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Administrative Law

Administrative Law

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Published by kasakatimulenga
legal issues in administration
legal issues in administration

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Published by: kasakatimulenga on Sep 03, 2009
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05/11/2014

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The basis of the whole subject of administrative law is the control of power withinthe lawful campus. Administrative law deals with the aspect of the problem of power.The essay aims, therefore, to discuss in relation to the statement that in ademocracy such as Zambia, administrative law is the most important vehicle for administrative justice, the salient dimensions of administrative justice andhighlight the most important rights linked to administration of justice. After this,a conclusion shall, based on the discussion, be drawn.Salient Dimensions of Administrative Justice
(i)Administrative law in General
Administrative law is a branch of law concerned with the control of power bypublic bodies. These public bodies can be ministers or public corporations.Administrative law is not concerned with private law. In the case of the
LudwigSondashi v Godfrey Miyanda
(sued in his capacity as General Secretary of MMD)
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the application, upon being fired from the Movement for MultipartyDemocracy sought an order for judicial review of the decision by the party. TheHigh Court held that the Movement for Multiparty Democracy being a club whoseactivities were private could not be a subject of public law such as an order for  judicial review under administrative law.In order to carry out the many schemes of public service and control, powerfulengines of authority have to be set in motion. Administrative law, however,comes in to provide control. Wade hence, explains that:“To prevent them from running amok there must be constant control, butpolitical and legal… The legal control is the task of the courts of law.
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(1992 – 1994) ZR 115
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This legal control, together with a few special features of the politicalcontrol, provides the subject matter of administrative law. The problemthroughout is how to keep a powerful government within legal bounds,and how at the same time to help it work efficiently.”
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The easiest, though perhaps the least satisfactory of the possible definitions isto be found by appropriating one of the three features of the traditional separationof powers. If the powers and authorities are classified, in a state, as legislative,administrative and judicial, then administrative law might be said to be the lawthat concerns administrative authorities as opposed to the others.The main question that administrative law attempts to answer is how executivepower can be controlled by law and also, so to speak colonized by legalprinciples of fair and proper procedure.
CONSTITUTIONAL - SUPREMACY (THE COURTS)
In Zambia, administrative justice is achieved, mainly because of the constitutionalsupremacy enshrined in the law. For example, the constitution of Zambia Act,stipulates in Article 1(3) that:“This constitution is the Supreme Law of Zambia and if any other law isinconsistent with this constitution that other law shall, to the extent of theconsistence, be void”In Zambia, the main agents of administrative justice are the courts. The courtsare able to declare any act of a public authority or body ultra vires if it is seenthat the said body or authority acts outside its powers. In
Fred M’membe andBright Mwape v Attorney – General
where the applicants had been arrestedby Parliament for contempt of parliament, the High Court noted and held that
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W.Y.P. Wade, Administrative Law, London: Sweet and Maxwell, 1989. P. 12
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the power used by the National Assembly was ultravires and that the onlycompetent body to arrest in Zambia where the courts of law. Further in
RoyClarke v The Attorney General
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the applicant sought judicial review of theMinister of Home Affairs decision to have him deported for writing satiricalarticles of the President, critical to the president at the time. The High Courtnoted that his deportation was ultravires the ministers powers contained in theImmigration and Deportation Act.All the above are being espoused to show that the courts can restrain excessesand the courts are independent of the executive.
The investigator General
The office of Investigator General is a very important office in the attainment of administrative justice. This office is established by the Constitution of Zambia.Article 90(1) of the Constitution of Zambia Act stipulates that:“There shall be an Investigator General of the Republic who shall beappointed by the President in consultation with the Judicial ServiceCommission and shall be the Chairman of the Commission foInvestigations.
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This office is a very important office for the control of executive power in that itinvestigates any public body or corporation. The functions and powers of theInvestigator General are spelt out in the commission for Investigations Act. TheOffice of Investigator General helps achieve administrative justice for anyaggrieved by an act of a public body or corporation in that it investigates suchan abuse of power and recommends to the President on the action to be takenagainst such body or corporation in the event that an abuse of office or power has been established.
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Chapter 1 of the Laws of Zambia
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The Constitution of Zambia Act Cap 1 of the Laws of Zambia
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