Statutory Bodies

By Sarah N Vranckx
Faculty of Law, Unam
3 October 2023
Course objects

• To understand what statutory bodies are and to understand how they

are created
What is a statutory body?
What is a statutory body?

• Statutory bodies are created by law (Act of Parliament).

• They obtain all their powers from the statute or from other
documents whose creation is authorised by the statute.
Which Act of Parliament contains a list of
statutory bodies?
Answer

• Example of Statutory bodies are contained in the State-owned

Enterprises Act, 2006 (Act No. 2 of 2006).
Types of statutory bodies

• Advisory
• Business
• Regulatory
Examples?

• Give examples of advisory statutory bodies?

Advisory bodies

• Disability Council of Namibia

• National Heritage Council
• Arts Council of Namibia
• Art Gallery
?

• What questions should you consider when creating such bodies?

Answer

• When such bodies are to be created, the drafter must ask crucial
questions such as:
• - will the body be a juristic person or not?
• - how will the body be funded?
• - what will the structure of the body be?
• - what organs will it have and what will be the relationship between
these organs?
• By what organs will decisions of the body be taken?
• Will the body have its own staff members? If so, who will determine
their appointment and conditions of service?
Juristic personality of body

• Will the body be a juristic person separate from government?

• The issue in this regard is whether it owns its own property,
concludes contracts on its own behalf or it merely acts as an organ of
the State; or
• Are its assets and liabilities its own or belongs to the Government?
How is the body going to be funded?

• When a body is exclusively or largely funded through money

budgeted by Parliament, that body must be part of the Government.
• A body can be self-funded either because it is running a business
operation (Telecom, Nampower, Namwater); or
• because it is funded by levies that usually collected from the industry
that it regulates (Namfisa and the Electricity Control Board)
Why making a body a separate juristic
person?
• To ensure some degree of independence from the government and
to minimise political control.
• The body requires specialised staff members that are expensive, the
body must therefore be separate from the government in order to
avoid the civil service bureaucracy and be able to pay competitive
salaries.
Why a juristic person?

• Where a specific industry or profession is regulated by a statutory

board consisting mostly of members of the specific profession.
• In the end, this is a political decision but the drafter needs to ensure
that this decision is clearly to avoid legal uncertainty. For example, it
is often uncertain whether the officials of the body are civil servants
or not.
When body is a juristic person

• There are two models -

• (a) The body may be created by the law in question in which case
every power of the body must be specified in the law or must be
implied.
• (b) the Act may provide that the body in question will be created as a
company in which case the statutes and memorandum will regulate
the corporate structure of the body concerned.
• Companies are usually created where the body will be engaged in
some kind of business venture. For example in diamonds, fisheries,
electricity).
• The type of bodies that are fully created by their statutes are usually
bodies that have a regulatory function or that will perform some
public purpose that are not in the nature of a business enterprises.
Regulatory bodies

• For regulatory bodies, the Acts must have a number of standard

provisions which include
• - the objects of the body;
• - the general powers (such as concluding contracts and owning
property)
• - special powers that the body requires to exercise (making
donations, invest funds, etc);
• - the purpose for which it is being created (eg. Issuing licences,
approving tariffs or holding disciplinary hearings);
Regulatory bodies

• The funds of the body (including auditing and reporting) together

with limitations and permissions that maybe necessary;
• The corporate structure (membership of the body, annual general
meeting of member, number and qualifications of board members,
tenure of office, dismissal of board members, delegation of powers,
meetings, filling of vacancies, etc);
Whether a body must have corporate status

• It depends on the –
• - objects of the body and its functions
• - body is to have the power to sue and be sued;
• - body is intended to acquire property;
• - body is required to employ staff;
• Whether it is to be fully or partly independent of government or it is
purely advisory.
Standard provisions establishing a statutory
body
• Establishment
• Functions of the corporation
• Board of directors or management team
• Finance
• Administration
• miscellaneous
Body part of the Government

• When the body is part of the government, there must be very special
reasons for the officials not to be civil servants.
• Thank you.
What is ethics?

• Ethics means considering what is good and right for the self and for
others as expressed by the golden rule: “to treat others as you would
like to be treated yourself.”
• In the context of the organisations, ethics refers to ethical values
applied to decision-making, conduct, and the relationship between
the organisation, stakeholders and the broader society.
What is ethics?

• Criteria for making moral decisions.”

• (R. M. Bittick) …or
• “…a systematic attempt through the use of reason to make sense of
our individual and social moral experience in such a way as to
determine the rules which ought to govern human conduct…” …or
• A process by which we clarify right and wrong and act on what we
take to be right.
• (Robert Denhardt)
Why code of ethics?

• The Code aims at promoting an open, fair, equitable and transparent

process and to improve the overall functioning of the society.
• It serves as a guide when in doubt about the possible implications of
an action or decision.
Ethical Principles

• Accountability
• Competence
• Confidentiality
• Empathy and caring
• Honest, integrity and dignity
• Impartiality
• Professionalism
• Respect
• Fairness
Ethical dimensions of legislative drafting

• The ethical dimension of legislative drafting is the most sensitive to

both drafters and governments.
• Traditionally, drafters are considered to have professional
responsibilities.
• There are 4 different dimensions to the drafter’s responsibilities
• What are those dimensions?
Dimensions

• There are four different dimensions to the drafter’s responsibilities

are:
• The drafter’s duties
• Duty of Loyalty
• Competence
• Confidentiality or non-disclosure
Scope of the drafter’s duties

• Legislative drafters have a duty to their clients but we must make a

distinction between the civil servant drafter and the drafter in a law
firm.
• The difference is that the former (especially those in permanent
posts) can claim to have a public duty while the latter have a duty
primarily to their client, whoever that may be.
• As public servants they are objective, neutral and nonpartisan
advisors within a large bureaucracy.
Scope of the drafter’s duties

• In Third world and emerging democracies, the drafter may find

themselves in a difficult position as the custodian of the rule of law.
• In some countries, the drafters have the additional responsibility of
transforming the institutions or the system itself. The temptation to
insert personal beliefs is great and must be resisted.
• Do their obligations as public servants, employees of Parliament or
legislative assemblies, override their professional obligations as
lawyers?
Duty of Loyalty

• To whom do drafters owe loyalty? To their political/government

masters or the public? Perhaps more importantly what does this
“duty” entail?
• Does a drafter have the right to refuse to draft a law he/she finds
personally immoral?
• Faced with competing ministries, whose bill does the drafter
complete first?
• Should bills be drafted in a way that by-passes certain officials
(presumably those likely to oppose it) if so requested?
Duty of loyalty

• Personal conflict of interest is used to describe the intermingling of

private interest and public duty. For example, the offer of a gift as a
reward for completing a job.
• Professional conflict of interest is defined by those rules of
professional conduct, which govern the behaviour of lawyers in their
relationship with clients. For example representing two clients whose
interests are adverse in nature.
Duty of loyalty

• Institutional conflict of interest exists because of the environment in

which the individual works. For example, in some jurisdictions this
type of conflict arises because of the dual nature of the Minister’s
role as Minister of Justice and Attorney General
Competence

• Competence refers to possessing the skills and attributes, and

exhibiting the conducts that are used to define and measure
suitability for a certain role or function.
• Drafters must translate policies in a way that solves effectively the
perceived problem and do so in unambiguous language and in a way
that ensures that these laws can be integrated into the existing
corpus of laws.
• To ensure the above, a drafter must understand existing legislation as
well as the needs of society.
Confidentiality

• The duty of confidentiality is treated as an ethical rule because it is

based on the premise that there should be full and complete
communication between the lawyer and client.
• Confidentiality applies whether the communication is oral or written,
it does not depend on the source of the information and it does not
matter if others are aware of, and share, the information.
Legislative Drafting and Good governance

• Governance is a concept that has been around for years and

is commonly used by many people. There is no consensus on
the official definition of governance because its use often
depends on the intended purpose, the people involved, and
the socio-political environment of the term.
• According to the United Nations (UN), governance refers to
the activities of all political and administrative authorities to
govern their country.
• According to International Monetary Fund (IMF), governance
is a concept in which a country is managed, including
economic, policy, and legal aspects.
• Thus, in general, governance has the meaning: the decision-
making process and the process of determining which
policies will be implemented and not implemented.
Legislative Drafting and Good Governance

• It assures that corruption is minimized;

• The views of minorities are taken into account;
• That the voices of the most vulnerable in society are heard in
decision-making.
• It is also responsive to the present and future needs of society.
8 Major Characteristics of Good Governance

• It is participatory;
• Consensus oriented;
• Accountable;
• Transparent;
• Responsive;
• Effective and efficient;
• Equitable and inclusive; and
• Respect the rule of law.
• Thank you