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Constitutional Law I

Constitutional Law concerns itself with the governance of a nation. It is specifically


concerned with the distribution and exercise of governmental powers (namely the distribution
of the power between the Executive, Legislature and Judiciary).
Topics to be addressed:
i.
ii.
iii.
iv.
v.
vi.
vii.
viii.
ix.
x.

Meaning of the term Constitution


Classification of Constitutions
Sources of Constitutional Law
Supremacy of the Constitution
Sovereignty of the Legislature
Legitimacy of the Constitution
Making of Constitutions
Constitution Making Process in Zambia
Constitutionalism
Mechanisms of Constitutionalism

Recommended Reading Materials:


i.
ii.
iii.
iv.

Constitutional Law in Zambia, Prof. Alfred Chanda (primary source)


Constitutionalism in Commonwealth Africa (old but useful) O. Nabweze
Presdentialism in Emerging State O. Nabweze
Constitution, Democracy and Governance Resa Mulenga

Statutes:
i.
ii.
iii.

Constitution of Zambia
Public Order Act CAP 104 LOZ
Electoral Act

The Meaning of the Term Constitution


In the contemporary dictionary, a Constitution is defined as the body of laws and principles
according to which a country is governed. But in legal studies the term constitution carries
2 distinct meanings:
(a) The Abstract meaning the word constitution in the abstract sense means a system
of laws, customs and conventions prescribing the powers and composition of the
organs of the state and their relations to each other as well as to the individuals in the
state.
(While both customs and conventions are both social practices, conventions are of a
more recent adoption by people. That is, they lack a long history of practice among
people)
An example of such a constitution is the English Constitution which is referred to as
an unwritten constitution. Only the UK, Israel and New Zealand have their
national constitutions in this form.
(b) The Concrete meaning - here the word refers to a formal document in which the most
important laws of the country are ordained or laid down and having especial legal
sanctity (it is formulated using a very specific procedure, a procedure unlike that of
ordinary statutes). The vast majority of countries in the world have their constitution
in this form. Here, within the constitution, are found the most important laws of the
country.

Classification of Constitutions

The classification of constitutions of states is basically the identification of constitutions in


different classes based on the following factors:
(i.)
(ii.)
(iii.)
(iv.)
(v.)

Whether or not the constitution exists in the abstract sense


Whether the constitution is one that can easily be changed or not
Whether the constitution is above every institution in the country or not
Whether the constitution permits the existence of several political parties or not
Whether the constitution provides for the head of the state to be elected or not

Consequently, constitutions of countries have been classified into any one or a combination
of the following classes:
(i.)

Written or Unwritten Constitution


A written constitution is a formal document containing the fundamental laws of a
state in a compact, written form and having especial legal sanctity. The worlds
oldest written constitution is that of the United States of America which was
adopted 1787 and enacted in 1789. (find out what the terms mean). The majority
of countries in the world (including Zambia) now have their constitutions in the
written form.
An unwritten constitution is a system of laws, customs and conventions creating
organs of the government, prescribing their powers and functions as well as
defining their relationships inter se and the individuals in the state. An unwritten
constitution is therefore not found in one formal document but may instead be
found scattered in numerous statutes, case laws, customs and conventions which
have come about over a period of time. The United Kingdoms constitution is a
leading example of such a constitution.

(ii.)
(iii.)
(iv.)
(v.)
(vi.)
(vii.)

Flexible or Rigid Constitution


Supreme or Subordinate Constitution
Multi-Party or One-Party Constitution
Federal or Unitary Constitution
Republican or Monarchal Constitution
Presidential or Parliamentary Constitution
President

Enactment of a Constitution (speak about it)

Sources of Constitutional Law (in Zambia)

By sources of constitutional law, is meant the elements from where constitutional law
derives. This branch of law in Zambia is derived from various sources namely
1.) The Constitution of Zambia Act
2.) Legislation (law made by parliament) Not all acts of Parliament are sources of
constitutional law in Zambia. But rather it is legislation that has a bearing on the
governance of the nation. For example the Electoral Act, Public Order Act, Citizenship
Act, the NCC Act, the Parliamentary and Privileges Act etc
3.) Judicial Precedent law made by Courts of law (although primarily charged with
interpretation of law, courts do sometimes create law) and is also known as Case Law. It
is those cases that have a bearing on the governance of the nation which can be
considered judicial precedent dealing with constitution. Especially those decisions
interpreting the constitution and other pieces of legislation that have a bearing on the
governance of the nation. E.g. Christine Mulundika & Others v. the People (1995) ZLR
(Constitution and Public Order Act were subject-matters of
Nkumbula v. the Attorney-General (1972) ZR-subject-matter was the one-party state)
4.) Conventions (social practices)- constitutional conventions; these are conventions that
are adhered to by members of constitutional offices (such as the President, Ministers
etc) Musumba Dancing Photos, Letter Response to Hichilema and a Judge running a
brothel is a violation of constitutional conventions
These are rules of constitutional behavior considered to be binding upon those people
who are involved in the implementation of the constitution or those people who occupy
constitutional offices. In other words, constitutional conventions are those conventions
which prescribe the rules of constitutional behavior and which are supposed to be
observed by government officials, legislators and judicial officers. These rules are usually
unwritten and serve a wide variety of constitutional purposes and vary from country to
country. These rules develop under every system of government. There are also called the
Ethics of Governance.
5.) Opinions of Eminent Scholars (Authors) (articles, journals, textbook, book on the
subject-matter of constitutional law) where there exists no precedent to deal with the
matter at the heart of a case, the Judges may turn to the opinion of Eminent Scholars.
Dosso v. The State (1947) Hans Kellsen on the effect of Coups on the law. Salla v the
Attorney-General of Ghana (1967), once again the court was asked to consider the effects
of a Coup on the laws and did so on the opinions of scholars.
English law holds that no legal textbook has intrinsic authority of the law. The authority
of most eminent authors of textbooks is confined to the extent to which the court considers

that it accurately reproduces the law as enacted by the legislature or as decided by


earlier courts. Where a statute has not yet been enacted, or where the court has not yet
pronounced a judgment, then the opinions of scholars may be of great value to the legal
profession and the courts of law.

Supremacy of the Constitution


It is a reference to the supreme authority that a written constitution has over the
government organs. The 3 organs of Executive, Legislature and Judiciary constitute the
Government. Government under the written constitution is the creation of that
constitution (its existence is a consequence of the constitution). It is prior to the
Government. A government operating under a written constitution must therefore act in
accordance with that constitution. Any exercise of power by the government outside the
constitution is supposed to be invalidated. The supremacy of the constitution demands
that courts of law should hold void any exercise of governmental powers which does not
comply with the constitution.
The rationale for this supremacy of a written constitution is that the constitution is
supposed to be an original act of the people directly whereas an act of government is a
derivative one. Therefore no legislative, executive or even judicial act contrary to the
written constitution can be a valid one.
Courts of law cannot begin legal proceedings; it is up to parties to begin those
proceedings.
Sovereignty of the Legislature or Supremacy of Parliament
The doctrine of parliamentary supremacy means that parliament has, under the English
Constitution, the right to make or unmake any law whatsoever and further that no person
or body is recognized by the law of England as having the right to overrule or set aside
the legislation of parliament.

Thomas Mumba v the People (1984) ZLR this case is an authority for the proposition
that the constitution of Zambia is the supreme law of the land.

The Legitimacy of the Constitution

Derek Chitale v the Attorney-General (1995)


It is about the moral authority of the constitution. The constitution of a state need not only
have legal authority but also moral authority in order to establish a stable constitutional
order in the country (or state). Legal authority occurs when the constitution is formally
promulgated or enacted into law by a body duly constituted to do so. In a number of
countries the body constituted to give the constitution legal authority is the legislature. In
some other countries is the constituent assembly or some other body.
The moral authority of the constitution (distinguished from legal authority) comes about
when the constitution is revered and accepted by the people it governs. This reverence
and acceptance of the constitution by the people it governs is what is referred to as the
legitimacy of the constitution. In other words, the legitimacy of the constitution in other
words is primarily concerned with how to make the constitution commands the loyalty,
obedience and confidence of the people it governs.
In order for the constitution to have legitimacy it must command respect of not only the
politicians and educated elites but also the general populous of the nation. It is said that
the stability of most of the western democracies such as that of the United States of
America, Britain, France etc is not only due to the legal authority of their constitutions
but also to the respect that the people give to those constitutions. It has been stated also
by an eminent African constitutional scholar by the name of Professor Nwabweze that the
major reason for the collapse of constitutional governments in most of the new states in
Africa and other parts of the world is because of the general lack of respect for the
constitution among the population and among the politicians themselves.
How to Make the Constitution have legitimacy
In order to make a constitution have legitimacy, it should be generally understood by the
people. To achieve this understanding and acceptance, the constitutional making process
needs to be subjected to the process of popularization (this refers to the involvement of
those who will fall under the constitution) with a view to generating public interest in it
and an attitude that everybody has a stake in it.
It has been widely recognized that besides the popularization of the constitution in order
to have legitimacy, another factor necessary to bring about legitimacy is how the
constitution is adopted. Adoption of the constitution is basically about approving the draft
constitution that has been prepared by a body given the responsibility of drafting the
constitution. There are various methods of adopting a constitution and notable among
these methods is

1. Referendum
2. Parliament
3. Constituent Assembly
4. Constitutional Conference

There may be a snap quiz next week.

First constitution of Zambia as a republic had was known as the Independence


Constitution, was given by the Council
1972 Constitution was the second one, also known as the one-party constitution
prohibited the participation of other political parties. It was written by the Chona
Constitutional Review Commission. After writing that constitution Zambia became a 1
party
1991 Constitution was the third constitution. It was written by Mvunga Constitutional
Review Commission. It only existed for 5 years before being replaced by 1996
constitution.
The 1996 Constitution is the fourth and current constitution. Mwanakatwe Constitutional
Review Commission.
There are efforts to write another one.
The second effort Mungomba Constitutional Review Commission made the first effort.
That constitution failed to become law.
Current effort is headed by the former Chief Justice
(adopted by the cabinet)
Procedures for Making a Constitution
1. Appointment of the Body to draft the constitution (CRC) exception being this
current constitution which has a technical committee (by the President)
The legislation which enables the Executive to appoint the body is known as the
Inquiries Act (CAP 104 of LOZ)-the exception is the technical committee.
2. Collection of submissions/petitions from the Zambian people as to what should be
included in the constitution
3. Compile and review the submissions made by the people not every submission
made will be included in constitution, only those which are pertinent to the
governance of the nation.
4. Submission of the reports by the CRC to the appointing authority in this report is
contained the recommendations of the CRC as to what the constitution should be
like. A draft or specimen constitution will be attached to the report.
5. Review of the report the President calls the Cabinet (Ministers and not deputies)
which considers this report from the CRC. The Cabinet will accept or reject certain
recommendations that the CRC will have recommended.
6. Those recommendations which have been accepted is placed in a White Paper as
well the rejected ones, amended ones will also be placed therein (government
response to any report given by an inquiry)
7. This is passed to parliament as a Constitutional Bill to be enacted (this will contain
all the things in White Paper)
8. First reading- the bill is introduced to the House, no debate or voting

9. Second reading-at this reading, the bill is debated and those in favor of the bill will
submit their reasons and those against will submit. Then there is a vote- 2/3rds
majority (as opposed to Ordinary Majority) (Mungomba Bill failed at the vote)
10. Committee stage- a small group of MPs are there to edit/perfect the Bill in terms of
wording used, punctuations and other matters. From this stage it goes back to the
House
11. Third reading-Bill is again debated; vote again with special majority-2/3rd majority
12. Then it goes to the President for assent at which point it becomes law

Legitimacy of the Constitution

One method of bringing about the legitimacy is by subjecting the constitution-making process
to Popularization.
The Manner of Adoption of the constitution also has a bearing upon legitimacy- when it is
adopted by a small group of people it is unlikely to have legitimacy. By contrast, when it is
carried out by a large group of people it is likely to have legitimacy
Constitutionalism
It is a concept connoting limitation on governmental powers. Anything that restrains or limits
excessive governmental powers (Executive, Legislative and Judiciary) will be
constitutionalism. It is concerned with how to limit governmental powers of a state.
At one time in human history, governmental powers were concentrated in either one man
(dictator) or group of people (totalitarian system). The one man or group of people would
exercise all the governmental powers of making the law (legislative), governing the state
(executive) and deciding disputes arising in the nation (adjudicative).
The exercise of all governmental powers by one man or group of people inevitably led to
abuse/arbitrary/wanton (not following the law) exercise of power. The abuse of governmental
power brought about injustice and discontent to the governed. When this discontent became
apparent, scholars began looking for ways by which they could check governmental powers.
Hence, scholars began preoccupying themselves with the methods by which governmental
powers could be limited. Scholars like Aristotle, John Locke, Montesquieu and others became
proponents of constitutionalism. They devised various ways or means by which governmental
powers could be reduced. These are the means:
i.

The Doctrine of Separation of Powers

The doctrine of separation of powers is concerned with the dividing of governmental powers
among three organs or agencies. These have long been identified as the executive, the
legislature and the judiciary.

This doctrine is said to have been initially propounded by a British philosopher known as
John Locke. He had the belief that it may be too great a temptation to human frailty, apt to
grasp power, for the same person making laws to have also in their hands the power to
execute the laws, the power to make the law and suit the law, both in its making and
execution, to their own private advantage. (Read John Locke)
The doctrine was developed further by another scholar known as Montesquieu, a French
political scientist who was concerned with the political liberty of the people. Montesquieu
believed that political liberty is to be found where there is no abuse of power. He observed
that experience shows that every man vested with power is likely to abuse it and carry his
authority as it could go. To prevent this abuse, it was necessary from the nature of things that
one power should be a check on another power. If the legislative and executive powers were
united in the same body of persons, there can be no liberty. Again there is no liberty if the
judicial power is not separated from the executive and legislative powers.
(Read MORE on this topic)
The extent to which the separation of power doctrine is implemented differs from country to
country and from constitution to constitution. Under the Zambian constitution, article 33
vests the executive functions of the republic in the President. The president delegates this
power (Ministers, A-G, S-G, DPP, Civil Servants) And he shall exercise these functions either
directly or indirectly through officers subordinate to him.
Article 62 (INVESTIGATE) of the constitution vests legislative functions of the republic in
parliament which consists of the President and the members of the National Assembly.
Article 63 (1) Constitution of the National Assembly 159
Article 91 vests the Judicial functions in the Court of Law
The Chief Justice is the head of the Judiciary
ii.

Principle of Checks and Balances

This is a principle whereby the powers of one organ are balanced against those of another
through a system of positive, mutual checks exercised by the government organs upon one
another.
Impeachment is a means of checks and balance
Judicial review is another means. Courts of Law have no capacity to initiate judicial review.
Any person affected by govermemt acts or ommisions which are not sanctioned by law can
bring proceedings against the government. Some one should have Locus Standi- or an
interest in the case.
(How many types of Judicial Review can there be?)

Dissolution of Parliament is the means by which Executive


For instance the executive may be empowered to veto (to refuse to sign; in this context)
legislation or to dissolve the legislature, and the legislature may impeach the head of state,
approve or ratify the appointment of certain constitutional office-bearers, criticize and
censure the executive or any member of it. The judiciary may have power to review the
actions of both the legislature and the executive.
The manner and style in which different organs might check each other differs from country
to country according to the type of government it has. However, the concept of checks and
balances presupposes that a specific function is assigned primarily to a given organ subject
to a power of limited interference by another organ to ensure that each organ keeps within
the sphere delimited to it.
iii.
iv.
v.

vi.
vii.
viii.

Judicial Review
The Rule of Law
Democracy
(Primary Principles of )
Multiplicity of political party
Free and fair elections at regular intervals
Respect of human rights
Representative Democracy (participation through elected representatives)
Direct Democracy (people participate in ruling themselves- Ancient Greece)
Guarantee/Observance of the Fundamental Human Rights
Federalism
Bicameralism

Second constitution- 1972 enacted but only came into operation by August 1973 (was
suspended for a while); Choma declaration- ANC disbanded then joined UNIP

JUDICIAL REVIEW
Judicial review refers to the power of the courts (especially the High Court) to declare
legislative and executive actions as either being contrary to constitution (unconstitutional) or
in accordance with the constitution or any other written law (illegal or unlawful).
The courts jurisdiction in this regard may be invoked by an aggrieved party who can show
that he has a locus standi (an interest) entitling him to challenge the executive or the
legislative act in question. The court in judicial review proceedings may declare the executive
or legislative act as unconstitutional or illegal because of the following:
i.

ii.
iii.

iv.
v.

It was enacted(legislature) or done (executive) in the prescribed manner and


form Christine Mulundika v the People (1995 (Public Order Act), Thomas
Mumba v the people (1984) (Electoral Act)
It violates guaranteed rights Christine Mulundika again
It usurps constitutional powers or jurisdiction of another organ- Membe, Mwape
and Sichone v. the Speaker for the National Assembly (1988); were convicted by
parliament and imprisoned thereby for contempt of parliament. They argued that
parliament
Unauthorized delegation or abdication of power to another organ
It conflicts with some provisions of the constitution

How does this bring about limitation of power?

Rule of Law
The concept of the Rule of Law is one concept that has received a lot of interpretation by
scholars and politicians. In essence to constitutionalism, the concept emphasizes the utmost
importance and predominance of the law in the process of governing a nation. It seeks to
keep at bay or suppress the inevitable excesses in the use of governing power by those entrust
with it beyond the law. The rule of law first points out that the law is supreme or predominant
as opposed to the wishes and desires of the governor. Secondly, the concept emphasizes the
equality of all people before the law.

Human Rights
It is premised on the belief that human beings have certain basic, natural and inalienable
rights. The state has a duty to recognize these rights in order that liberty may be preserved,
human personality may be developed and effective social democratic life may be promoted.
In other words, human rights are those entitlements a person has by virtue of being a person
and not by virtue of the law. When these rights are guaranteed or protected by the
constitution, they may become known as fundamental rights.
Human Rights disputes are significantly different from those that courts of law traditionally
deal with which require the courts to apply an existing rule contained in legislation or in
precedent. Human Rights cases by contrast require the court to assess the validity of a legal
rule or government decision against the concept of human rights and to decide to which a
right should be sacrificed to some important public goal.
Democracy
The word democracy simply means government by the people. It may also be defined as a
system of government, a set of institutions that fulfills at least two essential functions:
(i)

(ii)

It must be elicit as fast as possible as many as possible views on that should be


their representatives and how the country ought to be governed. This means a
minimum of universe suffrage, existence of several political parties and the
organization of free and fair elections at regular intervals.
It must provide ways that those elected by voters do in fact do what the electorate
want them to do or risk being replaced if they do not do so between elections.