STUDENT NAME: BANDA TREMOR

STUDENT ID: LLB19217802

CONSTITUTIONAL LAW

ANSWER TO TAKE HOME TEST QUESTION

DUE DATE: 2ND APRIL, 2020

The current provisions in the constitution of Zambia do not prove existence of

separation of powers pertaining to the legislature, executive and judiciary. This is
because all organs interfere with each other in terms of serving their respective
functions.

For separation of powers to exist, the three organs of government must serve the
powers vested in them independently. This means one organ must not interfere nor
influence the business and decisions of the other, unless it is providing a check in order
to balance the other. It must also be noted that the importance of separation of powers
is to attain accountability and certain functions must not be exercised by one and the
same person. Thus, the president cannot be a member of cabinet and be in parliament
and play fundamental roles in these organs.

The democratic country of Zambia adopted a multi-party democracy in which opposition

party members are also elected in office to form government, however, majority of the
members of parliament represent the ruling party. Thus, it is understandable that most
decisions are ruled in favour of the ruling party in parliament.

The legislative organ of government serves the function of law making as mentioned in
article 62(1) of the constitution, parliament is formed when the president is in the house
and national assembly when the president is absent. However, the president is also
seen to be a member of the executive wing of government as mentioned in article 113
of the constitution. One can argue that the president being part of parliament does not
entail independence within the legislature as parliament may not be able to act as a
check and balance to the executive. The only role the president has in parliament is to
assent bills which is not a big role required of him to be included as a member. A
parliament that is independent contributes to a more accountable government and
increases the legitimacy of government action.

Article 81(4) allows the dissolving of parliament by the president if the executive cannot
effectively run the country due to the national assembly’s failure to objectively carry out
its legislative function. This section infringes the independence of the legislature by
allowing the president to manipulate the inability of parliament to objectively carry out its
legislative function. However the executive cannot police the legislative function. If there
is a deadlock, it is resolved through political means.

Separation of powers is equally questionable in the executive. This body formulates and
implements policies within the boundaries defined by law. The executive authority is
‘vested’ in the President; this emphasizes the supremacy of the president. Where
parliament does not approve of presidential appointments or measure requiring
Parliamentary approval before it takes effect, the president can nominate another
person. the president is given power to nominate cabinet ministers. This means the
President can lay out three wholly unacceptable candidates with no chance of making it
through parliament, while ensuring that another candidate, who is herself unacceptable
on an obvious standard e.g nepotism, goes through without need for ratification by
Parliament. This is an example of the emphasis on the presidency that is evident
throughout this constitution.

Lastly, in the judiciary, the authority is vested in the courts and is exercised by the
courts. However, the executive has influence in appointments of judges (article 140), in
most countries the president has to act on the recommendation of the Judicial Service
commission. However, this still entails that the president has power to appoint selected
judges into the courts and can dismiss them as well. It cannot be deemed as a
transparent procedure in appointing those that qualify to be judges as the president can
appoint those he wishes to be in office and not those that actually qualify to be judges.
Hence, the courts may not be impartial when it comes to interpreting the law. Therefore,
there is no existence of independence in the judiciary.

From the information above, one would agree that all three organs of government
interfere with each other’s operations. It can also be pointed out that the executive has
the most power to influence the legislature and judiciary through the power vested in the
president. There is no doubt that separation of powers does not exist in the Zambian
constitution.