Concerns of bias may be raised, genuinely so, as to the powers wielded by the Capital Markets Authority (CMA)to do investigations, make a determination on the same, and proceed to make a sanction on any person or body corporate that falls under their mandate and governance. However, administrative bodies often exist for different purposes and to cater for various needs. There are certain instances, such as that of CMA, where the legislature, in its wisdom, decides that in order to fully actualize a particular statute, it is necessary to have such an overlap in functions.
Be that as it may, reasonable apprehension of bias is usually a legal standard applied in seeking the disqualification of judges and administrative decision-makers from presiding over a particular matter. The test to be satisfied is usually – “what would an informed, reasonable person, viewing the matter realistically and practically and having thought the matter through conclude?”
The court in Ridge v Baldwin [1963] 2 ALL E.R. 66, was alive to the fact that the decisions of statutory or administrative bodies tend to have a more immediate and profound impact on people’s lives, or business operations, than court decisions themselves.
As such, individuals or market players who are affected by administrative decisions or decisions made by the Capital Markets Authority, ought to be given the opportunity to present their case in a manner that ticks all the dictates of natural justice. Such decisions affecting their rights, interests or privileges should be made in a fair, impartial and open process.
Natural justice has been described in the case of Wiseman v Borneman [1971] A.C. 297, as “fair play in action, the principles and procedures which in any particular situation or set of circumstances are right, just and fair”. The rules of natural justice have been traditionally split into two facets, i.e., the duty to give persons affected by a decision a reasonable opportunity to present their case; and the duty to reach an unbiased decision.
Procedural fairness has integrated into it the fundamentals of natural justice, being, that no man is to be a judge in his own cause, no man should be condemned unheard, and that justice should not only be done but seen as done. In essence, procedural fairness demands that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker.
The Authority, in the performance of its investigative duties as envisioned under Section 13B of the Act, is bound to adhere to the constitutional prescriptions according to any persons or market players affected by their actions or decisions, a process that is procedurally fair and just, and in accordance with our Constitution. Section 26(8) of the Act proceeds to guarantee the opportunity to be heard.
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Mativo in Petition No. 385 of 2016, makes the following apt conclusion
“The Capital Markets Authority, in the performance of its functions under the provisions of the Act, is required to observe and accord persons under investigations, and any person likely to be adversely affected by their decision a fair process, and in particular, adhere to the principles of natural justice, and comply with Article 50(1) and 47 of the Constitution. Further, the Authority ought to provide the person under investigation with any evidence, in advance, that may be used against them”
The Authority, as “Investigator, Prosecutor and Hangman” cannot act arbitrarily in the performance of its investigative duties, and must prioritize the principles of natural justice, and act within the confines of Articles 47 and 50(1) of the Constitution.
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