NATIONAL INSTITUTE OF PUBLIC ADMINISTRATION

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INTRODUCTION

Public administrative power must be exercised within the limits provided. Reason being the area
of public law affects a large section of the society, if not, the whole society. As such, the courts
have a mandate to monitor the decisions of public administrative bodies. Aside from the courts
having this jurisdiction, decisions made by public administrative bodies may also be challenged
by non- judicial bodies or person(s) conferred with such authority. There is a variety of channels
in which administrative power may be challenged. These non-judicial bodies are sometimes
referred to as administrative authorities. The type of channel to be used in order to challenge a
decision may be dictated by a statute that provides for the existence of such administrative
authorities. To this effect, this paper is prepared in order to interrogate different ways of non-
judicial control of administrative power.

Administrative control of power involves the resolution of disputes between aggrieved parties
and administrators within the administrative process. This is also referred to as administrative
adjudication. This process settles disputes through institutions which are formally independent of
administrative authorities which are in themselves, the sources of disputes. Below are the
channels through which such disputes are resolved.

APPEALS TO MINISTERS

An Act of Parliament may provide that after a decision has been rendered by an administrative
authority within an institution, an aggrieved party may appeal to the minister for redress. For
instance, the Environmental Management Act and the Societies Act. Section 115 of the
Environmental Management Act provides that:

(1) The Minister shall, where the Minister receives an appeal or an application for
review under any provision of this Act, consider and determine the review.
The Minister may allow an application or appeal, dismiss it or refer it to the board as provided
for under section 115 (1) of the Act. In the case of Labson Zimba v The Attorney General 1,

1
(1973) Z.R 83 HC.
the appellant’s application to register as a society of Mtendere Branch of Jerusalem. An appeal
was made to the minister who dismissed the appeal and that the registrar was on firm grounds
when he rejected this application.
PUBLIC HEARINGS
Certain laws provides that for certain decisions to be made, the public must first be consulted. On
matters relating to land, the Environmental Management Act, Environmental Impact Assessment
Regulations and the Environmental Protection and Pollution Control require a developer to
ensure that the views of all interested and affected persons are taken into account when preparing
an Environmental Impact statement. These hearings are conducted so that people who have been
affected by an administrative decision may be consulted and views be collected pertaining to the
issue at hand.
In the case of Martha Kangwa and 29 Others v Zambia Environmental Management
Agency and Others2, the appellants argument was that the respondent’s Environmental Impact
Statement was based on misrepresentations as they were not consulted by the respondent.
However, the court found that a public hearing was properly conducted.
STATUTORY TRIBUNALS
Administrative or statutory tribunals are created within the administrative process of creating
channels to deal expeditiously with matters arising from within the jurisdiction of the tribunal.
Examples of tribunals include; the Lands Tribunal, Revenue Appeals Tribunal, Regional
Planning Appeals Tribunal, Capital Market Tribunal etc. Tribunals may be permanent or ad hoc.
Permanent tribunals are those created and operate even when no specific matter has been brought
before them i.e. The Lands Tribunal. Ad hoc tribunals are not created permanently. They are
created as and when need arises to address specific matters for which they are created. For
example, tribunals created under the Parliamentary and Ministerial Code of Conduct Act.3

LANDS TRIBUNAL
The Lands Tribunal was first created by section 20 of the Lands Act 4. Its mandate was to deal
with matters relating to land under the Lands Act. This mandate to deal with matters pertaining
to land was not absolute but restricted in the sense that it did not also cover for disputes arising

2
(2014) ZMSC 143.
3
Chapter 16 of the Laws of Zambia.
4
Chapter 184 of the Laws of Zambia.
from customary tenure despite the fact that most disputes arise from customary tenure. As result
of this restriction in jurisdiction, it led to injustice being occasioned by litigants who appeared
before it.
However, the government realized the inadequacies of the Tribunal and in 2010 they decided to
give it a boost through Act No. 39 of 2010. This Act provides for the continued existence of the
Tribunal in section 3. Its jurisdiction has also been enhanced in that it can now hear and
determine on matters pertaining to customary tenure. Section 4(1)(b) of the Lands Tribunal Act 5
confers the jurisdiction on the Tribunal to deal with disputes relating to customary land.

THE TAX APPEALS TRIBUNAL

The Tax Appeals Tribunal, formerly known as the Revenue Appeals Tribunal, is and
administrative quasi-judicial body dealing with matters relating to customs and excise duty,
income tax and value added tax. It operates under the Tax Appeals Tribunal Act. 6 Section 3 of
the Act establishes the Tribunal and sets out its functions. Further, section 4 ok f the Act
provides for the appointment of its members by the minister. According to section 6 of the Act,
appeals from the Tribunal lie directly to the High Court on questions of law or mixed law and
facts. Upon hearing the appeal, the High Court may refer the matter back to the Tribunal for
rehearing, confirmation, reduction, increment or annulment of the assessment or decision of the
Tribunal.
In the case of Celtel Zambia Ltd t/a Zain Zambia v Zambia Revenue Authority 7, an appeal
was made to the High Court following a decision by the Tribunal that the appellant and the
respondent should with involvement of a regulator, find modalities to refund consumers for the
tax which was erroneously levied and collected.

THE CAPITAL MARKET TRIBUNAL

This is a new tribunal created pursuant to section 184 of the Securities Act 8. It is a superior court
of record at the level of the High Court and all appeals lie to the Court of Appeal as per section
193(6) of the Act. The Tribunal has jurisdiction to hear and determine a) appeals from decisions

5
No. 39 of 2010.
6
No. 1 of 2015.
7
(2011) ZMHC 19.
8
No. 41 of 2016.
of the Commission; b) proceedings relating to misconduct in the securities market and c) any
other matter as specified or prescribed in terms of the Act or any other written law. The
chairperson and vice chairperson both of whom should be qualified to be appointed judges of the
High Court shall be appointed by the minister in consultation with the judicial service
commission.

COMMISSION OF INQUIRY
Another non judicial administrative mechanism used to control public administration authority is
the appointment of a commission of inquiry under the Inquiries Act 9. Pursuant to section 2 of the
Inquiries Act, the president is empowered to appoint a Commission of Inquiry in matters that the
president considers to be of public welfare. Examples of Commissions of Inquiry that have been
appointed before under the Inquiries Act include constitutional review commissions, the Legal
and Justice Reforms Commission.
A Commission of Inquiry operates within the terms of reference issued by the president. Upon
completion of Inquiry, a recommendation is made to the president who then acts on the
recommendations. Commissions enjoy broad power of investigation in any matter of individual
justice or administrative abuse of power or authority. The appointing authority determines the
scope of work, the terms of reference and the procedure to be followed as per section 2(2) of the
Act. People who appear before a commission can appear before it in person or through counsel
of their choice. Despite the recommendations being made to the president, he is not bound to
follow them.
SERVICE COMMISSIONS
Service Commissions are those appointed to carry out specific works or tasks within the public
service. They are tools of public administration and also a salient feature of the Zambian
administration process. These are usually involved in the employment of public workers in
specific sectors. The public service is to work for the public diligently. The power to constitute
offices for public services and to abolish those offices vests in the president subject to relevant
recommendations from the service commission as per Article 174 of the Constitution. 10 There are
various commissions created under part XVIII of the Constitution in Articles 217 to 234. Other

9
Chapter 41 of the Laws of Zambia.
10
Chapter 1 of the Laws of Zambia.
laws also create commissions i.e. the Securities and Exchange Commission pursuant to section 7
of the Securities Act.11
The Constitution has provided for the creation of service commissions such as the Judicial
Service Commission, the Electoral Commission of Zambia, the Local Government Commission,
the Teaching Service Commission, the Judicial Complaints Commission, the Police Public
Complaints Commission and many others.
The investigative commissions are given a mandate to receive complaints from members of the
public relating to wrong actions by the relevant public authorities, to enforce the codes of
conduct for public officers who are under the mandate.
The president appoints service commissions and all the work by the commission is done in the
name of the president. The president does not however control the working of the commission.
According to Article 216 of the Constitution 12, a commission is subject only to the Constitution
and the law that provides for the existence of such a commission. It shall be independent in it’s
operations, shall act with dignity, professionalism, propriety and integrity. Shall be non -partisan
and shall be impartial in the exercise of the authority. In other words, the business of the
commission should be transparent and should not be politically motivated.

THE PUBLIC PROTECTOR

The Public Protector popularly known as the Ombudsman is a person who investigates
complaints and mediates fair settlement of disputes between aggrieved individuals and the
government or it’s functionaries. Put simply, the Public Protector is a government official
mandated to protect the public from maladministration within the government system. Before the
creation of this office in Zambia, the public could complain about maladministration using the
courts or lobbying Members of Parliament. In Edward Jack Shamwana v The Attorney
General13, it was held that it was not enough to just submit the copies of the petition to the
Speaker and Members of Parliament but that the Members of Parliament in charge must sign it at
it`s commencement, deposited it with the clerk of the National Assembly who should examine it
later on submit it to the Speaker who duly approves it by endorsing it.

11
No. 41 of 2016.
12
Ibid.
13
(1988) ZMSC 27.
Article 243 of the Constitution14 provides for the creation of the office of the Public Protector
replacing the Investigator General. The operations and functions of the Public Protector are
guided by the Public Protector Act 15. One of the fundamental functions of the public protector is
to investigate complaints of suspected maladministration by the state institutions. This is one of
the core duties of the public protector as it also looks at those actions which taken or omitted to
be taken by state institutions in performance of an administrative function. Not withstanding that
such actions must be unfair and unreasonable. The public protector has authority as enshrined
under the constitution to make a foregoing decision against a public office holder and such
decision made must be implemented by an appropriate authority. It can be seen that that the
public protector plays a very import role on behalf of the public as it ensures state institutions act
in line with the public.

HUMAN RIGHTS COMISSION

Apart from the above outlined non- judicial mechanism used to control administrative functions,
the human rights commission is also a body in charge of controlling administrative undertaken
by state institutions. This body is established under Article 230 of the constitution. The body
plays an important role in that it safeguards the Bill of Rights and ensures that it is upheld thus
state institutions or administrative bodies are prevented from infringing the rights of individuals.
Not only that but also the commission carries out investigations on all forms of violations on the
rights and freedoms of an individual. Precisely as a non-judicial mechanism, the commission
prevents maladministration of justice that is of human rights nature. Some of the functions of the
commission are outlined under the section 9 of Human Rights Commissions Act 16 among others
include; to secure appropriate redress where rights and freedoms are violated. Therefore, the
commission is of essence as a non-judicial mechanism as it upholds the rule of law as well as
equality before the law.

CONSTITUTIONAL OVERSIGHT BODIES

Not only that but also constitutional oversight bodies are a mechanism through which
administrative functions are controlled. Among such institution is the National Human rights

14
Cap 1 of the laws of Zambia.
15
No. 15 of 2016.
16
Cap 48 of the Laws of Zambia
institutions (NHRI)17. It is important to note that the existence of these institution is provided for
by the constitution or by an act of parliament and it is headed by a public official.
The duty of the office holder of the oversight body is simply to receive and review complaints
from the aggrieved persons against government institutions. 18 These bodies are independent of
government interference in their execution of duties or simply put they are autonomous. As well
they also ensure that state institutions comply with the constitution. The constitutional oversight
bodies act as an eye of the public towards the state by making sure the state institutions give
positive feedback as they perform their administrative duties.

CONCLUSION
It can be concluded that the highlighted non-judicial mechanisms are there to enhance the
administrative relationship between the government institutions and the general public and this is
done on the basis of the provisions of the constitution and Acts of parliament. These mechanisms
are very effective in addressing the maladministration issues that arise, because they carry out
investigations as well as receive reports of such nature from the public. Thereby compelling the
state institutions to comply with the law and perform those actions omitted to be done in a just
and reasonable way so as to uphold the rule of law.

17
Chewe, Annie. Administrative law: cases and materials: Juta (pty) ltd press. (2020)

18
ibid
BIBLIOGRAPHY

LEGISLATION
The Constitution chapter 1 of the Laws of Zambia. (No.15. of 2016)
The human rights commissions Act chapter 48 of the Laws of Zambia.
The Inquiries Act chapter 41 of the Laws of Zambia.
Lands Act Chapter 184 of the Laws of Zambia.
The Lands Tribunal Act No. 39 of 2010.
Parliamentary and Ministerial Code of Conduct Act Chapter 16 of the Laws of Zambia.
The Securities Act No. 41 of 2016.

CASES
Celtel Zambia Ltd t/a Zain Zambia v Zambia Revenue Authority (2011) ZMHC 19.
Edward Jack Shamwana v The Attorney General (1988) ZMSC 27.

Labson Zimba v The Attorney General (1973) Z.R 83 HC.

Martha Kangwa and 29 Others v Zambia Environmental Management Agency and Others (2014)
ZMSC 143.

BOOKS AND LINKS

Chewe, Annie. Administrative law: cases and materials: juta (pty) ltd,( 2020)
https://www.scirp.org
https://www.africabib.org
https://www.researchgate.net