This paper aims at discussing the extent to which the Zambian Constitution influences administrative law in Zambia.

Firstly, it will commence by defining constitutional and administrative law. Secondly, the relationship between constitutional law and administrative law will be elucidated. This will be followed by expounding the extent to which the Zambian constitution influences administrative law. Thereafter, a conclusion shall be reached. Administrative law and constitutional law are branches of public law. They both govern affairs of the state. Constitutional law, in general, deals with the distribution and exercise of the functions of government, and the relations of the government organs to each other and the individual citizen.1 A constitution in the concrete sense is the document in which the most important laws of the constitution are authoritatively ordained.2 Zambia has a constitution in concrete sense. In essence, administrative law is the law concerning the exercise of authority by administrative agencies and their relationship to the legislature, courts, and the public. 3 That is to say, the powers and measures in relation to the use of these powers vested in public officers, public institutions or indeed any other framework that may perform a government function.4 Administrative law tends to focus on three aspects of administration: rule-making procedure, adjudicative procedure and judicial review. There are a number of concepts in constitutional law that have an effect on administrative law. The most important theories are those of supremacy of the constitution, separation of powers and rule of law. Firstly, with regard to supremacy of the constitution, 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.5 Therefore, administrative law will be determined by the constitutional order, principles and theories underlining the order of the Zambian constitution. The Constitution shall bind all persons in the Republic of Zambia and all Legislative, Executive and Judicial organs of the State at all levels. 6 Constitutional Supremacy implies having a Constitution that is superior to all other institutions and laws under its
1

A. W. Chanda, Zambian Constitutional Law: Cases and Materials, (Lusaka: University of Zambia Press, 2001), at

Page 1
2 3

Ibid, at Page 15 D. J. Donohue and W. C. Fulkerson, A practical introduction to administrative law in Michigan, The Basics, (Michigan Bar Journal, 2002), at Page 14
4

P. Jackson & P. Leopold. O. Hood Phillips and Jackson Constitutional and Administrative law, 8th Edition, (London: Sweet & Maxwell, 2001), at Page 9 5 The Constitution of the Republic of Zambia Chapter 1, Article 1 (3) 6 Ibid, Article 1 (4)

jurisdiction. Supremacy of the Constitution demands that the court should hold void any exercise of power which does not comply with the prescribed manner and form or otherwise which is not in accordance with the constitution from which the power derives7 In Christine Mulundika and Seven Others v the Attorney General 8 , the appellants challenged the constitutionality of certain provisions of the Public Order Act Cap 104, especially section 5(4). The challenge followed on the fundamental freedoms and rights guaranteed by arts 20 and 21 of the Constitution. The Supreme Court held that Section 5(4) of the Public Order Act Cap 104 contravenes Articles 20 and 21 of the Constitution is null and void. Secondly, the President may, in consultation with Cabinet at any time, by Proclamation published in the Gazette declare war.9 An Act of Parliament shall provide for the conditions and circumstances under which a declaration may be made.10 Administrative law therefore will ensure that the president follows the prescribed procedure for declaring war. Thirdly, the executive power of the Republic of Zambia shall vest in the President and shall be exercised by him either directly or through officers subordinate to him.11 Since the cabinet ministers are appointed by the president12, they cannot delegate there functions and powers to their Deputy Ministers. It is only the president who can do so. This constitutional provision influences administrative law. Where a Cabinet Minister delegates such powers, this is ultra vires the constitution. Administrative law comes in to ensure that there is no abuse of office. Fourthly, Article 90 creates the Investigator-General of the Republic who shall be the chairman of the Commission for Investigation. The functions, powers and procedures of the Investigator-General shall be as provided by an Act of Parliament.13 The President may, on receipt of the report of the Commission on any investigation conducted by it, or during the continuance of any such investigation, take such decision in respect of the matter investigated or being investigated into by the Commission as he thinks fit.14 This institution cannot enforce its findings. This is a weakness on its part as it is the president who decides the
7

B.O. Nwabueze, Constitutionalism in the Emergent States, ( London: Hardcover, Farleight Dickinson University Press, 1973), at Page 7 8 S.C.Z. Judgment Number 24 Of 1995 Appeal No. 159/95 9 Supra Note 5, Article 29 (1) 10 Ibid, Article 29 (3) 11 Supra Note 5, Article 33 (2) 12 Supra Note 5, Article 46 (1) 13 Supra Note 5, Article 90 (13). 14 The Commission for Investigation Act, Chapter 36 Section 21 (1)

course of action. It can be more effective and efficient if it has its own enforcement mechanisms like in the Scandinavian countries. Therefore, administrative law is affected by the constitution of Zambia. Separation of powers is a concept that calls for the division of the authority of government into three main organs: the legislature, executive and judiciary. It has its origin from Montesquieu. There would be an end to 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 individuals." 15 Judicial review is the power of the court, in appropriate cases before it, to declare a governmental measure either contrary to, or in accordance with, the constitution or other governing law, with the effect of rendering the measure invalid and void or vindicating its validity and so putting it beyond challenge in the future.16 The High Court for the Republic which shall have, except as to the proceedings in which the Industrial Relations Court has exclusive jurisdiction under the Industrial and Labour Relations Act, unlimited and original jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this Constitution or any other law.17 The court may declare a governmental act unconstitutional and void because-it was not enacted or done in the prescribed manner and form; it violates guaranteed rights; it violates or usurps constitutional powers or jurisdiction of other organs of government, such as those of the executive or the court; it is an unauthorised delegation or abdication of power to another organ or agency; it violates or usurps the powers of another government in a federation; it conflicts with some other provision of the constitution.18 This was highlighted in Christine Mulundikas case. In Zambia National Holdings and United Nations Independence Party v The Attorney General, 19 it was argued and it so found before the High Court that section 16 of the State Proceedings Act was unconstitutional. It was contrary to Article 94 of the Constitution in that it limited the jurisdiction of the High Court. On appeal, the Supreme Court reversed the holding of the High Court. The Supreme Court observed that as a general rule, no cause is beyond the competence and authority of the High Court.
15

C. Montesquieu, The Spirit of Laws, (c.1748), Translated and Edited by Anne Cohler, Basia Miller, Harold Stone, (New York: Cambridge University Press, 1989)
16 17

Supra Note 1, at Page 48 Supra Note 5, Article 94 (1) 18 Supra Note 1, Page 48 19 (1994) S.J. 22 (S.C.)

In Fred Mmembe & Bright Mwape v the Speaker of the National Assembly, the Commissioner of Prisons & the Attorney-General, 20 the court was of the view that the decision by the Speaker to throw the applicants into prison was null and void. This is due to the fact that our Parliament is not a court in any sense at all and that the High Court possesses power on jurisdiction over major parliamentary actions. Lastly, the concept of rule of law has also has an impact on administrative law. The rule of law was advanced by Professor A.V. Dicey who was of the view that this concept included three distinct though kindred conceptions: everyone is equal before the law, no one can be punished unless they are in clear breach of the law; there is no set of laws which are above the courts.21 This is a preference for decisions by judges of the regular courts rather than decisions by administrators.22 As aforementioned, the rule of law inter alia, should mean an elimination of wide discretion from governmental processes. 23 The legislative power of the Republic of Zambia shall vest in Parliament which shall consist of the President and the National Assembly.24 It is clear to note however that public officers in Zambia enjoy wide discretionary powers. It is not easy to prove malafide or bad faith decision of the president when it comes to the manner of adopting the constitution. This is because under the Inquiries Act25 section 2, the President may issue a commission appointing one or more commissioners to inquire into any matter in which an inquiry would, in the opinion of the President, be for the public welfare. Nkumbula v the Attorney General26 and the case of Derrick Chitala (Secretary of the Zambia Democratic Congress) v. Attorney-General27 proved that it is not easy if not at all unattainable to challenge an executive discretionary decision. As the Head of State, the President shall perform with dignity and leadership all acts necessary or expedient for, or reasonably incidental to, the discharge of the executive functions of Government subject to the overriding terms of this Constitution and the Laws of Zambia which he is constitutionally obliged to protect, administer and execute. 28 The functions of the presidents are too broad and general. The

20 21

1996/HCJ/X Unreported A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 8 th Edition, (London: Macmillan and Company Limited, 1914) 22 K.C. Davis, Administrative Law and Government, (St. Paul, MN: West Publishing Company, 1960), at Page 50 23 Ibid, at Page 49 24 Supra Note 5, Article 62 25 Chapter 41 of the Laws of Zambia. 26 (1972) Z.R. 204 (C.A.) 27 (1995) S.C.Z. Judgment No. 14 of 1995 Appeal No. 92 of 1995 28 Supra Note 5, Article 44 (1)

president act according to what he thinks is right. Such decisions are not easy to challenge in the courts of law. Therefore, the constitution influences administrative law. The rule by law is where the government uses the law as an instrument to oppress the people. Indeed, it is the rule by law whenever the ruled become subjects of the rulers.29 Every man whatever his rank or condition, is subject to the ordinary law and the jurisdiction of the ordinary Court. However, in Re Nalumino Mundia,30 the petitioner applied to the High Court for an order of certiorari directed to the Chairman of the Standing Orders Committee of the National Assembly of the Republic of Zambia requiring him to remove into court, for the purpose of having it quashed, an order suspending the applicant from the National Assembly in violation of its own standing orders. It was held that the High Court does not have power to interfere with the exercise of the jurisdiction of the National Assembly in the conduct of its own internal proceedings. A member of the National Assembly shall vacate his seat in the Assembly if he acts contrary to the code of conduct prescribed by an Act of Parliament.31 The case of Honorable Dora Siliya, MP v the Attorney General & William Harrington (Intervener)32 is an incidence of equality before the Law. The applicant was found to have breached Article 54 (3) of the constitution by the led Justice Dennis Chirwa tribunal which recommended to the president that the applicant ignored legal advice from the Attorney General. The tribunal and High Court case demonstrates the fact that to some degree public officers are being held accountable and therefore ensuring some levels of accountability. The High Court held that even though this requirement [Article 54 (3)] is mandatory under this law, compliance is not. Therefore, the constitution of Zambia influences administrative law. Article 28 states that 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 for redress to the High Court which. In Zinka v The Attorney General,33 the appellant had been a licence holder whose licence had been revoked in terms of regulations promulgated by the President in terms of the Emergency Powers Act, Cap. 108. The appellant had not been given a hearing before his licence was revoked. It was held that where there was no express statutory provision to exclude the audi alteram
29 30

B. Tanamaha, On the Rule of Law, (London: Cambridge University Press, 2004), at Page 7 (1971) Z.R. 70 (H.C.) 31 Supra Note 5, Article 71 (2) (b) 32 2009/HP/0601 33 (1990-1992) Z.R. 73 (S.C.)

partem rule and a power was being used to limit or remove a fundamental right there was a rebuttable presumption that it was necessary to give prior notice and an opportunity to be heard. Further, that where the relevant legislation derogated significant fundamental rights in particular circumstances the principles of natural justice would not apply where a power was properly exercised under those circumstances. It is evident from the foregoing that the Zambian constitution influences administrative law in Zambia. Constitution law is law in static form whereas administrative law is law in motion. Inter alia, the three concepts that influence administrative law are: Supremacy of the constitution, separation of powers and the rule of law. Administrative law involves rule making procedure, adjudication and judicial review. It seems to concentrate more on the executive branch of government because it carries out administrative functions. Administrative law is there to ensure that there is no abuse of power by public officers and institutions. Therefore, the Zambian constitution in its entirety influences administrative law.

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