
(i) Legislative discretion.
(ii) Adjudicative discretion
(iii)Executory discretion
(iv)General discretion
(v) Personal discretion
(vi)Qualified discretion and;
(v)Un qualified discretion.
38
(i) Legislative Discretionary Powers
Legislative discretionary powers arise where an administrative authority is empowered to lay
down a general rule within its discretion. When this is the case, the exercise of such
discretion is predominantly legislative in nature and is called legislative discretion.
(ii) Adjudicative Discretionary powers
Adjudicative discretion arises in situations where the exercise of administrative discretion
involves a function in the nature of a judicial function, such as licensing, when this is the
case, the exercise of such discretion is known as adjudicative discretion.
(iii) Executory Discretionary powers
Executory discretion arises in situation where the exercise of administrative discretion
involves the execution of a legislative policy, that is applying or dispensing with the
application of the law through a particular situation, when this is the case, the exercise of
such discretion is known as executory discretion.
(iv) General Discretion
A general discretionary power arises in situations where the discretion is vested in the whole
executive body rather than in a specified individual. An example of general discretion is
when a statute provides that “Government may in its discretion.....” When a statute provides
as stated above, the discretion vested is a general discretion as government can mean the
president, vice president, ministers, provincial ministers, permanent secretary or district
commissioner.
(v) Personal Discretion
Personal discretion arises in situations where the discretion is vested in a particular person.
Examples of personal discretion is when a statute provides that “the president shall or may,” or
the commissioner may,” When this is the case, the discretion vested is personal.
39
(vi) Qualified Discretion
Qualified discretion arises when the discretion vested is absolute and unfettered. That is when
both the purpose and the standard have been specified in the statute as regards the exercise of
discretion, then such discretionary powers is said to be qualified.
An example of qualified discretion is the provision in the constitution under Article 116, that
vests power in the president to appoint ministers only from among members of parliament. This
discretion is qualified as the president cannot appoint a person who is not a member of
parliament as minister.
(vii) Unqualified Discretion
Unqualified discretion arises in situations where the discretionary powers are such that neither
the purpose nor the legislative standards have been specified. When the exercise of discretionary
powers is in this fashion, then the nature of the discretionary power is said to be unqualified.
An example of unqualified discretionary powers is the power vested in the president to appoint
Diplomats such as Ambassadors and High Commissioners. This is so in that there is no law that
stipulates any standard that must be met by a person to be appointed as a diplomat.24
There is no qualification or standard required to exercise this power by the president. As a result,
the president can appoint any person as High Commissioner or Ambassador, as no standard or
qualifications have been provided by the law in appointing High Commissioners or
Ambassadors. For this reason, the President can appoint as Ambassador or high commissioner,
even an illiterate party cadre marketeer as Ambassador or High Commissioner as the exercise of
such power by the president do not have to meet any standard or qualification.
24 Article 92 (2) (a) of the Zambian Constitution No. 2 of the Zambian Constitution No. 2 of 2016, empowers the
president to appoint Ambassadors and High Commissioners and other Diplomats However the constitution does not
put any qualifications or standards as regards persons to be so appointed. This being the case, the exercise of this
discretion by the president is said to be unfettered or unqualified discretion as the president can appoint anybody, in
his own discretion as no prescribed standards or qualifications must be met.
explain in impler terms
Discretionary powers may be exercised by different public officers. As a result of this diversity
in the exercise of these powers, it is important to classify them. There are various classifications
of discretionary powers. These are:
(i) Legislative discretion.
(ii) Adjudicative discretion
(iii)Executory discretion
(iv)General discretion
(v) Personal discretion
(vi)Qualified discretion and;
(v)Un qualified discretion.
38
(i) Legislative Discretionary Powers
Legislative discretionary powers arise where an administrative authority is empowered to lay
down a general rule within its discretion. When this is the case, the exercise of such
discretion is predominantly legislative in nature and is called legislative discretion.
(ii) Adjudicative Discretionary powers
Adjudicative discretion arises in situations where the exercise of administrative discretion
involves a function in the nature of a judicial function, such as licensing, when this is the
case, the exercise of such discretion is known as adjudicative discretion.
(iii) Executory Discretionary powers
Executory discretion arises in situation where the exercise of administrative discretion
involves the execution of a legislative policy, that is applying or dispensing with the
application of the law through a particular situation, when this is the case, the exercise of
such discretion is known as executory discretion.
(iv) General Discretion
A general discretionary power arises in situations where the discretion is vested in the whole
executive body rather than in a specified individual. An example of general discretion is
when a statute provides that “Government may in its discretion.....” When a statute provides
as stated above, the discretion vested is a general discretion as government can mean the
president, vice president, ministers, provincial ministers, permanent secretary or district
commissioner.
(v) Personal Discretion
Personal discretion arises in situations where the discretion is vested in a particular person.
Examples of personal discretion is when a statute provides that “the president shall or may,” or
the commissioner may,” When this is the case, the discretion vested is personal.
39
(vi) Qualified Discretion
Qualified discretion arises when the discretion vested is absolute and unfettered. That is when
both the purpose and the standard have been specified in the statute as regards the exercise of
discretion, then such discretionary powers is said to be qualified.
An example of qualified discretion is the provision in the constitution under Article 116, that
vests power in the president to appoint ministers only from among members of parliament. This
discretion is qualified as the president cannot appoint a person who is not a member of
parliament as minister.
(vii) Unqualified Discretion
Unqualified discretion arises in situations where the discretionary powers are such that neither
the purpose nor the legislative standards have been specified. When the exercise of discretionary
powers is in this fashion, then the nature of the discretionary power is said to be unqualified.
An example of unqualified discretionary powers is the power vested in the president to appoint
Diplomats such as Ambassadors and High Commissioners. This is so in that there is no law that
stipulates any standard that must be met by a person to be appointed as a diplomat.24
There is no qualification or standard required to exercise this power by the president. As a result,
the president can appoint any person as High Commissioner or Ambassador, as no standard or
qualifications have been provided by the law in appointing High Commissioners or
Ambassadors. For this reason, the President can appoint as Ambassador or high commissioner,
even an illiterate party cadre marketeer as Ambassador or High Commissioner as the exercise of
such power by the president do not have to meet any standard or qualification.
24 Article 92 (2) (a) of the Zambian Constitution No. 2 of the Zambian Constitution No. 2 of 2016, empowers the
president to appoint Ambassadors and High Commissioners and other Diplomats However the constitution does not
put any qualifications or standards as regards persons to be so appointed. This being the case, the exercise of this
discretion by the president is said to be unfettered or unqualified discretion as the president can appoint anybody, in
his own discretion as no prescribed standards or qualifications must be met.
explain in impler terms
Answers
GPT-4o mini
**Classification of Administrative Discretion in Simpler Terms**
Administrative discretion allows public officials to make decisions based on their judgment. There are different types of discretion classified based on how and where they are used. Here’s a simpler breakdown of these classifications:
1. **Legislative Discretion**: This type of discretion happens when an authority (like a government body) has the power to create general rules. For example, if a city government can decide new traffic laws, that’s legislative discretion.
2. **Adjudicative Discretion**: This discretion is used when decision-making resembles a court case or legal ruling. For example, when a licensing board decides whether to grant a business license, they are exercising adjudicative discretion.
3. **Executory Discretion**: This kind of discretion involves applying laws in specific situations. For example, if a government agency has to enforce a law for a particular case, that's executory discretion.
4. **General Discretion**: General discretion means that a whole group of officials (like an entire government) has the power to make decisions, not just one person. For example, if a law says “the government may decide...”, it can be any member of the government, making it general discretion.
5. **Personal Discretion**: Personal discretion is when a specific individual (like a president or a commissioner) has the authority to make decisions. For example, if the law states “the president may appoint...”, this is personal discretion because it is limited to that one individual.
6. **Qualified Discretion**: Qualified discretion occurs when there are specific rules about how discretion can be used. For example, if a president can only appoint ministers from the parliament, this is qualified discretion because the choices are limited.
7. **Unqualified Discretion**: Unqualified discretion arises when there are no specific guidelines or rules about how to use the discretion. For instance, if a president can appoint ambassadors without any qualifications or standards required, that’s unqualified discretion. The president can choose anyone, even someone who may not be qualified, because there are no laws saying otherwise.
In summary, these classifications help us understand how discretion functions in different contexts and who is allowed to make decisions and under what constraints.
Administrative discretion allows public officials to make decisions based on their judgment. There are different types of discretion classified based on how and where they are used. Here’s a simpler breakdown of these classifications:
1. **Legislative Discretion**: This type of discretion happens when an authority (like a government body) has the power to create general rules. For example, if a city government can decide new traffic laws, that’s legislative discretion.
2. **Adjudicative Discretion**: This discretion is used when decision-making resembles a court case or legal ruling. For example, when a licensing board decides whether to grant a business license, they are exercising adjudicative discretion.
3. **Executory Discretion**: This kind of discretion involves applying laws in specific situations. For example, if a government agency has to enforce a law for a particular case, that's executory discretion.
4. **General Discretion**: General discretion means that a whole group of officials (like an entire government) has the power to make decisions, not just one person. For example, if a law says “the government may decide...”, it can be any member of the government, making it general discretion.
5. **Personal Discretion**: Personal discretion is when a specific individual (like a president or a commissioner) has the authority to make decisions. For example, if the law states “the president may appoint...”, this is personal discretion because it is limited to that one individual.
6. **Qualified Discretion**: Qualified discretion occurs when there are specific rules about how discretion can be used. For example, if a president can only appoint ministers from the parliament, this is qualified discretion because the choices are limited.
7. **Unqualified Discretion**: Unqualified discretion arises when there are no specific guidelines or rules about how to use the discretion. For instance, if a president can appoint ambassadors without any qualifications or standards required, that’s unqualified discretion. The president can choose anyone, even someone who may not be qualified, because there are no laws saying otherwise.
In summary, these classifications help us understand how discretion functions in different contexts and who is allowed to make decisions and under what constraints.