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L 282 Final

L 282 Final

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Published by: muma3m on May 14, 2012
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This paper aims at discussing the extent to which the Zambian Constitution influences administrative law in Zambia.

Firstly, it will commence by defining constitutional and administrative law. Secondly, the relationship between constitutional law and administrative law will be elucidated. This will be followed by expounding the extent to which the Zambian constitution influences administrative law. Thereafter, a conclusion shall be reached. Administrative law and constitutional law are branches of public law. They both govern affairs of the state. Constitutional law, in general, deals with the distribution and exercise of the functions of government, and the relations of the government organs to each other and the individual citizen.1 A constitution in the concrete sense is the document in which the most important laws of the constitution are authoritatively ordained.2 Zambia has a constitution in concrete sense. In essence, „administrative law‟ is the law concerning the exercise of authority by administrative agencies and their relationship to the legislature, courts, and the public. 3 That is to say, the powers and measures in relation to the use of these powers vested in public officers, public institutions or indeed any other framework that may perform a government function.4 Administrative law tends to focus on three aspects of administration: rule-making procedure, adjudicative procedure and judicial review. There are a number of concepts in constitutional law that have an effect on administrative law. The most important theories are those of supremacy of the constitution, separation of powers and rule of law. Firstly, with regard to supremacy of the constitution, “this constitution is the supreme law of Zambia and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”5 Therefore, administrative law will be determined by the constitutional order, principles and theories underlining the order of the Zambian constitution. The Constitution shall bind all persons in the Republic of Zambia and all Legislative, Executive and Judicial organs of the State at all levels. 6 Constitutional Supremacy implies having a Constitution that is superior to all other institutions and laws under its

A. W. Chanda, Zambian Constitutional Law: Cases and Materials, (Lusaka: University of Zambia Press, 2001), at

Page 1
2 3

Ibid, at Page 15 D. J. Donohue and W. C. Fulkerson, A practical introduction to administrative law in Michigan, The Basics, (Michigan Bar Journal, 2002), at Page 14

P. Jackson & P. Leopold. O. Hood Phillips and Jackson Constitutional and Administrative law, 8th Edition, (London: Sweet & Maxwell, 2001), at Page 9 5 The Constitution of the Republic of Zambia Chapter 1, Article 1 (3) 6 Ibid, Article 1 (4)


they cannot delegate there functions and powers to their Deputy Ministers. especially section 5(4). The Supreme Court held that Section 5(4) of the Public Order Act Cap 104 contravenes Articles 20 and 21 of the Constitution is null and void. at Page 7 8 S.14 This institution cannot enforce its findings. 14 The Commission for Investigation Act. Fourthly. Nwabueze. ( London: Hardcover. on receipt of the report of the Commission on any investigation conducted by it.O. in consultation with Cabinet at any time. “Supremacy of the Constitution demands that the court should hold void any exercise of power which does not comply with the prescribed manner and form or otherwise which is not in accordance with the constitution from which the power derives”7 In Christine Mulundika and Seven Others v the Attorney General 8 . Administrative law comes in to ensure that there is no abuse of office. take such decision in respect of the matter investigated or being investigated into by the Commission as he thinks fit.13 The President may. the President may. Farleight Dickinson University Press. Chapter 36 Section 21 (1) 2 . Article 33 (2) 12 Supra Note 5. Secondly. Thirdly. Where a Cabinet Minister delegates such powers.11 Since the cabinet ministers are appointed by the president12. Article 90 creates the Investigator-General of the Republic who shall be the chairman of the Commission for Investigation. Judgment Number 24 Of 1995 Appeal No. It is only the president who can do so. by Proclamation published in the Gazette declare war.Z. Article 46 (1) 13 Supra Note 5. this is ultra vires the constitution. Article 29 (3) 11 Supra Note 5.jurisdiction. the executive power of the Republic of Zambia shall vest in the President and shall be exercised by him either directly or through officers subordinate to him. or during the continuance of any such investigation. This constitutional provision influences administrative law.10 Administrative law therefore will ensure that the president follows the prescribed procedure for declaring war. Constitutionalism in the Emergent States. 159/95 9 Supra Note 5. powers and procedures of the Investigator-General shall be as provided by an Act of Parliament. The challenge followed on the fundamental freedoms and rights guaranteed by arts 20 and 21 of the Constitution. Article 90 (13). The functions.9 An Act of Parliament shall provide for the conditions and circumstances under which a declaration may be made. the appellants challenged the constitutionality of certain provisions of the Public Order Act Cap 104. Article 29 (1) 10 Ibid. This is a weakness on its part as it is the president who decides the 7 B. 1973).C.

no cause is beyond the competence and authority of the High Court. or the same body. Article 94 (1) 18 Supra Note 1. Page 48 19 (1994) S.16 The High Court for the Republic which shall have. in appropriate cases before it. it violates guaranteed rights. administrative law is affected by the constitution of Zambia. unlimited and original jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this Constitution or any other law. It has its origin from Montesquieu. it conflicts with some other provision of the constitution.J. the Supreme Court reversed the holding of the High Court. Harold Stone. at Page 48 Supra Note 5. 19 it was argued and it so found before the High Court that section 16 of the State Proceedings Act was unconstitutional. Separation of powers is a concept that calls for the division of the authority of government into three main organs: the legislature. It was contrary to Article 94 of the Constitution in that it limited the jurisdiction of the High Court. to declare a governmental measure either contrary to. such as those of the executive or the court. and of trying the causes of individuals. to exercise those three powers. The Supreme Court observed that as a general rule. (c. 22 (S. On appeal. 1989) 16 17 Supra Note 1.course of action. 15 C. Basia Miller. In Zambia National Holdings and United Nations Independence Party v The Attorney General. Translated and Edited by Anne Cohler. whether of the nobles or of the people. Therefore. that of enacting laws.C.17 The court may declare a governmental act unconstitutional and void because-it was not enacted or done in the prescribed manner and form. except as to the proceedings in which the Industrial Relations Court has exclusive jurisdiction under the Industrial and Labour Relations Act. it violates or usurps constitutional powers or jurisdiction of other organs of government. it violates or usurps the powers of another government in a federation.18 This was highlighted in Christine Mulundika’s case. executive and judiciary. (New York: Cambridge University Press. It can be more effective and efficient if it has its own enforcement mechanisms like in the Scandinavian countries. it is an unauthorised delegation or abdication of power to another organ or agency. were the same man. that of executing the public resolutions." 15 Judicial review is the power of the court. The Spirit of Laws. There would be an end to everything. with the effect of rendering the measure invalid and void or vindicating its validity and so putting it beyond challenge in the future.) 3 .1748). or in accordance with. the constitution or other governing law. Montesquieu.

(St. Article 44 (1) 4 . MN: West Publishing Company.A.” Nkumbula v the Attorney General26 and the case of Derrick Chitala (Secretary of the Zambia Democratic Congress) v. the rule of law inter alia.) 27 (1995) S. Dicey who was of the view that this concept included three distinct though kindred conceptions: everyone is equal before the law. the Commissioner of Prisons & the Attorney-General. An Introduction to the Study of the Law of the Constitution. at Page 49 24 Supra Note 5.21 This is a preference for decisions by judges of the regular courts rather than decisions by administrators. 92 of 1995 28 Supra Note 5. administer and execute. Dicey.22 As aforementioned. no one can be punished unless they are in clear breach of the law. The 20 21 1996/HCJ/X Unreported A. This is due to the fact that our Parliament is not a court in any sense at all and that the High Court possesses power on jurisdiction over major parliamentary actions. the President shall perform with dignity and leadership all acts necessary or expedient for. the concept of rule of law has also has an impact on administrative law. The rule of law was advanced by Professor A. 204 (C. or reasonably incidental to. be for the public welfare.C. (London: Macmillan and Company Limited.V. 8 th Edition. Judgment No.C. at Page 50 23 Ibid. 1960). 28 The functions of the presidents are too broad and general. 1914) 22 K.Z. As the Head of State. the discharge of the executive functions of Government subject to the overriding terms of this Constitution and the Laws of Zambia which he is constitutionally obliged to protect.24 It is clear to note however that public officers in Zambia enjoy wide discretionary powers. Administrative Law and Government. 23 The legislative power of the Republic of Zambia shall vest in Parliament which shall consist of the President and the National Assembly. 20 the court was of the view that the decision by the Speaker to throw the applicants into prison was null and void.In Fred Mmembe & Bright Mwape v the Speaker of the National Assembly. Article 62 25 Chapter 41 of the Laws of Zambia.R. This is because under the Inquiries Act25 section 2. 26 (1972) Z. the President “may issue a commission appointing one or more commissioners to inquire into any matter in which an inquiry would. Davis. Attorney-General27 proved that it is not easy if not at all unattainable to challenge an executive discretionary decision. there is no set of laws which are above the courts. should mean an elimination of wide discretion from governmental processes. Lastly. 14 of 1995 Appeal No. Paul.V. in the opinion of the President. It is not easy to prove malafide or bad faith decision of the president when it comes to the manner of adopting the constitution.

) 5 . the constitution of Zambia influences administrative law. A member of the National Assembly shall vacate his seat in the Assembly if he acts contrary to the code of conduct prescribed by an Act of Parliament. However.C. MP v the Attorney General & William Harrington (Intervener)32 is an incidence of equality before the Law.31 The case of Honorable Dora Siliya.president act according to what he thinks is right.33 the appellant had been a licence holder whose licence had been revoked in terms of regulations promulgated by the President in terms of the Emergency Powers Act. an order suspending the applicant from the National Assembly in violation of its own standing orders. It was held that where there was no express statutory provision to exclude the audi alteram 29 30 B. at Page 7 (1971) Z. The rule by law is where the government uses the law as an instrument to oppress the people. then.) 31 Supra Note 5. Such decisions are not easy to challenge in the courts of law. in Re Nalumino Mundia. (London: Cambridge University Press. 70 (H. On the Rule of Law. Therefore. 73 (S. The appellant had not been given a hearing before his licence was revoked. is being or is likely to be contravened in relation to him. 108. without prejudice to any other action with respect to the same matter which is lawfully available. compliance is not. In Zinka v The Attorney General.30 the petitioner applied to the High Court for an order of certiorari directed to the Chairman of the Standing Orders Committee of the National Assembly of the Republic of Zambia requiring him to remove into court. that person may apply for redress to the High Court which. Tanamaha.R. Therefore.R. The High Court held that even though this requirement [Article 54 (3)] is mandatory under this law. The tribunal and High Court case demonstrates the fact that to some degree public officers are being held accountable and therefore ensuring some levels of accountability. Article 71 (2) (b) 32 2009/HP/0601 33 (1990-1992) Z. is subject to the ordinary law and the jurisdiction of the ordinary Court. Cap. 2004).29 Every man whatever his rank or condition.C. The applicant was found to have breached Article 54 (3) of the constitution by the led Justice Dennis Chirwa tribunal which recommended to the president that the applicant ignored legal advice from the Attorney General. Article 28 states that if any person alleges that any of the provisions of Articles 11 to 26 inclusive has been. Indeed. It was held that the High Court does not have power to interfere with the exercise of the jurisdiction of the National Assembly in the conduct of its own internal proceedings. the constitution influences administrative law. it is the rule by law whenever the ruled become subjects of the rulers. for the purpose of having it quashed.

adjudication and judicial review. Word Count: 1. Constitution law is law in static form whereas administrative law is law in motion. Further. It seems to concentrate more on the executive branch of government because it carries out administrative functions. the three concepts that influence administrative law are: Supremacy of the constitution. It is evident from the foregoing that the Zambian constitution influences administrative law in Zambia. 998. Administrative law is there to ensure that there is no abuse of power by public officers and institutions. 6 . Inter alia. Administrative law involves rule making procedure.partem rule and a power was being used to limit or remove a fundamental right there was a rebuttable presumption that it was necessary to give prior notice and an opportunity to be heard. that where the relevant legislation derogated significant fundamental rights in particular circumstances the principles of natural justice would not apply where a power was properly exercised under those circumstances. separation of powers and the rule of law. Therefore. the Zambian constitution in its entirety influences administrative law.

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