KENNETH KAUNDA METROPOLITAN UNIVERSITY

NAMES PARICK MUKOPA

STUDENT NO 2203362399

COURSE LEGAL PROCESS I

YEAR 2022

LECTURER DR VICTOR CHANSA.

ASSIGNMENT ONE
INTRODUCTION
Statutory Instrument No. 79 of 2017 contains The Public Health Act (Laws, Volume 17, Cap. 295)
under The Public Health (Infected Areas) (Cholera) Regulations, 2017 provides for measures for
the control of diseases declared to be infectious under the Act. This category includes diseases
communicable for animal to man. Measures include control of sewage, refuse disposal and manure,
control on food hygiene, disinfection and inspection of vaccines.
Section 10 Under Prohibition or restriction on trading or vending in unsanitary conditions defines the
role of an authorized officer as “An authorised officer shall prohibit or restrict trading in or vending
of food in unsanitary conditions”. While section 11. Stipulates the Punishement and penalties to be
rendered to those found wanting. A person who fails to comply with the direction, prohibition or
restriction of an authorised officer under these Regulations commits an offence and is liable, upon
conviction, to a fine not exceeding two thousand five hundred penalty units or to imprisonment for a
term not exceeding six months, or to both.
From the facts stated above, in the case of Viglinat and Insolent a number of questions may be
raised; who then qualifies to be called an Authorised Officer? How should that Authority be given to
such a one? Which foods are regulated for in this Act ? was the case of Insolent an emergence case
or of public Concerns? These and other questions shall be addressed in this legal opinion.
Section 2 under thhe statutory interpretation defines an authaurized officer as “ In these Regulations,
unless the context otherwise requires— authorised officer ” means a Medical Officer of Health, a
Health Inspector, or a suitably qualified person authorised in writing by the Minister or by a local
authority with the approval of the Minister;” This means to the extent possible not every graduate of
medical health is qualified to be termed an auththorized medical officer of health but the one whose
obtained written authority to them by the minister or by local authority. This entails that Vigilant
may not be an Authorized medical officer but a fresh graduate who is trying to perfom his civic
duties. The question would still be raised to which extent of reasoning can a person conclude that the
sale of such food would cause serious public cocern?
Section 11 and 12 clearly indicate that (1) An authorised officer may inspect a public premises in
order to ensure that it has sufficient sanitation and hygiene to prevent the occurrence or transmission
of cholera. (2) An authorised officer may order the cleaning or closure of the public premises or
burial of any contaminated water body where the officer determines that a public premises does not
have sufficient sanitation and hygiene to prevent the occurrence or transmission of cholera.

In taking these steps an althorised officer has the right to Shutdown, close or order not to sale any of
the goods related to the prohibited good for public interest. In 1905, the U.S. Supreme Court upheld
compulsory vaccination as a reasonable exercise of the state police power to protect the health,
welfare, and safety of its citizens (Jacobson v. Massachusetts ). This seminal case on the nature of
the police power—the legal basis for state authority in the field of public health—involved a
compulsory vaccination regulation of the Cambridge, Massachusetts, Board of Health. The
defendant refused to be vaccinated and contended that the requirement invaded his liberty and was
hostile to "the right of every freeman to care for his own body and health in such a way as to him
sees fit." But the Court held that “the liberty secured by the Constitution to every person … does not
import an absolute right in each person to be at all times and in all circumstances wholly freed from
restraint … it was the duty of the constituted authorities primarily to keep in view the welfare,
comfort and safety of the many, and not permit the interests of the many to be subordinated to the
wishes or convenience of the few” and Acknowledging that there is a sphere in which the individual
may dispute the authority of a government, the Court stated “it is equally true that in every well-
ordered society charged with the duty of conserving the safety of its members the rights of the
individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to
such restraint, to be enforced by reasonable regulations, as the safety of the general public may
demand..”

A similar case which also stands as a landmark is Schechter Poultry v. United States (1935)
On its face, Schechter Poultry was about the alleged sale of sick chickens and the ability of the
executive branch to stop it. In reality the case was about the Live Poultry Code, which was written
by the FDR administration. The code fixed the maximum number of hours a poultry employee could
work, added minimum wages for the workers, and controlled methods of "unfair competition."

The Supreme Court, with Chief Justice Charles Evans Hughes writing the majority decision, said the
Code wasn’t a valid exercise of Commerce Clause power reserved to Congress. The decision also
nullified an important New Deal program, the National Industrial Recovery Act.

Section 43 of the food safety Act no 7,2019 Authorise an officer, it states that (1) “An authorised
officer may— (a) at any reasonable time, enter on and inspect any land, premises or conveyance
where an article is manufactured, prepared, preserved, packaged or stored for sale or sold, examine
the article and take samples of the article for purposes of an investigation;”

Therefore vigilant acted in line with the act by excersing is given authority by the minister of health
to take charge. Having engaged insolent on the sale of unsanitary fresh fish, vigilant expected a
positive improvement on the fish to avoid endangering the masses of people. Bearing in mind that
where ones right ends that is where the duty care of another begin. This means that Insolent cannot
have the likelihood of escaping the liability since warning was given and necessary Procedure to
deal with the matter. Insolent did not only overlook the warning but also contravened with the
provisio of the public health Act (infected infections) Cholera of 2019. Sale of unsanitary goods is
strictly prohibited . by this act and anyone found wanting will be subject to penalties if found liable.
Therefore I feel that having satisfied the conditions of the Act , the case may succeed in the
prosecution. And by reporting these cases will not only wil benefit them, but it can also
prevent future infections for yourself and the seller.
REFERENCES

Public health Act (Infected Areas) Cholera SI 79 of 2017

Public Health Act Of Zambia 2017

The Food Safety Act No. 7, 2019

Public Health (Food in Airtight Receptacles) Regulations (Cap. 295).

Public Health (Sale of Bakery Products) Regulations (Cap. 295).

Schechter Poultry v. United States (1935)

Jacobson v. Massachusetts