ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

MODULE LLB 121/122

CONSTITUTIONAL LAW

Tracy Muleya Mbandama

LLB, (ZAOU), LLM (UNILUS), Dip-Joun (UNZA), Dip-TM, (CHAU), PHD Candidate

First Edition 2023

©ZAOU

ISBN

Copyright 2023 (ZAOU)

 ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

MODULE No LLB 121/122

CONSTITUTIONAL LAW

Author

Tracy Muleya Mbandama

LLB, (ZAOU), LLM (UNILUS), Dip-Joun (UNZA), Dip-TM, (CHAU) PHD Candidate

First Edition 2023

ISBN

Publisher: Zambian Open University

Copyright: © 2023 Zambian Open University

All rights reserved

No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any
form or by any means, electronic, mechanical, photocopying or recording or otherwise without
prior written permission of the copy writer owner, Zambian Open University.

i
Rationale

The course provides students with a general introduction to Constitutional law and imparts an
understanding of the fundamentals of constitutional law through the study of basic constitutional
law topics which serves to develop an awareness of the sources, characteristics and classification
of State and foreign constitutions. The course evolves beyond the original goal of introducing
students to basics in constitutional law as it ventures on identifying key constitutional provisions
and be able to explain the rights included in the Zambia Bill of Rights as well as learn about the
basic statute employed to implement these rights. Further, the course presents fundamental
concepts and doctrines of Constitutional Law. The student will be able to identify the legal and
societal struggles on each side of the great constitutional doctrines outlined.

This course will be a forum for the discussion of some very heartfelt issues pertaining to key
constitutional doctrines such as; the rule of law, parliamentary sovereignty and separation of
powers. The course will examine the origins of, distribution of, and limitations upon,
government authority under the Constitution of Zambia. It will include the study of the
legislative processes, the electoral systems and the relationship between democracy and credible
elections. Attention will be directed at identifying and analyzing key legal issues and case law.

Aim

Constitutional law is designed to train the student in the skill of issue identification on both a
legal and a societal basis and equip a student with key constitutional concepts and knowledge of
the constitution and its importance in a democratic dispensation.

General outcome

To develop an understanding of Constitutional Law

Key competencies

This course is designed to enable students to:

 Demonstrate an understanding of the importance of constitutional supremacy

ii
  Outline the functions of the constitution and identify the qualities/characteristics of a
good constitution
 Demonstrate an understanding of and ability to interpret and apply key terms and
provisions of the Zambian Constitution and selected Constitutional case law.
 Identify, describe and assess basic Constitutional issues that may arise in hypothetical
situations and cultivate the ability to craft constitutional law arguments of the highest
quality by the standards of the legal profession.
 Increase the capacity to provide appropriate advice to clients whose problems involve
constitutional law issues.

ASSESSMENT

The continuous assessment will comprise the following:

1. CONTINOUS ASSESSMENT
a. First assignment- 25%
b. Second assignment- 25%
2. Final Examination- 50%

TOTAL- 100%

Recommended Reading

M rtin L vy Craig L. Jackson – (2016) Constitutional Law: Cases and Materials 2nd
Edition,Alphen aan den Rijn,Wolters Kluwer Law & Business

D vi hw rtz Lori A. Ringhand – (2017) Constitutional Law: A Context and Practice

Casebook,Durham,Carolina Academic Press

Alfred Winstone Chanda. Constitutional Law in Zambia. UNZA: Lusaka

Munyonzwe Hamalengwa (2023). Commentaries on the Laws of Zambia: Lusaka

Prescribed Readings

Parpworth N (2008). Constitutional and Administrative Law, 5th edition.

iii
Graziella Romeo (2020). The Conceptualization of Constitutional Supremacy: Global Discourse
and Legal Tradition. Cambridge: Cambridge University Press.

Domestic Legislation

Constitution Cap 1 of the Laws of Zambia

Electoral Process Act 2016
Constitutional Court Act
High Court Act Cap 27 of the Laws of Zambia
Public Order Act Cap 104 of the Laws of Zambia

International Legislation

International Covenant on Civil and Political Rights, 1966

International Covenant on Economic, Social and Cultural Rights, 1966
Universal Declaration of Human Rights, 1948

CASES
Attorney General v Clarke Appeal Judgment No 96A/2004, ILDC 1340 (ZM 200)
British Coal Corporation v R [1935] AC 500
Chrstine Mulundika and the 7 Other v Attorney General 1995 ZR
Chishimba Kambwili v Attorney General 2019/CC/009
John Banda v The People [1998] HPA 6.

Madzimbanuto v Lardner-Burke [1969] 1 AC 645.

Prebble v. TV New Zealand (1994) All E. R. 407.

Sinkamba v Doyle (1974) Z.R. 1 (C.A)

Simataa and Simataa v Attorney General [1986/HP/488].
Thomas Mumba v Attorney General (1984) ZR 38 (HC)

Zambia Democratic Congress v Attorney-General SCZ Judgment No. 37 of 1999.

iv
 TABLE OF CONTENTS

UNIT ONE: INTRODUCTION TO CONSTITUTIONAL LAW……………………………......1

UNIT TWO: THE CONSTITUTION OF ZAMBIA- SALIENT FEATURES………… ………19

UNIT THREE; THE BILL OF RIGHT……………………………………………………….....26

UNIT FOUR: THE SUPREMACY OF THE CONSTITUTION……………………………..…32

UNIT FIVE: MODES OF ADOPTION OF A CONSTITUTION………………………… .…39

UNIT SIX: STAGES AND PHASES OF CONSTITUTIONAL MAKING PROCESS IN

ZAMBIA…………………………………….………………………………………………......49

UNIT SEVEN: THE RULE OF LAW…………………………………………………………58

UNIT FOUR: THE DOCTRINE OF SEPARATION OF POWERS………………………… .63

UNIT NINE: PARLIAMENTARY SOVEREIGNTY AND PARLIAMENTARY

PRIVILEGES……………………………………………………………………………… ……73

UNIT TEN: THE LEGISLATIVE PROCESS……………………………...……………… …83

UNIT ELEVEN: UNICAMERALISM AND BICAMERALISM………………………...……94

UNIT TWELVE: CENTRAL AND LOCAL GOVERNME…………………………… …… 100

UNIT THIRTEEN: RESPONSIBLE GOVERNMENT………………………………….…… 110

UNIT FOURTEEN: ELECTORAL SYSTEMS…………………………………… ………… 117

UNIT FIFTEEN: ELECTORAL DISPUTES IN ZAMBIA……………………………… …..119

v
 UNIT ONE

INTRODUCTION TO CONSTITUTIONAL LAW

At the end of unit one, a student should be able to;

 Have an understanding of what constitutional law is

 Understand the differences between constitutional and administrative law and the
relationship between each other
 Understand the sources of constitutional law
 Have knowledge of how to undertake legal research based on the sources of law
 Grasp the application and extent of application of customary law as a source of
law/constitution law
 Define a constitution and explain its significance
 Explain sources of constitutional law
 Understand the classifications and characteristics of constitutions and
 Understand the qualities of a good constitution
 Apply theory to practice

1.1. Introduction

Constitutional law developed several hundred years ago. However, the body of laws and
practices that comprise constitutional law change over time in relation to a range of factors,
including public perceptions, political parties and evolved interpretations of justice or the laws
themselves. The government and its citizens operate under various types of policies, legal
practices and agencies, including constitutional law. Constitutional law helps protect the rights of
individuals and maintain a balance in power between various government branches.
Understanding the legislation and procedures related to constitutional law may assist both
individuals and companies in protecting or defending their legal rights.

1
1.2. Constitutional Law

Constitutional law is the body of law that evolves from a constitution, setting out the
fundamental principles according to which a state is governed and defining the relationship
between the various branches of government within the state. Constitutional law can vary across
nations. According to Alder1, it generally refers to three primary concepts:

 The structure of and roles within the executive, legislature and judiciary government
branches
 The basic rights of all citizens
 The power dynamics between federal or central government, state, city and municipality
government agencies.

Constitutional law is not same as a constitution. A constitution is a written document that

outlines the structure, balances of power and protected human rights. Constitutional law,
meanwhile, refers to the body of practices, policies and constitutional interpretations that guide
operations within the executive, judicial and legislative branches.

Most constitutional law relates to the protection, interpretation and application of the Bill of
Rights. The Bill of Rights offers citizens and all individuals a range of legal protections,
including the right to free speech and the right to a fair trial etc.

The highest type of law is constitutional law. You may sometimes hear constitutional law
referred to as the supreme law of the nation. Local government or councils can develop their own
laws known as by-laws, but these laws must continue to uphold rather than contradict all policies
and procedures related to constitutional law.

1.3. Constitutional Law Distinguished from Administrative law

As already stated above, constitutional law refers to laws that are related to the rights and
responsibilities of the different branches of government. They describe how laws are created and

1
Alder, J (2005) Constitutional and Administrative Law, 5th Edition, Palgrave Macmillan, London

2
interpreted, as well as how the supreme leader of the executive branch of a government should
act. This is the basic law upon which all other laws of a state are created. Examples of
constitutional law include:

 The Zambian Constitution

 The Bill of Rights

Administrative law, on the other hand, describes the ways in which bureaucratic agencies can
fulfill the operations and responsibilities of their branches2. Some experts consider administrative
law to be a division of constitutional law because bureaucratic branches act under the delegation
of the main branches of a government. Thus, the administrative law is created to help
bureaucracies function within the parameters of the state government as defined by constitutional
law.

There is one main difference between constitutional law and administrative law:

 Constitutional law explains the rights and responsibilities of different branches of

government.
 Administrative law outlines how bureaucratic agencies should operate to fulfill these
responsibilities.

Examples of administrative law include:

 The Food and Drug Act

 The Environmental Management Act
 Public Health Act
 The Rent Act
 The Lands Act
 The Mines and Minerals Development Act

Relationship; Constitutional and administrative law are related in that they both govern the
actions of the central government. Constitutional law governs the highest parts of government:

2
Ibid.

3
the executive, judicial, and legislative branches. Administrative law governs the lower agencies
in government that report to these main branches, especially the executive branch.

Both constitutional and administrative law form what is known as public law (they are both
branches of public law). Public law regulates the relationship between the state and its organs,
and private citizens. Public law is a shorter way of describing constitutional and administrative
law. Constitutional law is the law that provides a state framework and establishes its principle
institutions and the interrelationships between these institutions. Administrative law confers the
legal powers and legal duties of public bodies and authorities3.

Public law affects several parts of our day to day lives; this includes, for example, immigration,
health, environment and education. In its most basic terms, the role of public law is to regulate
th r l tionship b tw n th st t n in ivi u ls In ition publi l w r f rs to th st t ‘s
special powers to run the country; meaning its power to enforce, apply, implement, make, repeal
and amend the law. This area of law is also often referred to as constitutional (the law which
founds the state's key institutions and provides its framework) and administrative (the law which
provides individual public authorities and bodies with their legal duties and power) law.

As there exists an unequal relationship of power between the state and individuals, public law is
especially important because it provides checks and balances. This means that this area of law
ensures that the government does not abuse its power over individuals and that they use their
power in a fair and proper manner4.

1.4. Sources of Constitutional Law

L t‘s look at some of the sources of constitutional law:

 A State constitution and constitutions of other countries

3 th
Parpworth N (2008). Constitutional and Administrative Law, 5 edition.
4
In Administrative Law, you will learn about the concept of checks and balances and how it is done through judicial
review and other mechanisms in order to prevent abuse of authority and protect the rights of individuals from
arbitrary decisions.

4
The Zambian constitution as a written document can be referred to as a source of constitutional
law. Fr m rs of ountry‘s onstitution m y stu y th onstitution of oth r ountri s n pi k
up best practices which are then incorporated into the new constitution and forms part of
constitutional law in that particular country. It is believed that parts of the 1960 Constitution of
Zambia were derived from the content of the American, French and British Constitutions5.

 Customs

The customs and practices of the people can also be the source of constitutional law. These are
the portions of the constitution that have not been written down but which over the years have
been accepted as practices under the constitution. For example, the traditions and culture of
Zambian people is the source of law.

 Previous constitutions

Also, previous constitutions serve as the source of constitutional law. Additionally, in coming
out with a new constitution after a previous one has failed or after a long period of military rule,
the earlier constitution is studied and aspects that are relevant are incorporated into the new one.

 Decisions of constituent assembly

Another source of a constitutional law is the decision of a Constituent Assembly that has been
put together to draft a constitution for a country. Proposals are forwarded to the constituent
assembly from various quarters of the country and these proposals are thoroughly discussed and
decisions arrived at as to what to include and what not to include in the proposed constitution.

 Judicial precedents

These are rulings of the courts that have found their ways into the constitution and forms part of
constitutional law. In constitutional cases, especially, whenever a judiciary rules on a matter

5
Ryan, Mark. Unlocking Constitutional & Administrative law (2nd ed.). London: Hodder Education, 2010.

5
before it, that then becomes the new law. That decision is used as the bases of another decision in
the future, especially where the cases are similar.

 Opinions of eminent writers

One of the sources of constitutional law is the writings of great political and constitutional
thinkers. Concepts such as Separation of Powers, Checks and Balances, Rule of Law,
socialism, capitalism etc, were proposed by great writers on politics such as John Locke,
Montesquieu and others. The writings of Karl Marx, for example, influenced the constitution
of the former Union of Soviet Socialist Republic.

 Legislation

This part includes primary legislation/Acts of Parliament and delegated legislation i.e. statutory
instruments made by ministers and other authorities or local authorities who are empowered to
do so by a parent Act. This forms a source of constitutional law because it intends to be an
elaboration of constitutional rules and principles. A Constitution is not a comprehensive source
of law in the land but provides broad guidelines upon which other pieces of legislation are
founded to address the little details upon which life of a nation depends.

1.5. What is a Constitution?

Generally, each and every organization or institution has a constitution be it a big or small
company or a Non-Governmental Organization (NGO). Therefore, in general terms, we can say
a constitution is a written instrument embodying the rules of a political or social organization.
For example, political parties such as Movement for Multiparty Democracy (MMD), Patriotic
Front (PF), United Independence Party (UNIP), and United Party for National Development
(UPND) have constitutions which guide their activities. Further, some social organizations
such as non-governmental organizations (NGOs), companies, clubs, associations, unions, etc
all have written constitutions which guide their activities.

Now that you have an idea of the nature of a constitution and that most of the organizations
have one, let us now define what a constitution is. You have heard and you know that Zambia

6
has a constitution. Probably you even know what it is or you have seen it before. What then is
a constitution?

Before you read the answer highlighted below, try to pause, think, imagine and answer by
yours lf……(2 minut s)……Ok y……………… It is hop th t your nsw r w s orr t L t
us see.

Bl k‘s L w Di tion ry fin s Constitution s;

―…the organic and fundamental law of a nation or state, which may be written or
unwritten, establishing the character and conception of its government, laying the basic
principles to which its internal life is to be conformed, organizing the government, and
regulating, distributing, and limiting the functions of its different departments, and
prescribing the extent and manner of the exercise of sovereign powers…‖

Further, we can define a Constitution in the following ways;

 The basic principles and laws of a nation, state, or social group that determine the
powers and duties of the government and guarantee certain rights to the people in it
 A set of rules and principles specifying how a country should be governed, how power is
distributed and controlled,
 The body of doctrines and practices that form the organizing principle of a state and
 A document that set out how a country should be run.

In other words a Constitution can be said to be a collection of rules and principles which set out
how a state will be governed. It forms the framework for all decisions made by every
government official and, particularly the legislature (the law making body), executive
(President/Prime Minister/ministers) and the courts. Professor Chanda also adds that a
constitution sets out the rights of everyone which must be respected by the state and therefore
establishes the relationship between the government and the people6.

6
Prof. Alfred Winstone Chanda. Constitutional Law in Zambia. UNZA: Lusaka

7
 From the definitions above, it is clear that a constitution is something that sets the limits
and boundaries of the governments' interaction and powers. The Constitution works as a means
by which the government can impose rules and regulations on the citizen of the country.

Obviously, you still have a question in your mind on whether this document called the
constitution important, so let's discuss further on the topic.

1.6. Importance of a Constitution

So, as now we have enough knowledge and understanding about the term constitution and its
aspects, it's time for us to learn what the importance of a constitution for a country is. A country
is run by the government, judicial bodies, its people, and most importantly by the Constitution.
The constitution serves as the backbone of the country.

 The constitution forms the basic structure of any government

The constitution of any country is important because of the fact that it lays down all the legal and
cultural aspects under which its people and the governmental bodies will be governed and that
too when there are foreign interactions in the personal affairs every now and then by
international organizations. The executive, the legislature and the judiciary are the main organs
of the government that the constitution establishes. The three organs of the government are the
source of stability of any country, and without them, the only thing that will rise is terror and
corruption among the masses.

 Governs the power distribution:

The Constitution defines the powers of each organ and let everyone related to a country know
about the power and governmental and legal body has. It demarcates the responsibilities of each
of the parties whether it is a governmental institution or the masses of the nation. The
Constitution helps to regulate the relationship between the government and the people in such a
manner that no one part can cross over the powers of the other in any way possible.

8
  Apex body:
A Constitution is superior to all the laws of the country which means any law or provision that is
circulated in the nation is passed down by the constitution itself. Every law enacted by the
government has to be in conformity with the Constitution and this means that no person or no
legal body or Act of parliament will be able to go against the provisions of the Constitution.

 Goals of a Country:
The Constitution lays down the national goals of any country, by nation goals we mean to say
that any aspiring objective that a country has. As every country has some point to reach which is
planned, therefore, the constitution will help to reach goals such as, Democracy, secularism,
Socialism, and National Integration.

 Basic rights:
The constitution of a country guarantees some rights and provision for any individual or group of
people on behalf of which they can ensure their well-being and dignity. It helps the people of the
country to avail of all the basic rights which they are deemed for. Some of the most basic rights
that are protected by the Constitution are right to life, right to freedom, right to property and the
right to participate freely in the democratic system.

 Power transfer at the time of national emergency:

One of the things that make the Constitution a really important document for a country is the fact
that it controls the transfer of power at the time of national emergencies. By national
emergencies, we mean a disaster that can wipe out some part of the nation or can damage any
part of the nation in a very severe manner, civil war breakdown, etc.

 Power Limiting:

The constitution describes how the state may be run and specifies limits the power of each office
holder may have7. Constitutional republics usually have a separation of powers. The separation
of powers means that no single officeholder gets unlimited power. People who support
constitutional governance argues that separation of powers are meant to be a safeguard against

7 th
Parpworth N (2008). Constitutional and Administrative Law, 5 edition.

9
tyranny. No office holder can get to a position of absolute power. However, some have argued
that a constitution can be written in such a way that it lets tyranny arise, and that a constitution is
therefore not a fail proof safeguard against tyranny8.

 Aspirations of a nation:

Further, a Constitution like that of Zambia for example, contains an inspiring Preamble reflecting
the hopes and aspirations of the Zambian People, a chapter on Directive Principles of State
Policy, indicating the manner in which the people's objectives can be attained by legislative
action, with due respect for the fundamental rights of the citizens, the enforcement of which
should only be suspended under compelling necessities9. The preamble in itself is a reflection of
the status of the constitution which shows how cardinal it is compared to other laws.

1.7. Classification of Constitutions

Constitutions can be categorized into many forms used to illustrate the key elements of the
constitution. The following are some of the most notable categories of constitutions;

 Written and Unwritten Constitution

A written or codified constitution is one that is contained in a single document, which is the
single source of constitutional law in a state. Most states in the world have codified
constitutions10. States that have codified constitutions normally give the constitution supremacy
over ordinary statute law. That is, if there is any conflict between a legal statute and the codified
constitution, all or part of the statute can be declared ultra vires by a court, and struck down as
unconstitutional. In addition, exceptional procedures are often required to amend a written
constitution. These procedures may include: convocation of a special constituent assembly or
constitutional convention, requiring a supermajority of legislators' votes in parliament, the
consent of regional legislatures, a referendum process, and/or other procedures that make
amending a constitution more difficult than passing a simple law.

8
Ibid.
9
Constitution of Zambia (Amendment) Act, 2016, Preamble.
10
Ryan, Mark. Unlocking Constitutional & Administrative law (2nd ed.). London: Hodder Education, 2010.

10
Zambia has a written constitution just like many other countries in Africa and the world at large.

An un-codified constitution is one that is not contained in a single document,

consisting of several different sources, which may be written or unwritten. An example of a
country with unwritten constitution is the United Kingdom. Un-codified constitutions are the
product of an "evolution" of laws and conventions, precedents, customs, royal prerogatives,
traditions etc11.

Written and unwritten constitutions have both advantages and disadvantages. The advantages of
a written constitution are that; it is easily consulted to, easy to understand, cannot be easily
tempered with and reduces clash in terms of power and governmental authority. The
disadvantages of a written constitution are; it may be difficult to amend, may encourage frequent
litigation and is not flexible.

Unwritten constitution has an advantage of flexibility because it is easy to amend however; its
weakness is that it may be difficult to understand since it is usually made up of customs and
traditions. Further, it is not easily accessible.

 Unitary and Federal Constitution

This is a constitution which provides for all legal sovereignty to be contained in a single place –
which is the central government. For example, Zambia n Brit in‘s onstitution is unit ry Just
like Zambia the UK has no states, so whilst Central government can choose to give out powers to
local councils it can take those powers back at any time as they are not guaranteed by the
constitution.

A federal constitution is a document that is drafted and ratified for the purpose of stating as
precisely as possible the relationship of the federal government to the governed -- in effect, the
people -- and the relationship of the federal government to the individual political entities (the
States) that collectively comprise the nation. An example of a country with a federal constitution
is USA and Nigeria. A federal constitution enjoys the legitimacy of the governed, and spells out

11
Ibid.

11
the rights of the governed relative to the government the document is establishing12. A country
may have a national constitution or a combination of federal and state constitutions depending on
the system of government. In a federal government, a State constitution will lays down
government structure, political processes, and limitations on the use of power by a particular
State13.

In countries with a federal system of governance such as the USA, the State constitutions and the
federal Constitution are totally different but coordinate documents which, together, provide the
total framework for government within the federal government14. As such, neither can stand
alone.

In order to understand clearly what a federal constitution is, United States of America (USA) will
be used as an example. The federal US constitution provides for a single strong chief executive
and a bicameral legislature in which the states are represented equally with a combination of
self-rule and shared-rule15. State constitutions, in contrast, are based on different understandings
and philosophy of government which are peculiar to a particular state and may divide executive
authority among several statewide elected officials and provide for the election of judges16.

The fact that a federal constitution unlike a state constitution in the U.S.A. sets up a system of
federalism within the USA implies that the national government and the states each have their
own powers that are specified by the constitution. In such a system, neither level of government
has the ability to infringe on the rights of the other level of government17. In ratifying the U.S.
Constitution, states in principle cease to be sovereign governments in their own right as they
delegated certain of their powers to the federal government and transferred a certain degree of
sovereignty. However, they reserve all residual powers to themselves and to the people18.

12
M. Ndulo, (2003) “Judicial Reform, Constitutionalism and the Rule of Law in Zambia: From a Justice System to a
Just System,” Zambia Social Science Journal: Vol. 2: No. 1,
13
D.F. Woodward ‘Government and Politics’- Vol. 1- Federal Systems: Encyclopedia of Life Support Systems, p 5
14
Ellis Katz and David Skover et al (1989). State Constitutions in the Federal System: Selected Issues and
Opportunities for State Initiatives. Advisory Commission on Intergovernmental Relations, A-113, July 1989, p 1
15
D.F. Woodward ‘Government and Politics’- Vol. 1- Federal Systems: Encyclopedia of Life Support Systems, p 3
16
Ellis Katz and David Skover et al (1989), p 1.
17
Ibid.
18
Ibid.

12
The Federal Constitution of the United States, by and large, delegates authority to the national
government and the national government has only those powers delegated to it by the federal
Constitution19 which allows states and their citizens to retain all powers not delegated to the
national government or prohibited specifically to them. This means that state constitutions are
more likely to contain limits on governmental authority than is the case with the national or
federal Constitution20.

Unlike a federal constitution which is the supreme law of the entire country, a state constitution
is the supreme law of that state. State constitutions establish certain organs of government for
the State, vest these organs with their powers, and deny certain other powers21. The fact is that
every state constitution reflects the diverse elements of its constituency, representing a
microcosm of its people, traditions and political cultures. Ellis Katz and David Skover indicate
that the areas of public policy reserved to the states are controlled not by the U.S. Constitution
but by the constitutions of the 50 individual states22. This creates a strong relationship between
USA federal and state constitution in that the federal Constitution does not replace state
constitutions; instead, it supplements those constitutions by providing for constitutional
governance nation-wide on matters of general public interest and, in so doing, protects the states
as co-sovereign constitutional polities and guarantees each state a republican form of
government23.

 Republican and Monarchical Constitution

A republican constitution is one which provides for a state where the chief executive/president
and representatives/members of parliament are democratically elected by the people, and the
rules are set down in a written constitution. The head of state and other representatives are
elected but they do not have uncontrolled power. What they may do is written in the constitution.
If there is dispute about what the constitution means, this is decided by the judiciary that is
independent from the representatives. The republican constitution describes how the state may be
19
Ellis Katz and David Skover et al (1989), p 8.
20
Elazar D.J. (1995). Federalism, in S.M. LIPSET (ed), The Encyclopedia of Democracy. Vol. 2, pp 333-718.
21
https://www.law.cornell.edu/edu/constitutional/tenthamendment. Accessed on 30th July, 2021.
22
Ibid.
23
W.F. Dodd (1915). The Function of a State Constitution: Political Science Quarterly, Vol. 30, No. 2: The Academy
of Political Science, pp 201-221.

13
run and limits the power of each officeholder. Constitutional republics usually have a separation
of powers. The separation of powers means that no single officeholder gets unlimited power24.

Monarchical constitution provides for a monarch system of governance. Constitutional

monarchy is a system of government in which a monarch shares power with a constitutionally
organized government. The monarch may be the de facto head of state or a purely ceremonial
leader. The constitution allocates th r st of th gov rnm nt‘s pow r to th l gisl tur n
judiciary. Britain is a prominent example a constitutional monarch. Other constitutional
monarchies include Belgium, Spain, Sweden, Eswatini and Norway. The monarchical
constitution provides for the specific title of the head of state. The head of state in a monarch for
instance, is usually a King or queen a position which is typically filled by the president in a
republican constitution. The head of state in a monarch may hold significant constitutional power
or exert only the ceremonial authority associated with his or her title. For example, King Charles
II of England, a modern constitutional monarch, performs an important but mainly symbolic
function in the British political system. He opens each new session of parliament, dissolves it
before a general election, and represents the country abroad.

The head of state (monarch or president) is distinct from the head of government, who is the
prime minister. In other countries, such as Zambia, the USA, Uganda, Zimbabwe and
Philippines, the person who is the head of state is also the head of government and thus retains
the duties and prerogatives associated with both titles.

 Political and legal constitution

A political constitution is a constitution where the legislature is the main check upon executive
power. In many countries both political and legal checks will be used to control the government.
A legal constitution is a constitution where the judiciary forms the greatest check upon the use of
executive power. A legal constitution can be contrasted with a political constitution where
political accountability is the greatest method of controlling government25.

24
M. Ndulo, (2003) “Judicial Reform, Constitutionalism and the Rule of Law in Zambia: From a Justice System to a
Just System,” Zambia Social Science Journal: Vol. 2: No. 1.
25
Ryan, Mark. Unlocking Constitutional & Administrative law (2nd ed.). London: Hodder Education, 2010.

14
1.8. Features of a good constitution

A good constitution should have the following features:

 clarity and definiteness,

 Brevity,
 Comprehensiveness,
 declaration of rights and
 Independence of judiciary and separation of powers.

Further, a good constitution should have the following qualities:

 The language used must be simple, clear, and unambiguous,

 It must be systematically written,
 Should have the ability to change and develop according to the changes in the
environment and the needs of the people. A good constitution must be flexible to some
extent, and must always adapt to the social, political, economic, technological and other
changes that are inevitable in the life of a country for its development and process,
 Should be neither unduly rigid nor unduly flexible,
 Must provide for the fundamental rights and freedoms of the people,
 Should clearly define the organization, powers, functions, and interrelations of the
government and its organs,
 Must provide for the organization of a representative, responsible, limited, and
accountable government, and
 Must clearly reflect the sovereignty of the people/must be supreme.

1.9. Characteristics of Constitutions

There are broadly two characteristics of a constitution. A constitution is either flexible or rigid.

 Flexible constitution

A flexible constitution is a constitution which can easily be amended or changed without a

cumbersome procedure. A flexible constitution may be amended just like any statute with a

15
simple majority of votes of the members of the parliament. A flexible constitution may be an
unwritten constitution, such as, the constitution of Britain and New Zealand. However, most
times a flexible constitution is written and it is usually in the form of a unitary constitution.

o Advantages of a flexible constitution

A flexible constitution is usually easy to amend. It is unlike a rigid constitution. The procedure
for amending a flexible constitution is not cumbersome, long expensive, time or energy
consuming. This is why it is called a flexible constitution since a flexible constitution is very
easy to amend; the constitution actually allows quick action to be taken in the interest of the
nation in time of emergency. This is one of the major advantages of a flexible constitution you
should know.

A flexible constitution is easily adaptable to meet the changing social, economic and political
needs and developments of a country. This time of constitution is good for a small country,
kindred people or a homogeneous population.

o Disadvantages of a flexible constitution

Due to the ease of amendment, a flexible constitution may be amended hastily and unwisely for a
selfish or sectional purpose. This may encourage the rise of dictatorship, as a person, or a cabal
with dictatorial propensity may amend it to advance such desires. A flexible construction does
not ensure political stability as a ruler, cabal or majority can amend the constitution to favor its
interest. This is one of the major criticisms of a flexible constitution.

Further, a flexible constitution by its nature does not protect the interest of minority,
disadvantaged or despised people. It does not allay the fear of ethnic domination of the minority
by the majority people or religion in a multi-ethnic country.

 Rigid constitution

The second characteristic of constitution is rigidity. A rigid constitution is a constitution which

has a cumbersome or long amendment procedure. The procedure for amending a rigid

16
constitution is different from the procedure for enacting and amending the ordinary laws of the
land. The enactment or amendment of an ordinary law is usually easy. However, the procedure
for amending a rigid constitution may include an absolute majority vote in parliament.

o Advantages of a rigid constitution

Political powers are expressly stated in a rigid constitution because it is usually a written
constitution, spelling out the powers and duties of the arms of government and the rights and
duties of the constituent parts of the country and the individuals. A rigid constitution allows for
careful consideration before any amendment is made to the constitution; this is the major
advantage of a written constitution. It helps to ensure that amendment that is made to the
constitution will be duly deliberated before it is made.

A rigid constitution where every arm of government is functioning maximally with checks and
balances and not at the pleasure of executive, does not encourage the emergence of a dictator,
because an individual, or cabal with dictatorial propensity cannot easily hoodwinked the
legislature which represents the people.

 Stability in government:
It ensure political stability of the country because, no section can single handedly amend the
constitution to its own favor.

 Disadvantages of a rigid constitution

It is difficult to amend: The procedure for amending or changing a rigid constitution is

cumbersome and long. It is expensive, time and energy consuming for various legislature to
amend the provision in question, or ratify the amendment and conduct a referendum for the
people to affirm or approve the amendment under consideration. A rigid constitution does not
easily meet the dynamic social, economic and political needs and development of people
especially where it does not have an active, visionary and progressive judiciary that will liberally

17
interpret the constitution to accommodate and meet the constantly changing needs of the country
and its people.

Additionally, the cumbersome procedure of a rigid constitution and the unwillingness of the
majority or other sections of the country to join in the effort to amend the constitution may pose
a challenge to enact a new constitution that reflects the changing political, economical and social
needs of the people.

1.9.1. Conclusion

This unit has explained what constitutional law is all about. A constitution was defined, sources
of constitutional law explained as well as characteristic and classification of constitutions. It has
been seen that a constitution is an important document in any given country as it dictates how a
nation should be governed and provides for the rights of citizens. A good constitution should be
clear and easy to understand and it should also address all the needs of people.

1.9.2. END OF UNIT ONE REVISION EXERCISE

2. What do you think would happen if Zambia never had a constitution?
3. In your own words, define and describe what a constitution is?
4. Discuss the classifications and characteristics of constitutions.
5. Explain the differences between administrative law and constitutional law

18
 UNIT TWO

THE CONSTITUTION OF ZAMBIA- SALIENT FEATURES

2.1. Learning Outcomes

At the end of this unit, a student should be able to;

 Understand fully the salient features of the Zambian Constitution

 Apply theory to practice

2.2. Introduction

Typically, the Zambian constitution creates a national government and outlines the structure of
the government and typically establishes a bill of rights which protects various individual
liberties and fundamental freedoms. Further it creates the judiciary, legislature and the executive
organs of the state. It also provides general governmental framework for what each branch is
supposed to do and how it should go about doing it. Additionally, many other provisions may be
included such as values and principles upon which a state may be governed. Of much
importance is that the Constitution of Zambia creates the principal organs of government-
Legislature, Executive and Judiciary. There are also several other important issues that the
constitution addresses as shall be seen in this unit as discussed below.

 The Legislature

One of the salient features of the Zambian Constitution is provision for legislature. The term
"legislature" means a body of elected representatives that makes laws. The prime function of
legislatures, therefore, is to formulate, debate, and pass legislation which is needed for the
government and the country to function. The legislature also provides a forum in which the
public can participate in issues and watch over the executive arm of government 26. The

26
Kaaree Strom (1997). Rules, reasons and routines: Legislative roles in parliamentary democracies, The Journal of
Legislative Studies, 3:1, p 156.

19
Legislative arm of government is responsible for making laws, repeals, amends and providing
other oversight roles such as scrutinizing government programmes and approving government
financial estimates27 (budget). For example, the legislative power of the Republic of Zambia is
held by the National Assembly which consists of 156 directly elected members and not more
than eight (8) members nominated by the President. It is headed by the speaker28.

The legislature is responsible for the following:

 Making laws;
 scrutinize government policies and programmes;
 scrutinize government expenditure plans by making inputs into the national budget, to
approve and monitor the national budget;
 looking closely at the actions of the executive and checking its powers so that the
government is responsible and accountable. It does this through: Ratifying appointments
made by the President of certain constitutional office holders, for example, the Chief
Justice, Attorney General or the chairpersons of various constitutional office bearers.

The legislature is made up of representatives of which all, or a majority, are elected by the
people for specified lengths of time. Apart from being responsible for passing laws, the
legislature also holds the executive to account by debating issues of the day and representing the
people. Further, a state constitution may specifically provide for the powers and extent of such
powers to be exercised by the legislature. For example, Article 63 of the Constitution of Zambia
vests the legislative power of the Republic of Zambia in Parliament which consists of the
President and the National Assembly29. The power is exercised through Acts of Parliament.

Subject to the provisions of the constitution, the legislative power of Parliament is exercised by
Bills (Proposed laws) passed by the National Assembly and assented to by the President.
Additionally, the constitution of Zambia empowers the President of the Republic of Zambia to
initiate legislation for submission to and consideration by the National Assembly30. But the
constitution is silent on whether Members of the National Assembly can initiate their own Bills.

27
Ibid.
28
Article 62, Constitution of Zambia.
29
Ibid section 63.
30
See article 44 (3) (b) of the Constitution of Zambia.

20
In practice, Members of the National Assembly are at liberty to initiate their own Bills for
submission to and consideration by the National Assembly. However, certain Bills with financial
implications may only be introduced on the recommendation of the President31.

 The Executive

The Constitution provides for an executive branch. The Executive is the branch of government
that is responsible for the daily administration of enforcing the laws, formulating and
implementing policies in the country. The Executive branch is headed by the Republican
President, and includes the cabinet, government line ministries and public service departments32.

Some of the functions of the Executive include;

 Enforcing the law that is made by parliament through the various law enforcement
agencies;
 formulating and implementing government policies and programmes through various line
ministries and other spending agencies;
 Provide services such as health, education, state security; and
 Carry out delegated legislative functions such as issuing of Statutory Instruments33
among others.

Further, the responsibility of the Executive is to run the country and to make policy in the best
interests of its citizens and in terms of the Constitution. They are empowered to implement
legislation, develop and implement policy, direct and co-ordinate the work of the government
departments, prepare and initiate legislation and perform other functions as called for by the
Constitution or legislation. The Executives cannot pass laws, however, but may propose to the
Legislature new laws and changes to existing laws34.

The executive plans and promotes government policy and is responsible for putting the law into
action. It also plays a role in proposing new legislation and supervising state bodies such as the
civil service and the military. The head of the executive may have further specific powers

31
See Article 78(1) of the Constitution.
32
See Part VII of the Constitution of Zambia.
33
Ibid.
34
John Robert Brook (1956). Judicial and executive functions of the legislature in New York, 25 Fordhalm L. Rev. P
275. Available at: https://ir.lawnet.fordhalm.edu/flr/vol25/iss2/4.

21
including the power to appoint members of the executive and the power to refuse or delay
legislation, enter into international treaties and the power to make war or declare peace.

The constitution will determine who will be part of the executive and how they will be chosen. It
sets out the powers of the executive including those of the head of the executive (president). In
the Zambian constitution, the head of state has a great deal of powers, unlike in other
constitutions such as that of the UK where the head of state is more in the nature of the
representative of the people, and the main executive power is wielded by a prime minister. The
constitution also sets out how the executive is accountable for the exercise of power to the
legislature, the courts and the people.

 Judiciary

The Judiciary in Zambia established under Part VIII of the Republican Constitution is the arm of
government that is responsible for interpreting the laws made by the legislature. It has the power
to adjudicate over legal matters and decide on legal disputes through courts. The Judiciary is
created by the Constitution and in many countries like Zambia is headed by the Chief Justice.
For example in Zambia, the Supreme Court and the Constitutional Court which ranks at par are
the highest courts in Zambia followed by the court of appeal; below it are the high court,
magistrate's court, and local courts. A separate Constitutional court which ranks at par with the
Supreme Court was established in 201635.

Some of the functions of the Judiciary include;

 Interpreting the laws;

 adjudicating over legal matters;
 deciding on legal disputes;

The courts administer justice –between two private persons or institutions, or between a person
and the state36. It is therefore of vital importance that judges are impartial and independent from
the government or other interests. Under the Zambian constitution for example, the judicial
authority as already explained is vested in the courts, which are independent and subject to the
35
Article 120, Constitution of Zambia 2016.
36
Section 118 of the Constitution of Zambia.

22
laws of the Constitution37. To ensure independence, judges must be appointed on the basis of
merit rather than on the basis of their personal or political connections. For the same reason, the
constitution must also set out strict guidelines as to when a judge can be removed.

Further, other than creating the Judiciary, the constitution of Zambia sets out conditions for
choosing judges and their independence from the other branches of government (the legislature
and the executive) as well as the kinds and levels of courts. The role and method of appointment
of the government legal advisor (Attorney General) and public prosecutors will also normally
also be provided for in the constitution38.

 Provisions for Elections

The constitution of Zambia sets out requirements for elections. These may include which voting
system is to be used, regulations for political parties, who may stand for election and regulations
regarding how elections are to be carried out fairly and honestly39. For example, the constitution
may make a provision that if a president dies in office, a by-election is held to elect a president to
serve the remainder of the five or four-year term or a provision that a running mate assumes the
vacant office etc. In case of Zambia, the constitution provides for a running mate, who would
serve the remainder of the term without the need for a by-election in the instance of the death of
an incumbent40.

 Establishment of other Public Bodies, the Economy and Distribution of Resources

Section 10 of the Constitution of Zambia provides for the need to create an environment for
investment, employment etc41. Additionally, the constitution of Zambia provides for the creation
of additional bodies such as a central bank, and bodies to support democracy, for example
Human Rights Commission or Electoral Commission which oversees the conduct of electoral
process in a democracy. It also determines how natural resources and other wealth are to be
allocated between levels of government across the country.

37
Article 120, Constitution of Zambia, 2016.
38
Read article 140 of the Constitution in order to understand how Judges are appointed in Zambia.
39
See Part V of the Constitution of Zambia.
40
Ibid, art 110.
41
Cap 1 of the Laws of Zambia.

23
  Control of the Armed Forces/Police and Emergency powers

The constitution of Zambia sets out the duties of the military and police as well as provisions for
their supervision, control and accountability in a state. In addition, the constitution of Zambia
addresses issues such as; who can declare an emergency, under what circumstances, and who is
granted what powers during an emergency. In Zambia, the president has powers to declare that a
state of emergency exists with resulting limitations on certain rights and freedoms42.

 Statement about the Rights of Citizens against the State

The constitution of Zambia enjoys the legitimacy of the governed, and spells out the rights of the
governed relative to the government. In addition, apart from spelling out and protecting certain
fundamental rights, the constitution puts certain limits on the exercise of such freedoms 43. For
example, The Constitution of Zambia makes provision for legal limitations on the exercise and
prot tion of rights ont in in P rt III of th Constitution of Z mbi ‗Prot tion of
fundamental human rights and freedoms of the individual44‘ Arti l 11 sp ifi lly provi s th t
th v rious rights provi for in P rt III r ‗subj t to su h limitations designed to ensure that
the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and
freedoms of others or the public interest45.

2.3. Conclusion

The Constitution of Zambia contains main provisions which determine the relations among the
different institutions and components of the government such as; the executive, the legislature,
the judiciary, the central and the local government. Further, it commits states to particular social,
economic, and development goals and declares and defines the rights and duties of citizens.
Lastly but not the least, The Zambian constitution lays down the election system, emergency
powers and articulates on the security and defense of the nation and of the people. Reading
between the Lines the constitutional order can include in addition to the constitutional text itself,
other written legal or quasi-legal instruments with constitutional significance. These may

42
See article 29 and 30 of the Constitution of Zambia 1996 edition.
43
The Core International Human Rights Treaties: United Nations Human Rights Office of the High Commissioner,
2014. Available at: www.ohchr.org.
44
Articles 11 to 28, Part III o the Laws of Zambia.
45
Cap 1 of the Laws of Zambia.

24
typically include electoral laws, laws on party financing, laws on judicial appointments and on
the organization of the courts, international treaties, the standing orders of parliament and
judicial decisions.

2.4. END OF UNIT REVISION EXERCISE

1. Discuss the principal three organs created by the constitution of Zambia.

2. Explain how a constitution protects the security and defense of the nation.
3. Discuss what you understand by emergency powers held by the President of Zambia.

25
 UNIT THREE

THE BILL OF RIGHTS

3.1. Objectives

By the end of this unit, a student is expected to;

- Have deeper knowledge of the bill of rights

- Understand fully the nature of rights protected in the constitution
- Familiarize oneself with enforcement mechanisms of fundamental rights under the
Zambian Constitution

3.2. Introduction

This unit will discuss the bill of rights in detail and examine the contents of part III of the
constitution of Zambia. This will be done to establish the extent to which this part of the supreme
law protects fundamental rights and freedoms of people.

3.3. Brief History of the bill of rights in Zambia

A Bill of Rights w s in orpor t for th first tim in North rn Rho si ‘s history in th s lf

government constitution 1963. It was reproduced with minor amendments in both the
independence constitution of 1964 and the One Party Constitution of 1973. The Bill of Rights
w s r pro u with f w itions (of hil r n‘s lights) in th Mvung Constitution of 1991
When the Constitution was amended in 1996, the Bill of Rights was left intact. The form and
content of most the provisions have, therefore, remained the same despite the significant changes
in the political system that have taken place since Independence46.

The Bill of Rights incorporated in the Independence Constitution was modeled on the
Nigerian Constitution of 1963, which in turn was based on the European Convention for

46
Prof. Carlson Anyangwe (1997) The Zambian Constitution and the Principles of
Constitutional Autochthony and Supremacy, Zambia Law Journal, Vol 29, 1997.

26
The Protection of Human Rights and Fundamental Freedoms of 1950. The neo-Nigerian Rights
(as they became known) were also incorporated in the Independence Constitutions of several
other African Commonwealth countries such as Malawi, Botswana, Kenya, Uganda and Sierra
Leone.

3.4. Forms of fundamental rights

The current Bill of Rights in Zambia forms part III of the republican Constitution47 which begins
with a general declaration of the rights every person in Zambia is entitled to regardless of race,
place of origin, political opinions, colour, creed or sex in article 11. This provision enshrines the
principle of non-discrimination and entails that every person in Zambia should enjoy the said
rights without being segregated on the listed grounds in article 11.

The following rights and freedoms are guaranteed;

 Life;
 Personal liberty:
 Protection from slavery and forced labour;
 Protection from torture, or inhuman or degrading punishment or other like treatment;
 Protection from deprivation of property:
 Protection for privacy of home and other property;
 Protection of the law
 Freedom of conscience:
 Freedom of expression, assembly and association:
 Freedom of movement
 Protection from discrimination on the grounds of race, tribe, sex, place of origin, marital
status, political opinions; and
 Protection of young persons from exploitation.

47
Constitution of Zambia Act, 1996.

27
 3.5. Limitations/qualifications of Rights under Part III of the Zambian Constitution

Limitations are restrictions places on the enjoyments of human rights. The enjoyment of these
rights under part III is made subject to a number of limitations such as:

 Respect for the rights and freedoms of others and the public interest.
 In addition to these two general limitations, which apply to all the guaranteed rights, most
of the protected rights contain numerous derogation clauses.

The format adopted is that the right is first protected in broad terms. A succeeding article then
qualifies it by outlining circumstances in which that right may be derogated from. In many
instances the qualifications to the right are so numerous and wide-ranging as to negate the right
or render it meaningless.

The drafting technique in the Zambian Bill of Rights is in marked contrast to some constitutions
in developed countries such as the American Bill of Rights, which outlines individual rights and
freedoms broadly without qualifying them. For example, the 1st Amendment provides that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the government for a redress of grievances48. Under the
American Bill of Rights the Courts have greater discretion in interpreting the rights guaranteed
than do Zambian Courts.

Some of the guaranteed rights have wider scope than others which means they do not
contain any limitations. For example, Article 15 of the Constitution of Zambia provides that no
person shall be tortured or exposed to inhumane and degrading treatment. Section 15 is defined
in language that admits of no exception. Since article 15 also has no exception it means that
torture and all inhumane treatment in Zambia are absolutely prohibited without any limitations.
On the other hand the right to protection from deprivation of property (Art. 16), freedom of

48 st
Constitution of the United States of America 1 Amendment

28
movement, association and assembly (Arts. 21-22), freedom of expression (Art. 20) etc contain
limitations which means that they are not enjoyed absolutely but only to some extent.

Rights such as; freedom of conscience, freedom of expression, equal protection of the law,
freedom of assembly and association, freedom of movement and freedom from discrimination
have wide limitation clauses. The limitation clauses allow the Legislature to enact laws that may
result in the taking away of the substance of rights granted. The only fetter placed on the
Legislature is that such laws must be reasonably required in the interest of defence, public safety
public health or public morality and must be reasonably required for the purpose of protecting
the rights or freedoms of others.

A person challenging the validity of a law that violates a guaranteed right must show that the law
or act done under it not reasonably justifiable in a democratic society. Examples of such rights
include: protection of privacy of home and other property (art. 17); protection of freedom of
conscious (art. 19): protection of freedom of expression (art. 20): protection of freedom of
assembly and association (art. 21) and protection of freedom of movement (art. 22). In such
cases the precise limits of the rights and freedoms is dependent on the construction the court
pl s upon th phr s ―r son bly justifi bl in mo r ti so i ty ‖ N l ss to s y th t su h
an interpretation will inevitably be influenced by the social philosophy and the scale of value
placed on public interests by the court. Since the Constitution does not define what constitutes a
― mo r ti so i ty‖ th ourt will h v to s rt in wh t th phr s m ns

 Emergency / War

A very significant limitation on the enjoyment of human rights is that most of the rights
guaranteed may be abridged or derogated when the country is at war or when an emergency
declaration under Article 30 is in force (Article 26). For example, under Part III of the Zambian
Constitution, the president may declare a state of emergency which have effect of derogating
certain rights without proper safeguards from excessive violation49.

49
Article 30, Constitution of Zambia.

29
Furth r th Z mbi ‘s m rg n y provisions r not in or n with int rn tion l b st
practice standards because there are no objective preconditions to such a declaration in that there
is nothing in the constitution which requires that a real threat to the public must in fact exist
before a declaration of emergency is made. The situation is worsened if courts' powers are
suspended as they can only caution against the danger of abuse of excessive executive authority
and concentration of powers.

 Non-derogable Rights:
Article 25 of the Constitution of Zambia allows the suspension of all the rights except—
- the right to life
- protection from slavery \ or forced labor
- protection from torture and inhuman treatment, and
- Equal protection of the law.
-
This means that during a state of emergency, not all rights are subject to derogation because
certain rights are considered sacrosanct and therefore non-inviolable. No interference should be
made regarding of the situation at hand.

3.6. Enforcement of fundamental rights

The Bill of Rights is justiciable. Article 28(1) provides:

Subject to clause (5), if any person alleges that any of the provisions of articles 11 to 26
(inclusive) has been, is being or is likely to be contravened in relation to him, then, without
prejudice to any other action with respect to the same matter which is lawfully available, that
person may apply to the High Court for redress. The High Court is vested with original
jurisdiction;
 to hear and determine any application made by any person under clause (1); and
 to determine any question arising in the case of any person which is referred to it
under clause (2).

30
Th High Court is mpow r ―to m k su h or rs issu su h writs n giv su h ir tions s
it may consider appropriate for the purpose enforcing or securing the enforcement of any of the
provisions of rti l s 11 to 26 (in lusiv ) ‖ (Art 28(1))

Article 28(2) (a) provides that if in any proceedings in any subordinate court any question arises
as to the contravention of any of the guaranteed rights the presiding officer may, and shall if any
party to the proceedings so requests refer the question to the High Court unless, in his opinion,
the raising of the question merely frivolous or vexatious. A person who is aggrieved by any
determination of the High Court may appeal to the Supreme Court provided his/her case is not
frivolous or vexatious (Art. 28(2)(b).

An application cannot be brought under Art. 28(l) on the grounds that any of the guaranteed
rights are likely to be contravened by reason of proposals contained in a Bill, which at the date of
the application, has not become a law (A rt. 28(3).50
3.7. Unit summary

The bill of rights is a codification of all fundamental rights that a person is entitled to. Part III of
the Zambia bill of rights guaranteed all persons fundamental rights and freedoms without
distinction based race, gender, religion or political affiliation. The guaranteed under part III may
be enforced through the High Court by way of application by the affected party. Some of the
rights protected in the bill include; right to life and freedom from torture.

3.8. END OF UNIT 3 REVISION EXERCISE

1. Discuss any 5 fundamental rights protected in the Zambia bill of rights

2. Do you think the Zambia bill of rights is effective?
3. Explain the mechanism used to enforce the protected rights in Zambia
4. Is the bill of rights important? Explain.
5. Explain the differences between limitation of rights and derogation of rights
6. State the circumstances that can lead to derogation of rights in Zambia.

50
See, Nkumbula v Attorney-General (One-Party case).

31
 UNIT FOUR

THE SUPREMACY OF THE CONSTITUTION

4.1. Objectives

After studying this unit, a student must be able to;

- Understand the concept of constitutional supremacy

- Understand why the constitution of Zambia is the supreme law of the land
- Have knowledge of the implication of the concept of constitutional supremacy in a
democracy
- Apply theory to practice
- Advise clients on constitutional matters and
- Resolve all issues pertaining to constitutional issues

4.2. Introduction

World over, nations have constitutions which offer guidance on how the country should be
governed. This guidance is found in a constitution which is a collection of rules and principles
which set out how a state will be governed and forms the framework for all decisions made by
every government official and, particularly the legislature (the law making body), executive
(President/Prime Minister/ministers) and the courts. Most constitutions provide for constitutional
supremacy a concept which entails that the constitution of a particular state is paramount
compared to other laws. This unit will discuss this concept and its practical implication in a
country like Zambia.

4.3. The concept of constitutional supremacy

32
Constitutional supremacy is understood to mean that the constitution takes precedence over all
other law in a particular country, for example, legislation or case law51. This concept ensures that
a constitution has legal supremacy. As a result, if a government passed a law that;

a. violated the constitution

b. was not in accordance with or conflicted with a constitutional provision

Such law could be challenged in a court of law and could be overturned on the ground that it is
‗un onstitution l‘ Constitutional Supremacy is provided for under Article 1(1)-(4) of the
Constitution of Zambia. It provides as follows:

1. (1) This Constitution is the supreme law of the Republic of Zambia and any other
written law, customary law and customary practice that is inconsistent with its provisions
is void to the extent of the inconsistency.

(2) An act or omission that contravenes this Constitution is illegal.

(3) This Constitution shall bind all persons in Zambia, State organs and State institutions.

(4) The validity or legality of this Constitution is not subject to challenge by or before a
State org n or oth r forum ‖52

From the above provision it is clear that the Zambian Constitution is supreme first, because it
gives unlimited power to the governing body in the Republic to legislate, that is, apart from the
Constitution itself; there is no other law in the Republic that has to be taken into consideration as
being supreme so as to ensure the Constitution conforms to that other law. Secondly, the
Constitution is supreme because any law that is to be enacted by Parliament has to ensure it
conforms to the provisions of the Constitution, failure to which, the law enacted by Parliament
would be declared void to the extent of its inconsistency with the Constitution.

Since the constitution of Zambia itself asserts that it is the supreme law of Zambia, therefore, it
takes precedence over all other laws in the land. This means that the legality of any action of

51
Munyonzwe Hamalengwa (2021). Commentaries on the Laws of Zambia.
52
Supra note 15.

33
each organ or authority in the State must be capable of being tested in a Court with reference to
the Constitution.

The principle of supremacy of the Constitution is primarily meant to protect human rights and
freedoms of people. Thus, the principle of supremacy of the Constitution requires for its
maintenance in full force and vigor: firstly, an executive which respects the judiciary and its
verdicts and does not take away, by the exercise of its constitutional powers, judicial powers to
deal with the rights of citizens even against executive actions of the State; and, secondly, the
absence of any legislative interference with judicial functions.

The famous case of Chrstine Mulundika and the 7 Others vs Attorney General53, confirms
the position that the validity of all other laws depends on their conformity with the constitution.
In that case, the appellants had challenged the constitutionality of certain provisions of the Public
Order Act, Cap. 104 of the Laws of Zambia, especially section 5(4) which required any person
wishing to hold a peaceful assembly to obtain a permit and contravention of which was
criminalized by section 7 of the same Act.

The main challenge related both to the requirement of a permit and the prosecution based on the
absence of such permit and was grounded on the fundamental freedoms and rights guaranteed by
Articles 20 and 21 of the Constitution. A subsidiary challenge related to the exemption of certain
offices from the need to obtain a permit which is said to be discriminatory contrary to Article 23
of the Constitution.

The Supreme Court held that the then section 5(4) of the Public Order Act, Cap. 104 of the Laws
of Zambia contravened Articles 20 and 21 of the constitution and were null and void and
therefore invalid for unconstitutionality. The Court further held that the invalidity and the
constitutional guarantee of the rights of assembly and expression precluded the prosecution of
persons and the criminalization of gatherings in contravention of section 5(4) of the Act.

―…―a or ingly‖ st t th ourt ― pros ution b s on p r gr ph ( ) of s tion 7

which depended on subsection 4 of section 5 would itself be inconsistent with the
constitutional guarantees and equally invalid. ‖

53
Chrstine Mulundika and the 7 Other vs Attorney General 1995 ZR.

34
In Thomas Mumba v Attorney General54 the applicant was being tried in the lower Court for
an offence under the Corrupt Practices Act. Under Section 53(1) of the Act, it was a requirement
that if the accused elected to say something in defence, he had to say it on oath only. This clearly
excluded the option to make an unsworn statement. The defence submitted that the provisions of
Section 53(1) of the Act contravened article 20(7) of the Constitution.

The Court held that an accused person in a criminal trial cannot be compelled to give evidence
on oath if he elects to make an unsworn statement. Consequently, the Court declared that the said
Section 53(1) of the Corrupt Practices Act was unconstitutional and therefore null and void and
that it should be severed from the Act. A similar challenge was made in Simataa and Simataa v
Attorney General.55 The High Court, employing similar reasoning as in Thomas Mumba, came
to an identical conclusion.

Furthermore, in John Banda v The People56 the Appellant pleaded guilty to a charge and was
convicted of malicious damage to property. In addition to one month simple imprisonment
suspended for Twelve months, the Appellant was ordered to receive ten strokes of the Cane in
accordance with the then Sections 24 (c) and 27 of the Penal Code, which provided for corporal
punishment.

In holding Sections 24 (c) and 27 of The Penal Code as unconstitutional, Justice Chulu of the
High Court stated as follows:

―Upon onsi r tion of th l w b for m I h st n to point out th t th

Republican Constitution, which is a written Constitution of Zambia, is the Supreme
law of the land, and consequently, all other laws derive their force of Law from it,
and are therefore subordinated to it. This being the legal position, it cannot therefore be
doubted that unless the Constitution is specifically amended, any provisions of an Act of
Parliament that contravenes provisions of the Constitution is null and void. Article 15 of
the Constitution is couched in very clear and unambiguous language, that no person shall
be subjected to torture or to inhuman or degrading punishment or other like treatment. On
the contrary, it cannot be doubted that the provisions of Section 24 (c) and 27 of the Penal

54
(1984) ZR 38 (HC).
55
[1986/HP/488].
56
[1998] HPA 6.

35
 Code which permit the infliction or imposition of corporal punishment of offenders are in
total contravention, and conflict with the above provisions of Article 15 of the
Constitution ‖

Judge Chulu further stated that due to the unconstitutionality of Sections 24 (c) and 27 of the
Penal Code, the provisions should be severed from the Penal Code.

Most recently, in Chipenzi and Others v The People,57 the High Court struck down Section 67
of the Penal Code which provided for the offence of publication of false news with intent to
cause fear and alarm to the public. The Court found the provision to have been inconsistent with
Article 21 of the Constitution which provides for freedom of expression.

4.4. Delegated or secondary legislation vs. Constitutional supremacy

Delegated legislation is law made by ministers under powers deriving from Acts of Parliament.
Due to the concept of constitutional supremacy, an act passed by the legislature is required to be
in conformity with the constitutional requirement and if it is found to be in violation of the
constitutional provisions, the court declares it unconstitutional and void. If an enabling or parent
act (i.e the act providing for the delegation) is void and subordinate or delegated legislation made
under the act will also be declared to be unconstitutional and therefore void. Sometimes it is
found that the Enabling or Parent Act is not violative of the Constitution, but the subordinate or
delegated legislation made under it violates the provisions of the Constitution. Such subordinate
or delegated legislation will be unconstitutional and void, though the Enabling or Parent Act is
perfectly valid. Thus, the subordinate or delegated legislation, (e.g., rules, regulations, by- laws,
etc.) made under the Enabling or Parent Act may be unconstitutional while the Enabling or
Parent Act is constitutional.

The limits of the constitution may be express and implied. In other words, delegated legislation
should not be incompatible with the constitution otherwise it risks being void upon challenge to
the courts. For example, in Zambia, a secondary law which stipulates that an employee has no

57
(2014) HPR/03.

36
right to a fair hearing may be declared null and void because it is unconstitutional to deny
someone such a right58.

What distinguishes a Constitution from laws made by the legislature is that the principles found
in the constitution form the framework for all decisions and actions of officials, and the rules and
principles outlined in the constitution are normally regarded as superior to laws passed by the
legislature59. This means that representatives in the legislature should only pass a law if it is
compatible with the constitution. The courts normally have the role of deciding whether a law
conflicts with the constitution. In the case of case of Sinkamba v Doyle60, it was held that a law
that contravenes the Constitution cannot be the law of the land. In this case, the court invalidated
provisions of the Preservation of Public Security Regulations because they were in conflict with
the Constitution. The court held at page 13 that:

S. 26A (1) (c) is in conflict with sub-regulations (8) and (7) (ii) (a) of regulation 31A of
the Preservation of Public Security Regulations, both of which provisions must therefore
be held to have been impliedly repealed.

Therefore, since constitutional rules have this higher status in which the law-making freedom of
parliamentary supremacy cedes to the requirements of a constitution, the constitution binds all
government organs including the executive branch such that all laws, policies, regulations and
pronouncement coming henceforth should be in line with the values and principles of the
constitution61. For example, a constitution may allow for the suspension of some or all of its
provisions, but only in time of emergency, such as when it is seriously necessary to safeguard
national security or vital public interests. Therefore, a state of emergency cannot be declared
under delegated legislation unless as expressly provided for under the constitution otherwise, the
declaration would be null and void. Thus, the constitution enjoys higher status vis-à-vis other
laws.

58
Article 18, Part III o the Constitution of Zambia.
59
Nwabueze, Constitutionalism in The Emergent States, 36.
60
Sinkamba v Doyle (1974) Z.R. 1 (C.A)
61
Nwabueze, Constitutionalism in The Emergent States, 36.

37
4.5. Unit summary

The principle of constitution supremacy asserts that the constitution is the supreme law of the
land which means that other law in a country should not be inconsistent with the Constitution
and if they are then such a law is void. Since the constitution of Zambia itself asserts that it is the
supreme law of Zambia, therefore, it takes precedence over all other laws in the land. This means
that the legality of any action of each organ or authority in the State must be capable of being
tested in a Court with reference to the Constitution. The principle of supremacy of the
Constitution is primarily meant to protect human rights and freedoms and to ensure that every
person or organ of the state is acting in accordance with the provisions of the law.

4.6. END OF UNIT REVISION EXERCISE

1. Discuss the concept of constitutional supremacy

2. Do you think the concept above serves any purpose in a democratic country like Zambia?
Justify.
3. Discuss the case of Christine Mulundika and the Seven Others v Attorney General. In
your discussion, clearly indicate the relevance of this case in as far as constitutional
supremacy is concerned.

38
 UNIT FIVE

MODES OF ADOPTION OF A CONSTITUTION

5.1. Objectives

At the end of this unit, a student should be able to;

 Have insight on various modes of adopting a constitution

 Understand the best mode of adopting a constitution which guarantees a constitution that
stands a test of time and
 Apply theory to practical situations

5.2. Introduction

Zambia has been engaged in several efforts to try and develop a new constitution in the context
of both demands for a more democratic constitution and the need to rebuild Zambian political
institutions which have been distorted by political manipulation over the years. Both the ruling
party and opposition parties and civil society broadly agree on the need for a new constitution.
They, however, differ on the process to be employed in developing a new constitution and on the
content of the constitution. A new constitution for Zambia must provide important safeguards to
ensure public accountability, responsiveness to the electorate, participation of the people in
governance and the devolution of power to local communities62.

The most formal acts of decision-making in a constitution-making process involve accepting the
document and bringing it into legal effect. Usually the acceptance of a constitution will depend
on the mode of adoption. With regard to constitution making process, the philosophy established
is that the people or citizens are the ones vested with constituent power. That is, the authority or
power to adopt a Constitution either directly at a referendum or through a Constituent Assembly.
This approach can be traced back to the making of the American Constitution in 1787. The
American Constitution was adopted by the people through a Constitutional Convention,
mandated to adopt the Constitution. The Constitutional Convention sat for four months from
May to September 1787, in Philadelphia. The American Constitution was not adopted by the

62
Muna Ndulo and Chaloka Beyani: APPROACHES TO DEVELOPING A NEW CONSTITUTION FOR ZAMBIA.

39
Continental Congress (Confederation legislature), but by the people through a Constitutional
Convention63.

The modes used to adopt the constitution includes; parliament constituent assembly and the
referendum.

 Parliament

Parliament is one of the modes of adoption that can be used to adopt a constitution. Parliament or
legislature is the lawmaking institutions of various political systems including Zambia 64. State
legislatures are provided for in state constitutions and range in size and partisan composition.
Legislatures perform three general functions in the political systems of their states: they
represent constituencies and constituents; they make laws, including those that appropriate funds
and raise revenues; and they balance the power of the executive branch. The ways in which
legislatures perform these functions vary over time and according to legislative structures,
capacity, partisanship and the quality of their leadership and membership65.

Parliament is considered the cheapest way and easiest way to enact a constitution. However, it is
believed the structure and composition of parliament and politicization of the house may pose a
challenge to have a document that genuinely represents the will of the people.

In the case of Zambia Democratic Congress v Attorney-General66 this was an appeal against the
ju gm nt of th High Court ismissing th pp ll nt‘s ppli tion for ju i i l r vi w Th
original application for judicial review challenged the decision by the President and his Cabinet
to amend the present Constitution in the manner suggested in Constitution of Zambia
(Amendment) Bill Number 17 of 1996, published in the government gazette as required by
Article 79 of the Constitution, in that the said change sought to alter or destroy the basic structure
or framework of the Constitution.

63
Ben O. Nwabueze (2004), Ideas and Facts in Constitution Making (Lagos: Spectrum Books Ltd), 8. 12 “United
States Constitution.
64
See sections 62 and 63 of the Zambian Constitution on the functions of Parliament.
65
Ben O. Nwabueze (2004).
66
SCZ Judgment No. 37 of 1999.

40
It was held by the Supreme Court that:

(i) The Constitution of Zambia itself gives parliament powers to make laws. Parliament
cannot be equated to an inferior tribunal or body when it is exercising its legislative
powers, although in appropriate cases, actions but not by judicial review, can be
commenced against it.

(ii) The powers, jurisdiction, and competence of parliament to alter the Constitution of
Zambia are extensive provided that it adheres to the provisions of Article 79 of the
Constitution. Article 79 limits the powers of parliament only in relation to Article 79
itself and to Chapter III of the Constitution relating to fundamental rights and freedoms of
the individual.

 Constituent Assembly
A constituent assembly or constitutional assembly is a body or assembly of popularly elected
representatives which is assembled for the purpose of drafting or adopting a constitution or
similar document. The constituent assembly is either entirely elected by popular vote. That is, all
constituent assemblies are Constitutional conventions, but a constitutional convention is not
necessarily a constituent assembly67. A constituent assembly is usually set up for its specific
purpose, which it carries out in a relatively short time, after which the assembly is dissolved. A
constituent assembly is a form of representative democracy.

With the increase in constitution making around the world there is a growing interest in the role
of a constituent assembly. The distinguishing characteristic of a constituent assembly is that it is
established to make a constitution, or at least that this is its primary role. The constituent
assembly is still the most common mode of making a constitution. Unlike olden times, a
constitution is no longer accepted as an imposition by a victor or dominant group over others (or
a grant by a monarch or a president), or even that the military would promulgate the constitution
(though both these situations happened in the last few decades—in some countries. For example,

67
Ben O.Nwabueze (2004),

41
Nig ri ‘s mo r tic constitutions of 1979 and 1989 were promulgated by the military, although
based to some extent on the work of constitution commissions and constituent assemblies)68.

Some people advocate a constituent assembly because they imagine it not only as a
representative and inclusive body but also one in which people can participate in other ways. It is
seen - much more than parliament - as a gathering of the nation. They consider that an inclusive
onstitu nt ss mbly is mor onsist nt with p opl ‘s sov reignty than a parliament (where
sectional interests may dominate). People, marginalized by the political system often agitate for a
constituent assembly.

Although an old device, the rationale for a constituent assembly today is quite different from
befor : now th onstitu nt ss mbly is s n s mbo ying p opl ‘s sov r ignty s r fl ting
diversity, and being linked to the broad social charter character of the ultimate constitution. It is
used to develop a consensus in deeply divided societies, and to d fin th ountry‘s i ntity This
emphasis reflects the nature of many contemporary constitutions as negotiated documents, a way
out of political or ethnic stalemate, an exercise in building and consolidating peace, solving
internal conflicts, managing diversity and aiming at inclusiveness.

 Referendum

The Electoral Commission of Zambia describes a referendum in the following manner:

―A R f r n um is pro ss th t llows itiz ns to pprov or r j t l w to b p ss by

the Legislature. In a Referendum voters are given the opportunity to directly decide
through a vote on a particular subject matter. All eligible citizens have the right to either
pt or r j t qu stion pos A vot r is xp t to hoos ―Y s‖ or ―No‖ on th
question given. This may be regarding a new constitution, a constitutional amendment or
propos l w‖69.

"Referendum" is generally a term given to a direct vote of the electorate required by the legal
framework or requested by the Executive or Legislative on an issue of public policy, in contrast

68
Ibid.
69
ELECTORAL COMMISSION OF ZAMBIA: Voter Education Facilitator’s Handbook 2016. Available at
https://www.elections.org.zm/verc/files/Referendum%20Booklet%20A5.pd.

42
with votes cast at elections, which are made in relation to parties or individual candidates and
generally reflect voters' preferences over a range of different issues. Referendums may be held
in relation to particular circumstances (e.g., to amend a country's constitution) or in relation to
particular political issues (e.g., whether or not to join an international organisation) but are in
general held in relation to issues of major political significance.

The terms used to define referendums may differ in different countries. Often a referendum
woul involv singl ―Y s‖ or ―No‖ vot by th whol l tor t in ountry lik Z mbi If
the constitution is for a federal country like that of the U.S.A, Kenya, Nigeria etc, it may have to
be ratified by the separate vote of each of the states, regions, or provinces. This could involve
counting the votes separately for each state in a referendum. For example, the United States
constitution was not effective until ratified by a vote of the state conventions not the people of at
least nine of the thirteen states. Then the constitution would come into effect but only for those
states that did ratify it. In the end, all thirteen did70.

The importance of voting in a Referendum cannot be underestimated. The Referendum provides

an opportunity for citizens to directly decide on whether government should undertake an
issue/law or not. For example a Referendum can: give a chance to the citizens to decide whether
the Bill of Rights under part III of the constitution should be altered and enhanced or not, give a
chance to the citizens to decide whether to repeal and replace Article 79 of the Constitution of
Zambia which talks about the alteration of the Constitution. According to the Constitution of
Zambia, any alterations on the Bill of Rights and Article 79 require that a Referendum be held
where citizens are expected to either accept or reject the question relating to the alterations.
Th r for it is th itiz ns‘ right uty n oblig tion to vote in the Referendum.

In Zambia, the requirements for one to vote in the Referendum is that such a person should be a
Zambian citizen and in possession of a green National Registration Card (NRC) and such a
person should also be 18 years and above at the time of voting in this Referendum.

70
Ben O.Nwabueze (2004).

43
5.3. Forms of Referendum

There are various forms of referendums; however, the following are the most common types of
referendums held in countries across the world:

 Mandatory or obligatory referendum

A mandatory or obligatory referendum is a vote of the electorate which is called automatically

under circumstances defined in the constitution or in the legislation. The consequences of the
vote are usually binding. Therefore, if a proposal passes, the government or appropriate
authority is compelled to implement it 71. Mandatory referendums may be required in relation to
pre-determined issues. Typically, these are issues of major national significance, for example,
adoption of international treaties, transfer of authority to international bodies, and taxes and
public expenditure commitments. In addition, in many countries, proposed amendments to the
constitution must be affirmed by a referendum.

Alternatively, mandatory referendums may be required in pre-determined situations. One

example is in Presidential systems, where in the case of disagreement between the President and
the Legislature, a referendum may be required to resolve the dispute.

 Optional or facultative referendum

The second category of referendum is the optional or facultative referendum. These are votes of
the electorate which are called by a formal demand, which may emanate from the executive,
from a number of members of the legislature, from a number of citizens or from some other
defined agent. The consequences of the vote may or may not be binding 72. A government can
decide to initiate a referendum on a major political issue. It might do so because public pressure
for a referendum forces it to hold one, or it might choose to hold a referendum because it is
divided on the issue at hand. Optional referendums initiated by the government have been held
frequently in Europe on the issue of European Union integration (although in some cases, such
referendums have been mandatory because they involve an amendment to a country's

71
Butler, D., & Ranney, A. (Eds.). (1994). Referendums around the world: The growing use of direct democracy
(1993 ed.). Washington DC: AEI Press. (Original work published 1978).
72
Ibid.

44
constitution). Although these referendums may not be legally binding, it may be politically
difficult for a government to ignore the outcome.

A further type of optional referendum is the abrogative referendum. An abrogative referendum

is a vote of the electorate which may decide to either retain or repeal a law or decree that has
been agreed and promulgated by the legislature and already implemented. Usually, citizens
force a vote by collecting a certain number of signatures in support of a vote.

Several arguments are advanced in support of and in opposition to referendums as

follows;

Supporters of the use of referendums argue that, in the context of increasing voter apathy and
disenchantment with traditional forms of democracy, direct democracy can help to re-engage
voters with politics and democracy73. Another argument advanced in favour of referendums is
that they can be used to resolve political problems, particularly for incumbent governments;
where a governing party is divided over an issue, for example, holding a referendum can help
reach a solution on the issue without splitting the party (one example of this is the 1975 UK
referendum on whether the UK should remain in the European Community, an issue over which
the ruling Labour government was deeply divided).

There is also an argument that governments need a specific popular mandate for any
transcendental changes that were not part of the original platform on which they campaigned.
This is particularly the case when an amendment to a constitution which itself was approved by
referendum is under consideration.

There are also a number of arguments made against the use of referendums. One is that it
weakens representative democracy by undermining the role and importance of elected
representatives. Further to this point, referendums are sometimes seen as a means available to
elected representatives to avoid having to take an unpopular position on a controversial issue.
Another is that voters do not always have the capacity or information to make informed
decisions about the issue at stake, and instead may make ill-informed decisions based on partial

73
Kaufmann, B., Büchi, R., & Braun, N. (Eds.). (2007). Guidebook to direct democracy: In Switzerland and beyond
(2008 ed.). Bern: Benteli Hallwag Druck AG

45
knowledge or on the basis of unrelated factors such as the state of the economy 74. This trend
may be exacerbated in the case of referendums on complex issues such as constitutional change
or international treaties, with which voters are likely to be unfamiliar.

Opponents of referendums also argue that, if the executive has the power to determine when
referendums are held, they can be used as a political tool to suit the needs of the governing party
rather than the interests of democracy. They also claim that, since in many countries turnout at
referendums is lower than at national elections, the argument that referendums increase the
legitimacy of political decisions does not stand up. However, experts in Switzerland (where a
number of direct democracy votes take place each year) believe that, although turnout at
referendums is around 45%, more than 45% of electors participate in direct democracy, since
different voters participate in the different votes that interest them 75.

5.4. A Constitution that Stands a Test of Time

Zambia is now over 50 years of achieving political independence, having attained its
independence in 1964. However, throughout this long period after attaining independence, she
has endeavored, but failed to achieve a Constitution that has been regarded by the majority of the
citizens as being legitimate, democratic and durable76.

This desire to achieve a legitimate, democratic and durable constitution has seen her undergo
several constitution making processes. The tension over the need to have a legitimate,
mo r ti n ur bl onstitution still r g s Th qu st for popul r ‗people- riv n‘
constitution that will stand a test of time has historically been both laborious and elusive for
Zambia. The country has one of the highest turnovers of constitution reviews in the Southern

74
Ibid.
75
Kobach, K. W. (1993). The referendum: Direct democracy in Switzerland. England: Dartmouth. Madroñal, J. C.
(2005, April). Direct democracy in Latin America. Retrieved from Democracy International and Mas Democracia
website: http://www.democracyinternational.org/fileadmin/di/pdf/papers/dd-latin-america.pdf.
76
Patrick Matibini (2008),”CONSTITUTION MAKING PROCESS: The Case for Zambia.” Zambia Law Journal, Special
Edition 28.

46
African Development Community (SADC) region, with six constitutional phases in its history
since independence in 196477.

Since 1964 to date, Zambia has had six constitutional phases which shows that the country keeps
on reviewing the constitution. This entails that the processes lack popular support and by
extension popular legitimacy, making the nexus between constitution-making and civic
participation come under greater review. Matibini says the failure to achieve a Constitution that
stands a test of time can be attributable to the constitution making process itself. This is so
because most, if not all, of the previous constitution making processes that Zambia has
undertaken, the citizens have not been widely involved in the process78.

That is, The Constitutions that Zambia has crafted since independence have not been people
driven. They have been imposed by the former colonial master or the Government in power. As a
result, these Constitutions have largely been foreign to the citizenry because they have not
reflected the aspirations and desires of the majority citizenry, as well as their customs, habits and
way of life. Consequently, the majority of the citizenry has over the years not embraced these
Constitutions as their own because they have lacked legitimacy, and moral authority, hence these
constitutions have not been durable. Widespread participation by the people in the constitution -
making process including adoption and ratification by the people of the final draft Constitution,
leads to achievement of a legitimate, democratic and durable Constitution. It remains to be seen
if in future such a route would be taken.

Instead of the referendum, the methods of adoption in Zambia has been parliament which lacks
true representation as members of parliament are at times loyal to the political party that the
people they represent. Due to this, successive constitutions have being imposed on people and as
such lack legitimacy (acceptance). The power to adopt and approve the constitution should be in
the people. Secondly, constitutional making process plays a vital role in achievement of a
legitimate, democratic and durable constitution. When the constitution making process is
overtaken by politicians it means the outcome may not reflect the will of the people but that of
politicians. This has been the case in Zambia where the process is not transparent and lacks
wider consultation.

77
Ibid.
78
Ibid.

47
According to Matibini the people are the repository of constituent power. This is so when he
states that a democratic constitution must be a product of consensus by the people, and not
imposed on the people by those who wield the power of the State. He further states that adoption
of the Constitution by the Legislature does not lead to a legitimate Constitution79.

From 1964 to date, Zambia has had many constitutional review commissions as discussed above
with the recent 2020 constitution amendment bill popularly known as Bill 10 which failed to
pass the two-third majority threshold and consequently withdrawn. Each government that comes
by wishes to review and enact a new constitution. Clearly, Zambia has a challenge of enacting a
constitution that will stand a test of time. Failure by Zambia to achieve a legitimate, democratic
constitution that will stand a test of time firstly is due to; politicization of the process, adoption
procedures which do not reflect the will of the people and failure to incorporate into the final
draft the wishes of the people as originally submitted.

5.5. Unit summary

It is clear from this unit that there are numerous choices to be made in the design of the
constitution making process. Each process has its own advantages and disadvantages. The mode
of adoption of a constitution determines whether such a constitution will stand a test of time or
not. When, how and why parliament, referendum or constituent assembly should be used in
adopting a new constitution is a matter of interest to all constitutional scholars and students.

5.6. END OF UNIT REVISION QUESTIONS

1. Define the following terms; Referendum, constituent assembly and parliament and
explain the role played by parliament, constituent assembly and referendum in the
adoption of the constitution.
2. In your opinion, which mode of adoption do you think is suitable and effective in
adopting a constitution in Zambia? Explain and justify your answer

79
Patrick Matibini (2008),”CONSTITUTION MAKING PROCESS: The Case for Zambia.” Zambia Law Journal, Special
Edition 28.

48
 UNIT SIX

STAGES AND PHASES OF CONSTITUTIONAL MAKING PROCESS IN ZAMBIA

AND THE RISE AND FALL OF ONE PARTY STATE

6.1. Learning outcomes

At the end of unit 6, a student should be able to;

 Understand the history and phases of constitutional making process in Zambia from
1964-2016
 Have knowledge about how constitutional adoption processes has affected the legitimacy
of the constitution in Zambia
 Understand the political history of Zambia
 Have knowledge of the rise and fall of one party state
 Show understanding of the emergency of multi-partism and
 Understand the impact that multi-partism has had on Zambian politics

6.2. Introduction

In Zambia, constitution-making since independence in 1964 has been defined by a combination

of democracy building, governance bolstering and regime security inclinations. From 1953 up to
1996, the country underwent six phases of constitutional making process as shall be outlined in
this unit. The seventh phase started in 2005 under the leadership of late president Levy
Mwanawasa and the process which thwarted was later revived in 2011 under the Patriotic Front
government led by late President Micheal Sata which culminated into the 2016 constitution
under the leadership of president Edgar Lungu. The Justice Minister Hon. Mulambo Haimbe
with support from President Hakainde Hichilema who became Republican President in August
2021 has also on several occasions hinted on the possibility of embarking on a new
Constitutional making process under the Hichilema administration.

49
Clearly, Zambia has had many constitutional making processes since independence which makes
one wonder the reason why the country has up to date failed to have a constitution that will stand
a test of time.

6.3. Components of Constitution Making Process

Constitution making is a complex process (and has to be located within a broader context). A
minimum it involves the production of a legal document – perhaps one very different from
anything the country has had before or perhaps being essentially a revision of an existing
document. But even this will involve various processes and stages, while participatory processes
are more complex.

Haskell80 lists the major stages that most constitutional making processes will involve;

 Agreeing on a broad set of principles and goals

 Agreeing on institutions and procedures for making the constitution
 Preparing people for consultation by providing civic education on the process ountry‘s
constitutional history, and constitutional options
 Consulting people (including, where relevant, diaspora)
 Consulting experts-constitutional writers, legal scholars etc.
 Informing the process of comparative experiences
 Analysis of opinions
 Preparing a draft constitution
 Public discussions of the draft constitution
 Preparing the final version
 Enactment into law of the final version
 The referendum (or any other mechanism of ratification).
 Bringing the constitution into force and
 Implementing the constitution.

80
Haskell, J. (2001). Direct Democracy or Representative Government? USA: Westview Press.

50
 6.4. Constitutional development in Zambia

Constitutional development in Zambia can be traced back to the British colonial times especially
from the beginning of the 1950s81.Zambia formerly the territory of Northern Rhodesia was
administered by the British South Africa Company from 1891 until it was taken over by the UK
in 1923.

The Order in Council of 1953 and the 1962 Constitution resulted into the 1953 Federation of
Rhodesia and Nyasaland (Constitution) Order that ushered in a Federation for ten years and gave
impetus to the independence movements and Cha-cha-cha civil disobedience campaigns staged
during the run-up to independence in Northern Rhodesia. Constitutional development during this
period was marked by the establishment of the Federation of Nyasaland and Rhodesia through
the Order-in-Council (a legislation made in the name of the monarch in some Commonwealth
countries) of 1953. The Order specified the prerogatives of the federal and territorial
governments. The Order in Council was followed in 1962 by a constitution written solely by the
British Colonial Administration, its purpose was to accommodate both white settlers and native
Africans in the Legislative Council. The constitution was also to lay the foundation stone for the
independence of Northern Rhodesia outside the federation. This is the 1962 Constitution, whose
promulgation was engineered and concluded by an unrepresentative executive.

Following the dissolution of the federation in 1963, a new constitution based on the Westminster
model and designed to resolve the conflicting interests of the indigenous Africans, the settler
white community and the colonial government was negotiated by the major stakeholders. It came
into force through the Zambia Independence Order-in-Council of 1964 the country's first
independence constitution and established a multiparty system dominated by Kaun ‘s UNIP
The 1964 Independence Constitution provided for multi-party democracy with an executive
president. It was designed to address the impending handover of the reins by the colonial
administration but enshrined a rigid procedure for amendment, having been negotiated at the
highest level with limited stakeholder involvement.

After the independence constitution of 1964, Zambia has had constitutional amendments in 1972
(providing for one party state), 1991 constitutional amendment (providing for multiparty
81
Constitutional Net: History of Constitution in Zambia. Available at: https://constitutionnet.org/country/zambia.

51
elections), 1996 constitutional amendment and the 2016 constitutional amendment which
introduced various new provisions82.

6.5. Key triggers of constitutional making in Zambia

In Zambia constitution-making since independence in 1964 has been defined by a combination

of democracy building, governance bolstering and regime security inclinations. For instance, the
1972 onstitution l r vi w l by th Chon Commission w s l rg ly riv n by th r gim ‘s
security concerns within the context of a split in the United National Independence Party
(UNIP), which saw Vice President Simon Kapwepwe breaking away to form the United
Progressive Party (UPP). With the rising popularity of Kapwepwe and the UPP, Kenneth
Kaunda, then president, pushed for a constitutional amendment to outlaw all political parties
except for his UNIP, leading to the one-party regime from 1972 to 1991. This process put
emphasis on executive dominance over civic input and participation83.

Consequently, the 1972 review largely concluded a ‗gov rnm nt- riv n‘ s lf-preservation
constitutional review exercise. The one-party system was, however, challenged as the need for
democratic reform became urgent. Zambia also experienced extreme economic difficulties
during the late 1980s. Moreover, there was overwhelming public support for constitutional
reforms that supported multiparty democracy. The view was that they would help address
economic governance and democratic deficits.

Kaunda then appointed the Mvunga Constitution Review Commission in 1990, promising a
referendum on multiparty democracy. Although the government reached a compromise on the
substance of the constitution with the nascent opposition, which led to a constitutional
amendment that paved the way for the formation of political parties, fierce debates took place on
the method of adopting the constitution. Civic groups wanted deliberations on the constitution by
a constituent assembly or a national convention. On the other hand, the Mvunga Commission had

82
As a student, it is expected that you read the Constitution of Zambia amendment Act No. 2 of 2016 and Part III of
the Bill of Rights in the 1996 Constitution in order to have adequate insight about the constitutional provisions.
83
Anneke Meerkotter( 2014) A BRIEF ANALYSIS OF ZAMBIA’S CONSTITUTION-MAKING PROCESS AND THE ‘LEAKED’
FINAL DRAFT CONSTITUTION: Southern Africa Litigation Center.

52
 on lu th t ‗th r w s no n ed for a constituent assembly since a legitimate and lawfully
onstitut n tion l ss mbly w s in pl ‘

The then emerging opposition, the MMD, and the labour movement rejected this view. The
ruling UNIP and the MMD reached a compromise on a constitutional text at an inter-party
dialogue in 1991. The document agreed to at these talks was eventually enacted into law as the
Constitution of Zambia Act, which came into force on 30 August 1991. That constitution was
viewed by political and civil society stakeholders as a transitional political arrangement,
primarily geared to meet the immediate pressures of the time84.

After winning the 1991 elections, the MMD initiated another constitutional review in 1993 since
th 1991 onstitution l or r w s ‗tr nsition l‘ and a constitutional review was among the
political reforms that the MMD had promised in its election manifesto. This exercise was also
trigg r by th MMD‘s sir to limin t K un n his vi pr si nt s nior Chi f Iny mbo
Yeta, from contesting subsequent elections. This aim was achieved with the use of the parentage
clause, which stated that presidential candidates must have both parents as Zambians by birth or
descent, and a clause that barred chiefs from participating in active politics unless they
relinquished their chieftaincy.

These constitutional amendments in particular legally barred Kaunda from re-contesting the
presidency on the grounds that his parents originated from Nyasaland (now Malawi). His efforts
to challenge the decision in court failed, as he was declared stateless by the courts of law.

In 1993, President Frederick Chiluba appointed the Mwanakatwe Constitution Review

Commission to review the 1991 Constitution. The Commission was also requested by the
President to recommend whether the constitution should be adopted by the national assembly or
by a constituent assembly, by a national referendum or by any other method. After concluding its
work, the Commission submitted its recommendations to the presidency85. First among these
recommendations was that the constitution be adopted through a constituent assembly and a

84
Patrick Matibini,”CONSTITUTION MAKING PROCESS: The Case for Zambia.” Zambia Law Journal, Special Edition
(2008):28.
85
Anneke Meerkotter( 2014) A BRIEF ANALYSIS OF ZAMBIA’S CONSTITUTION-MAKING PROCESS AND THE ‘LEAKED’
FINAL DRAFT CONSTITUTION: Southern Africa Litigation Center.

53
national referendum as opposed to a parliamentary vote process. The Commission argued that
th option of th onstitution by th l gisl tur ‗woul b risky Civi groups wanted
deliberations on the constitution by a constituent assembly or a national convention because
p rli m nt w s omin t by on p rty‘

The concern was that the last-mentioned method would compromise the legitimacy and
durability of the constitution. The Mwanakatwe Commission further made recommendations on
th omposition of th onstitu nt ss mbly in p rti ul r th t it shoul in lu ‗ ll m mb rs of
parliament (MPs), one representative from each district in Zambia; representatives from political
parties not represented in parliament; CSOs, academia, civil and professional associations;
tr ition l rul rs; wom n‘s org nis tions; hur h s n oth r r ligious org nis tions‘

Pr si nt Chilub ‘s MMD gov rnm nt r j t most of th Commission‘s r omm ndations. In

rejecting them, the government invoked the Inquiries Act, which consequently supplanted the
recommendations of the Commission on the basis that the recommendations overstepped the
mandate and terms of reference of the Commission under the Act. In May 1996, the government
passed the Constitution (Amendment) Act and the Constitution of Zambia (Amendment) Bill 18
of 1996, which became the supreme law of the country. The 1996 Constitution was later
amended to provide for a two-term limit for the presidency86. However, just before the 2001
elections, Chiluba attempted to amend the constitution to allow him to run for a third term.
Various political and civil society groups vehemently opposed the campaign, as did some senior
MMD members and officials. A green ribbon advocacy campaign was established by those
opposed to the third-term drive and, under pressure, the Chiluba government dissolved the
cabinet and appointed a new one, which then halted the campaign for the third-term
constitutional amendment.

The 2001 elections were thus held under the 1996 Constitution, which many perceived to be
flawed because of the manner in which it had been adopted. President Levy Mwanawasa, who
succeeded Chiluba, promised to re- st blish ‗ gov rnm nt of th p opl ‘ nd review the 1996

86
Anneke Meerkotter( 2014) A BRIEF ANALYSIS OF ZAMBIA’S CONSTITUTION-MAKING PROCESS AND THE ‘LEAKED’
FINAL DRAFT CONSTITUTION: Southern Africa Litigation Center.

54
Constitution. In 2003 Pr si nt Mw n w s ppoint th Mung‘omb Constitution R vi w
Commission, again using the Inquiries Act to initiate the review process. The review was an
attempt to respond to wide public condemnation of the 1996 Constitution. The review process by
th Mung‘omb Constitution R vi w Commission w s how v r initi lly fr ught with t hni l
difficulties, alleged malpractices and financial challenges that eventually delayed it. Another
challenge was the deadlock in negotiations between civic groups and government over sufficient
time frames for the review process and the mechanisms for adopting the ensuing constitution. As
n tt mpt to br k th lo k th Mung‘omb Constitution R vi w Commission
recommended that a compromise roadmap between government and civic stakeholders be
st blish n th t this b on in ‗ onstitu nt ss mbly onstitution l onf r n or ny
other popular body that would represent the views of the people87‘ One of the reasons advanced
for a constituent assembly or other popular body was that parliament was not representative
enough of all the various social interests in the country.

Further, there was a view that the formulation of a new constitution should be more inclusive,
broad based and gender representative and should encourage the participation of citizens to give
the constitution-making process legitimacy88. Following th submission of th Mung‘omb
Constitution Review Commission to the government in 2005, the government established the
National Constitutional Conference (NCC) through the National Constitutional Conference Act,
No. 17 of 2007. Th NCC is s rib s ‗ forum for th x min tion b t n option of
propos l to lt r th Constitution‘ Th NCC submitt its draft constitution in August 2010. The
2010 draft constitution was presented to parliament in 2011. This was in line with the provisions
of the NCC Act No. 17 of 2007, which demanded that non-contentious clauses be adopted by
parliament while contentious ones, such as the 50%+1, be referred to the national referendum
together with the Bill of Rights. The 50%+1 clause for electing the president provided that
elections to the office of the president be conducted directly on the basis of a majoritarian
system, where the winning candidate must receive not less than 50%+1 votes of the valid votes
cast.

87
https://constitutionnet.org/country/constitutional-history-zambia.
88
Ibid.

55
However, the Bill failed as new demands were advanced on the floor of the House by the
opposition United Party for National Development (UPND) for it to support the Bill. Among the
demands advanced was that the Constitution Bill should incorporate the 50%+1 clause and the
presidential running mate clause, which provides that the vice president candidate runs on the
pr si nti l n i t ‘s ti k t in n l tion89.

The MMD government refused the above demands and the move failed. More importantly, the
mov w s ontr ry to th Commission‘s r omm n tions on th mo of option of th
constitution through the national assembly, which argued that contentious issues such as the
50%+1 clause be referred to the national referendum. It is against this background and the fact
that the country was still using the widely condemned 1996 Constitution that the ruling PF
resumed the constitution making process after winning the 2011 general elections.

In its 2011 p rty m nif sto th PF ommitt its lf to ‗ st blish in onsult tion with
stakeholders, a committee of experts to review the recommendations of all previous
constitutional review commissions in order to draft and present a constitution which will reflect
the will and aspirations of the people for submission to a referendum and subsequent enactment
only by th n tion l ss mbly‘ As such, ph s s v n of Z mbi ‘s onstitution-making process
was re-started on 16 November 2011 when the then new President Michael Sata appointed a
technical committee with a mandate to review the recommendations of all previous constitutional
review commissions, in order to draft and present a constitution that reflects the will and
aspirations of Z mbi ns‘ However, calls from civil society groups on the question of a national
referendum to adopt the constitution were ignored90. When President Micheal Sata came into
power, he immediately announced a new constitution building process as a continuation of their
campaign promise to deliver a people driven constitution within 90 days of assuming office,
people were very expectant but this did not happen until the President died.

When President Edgar Lungu took over office after the death of the incumbent, he resumed the
constitutional making process in earnest through the Constitution Amendment Bill 2015 which

89
https://constitutionnet.org/country/constitutional-history-zambia.
90
https://constitutionnet.org/country/constitutional-history-zambia.

56
was presented to parliament. Once the bill passed the second and third reading, it was presented
to the president for assent. On 5 January 2016, former Pr si nt Lungu sign Z mbi ‘s n w
constitution. However, part III of the bill of rights remains unchanged as the proposed
referendum in August 2016 failed to pass the required 50 plus one requirement91. Further, in
2020 Pr si nt E g r Lungu‘s government embarked on another constitutional amendment
process (Constitutional Amendment Bill No. 19 of 2019) which came to be widely known as Bill
10. The bill was designed to amend the constitution however, the process botched after it failed
to pass the three third majority vote in parliament due to opposition by the opposition United
Party for National Development MPs who claimed that the amendments were not for the good of
the people and the country at large.

6.6. Unit summary

It is clear that Zambia has had many constitutional making processes since independence
and each new government that comes into power initiates a new constitutional making process.
Constitutional law experts such as Muna Ndulo have pointed out that Z mbi ‘s num rous
attempts to draft a lasting constitution since 1964 has been elusive largely due to lack of
constitutional legitimacy for each process as the government in each case retained the power to
r j t or pt th p opl s‘ r omm n tions There have also been major disagreements over
the mode of adoption whether through a constituent assembly, parliament or government
appointed commissions92.

6.7. END OF UNIT REVISION EXERCISE

1. What do you understand by a constitutional making process?
2. Discuss the processes involved in coming up with a constitution
3. Outline six phases of constitutional making process in Zambia
4. Explain how adoption mechanisms of a constitution contribute to its legitimacy.
5. In your own understanding, explain why Zambia has failed to have a constitution that can
stand a test of time.

91
Mulela Margaret Munalula (2016). The 2016 constitution of Zambia: elusive search or a people driven process.
92
Ndulo, Muna B. and KENT, Robert B. “The Constitutions of Zambia,” Zambia Law Journal 30: (1998): 1- 28.

57
 UNIT SEVEN

THE RULE OF LAW

7.1. Learning outcomes

After studying this unit, a student should be able to;

- Understand the concept of the rule of law

- Have brief knowledge about the development of the concept
- Know the importance of the rule of law

7.2. Introduction

The rule of law is defined as the authority and influence of law in society, especially when
viewed as a constraint on individual and institutional behavior; (hence) the principle whereby all
members of a society (including senior government officials) are considered equally subject to
the law93. The term rule of law is closely related to constitutionalism and refers to a political
situation, not to any specific legal rule. This unit is aimed at examining the rule of law concept in
depth and analyzing its significance in a constitutional democracy.

7.3. The Concept of the Rule of Law

As th ―rul of l w‖ is on of th most import nt politi l n l g l on ptions in mo r ti

governance, it is important to begin our conversation with an examination of the concept: What
o s ―rul of l w‖ m n? To som th rul of l w lls for th limin tion of wi is r tion ry
authority from government processes. To others, the rule of law means the existence of formal
rules which do not discriminate between citizens and to still others it means due process of law.

To som xt nt th ss n of th rul of l w li s in its juxt position to th ―rul of m n ‖

According to Ndulo, it is comprised of the following basic principles:

93
Oxford Law Dictionary, 2016.

58
 ―…that all state power ought to be exercised under the authority of laws, and that there
should be rules of law governing the election and appointment of those who make and
execute policy, as well as the manner in which policies are made and executed. It
demands that policies be executed in such a way as to ensure rationality and fairness94…‖

The rule of law connotes the use of state power, through rules of law for the establishment of the
economic and social system agreed upon by the people via constitutionally sanctioned
representative institutions or other acceptable surrogates. It calls for governance in accordance
with the constitution. All power, whether of parliament, the executive or the courts, must be
exercised in accordance with the constitution, which is the final word on the powers and roles of
each branch. This description of the concept is in agreement with the supremacy of our
Constitution. Constitutional Supremacy is provided for under Article 1(1)-(4) of the Constitution
of Zambia.

Further, according to Wayne Martin, the rule of law implies that every person is subject to the
law, including people who are lawmakers, law enforcement officials and judges. In this sense, it
stands in contrast to tyranny or oligarchy, where the rulers are held above the law95.

The Rule of law supports the equality of all citizens before the law, secures a non arbitrary form
of government, and more generally prevents the arbitrary use of power. Arbitrariness is typical of
various forms of despotism, absolutism, and authoritarianism as well as totalitarian. Despotic
governments include even highly institutionalized forms of rule in which the entity at the apex of
the power structure (such as a King, a junta, or a party committee) is capable of acting without
the constraint of law when it wishes to do so96.

7.4. Development of the concept of the rule of law

The principle of the ―rul of l w‖ n b tr b k to 16th-century Britain. In the 17th century,

the Scottish theologian Samuel Rutherford employed it in arguing against the divide right of
kings. English philosopher John Locke equally wrote that freedom in society means being
94
Ndulo, Muna (2013) "Judicial Reform, Constitutionalism and the Rule of Law in Zambia: From a Justice System to
a Just System," Zambia Social Science Journal: Vol. 2: No. 1, Article 3. Available at:
http://scholarship.law.cornell.edu/zssj/vol2/iss1/3
95
Wayne Martin, CJ, Western Australia: The Rule of Law, Perspectives from around the Globe (2009). .

96
Wayne Martin, CJ, Western Australia: The Rule of Law, Perspectives from around the Globe (2009).

59
subject only to laws made by a legislature that apply to everyone, with a person being otherwise
free from both governmental and private restrictions upon liberty. The rule of law was further
popularized in the 19th century by British jurist A.V Dicey. According to Dicey, the rule of law
means the following:

―…no m n is punish bl or n b l wfully m to suff r in bo y or goo s x pt for

distinct breach of law established in the ordinary courts of the land. In this sense the rule
of law is contrasted with every system of Government based on the exercise by persons
in uthority of wi rbitr ry or is r tion ry pow rs of onstr int…no m n is bov th
law, but...here every man, whatever be his rank or condition, is subject to the ordinary
law of th r lm n m n bl to th juris i tion of th or in ry tribun ls ‖97

The rule of law principle was also recognized by ancient thinkers such as Aristotle who wrote:

"It is more proper that law should govern than any one of the citizens98."

Ideas about the rule of law have been central to political and legal thought since at least the 4th
century BCE, when Aristotle istinguish ―th rul of l w‖ from ―th t of ny in ivi u l ‖ In th
18th century the French political philosopher Montesquieu elaborated a doctrine of the rule of
law that contrasted the legitimate authority of monarchs with the caprice of despots. It has since
profoundly influenced Western liberal thought.

7.5. The rationale for the rule of law

The rationale for the rule of law is to ensure that no one is above the law. The rule of law in
general implies that the creation of laws, their enforcement, and the relationships among legal
rules are themselves legally regulated, so that no one including the most highly placed official is
above the law. The legal constraint on rulers means that the government is subject to existing
laws as much as its citizens are. Thus, a closely related notion is the idea of equality before the
l w whi h hol s th t no ―l g l‖ p rson sh ll njoy privil g s that are not extended to all and that
no person shall be immune from legal sanctions. In addition, the application and adjudication of

97
Michener, R.E (Ed.). (1982). A.V. Dicey, Introduction to the study of the constitution. Indianapolis: Liberty Fund.
pp. 147-9.
98
Ibid.

60
legal rules by various governing officials are to be impartial and consistent across equivalent
cases, made blindly without taking into consideration the class, status, or relative power among
disputants. In order for those ideas to have any real purchase, moreover, there should be in place
some legal apparatus for compelling officials to submit to the law99.

Accordingly, the institutional separation of the judiciary from other branches of government is
commonly thought to be an important feature of rule-of-law states. Other measures to ensure fair
access to legal institutions may also be important for rule-of-law regimes. In addition, a binding
written constitution is widely believed to aid the rule of law and has been adopted by most states
of the world including Zambia.

Therefore, the rule of law requires that everyone, including members of the judiciary, are subject
to the law and correct mechanisms are embedded to maintain transparency of government
activity. Constitutionalism and the rule of law are the central features of any political democracy
that respects human rights. An independent judiciary, the essential guardian of the rule of law, is
the linchpin of the scheme of checks and balances through which the separation of powers is
assured. Otherwise, there is no other guarantee that the executive-the "government"- will respect
the rule of law and act within established legal norms, processes, and institutions100.

The constitution is thus not merely hortatory but the fundamental and supreme law of the land,
the real and living document that guides, defines, and permits all actions by the state. No
individual or official of the state is above the law or can act in defiance of constitutional
prescriptions. This is what separates democratic states from undemocratic ones. It is the
difference between tyranny and freedom.

The maintenance of an independent and accountable judiciary is fundamental to

constitutionalism and the protection of human rights. The worldwide emergence of constitutions
with wide-ranging and justiciable bills of rights has rekindled public awareness and interest in
the role of courts as a forum through which to seek individual and collective justice and the

99
Ryan, Mark. Unlocking Constitutional & Administrative law (2nd ed.). London: Hodder Education, 2010.

100
See HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS,
MORALS 711-12 (1996)

61
sustenance of a democratic culture. In democratic states, courts are asked to review
gov rnm nt‘s acts for compliance with the bill of rights An in p n nt bo y‘s review of
governmental acts in the interests of maintaining the efficacy of the constitutional guarantee of
individual rights is an essential and important mechanism of democratic governance. Moreover,
such a review being at the instance of an individual assures personal participation in government.

The courts are the guardians of fundamental rights and provide a forum for public debate so that
th x r is of publi pow r by mo r ti lly l t p rsons r m ins ount bl Ju g s‘
interpretations of the constitution and other laws support the rule of law, not executive whims;
and judicial review permits courts to declare as invalid law or conduct that is inconsistent with
the constitution as decided in the case of Thomas Mumba v The People. Only an independent
judiciary can effectively review governmental acts and ensure the constitutional guarantee of
human rights.

7.6. Unit summary

The concept for the rule of law can be traced back to 14th century BC when Aristotle
distinguished the rule of law from an individual. This concept was popularized by AV Dicey in
the 19th century. The rule of law concept entails that no one is above the law which implies equal
application of the law regardless of position or authority in society. This concept is very cardinal
as it guards against despotic rule and enables the country to be governed by constitutional
provisions instead of whims of man.

7.7. END OF UNIT REVISION QUESTIONS

1. Discuss the concept of the rule of law

2. Outline the rationale for the rule of law in a country like Zambia
3. What did AV Dicey expound about the rule of law?
4. Discuss the relationship between the rule of law and democratic governance

62
 UNIT 8

THE DOCTRINE OF SEPARATION OF POWERS

8.1. Objectives

At the end of this unit, students are expected to;

- Have knowledge about the doctrine of separation of powers

- Understand how the doctrine operates in a democracy
- Appreciate the rationale behind the doctrine
- Know why checks and balances are important in a democratic country
- Appreciate the extent of application of the doctrine in Zambia

8.2. Introduction

Separation of powers r f rs to th ivision of st t ‘s gov rnm nt into branches, each with

separate, independent powers and responsibilities, so that the powers of one branch are not in
conflict with those of the other branches. The typical division is into three branches: a
legislature, an executive and a judiciary, which is the trias politica model. It can be contrasted
with the fusion of powers in parliamentary and semi-presidential systems, where the executive
and legislative branches overlap.

8.3. Background to the doctrine of separation of powers

This is a concept that can be traced back to the 16th century and it is associated with writers such
as Aristotle, Montesquieu, St. Thomas Aquinas, Machiavelli among others who all argued that
mixed regimes of the one, the few, and the many were the best forms of regimes in practice
because they led to a system of checks and balances101.

101
Calabresi G and Berghausen E, ‘The rise and fall of the separation of powers’ 106 Northwestern University Law
Review (2012)

63
Baron de Montesquieu, who is widely quoted on the subject of the doctrine of separation of
powers, suggested a pure separation of powers system102. The doctrine of separation of powers is
commonly ascribed to French philosopher Baron Montesquieu although he did not use such a
t rm but r f rr to " istribution" of pow rs In his book ―Th pirit of th L ws (1748),
Montesquieu described the various forms of distribution of political power among a legislature,
x utiv n ju i i ry Mont squi u‘s ppro h w s to pr s nt n f n form of
government whose powers were not excessively centralized in a single monarch or similar ruler
(a form known then as "aristocracy"). He based this model on the Constitution of the Roman
Republic and the British Constitutional system.

Montesquieu took the view that the Roman Republic had powers separated so that no one could
usurp complete power. In the British constitutional system, Montesquieu discerned a separation
of powers among the monarch, Parliament, and the courts of law. In every government there are
three sorts of power: the legislative; the executive in respect to things dependent on the law of
nations; and the executive in regard to matters that depend on the civil law. By virtue of the first,
the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that
have been already enacted. By the second, he makes peace or war, sends or receives embassies,
establishes the public security, and provides against invasions. By the third, he punishes
criminals, or determines the disputes that arise between individuals. The latter we shall call the
judiciary power, and the other simply the executive power of the state103.

Montesquieu argues that each Power should only exercise its own functions. He was quite
explicit as he opined:

―…Wh n th l gisl tiv n x utiv pow rs r unit in th s m p rson or in th

same body of magistrates, there can be no liberty; because apprehensions may arise, lest
the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical
manner. Again, there is no liberty, if the judiciary power be not separated from the
legislative and executive. Were it joined with the legislative, the life and liberty of the
subject would be exposed to arbitrary control; for the judge would be then the legislator.
Were it joined to the executive power, the judge might behave with violence and

102
Cooper S, ‘Considering ‘Power’ in Separation of Powers’ Standard Law Review (1994)
103
Baron Montesiquieu ‘The Spirit of the Laws’ (1748)

64
 oppression. There would be an end of everything, were the same man or the same body,
whether of the nobles or of the people, to exercise those three powers, that of enacting
laws, that of executing the public resolutions, and of trying the causes of
individuals104…‖

Van der Vyver, borrowing from Montesquieu, is of the opinion that separation of powers is
composed of the following principles:105

i. The principle of trias polita, requiring a formal distinction between the legislature,
executive and judiciary.

ii. The principle of personnel according to which the same people should not be allowed
to serve more than one branch of the government at the same time.

iii. Separation of functions between the three branches to avoid one interfering with or
assuming the roles of the other and

iv. The principle of checks and balances that requires that each organ be entrusted with
special powers designed to serve as checks on the exercise of functions by the others in
order to come to an equilibrium.

In its simplicity, separation of pow rs or ing to Bl k‘s L w Di tion ry not s th t pow r

should not be vested in the hands of few, but clearly donated to three arms of government so that
none should have excessive powers106. Such a situation gave rise to the famous quote of Lord
Atkin‘s th t;

‗…power tends to corrupt and absolute power tends to corrupt absolutely…‘

The constitution of Zambia captures the principles elucidated by Van der Vyver, as described
above. As regards formal distinction and precision of functions, the constitution is clear in that

104
Ibid.
105
Van der Vyver JD, ‘Political Power Constraints in the American Constitution’ South African Law Journal (1987).
106
Brayan Carner, Black‟s Law Dictionary (9th ed, West Publishing Company 2009) 45.

65
the sovereign power of the people is delegated to the Legislature, Executive and Judiciary and
goes on further to assign their functions107.

Separation of powers requires a different source of legitimization, or a different act of

legitimization from the same source, for each of the separate powers. If the legislative branch
appoints the executive and judicial powers, as Montesquieu indicated, there will be no separation
or division of its powers, since the power to appoint carries with it the power to revoke.
Montesquieu actually specified that the independence of the judiciary has to be real, and not
merely apparent. The judiciary was generally seen as the most important of the three powers,
independent and unchecked.

8.4. The principle of checks and balances

The idea of checks and balances is part and parcel of the doctrine of separation of powers and
probably the most controversial precept that is also reflected in the constitution. It refers to the
restraints which operate between the different institutions of government in order to guard
against abuses of powers108. The legislature in Zambia, for instance, checks the executive
through reserving the power to impeach a President109, while the Executive, on the other hand,
checks the Legislature through presidential assent of Bills into law.

The Judiciary on its part checks the Executive and Legislature through its power of judicial
review110. This is in line with idea postulated by Mont squi u th t ‗l pouvoir nêt l pouvoir‘
meaning that power should check power. Judicial review denotes the power of the courts of a
country to examine the actions of the legislative, executive, and administrative arms of the
government and to determine whether such actions are consistent with the Constitution. Actions
judged inconsistent are declared unconstitutional and, therefore, null and void. There have been

107
Constitution of Zambia 2016, arts 61, 90 and 119
108
Carrol A, Constitutional and administrative law, Longman Publishers, 2007, 39.
109
Constitution of Zambia Act 2016, art 108
110
Constitution of Zambia 2016, art 134 (c)

66
several instances when the court has stopped or nullified the decisions of the executive because it
was unlawful, ultra vires the constitution or infringing on fundamental rights and freedoms 111.

The principle of checks and balances is that each branch has power to limit or check the other
two, which creates a balance between the three separate branches of the state. This principle
induces one branch to prevent either of the other branches from becoming supreme, thereby
securing political liberty112. Checks and balances are designed to maintain the system of
separation of powers keeping each branch in its place. The idea is that it is not enough to
separate the powers and guarantee their independence but the branches need to have the
constitutional means to defend their own legitimate powers from the encroachments of the other
branches. They guarantee that the branches have the same level of power (co-equal), that is, are
balanced, so that they can limit each other, avoiding the abuse of power.

The origin of checks and balances, like separation of powers itself, is specifically credited to
Montesquieu113. The intention behind a system of separated powers is to prevent the
concentration of power by providing for checks and balances.

8.5. Separation of Powers in Zambia- Theory and Practice

The Constitution of Zambia creates the organs of the state encompassing the legislature,
executive and judicial organs which reflects the democratic ideal that if power is concentrated in
the hands of a few, it is prone to misuse114. This provision aims to safeguard against arbitrary and
capricious governance and the abuse of power. In the new constitutional order promulgated in
2016, although the three organs of the state seemingly work independently, there have been
instances of tensions b tw n th ju i i ry n th oth r rms of gov rnm nt Z mbi ‘s

111
See for example, the case of Attorney General v Clarke Appeal Judgment No 96A/2004, ILDC 1340 (ZM 200)
where the Court quashed a deportation order against a defendant for failure to observe procedural fairness;
Mumba v The People (1984) Z.R. 38 (H.C.),, a provision in a statute which mandated an accused person in a
criminal case to give a sworn statement was held to be inconsistent with the Constitution and was subsequently
quashed by the court; and Christine Mulundika and the Five Others vs. Attorney General S.C. (1995) (1996) where
the court held the provisions o the Public Order Act null and void for being in conflict with the constitution.
112
Arnold I. Burns and Stephen J. Markman (1987) Understanding Separation of Powers, 7 Pace L. Rev. 575.
113
Montesiquieu, B. ‘The Spirit of Laws 1748’.
114
Gloppen (2003). The Accountability Function of the Courts in Tanzania and Zambia: Democratization and the
Judiciary: Oxford University Press.

67
Constitution does not expressly provide for the doctrine of separation of powers, but the
institutional arrangements outlined in all the constitutional regimes of the country infer its
existence. Further, state power has been divided and dispersed to the three main arms of
government; executive, legislature and the judiciary. This means, for example, that the
legislature should not do the work of the judiciary and the judiciary should maintain its lane and
the executive should not do the roles of the judiciary or legislature. 115. In Zambia, separation of
power in this context is practically enforced in many instances and it is in public domain that the
judiciary and not the legislature do its work of adjudicating and interpreting the law without
interference from parliament.

However, there are some instances when there is a clash whereby the legislature usurps power to
interpret the law instead of leaving to the judiciary to do its work. Cases abound and one of the
most controversial decisions by the courts with regard to the legislature is Chishimba Kambwili
v Attorney General116. The petitioner an estranged member of parliament had his seat declared
vacant by the Speaker of the National Assembly on the account that he had crossed the floor by
acting as a political consultant of another party. The Constitutional Court found that the action of
the Speaker to have been unconstitutional as the office is not vested with power to interpret the
law or resolve constitutional matters and therefore usurped the powers of the judiciary. The
Constitution l ourt in Chishimb K mbwili‘s s i f n its juris i tion to t rmin
m tt rs of int rpr ting th l w Th K mbwili‘s ision is v ry import nt because it reinforces
Mont squi u‘s th ory th t th thr rms of gov rnm nt th t is to s y th Ex utiv th
Legislature and the Judiciary have their respective mandates clearly set out in the Constitution
and that, as far as possible, each arm of Government must desist from encroaching on the
functions of the other arms of government. In fact, from the analysis of case law highlighted in
this unit it is l r th t th ourt‘s position h s lw ys b n th t it n only int rf r with th
exercise of the Ex utiv n th L gisl tur ‘s m n t s if it is ll g n monstr t th t
they have threatened to act or have acted in contravention of the letter and spirit of the
constitution.

115
Bradley, A.W & Ewing, K.D (2007) Constitutional and Administrative Law, 14th Edition, Pearson, Harlow.

116
Chishimba Kambwili v Attorney General 2019/CC/009

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8.5. Conjunction of Powers vs. Separation of powers in Zambia- which is the reality?

Wade and Bradley describes conjunction of powers which is also known as fusion of powers as
relating to a situation where the executive and legislative branches of government are
intermingled117. It tends to be a feature of parliamentary democracies and can be contrasted with
the stricter separation of powers found in more presidential democracies. The Zambian
Constitution was shaped by the pre-independence British colonial Constitution in 1964 before
the idea of separation of powers was fully developed. As such, the model of separation of powers
within the Zambian Constitution is not very clear yet as there is an overlap in powers in all of the
governmental elements, which causes a fusion or conjunction of powers rather than a separation.

The biggest overlap in powers in Zambia is between the legislative and the executive branches.
At this juncture, an exploration of these three organs is needed so that we get a clear picture on
whether Zambia has a fusion/conjunction of powers or separation of powers in a stricter sense.
The following analysis on the executive, legislature and judiciary gives a clear picture;

 The Executive

The Zambian constitution provides for the executive branch118. Under the Zambian constitution
the President has executive powers known as the prerogative of power. Under the Executive, we
also find the Vice-President and Cabinet Ministers. The President is a member of the legislative
and executive and also has roles in the judicial system to some extant through judicial
appointments and removal. The executive also has a legislative function when ministers make
regulations through statutory instruments. The executive also has a judicial role through its
administrative tribunals such as the immigration, local government, Tax Appeals, mental health
and social security tribunals. In a literal sense, there is conjunction of powers because there is
really no distinction between the executive and the legislative branch due to the cabinet type of
organization where the executive is an integral part of the parliament.

Additionally, the interference of the executive in parliament can be seen from delegated
legislation. As for the interference of parliament in the executive, it can be seen through

117
E.C.S. WADE & A.W. BRADLEY, (2001) Constitutional and Administration Law 50
118
Ibid, art 90, 91 (1), (2)

69
parliamentary procedures such as the question time, debates and select committees.119 The
interference of executive in parliament through delegated legislation is in the sense that the
legislative functions are exercised by the executive and not the parliament.

 Legislature

Part VI of the constitution of Zambia deals with the Legislature which derives its legitimacy
from the people120 In lin with Mont siqu ‘s o trin llu to bov on stri t s p r tion of
powers, it appears that in Zambia the reality is the opposite because members of parliament in
the ruling political party in government are also part of the executive as well as the legislature
(e.g., those serving as cabinet Ministers are playing a role of both the Executive and Legislature
thereby creating an overlap) which create a conjuncture or fusion of powers instead of separation
of powers in a literal sense. Basically, the second proposition by Van der Vyver alluded to above
that no one person should serve in two arms of government meaning that a cabinet minister
should not seat in parliament seems to be missing in Zambia because members of parliament
(MPs) can serve in two organs of government as the president appoints his cabinet from within
his members of parliament121. In principal, MPs in Zambia serve both in the executive and
legislative bodies. This is in sharp contrast to the ideals of separation of powers as espoused by
Van der Vyver under the inspiration of Baron Montesquie.

 The Judiciary

The constitution of Zambia provides for the Judiciary which is entrusted with judicial
authority122. Judicial authority refers to the powers vested in a tribunal to decide authoritatively
and conclusively disputes between subjects of the State, or between the State and its subjects 123.
For example, there have been several instances when the court has stopped or nullified the
decisions of the executive because it was unlawful, ultra vires the constitution or infringing on

119
Sangwa JP (2005). The Constitutional Framework of Administrative Law: Lusaka, Zambia.
120
Constitution of Zambia 2016, art 61 and 62 (1)
121
Constitution o Zambia, art 116
122
Constitution of Zambia 2016, art 118 (1)
123
Currie and De Waal, The New Constitutional and Administrative Law, (2001) 268.

70
fundamental rights and freedoms as decided in: Attorney General v Clarke124 where the Court
quashed a deportation order against a defendant for failure to observe procedural fairness.

In Zambia, Parliament is not allowed to discuss certain issues if it has yet to be brought to court
for trial. Parliament also cannot criticize judges. However, since Zambia adopts Parliamentary
Supremacy; parliament has powers to influence the judiciary. Parliament can dismiss any court
decision through legislation. Judges are also said to play the function of legislature by applying
the doctrine of precedent and by interpreting statutes through statutory interpretations. Basically
judges give meaning to statutes passed by legislature and the meaning given might not be what
was intended in the first place. Therefore, judges are also said to make law and in cases where
there is no law for certain areas, with such cases before them; judges would have to come up
with a reasonable new principles. Besides that, the Chief Justice does play a part in the formation
of new government where he/she swears in the President and vice-President elect respectively.
Further, Judges actually define the existence and scope of the Presidential prerogative of powers.

Most remarkably, the interference of executive in the judiciary can be seen in the powers of the
executive to appoint judges. The power of the judiciary is also very restricted due to the
Constitutional provision which requires the Judges to be appointed by the Judicial Service
Commission whose composition is mainly presidential appointees125. Consequently, members of
the judiciary have a great link with the executive. The executive also has the discretion to
remove or fire a Judge at the instance of the Judicial Complaints Authority whose composition is
constituted by the executive branch. In addition, Chairpersons of administrative tribunals can
range from professional and qualified administrators to politicians with no proper qualifications.

Generally, the separation of powers as a constitutional principle was introduced to ensure that the
three major institutions of the state are not concentrated in any single body whether in functions,
personnel or powers. Where these bodies have an overlap of function then it entails that there is a
conjuncture or fusion of powers. As such, since there are overlaps in functions and personnel
among the three state organs in Zambia, then it qualifies the statement that it is a conjunction of

124
Appeal Judgment No 96A/2004, ILDC 1340 (ZM 200)
125
See The Judicial Service Commission Act No. 2 of 2016

71
powers rather than a separation of powers that provides the constitution of Zambia with its
momentum.

8.5. Unit summary

Separation of powers r f rs to th ivision of st t ‘s government into branches, each with

separate, independent powers and responsibilities, so that the powers of one branch are not in
conflict with those of the other branches. This doctrine makes it possible to have checks and
balances among all three organs of the state because each organ is independent of each other.
This doctrine is very important as it promotes constitutional democracy and avoids abuse of
power and tyranny among state organs.

8.6. END OF UNIT REVISION QUESTIONS

1. Discuss the doctrine of separation of powers

2. Explain the concept of checks and balances
3. Discuss the limitations on the practical application of the doctrine of separation of powers
in Zambia

72
 UNIT NINE

PARLIAMENTARY SOVEREIGNTY AND PARLIAMENTARY PRIVILEGES

9.1. Objectives;
- Explain the concept of parliamentary sovereignty
- Explain the importance of the concept of parliamentary sovereignty
- discuss the principle of parliamentary privileges
- explain the purpose of parliamentary privileges in democratic dispensation

9.2. Introduction

Parliamentary sovereignty (parliamentary supremacy or legislative supremacy) is a concept in

the constitutional law of some parliamentary democracies. It holds that the legislative body has
absolute sovereignty and is supreme over all other government institutions, including executive
or judicial bodies. It also holds that the legislative body may change or repeal any previous
legislation and so it is not bound by written law (in some cases, even a constitution) or by
precedent.

In some countries, parliamentary sovereignty may be contrasted with separation of powers which
limits the legislature's scope often to general law-making and judicial review, where laws passed
by the legislature may be declared invalid in certain circumstances. Parliamentary law is
sovereign over other forms of law in Zambia. This means that an Act of parliament can
completely overrule any custom, judicial precedent delegated legislation and or previous acts of
parliament. The concept of sovereignty of parliamentary law is based on democratic law making
via the voting system.

AV Dicey made three points of definition of parliamentary supremacy which are;

 Parliament can legislate on any subject-matter

 No parliament can be bound by any previous parliament, nor can parliament press any
act that will bind a later parliament and finally

 No other body has the right to override or set-aside an Act of parliament.

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9.3. Principles of parliamentary sovereignty

According to A.V Dicey, ‘Introduction to the Study of the Law of the Constitution, 1885‘
three main principles of Parliamentary Supremacy is as follows:-

1. Parliament is the supreme law making body and can enact laws on any subject matter
2. Parliament cannot bind its successor
3. No court of law (or other body) can question the validity of Parliaments enactments

Considering each in turn:

 Principle 1: Parliament can enact any law on any subject matter it chooses

Parliament can enact laws on any subject matter, but politically this may not be possible. For
example, it might be politically impossible to enact legislation, which requires women and men
to own property as a precondition of voting. However, a series of cases decided towards the end
of the British Empire illustrate some practical limitations on Parliament's legislative competence:

British Coal Corporatio v R126, the Privy Council affirmed the impact of the Statute of
Westminster which gave legislative independence to Canada and Australia. Section 4 Colonial
Laws Validity Act 1865, thus, limited Parliament's legislative competence in providing that the
Westminster Parliament could only pass legislation for the Dominions with their consent. In
Madzimbanuto v Lardner-Burke127, it was concluded that if Parliament chose to pass a law
which is morally, politically or otherwise improper, the courts cannot hold the Act of Parliament
to be invalid. The case involved the Southern Rhodesia Act 1965, which asserted the
Westminster Parliaments legislative supremacy over Southern Rhodesia, despite Ian Smith's
unilateral declaration of independence in the newly created Zimbabwe. Although Parliament can
enact any law, it does not mean that Zimbabwean citizen's could be forced to acknowledge its
supremacy.

 Principle 2: Can Parliament Bind Subsequent Parliaments?

126
[1935] AC 500.
127
[1969] 1 AC 645.

74
According to A.V Dicey, ‘Introduction to the Study of the Law of the Constitution, 1885‘
parliament cannot bind its successor. This means that once parliament is dissolved, the new
constituted parliament can make new laws or regulations and repeal old laws and regulations
governing its operations. However, this view by Dicey has been challenged by
Jennings and Heuston. The duo considers that Parliament may establish legislation under some
circumstances so as to bind future parliaments. Heuston's understanding on parliamentary
supremacy makes it possible for Parliament to change the way that legislation is enacted and to
provide for legislation to be well-established. Jennings128 challenges Dicey's theory, when he
argues that supremacy is a more accurate description of Parliaments legislative competence. He
suggests that Parliamentary Supremacy is a legal concept, which describes the relationship
between Parliament and the courts. He states that this 'means that the courts will always
recognize as law the rules which Parliament makes as legislation'. Later he states '... Legal
sovereignty is merely a name indicating that the legislature has for the time being power to make
laws of any kind in the manner prescribed by law129.

R.F.V. Heuston130 asserted that a new view of sovereignty had overtaken Dicey's theory.
Heuston argues that;

1. Sovereignty is a legal concept: rules, which identify the sovereign and decide its
formulation and functions logically prior to it.
2. The rules which govern the composition, procedure and area of powers of the sovereign
legislature can be distinguished;
3. The courts can question the validity of an Act on its composition, on its procedure, but
not on the powers of the legislature;
4. This jurisdiction can be exercisable before or after the Royal Assent.

There is no legal limit on the laws that Parliament may enact, therefore any constraints are
political and not legal. The Zambian constitution for example, imposes no constraints on
Parliamentary Sovereignty. The doctrines of express and implied repeal are used when the courts
are faced with two Acts of Parliament on the same subject matter that contradict each other.

128
The Law of the Constitution (5th edn, London University Press, 1959: 152-3).
129
Ibid, p. 159.
130
R.F.V. Heuston ‘Essays in Constitutional Law’ (2nd edn, Stevens and Sons, 1964:6-7).

75
  Principle 3: No court or body can question the legal validity of an Act of Parliament

Principle 1 above means there is no area on which Parliament cannot legislate and principle 3
means that once it is enacted no institution or individual can question its validity. The Manuel v
Attorney General131, case confirms that it is the duty of the court to obey and apply every Act
of Parliament, and the court cannot hold an Act to be ultra vires. Courts are not entitled to
consider any defects in parliamentary procedure leading to the enactment of the legislation.
However, courts may invalidate delegated legislation which is deemed to be ultra vires.

Parliament does recognize some limits on its supremacy, but it is arguable that these are political
limitations in instances when statutes contradict a provision of international law. For example, in
the UK and Zambia 'dualist' system such provisions are not binding on Parliament unless
Parliament enacts a statute to bring it into effect. International law does not render a
contradictory domestic law void.

Cheney v Conn132 asserts the hierarchical superiority of Acts of Parliament even over
international law. Courts operate the principle that Parliament does not intend to legislate in
contradiction with international law, so if possible interpret the Statute to give consistent
meaning with that of the international provision.

9.4. Can Parliament amend its own Constitution?

If Parliament can pass, repeal or amend any law that it likes, it is able to amend the Constitution.
For example, in Zambia, in 2020, the Zambian parliament tried to amend the constitution of
Zambia through the Constitutional Amendment Bill 2019 popularly known as Bill 10. However,
this attempt did not succeed as the three third majority threshold could not be garnered to support
the Bill133.

Relevant case law suggests that parliament it is able to amend its own constitution for particular
purposes. In Jackson v Attorney General134 , the House of Lords had to determine the validity

131
Manuel v Attorney General [1983] Ch 77.
132
Cheney v Conn [1968] 1 All ER 779.
133
www.zambiareports .com. ‘Bill 10 fails to pass’, 2021.
134
Jackson v Attorney General [2006] 1 AC 262.

76
of the Parliament Act 1949, which amended the Parliament Act 1911. The 1949 Act was
passed without the consent of the House of Lords in accordance with the procedure stipulated in
section 2 1911 Act. The invalidity of the 1949 Act would make the Hunting Act 2004 invalid.
The House of Lords held that there is no constitutional principle or principle of statutory
interpretation, which prevents the legislature from amending the constitution in accordance with
the provisions of a statute which empowers it to do so.

9.5. Principle of parliamentary privilege

Parliament is a law making body. Apart from making the law, parliament conducts various
businesses in the house ranging from public debates on matters of public concern, scrutiny of
government actions, questioning of witnesses and generally providing oversight and checks on
the running of the country. Parliament rightly does so because it is composed of members who
are democratically elected to represent the people. MPs are elected with a mandate to implement
a philosophy. They are voted in because the people of their electorate, having considered the
ideas of the parties or candidates presented to them, preferred one programme to another.

The question is how does parliament effectively carry out its mandate of checks and balances
without fear of law suits? The answer lies in parliamentary privileges. Parliamentary privilege is
simply a legal immunity enjoyed by members of certain legislature, in which legislators are
granted protection against civil or criminal liability for actions done or statements made in the
course of their legislative duties.

9.6. Historical Background to the principle of parliamentary privilege

The sovereignty of Parliament was hard won. The early Stuart monarchs, King James I and King
Charles I of England, believed that they governed by divine right. On 3 January 1642 King
Charles I came with a large squad of soldiers to Parliament with the intention of arresting five of
th M mb rs Wh n h oul not s th m th r th King is s i to h v omm nt ‗Th bir s
h v flown ‘ n to h v sk th p k r wh r th y w r Th Speaker is said to have replied
as follows;

―I have neither eye to see, nor voice to speak in this place but as the House is pleased to
ir t m ‖.

77
The King and the Speaker both walked away from this encounter, but the King had signed his
own death warrant. Two revolutions and a regicide later, in 1688, the English Bill of Rights was
passed. Article 9 of that bill said that the proceedings of Parliament could not be impeached
outside of Parliament. This article has had a far reaching effect down to this day in many
countries especially the former British colonies.

9.7. Parliamentary privileges in Zambia

The principle of parliamentary privileges in Zambia can be traced back to the English legal
system. Parliamentary privilege grants certain legal immunities for Members of the House to
allow them to perform their duties without interference from outside of the House. Parliamentary
privilege includes freedom of speech and the right of the house to regulate its own affairs.

Article 76 (1) and (2) of the Zambian Constitution provides as follows regarding Parliamentary
privilege;

―…A Member of Parliament has freedom of speech and debate in the National Assembly
and that freedom shall not be ousted or questioned in a court or tribunal. (2) A Member of
Parliament shall have the powers, privileges and immunities, as prescribed…‖

In countries such as Zambia and other commonwealth countries, parliamentary privileges allows
members of the house to speak freely during ordinary parliamentary proceedings without fear of
legal action on the grounds of defamation, slander, breach of official secrets etc. It also means
that members of parliament cannot be arrested on civil matters for statements made or acts
undertaken as an MP within the grounds of parliament, on the condition that such statements or
acts occur as part of a proceeding in Parliament for example, as a question to the Vice President
in parliament. This allows Members to raise questions or debate issues which could slander an
individual, interfere with an ongoing court case or threaten to reveal state secrets etc. There is no
immunity from arrest on criminal grounds.

A consequence of the privilege of free speech is that legislators are forbidden by conventions of
their House from uttering certain words, or implying that another member is lying, a thief or
immoral. (unparliamentary language). In the Zambian case, the rights and privileges of members
are overseen by the speaker and Committee on Standards and Privileges. If a member of the
House is in breach of the rules then he/she can be suspended or even expelled from the House.

78
Such past breaches have included giving false evidence before a committee of the House and the
taking of bribes by members or uttering insolent remarks against another member from the
house.

Parliamentary privilege is controversial because of its potential for abuse; a member can use
privilege to make damaging allegations that would ordinarily be discouraged by defamation
laws, whether or not those allegations have a strong foundation. A member could, even more
seriously, undermine national security and/or the safety of an ongoing military or covert
operation or undermine relations with a foreign state by releasing sensitive military or diplomatic
information.

Whereas the doctrine of parliamentary privilege originated in the United Kingdom where it was
originally applied to ensure unhindered service to the King by his advisors, it is important to note
that the privileges and immunity of parliament are interpreted differently in different countries.
Different countries practice different types of privileges and parliamentary immunity. Britain,
Zambia, Zimbabwe, Canada and South Africa among others practice non-accountability immunity
which protects members of parliament from civil and criminal liability, whilst France, in addition to
non-accountability, also practices a form of inviolability which protects members of parliament
from criminal liability arising from any criminal act committed outside of parliament while they are
sitting members.

The content of privilege and immunity comprises exclusive cognizance of a parliament that protects
its integrity and so enables it to regulate its own affairs, and the freedom of speech and debates to
such an extent that members are protected in the discharge of their parliamentary duties. The scope
of the privilege is limited to anything said in, produced before, or submitted to parliament or its
committees and which involves the business of parliament. Protection is not limited to members of
parliament: national legislation can extend the privilege to other personnel who are linked to the
business of parliament. Parliamentary business is not confined to transactions taking place within
the precincts of parliament, since parliament can sit anywhere outside its normal seat. The
interpretation of parliamentary privilege in foreign jurisdictions sheds light on the interpretation and
illuminated the meaning of the privileges and immunities of parliament in South Africa under the
1996 Constitution.

79
The principal immunity is the freedom of parliamentary debates and proceedings from question
and impeachment in the courts, the most significant effect of which is that members of
Parliament cannot be sued or prosecuted for anything they say in debate in the houses. The
principal powers are the power to compel the attendance of witnesses, the giving of evidence and
th pro u tion of o um nts n to ju g n punish ont mpt‘s of th hous

Parliamentary privileges has the effect of ensuring that members, witnesses brought before the
house cannot be sued or prosecuted for anything they say or do in the course of parliamentary
proceedings. This freedom of speech has always been regarded as essential to allow the houses to
debate and inquire into matters without fear. All words spoken and acts done on the floor of the
house are privileged including words or work done for purposes of transacting the business of a
House or of a committee which includes;

a. the giving of evidence before a House or a committee, and evidence so given;

b. the presentation or submission of a document to a House or a committee;
c. the preparation of a document for purposes of or incidental to the transacting of
any such business; and
d. the formulation, making or publication of a document, including a report, by or
pursuant to an order of a House or a committee and the document so formulated,
made or published.

Parliamentary privilege however, does not prevent the use of proceedings of Parliament in court
to establish a material fact, for example, to prove that a person was at a particular place at a
particular time, to test the fairness and accuracy of a press report of parliamentary proceedings,
or to prosecute certain offences against Parliament. Further, Members of the house possess some
minor legal immunities principally exemptions from compulsory attendance before a court or
tribunal when Parliament is sitting. Democracy assumes that nobody is infallible, and that all
views of the world are in principle capable of becoming government policy, subject only to
democratic votes.

Democracy requires that all points of view ought to be allowed to be expressed, albeit with
safeguards to protect the reputation of citizens. This is the fundamental reason for the

80
parliamentary privilege of free speech. In the case of Prebble v. TV New Zealand135 the Privy
Council held that a Member of Parliament could not waive parliamentary privilege because the
parliamentary privilege of free speech is not primarily a privilege of the Members of Parliament
who exercise it, but a privilege of the Parliament itself. It was the representative body, not the
individual member who possessed the privilege. Thus absolute privilege exists for the benefit of
electors, not the elect. It is a safety valve which ensures that propositions someone in the
community believes, whether true or false, and opinions someone in the community holds,
whether popular or unpopular, can be expressed. The parliamentary privilege of free speech is
the privilege of the people to hear the truth or its opposite spoken, and to re-elect or sack those
who speak it. The so- ll ow r s‘ stl is tu lly th p opl ‘s ru ibl It n bl s th
people rather than the Grand Inquisitor to be the judge of the value of what is spoken.

The very notion of representative democracy requires that the people, through their elected
representatives, not an unelected body, however benign, should have the final say over what can
be said and done

9.8. Powers of the House

There are two significant powers of the houses: the power to conduct inquiries and the power to
punish ont mpt‘s

Parliament has the power to require the attendance of persons and the production of documents
and to take evidence under oath. This power supports one of the major functions of the house:
that of inquiring into matters of concern as a necessary preliminary to debating those matters and
l gisl ting in r sp t of th m Th pow r is p n nt upon th pow r to punish ont mpt‘s by
which the house may enforce the attendance of witnesses and production of documents.
The power to conduct inquiries is usually not exercised by the house per se, but is delegated to
committees by giving those committees the powers to require the attendance of witnesses and the
production of documents. Proceedings in parliamentary committees are proceedings in
Parliament, and the immunity from impeachment or question in the courts attaches to words

135
[1994] All E. R. 407.

81
uttered in committee proceedings by members and witnesses and to the production of documents
to committees as provided for in the National Assembly (Powers and Privileges) Act136.

There is of course no limitation on the power of the house to compel the attendance of witnesses,
the giving of evidence and the production of documents before the house.
Witnesses to parliamentary committees are now protected by the powers of the house to punish.
It is an offence punishable by fine or imprisonment to interfere with a parliamentary witness.
Specifically witnesses may not be improperly influenced by fraud, intimidation, force or threat
nor may they be offered any inducement or bribe in relation to their evidence. No penalty or
injury may be inflicted on a witness on account of their evidence and witnesses if they wish may
consult from their counsel for legal advice before appearing before the parliamentary house.

9.9. Unit summary

Generally, parliamentary sovereignty is said to be the power that has been given to parliament to
make law. No court or tribunal can challenge the legal validity of an Act of parliament. Courts
can only question an Act if it is not in conformity with the constitution or the parent Act and
subsequently render it void if it is unconstitutional. Parliamentary privilege exists for the purpose
of enabling the houses of the Parliament to carry out effectively their functions without fear of
criminal or civil liability.

9.9.1. END OF UNIT REVISION EXERCISE

1. What is parliamentary privilege and give three examples of parliamentary privileges.
2. Do s p rli m nt n ‗p rli m nt ry privil g s‘ in or r to fun tion ffi i ntly? Expl in
with practical examples.
3. How are rights of witnesses protected during parliamentary proceedings?
4. What do you understand by parliamentary sovereignty?
5. State and explain two principles of parliamentary sovereignty.

136
Chapter 12 of the Laws of Zambia.

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 UNIT TEN

THE LEGISLATIVE PROCESS

10.1. Learning outcomes

At the end of this unit, a student should be able to;

- Know all the processes involved in law making in the country

- Have an insight on the procedure for altering or making an amendment to the republican
constitution and how such procedure differs from ordinary law making
- Know the difference between primary legislation and delegated legislation
- Understand the concept of parliamentary scrutiny of delegated legislation

10.2. Introduction

In each and every country, laws are passed for the purpose of governance, maintenance of law
and order etc. Parliament is in most jurisdictions including Zambia charged with the
responsibility of initiating legislation. Legislation refers to statutory laws that have been enacted
by parliament or the national assembly. Before a bill becomes law, it passes through various
stages in parliament including debates and scrutiny.

One of the main functions of the legislature or Parliament is to make laws. In Zambia, Articles
62(2) and 63(1) of the Constitution give Parliament the authority to make laws.
The term "legislature" means a body of elected representatives that makes laws. The prime
function of legislatures, therefore, is to formulate, debate, and pass legislation which is needed
for the government and the country to function. The legislature also provides a forum in which
the public can participate in issues and watch over the executive arm of government137.

The Legislative arm of government is responsible for making laws, repeals, amends and
providing other oversight roles such as scrutinizing government programmes and approving

137
Kaaree Strom (1997). Rules, reasons and routines: Legislative roles in parliamentary democracies, The Journal of
Legislative Studies, 3:1, p 156.

83
government financial estimates138 (budget). For example, the legislative power of the Republic of
Zambia is held by the National Assembly which consists of 156 directly elected members and
not more than eight (8) members nominated by the President. It is headed by the speaker139.

This unit will explore more on the stages of law making in Zambia. It will also explain what a
bill is and the purpose of scrutiny of delegated legislation.

10.3. The Bill and its Contents

A Bill is a proposal to make a new law, or make changes to an existing one. A bill is proposed
legislation under consideration by a legislature. A bill does not become law until it is passed by
the legislature and, in most cases, approved by the executive. Once a bill has been enacted into
law, it is called an act of the legislature, or a statute. Bills can amend the codes and statutes by
adding new language or changing existing language. Provisions that directly amend an existing
statute must follow two format conventions. First, the language describing the statute being
amended, also called the recital must refer to the official citation of that statute.
A bill is composed of three basic parts; introductory language, substantive provisions and
procedural provisions. It may also short title, a statement of policy or purpose, definitions,
operative provisions and enforcement provisions.

 Introductory language;

The standard features of a bill include the heading, the caption, and the enacting clause, which
are referred to collectively as introductory language. The first line at the top of the first page of
v ry bill is th h ing som tim s r f rr to s th ―bylin ‖ Th h ing in i t s th
h mb r in whi h th bill w s intro u th bill numb r n th uthor‘s n m B low th
heading are the caption and the enacting clause, which are both, required to be included in every
bill. The caption is meant to give legislators and other persons a convenient way to determine the
subj t of th bill n usu lly in lu s th phr s ―r l ting to ‖ Th n ting l use is in all caps,
is indented, and ends with a colon. For purposes of understanding the bill, the caption is the most

138
Ibid.
139
Article 62, Constitution of Zambia, 2016.

84
important part of the introductory language because it serves as an immediate explanation of the
bill‘s subj t m tt r

 Substantive provisions

Following the introductory language are the substantive provisions of the bill. These are the
contents of the bill that are outlined in the form of sections and subsections.

 Short title and statement of policy or purpose

A short title is neither required nor appropriate for most bills, but sometimes is included in a bill
to provide a convenient way of citing a major, cohesive body of law that deals comprehensively
with a subject. A statement of policy or purpose is neither required nor appropriate for most bills,
but may sometimes be included when a substantial body of new law is introduced or when the
operative provisions of a short bill do not clearly indicate what the bill is intended to accomplish.

 Definitions and principal operative provisions

A bill may include an entire section dedicated to definitions of terms that apply to a code, a title,
a chapter, or a subchapter, or it may define terms in a statutory subsection that apply only to that
statutory section. There are two categories of principal operative provisions. Administrative
provisions relate to the creation, organization, powers, and procedures of the governmental units
that enforce the law. Substantive provisions grant or impose on a class of persons rights, duties,
powers, and privileges and may govern conduct by establishing either a mandate or a prohibition.

 Enforcement provisions

An enforcement provision prescribes a punishment for violating a mandate or a prohibition. Such

a provision generally establishes a criminal penalty, a civil penalty, an administrative penalty,
injunctive relief, or civil liability as a consequence of violating the mandate or prohibition.

Having explained what a bill is, now let us discuss the types of bills that are out there.

85
Topic 3: Types of Bills

There are various types of bills that can be introduced by parliament. However, the most
common ones in Zambia are;

a. Public Bill – This is a Bill which relates to matters of public policy. It can be a
Gov rnm nt Bill or Priv t M mb r‘s Bill An x mpl of public bill is a government
Bill and a Private members Bill.
b. Government Bill; A bill that is brought up for debate by the Vice-President or a
Minister.
c. Private Members’ Bill - A bill that is brought up for debate by a back-bencher.
d. Private Bill - A bill brought up for debate by a back-bencher following a petition signed
by the promoters of the Bill. A Private Bill only affects a limited section of the public.
e. Hybrid Bill – A bill that relates to public policy, but also affects private interests of a
particular person, association or body.
f. Money Bill- A bill that relates to the use, acquisition, investment or custody of public
funds.

10.4. The Legislative process

A Bill cannot become law without being passed through the National Assembly and be assented
to by the President. The legislative process is provided for under Part VI of the Constitution of
Zambia. To become Law, a Bill must go through the following stages:

 First Reading

This is when the Bill is presented in the House (National Assembly) by the Minister or
backbencher responsible for the Bill. The Speaker will then refer the Bill to a relevant committee
that will be required to report back to the House after detailed scrutiny of the Bill. No debate
takes place at this stage.

 Second Reading

This stage is the first main occasion for debate on the Bill in the House. The Member responsible
for the Bill will read a speech explaining the implications of the Bill as well as setting out its
advantages and disadvantages. This is followed by the Chairperson of the Committee that

86
 onsi r th Bill pr s nting th Committ ‘s fin ings on th Bill This is th n follow by
general debate which is informed by the report of the Committee to which the Bill was referred
for scrutiny.
At the end of the debate, the Speaker will ask the House whether the Bill should be read a second
time. Members indicate by saying "AYES," if they are in favour of the Bill or "NO," if they are
against it. If the "AYES" are in the majority, the Speaker will order the Bill to be read a second
time and the Bill proceeds to Committee Stage. If the "NOES" are in the majority, the Bill is
withdrawn and it cannot be re-introduced during the same Session.

In the case of a Bill to Amend the Constitution, when the question is put by the Speaker that the
Bill be read a second time, a vote is immediately conducted and the Bill requires the support of
at least two-thirds of the total Membership of the House to pass the second reading stage.

 Committee Stage

At this stage, the Bill is considered by the Committee of the whole House. The Committee
examines the Bill clause by clause. At this point Members are free to speak and may
introduce amendments provided they are compatible with the Bill. The Committee of the
whole House is chaired by the First or Second Deputy Speaker.

 Report Stage

The Report Stage is similar to the Committee Stage except at this stage, only additional
amendments to the Bill not moved at the Committee Stage are considered. This gives Members
an opportunity to make further amendments to the Bill. If a Bill was not amended at Committee
Stage, this stage is skipped and the Bill is taken directly for third reading. The Speaker Presides
over the Report Stage.

 Third Reading

At this stage, the Bill is reviewed in its final form and no debate takes place. When the question

87
is put to the House and is agreed to, the Bill is considered to have been passed and is presented to
the President for assent. The Only exception is a Bill seeking to amend the Constitution, which,
to be passed, will require the support of at least two-thirds of the total membership of the House.

 Presidential Assent

Once a bill is presented to the President for assent, the President shall, within twenty one days
assent to the Bill. If the President gives his/her assent to the Bill, it becomes law (an Act of
Parliament). The President can, however, withhold his assent to a Bill, and send it back to the
National Assembly for reconsideration with an indication of the reservations the President has of
the Bill. The National Ass mbly m y th n m n th Bill t king into ount th Pr si nt‘s
reservations or pass it without amendments with the support of at least two-thirds of the
Members of Parliament. If the House, by a two-thirds majority, passes the Bill without the
amendments recommended by the President, the Bill will be resubmitted to the president for
assent and the President must assent to it within 7 days. If the National Assembly fails to pass the
Bill unamended with at least a two-thirds vote, the Bill shall not be presented to the National
Assembly again in that session. Where the President does not assent to a Bill within the
prescribed period, the Bill is considered assented to once the prescribed period expired.

Amending/altering the Constitution of Zambia

Article 79 of the Constitution provides for entrenchments clauses and prospective formulae.
Entrenchment clauses are statutory provisions, which attempt to protect an Act of Parliament
from amendment or repeal. An entrenchment clause requires that a special procedure be adopted
in order to amend or repeal a specific Statute, such as a referendum or a two-thirds majority in
favour. For example, in Zambia to change part III of the bill of rights, it requires a referendum to
be held to illicit the will of the people, requiring a majority of the Zambian people.

Article 79140 on the procedure to alter or amend the constitution reads;

140
Article 79, Constitution of Zambia Amendment Act No. 18 of 1996.

88
 ―… (1) ubj t to th provisions of this Arti l P rli m nt m y lt r this Constitution or
The Constitution of Zambia Act, 1991.

(2) Subject to clause (3) a bill for the alteration of this Constitution or The Constitution of
Zambia Act, 1991 shall not be passed unless -- (a) not less than thirty days before the first
reading of the bill in the National Assembly the text of the bill is published in the
Gazette; and (b) the bill is supported on second and third readings by the votes of not less
than two thirds of all the members of the Assembly.

(3) A bill for the alteration of Part III of this Constitution or of this Article shall not be
passed unless before the first reading of the bill in the National Assembly it has been put
to a National referendum with or without amendment by not less than fifty per cent of
persons entitled to be registered as voters for the purposes of Presidential and
parliamentary elections.

(4) Any referendum conducted for the purposes of clause (3) shall be so conducted and
sup rvis in su h m nn r s m y b pr s rib by or un r n A t of P rli m nt…‖

10.5. Primary legislation and secondary legislation

In parliamentary systems and presidential systems of government, primary

legislation and secondary legislation, the latter also called delegated legislation or subordinate
legislation, are two forms of law created respectively by the legislative and executive branches of
gov rnm nt Prim ry l gisl tion g n r lly onsists of st tut s lso known s ‗A ts‘ whi h s t
out broad outlines and principles, but delegate specific authority to an executive branch to make
more specific laws under the aegis of the principal act. The executive branch can then issue
secondary legislation (or by regulatory agencies thereby creating legally enforceable regulations
and the procedures for implementing them.

Generally, primary legislation is the general term used to describe the main laws passed by the
legislative body of Zambia. For example an Act of Parliament such as; the Companies Act 2017
or the Mental Health Act 2019 etc.

89
Secondary legislation (also referred to as delegated legislation or subordinate legislation) is law
made by an executive authority under powers delegated by an enactment of primary legislation,
which grants the executive agency power to implement and administer the requirements of that
primary legislation. In other words, delegated legislation is law made by some person or body
other than parliament, but with the permission of parliament.

The authority is laid down in a parent act of parliament, known as an enabling Act which creates
th stru tur of th l w n th n l g t s‘ pow rs to oth rs to m k mor t il l w in th
area. Forms of delegated legislation include statutory instruments and by-laws. For example, the
‗Covi -19 R gul tions 2019‘ whi h w s issu un r th Ministry of Health Zambia and local
government ministry, is an example of a statutory instrument.

Article 67 (1)(2) of the Zambian Constitution makes provision for the creation of statutory
instruments. Statutory Instruments refers to the rules and regulations made by government
ministers. They are given authority to make regulations for areas under their particular
responsibility.

Bylaws refers to the laws made by the local authorities to cover matters within their own area for
example, Ministry of Local Government can pass laws affecting the whole county but a district
or a town council can only make bylaws for its district or town. Local bylaws can involve traffic
control, such as parking restrictions. Bylaws can also be made by public corporations and certain
companies for matters within their jurisdiction which involve the public. This means that bodies
such as the Zambian airports authority and the railways can enforce rules about public behaviour
on their premises. An example of this can be the smoking ban on the public transport.

10.6. The need for delegated legislation

The reason why delegated legislation is necessary is entirely because the parliament does not
have time to consider and debate every small detail of complex regulations. Also the parliament
may not have the necessary technical expertise or knowledge required, for example health and
safety regulations in different industries need expert knowledge on the other hand local parking
regulations need local knowledge.

90
Modern society has become very complicated and technical so that it is impossible for members
of parliament to have all the knowledge which is required to draw up laws on controlling
technology or ensuring environmental safety. It is better for parliament to debate the main
principles thoroughly but leave the detail to be filled in by those who have expert knowledge of
it.

Ministers can have the benefit of further consultation before regulations are drawn up.
Consultation is particularly important for rules on technical matters, where it is necessary to
make sure that the regulations are technically accurate and workable. Some acts giving the power
to make delegated legislation set out that there must be consultation before the regulations are
created.

Another advantage that delegated legislation has is that the process of passing an act of
parliament can take a long time even in an emergency as for delegated legislation can be passed
on very quickly and it can be amended and revoked easily when necessary so the law can be kept
up-to date and ministers can respond to new or unforeseen situations by amending statutory
instrument.

10.7. Committee on Parliamentary scrutiny of secondary/delegated legislation

Parliament in Zambia is the highest legislative organ with the responsibility to scrutinize and
legislate. Article 80 of the Constitution of Zambia gives powers to Parliament to establish
Parliamentary Committees. Once power has been delegated to ministers, Parliament may
scrutinise the secondary legislation made under the power. The Committee on Delegated
Legislation scrutinises and reports to the House, through the Speaker, whether the powers to
make orders, regulations, rules, sub-rules and by-laws delegated by Parliament are being
properly exercised by any person or authority within such delegation.

 Functions of the Committee on Delegated Legislation

According to www.parliament.gov.zm/node/33, the following is the composition, nature and

functions of the Committee;

91
 1. The Committee on Delegated Legislation consists of eight members other than the Vice-
President, Ministers, Deputy Minister or any members holding or acting in any office
prescribed by or under an Act of Parliament, appointed by the Speaker at the
commencement of every session. The quorum of the Committee is four.
2. In appointing the members of the Committee, one of whom shall be the chairperson, the
Speaker gives preference to those who have a legal background and experience.
3. The Committee scrutinizes and reports to the House, through the Speaker, whether the
powers to make orders, regulations, rules, sub-rules and by-laws delegated by Parliament
are being properly exercised by any person or authority within such delegation. As the
m hin ry of l g t l gisl tion is lt with un r th h ing ― t tutory
Instrum nts‖ th s instrum nts must:
o be in accordance with the Constitution or statute under which they are made;
o not trespass unduly on personal rights and liberties;
o not make the rights and liberties of citizens depend upon administrative
decisions; and
o be concerned only with administrative detail and not amount to substantive
legislation, which is a matter for parliamentary enactment.

If the Committee is of the opinion that a Statutory Instrument (SIs) should be revoked wholly or
in part or should be amended in any respect, it reports that opinion and the ground thereof to the
House, and any such debate is subject to a motion in the National Assembly which, if carried,
would have the effect of a decision of the House.

When Acts of Parliament delegate powers to ministers, they designate one of a number of
parliamentary scrutiny procedures or no procedure at all for the SIs that will follow. The most
common procedures are the negative procedure and the affirmative procedure. For the negative
procedure, an instrument is laid before the House, usually after being made. The House may
within 40 days pass a motion that the instrument be annulled. The instrument may come into
force at any time after it is made and remains in force until it expires or is revoked or annulled.
Negative instruments are debated only if a member specifically requests a debate and if the
Government provides time for it. Under the affirmative procedure, an instrument is usually laid
before Parliament in draft and must be approved by the House before it may be made. Several

92
committees scrutinize secondary legislation when it is laid before Parliament. The Joint
Committee on Statutory Instruments (JCSI), whose membership is drawn from the House, looks
at the legal and technical correctness of SIs, including whether they are properly made on the
basis of the delegated powers in the relevant primary legislation. The Committee may also
examine the policy impact of SIs.

10.8. Unit summary

A bill is a proposal to make new law. Before a bill becomes law, it has to go through various
stages as discusses in this unit. The final stage in law making is Presidential Assent. Bills go
under scrutiny in parliament to ensure that they are good for the people and will achieve the
intended purpose effectively. Approving and debating new laws are responsibility of the
parliament. Parliament consists of Select committees which serve an important role in
scrutinizing the government, bills and legislation. These committees check the work of particular
departments and make judgments. Parliament committees consist of groups of members of
m mb r‘s p rli m nt (Mps) whi h r st blish by p rli m nt to provi sp ifi fun tions or
tasks that are committed to them. Parliament ensures the accountability of the executive in
several ways and ensures that secondary legislation is put in check by scrutinizing it. The main
challenges for scrutinizing delegated legislation relate to the volume and complexity of statutory
instruments.

10.9. END OF UNIT 10 REVISION EXERCISE

1. Write brief notes on the following;

e. Report stage
f. Committee stage
g. Second reading
2. What is the difference between primary and delegated legislation?
3. Define a bill and state at what point does a bill become law.
4. Give two examples of delegated legislation and three examples of primary legislation in
Zambia.
5. What is the purpose of parliamentary scrutiny of a proposed law? Explain

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 UNIT ELEVEN

UNICAMERALISM AND BICAMERALISM

11.1. Learning outcomes

After this unit, a student should be able to;

- Understand what a unicameral legislature means

- Understand the pros and cons of a unicameral legislature
- Know what a bicameral legislature is and understand its pros and cons

11.2. Introduction

Legislature refers to the law making body of a state. It is the first organ of the government. It has
the power to make or change laws and oversee the administration of the government. The
legislature can be of two types: unicameral and bicameral. Let us see what we mean by a
unicameral and bicameral legislature.

11.3. Unicameral legislature

Unicameral legislature refers to the practice of having only one parliamentary or legislative
chamber to perform legislative activities or functions like passing a budget, enacting laws,
oversee the administration, discussing matters of national or international importance 141. Most of
the countries in the world have a unicameral legislature, e.g. Zambia, Norway, Sweden, New
Zealand, Iran, Hungary, China, Sri Lanka etc.

Basically, unicameral is the Latin word that describes a single-house legislative system. For
example, Zambian parliament has only one chamber house as opposed to two as the case is with
the United Kingdom (UK). UK has the House of Lords and the House of Commons. Countries
with unicameral governments include Zambia, Armenia, Bulgaria, Denmark, Hungary, Monaco,
Ukraine, Serbia, Turkey, and Sweden. Unicameral systems became more popular during the 20th
century and some countries, including Greece, New Zealand, and Peru, switched from a

141
Noah M. Kazis, American Unicameralism: The Structure of Local Legislatures, 69 Hastings L.J. 1147 (2018).
Available at: https://repository.uchastings.edu/hastings_law_journal/vol69/iss4/3.

94
bicameral to a unicameral system. Smaller countries with long-established democracies tend to
have unicameral systems while larger countries may have either a unicameral or bicameral
system.

Advantages of unicameral legislature; This type of legislature is considered the most effective
legislature as the lawmaking procedure is simple and there are fewer chances of deadlocks or
gridlocks. Furthermore, a single chamber government need fewer resources and can be managed
by fewer representatives that help save a lot of money and time of the government. The members
of the unicameral legislature are directly elected by the people of the country.

Other advantages of a unicameral legislature are;

A unicameral legislature is that it is democratic. Democratic tenets postulate that people who
make laws for the masses must be elected in a free and fair election. Members of a unicameral
chamber are directly elected by the people making it more democratic. Also, unicameral
legislature does not allow filibusters to carry out their nefarious activities as they do when there
is a two chamber legislature.

Unicameral legislature is easy to maintain, that is, it is cheaper to run than bicameral legislature,
since there is no second chamber to maintain. Unicameral legislature is also known to be ideal
for unitary states. In a bicameral legislature, some form of rivalry is present and unavoidable as
the two chambers struggle for superiority. Unicameral legislature prevents squabbles as to which
of the houses is upper and which is lower. Unicameral legislature provides room for a faster
process of law making and is applicable in moments of emergency142.

Unicameral legislature has its own disadvantages; Unicameral legislature does not make room
for adequate and equal representation in a country as large as Nigeria. A unicameral legislature
creates room for the emergence of a dictatorial head of state because it does not check excesses
as well as a bicameral legislature. The absence of a second chamber removes those moments of
sober reflection on laws which are passed. It also creates the opportunity for a government to use
the single chamber to force obnoxious laws through, especially if it has majority in the chamber.
Another disadvantage of a unicameral legislature is that the members of the chamber can be

142
. Kim Robak, (1997). The Nebraska Unicameral and Its Lasting Benefits, 76 NEB. L. REV. 791, 792.

95
unduly influenced especially by a ruling government that has majority in parliament but
sometimes also by the minority party.

Unicameral legislatures do not allow bills to be properly debated before they hastily passed. In a
unicameral legislature, it is only one chamber that does all the work. There is no opportunity for
assistance from a second chamber143.

11.4. Bicameralism

The bicameral legislature has two separate houses, assemblies or chambers to perform legislative
functions like enacting laws, passing the budget, etc. Its main objective is to represent people
from all the sectors or societies of the country. Some of the countries where the bicameral
legislature is adopted include India, Canada, Japan, Spain, Italy, United States and the United
Kingdom. Each country follows its own specific procedure to select members of the two houses.
These chambers or houses are different from each other in terms of the number of seats, powers,
voting process and so on.

Bicameralism is distinguished from unicameralism in which all members deliberate and vote as a
single group144. Often, the members of the two chambers are elected or selected by different
methods, which vary from country to country. This can often lead to the two chambers having
very different compositions of members. An example of bicameral legislature is United States
which has two chambers; Senate and the House of Representatives.

There are many reasons why states choose to establish a second chamber:

 Improving scrutiny and review of legislation:

A second chamber may provide an additional forum in which proposed legislation can be
scrutinized in a calm, dispassionate way. In many cases, this may be seen as part of a mixed
constitution, in which democratic elections are balanced by meritocratic appointments from
among those with the relevant qualifications, experience and expertise. The intention is usually

143
Ibid.
144
Marta Arretche (2010). Federalism, Bicameralism and Institutional Change: General Trend and one Case Study.
Brazilian Political Science Review 4(2).

96
not to challenge the principle of policy decisions but to allow a sober second thought, to improve
the technical quality of laws and avoid hasty or ill-considered decisions.

 Providing additional democratic checks and balances in the legislative process:

If there is only one legislative chamber, the party that wins a majority in that chamber can have
unlimited control of the legislative power. A second chamber especially if it has a different
composition to the first is chosen on a different electoral cycle and has a similar democratic
legitimacy may increase the number of actors with the power to block legislative changes (veto
players). This can provide an additional check that helps to prevent the so- ll ‗tyr nny of th
145
m jority‘ n ivisiv p rtis n h ng s .

 Bicameral legislatures make it possible for better laws to be made in the country,
since bills are somewhat properly debated in bicameral legislature.
 It is difficult for the executive arms to dominate the two chambers.
 The second chamber of bicameral legislature checks and prevents hasty and ill-
considered passage of bills unlike in the case of a unicameral legislature and corrects any
faulty legislation coming from the first chamber.
 Bicameral legislatures create room for more politically and administratively experienced
people to be useful in the art of law making.
 The second chamber of bicameral legislature checks the excesses and guides against the
tyranny or dictatorship of a one chamber.

Despite its numerous advantages, a bicameral legislature has a negative side of a coin. Conflict,
delay and lack of responsibility: If there are two chambers with opposing majorities and broadly
equal powers, the political conflict between them may result in the legislative process being
blocked or deadlocked. Popular demands might be frustrated by an obstinate second chamber, or
necessary reforms prevented. It might be difficult for the public to assign responsibility for
policy failures, and there is a risk of a system breakdown as extra-constitutional shortcuts are
sought.

145
Ibid.

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Further, if the two chambers have similar majorities, one might unnecessarily duplicate the other,
adding institutional complexity for little gain in terms of policy outcomes. Cost is another
disadvantage of a bicameral legislature. Having another legislative chamber usually means
having more politicians, more administrative and support staff, and more travel and
accommodation expenses, as well as the costs associated with maintaining another physical
space in which its sessions can be held. In a developing country, this may place considerable
demands on the public treasury that could be better spent elsewhere146. Additionally, a bicameral
legislature encourages duplication of functions, since they perform the same function; bicameral
legislatures waste a lot of public fund because the government will try to maintain the two
legislative chambers and the paraphernalia that go with it; a bicameral legislature is not good for
passing bills in times of emergency because of delays that result from having two chambers.
Many legislators have to go through the bills before they are passed or carried out.

Other disadvantages are that bicameral legislatures lead to unnecessary rivalry as to which of the
two houses is superior to the other; in a bicameral legislature, most of the members assigned in
the second chamber have advanced in age and are mostly inactive; appointment rather than
election of members of the upper house (House of Lords) as it is done in Britain is undemocratic.
This is another disadvantage of a bicameral legislature and a bicameral legislature causes a
serious delay in the act of law making which can be catastrophic in times of emergency.

11.5. Unit summary

A unicameral legislature refers to the type of legislature in which there is only one house or
chamber. To put it another way, in a unicameral legislature, all the legislators can be found in
one house. This unit has also highlighted some of the advantages and disadvantages of
unicameral legislature. This unit has also given you an idea of what a bicameral legislature is.
The bicameral legislature has two separate houses, assemblies or chambers to perform legislative
functions like enacting laws, passing the budget, etc. Its main objective is to represent people
from all the sectors or societies of the country. However, despite its many benefits, it has its own
disadvantages as highlighted above.

146
Ibid.

98
11.6. END OF UNIT 11 REVISION EXERCISE

1. Explain what a bicameral and unicameral legislature is.

2. In your own opinion, which type of legislature between unicameral or bicameral would
you prefer for your country? Justify your answer.
3. In your own opinion, do you think a bicameral legislature is better than a unicameral
legislature? Explain.
4. As a student of constitutional law, would you recommend a bicameral legislature for
Zambia? Give your opinion with practical examples.

99
 UNIT TWELVE
CENTRAL AND LOCAL GOVERNMENT

12.1. Objectives;

At the end of this unit, students are expected to;

- Understand the concept of central and local government

- Have knowledge about the structure of central government
- Have insight on the functions of central and local government
- Apply theory to practice

12.2. Introduction

A central government is the government that is a controlling power over a unitary state. Always
equivalent in a federation is the federal government, which may have distinct powers at various
levels authorized or delegated to it by its federated states, though the adjective 'central' is
sometimes also used to describe it. The central government is the political authority that governs
an entire nation. For example, the United States is a federal system of government in which
power is shared between the central (sometimes referred to as national or federal) government
and state governments. In the U.S., power is given to the central government, located in
Washington, D.C., by the United States Constitution. In Zambia, power is given to the central
government located in the capital city, Lusaka.

Local government is the authority to determine and execute measures within a restricted area
inside and smaller than a whole state. Some degree of local government characterizes every
country in the world, although the degree is extremely significant. The variant, local self-
government is important for its emphasis upon the freedom of the locality to decide and act.

12.3. The structure of central government in Zambia

100
As outlined in the Zambian Constitution147, power of the central government is separated and
carried out into three branches.

 The legislative branch, parliament made up of 156 members of parliament in Zambia

makes laws, which apply to the entire nation.
 The executive branch, with the President as the chief executive, carries out and enforces
national laws using a cabinet, State departments and agencies, and regulations.
 The judicial branch, the national courts, interprets the laws by hearing arguments about
the meaning of laws and how they are carried out. The Supreme and the High Court also
has the power of judicial review, that is to determine if a law agrees with the
Constitution or not.

 Office of the president

State House is a Government institution which is also the seat of the presidency of the republic
of Zambia. The Presidency is charged with the critical responsibility of the overall governance of
Zambia ensuring that the sovereignty and territorial integrity of the nation is upheld for the sole
purpos of prot ting n s f gu r ing th ountry‘s int r sts its itiz ns n r si nts

The mandate of the Presidency of the Republic of Zambia is derived from Article 91 of
the Constitution of Zambia Act No. 2 of 2016.
Some of the Portfolio functions for the Office of the President include:

 Constitutional Matters;
 Coordination of Government Business;
 Exercise Prerogative of Mercy
 Officiating at state Fun tions su h s: Z mbi ‘s In p n n D y l br tions
Africa Freedom Day, among other state functions.

 Cabinet

Cabinet is part of an executive branch. Article 113 of the Constitution of Zambia says;

147
See Part VI, VII and VIII and particularly Article ( 61), (91) and (119) of the Constitution, Cap 1 of the Laws of
Zambia.

101
 There shall be a Cabinet consisting of the— (a) President; (b) Vice-President; (c)
Ministers; and (d) Attorney-General, as ex-officio member.

A Cabinet minister is a top-level minister with many important functions as part of their role. A
Cabinet minister has many important functions as part of their role. Along with the Vice-
President, Cabinet ministers constitute the main decision-making group within the executive.
Article 114 of the Constitution148 outlines the functions of Cabinet minister. A Cabinet minister's
role includes:

 directing government policy and making decisions about national issues

 spending a lot of time discussing current national problems and how these can be solved
 presenting bills from their government departments.
 Advising the President on implementation and performance of executive functions among
other duties.

Section 177 of the Constitution of Zambia creates the office of the Attorney General when it
provides as follows;

There shall be an Attorney-General, who shall be appointed by the President, subject to

ratification by the National Assembly.

With regards the Attorney General, in most common law jurisdictions such as Zambia, the
attorney general is the main legal advisor to the government. The Attorney General advises the
Government on the constitutional and legal issues which arise prior to or at Government
meetings, including whether proposed legislation complies with the provisions of the
Constitution, and gives guidance on international treaties which Zambia has acceded. The
Attorney General also advises as to whether the State can ratify international treaties and
conventions. The Attorney General represents the State in legal proceedings. The Attorney
General is legal adviser to each government department and certain public bodies. The Attorney
General is the representative of the public in all legal proceedings for the enforcement of law and
the assertion or protection of public rights.

148
Article 114, Constitution Amendment Act No. 2 of 2016 Cap 1 of the Laws of Zambia.

102
  The civil service

Civil service is the administrative service of a government exclusive of the police and armed
forces. The civil service is a collective term for a sector of government composed mainly of
career civil servants hired on professional merit rather than appointed or elected, whose
institutional tenure typically survives transitions of political leadership. A civil servant is a
person employed in the public sector by a government department or agency or public sector
undertakings. Civil servants work for central government and local government, and answer to
the government, not a political party

Cabinet Office is the highest administrative office in the Public Service responsible for
coordinating the effective implementation of government policies, systems and procedures and
the monitoring and evaluation of the overall performance of the Public Service for the efficient
administration of Government. It operates directly under the office of the President for the
Republic of Zambia. Cabinet Office derives its mandate and functions from Article 176 (1) of the
Constitution of Zambia Act No.2 of 2016. Cap 1 of the laws of Zambia.

The office of the Secretary to the Cabinet was established under Article 176 (1) of the
Constitution of Zambia and is responsible for ensuring the general efficiency of the Public
Service. The Secretary to the Cabinet is deputized by two deputy Secretaries to the Cabinet, one
in charge of Finance and Economic Development and the other responsible for Government and
Public Service Administration.

Article 176 (2) of the Zambian Constitution outlines the core functions of the office of the
Secretary to the Cabinet to include the following:-

 Ensuring that Cabinet decisions are translated into government policies and programs which
should be effectively implemented by the appropriate Public Service institution:
 Spearheading the strategic vision of the Public Service and coordinating Government
Ministries and Institutions as well as reforms with a view of improving public services;
 Monitoring and evaluating the overall performance of the Public Service;
 Facilitating the implementation of decentralization in order to improve delivery of quality
services by the local authorities; and overseeing ad hoc Commissions of inquiry and
arbitrating as well as performing functions that are not allocated to any ministry.
103
12.4. Functions of central government

Actually, the central government oversees many areas which impact our daily lives. The powers
originally assigned to the central government by the citizens are enumerated in the national
Constitution.

Let's break down some of the central government's enumerated powers.

 Finance: assesses and collect taxes; borrow money; coin (or print) money and regulate its
value; and punish counterfeiters
 Commerce: regulate interstate (between states) and foreign trade; establish rules for
bankruptcy; establish post offices and post roads; grant patents and copyrights
 National defense: declare war; raise and maintain the armed forces; call up state militia
to enforce federal laws; suppress insurrections and repel invasions; and punish piracy
 Foreign affairs: conduct diplomacy and authorize treaties with foreign countries
 All laws 'necessary and proper': in addition to powers above, the Constitution gives
parliament the power to make all laws necessary and proper and to delegate some of the
powers to make laws where necessary.

Other functions of central government include; signing international agreements, maintaining

international relations, collecting and managing tax as well as providing various services to
the citizens of the country such as; education, health, insurance, housing, agricultural
subsidies etc.

12.5. The Concept of Local Government

Local government is concerned with the transfer of certain powers from central government to
lower level administration. In a World Bank policy research paper on decentralization and
service delivery, Ahmad, et al., observe that in the period 1980-2005 ‗ov r 75 ountri s h
tt mpt to tr nsf r r sponsibiliti s of th st t to low r ti rs of gov rnm nt‘ 149. Local
government is often related to the concepts of de-concentration and decentralization. However,

149
Ahmad, J.K., Devarajan, S., Khemani, S., and Shah, S., 2005. Decentralization and Service Delivery. World Bank
Policy Research Working Paper No. 3603.

104
the difference between the two concepts is really not very clear. These distinctions are important,
even if they are blurred.

According to Azfar, et al. decentralization involves the transfer of administrative, fiscal and
political powers and functions of the central government to lower-level governments. The
number of countries adopting it, and the magnitude of implementation has made decentralization
a key global trend in public administration and management in the last three decades150. De-
concentration broadly means that, for the sake of convenience, some functions have been
devolved from a central government to administration on the spot. Power is still administered
through officials appointed by and responsible to the centre, and authority and discretion are
vested in the centre.

On the other hand decentralization represents local government in areas where the authority to
decide has been devolved to a council of locally elected persons acting on their own discretion
with officials they themselves freely appoint and discipline151. In the study on Decentralization
and Service Delivery: Lessons from Sub-Saharan Africa, Conyers best summarizes this
complexity of decentralization design when the author notes:

‗Th t rm is us to r f r to nything from th on ntr tion of ministr tiv

responsibilities within a single government agency to the devolution of power over all
basic local services to semi-autonomous local authorities. It is also used to describe the
transfer of power to a wide range of geographical levels, from the regional or state level
to th t of lo l gov rnm nts or ommuniti s‘152.

Citizen participation in governance and public service delivery is increasingly pursued in a bid
to improve the performance of governments. Indeed, improving delivery of public services

150
Azfar, O., Kähkönen, S., Lanyi, A., Meagher, P., and Rutherford, D., (1999). Decentralization, Governance and
Public Services: The Impact of Institutional Arrangements. A Review of the Literature. College Park: IRIS Center,
University of Maryland.
151
Azfar, O., Kähkönen, S., Lanyi, A., Meagher, P. and Rutherford, D., (2004). Decentralization, Governance and
Public Service: The Impact of Institutional Arrangements. In: Kimenyi, M.S. and Meagher, P., eds. Devolution and
Development: Governance Prospects in Decentralizing States. Aldershot: Ashgate, pp. 19-62
152
Conyers, D., 2007. Decentralization and Service Delivery: Lessons from sub-saharan Africa. IDS Bulletin. Volume
38 Number 1 January 2007. Pp.18-32 [Online] Available at http://onlinelibrary.wiley.com/doi/10.1111/j.1759-
5436.2007.tb00334.x/pdf [Accessed July 12, 2022].

105
continues to be a key objective that has occupied the agenda of public administrators and
researchers. Faced with constraints and failures of centralized service delivery especially at the
local level, governments have turned to decentralized mechanisms of service delivery.

12.6. Local government in Zambia

Zambia is a democratic republic with two spheres of government, national and local. There is
constitutional provision for local government and the main governing legislation includes the
Local Government Act 1991 and the Local Government Elections Act 1992. The 103 local
authorities are overseen by the Ministry of Local Government and Housing and consist of four
city councils, 15 municipal councils and 84 district councils. There are also ten provinces, which
are purely administrative.

Article 151 of the Zambian Constitution creates the system of local government. It provides as
follows;

(1) There is established a local government system where—

(a) functions, responsibilities and resources from the national Government and provincial
administration are transferred to the local authorities in a co-ordinated manner; (b) the
p opl ‘s p rti ip tion in mo r ti gov rn n is promot ; (c) co-operative
governance with the national Government, provincial administration and local authorities
is promoted to support and enhance the developmental role of local government; (d) the
capacity of local authorities to initiate, plan, manage and execute policies in respect of
matters that affect the people within their respective districts is enhanced; (e) social,
spatial, financial and economic planning, at the district level, is developed, prioritised and
promoted; (f) a sound financial base is established for each local authority with reliable
and predictable sources of revenue; (g) the performance of persons employed by the
national Government and provincial administration to provide services in the sub-
structures is overseen by local authorities; (h) the provision of Government services is
monitored and projects are implemented in sub-structures; (i) accountability of local
authorities is ensured; and (j) the right of local authorities to manage their affairs and to

106
 form partnerships, networks and associations to assist in the management of their
respective districts and further their development is recognized.

Generally, Municipalities must be guaranteed the right to regulate all local affairs on their own
responsibility, within the limits prescribed by the laws. The local authorities in the spirit of
decentralization shall be self-governing through elected councils and shall have power to make
regulations for matters coming within their jurisdiction. This is what basically, expresses the
spirit of de-concentration. In Zambia, Central government is represented throughout the country
by the provincial government system, by which provincial ministers each of whom is the
pr si nt‘s ir t r pr s nt tiv r ppoint by th pr si nt to h of th provinces. The
provinces are divided into districts, each of which has a district council chairman particularly
concerned with political and economic developments. His/her civil service counterpart is the
district executive secretary. The cities of Livingston, Lusaka, Kitwe, Ndola, Chipata and Kitwe
have councils and mayors.

When it comes to council types in Zambia, there is one tier of local government. Local
governments are called councils and there are currently 103 councils – five city councils, 15
municipal councils and 84 district councils. In general, city councils are located in those urban
districts which have more population and diversification in economic activities, while the
municipal councils cover the suburban regions. District councils are located in those relatively
rural districts which have less population and rely heavily on agriculture, and hence have fewer
local tax revenue resources. However, legally all councils have the same mandates and authority
vis-à-vis their residents and national government. There are also ten provinces, which are used
for purely administrative purposes: Central, Copperbelt, Eastern, Luapula, Lusaka, Muchinga,
Northern, North Western, Southern and Western. Each province is headed by a provincial
minister appointed by the president and there are provincial departments of national government
ministries.

A council has both legislative and administrative wings. In the legislative wing, councilors are
directly elected by universal adult suffrage on the first-past-the-post system as representatives
of the residents. The officials working in the administrative wing are hired by the Local
Government Service Commission from either within or outside the council.

107
12.7. Functions of local government

Local governments must establish and maintain roads; bridges; ferries; watercourses; street
lighting and public transport, as well as provide firefighting and prevention, and environmental
health services. Councils must also provide and maintain supplies of water; maintain drains,
sewers and roads; and dispose of sewage and refuse. They must maintain cemeteries, crematoria
and mortuaries, parks, zoos, gardens, pleasure grounds, camping grounds, caravan sites, art
galleries, libraries, museums and film services. Thus, modern local government has a twofold
aspect; it is a mixture of both deconcentration and decentralization, of central convenience and
an acknowledgment that not all authority ought to be exerted by the center. The mixture is
revealed by the extent to which some of the powers exercised by local government units are
exercised compulsorily and under fairly strict control by central authority with financial
assistance, while others are not. This mixture produces the high complexity of modern local
government.

Further, local gov rnm nt is p rtm nt liz tion of th st t ‘s work b s on th t rritori l

distribution of services, as contrasted with (1) division into departments at the centre or (2)
decentralization of functions to public corporations. In local government, territorial distribution
of power is the essence.

Local authorities receive funding from a range of sources, including government grants153,
council tax such as revenue from property, sales, and other taxes; charges and fees etc. Together,
council tax and busin ss r t s m k up lo l uthoriti s‘ l rg st sour of in om

12.8. Unit summary

Central government simply entails a government with the central power to administer authority
countrywide. Central government is made up of executive, judiciary and legislature with various
functions such as coordinating national resources, finances, security etc. Local government
which is government responsible for local operations such as councils is responsible for a range
of vital services for people and businesses in defined areas. Decentralization and de-
concentration are concepts at the center of local government and these concepts ensures that

153
As provided for under Article 163 of the Constitution Cap 1 of the Laws of Zambia.

108
power is not concentrated at the top in order to have efficiency and effectiveness in the delivery
of services to the citizens.

12.8. END OF UNIT REVISION EXERCISE

1. Write brief notes on the following;

a. Local government, Decentralization, De-concentration, central government
b. Do you think power should be decentralized?
c. Discuss the structure of local and central government
d. Do you think the implementation of decentralization policy is effective in
Zambia? Discuss.

109
 UNIT THIRTEEN

RESPONSIBLE GOVERNMENT

13.1. Objectives;

By the end of this unit the following competencies are expected from a student;

- Explain the concept of responsible government

- Examine how the government is made accountable
- Analyze the accountability of Cabinet Ministers individually and collectively
- Apply theory to practice

13.2. Introduction

This unit discusses the strands that underlie the ideal of responsible government. As a
Constitutional law student it is important that you understand the responsibility of government
and the need for all in the country to share responsibility for what the government does. Those
who govern undertake special responsibilities, and their performance can be judged on the basis
of the task they have undertaken. It is a difficult task: decision-making takes time, and often calls
for exceptional ability, and it needs to be done disinterestedly in circumstances where it would be
very easy to allow considerations of self-interest to creep in. The main aim of this kind of
argument is to ensure that government is good government: if all decisions made by the
government are responsibly taken, then there will be reasons for them, which even if not the best
of all possible reasons will be faceable reasons, and so the decisions are likely to be reasonably
good.

According to Lucas, responsible government refers to a government that is responsible to the

people. Responsible government is a conception of a system of government that embodies the
principle of parliamentary accountability. A responsible government also implies a government
that has confidence of the people and is accountable for its actions individually or collectively154.

154
See LUCAS, J. R., 'Responsible Government', Responsibility (Oxford, 1995; online edn, Oxford Academic, 3 Oct.
2011), https://doi.org/10.1093/acprof:oso/9780198235781.003.0011, accessed 17 Mar. 2023:

110
13.3. Facets of responsible government

Birch and several other authors155 discuss various facets of responsible government as outlined
below;

 Responsive to the needs of the people;

This entails necessity for leaders to take into account the long-term needs of their people which
have not necessarily been articulated as specific demands and which underlie and go beyond the
short-term demands of those same people and the claims of audiences other than the national
electoral audience, including the international markets that ensure their financial alimentation,
the international commitments and organizations that are the root of their international
credibility. A government that manages to act in accordance with the preferences of a majority of
the citizens should thus be perceived as worthy of support and could therefore be perceived as
enjoying a high degree of legitimacy.

 Protection of minority rights;

Liberal democracy requires protection of the rights of minorities, which might be at odds with
the preferences of the majority156. Therefore, democratic governments sometimes also have to be
responsive to minorities rather than the electoral majority.

 Democracy and effectiveness;

All governments have to m int in b l n b tw n itiz ns‘ m n s for poli y

responsiveness and the need for responsibility, or, in other words, between democracy and
effectiveness. This theory support responsible decision-making since the decisions are more
likely to be accepted by the citizens, even though these decisions may not be in accordance with
155
A. H. Birch, Representative and Responsible Government: An Essay on the British Constitution (London: Allen
and Unwin 1964), 135. 13 Birch, Representative and Responsible Government, 133. 14 See Malcolm Aldons,
“Responsible, Representative and Accountable Government,” Australian Journal of Public Administration 60/1
(2001): 35; and Birch, Representative and Responsible Government, 135. 15 Aldons, “Responsible, Representative
and Accountable Government,” 35. 16 B. P. Lenman, The Eclipse of Parliament: Appearance and Reality in British
Politics since 1914 (London: Hodder & Stoughton, 1992). 17 David Hamer, “Can Responsible Government Survive in
Australia?,” Papers on Parliament No. 26 (August 1995), accessed January 16, 2022, https://www.
aph.gov.au/senate/~/~/link.aspx?_id=FDF85F319CD74532AB63A4939B4F2 C3B&_z=z.
156
M. Ndulo and K. Turner (1984). Civil liberties Cases in Zambia. Oxford: The African Law Reports.

111
the general short-term policy preferences of the electorate or may even be outright unpopular.
However, electorally vulnerable politicians are less likely to support policies that seem
unpopular but perhaps necessary.

A responsible government should always choose to make necessary and wise policies even if
they are unpopular. For example, a decision to ban street vending in Lusaka central business
district may be unpopular but necessary to bring sanity to the city and prevent water borne
diseases during rainy season.

 People’s ideas and preferences;

T king into onsi r tion p opl ‘s pr f r n s is on k y prin ipl of mo r y By its v ry

nature, governments should at least be minimally responsive to what a majority of people want.
Democratic government is supposed to mean government by and for the people, and when
gov rnm nt poli i s r s n to r fl t p opl ‘s i s n pr f r n s thos gov rnm nts m y
indeed be evaluated positively.

Thus, people are more likely to express support for the political system when responsiveness is
high. The actions of parties and political representatives may be more or less responsive to the
demands from citizens. These actions are then judged by citizens who form their own
perceptions about the responsiveness of the political system. Citizens react according to these
beliefs in terms of voting in elections and expressing support/discontent and trust/distrust toward
the functioning of the political system. The reactions of citizens are then supposed to feed back
to the political representatives and should preferably affect the future actions o the government
or political parties that are contesting to form government. Thus, in this way, governments that
act responsive are rewarded with support and trust on behalf of the public.

13.4. Collective Ministerial responsibility

Article 114 (2) of the Constitution states as follows;

―C bin t sh ll t k oll tiv r sponsibility for C bin t isions‖157.

157
Constitution of Zambia Amendment Act No. 2 of 2016.

112
Flinders describes Ministerial responsibility as a fundamental constitutional principle to which
ministers are responsible to parliament for the conduct of their ministry and government as a
whole. Ministerial responsibility is central to the parliamentary system, because it ensures the
accountability of the government to the legislature and thus, ultimately, to the population 158. This
principle is mainly based on a body of constitutional conventions, established by precedents,
rather than on positive statutes.

The collective responsibility of ministers to parliament takes different forms.

First and foremost, it signifies that the government remains in office only so long as it retains the
confidence of the parliament and that all ministers stand or fall together with that government.
Ministers must support government policies, but they must also resign or seek the dissolution of
the government if defeated in parliament on a matter of confidence (for instance, a vote on the
budget). Collective responsibility implies that ministers are bound by the decisions of the
cabinet, even when they had no part in their discussion or decision.

Second, all members of the government speak in concert in parliament, unless the president or
vice president relieves them of that duty. This can happen when the government has no stated
policy on an issue and allows a free vote to take place in parliament or when the president/vice-
president allows a member of his or her government to differ publicly from a policy.

Members of cabinet are also allowed to engage in frank debates and disagreements in private,
prior to th bin t‘s ision This fr om, however, entails another form of collective
responsibility, since ministers are bound to respect the confidentiality of these discussions and to
present a united front after a decision has been reached. The principle of ministerial
responsibility ensures that the government acts as one entity and that this entity is answerable
and accountable to parliament.

158
Flinders, Matthew, (2000). “The Enduring Centrality of Individual Ministerial Responsibility within the British
Constitution,” The Journal of Legislative Studies. VI: 3.

113
13.5. Individual ministerial responsibility for personal conduct

The requirement for cabinet ministers to be held individually to account for the activities of their
respective ministry portfolios is rooted in the historical development of responsible government
and the civil service in Great Britain. In its submission to the Lambert Commission, the
Canadian Privy Council Office (PCO) outlined the evolution of responsible government, which
nt il th pro ss of th Crown b ing m ―r sponsibl to p rli m nt for th x r is of its
159
pow r ‖ The submission underscored that in a parliamentary government, power flows from
the monarchy. Constitutionally, the power of the state flows from the Crown and generally
speaking may only be exercised by or on the authority of the Crown. Parliamentary and Cabinet
government is a system that has evolved to ensure that power is exercised responsibly by the
Crown and its advisers160.

Individual Ministerial Responsibility (IMR) is part of the wider doctrine of ministerial

responsibility, which also includes Collective Ministerial Responsibility. According to Individual
Ministerial Responsibility:

 Ministers are individually responsible for the work of their departments and are
nsw r bl to P rli m nt for ll th ir p rtm nts‘ tiviti s
 They are expected to accept responsibility for any failure in administration, any injustice
to an individual or any aspect of policy which may be criticized in parliament, whether
personally or not.

Individual ministerial responsibility or Ministerial responsibility is a constitutional convention in

governments using the UK Westminster system such as Zambia which entails that
a cabinet minister bears the ultimate responsibility for the actions of their department or ministry.
In the Westminster system which Zambia follows as well like many other commonwealth states,
ministerial responsibility and the capacity of first ministers to direct the machinery of
government are essential for the maintenance of constitutional government. Their importance far
outweighs whatever merit attaches to the popular wisdom that the principles of ministerial

159
Privy Council Office, “Responsibility in the Constitution: Submission to the Lambert Commission of Financial
Management and Accountability,” (Ministry of Supply and Services: Ottawa, 1977), Chapter 2, p. 1.
160
Ibid.

114
responsibility are not followed in practice and that first ministers have concentrated power in
their own hands at the expense of ministries and Parliament161.

The minister who is accountable is expected to take the blame and ultimately resign, but the
majority or coalition within parliament of which the minister is part, is not held to be answerable
for that minister's failure. This means that if waste, corruption, or any other misbehavior is found
to have occurred within a ministry, the minister is responsible even if the minister had no
knowledge of the actions. A minister is ultimately responsible for all actions by a ministry
because, even without knowledge of an infraction by subordinates, the minister approved the
hiring and continued employment of those civil servants. If misdeeds are found to have occurred
in a ministry, the minister is expected to resign. It is also possible for a minister to face criminal
charges for malfeasance under their watch.

The principle is considered essential, as it is seen to guarantee that an elected official is

answerable for every single government decision. It is also important to motivate ministers to
closely scrutinize the activities within their departments. One rule coming from this principle is
that each cabinet member answers for their own ministry in parliament's question time. The
reverse of ministerial responsibility is that civil servants are not supposed to take credit for the
successes of their department, allowing the government to claim them.

13.6. Unit summary

A responsible government is held accountable by the people and responds to the need of the
people. A responsive government, which enjoys high levels of support, is more likely to be able
to make responsible decisions that in the end are beneficial to the long-term interests of the
country and its citizens. When citizens recognize this, the government is rewarded with support,
and the government is perceived by citizens as actually being responsive since it produces
policies that in the end actually benefit the citizens. Thus, responsiveness and responsibility are
mutually reinforcing. Further, government is made responsive through the accountability

161
Flinders, Matthew, (2000). “The Enduring Centrality of Individual Ministerial Responsibility within the British
Constitution,” The Journal of Legislative Studies. VI: 3.

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function of parliament where cabinet ministers are held individually and collectively responsible
for their actions.

13.7. END OF UNIT 13 REVISION EXERCISE

1. Explain three features of a responsible government.

2. What do you understand by collective ministerial responsibility
3. Discuss the concept of individual ministerial responsibility?
4. Why do think the government should be responsive to the needs of people? Discuss.

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 UNIT FOURTEEN

ELECTORAL SYSTEMS

14.1. Learning outcomes

By the end of this unit, a student should be able to;

- Understand various forms of electoral systems

- Understand the conditions for holding credible and fair elections
- Know the relationship between democracy and elections
- Have knowledge about the electoral process and the electoral system currently being used
in Zambia
- Have insight on the need for credible elections
- Understand requirements for holding fair and credible elections and
- Apply theory to practice

14.2. Introduction

Democracy cannot exist without elections which represent the will of the people, and elections
cannot function without an electoral system that sets fair and transparent rules that govern the
structures of elections. An electoral system or voting system is a set of rules that determine how
elections and referendums are conducted and how their results are determined. Political electoral
systems are organized by governments, while non-political elections may take place in business
non-profit organizations, and informal organizations. These rules govern all aspects of the voting
process: when elections occur, who is allowed to vote and stand as a candidate, how ballots are
marked and cast, how the ballots are counted, how votes translate into the election outcome,
limits on campaign spending and other factors that can affect the result.

Political electoral systems are defined by constitutions and electoral laws, are typically
conducted by election commissioners, and can use multiple types of elections for different
offices. Some electoral systems elect a single winner to a unique position, such as prime
minister, president or governor, while others elect multiple winners, such as members of

117
parliament, councilors, mayors etc. There are many variations in electoral systems, but this unit
will only cover most common systems.

14.3. Electoral systems

The electoral system may determine the level of satisfaction with democracy among citizens. In
general world over, there are twelve electoral systems that fall under three categories: majority,
proportional representation and mixed systems.

First, the voting systems that fall under the majority system are: first past the post, block vote,
party block vote, alternative vote, and the two round systems.

Second, under the proportional representation lie two systems: list proportional representation
(List PR) and single transferable vote (STV).

Third, the mixed system includes two systems: mixed member proportional and parallel systems.

Finally, three other voting systems cannot be classified into one of the three systems mentioned
above, there are: single non-transferable vote (SNTV), limited vote and borda count. The main
concern of electoral systems is the balance between decisiveness of government and
representation of various minority views and sometimes, if not always, governments have to
choose either one of these because of the difficulty of encompassing both those strong
government and full representation in one type of electoral system.

This unit will concentrate on looking at the major voting systems which are; plurality,
majoritarian and proportional representation162.

 Plurality voting;

162
As a student, you are required to do more research about other systems of voting so that you get more
understanding about the topic at hand. To have a better understanding of electoral systems, read the following
materials: Bosch, A., & Orriols, L. (2014). Ballot structure and satisfaction with democracy. Journal of Elections,
Public Opinion & Parties, 24(4), 493-511; Farrell, D. M., & McAllister, I. (2006). Voter satisfaction and electoral
systems: Does preferential voting in candidate‐centred systems make a difference? European Journal of Political
Research, 45(5), 723-749; Gallego, A. (2015). Unequal political participation worldwide. Cambridge University
Press.

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This is a system in which the candidate(s) with the highest number of votes wins, with no
requirement to get a majority of votes. In cases where there is a single position to be filled, it is
known as first-past-post ; this is the second most common electoral system for national
legislatures, with 58 countries using it to elect their legislatures, the vast majority of which are
current or former British or American colonies or territories. It is also the second most common
system used for presidential elections, being used in 19 countries.

 Majoritarian system;

In this system, voting can take place in a single round using instant-runoff voting (IRV),
whereby voters rank candidates in order of preference. In this system if no candidate receives a
majority of the vote in the first round, the second preferences of the lowest-ranked candidate are
then added to the totals. This is repeated until a candidate achieves over 50% of the number of
valid votes. If not all voters use all their preference votes, then the count may continue until two
candidates remain, at which point the winner is the one with the most votes.

The other main form of majoritarian system is the two-round system, which is the most common
system used for presidential elections around the world, being used in 88 countries. It is also
used in 20 countries for electing the legislature. If no candidate achieves a majority of votes in
the first round of voting, a second round is held to determine the winner. In most cases the
second round is limited to the top two candidates from the first round

 Proportional voting system;

Proportional representation is the idea that the seats in parliament should be in proportion to the
votes cast. Proportional representation is the most widely used electoral system for national
legislatures, with the parliaments of over eighty countries elected by various forms of the
system. Party-list proportional representation is the single most common electoral system and is
used by 80 countries, and involves voters voting for a list of candidates proposed by a party. In
closed list systems voters do not have any influence over the candidates put forward by the party,
but in open list systems voters are able to both vote for the party list and influence the order in
which candidates will be assigned seats163.

163
Heywood, A. (2014). Global politics. Macmillan International Higher Education.

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The most important point to take about proportional voting system is that there are lots of
different ways to decide who gets to sit in parliament, some are more proportional and some are
less. A more proportional way would mean that a party that received one-third of the vote could
expect one-third of the seats in parliament and the party that received for example 20 percent of
the votes will receive representation in relation to the percentage of votes the party received.

14.4. Choosing an Electoral System

The choice of electoral system should ensure that the international standards for democratic
elections are met in terms of institutions elected, the frequency of elections and the organization
of electoral units. The choice of an electoral system should ensure that the political cleavages of
a society are properly addressed by the electoral legal framework in such a way that the main
conflicts and differences between and among social groups can be accommodated through the
system of political representation. This is to guarantee political inclusiveness and representation.

Thus the choice of electoral system is best approached as an exercise in which particular goals
(e.g., proportional election outcomes, strong local district representation) are first enumerated,
before moving on to consider which electoral system is most likely to deliver such goals in the
context of a particular country's social, political, geographic and historical situation.

Choosing an electoral system is one of the most important institutional decisions for any
democracy. An electoral system can help to "engineer" specific outcomes, such as encouraging
cooperation and accommodation in a divided society. Electoral systems are the rules and
procedures through which votes cast in an election are translated into seats won in the legislature
or some other office (e.g., a presidency).

Electoral systems can also influence other aspects of the political system (e.g., development of
the party system) as well as being of importance to the link between citizens and their leaders
(e.g., political accountability, representation and responsiveness). Thus electoral systems have
many long-term consequences for democratic governance.

Heywood indicates that an electoral system has three main tasks:

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  To translate the votes cast into seats won in a legislative chamber;
 To act as the conduit through which the people can hold their elected representatives
accountable; and
 To give incentives to those competing for power to frame their appeals to the electorate
in distinct ways164.

In divided societies, for example, where language, religion, race or other forms of ethnicity
represent a fundamental political cleavage, particular electoral systems can reward candidates
and parties who act in a cooperative, accommodating manner to rival groups, or they can punish
these candidates and instead reward those who appeal only to their own group. Thus a country's
choice of electoral system is the foundation upon which the legal framework of an election is
built.

The application of a particular electoral system within a particular country context can make a
significant positive or negative impact on the electoral fortunes of the various political
contenders. If there is a question of the appropriateness of a particular electoral system to a
specific country, it would be useful to examine the results of the previous elections, with a view
to seeing whether, for example, the ruling political party significantly benefits at the cost of other
parties or whether other factors in the system significantly distort the international standards or
thwart valid democratic result. For example, in a proportional representation (PR) system where
the law establishes a percentage of the vote as a legal threshold for securing a seat in the
legislature, this percentage can be "adjusted" in such a way as to benefit certain parties and
adversely affect other parties, to the point of even eliminating others.

14.5 Electoral System in Zambia

This part seeks to introduce you to the electoral process in Zambia. Elections are very important
because they promote sustainable democracy around the world and the more reason why a
constitutional law student should have more knowledge about efficient and sustainable electoral

164
Heywood, A. (2014). Global politics. Macmillan International Higher Education

121
processes. An endeavor on clarifying, defining and explaining internationally-recognized
standards in the election field has also been done.

 Majoritarian System;

The Constitution of Zambia in article 47 provides for majoritarian system for conducting
presidential election where the winning candidate must receive more than fifty percent of the
valid votes cast165. However, if at the initial ballot or first election, none of the presidential
candidates gets more than fifty percent of the valid votes cast, a second ballot will be held within
thirty-seven days of the initial ballot or first election. In this election only the candidates with the
highest and second highest number of valid votes cast in the initial ballot will be the
candidates166.

 Simple Majority or First Past the Post;

This system is used to conduct National Assembly, Mayoral/Council Chairperson and Councillor
Elections167. This is where a candidate who gets the highest number of votes is declared winner
regardless of the percentage.

14.6. Types and Forms of Elections in Zambia

There are three types of elections conducted in Zambia;

 Presidential - Choosing the Republican President and his/her running mate

 National Assembly - Choosing members of the National Assembly and
 Local Government Elections - Choosing Mayors in City and Municipal Councils,
Council Chairpersons for District Councils and Councilors in Wards.

Generally, members of parliament, the president and mayors are elected for a five (5) year term
on the basis of elections at which every adult person aged eighteen (18) years of age and above
and permanently resident in Zambia is entitled to vote. There are one hundred and fifty
parliamentary constituencies where those aspiring to be Members of Parliament stand for
elections every five years. The Republican President nominates eight Members. The total number

165
Article 47 Constitution of Zambia Act of 2016.
166
Electoral Commission of Zambia website; www.elections.org.zm. Accessed on 25 June 2021.
167
Article 47 (2), (3). Constitution of Zambia.

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of Members of Parliament is, therefore, one hundred and fifty-eight (158). But since the Speaker
of the National Assembly and the Republican President are also Members of Parliament, this
brings the total to one hundred and sixty (160).

There two forms of elections in Zambia. These are general and by-elections.

 General elections;

This is when Presidential, National Assembly and Local Government Elections are held at the
same time. Voters vote for a Republican President/Vice-President, Member of Parliament,
Mayor/Council Chairperson and Councilors. General elections in Zambia are held on a second
Thursday of August every five (5) years which is a public holiday.

 By-elections;

These are held within 90 days when the office of the Member of Parliament, Mayor/Council
Chairperson or Councilor becomes vacant168.

14.7. Fair and Credible Elections

All the electoral activities that take place before, during and after the Election Day help to
determine whether or not elections are credible. It is therefore, important that the stages of the
electoral process namely; electoral legal reforms, delimitation, voter registration, voter
education, nominations, political campaigns, voting and results management are well managed.

Article 45 (2) of the Constitution of Zambia provides as follows as regards fair and credible
elections;

(2) The electoral process and system of administering elections shall ensure—

(a) that elections are free and fair; (b) that elections are free from violence, intimidation
and corruption; (c) independence, accountability, efficiency and transparency of the
electoral process; (d) a simple and practical system of voting and tabulating votes; and (e)
timely resolution of electoral disputes.

168
Article 57 of the Constitution of Zambia, 2016.

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For elections to be credible and fair, they have to be held under certain Conditions of holding
credible elections as follows169;

a. Inclusive;

Elections provide equal opportunities for all eligible citizens to participate as voters in selecting
their representatives and as candidates for election to government. This right to participate is a
broad concept and can only be subject to reasonable restrictions that are provided by law.
Authorities must take steps to assess and remove any barriers to the participation of all citizens.
This includes removing barriers for traditionally marginalized populations such as ethnic,
religious or linguistic minorities; women, youth or elderly citizens; and persons with disabilities.
Reasonable restrictions on participation should be narrow, like a minimum age for voting and
standing as an electoral contestant.

b. Transparency;

Elections are transparent when each step is open to scrutiny, and stakeholders can independently
verify whether the process is conducted honestly and accurately. The principle of transparency is
linked to the fundamental right of citizens to seek, receive and impart information (which are
elements of the freedom of expression), as well as the right to take part in government and public
affairs. Decision making processes must be open to scrutiny, and reasonable opportunities for
public input should be provided. Information relating to all stages of the electoral cycle must be
made available and accessible to citizens, including voters and candidates. Nonpartisan and
partisan observers should be accredited to observe all phases of the election process and be
permitted to comment publicly on the process free from unreasonable restriction.

c. Accountability

169
For a more detailed discussion of these principles, see Promoting Legal Frameworks for Democratic Elections:
An NDI Guide for Developing Laws and Law Commentaries, Section Two (2008), also published as Chapter One in
International Election Principles: Democracy & the Rule of Law (JH Young, ed., American Bar Association (ABA),
2009).

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Accountability in elections refers to the rights of citizens with respect to the conduct of other
electoral stakeholders, including the government, election management bodies (EMBs), political
parties, candidates and security forces. Elections are a key mechanism through which citizens
hold their governments accountable, but there must also be accountability within election
pro ss s th ms lv s Th r must b ff tiv r m i s in pl for viol tions of itiz ns‘
election-related rights. There must also be administrative accountability for those organizing
elections and those conducting governmental activities related to elections. In addition, there
must be timely procedures to bring to account those who conduct criminal acts that affect
electoral-related rights.

d. Competition

Elections are competitive when citizens have reasonable and equitable opportunities to compete
to be elected to governmental offices. Political competition is a central component of elections
that truly reflect the will of the people. The principle of competitiveness relates to aspects of the
election throughout the electoral cycle. The legal framework must allow citizens to come
together and register political parties to represent their interests, and provide access to spots on
the ballot for parties and/or candidates. Parties and candidates must be able to campaign and
voters to cast their ballots free from illegal influence, intimidation or violence170.

According to international standards as enunciated by IDEA171, an election is credible and fair if

the following is met;

 A well-org niz r gistr tion of vot rs‘ x r is th t giv s n opportunity to ligibl

Zambians to register as voters.
 Access to information by all voters and candidates to hold meetings and campaign freely
without being intimidated or threatened.
 Objective and balanced media coverage of candidates and all political parties.
 Compliance to the Electoral Code of Conduct by all stakeholders.

170
Merloe, Patrick. “Human Rights – The Basis for Inclusiveness, Transparency, Accountability and Public
Confidence in Elections”, in International Principles: Democracy & the Rule of Law (JH Young, ed., ABA, 2009), p. 3,
18-20
171
International Institute for Democracy and Electoral Assistance (International IDEA) 2002.

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 All eligible voters are able to cast their votes without any difficulty.
 The voting and counting process are conducted according to laid down procedures and
 All eligible citizens are able to register to vote.

Article 21 of the Universal Declaration of Human Rights (UDHR) (1948) states;

Everyone has the right to take part in the government of his country, directly or through
freely chosen representatives. Everyone has the right of equal access to public service in
his country. The will of the people shall be the basis of the authority of government; this
will shall be expressed in periodic and genuine elections which shall be by universal and
equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Participation in the government of a country should, according to Article 21, be either direct or
through freely chosen representatives. It is easy to make a prima facie conclusion that such
participation is determined either through a referendum or an election.

Article 25 of the International Covenant on Civil and Political Rights (ICCPR) (1966) equally
contains a set of rules about elections when it says;

―Every citizen shall have the right to take part in the conduct of public affairs, directly or
through freely chosen representatives; to vote and to be elected at genuine periodic
elections which shall be held by secret ballot, guaranteeing the free expression of the will
of the electors; and to have access, on general terms of equality, to public service in his
country…‖

It is l r th t mph sis is m on p rson‘s right to fr ly hoos r pr s nt tiv n to o so

without interference. Freedoms to form an opinion, together with freedoms of association and
expression, form the bedrock of any democratic system, including during electoral processes.
Opinions and information should freely circulate during pre-electoral periods, especially during
electoral campaigns. In general, the right to free elections and freedom of expression reinforce
each other. Genuine democratic elections are a requisite condition for democratic governance,
because they are the vehicle through which the people of a country freely express their will, on a
basis established by law, as to who shall have the legitimacy to govern in their name and in their

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interests. Achieving genuine democratic elections is a part of establishing broader processes and
institutions of democratic governance.

Therefore, genuine democratic elections cannot be achieved unless a wide range of other human
rights and fundamental freedoms can be exercised on an ongoing basis without discrimination
based on race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status, including among others disabilities, and without arbitrary and
unreasonable restrictions. They, like other human rights and democracy more broadly, cannot be
achieved without the protections of the rule of law. Achieving genuine democratic elections
therefore has become a matter of concern for international organizations, just as it is the concern
of national institutions, political competitors, citizens and their civic organizations.

14.7. Unit summary

Democracy cannot exist without elections which represent the will of the people, and elections
cannot function without an electoral system that sets fair and transparent rules that govern the
structures of elections. An electoral system or voting system is a set of rules that determine how
elections and referendums are conducted and how their results are determined. In Zambia, a
majoritarian system is used to elect the president and a simple majority system is used to elect
members of parliament, mayors, councilors and council chairpersons. Formal constitutional or
statutory recognition of a citizen's right to vote, and to run for public office, is common to
democratic states and plays both a substantive and a confidence-building role. It is important that
elections are fair and credible by adhering to international standards on credible elections.

14.8. END OF UNIT REVISION EXERCISE

- As a Constitutional Law student well versed with electoral systems at this stage, which
electoral system do you think is more representative for the people? Explain and justify
your answer.
- Discuss international standards for holding elections
- Do you think free, fair and credible elections are important in a constitutional
democracy? Explain.
- Outline the types and forms of elections in Zambia.

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 UNIT FIFTEEN

ELECTORAL DISPUTES IN ZAMBIA

15.1. Objectives

By the end of this unit, a student should;

 Have through understanding of the legal framework regulating electoral petitions in

Zambia and
 Have an insight on the processes involved in electoral petitions
 Apply theory to practice

15.2. Introduction

The Constitution of Zambia172 provides for a legal regime that allows political parties, candidates
aspiring for different offices and citizens with voting rights to Petition the nomination of
candidates and election results, if not satisfied. After elections, Zambian Courts and Tribunals
continue to adjudicate Election Petitions filed at Presidential, Parliamentary and Local
Government Election levels.

15.3. Resolution of Electoral Disputes

With the reintroduction of a multi-party democratic system of electing leaders, a new challenge of
l tor l isput s n how to r solv th s isput s h s m rg whi h h s pl Z mbi ‘s
judicial system at the epicentre in the resolution of these disputes. From 1991, Zambia has seen an
increased number of election Petitions filed after each election. Disputes are inherent to any
electoral process and it is therefore imperative to develop effective dispute resolution mechanisms
that lead to electoral justice and contribute to credible elections. Zambia has an existing legal
framework that establishes Courts and non-judicial structures for delivering electoral justice
before, during and after elections. The legal framework for disputes related to election results

172
CAP 1 of the Laws Zambia, Constitution of Zambia, 1991 as amended by Act No. 2 of 2016

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includes the newly established Constitutional Court by the amended Constitution of 2016, the
High Court and Local Government Election Tribunals (LGETs).

A number of petitions have been filed and heard in the courts of law for quite some time now.
2016 and 2021 elections saw a number of presidential and parliamentary elections petitions. Few
examples of election petitions include the following:

The first-ever presidential election Petition was filed in the Supreme Court of Zambia in 1996 in
the case of Akashambatwa Mbikusita Lewanika, Hicuunga Evaristo Kambaila, Dean
Namulya Mungomba, Sebastian Saizi Zulu, Jennifer Mwaba v. Frederick Jacob Titus
Chiluba173. In this case, the five Petitioners challenged the election of the Respondent as
President of Zambia on 18 November 1996 on the grounds that he was not qualified to be a
candidate for election as President and be elected because neither Dr Chiluba nor his parents were
citizens of Zambia by birth or by descent as required by Article 34 (3) of Schedule 2 to the
Constitution of Zambia174.

The Petitioners also alleged electoral flaws in the electoral system, and asked for the annulment of
the election on the ground that it was rigged and not free and fair. This Petition was dismissed for
being frivolous and not supported by evidence. The Supreme Court of Zambia noted:

The elections while not perfect and in the aspects discussed quite flawed, were
substantially in conformity with the law and practice which governs such elections; the
f w x mpl s of isol t tt mpts t ‗rigging‘ only s rv to onfirm th t th r w r only
a few superficial and desultory efforts rather than any large scale, comprehensive and
p root ‗rigging‘ s sugg st by th witn ss s who spok of bort mo r y

In 2001, the second Presidential Election Petition was brought before the Supreme Court of
Zambia over the election of Levy Patrick Mwanawasa, S.C. by three Petitioners, each Petitioner
filing a separate Petition. The three Petitions were consolidated into one Petition on 31 July 2002
as appears in the case of Anderson Kambela Mazoka, Lt General Christon Sifapitembo,
Godfrey Kenneth Miyanda v. Levy Patrick Mwanawasa, the ECZ and the Attorney

173
S.C.Z. Judgment No. 14 of 1998
174
Constitution of Zambia (Amendment) Act No. 18 of 1996

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General175 in which the Petitioners petitioned the election of the 1st Respondent as President on
grounds that the election was fraught with general and notorious bribery, corrupt and illegal
practices as well as misconduct by reason of which the majority of the voters were or may have
been prevented from electing a candidate of their choice and were therefore disenfranchised. The
other ground was that the election result was pre-determined or pre-arranged by Levy Patrick
Mwanawasa and/or his g nts in L vy P tri k Mw n w s ‘s f vour n th r for w s ontr ry to
the spirit of upholding the value of democracy, transparency, accountability and good governance
and hence was a sham and was null and void.

The Petitioners also alleged that the Electoral Commission of Zambia (ECZ) was negligent and
failed to supervise or superintend the Election in accordance with the Electoral Act and its
Regulations, thereby facilitating the illegal and fraudulent conduct of several of its officers such
as the opening of ballot boxes, or allowing them to be opened, in the absence of interested parties
and deliberately transporting ballot boxes without seals and unaccompanied by agents of Parties.

In its Judgment delivered on 16 February 2005, the Supreme Court determined and declared
Levy Patrick Mwanawasa to have been duly and validly elected as President of the Republic of
Zambia while noting, as in the earlier case of Chiluba, that:

We are satisfied, on the evidence before us, that the elections, while not being totally
perfect as found and discussed, were substantially in conformity with the law and
practice. The few partially proved allegations are not indicative that the majority of the
voters were prevented from electing the candidate whom they preferred; or that the
election was so flawed that the dereliction of duty seriously affected the result which
could no longer reasonably be said to reflect the true free choice and free will of the
majority of the voters176.

The most recent presidential petition was in 2016 when the losing UPND candidate Hakainde
Hichilema petitioned the election results. The President-elect Edgar Lungu and his Vice
President-elect Inonge Wina were scheduled to be sworn into office on the Tuesday following
the seventh day after the date of the declaration of the presidential election results, if no Petition
175
(2005) Z.R. 138 (S.C.
176
Supra Note 8 at 171-172

130
had been filed in accordance with Article 103 of the Constitution; or the seventh day after the
date on which the Constitutional Court declares the election to be valid. This is in line with
Article 105 (2) of the Constitution.

As it would turn out, the UPND losing candidates, Hakainde Hichilema, and his running mate,
Geoffrey Bwalya Mwamba, were aggrieved with the aforesaid declaration and filed an Election
Petition28 in the Constitutional Court on Friday, 19 August 2016. The Petitioners cited Edgar
Chagwa Lungu, Inonge Mutukwa Wina and the ECZ as 1st, 2nd and 3rd Respondents
respectively177. The Petitioners requested the Constitutional Court to declare that the President
elect Lungu edgar and Vice-President-elect Wina Inonge were not validly elected and that the
presidential election was invalid for non-compliance with the legal framework for elections.
Further, they requested a declaration that Mr Lungu did not receive more than 50% of the valid
votes cast. The Petitioners also asked the Court to order a recount of all votes in the Presidential
Election, and scrutinise all rejected ballots.

They further sought a declaration that UPND won the election, or, should the Court order a
second ballot; disqualify Mr Lungu as a candidate in any future election. The Petition was based
on arguments pertaining to both the electoral environment, such as bias in the public media,
restrictions on movement and campaigning, as well as irregularities alleged during polling,
counting, tallying, transmission and announcement of results. The petition however, was
dismissed for want of time as the 14 days required for hearing and determining the petition had
elapsed before the matter was discharged. Consequently, it can be said that it is not clear down to
this day the winner of the 2016 presidential elections as the Court did not declare any candidate
as a winner after a petition was lodged for want of time.

Apart from presidential petitions, some losing Parliamentary candidates in the general elections
have also exercised their constitutional right to challenge the election of persons who were
declared as duly elected178. For instance, in 1969 a Petition was filed before the High Court in the
case of Jere v. Ngoma179 in which Mr Wingford Kaliza Jere, who had intended to put himself

177
Case No. 2016/CC/0031
178
In the recent past, several Members of Parliament have petitioned in elections. You may do your own research
and read more on this.
179
(1969) Z.R. 106 (H.C.)

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forward as a candidate for the African National Congress Party (ANCP) for the Chipata West
Constituency at the General Election, sought a declaration of Mr John Chiponda Chisamba
Peterson Ngoma as void. The petitioner alleged that he was prevented by supporters of Mr Ngoma
from duly lodging his nomination papers on Nomination Day, namely 26 November 1968.

The High Court, when it ruled in favour of Mr Jere and nullified the election, stated as follows:

―I am therefore satisfied that on this (Nomination) day there were crowds of opponents of
th p tition r st tion t th ntr n to th r turning offi r‘s offi in or r to pr v nt
his (th p tition r‘s) ss to th offi ; th t he was put in reasonable fear so as to
prevent him approaching the returning officer to lodge his nomination papers, and that
this amounted to misconduct. I therefore find that this behaviour of the crowd at the
education offices on that day constituted misconduct as a result of which the majority of
voters in the constituency of Chipata West were or may have been prevented from
electing the candidate whom they preferred, contrary to section 16 (2) (a) of the Electoral
A t 1968 ‖

In summary, the Supreme Court set the tone that while the Court would frown upon illegal or
orrupt pr ti s it woul not lw ys b th Court‘s fin ing th t ill g liti s woul lw ys r sult
in the nullification of elections, especially if there is insufficient proof that the majority of voters
were prevented from voting for candidates of their choice. These principles have been recognised
in the development of electoral laws over a period of time and, as such, the Courts would be
hesitant to declare elections null and void if the other ingredients were not proven to the
satisfaction of the Court.

It is clear that losing candidates and citizens in general have had the right to petition the outcome
of elections in Zambia. It is also clear that Courts have frowned upon candidates who secure an
electoral victory using illegal, corrupt means and methods that undermine the integrity of the
electoral process. It has also been shown that Courts would not nullify elections on mere findings
of some irregularities or flaws associated with electoral systems, except when it is demonstrated
th t su h fl ws h v ir t b ring on th p opl ‘s popul r hoi of th n i t

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Zambia saw its first Presidential election Petition only following the 1996 Presidential Elections.
Until Zambia moved from th ―on -p rty p rti ip tory mo r y‖ whi h llow Dr K un to
be the only candidate in a Presidential election, it was not possible to petition the outcome of the
presidential election. Petitions are also associated with a multi-party democratic process that
allows more than one candidate to contest elections.

15.4. The Constitution of Zambia on electoral disputes

The Constitution of Zambia180 is the primary and principal source of electoral laws that govern
the conduct of elections and resolution of electoral disputes. It comprehensively provides for the
modus operandi for conducting elections in Zambia at all levels. Since 1964 to date, the
Constitution of Zambia has been consistent in spelling out principles on the resolution of electoral
disputes. These principles have been reflected in some Acts of Parliament and other subsidiary
laws passed pertaining to electoral disputes.

Article 43 of the Constitution of Zambia requires that citizens must endeavour to register and
vote, if eligible, in national and local government elections and referenda. The electoral system is
anchored on the provisions of Article 45, which set principles and provide a legal framework for
Z mbi ‘s l tor l syst m Arti l 45 r s:

(1) The electoral systems provided for in Article 47 for the election of President, Member
of Parliament or councillor shall ensure – a) that citizens are free to exercise their
political rights;

(2) The electoral process and system of administering elections shall ensure – a) that
elections are free and fair; b) that elections are free from violence, intimidation and
corruption; c) independence, accountability, efficiency and transparency of the electoral
process; d) timely resolution of electoral disputes.

Article 52 (6) of the Constitution explains in clear terms what happens to an election when one
candidate resigns on his own accord, dies or becomes disqualified after having filed his or her
nomination:

180
Constitution of Zambia (Amendment) Act No. 2 of 2016

133
 Where a candidate dies, resigns or becomes disqualified in accordance with Article 70,
100 or 153 or a Court disqualifies a candidate for corruption or malpractice, after the
close of nominations and before the election date, the Electoral Commission shall cancel
the election and require the filing of fresh nominations by eligible candidates and
elections shall be held within thirty days of the filing of the fresh nominations.

It is surprising that a democratic constitution would provide for cancellation of an election and
require the filing of fresh nominations in an instance where a candidate resigns on his or her own
accord after successfully filing nominations. This scenario would produce conflict where, for
instance, after filing of nomination in presidential elections, candidates conspire to cause
postponement of elections through one resignation after another.

Article 52 allows persons to challenge, before a Court or Tribunal, the nomination of a candidate
within seven days of the close of nominations. Under this provision, it is mandatory for the Courts
or Tribunals to hear the filed Petition within 21 days of its lodgement and ensure that 30 days
before the general elections, all such disputes are concluded and disposed of.

Under the Constitution, a person may also challenge the declaration of any person who has been
declared unopposed within seven days of the declaration and the Courts or Tribunals are expected
to hear and determine the matter at least 30 days before the general election181.

Important to the electoral process in Zambia is also Article 56 and Article 57 of the Constitution.
The former sets out the election date, which is the second Thursday in August of every five years
following an election, while the latter provides for the timeframe within which the election must
be held in the event that a vacancy occurs on all levels of candidacy, apart from the Presidential
by-election.

15.5. The Electoral Process Act No. 35 of 2016

The Electoral Process Act (EPA) is a key election legislation that derives its existence from the
Constitution as provided for under Articles 48, 49 and 54. The Act has repealed and replaced the

181
Article 53, Constitution of Zambia

134
Local Government Elections Act182 under which the Local Government Elections were held and
the Electoral Act20 under which Presidential and Parliamentary elections were held. The Act
gives guidance on the whole voting process in Zambia from the beginning to the end of the
election process as well as dispute resolution mechanisms provisions before, during and post
elections. It provides for registration of voters, and creates and ushers in election officers. Section
3 of the Act provides the principles to be applied in the electoral system and process which shall
ensure the following principles:

―equal and universal suffrage; no discrimination based on gender or disability when

providing electoral services; transparent and credible electoral process; no special
privileges accorded to a political party or social group, except for persons with special
needs; no impediments to lawful inclusion in the electoral register; impartial voter-
education programmes; access to polling stations for representatives of political parties,
accredited local or international election monitors, observers and the media; secrecy of
the vote; design of the ballot paper that promotes easy use; transparent and secure ballot
boxes; impartial assistance to voters at the polling station; transparent, accurate and
reliable vote counting procedure; proper management of invalid ballot papers;
precautionary measures for transporting of election materials; impartial protection of
polling stations; established procedures for lodging and dealing with complaints;
impartial handling of election complaints; impartial delimitation of electoral boundaries;
and timely resolution of l tor l isput s ‖

Section 110 of the Act provides for the Electoral Code of Conduct, breach of which may
necessitate Election Petitions. The new electoral law has a bearing on how Election Petitions are
determined as opposed to the previous law. For instance, under this Act, once the Petitioner or
claimant proves any one allegation on which his or her petition is based during the hearing of the
election Petition, the burden of proof shifts to the Respondent to dispute the facts.

The Act also requires the Petitioner to not only prove allegations being complained against but
also show that the majority of voters in a constituency, district or ward were or may have been
prevented from electing the candidate in that constituency, district or ward whom they preferred.

182
Chapter 282 of the Laws of Zambia

135
Part VIII of the Electoral Process Act creates and provides for the offences of corruption, illegal
practices and several other election offences. It is under this part that most of the disputes arise.
On the other hand, Part IX of the Act provides for the Election Petitions that may be commenced
for breach of Part VIII aforesaid. Part IX details the procedure on how an election Petition must
be lodged and presented, the nature of the reliefs sought and the grounds upon which the election
may be nullified.

The Code of Conduct is provided for in Section 110 of the Act under Part X. The Code regulates
the behavior of all the election stakeholders such as candidates, agents, monitors, election
officials, the media, and law enforcement agencies on how they must handle and conduct and
carry their respective selves during elections. All election stakeholders are guided by the Code.

15.6. The Constitutional Court and the High Court

The Constitutional Court is established under Article 127 of the amended Constitution of 2016.
The Constitutional Court Act gives further details on how the Constitutional Court is supposed to
operate. Article 128 of the Constitution and Part II in Section 8 (1) (c), (d) and (e) of the
Constitutional Court Act establish and provide for jurisdiction of the Constitutional Court, which,
among other things, hears and determines a Petition to challenge the nomination of a candidate for
election as President of the Republic and or indeed his or her election.

The Constitutional Court also has jurisdiction to determine Election Petition appeals from the
High Court. The procedure for the dispute resolution of Presidential Election Petitions is further
set out in the Constitutional Court Rules183 under Order XIV. The aforesaid Order provides for
the particulars to be included in the Petition, the service of the same and how it is supposed to be
responded to. It also provides for all the steps to be taken leading to the disposal of such a
Petition.

The High Court on the other hand has jurisdiction to adjudicate on Parliamentary Election
Petitions. Article 73 (1) of the Constitution provides that,

183
Statutory Instrument No. 37 of 2016

136
 ―…a person may file an election Petition with the High Court to challenge the election of
M mb r of P rli m nt‖

This is the primary legal framework for the resolution of Parliamentary Election disputes, and the
forum before which such can be settled is the High Court. Apart from this express provision;
Article 134 of the Constitution is the key in this discussion as the High Court has, by law,
unlimited and original jurisdiction in civil and criminal matters.

Article 73 (1) of the Constitution and Section 100 (2) (b) of the EPA are instructive as to where a
Parliamentary Election Petition must be lodged. It states that the Election Petition may be
presented to the Principal or District Registry of the High Court. Over and above this, the
Electoral Process Act (EPA) provides in Parts IX and X for different procedures and processes as
regards Election Petitions in the High Court and Election Petitions in the Local Government
Elections Tribunal (LGET).

The Constitution in Article 159 establishes the Local Government Elections Tribunal. The
Tribunal is established under this provision for the purpose of hearing whether someone has been
validly elected councilor or the office of councilor has become vacant. It should be mentioned that
the LGET is a novel creature of the Constitution as amended in 2016. Before this, Election
Petitions at Local Government level used to be filed and determined by Subordinate Courts with
the right of appeal to the High Court and subsequently to the Supreme Court. In furtherance of the
purposes of the Article above, in 2016 the Chief Justice promulgated or put in place the LGET
Rules184. In these Rules, the jurisdiction of the Tribunal is set out in Rule 3 while restating the
Constitutional provision of Article 159 as the function of the Tribunal. Parts IX and X provide for
the procedure on how the commencement, trial and determination of the Local Government
Elections must be conducted.

It should be mentioned that in terms of the powers of the Tribunal, it has been given power under
Article 157 (3) to disqualify or bar councillors whose elections are nullified by the LGET to
contest elections during the life of that Council. The High Court has not been given similar
powers when an election of a Member of Parliament is nullified. Rather, the Constitutional Court

184
Statutory Instrument No. 60 of 2016

137
under Article 72 (4) (a) and (b) has been given such powers. A member of the National Assembly
or Council whose election is nullified by the High Court or Tribunal may appeal against the
decision of the High Court or LGET to the Constitutional Court.

Where an appeal is lodged with the Constitutional Court, such a member may vacate their seat
only upon determination of the appeal by the Constitutional Court. This is in line with the
provisions of Articles 73 (4) and 159 (6) of the Constitution. This position was confirmed by the
Constitutional Court in the case of Margaret Mwanakatwe v. Charlotte Scott, ECZ and
Attorney General185 in which a single Judge stated:

―In th t r g r I not th t Arti l 72(2) of th Constitution r ss s inst n s wh n th

office of Member of Parliament becomes vacant. Of particular relevance to this application is
Article 72 (2) (h) where one can cease to be a Member of Parliament following a decision of
the Constitutional Court. My considered view is that I see no need to entertain this application
for stay any further when, by operation of law and in terms of the Constitution, it is clear
when a seat becomes vacant. One of those instances is when the Constitutional Court makes a
final determination on a seat that has been nullified. In the premises, I find this application for
stay of execution of the judgment of the court below irrelevant because when there is an
appeal, the law, as per constitutional provisions, has stated that the seat only becomes vacant
after the final determination of the Constitutional Court186.

15.8. Unit summary

The legal framework of Election disputes in Zambia shows complexity in the procedures as well
as evolution of the law. So while the Constitution of Zambia provides for the legal framework
that strictly requires that elections are free from violence and intimidation and that there is
accountability, efficiency and transparency, the EPA has demonstrably introduced further
provisions which have set standards very high for adjudicating bodies when determining Election
Petitions on when to nullify or not nullify an election.

185
2016/CC/AOI8
186
Page R21 of the Ruling

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In an environment where proof is available that elections were marred with violence and corrupt
and illegal practices, the hands of the Courts are tied if the Petitioners fail to prove that such acts
were conducted by or with the full knowledge of the candidate or agent. Generally, election
petition is part of democratic process which gives an opportunity to any candidate who feels
aggrieved by the results to take action.

15.8. END OF UNIT 15 REVISION EXERCISE

1. Discuss the provisions relating to election disputes as provided for in the Constitution of
Zambia.
2. Can a councilor petition election results in the High Court? Explain.
3. Mr. Lubaya Chipewo was a parliamentary candidate in the August 2021 general elections
but he is not happy with the results after he lost to Mr. Henry Nkosheni by 60 votes citing
violence, intimidation and threats. As a constitutional law student, Advise Lubaya and
outline to him what needs to be proved for him to have a successful election petition.
4. Explain the procedure for presidential and parliamentary elections petitions.
5. What is your opinion on the way the presidential election petition of 2016 was handled?
Do you think the Constitutional Court could have done better?
6. Give your opinion on how you would like the future presidential petitions to be handled
in Zambia.
7. Compare and contrast the presidential election petitions in Zambia, Kenya and Malawi.

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 MODULE CONCLUSION

This module has provided students with a solid foundation in constitutional law. The module
has discussed a wide range of subjects, including constitutional history, constitutional
interpretation, fundamental rights, and separation of powers, judicial review, federalism, as
well as constitutional governance. It is hoped that at completion of studying this module,
students will gain a deep understanding of the Zambian Constitution which is cardinal in
applying theory to practice. This module has also delved into ways in which students can
comprehensively understand constitutional principles, legal frameworks, and their application
in contemporary society.

Further, the module familiarised students with the rights contained in the Bill of Rights as
provided for in Chapter 1 of the Constitution of the Republic of Zambia and the values which
underpin the legal order of Zambian constitutional democracy. This course forms an important
base for all other courses, since article 1(3) of the Constitution explicitly states that the
Constitution is the supreme law of the Republic and Part III of the Constitution of Zambia
designates the Bill of Rights as the cornerstone of democracy in Zambia. This module
ultimately, equips students with the knowledge, analytical skills, and ethical values necessary
to navigate the complexities of constitutional law.

140
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