 THE UNIVERSITY OF LUSAKA

 SCHOOL OF LAW

 UNIT 2

 THE CONSTITUTIONAL FRAMEWORK OF

ADMINISTRATIVE LAW
 2.1 INTRODUCTION
 2.2 SUPREMACY OF CONSTITUTION
 2.3 CONCEPT OF SEPARATION OF POWERS
 2.4 RULE OF LAW
• There is a close connection between a country’s
constitutional order and the principles and theories
underlining that or framework and Admin. Law

• There are a number of concepts in Constitutional law

which have an impact on Administrative Law the most
important being the supremacy of the Constitution,
separation of Powers and Rule of Law.

• These three concepts affect how power vested in

various administrative agencies and officers are
exercised
• These concepts are of concern to Admin. Law
because they define the limits of power or
authority and ensure that those entrusted
with the responsibility to manage public
affairs on behalf of the people do so within the
confines of the law.
• Section 6(1) of the Constitution of Zambia Act
declares as follows;

• “6. (1) Subject to the other provisions of this Act,

and so far as they are not inconsistent with the
Constitution, the existing laws shall continue in
force after the commencement of this Act as if they
had been made in pursuance of the Constitution,
but shall be construed with such modifications,
adaptations, qualifications and exceptions as may
be necessary to bring them into conformity with
the Constitution.”
• The position is reinforced by Article 1 (4) which
provides that the Constitution shall bind all
persons of the Republic of Zambia and all
Legislative, Executive and Judicial organs of the
state at all levels.

• Article 1(4) was introduced by the drafters of the

Constitution for the avoidance of doubt as to the
Supreme position occupied by the Constitution
vis-à -vis other institutions of Government.
Article 1 (3) of the Constitution provides as
follows;

“(3) This Constitution is the supreme law of

Zambia and if any other law is inconsistent
with this Constitution that other law shall, to
the extent of the inconsistency, be void.”
• The implications of Articles 1(3) and (4) from
an Admin. Law stand point is that no person or
institution in Zambia is above the Constitution.

• Parliament which consists of the National

Assembly and the President in whom the
Legislative authority is vested cannot purport
to have or exercise authority or enact
legislation which violates the Constitution.
• Parliament can only do what is permitted by
the Constitution. Anything done outside the
confines of the Constitution is null and void.
• As for the Executive arm of Govt. the
importance of this provision is that the
President and his Ministers or any other
public officer can do only that which is
permitted by the Constitution.
• The President can not do or take action which
cannot be justified within the framework of
the Constitution.
• The same is true for Ministers in the exercise
of powers conferred by Acts of Parliament, like
the power to issue instruments with legal force
such as statutory instruments.
• The legal position is that any statutory
instrument must comply with the empowering
legislation and the Constitution
• Where the provisions of the statutory
instrument (SI) are in conflict with the
empowering legislation then such an
instrument is to the extent of the inconsistency
ultra vires the relevant provision of the
empowering legislation.

• Likewise, if an SI is in conflict with the

Constitution that instrument shall also be
invalid to the extent of the inconsistency.
• The same is true for the Judiciary. Though
Article 91 provides that the Judges from the
Courts, members of the IRC, Magistrates and
Local Court Justices are independent it does not
follow that they are independent from the law. It
provides as follows; “The Judges, members,
magistrates and justices, as the case may be, of
the courts mentioned in clause (1) shall be
independent, impartial and subject only to this
Constitution and the law and shall conduct
themselves in accordance with a code of conduct
promulgated by Parliament.”
• What is stated above equally applies for all other
institutions of Govt. including those that derive
their existence from the Constitution such as the
Human Rights Commission, The Director of
Public Prosecutions, The Auditor General, The
Judicial Service Commission, Commission for
Investigation and other Constitutional Offices.
• The Importance of the Concept of Supremacy
of Parliament is that no person or institution
created by either the Const. or an Act of
Parliament is above the Const.
• Every person holding public office or
institution is bound to work within the
confines established by statute and the Const.
• The Const. is the expression of the popular will
of the people in whom sovereign power is
vested on how they would like to be governed.
• Separation of powers is another important
concept which has an important impact on
Admin. Law in Zambia.

• The Concept is one that features in all the

Zambian Constitutions since independence.

• The Concept of Separation of Powers calls for

the division of authority of Government into
three main organs of Govt. namely the
Legislature, Executive and Judiciary.
• In its modern application the consequence of
the concept is not that there must be a rigid
three fold classification of power.

• It’s value lies in the emphasis on the checks

and balances which are essential to prevent
the abuse of enormous powers vested in the
rulers and this is important from the Admin.
Law standpoint.
*The original concept of the separation of powers
as formulated by Montesquieu meant as follows;
1) The same people should not form part or more
than one of the three organs of Govt. Example: a
High Court Judge should not be a member of the
executive holding a Ministerial job.
2) One organ should not control or interfere with the
exercise of the functions of another e.g Judiciary
should be independent of Executive
3. One organ of the state should not exercise the
functions of another organ. For example
Ministers should not make laws.

However, in modern times, the concept of

Separation of powers has been expanded and
has come to mean a number of things to
scholars and other interested parties.
• The real value of the Concept lies in the
maintaining the balance of power between the
organs of Govt. through checks and balances.
• In Zambia there is no rigid application of the
concept as formulated by Montesquieu.
• Ministers are chosen and appointed by the
President from among Members of Parliament.
The President himself is part of Parliament. The
National Assembly acting together with the
President make up Parliament.
• The Judges of the Supreme Court are
appointed by the President subject to
Ratification by Parliament.
• The Judges of the High Court are appointed by
the President after consultations with the
Judicial Service Commission but subject to
ratification by Parliament.
• This has led to some difficulties which have
been translated in the actual working of the
constitutional order.
• Though the Constitution has incorporated the
Concept to some extent, in practice the
Executive arm of Govt. has greater control and
influence of the activities of the Legislature
and Executive.
• In the case of the Legislature, though the
Const. has conferred on it power to make laws
which must be exercised independently of the
views of the Executive, in reality the
Legislature has become more of an extension
of the executive. E.g power to veto
• Members of Parliament have more allegiance to
their Political Parties than to Parliament.
• Incase of the Judiciary, some judges are not
independent and hold judicial offices not
because they are of value to the Judiciary but
because they are useful to the Executive branch
of Govt.
• The Consequence of this situation is that the
office of the President has emerged as a very
powerful force even stronger than the Judiciary
and Legislature.
• Both Parliament and Judiciary in reality are
Subordinate to the President. This is not the
position expressed by Parliament.
• This position has been created by individuals
who for different reasons, monetary gains, fear
of harassment by Govt., lack of understanding
of Constitutional issues and in other cases
mere cowerdice have abdicated their
responsibilities and allowed the President to
assume an upper hand.
• The Rule of Law is another important
Constitutional Concept relevant to Admin Law.
• The “Rule of Law” is used to mean a variety of
things according to the context in which they
are used.
• It may be used to mean that people must act
according to the Law, that is the Law is
Supreme and must be obeyed. In this
Context, it suggests that citizens must act
lawfully and should they want to effect change
they must use the normal democratic
processes
• In the Context of Admin Law, the Principle also
requires that the Government must act in
accordance with the Law. That is, even the
Government is subject to and must comply with
the Law. Example Road Traffic Offences, extra
Judicial Killings.
• The Rule of Law itself fulfills minimum
standards.
• It is this Concept which we are concerned with
in Judicial Review where the “rule of Law”
asumes the meaning encompassing principles
of accountability, the absence of arbitrariness
and the presence of fairness in decision
making. Professor Dicey is the Chief Proponent
of the Concept of Rule of Law.
• As originally expounded the Concept has three
meanings;
1. Everything must be done according to the law -
Legality
* Applied to the power of Govt., this requires that
every Govt. authority which does an act which
would otherwise be wrong ( such as taking
one’s land) or which infringes on a man’s
liberty ( by unlawfully detaining him) must
justify his action as authorised by law – and in
nearly every case directly or indirectly by an
Act of P.
• Every Act of Governmental power, that is every
act which affects the legal rights, duties or
liberties of any person must be shown to have a
strict legal pedigree.
• The affected person may resort to the courts of
law. If Legal pedigree is not found to be perfectly
in order the court will invalidate the act.
• In other words, no one can suffer in body or
goods except for a distinct breach of law
established in the ordinary manner before the
Courts
• (2) Government should be conducted within the
framework of recognized rules and principles
which restrict discretionary power.
• Many of the rules of Admin. Law are rules for
restricting the wide powers which Acts of
Parliament confer freely on Ministers and other
Authorities.
• An essential part of the rule of law is a system of
rules for preventing the abuse of discretionary
power.
• (3) equality before the law (fairness)

- The third meaning of the concept of Rule of law is that of

equality before the law or the equal subjection of all
classes of citizens to the ordinary law of the land
administered by ordinary Courts of law.

- In essence, no one is above the law. Presidents, ministers,

politicians and other people holding high public office are
to be treated in the same way as ordinary people. Case in
point is the attempt to prosecute the President of Italy.
• (4) Judicial Independence

• Disputes of Legality of acts of Government

must be decided before ordinary Courts by
Judges who are INDEPENDENT of the
executive
• In your view, what can be done to enhance
judicial independence ?
Thank you for your attention !