THE UNIVERSITY OF ZAMBIA

School of Law

L341 - ADMINISTRATIVE LAW ∗

Please note that this is a draft. The material is under revision.

∗This material has been prepared by John P. Sangwa and was initially part of a larger study
undertaken by the author. The material is meant for students studying L341. The
reproduction for any purpose whatsoever of this work or any part thereof in any form or
manner is not allowed without the permission of the author.

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 INTRODUCTION

What is Administrative Law?

Administrative law, as a subject, has defied definite and concrete definition.
Most scholars have confined themselves to formulating working definitions
within the context of their works. There is, however, agreement that
administrative law is concerned with powers and procedures for the use of
those powers by public officers and institutions responsible for the
performance of the functions of the state. It includes, especially, the law
governing judicial review of administrative actions.

Administrative law is law that governs those who administer any part of
governmental activities. Administrative law is not the substantive law
produced by the agencies, and it is not the substantive law created by the
legislative bodies or courts and administered by the agencies; instead,
administrative law is the law, which governs the powers and procedures of
agencies. It includes procedural law created by the agencies but not the
substantive law created by them, such as tax law, labour law, public utility
law, transportation law, welfare law, town and country planning law, and the
like.

Administrative Law Distinguished from Constitutional Law

There is a distinction between constitutional law and administrative law.

Constitution law refers to the formal rules, in the case of Zambia, embodied in
one single document referred to as the constitution, which establish the main
institutions of the state, prescribe their powers, their relation with each other
and their collective position vis-à-vis the citizens.

Administrative law on the other hand focuses on the powers vested in these
institutions and how they use them. For instance, the Banking and Financial
Services Act, 1994, confers on the Bank of Zambia, the powers to regulate
banking and regulated financial services and issue the necessary regulations
from time to time. The Act itself and the regulations made pursuant thereto
are not themselves of concern of administrative law. However, administrative
law would touch on the authority of the Bank of Zambia to make regulations
and upon the procedure employed in making them. Administrative law tends
to focus on three aspects of administration: rule-making procedure, where the
public institutions or officers are conferred powers to make rules, adjudicative
procedure where there is power to make decisions and judicial review, which
focuses on the power of the court to review decisions of public institution to
ensure that they are intra-vires the empowering legal instruments, and to
declare them ultra-vires, where they are not

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The Scope and Administrative Law
Administrative law is concerned with public authorities. It is concerned with
the way power is acquired, where the public authorities get their powers from
and the nature of those powers. It determines whether the exercise of a power
subject to any particular procedure, or whether it must be exercised in any
particular form. If so, it addresses the effect of failing to do so. It focuses on
how to ensure that powers are used only for the purpose for which they are
given - and that they are used effectively and efficiently. Administrative law
is concerned not only with power but also with liabilities both of authorities
and of their employees. It is concerned with the bodies, which exercise these
powers - central government departments, public corporations, local
authorities and other institutions.

The role of the courts, as independent institutions, in providing some checks

on the exercise of public powers is the concern of administrative law. The
courts are concerned with the legality of the administrative actions.

Administrative law must be seen as an instrument of control of the exercise of

administrative powers. Administrative law, like any other branch of law is
not an end in itself but a means of getting things done by creating through the
legal process, institutions, and granting them powers and imposing on them
duties. The decision maker is subject to the law, but at the same time, he sees
the law as something to use to achieve some end which society has chosen.

Administrative law is a concern of a lawyer as much as for the public officers.

There is need for public power, but there is also need for protection against its
abuse. Administrative law attempts to address the age-old problem of abuse
of power.

Administrative law as discussed in this course is limited to law concerning

powers, procedures, and judicial review. It does not include the enormous
mass of substantive law produced by the various agencies.

Although public institutions are created by statutes, by executive order

authorised by statute, and by constitutional provisions, and although their
principal powers and functions are normally defined by the instruments,
which create them, the great bulk of administrative law is judge-made law.
Some of the judge-made law either is or purports to be founded on
constitutional or statutory interpretation. However, other judge-made law is
made sometimes without reliance on either constitutional or statutory
provisions.

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 SOURCES OF ADMINISTRATIVE LAW

Introduction

By sources we mean where one can look for answer whenever and
administrative law issue arises. Administrative law is wherever law is. It is
founded on the Constitution. It is in the statutes and in any form of statutory
instrument. Administrative law is also in the form of common law made by
the courts and in the form of procedural rules made by administrative
agencies themselves.

Constitution
The entire Zambian Constitution is in a way a source of administrative law. It
is a limitation on government. It creates various organs of government and
prescribes what they may or may not do and how they can do what they are
empowered to do. For instance, Article 30 of the Constitution confers power
upon the President to declare, after consultations with Cabinet, that a state of
public emergency exists in Zambia. The said provision puts a limitation on the
exercise of this power by the President. The President can declare a state of
emergency only after he has consulted with Cabinet. Failure to do so may
render such a declaration null and void. Whether or not there has been
compliance with the provisions of the constitution or whether the power has
been exercised for the intended purposes is the concern of administrative law.

Statutes
Very often statutes, which create public institutions, prescribe their powers
and how they are to be exercised. It is the concern of administrative law to
ensure that such powers are used for the realisation of the policy objectives on
which in the statute is founded and not any other goals.

Common Law
The common law is creation of the courts. Following the concept of stare-
decisis, courts will decide a case today in the same way they decided in other
cases in the past if comparable factual situations are involves. There is
therefore a huge volume of guidelines on how the courts will decide a given
case and this collection of clues is called common law. Common law prevails
on a point of law so long as there is no statute, regulation, or constitutional
provision, which contradicts it. Judicial interpretations of statutes, regulations,
and constitutional provisions are part of the common law. Much of the
administrative law principles are in the form of common law. Formal laws do
not regulate every aspect of administrative authority.
For instance, the idea that no one should be punished unheard is law, which
has been embraced by the courts as one of the common law principles.

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Much of what is administrative based on the constitution is in fact common
law. The Constitution is brief and at times vague. It is therefore, interpreted
by the courts. It is in sense good that the Constitution is sometimes vague.
This enables the each generation to interpreter it to accommodate social,
political and other changes

Administrative Instruments
Some of the instruments with the force of law, which regulate public
institutions, are made by the institutions themselves. This kind of law is
imposed on the institutions by the public institutions themselves. It is often in
response to public pressure and public expectations exerted in different ways
throughout the political process. For instance, the Industrial and Labour
Relations Act has created the Industrial Relations Court. In order to ensure
that people have access to the Court and receive fair hearing the Court has
set its own rules, binding on itself and parties to the dispute, who have moved
the Court. The rules, which the public institutions impose upon themselves,
are often found in the same statute along with other rules and regulations
made by the institutions.

For instance, in 1996, the President issued a directive that housing units
owned by the government and local authorities be sold to sitting tenants. A
circular to that effect was issued by Cabinet govern this exercise. Any dispute
in this regard has been resolved by referring to this circular. As for the units
owned by local authorities, the Ministry of Local Government and Housing
issued a similar circular.

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 REASONS FOR STUDYING ADMINISTRATIVE LAW

Introduction

The study of administrative law is important in every country. However, for

Zambia it has a special importance dictated by the country’s history. From the
time a geographical entity known as British area of influence north of the
Zambia, later Northern Rhodesia and finally Zambia, was created the
declared objective of the British, as the imperial power, was that the territory
was not to be a colony but a protectorate. The obligation of the British
Government was, therefore, to create such institutions and do such things as
were necessary to ensure that the people of the territory were sufficiently
civilized: to the point that they were able run their own affairs. Once they had
reached that stage independence was to be given to them.

Justification

The developments, which followed reflect the resolution, by the British

Government, of competing settler and African interests. Whereas the settlers
in Northern Rhodesia wanted a close association with Southern Rhodesia and
share its status as a colony, the British Government stood firm to its
commitments to the Africans. The administrative structures and procedures
developed on the premise that the territory was a protectorate and not a
colony.

In the post independence era the declared commitment of the government

was to create a humanistic society. This prompted the concentration of power
in the executive, through the creation of the one-party system of government.
New institutions were created and traditional institutions changed to realise
new goals.

The end of one-party, in 1990, brought a realisation and acceptance of the of

failure of the one-party system to achieve the very objectives it was intended
to achieve namely the economic well being of the country. In its report at the
end of 1989: From Crisis to Sustainable Growth the World Bank noted that
Africa’s problems were as much political as economic: “A root cause of weak
economic performance in the past has been the failure of public institutions.
Private sector initiative and market mechanisms are important, but they must
go hand-in-hand with good governance - a public service that is efficient, a
judicial system that is reliable, and an administration that is accountable to the
public.” 1

1Sub-Saharan Africa: from Crisis to sustainable Growth, (1989), p. xii.

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The end of one-part rule, which came at the same time as the collapse of the
Soviet Union and communism, brought renewed confidence in democracy
and free market economic theories. In Zambia, the politicians, especially those
who formed the pro-democracy movement, found inspiration in the post-
independence constitutional arrangement and laws. 2

However, all the ideals the country has been committed to since it was curved
out of the African continent, have prompted enabling provisions in the
Constitution and statutes and generally new state structures. The
achievement of the ideals demanded and still demands a strong and efficient
administration.

The desire for rapid development is not free from dangers. With the roots of
democracy yet to take hold, a strong administration tends to ride over the
rights of the citizens. A careful and systematic study of administrative law
may help keep the administration in check and allow the people to keep the
administrator in line and use power efficiently and purposefully.

Nearly two decades after embracing democratic and free market ideals, their
fruits are yet to be seen. The situation on the ground dictates the need to
rethink democracy and free market.

The obligation of government both at national and local levels is to improve

the welfare of the people. This demands the creation of various public
institutions with diverse responsibilities, and operating pursuant to well-
defined rules. In order to prepare for the future the performance of past
institutions, their powers and rules governing them need to be studied and
understood. The present cannot be understood without examining the past.
There is need to understand the performance of past public institutions and
laws, before charting the course for the future.

Even if the needs of the greatest majority of the people are met, there is still
need to study administrative law. Administrative law and public institutions
are in a constant state of flux. They constantly need adjustment to meet the
pressing needs of the day and remain meaningful and relevant in the social
setting it thrives.

How Administrative Law Should be Viewed

2 For instance, the Constitution of 1991 was largely a reproduction of the 1964 constitution.
At local government level the Local Administration Act of 1980, was repealed and replaced
by the Local Government Act, 1990, which is largely a reproduction of the Local Government
Act of 1965.

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The situation in Zambia dictates that administrative law has to be seen in a
very different light, if it is to be relevant. Administrative law is not an end in
itself, but a means to an end. It must therefore be in constant movement to
keep up with the changing times. It should continuously respond to
unfolding governmental needs and to moves in understanding governmental
processes. Administrative law needs to be constantly nourished by the
realities of day-to-day administration in the handling of the emerging tasks of
government.

In order to gain a better understanding of administrative law scholars,

commentators and educators in law must not confine themselves to the black
letter of the law. There is need to examine details and substance of the
administrative process in action in public institution. The constraints must to
be identified and solutions proposed. Both side of the debate must be
examined and developed both orally and in writing. Those enjoying
administrative powers and judicial officers must learn from previous
experiences.

There is need to discuss the concept of rule of law, separation of powers, but
this must not be in abstract, but within the context of the constitution and
laws of Zambia. The concept of rule of law must be discussed bearing in mind
that the exercise of discretionary power is inevitable.

Attention must move to factual investigations inside the public institutions

and to realities about the necessary limitations on judicial functions in
reviewing administrative action. There is need to realise that, although the
Constitution vests executive powers of the country in the President, who in
turn delegates them to his ministers, most of the decisions in the ministries are
made by officers in the ministries and ministers often know very little about
the decisions taken.

There is need to shun some common beliefs about administrative law, which
stem largely from British administrative law, which beliefs are not true even
in Britain itself. Blind repetition of reproduction of British administrative law
ideas, should be resisted. For instance, it is generally believed in Britain that
administrative power “is in the hands of a minister responsible to Parliament,
and under the constant public scrutiny.” This is not true for Zambia. On
examination, facts do not support this statement not even in Britain. The
exercise of administrative power is not “under constant public scrutiny” and
much of it is not in reality “in the hands of a minister.”

Attention should instead move to detailed examination of the manner in

which inspectors, executive officers, higher executive officers and principals
do their work within the ministries, government departments and statutory

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bodies. The reality is that the exercise of powers is largely in the hands of civil
servants. Although they purport to work under the supervision of ministers,
only a small part of what they do is known to higher officers.

Civil servants, who make most of the decisions, which affect the citizens, are
not “under constant public scrutiny” and are not accountable to Parliament or
even the electorate. They escape scrutiny even from legal scholars who are
supposed to examine their activities.

In order to have a good understanding of the administrative process, it is

better to look at what the executive officers, higher executive officers or
principals do. The civil servants in the ministries and other public institutions
have a great deal of the understanding of the administrative process. This
understanding must be available to student, scholars, judges who have
interest in administrative law, and the authors of the literature of
administrative law.

Very often, the public does not see the full details of the handling of some of
the cases by government departments. As a result, the essence of
administrative process is lost to the people and is missing from the literature
of administrative law. The essence of administrative law lies in the full details
of how a matter has been decided. The problems of administrative law cannot
be understood or even identified without seeing how the cases are handled by
the officers handling them, and in most cases officers at the rank of principal
and below.

The judges, who are the makers of judge-made law, cannot also understand
some of the problems of administrative law unless they are informed of what
is going on in administration.

The study of administrative law in Zambia should take a broader view. There
is need to examine the ministries, tribunals and other public institutions and
find out what the legal problems are concerning the administrative process,
and then discuss them in the light of the statutes and the case law.

Proceeding otherwise will reduce the study of administrative law in Zambia

to the few cases decided by courts. Most of the major problems of
administrative law of concern and about, which a lot is known, have never
been litigated. The ones, which have been litigated, have been decided largely
without the advantage of detailed inquiries into the administrative process
itself. One consequence of such an approach is that administrative law in
Zambia is about portions of administrative law that are the subject of either
legislation or judicial decisions.

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Administrative law is concerned with the operation and control of the powers
of the public authorities. It deals with the exercise of governmental power and
the challenge is to infuse the legal ideals of fair procedure and just decisions
into the administrative powers in Zambia. There is therefore need for a very
radically of way of perceiving administrative law, if a true body of Zambian
administrative law is to emerge.

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THE GROWTH AND CAUSES OF GROWTH OF ADMINISTRATIVE LAW

Introduction

The forces, which precipitated to the emergence of administrative law as an

independent and distinct discipline in Europe caused the same development
in Zambia. Throughout the nineteenth and early twentieth centuries, the
predominant economic philosophy was that of laissez-faire. Private enterprise
was the chief instrument and promoter of economic activity and
development. The function of the state remained restricted to defence, foreign
affairs and some limited administrative and police activities, while the
mainstream economic and social life proceeded through private channels.

The Growth of Administrative Law

A good government, according to laissez faire thinking, was one, which

governed least and enjoyed at best limited power to intervene in the
economic, social and political affairs of its citizens.

Laissez faire ideology called for a limited role for the government. The course
of social development was not to be managed, but left to the private persons,
and the law was to assume only the minimum function of maintaining public
order, settling disputes and at most adjusting conflicts of social interests as
they arise in an otherwise undirected society. 3

However, the beginning of the 20th century saw decline in the popularity of
laissez faire. People opposed to the idea argued that competitive market
mechanism did not automatically provide full employment of labour. The
teachings of classical economists were viewed as destructive and the demand
for an increased role for the state in controlling the level of investment
developed. 4

The end of the hands-off approach, characteristic of the laissez-faire era,

paved way to welfare state economics in the Western capitalist world. The
characteristics of the welfare economy are many. First, there is a vast increase
in the range and detail of government regulation of privately owned
economic enterprise. Second, the direct provision of services such as
unemployment and retirement benefits, family allowances, low cost housing,
medical care and the like, by government to individual members in the
national community. Third, increased government ownership and operation

3Harry W. Jones, “The Creative Power and Function of Law in Historical Perspective”,
Vanderbilt Law Review, 17 (1963), 135-6.
4Ibid. pp. 229-30.

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of industries and businesses, which at an earlier time, were or would have
been operated for profit by individuals or private corporations.

The emphasis is on the State providing certain services to its people. The
individual came to realise the futility of his reliance on private rights, and the
recognition of the social or public interest in his welfare. People now ask the
government not so much what their rights are, but what government will do
to enable them live a full and meaningful life. The small businessperson has
come to realise that free enterprise is meaningless if uncontrolled monopolies
deprive him of his business. All men have come to realise that their rights
have little significance unless the government genuinely secures their
interests.

To achieve these demands the functional approach of government has grown

significantly during the 20th century. This has been seen through the creation
of commissions, corporations, boards consisting of experts entrusted with the
responsibility of dealing with problem areas involving public utilities like
water, electricity, rent control, marketing of grain and protection of health or
any other problems identified by the community.

A number of factors have contributed to the growth of functional

organisations. There has been a general realisation of the usefulness of
preventive measures. For example, the inspection of food by a government
department protects the consumer than does the need to sue the seller of the
food after the consumer has been affected by the food.

Through functional approach, problems are seen by government for what

they are and in need of solution and less as a political controversy. It is not
possible for one institution to address all the problems. Specialisation is
accepted as the norm in modern times. A functional organisation allows a
practical and realistic combination between private and public interests.
In public administration, it is recognised that there must be continuous
supervision and experimentation. No legislature can fix for all time the rate of
income tax. Only by continuous supervision and adjustment, can the rate be
tested for fairness and adjusted to the changing conditions. The functional
organisation has tried to fulfill the present day need for inexpensive, speedy,
non-complex procedures in substitution for the slow and costly procedures in
courts and legislatures.

Causes of Growth of Administrative Law

The growth of functional organisations has led to the growth of

administrative law. The traditional judicial systems have proved inadequate
to deal with the multitude of cases arising from social legislation. This is due

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to its formalism and the cost. The courts, being already over-burdened, were
least equipped to handle the number of cases arising from the new social
legislation. This led to the growth of administrative justice. That is the
administration of justice by administrative bodies and tribunals.

The legislature also had limitations. It lacked both the time and technique to
concern itself with details. It had to confine itself more with the outlining of
broad policy objectives. This, in turn, led to the growth of delegated
legislation. It became necessary to combine in the same hands, functions,
which were traditionally treated as separate.

Public officers were given powers to lay down general rules and judicial
functions that are to apply the self-made regulations and decide individual
cases. The administrative process had to adopt new techniques and acquire
the expertise to deal with complex problems. It had to specialise and develop
an awareness of the social context of the administration. Once a rule is found
inadequate to address a problem, a new one incorporating the experiences
learnt had to be created. Flexibility is essential in social control of private
affairs. The development of administrative law and process made it possible
to co-ordinate legislative policies and judicial administration, which were
once thought impractical.

Administrative law as a separate subject of legal study is a new arrival on the

stage. It was for some time treated as a branch of constitutional law.
However, the rapid developments in the field of law and the need for a
systematic study have led to the acceptance, that it must be treated as a
separate subject of study.

There are a number of other factors, which have contributed to the

recognition of administrative law a separate subject of legal study.
Administrative law has become part of today's legal thinking. Its significance
and importance has been realised and accepted. Public law is today wider
than private law. The rules of offer and acceptance in contract are not as
important as the rules on procedure on determining any increase in tax. By its
very nature, administrative law provides the meeting point of constitutional,
statutory, procedural and substantive aspects of law. It provides a valuable
synthesis of topics, which are otherwise unrelated. Administrative law
provides the point at which law meets politics and economics and
demonstrates the interdependence of each aspect. Administrative law shows
the way to achieve the objective of welfare state within the rule of law.

Although the identification of administrative law as a separate subject may

not be an old innovation, administrative law by itself is not an entirely new

13
development. It is as ancient as public institutions themselves. It is a
consequence of organised state.

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 THE CONSTITUTIONAL FOUNDATION OF ADMINISTRATIVE LAW

Introduction
There is a close connection between a country’s constitutional order and the
principles and theories underlining that order or framework and
administrative law. There are a number of concepts in constitutional law,
which have an impact on administrative law. The most important concepts
are those of supremacy of the constitution, separation of powers and rule of
law. These three ideas affect how power vested in various administrative
agencies and officers is exercised. 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.

Supremacy of the Constitution

Article 1(3) of the constitution declares that the constitution is the supreme
law of Zambia: if any law is inconsistent with the constitution that other law
shall to the extent of the inconsistency be void. The position is reinforced by
Article 1(4), which provides, the constitution shall bind all persons in the
Republic of Zambia and all legislative, executive and judicial organs of the
state. This is a superfluous provisions 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.

The implications of these provisions are serious. From the administrative

standpoint, it means that no person or institution in Zambia is above the
constitution. Parliament: the National Assembly and the President working
together, in whom the legislative authority of the country is vested, cannot
purport to have or exercise authority or enact legislation, which violate the
constitution. Parliament can do anything that is permitted by the
Constitution. Whatever is done must be within the parameters set by the
Constitution.

As for the executive the import of the provisions is that the President and his
Ministers or any other public officer can do only that which is permitted by
the Constitution. The President cannot 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
position of any statutory instrument must comply with the empowering
legislation and with the constitution. Where the provisions of the statutory
instrument are in conflict with the provisions of the empowering legislation
then, such an instrument is to extent of the inconsistency ultra-vires the

15
relevant provision of the empowering legislation. Similarly, if a statutory
instrument is in conflict with the constitution, that instrument shall also be
invalid to the extent that it is inconsistent with the constitution.

The same is true for the judiciary. Although Article 91 of the constitution
provides that Judges of the Supreme Court and High Court, members of the
Industrial Relations Court, magistrates and justices of the local courts are and
must be independent and impartial it does not follow that they are
independent from the law. The same article provides that they are subject
only to the constitution and the law. They are bound to operate within the law
as established from time to time. This is true even for the Supreme Court. It is
bound to follow its decision in earlier cases unless there are compelling
reasons in a given situation to go against its own earlier decision.

Similarly, Article 94 of the constitution establishes the High Court and confers
on it unlimited and original jurisdiction to hear and determine any case civil
or criminal under any law except for matters exclusively reserved for the
Industrial Relations Court. The exercise of that jurisdiction is not limitless. It
has to be exercised within the law and in accordance with the rules and
procedures, which have been developed over time. 5

What has been said above is true for all other institutions of government
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 and other constitutional offices.

The import of this concept is that no office or institution created either by the
Constitution or an Act of Parliament is above the Constitution. Every person
holding a public office or institution is bound to work within the confines
established by statute and the Constitution itself. The constitution itself is the
expression of the popular will of the people, in whom the sovereign power is
vested, on how they would like to be governed.

Zambia’s constitutional and administrative law is a product of nearly seventy

years of British colonial rule. Although textbooks are readily available on
these subjects in our libraries based on British experience, the position has to
be contrasted with that of the United Kingdom of Great Britain where the
sovereign authority is vested in the Queen and the two Houses of Parliament
acting together. There exists the supremacy of Parliament as opposed to that
of the Constitution.

5 Zambia National Holdings Limited and United National Independence party vs. The Attorney
General SCZ Judgment No. 3 of 1994.

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The authority of the courts in United Kingdom to challenge legislation
enacted by Parliament is widely accepted as alien to English constitutional
doctrine. Judicial review of legislation is incompatible with one of the pillars
of the British constitution: Parliamentary sovereignty or supremacy. This
principle means Parliament has, under the English constitution, the right to
make or unmake any law whatsoever and further that no person or body is
recognised by law in United Kingdom as having a right to override or set
aside legislation.

One of the implications of this principle is that Parliament cannot bind itself.
In terms of the legal and judicial processes in English municipal law, the
principle of parliamentary sovereignty is sacrosanct. An academic study of
judicial review of legislation in England would, therefore, lack substance.

The Parliament of the United Kingdom can determine the authority of the
Prime Minister and that of the judiciary. Its authority is limitless. In theory,
this is true, but there is a general belief that the authority of the Parliament is
to some extent limited.

Where the authority of Parliament is considered in relation to other legal

systems, its limitations become self-evident. Even Dicey, who is regarded as
the first constitutional law writer to clearly formulate the principle of
Parliamentary sovereignty, conceded that there were many areas where the
principle might be indecisive. He gave as examples of statutes Parliament
might not amend or repeal in exercise of its sovereignty such as the Act of
Union with Scotland of 1706 and the Act of Union with Ireland of 1800. To
these, E.C.S. Wade adds the Parliament Act, 1911, 6 the Statute of
Westminster, 1931, 7 the statutes which granted independence to
Commonwealth states 8 and others.

To this, must be added the European Communities Act, 1972, which has also
directly challenged Parliamentary sovereignty. This Act has compromised the
supremacy of the British Parliament. The European Community is regarded
by many as a federation or at least the embryo of a federal state. The
implications of this, upon the previously all-powerful principle of
parliamentary sovereignty, are clear and far-reaching. There are other
implications arising from the British Membership of the European Union. The

6 which limited the powers of the House of Lords in relation to those of the House of
Commons and limited the duration of Parliament
7 which confirmed the special, quasi-independent, statuses of the dominions of Canada,
Australia, New Zealand and others),
8 such as the India Independence Act, 1947 and the Zambia Independence Act, 1964)

17
decisions of the European Court of Human Rights are binding on the United
Kingdom and the British Parliament cannot ignore them.
One of the reasons for the refusal by Britain to join the Monetary Union is the
fear of losing its independence as a sovereign state. However, although the
limitations of the principle of parliamentary sovereignty in certain areas of
constitutional law have been clearly illustrated, this does not render the
principle itself worthless. There is no denying that it has worked to prevent
the courts in England from directly impugning legislation made by
Parliament.

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The Concept of Separation of Powers

This is another concept, which has an impact on administrative law in

Zambia. The concept of separation of powers is one of the features of the
Zambian constitutions since independence. The concept calls for the division
of the authority of government into three main organs of government: the
legislature, executive and judiciary. In its modern application the consequence
of the concept is not that, there must be a rigid three-fold division or
classification of power. Its 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 administrative law standpoint.

In modern times, the concept has been expanded and has to come mean a
number of things to scholars and other interested parties. However, in its
original context, as formulated by Montesquieu, the concept meant: (1) that
the same people should not form part of more than one of the three organs of
government. For instance, a Judge of the High Court should not be a member
of the executive by holding a ministerial position; 9 (2) that one organ of state
should not control or interfere with the exercise of functions of other organs
(for instance that the judiciary should be independent of the executive) and;
(3) that one organ of state should not exercise the functions of another organ
of (that is that Ministers should not make laws.)

The real value of the concept lies in maintaining the balance of power
between the various organs through checks and balances. There is, however,
something to note as a feature of the constitutional order of Zambia. There is
no rigid application of the concept. 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 in
the legislative process 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 the appointment is subject to
ratification by Parliament. This has led to some difficulties which have been
translated in the actual working of the constitutional order.

9 For example the appointment of Mr. Justice Bobby Bwalya, a sitting Judge of the High
Court as Chairman of the Electoral Commission, and other like in the past to offices in the
executive branch of government is a violation of the concept of separation of the powers. This
is not seen as a problem because those appointed do not see any thing wrong with such
appointments, as they are a source of great reward. Second, there is no immediate and visible
victim of this practice. What is affected is the quality of government.

19
Although the constitution has embodied the concept of separation of powers
to some extent, in practice the executive branch of government has greater
control and influence on the activities of both the legislature and the judiciary.
In the case of the legislature, although the constitution has conferred on it the
power to make laws, which must be exercised independently without regard
to the views or sentiments of the executive, in reality the legislature has
become more of an extension of the executive. Members of the Parliament
have greater allegiance to their party and not to the Parliament as an
institution. Motions and Acts of Parliament receive the required number of
votes on the strength of the party, which sponsored it and not necessarily on
merit. Unpopular legislation and motions are affirmed by Parliament purely
on partisan lines.

Appointments to constitutional offices are ratified by Parliament, just because

they emanate from the President, even in the face of evidence to against such
decisions. 10

In the case of the judiciary, some judges are openly partisan and are holding
judicial offices not because they are of value to the judiciary as an institution,
but because they are useful to the executive branch of government when
necessary. They are the eyes and ears of the President within the judiciary as
an institution.

Whenever they are called to resolve any issue of political significance

involving the government, they invariably decide in favour of the
government. The appointment of serving judges to some executive offices has
a big impact on other judges. Such appointments are often very rewarding in
monetary terms. It is a way of sending very subtle messages to other serving
judges that if they conduct themselves favourably in the eyes of the executive
they would also be rewarded. The consequence is that Judges, except for the
very brave, often shudder to make any finding against the government except
in cases where a decision in favour of the government is impossible to sustain
in the light of the law, the evidence and above all public opinion.
Furthermore, where not even with the most liberal interpretation of the law
and the facts, would support a decision in favour of the government.
The consequence of this situation is that the President has emerged as a very
powerful force, much stronger than Parliament as an institution and the
Judiciary. Both Parliament and the Judiciary in reality are subordinate to the

10 For instance, Mr. Meebelo Kalima was appointed Director of Public Prosecutions by the
President. His appointment was ratified by Parliament in the face of representations from the
Law Association of Zambia to the effect that he was not the right candidate for the job. A few
months later, he was suspended by the President on allegations of improper conduct and a
commission was appointed to look into his possible removal from office.

20
President. This position is not expressed by the Constitution. It has been
created by individuals both in the legislature and the judiciary who, for a
myriad of reasons, monetary gains, fear of harassment by government, lack of
understanding and appreciation of constitutional issues and in other cases
mere cowardice, have abdicated their responsibilities and allowed the
President to assume an upper hand.

Rule of Law

The other constitutional concept of importance to administrative law is that of

rule of law. Professor A.V. Dicey is the chief proponent of the concept of rule
of law. His exposition has been studied by generations of scholars, statesmen
and those interested in public affairs and has been qualified in many respects.
As originally propounded, the concept has three meanings.

The first is that the law is supreme or predominant as opposed to the

influence of arbitrary power. In essence, no one is punishable or can be made
to suffer in body or goods except for a distinct breach of the law established in
the ordinary legal manner before the ordinary courts of the land. This
proposition is opposed to the conferment of broad arbitrary or discretionary
powers.

The second meaning 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 the
ordinary courts of law. In essence, no one is above the law. Presidents,
ministers and other people holding high public offices are to be treated in the
same way as commoners.

The third meaning of Dicey’s exposition is relevant more to the British

situation. He maintained the rules in jurisdictions such as Zambia, which form
part of the formal constitution, are not the source but the consequence of
rights of the individuals as defined by the courts and Parliament. The legal
rights of the individual for instance freedom of speech, movement are secured
and guaranteed as rights proclaimed in a formal code but they are a product
of the operation of the ordinary remedies in private law available against
those who unlawfully interfere with them be they private citizens or public
officials. A person who has been physically injured by another can maintain
an action against that person in the ordinary courts of the land. This is
possible only if there is free access to the courts of justice.

The extent to which the concept of rule of law is true in Zambia can be a
subject of debate. Although it has been widely accepted as a valid
constitutional concept, the extent to which it is true varies. Even in the United
Kingdom, some of what was said by Dicey was true in his time but it is no
longer today.

21
For instance, the idea that no man is punishable or can be made to suffer in
body or goods except for a distinct breach of the law established in the legal
manner before the ordinary law of the land is not universally correct. There
are a number of situations where this is not true. During a state of emergency
the President or any officer authorised by the President can detain any person
(hence depriving that person of his liberty) where the detaining authority in
his own subjective determination his of the view that the person is a danger to
the situation obtaining. The person is made to suffer in body without being
charged with any recognised offence under the law, as was the case after the
attempted coup in 1997. A number of people were detained by the President
in line with the authority conferred on him under the Emergency Act. It was
only later that there charged with a known offence under the law: treason.
This was after they had been in detention for several weeks.

Another example arises in offences which cannot be summarily tried by the

Magistrates courts such armed robbery, murder, treason and others. One’s
liberty is already curtailed before the case is committed to the High Court for
trial.

A number of statutes have been enacted by Parliament, which confer wide

discretionary powers upon a public office. The Act may empower a specified
public officer to take certain decision if he is “satisfied” that certain conditions
exists. In this case, the decision is no longer being taken according to law but
according to the officer’s subjective determination.

A detailed exposition of the concept in the context of Zambia is a concern

more of constitutional law as opposed to administrative law. However, the
link between the concept of rule of law and the administrative law is quite
evident. The concept seeks to set the parameters, within which public officers
may act, and what they may actually do and how they may do it. It seeks to
encourage the exercise of governmental power within and according to law as
opposed to the whims and caprices of those in power. The concept of
separation is of significance to both constitutional law and administrative law.
However, the practicability of the concept comes alive in the area of
administrative.

Conclusions

It must be noted that although the ideas of supremacy of the constitution,

separation of powers and rule of law are embodied in Zambia’s constitution it
does not follow that such ideas have been given full life. The extent to which
they are real has to be examined. Experience has shown that these ideas are
real only to the extent to which those wielding political powers are prepared
to make them real. These are ideas are not ends in themselves. They are a

22
means of realising an environment in which limited, responsible and
responsive government exists. Notwithstanding their shortcomings, these
ideas remain of significance to administrative law.

23
 DISCRETIONARY POWER
Introduction

As already noted Zambia, as a country, has gone through many phases. Until
independence in 1964, the role of the British Government was to do such
things as were necessary to empower the local population to run their own
affairs: in short to civilise them. After independence, the new African
government committed itself to the realisation of a humanistic society. Since
the end of one-party rule 1991, there is commitment to transform Zambia into
a democracy. Successive governments declared their interest in improving the
welfare of the people. In each era, it was and it still is the responsibility of the
State to provide for the economic and social welfare of the people. It is
inevitable if these ideals are to be realised that broad discretionary powers
must be vested in some public officers.

Every aspect of present day administration presupposes the vesting of wide

discretionary powers. Where there is adjudication on the grant of licence to
run a specified trade, profession or calling or the assessment of tax or customs
duty, the acquisition of property or the deprivation of one's liberty under
emergency laws, the exercise of administrative discretion is involved.

The vesting of wide powers in the administration has its own problems and
challenges. Experience has shown that, not only is there the inherent tendency
of power to expand itself, but there is the ever-present danger that an
administrator vested with power may lose sight of the objective or essence of
power vested in him and become tyrannical.
The pressing need of our time is how to reconcile the inescapable vesting of
great administrative and discretionary powers in public officers with the
liberty of the individual, the core of any welfare democratic state emerging or
long-standing. Administrative discretion is central to the functioning of the
whole field of administrative law.

Discretion Meaning and Definition

The word “discretion” is often used in several senses. In its general use, it
signifies an option to do an act, free decision, unrestrained will. There are also
diverse legal meanings. One of the earliest definitions of the term was by
Edward Coke in Rooke vs. Bernard. He said, “Discretion is a science of
understanding, to discern between falsity and truth, between wrong and
right, between shadows and substance, between equity and colourable glosses
and pretences.” Since then courts have been more specific in their use of the
term and have generally used it to denote the liberty or privilege, which is
allowed to judges or officials to decide according to their best judgment

24
unhampered by any rigid rules. Some times the courts have also used the
term to warn the judges and officials that they should exercise their powers
fairly and with a sense of discrimination.

Administrative Discretion: Origins and Short History

Discretion in the sense of freedom of choice was a necessary consequence of

all governmental administration from the earliest times. Before a democratic
control over rules is established, discretion exists in its worst form in the
arbitrary will of the rulers. However, once political control over rules is
established it becomes clear, any discretionary power claimed by government
or government officials must have its statutory basis. Today all discretionary
power of public institutions or officers is statutory in nature.

Discretionary power was vested in and exercised by public officers long

before it became known as administrative discretion. Until recently, that is
until the emergence of systematic study administrative law; the term
discretion was used, in law, synonymous with judicial discretion.

The term “discretion” in the field of law came to be applied first to that area of
law of the judges’ functions. Where, in the absence of any pre-determined
rules of law applicable to the facts of a particular case, the judges had to
decide the case according to their best judgment and sense of discrimination.
This area of judicial discretion was, naturally wider in the early era of
common law development. However, because of the human desire for
certainty and desire to eliminate personal factors in the administration of
justice, the area of judicial discretion became gradually more and more
limited. As precedents were added on precedents and the theory of stare
decisis developed, very limited room was left for judicial discretion. The
consequence was common law judges could not invent new rules and provide
new remedies to meet the requirements of the new situation. The natural
expansion of the common law nearly stopped until the then Chancellor's
equity stepped in to keep the law abreast with the changing needs of society.

The exercise of equity jurisdiction was the exercise of discretion. By then

Chancellors were not judges, but only administrators. The early chancellors
decided cases according to their own conscience and sense of discrimination,
unhampered by any rigid rules. Again, the human desire for certainty forced
the adoption of the analogies of common law and the precedent system came
to be applied in the courts of equity as in the common law courts. The
discretion of equity Courts became the judicial discretion regulated by strict
law and not one exercised according to the will of the judges in equity.
The result was the law once again failed to provide adequate and new
remedies to meet the situations arising from the growing state’s involvement

25
in the economic and social affairs of the people. This time the legislature came
to the rescue and vested necessary discretionary powers in public institutions
to provide the needed relief. The human desire for certainty and fairness
found expression in the demand that public officers exercise their discretion
judicially: judiciously, according to the law and not arbitrarily.

Causes of the Rise and Growth of Administrative Discretion

Historically neither emergency nor the need efficiency was the sole cause for
the rise of administrative discretion. The need for administrative discretion
arose, as if naturally, when the State abandoned its role as an impartial
observer of economic and social conflicts and assumed a positive role: to
provide for the realisation of social justice. Whereas the former communist
countries the state was directly involved in the provision of the economic and
social needs of the people, but capitalist countries assumed the role of
regulators. In each case, the law was employed to provide the framework for
the realisation of these ideals. It became difficult to deal with the new
responsibility without vesting discretionary powers in the decision-makers.
The Legislature could only lay down certain general standards. The detailed
application of the standards was left with the administrators.

Discretion of Legislative, Judicial and Executive Bodies

When applied to public bodies, in a generic sense the term “discretion”

denotes their right or power to choose between several alternatives in the
exercise of their functions. In that sense, all the three governmental bodies, the
legislature, the executive and the judiciary exercise discretion. The legislative
bodies have in general a broad discretionary power to select a variety of
policies in the enactment of laws. From the very nature of the functions
performed by legislative bodies, the area of legislative discretion is wider than
that of either of the two branches of government.

The discretion of the judiciary is its power to choose between various rules in
deciding cases. The area of judicial discretion varies from case to case and are
narrowest were the facts of the case are covered by a pre-existing decision or
legislative provision and widest where neither applies yet. It is limited
because of the theory of stare decisis and by the general recognition that
judicial process must be followed by courts in deciding case.

The discretion of the executive, in general, is its power or liberty to choose

between alternatives in carrying into effect policies laid down in legislation.
The executive discretion though narrower than legislative discretion, is wider
than that of the judiciary. The executive in the discharge of its function has a

26
larger choice of alternatives. The novelty of the situations faced by the
executive is more apparent than in the case of the judiciary.

Moreover, the executive is not hampered by the rule of stare decisis. There is
no general rule that the executive must follow a judicial process in the
exercise of their discretionary powers. Apart from the general discretion of
the executive there is a particular discretion vested in the executive by statute,
to exercise its choice in a particular matter.
In administrative law, we are primarily and largely concerned with the
discretion exercised by the executive, commonly known as administrative
discretion. This is due to the direct impact, which administrative decisions
have on the lives of the people. Our lives continue to be influenced, largely by
what is done by the executive branch of the state as opposed to the legislature
and the judiciary. The bulk of case law available, in administrative law,
involves the challenge of administrative actions or inaction. The exercise of
legislative discretion has limited impact. Often it affects people affected by the
law passed by the legislature. The exercise of judicial discretion affects more
often than not the parties before the court.

Present Role and Justification Administrative Discretion

Administrative discretion is indispensable to a modern administration. All the

forces, which prompted the vesting of discretionary powers in the past, are
still present today, but in a much more intense form. The need for flexibility in
administration and for personalised treatment of problems is greater today
than ever before.

In the whole field of public administration concerning public safety, health,

education, licensing, planning and development, legislative policies, cannot
be enforced and targets achieved without giving administrators large
discretionary powers. Whether a person is a threat to national security within
the provisions of the Preservation of Public Security Act or the State Secrets
Act or not is a decision, which is in the discretion of administrators.

Vesting of Administrative Discretion

Discretion can be vested in public authorities either by the Constitution itself

or by a statute. In a written constitution, discretionary authority must be
traced directly or indirectly to the constitution. A statute vesting discretionary
must be constitutional. There is no discretion vested by virtue of common

27
law. However, since it is judges who are the ultimate interpreters of statutes,
they determine the scope and extent of discretionary power.

A statute confers discretion when it refers to the use of the power by an

official according to his beliefs, expectation or tendencies instead of facts. It
may also use terms such as adequate, advisable, appropriate, beneficial,
competent, convenient, detrimental, expedient, equitable, fair, fit, necessary,
practical, proper, reasonable, reputable, safe, sufficient, wholesome or their
opposites. The concepts embodied by these terms are incapable of exact
legislative definition. Other words may also be used but the determinant in
each case is that the language used confers an element of personal judgment.

Discretion Vested by Statute

A serious problem in the interpretation of statutes arises when a statute

conferring power uses the term may or shall. A statute may provide that a
licensing authority “may grant a licence” or that “shall grant a licence.” The
question that arises is whether discretion has been vested in the authority in
either or both situations. Generally the term “may” is indicative of an option
or discretion, whereas the use of the term shall indicates that no discretion is
vested in the authority, and that the order is mandatory. However, the use of
these words is not in itself conclusive. Even though the term “shall” has been
used in the statute, the power conferred may still be discretionary. For
example the sentence: “The Minister shall grant a licence if he thinks
necessary.” Although the word “shall” has been used in relation to the
granting of licence it does not follow that the grant of the licence is automatic.
There is a pre-condition to the grant of the licence. There has to be a
determination by the Minister that it is in order to grant a licence. The grant of
the licence is still discretionary. It is dependent on the Minister to make a
decision in his subjective determination that it is in order to grant the licence.

The same can be said section 30(1) of the University Act of No. 26 of 1992,
which provides.

Deans of Schools and Directors of Institutes, Bureaux or similar

bodies shall be elected, from among senior members of the
academic staff of the schools, Institute, Bureaux or similar bodies
concerned, by their academic staff and in accordance with such
election procedure as they may determine.

The proviso is also worth noting. It provides:

28
 Provided in the case of a school, Institute or Bureau or similar body
in the process of being established the Vice-Chancellor shall
appoint the Dean or Director to hold office for a period of one year
but at the expiration of that period the academic staff shall hold
elections as provided for under this section.
The determination of the election procedure by the academic staff is not
discretionary but mandatory although the word may have been used. The
existence of the election procedure is a pre-condition to the holding of the
election. There can be no election without the election procedure; hence, the
establishment of the election procedure was mandatory. 11

When does Discretionary Exist

Discretion involves the liberty to choose between alternatives. The choice may
be with regard to the act itself or as to the manner of doing the act. However,
if both the act and the manner in which it may be done have been fixed by
statute, then there is no discretion.

Classification of Discretion

Various classifications of discretion have been suggested. However, the

simplest is one suggested by the traditional classification of power into
legislative, adjudicative and executorial depending upon the predominant
nature of the function performed by the person in whom discretionary power
is vested. The exercise of discretion involves the exercise of functions, which
are legislative, judicial or administrative in nature. However, in the exercise of
a particular discretion one of these functions may be predominant. For
instance, when an administrative authority is empowered to lay down a
general rule, within his discretion, in a particular situation, the exercise of
such discretion is predominantly legislative in nature and may called
legislative discretion.

Where the exercise of administrative discretion involves a function in the

nature of judicial function, such as licensing, it may be called adjudicative
discretion. Similarly, when the exercise of administrative discretion is

11 However, in The People vs. The Registrar of the University of Zambia, Ex Partes Chitalu Gozo
Lumbwe SCZ/8/40/1997. The Supreme Court held that the determination of the election
procedure by the Staff of the unit concerned was not mandatory but discretionary due to the
use in the said section of the word “may”. It is absurd to contend that the members of staff
had option whether to formulate of not to formulate the rules. In the absence of the rules, it
follows that there can be no election but since the holding of election was mandatory, it
follows logically that the formulation of the election rules must be mandatory. Any argument
to the contrary has no bearing with both logic and reality.

29
primarily concerned with executing a legislative policy that is applying or
dispensing with the application of the law to a particular situation, then such
discretion may be called executory discretion.

Administrative discretion may also be classified as general or personal

depending upon whether discretion is vested in the executive body or in a
specified office or individual. For example where the statute provides,
“Government may in its discretion...,” then the discretion involved is general.
Other statutes may provide: The Commissioner may….” In this case, the
discretion is personal. It is vested in the person occupying the office of the
Commissioner at the material time.

Administrative discretion may also be classified as unqualified or qualified.

The discretion vested is absolute and unfettered or unqualified where neither
the purpose nor the legislative standards are specified. On the other when
both the purpose and standards are specified in the statute to guide the
exercise of discretion such discretion is qualified.

Problems Raised by Administrative Discretion.

Administrative discretion is indispensable in modern day administration, but

it raises serious problems. Rule by discretion necessarily means rule by men
and not rule by law. The rule by men is not free from dangers. The control of
discretionary power is one of the difficult questions of our time. The problem
of tyranny by the entire machinery of government has been addressed largely
by establishing political and judicial controls, but the possible tyranny of
individual public officers in the exercise of their discretionary power is a
much more serious problem. It defies both political and judicial controls.
From its very nature, discretionary power is not susceptible to external
control. The legislature, after vesting the necessary discretionary power in
public officers, have little control over the use of that power. Even judicial
control is very limited.

The administrator in the exercise of his discretion powers may be authorised

to exercise the function of a legislator, but unlike the legislator, he may also be
the judge and executor at the same time. Unlike, a legislator an administrator
is not under the watchful eye of the electorate, in that he does not have to seek
re-election. The administrator in exercising his discretion discharges the
functions of a judge but he does not have the training of a Judge.

Conclusions

Despite its challenges and potential dangers, the vesting of discretionary

power in various public officers is inevitable in any modern society. It is not
possible today to conduct the business of government without entrusting, in

30
some people, the authority to decide in the manner they may deem fit and
proper in their own subjective determination. It is not possible for drafters to
provide in legislation every conceivable constraint, which must be addressed
without vesting in some person the discretionary to do so. The challenge,
however, is to determine how to ensure that discretionary power is not
abused but used for the purpose it is conferred. That is of great concern to
administrative law.

31
 DELEGATED LEGISLATION
Introduction

As propounded by Montesquieu, the power to legislate for the country is

supposed to be exclusively vested in the legislature. However, the
developments of the past centuries have shown that this is not possible. A
trend has emerged marked by the legislature delegating the responsibility to
make laws to a number of executive bodies. Very often, the volume of
instruments, with the force of law, generated by these bodies far exceeds
those produced by the legislature. There is no sign of this trend abating,
especially when governments become more and more involved in the
economic, social and political affairs of its people. This development has its
own dangers and it is the concern of the administrative law to ensure that the
authority delegated by the legislature is indeed used properly and for the
realisation of clearly identifiable and intended goals. Critics of subordinate
legislation see it as an abdication by the legislature of its constitutional
obligation to legislate. Another camp believes it is inevitable that the
legislative power has to be delegated. Zambia has not been spared from this
development. A lot more administrative agencies are likely to assume this
authority as the country seriously embraces the ideals of economic and
political liberalism.
Meaning of Delegated Legislation
In Zambia Parliament: the National Assembly acting together with the
President, legislates by means of Acts of Parliament. Parliament may confer,
through Acts of Parliament, on ministers or other executive bodies the power
to make rules with the force of law - to legislate. Parliament is said to delegate
to such bodies the power to legislate. Thus, the phrase “delegated legislation”
covers every exercise of power to legislate conferred by an Act of Parliament.
The phrase “delegated legislation” is not a term of art. It is not a technical
term and it has no statutory definition. In determining whether or not the
exercise of legislative power results in “delegated legislation” we have to ask
whether it is a delegated power that is being exercised and whether its
exercise is legislative.
It follows therefore that Acts of Parliament make up primary legislation.
However, when a minister or other authority is given power by an Act of
Parliament to make rules, regulations etc., the power has been delegated to
him, and insofar as the rules are legislative, they comprise delegated
legislation. If the contents of the document made under delegated powers are
not legislative the documents will obviously not be a piece of delegated
legislation. There is need to distinguish between what is legislative and what
is administrative.

32
Historical Development
The history of delegated legislation in Zambia dates back to the time when the
territory, which later became known as Northern Rhodesia, was created and
the foundation of government established. From the very on set it was the
position of the British Government that Northern Rhodesia was to be a
protectorate and not a colony. It was the responsibility of the British
Government to help the inhabitants of the territory to develop themselves to
the point that they would be capable of handling their own affairs of
government.
The nature of the territory made the delegation of legislative authority
unavoidable. The white settler population was very small in relation to that of
the Africans, hence it was not feasible to export the British system of
government in its entirety to the territory. The majority of the Africans had no
idea about the western style of government and the white settlers did not
appreciate the system of government enjoyed by each of the nations, which
were brought together to form Northern Rhodesia. Even if the various tribes
had some form of government, the systems were not uniform. For instance,
the Lozi of Barotseland, because of the natural resources found in the region it
was possible for the area to support a large population. The growth in
population necessitated the development of some form of government.
Because of the combination of these factors, when British presence was
established in the area north of the Zambezi, the Lozi had already developed
a very complex feudal system. Other tribes, which were largely nomadic,
were not in a position to develop any meaningful system of government.

At the time when the British established their presence in the territory, they
did not find a homogenous system of government. It was therefore seen as
necessary that they impose the system they knew and understood best: their
own.

When government was established in North-Western Rhodesia, following the

publication of the Northern Rhodesia, Barotseland Order in Council, 1899 the
executive and legislative powers in the territory were vested in the British
High Commission based in South Africa. Ordinarily the legislative powers
were vested in the King by the Foreign Jurisdiction Act, 1890. The High
Commissioner was empowered to legislate for the Territory through
Proclamations for the administration of justice, the raising of revenue, by the
imposition of taxes including hut tax and customs duty, and generally for
peace, order and good government of all persons, including the prohibition of
acts tending to disturb public peace. 12 The only limitation was the

12The listing of the areas in which legislation could be issued is redundant in view of the
blanket provision: generally for peace, order and good government. It has been held that such a

33
requirement that African customary laws should be respected, unless they
were incompatible with the exercise of Her Majesty’s power. 13 The High
Commissioner was expected to have regard to suggestions made by the
Company, but no Proclamation on the raising of, or appropriation of revenue
was to come into force unless the consent of the Company was obtained. 14

The North-Eastern Rhodesia Order in Council, 1900 provided the

constitutional framework for North-Eastern Rhodesia. Though there was only
a year’s difference with that of North-Western Rhodesia, it was much more
comprehensive. The constitutional framework provided for a diffusion of
power and differentiation between the officers to discharge the various
functions of government. Unlike in North-Western Rhodesia, the legislative
power was delegated to two offices. The Administrator on his own, or with
the concurrence of the Advisory Council once established, was to legislate. 15
The High Commissioner in Central Africa based in Nyasaland was also
empowered to make Regulations called Queen’s Regulations. 16

The amalgamation of the two parts of Northern Rhodesia in 1911 and the
subsequent vesting of the powers of administration of the territory from the
British South Africa company into the British Government in 1924 changed
very little. The legislative power was firmly in the hands of the British Crown
but delegated to the Legislation Council formed under the Northern Rhodesia
(Legislative Council) Order in Council, 1924. It was only after the
independence that the power was exclusively reserved to the National
Assembly.

It must be noted that as the framework of government in Northern Rhodesia

began to take shape, various institutions were created mandated to discharge
various functions. It was inevitable that the power to make instruments with
the force of law was delegated to different officers and institutions. This trend
has continued to this day.
The Second World War and other events in the United Kingdom had an
impact on delegated legislation in Northern Rhodesia. Some statutes, which
delegated powers to some other officers, enacted in the United Kingdom were

provision can cover any conceivable situation. See Croft v Dumphy [1933] AC 156; Ibralebbe v R
[1946] AC 900.
13Art. 9.
14Ibid., 8.
15The Advisory Council was never established. The legislative power in essence rested with
the Administrator.
16The Administrator’s Regulations could, however, amend or repeal a Queen’s Regulations.
See Art. 19.

34
extended to Northern Rhodesia. For instance, the Emergency Powers Act
enacted in the United Kingdom had an impact on emergency laws enacted in
Northern Rhodesia: the Emergency Powers Act and Preservation of Public
Security Act. The statutes have been extensively used in Zambia, from 1964
until 1991. Both pieces of Legislation empower the President to make
regulations necessary to deal with the emergency.

Types of Delegated Legislation

The nature and scope of delegated legislation as defined by statute is wide

and varied. The language used to confer the power to make subsidiary
legislation is also wide and varied. One has to examine the text of the
empowering legislation to determine the scope of delegated legislation.
However, there are a number of different forms of delegation of legislative
powers to administrative bodies.

Some statutory provisions do expressly vest the rule making power in a

specified person or administrative agency for carrying out the purpose of the
Act. For instance, Section 124 of the Banking and Financial Services Act
empower the Minister of Finance, on recommendation of the Bank of Zambia
to make regulations for or with respect to any matter that is required by the
Act or permitted to be prescribed by regulation or that is necessary or
convenient to be so prescribed for carrying out or giving effect to the Act.

Another kind of delegated legislation exists where there is legislation by way

of a schedule or appendix. The statute confers power to add to the appendix
or schedule given in the Act. This is called skeleton legislation. An example of
this is what is provided for in the British Acts Extension Act. Attached to this
piece of legislation is a schedule of all the British statutes passed after 1911,
which have been extended to apply to Zambia. It is up to the relevant
authority by way of statutory instrument to add to the schedule other British
pieces of legislation, which can have effect in Zambia.

There are also statutes, which confer the power to exempt or include subject
to the provisions of the Act. An example of this is the Diplomatic Immunities
Act. 17 The Part 1 of the Second Schedule to the Act outlines the immunities
and privileges that may be enjoyed. Section 4 of the Act gives power to the
President by statutory order to specify the any organisation, which can enjoy
the privileges, and immunities set out in Part 1. The President may also
remove an organisation from the list.

17 Chapter 20 of the Laws of Zambia.

35
It follows that there is no standard way of determining whether or not there is
delegation of the legislative power. In determining this point, one has to look
at the language of the statute itself.

Statutory Instruments

The most popular form of delegated legislation in Zambia is statutory

instruments. Article 62 of the Constitution confers the legislative powers of
the Republic of Zambia in Parliament, which is made up of the President and
the National Assembly.

Notwithstanding, this provision Article 80(1) provides that Parliament can

confer on any person or authority the power to make statutory instruments,
that is instruments, which have the force of law. Every statutory instrument
must be published in the Gazette not later than 28 days after it is made.
However, in the case of instruments, which will not have the force of law until
approved by some body or authority, such instrument must be published not
later than 28 days from date of its approval.

Article 27 of the Constitution provides some mechanism for ensuring that the
provisions of statutory instruments remain intra vires the Constitution.
Members of Parliament, not less than 30 in number, may request a report on a
statutory instrument from the authority who originated it within 14 days
from the date of its publication. The Chief Justice can appoint a tribunal to
investigate the constitutionality of the statutory instrument. The tribunal is
under obligation to submit a report on the matter to the President stating, in
its opinion the provisions of the statutory instrument, which are inconsistent
with the Constitution. Where the report of the tribunal is that the statutory
instrument is in conflict with the constitution the tribunal will state the
grounds of that belief.
Once the tribunal has reported that the statutory instrument is in conflict with
the provisions of the Constitution the President may annul such instrument.

Bylaws

Other than Statutory Instruments, there are other instruments, which have the
force of law such as bylaws. Bylaws have been defined as rules made by some
authority subordinate to the legislature for the regulation, administration or
management of a certain district, property, undertaking etc., and binding on
all persons who come within their scope. They are an example of delegated
legislation. Section 76 of the Local Government Act confers powers on
councils to make bylaws.

This power to make laws is subject to the other provisions of the Act and may
apply to different parts of the area of the council, different classes of persons,

36
different classes of things and different circumstances. No bylaw can,
however, have the force of law until it has been confirmed by the Minister.
The argument in support of bylaws is that authorities need to make laws
suited to their particular circumstances.

Circulars

Government departments frequently issue circulars to other authorities. By a

circular, we mean no more than a communication of which copies are sent to
several persons. This in itself tells us nothing about their legal status or effect,
which is our concern. A circular may do no more than contain information,
for example drawing the authorities’ attention to a recently published report,
or explaining a new legislation or a new government policy, which the
authorities are being called upon to observe.

A circular may contain advice as to the exercise by the recipient of some

powers. A circular may go further than this and confer powers or impose
duties. Depending upon the language and effect of the effect, a circular may
assume the force of law. For instance, the guidelines for the sale of
government houses to sitting civil servants are contained in a circular issued
by Cabinet. This provides the legal framework and the authority to dispose of
Government houses. In the vent of dispute between parties as to the legality
or propriety of action or decision taken in relation to the disposal of the
houses, the decision may be founded on the interpretation of the content of
the circular. 18

The Use of Delegated Legislation

It is often argued that, it is enough for Parliament to concern itself with

principles underlining Acts of Parliament. Their application in detailed
through regulations can safely and properly be left to the administration. For
example, many regulations deal with technical matters such as the safety of
consumer goods, safety at work place. These regulations are often extensive
and detailed. For these reasons, it is viewed as unwise for too much detail to
be put in the Acts.

18 See Cabinet Office Circular No. 12 of 1996; Lusaka City Council and Another vs. Mwamba and
Others S.C.Z. Judgment No. 21 of 1999; Yengwe Farms Limited vs. Masstock Zambia Limited
S.C.Z. Judgment No. 11 of 1999; Attorney General and Others vs. Joseph Emmanuel Frazer and
Another SCZ Judgment No. 13 of 2001: The Attorney General vs. Steven Luguru SCZ Judgment
No. 20 of 2001.

37
The other reason for the use of delegated legislation is that the knowledge
and experience available outside the legislature and the civil service can be
utilised through consultations. Indeed, it may be necessary to leave matters to
be dealt with in regulations because at the time when the bill is presented
before the National Assembly, government does not know exactly how to
deal with the problem it has set out to address.

The other justification for the delegation legislation is the need to arm the
state with power to deal with emergencies. It is not possible for the legislature
to foresee the consequences or effect of the law they enact, it is therefore
necessary to confer in some people the power to act promptly as dictated by
the needs of the time. Parliament is not always in session.

Conclusions

Various arguments can be advanced in favour of and against delegated

legislation, but one thing remains true, the delegation of legislative power to
institutions other than the legislature is inevitable. For Zambia, the legislative
power was delegated to executive officers very early in its history, simply
because the material conditions at the time did not allow for a complex
system of government to be put in place. It was necessary to delegate to
certain persons or institutions within or closer to the territory, the power to
issue instruments with the force of law. The reason was simply that the
people within Africa, as opposed to those in White Hall, knew and
understood better the needs of the possessions, which made up the British
Empire.

After independence, the case for delegated legislation is still valid. With
independence governance became complex and varied, as government
assumed more and more responsibilities aimed at addressing the economic
and social needs of the people, making it difficult, if not impossible, to run the
affairs of government without delegating legislative powers.

Of concern, however to administrative law is to determine ways and

mechanisms to ensure that the legislative power is not abused but used for
the intended objectives.

38
 THE DEVELOPMENT OF ADMINISTRATIVE LAW AND INSTITUTIONS
IN ZAMBIA

Introduction

The administrative law of any country is a product of the history of that

country. In order to understand administrative law in Zambia, with its history
as a British Protectorate, it is imperative to acknowledge the various factors,
which precipitated the making of the Protectorate and understand the
administrative arrangement, which emerged. 19

Although administrative law is not concerned with the substantive law

produced by the administrative agencies, nor with the substantive law created
by the legislative bodies and administered by the agencies, but with the law
which governs the powers and procedures of agencies it is necessary in the
case of Zambia to examine the growth of the institutions of state, which
exercise the powers of the Republic.

Zambia's administrative law has gone threw two phases. The first involved
creating the administrative structures, with a good deal of emphasis on
separation of powers and delegation of powers. The first phase began from
the moment British influence was established in the territory, which became
known as Northern Rhodesia.
The second phase, began long after the first phase had been properly
grounded, focuses on judicial review; and the dominant part of judicial
review is constitutional and statutory interpretation. Whereas other Western
countries have already gone through the third phase, which focuses on
procedures for formal adjudication and formal rule making, Zambia is just
embarking on this phase.

19The value of such an approach is ably illustrated by Gordon R. Woodman, “Constitutions

in a World of Powerful Semi-Autonomous Social Fields”, Third World Legal Studies - 1989, 1-
20. He observes at pp. 2-3.:
Although the skills of a lawyer are useful in the study of non-state laws, an
adequate appreciation requires some revision of the traditional approach of
students of state law. It is necessary to discard the concepts and axioms induced
by the tendency of state laws to deny the legitimacy of other laws.... An effective
state constitutional order takes account of the social realities which affect its
objects and functioning. In Africa, where the relative unimportance of state law is
at least as marked as anywhere else, other social orderings cannot realistically be
overlooked.

39
The Development of Administrative Structures

Zambia is a product of greed and conquest by the powerful, and of the weak
seeking a haven for peace and security. The dispersal from the north, which
involved the Lozi, Bemba, Lunda and other tribes, was largely precipitated by
smaller chieftaincies seeking independence. However, the migration of the
Ngoni and the Kololo from the south was for the search of a sanctuary. The
coming of Europeans brought another dimension to the history of Territory.
Their conquest of the Territory was for economic reasons: to find raw
materials to keep the wheels of the factories in Europe turning and good land
to settle the landless people of Europe.

The realisation of the economic objective was possible only if both internal
and external threats to British presence in the area were taken care of. The
internal threats were addressed through the power of the pen, like in the case
of the Litunga of Barotseland, and through the power of the sword as against
the Ngoni. The motivating force was the greed of the private entrepreneurs.
The role of the Imperial Government was merely that of protecting the
interests of its citizens when threatened by another imperial power or forces
within the Territory.

The history of Northern Rhodesia is also a history of two competing cultures,

one claiming superiority over the other. The Europeans came with new ideas
about social formations. All the existing tribal groupings were broken down
and made part of one heterogeneous society curved out of the entire continent
without regard to history, customs and origins.

The impact of Western colonial rule is still indelibly imprinted in Zambia

decades after independence. As Europeans moved into the non-Western
world, north of the Zambezi, as traders, merchants, missionaries and
adventurers, they carried with them expectations that all societies should be
properly organised as states possessing attributes of sovereignty and
adhering to rule of law. 20 This was not the case in the area, which became
known as Northern Rhodesia.
After the establishment of settlements, Europeans insisted that human
relations, and more particularly the management of disputes, should fall
under explicit and universally based laws. 21 To make life much more amiable

20Lucian W. Pye, “Law and the Dilemma of Stability and Change in the Modernization
Process,” Vanderbilt Law Review 17 (1963), 24-25.
21Ibid.

40
they started building the state structures. The administrative structures,
which emerged, made up the constitutional structures for the Territory. 22

The Making of Northern Rhodesia

As a geographical unit, Zambia was created through the initiative of Britain

during the partition of Africa. Following the examples of other European
powers at the time in staking claims to large territories in the Africa, Britain
was keen to extend sovereignty north of South Africa. Little effort was
necessary to persuade the Crown to grant John Cecil Rhodes, at his request, a
Charter incorporating the British South Africa Company, which was to
pursue British interests in the area. This Charter was granted in 1889.

The Charter empowered the Company to acquire territories through

concessions, agreements and treaties by or with indigenous rulers and
administer it - without any financial assistance from the British Government.
The Company’s field of operation was defined to be the territory north of the
Crown colony of British Bechuanaland and of the Transvaal and west of the
Portuguese possessions in East Africa.

Rhodes sent agents to conclude treaties with local rulers. Through such
treaties and conquests of the more militant tribes, Rhodes effectively asserted
his, and ultimately British presence. It now remained for Britain to secure the
agreements of other European powers in accordance with the terms of the
Berlin conference of 1884 - 1885. This was done through a series of treaties,
which collectively determined the present border of Zambia.

The name “Rhodesia” was first used to refer to the territories (obtained by
Rhodes) in 1895. It was officially approved in 1897, by the British
Government.

In 1895, due to its vastness the territory was, administratively, divided by the
BSA Company into two: North-Western Rhodesia and North-Eastern
Rhodesia. Both of them were being administered by the Company under the
supervision of the British High Commissioners in South Africa and Nysaland
respectively. At the time, a few outposts of administration were being
established in the sparsely populated territories.

In 1899 and 1900, two very important Orders in council were promulgated.
The Orders, the Barotse North-Western Rhodesia Order in council and the
North-Eastern Rhodesia Order in council, clarified the provisions relating to

22See H.F. Morris and J.S. Read, "Indirect Rule and the Search for justice", (1972), 287, quoted
in Filip Reyjents, "Authoritarianism in Francophone Africa from the Colonial to the Post
Colonial State", Third World legal Studies - 1988, p. 59.

41
the administration of the two territories to which they referred and also
established the territories as “colonial protectorates”.

Under the North-Eastern Rhodesia Order in Council, 1900 North Eastern

Rhodesia was to be administered by an ‘administrator’, appointed by the
Company with the approval of the Secretary of State for Colonies. The
administrator was empowered to make regulations for the administration of
justice, the raising of revenue and generally for “...the peace order and good
government”. These regulations had to be approved by Her Majesty’s
Commissioner for the British Central African Protectorate (Nyasaland now
Malawi) and could be disallowed by the Secretary of State. The Commissioner
himself could initiate legislation termed “Queen’s Regulations”.

Under the North-Western Rhodesia Order in Council, 1899, the British

Government retained firmer control in North-Western Rhodesia through the
High Commissioner in South Africa because of the unresolved issue of the
western border of the territory with the Portuguese territory of Angola. The
issue was not resolved until 1905. The High Commissioner had the power to
legislate by proclamation. The Company had administrative powers, which
were exercise through an administrator.
Developments in the two areas indicated that they would best be
administered as one territory. In 1911, Barotse North-Western Rhodesia and
North-Eastern Rhodesia were merged to form Northern Rhodesia. The
Company retained its administrative authority in the new territory. It was
empowered to appoint an administrator for the territory, subject to the
approval of the Secretary of State. The legislative authority, which was to be
exercised by proclamations, remained in the High Commissioner in South
Africa. This arrangements prevailed until 1924 when company rule was
terminated.

Administration of Justice

(a) Developments Under Company Rule: The major concern of the settlers
was to establish structures for the settlement of disputes. Amongst the first
institutions to be established in the territory were the courts. The major task of
the Company was to establish the basic instruments of government
administration. The judicial functions of the government were undeveloped.
Nonetheless, the legislative framework for the establishment of courts was
already in existence.

The Africa Order in Council of 1889, provided that every person holding Her
Majesty’s Commission as a Consul-General should, if so authorised by the
Secretary of State, form a consular court. This Order in Council even provided
a code for criminal and civil procedure. In the event, it was not found

42
necessary to establish any consular courts as reliance was placed upon the
second method of establishing courts: the Charter of the British South Africa
Company itself. One of the fundamental principles which was to be respected
in the administration of justice was the need to differentiate between the
indigenous people and the immigrants. Section 14 of the Charter directed the
Company to have “careful regard” to the laws and customs of the local tribes.
Thus, the courts which were established were limited in their jurisdictions to
give effect to this principle.

Between 1899 and 1909, two hierarchies of courts were established in Barotse
North-Western Rhodesia and North-Eastern Rhodesia. Each consisted of a
High Court, Magistrates’ courts, the Administrator's Court and Native
Commissioners Courts. The High Courts were courts of unlimited jurisdiction
and administered English law and local enactment, except in civil cases
between Africans, when they were required to administer African customary
law. The Administrators' Courts also had similar jurisdiction as the High
Court. They were introduced to enable the Administrators of the territories to
have a role in the administration of justice.

The Magistrates’ Courts were courts of first instance with limited jurisdiction.
They were mainly concerned with adjudicating over disputes between white
settlers and with administering criminal law. The law administered in these
courts was English law. The Native Commissioners' courts were established
in order to administer African customary law between natives.

All the judges and the members of the other courts were nominated by the
Company but appointed by the British High Commissioner in South Africa.
They were amenable to dismissal as well.

Although existing African traditional courts were not officially recognised,

some limited protection was extended to customary law. First by the Barotse
North-Western Rhodesia Order 1899 and later by the North-Eastern Rhodesia
Order 1900, which for the first time invoked the repugnancy clause. This
clause provided that customary law be to be administered so far it was not
“repugnant to natural justice or morality” or to any statutory law.

Two systems of courts were established in each of the two territories by 1909.
One system administered English law and statutory law between Europeans
in civil cases. It also administered English penal law for all the inhabitants of
the territory. The other system administered African customary law in civil
cases between Africans.

In 1911, when it was decided to combine North-Western Rhodesia and North-

Eastern Rhodesia into a single country, it also became necessary to re-organise

43
the judicial system. However, as there also existed two well-established
judicial systems, few changes were necessary beyond merging the two
systems into one.

There emerged a High Court of unlimited original and appellate jurisdiction,

magistrates’ courts and native commissioners’ courts. The Administrator’s
court was abolished. High Court judges were henceforth appointed by the
Secretary of State in Britain. The officers in lower courts were appointed by
the Company.

Between 1911 and 1924, only minor changes effected to the judicial system
and none of these affected the judicial system or its basic structure.

(b) Developments During Direct British Administration: During the early

part of the 1920’s it became apparent, Northern Rhodesia was becoming too
costly and complicated a territory to be administered by a company. In 1924,
the company relinquished its powers in favour of direct British rule. The 1911
Northern Rhodesia Order was revoked and in its place was promulgated the
Northern Rhodesia Order in Council, 1924 and the Northern Rhodesia
(Legislative Council) Order in Council, 1924, and the Royal Instructions to the
Governor of 1924. These three documents together constituted the basic
constitutional instruments of Northern Rhodesia.

The Northern Rhodesia Order established the office of Governor, to represent

the Crown. He was assisted by an executive council, the members of which
were appointed by the Crown and served at his pleasure. In accordance with
the “colonial protectorate” status of the territory, constituent power remained
in the Crown and was exercised through Orders in Council made under the
Foreign Jurisdictions Acts of 1890 and 1913. However, for the purpose of
enacting laws to facilitate the administration of the country, a legislative
council, dominated by (appointed) officials, was established. This council
exercised its legislative power through the enactment of ordinances.

The change from company rule to direct British rule did not necessitate
radical changes to the judicial system. The changes made merely reflected
change-over to colonial rule. The power to determine the number of judges
and magistrates in the country and to appoint them subject, in the case of
judges, to such instructions as the Crown might give was vested in the
Governor. There were also provisions permitting appeals from the High
Court to the Privy Council.

In 1938, it was decided to establish a court of appeal for the three British
colonies in central Africa, comparable to the East African Court of Appeal and
Court of Appeal for West Africa. This Court was called the Court of Appeal

44
for Rhodesia and Nyasaland. The court was established under Ordinance No.
35 of 1938. It became the highest court for the three territories in criminal
cases but provisions were included for further appeals to the Privy Council in
civil cases.

Meanwhile, the important issue of how best to administer the affairs of

Africans was receiving much attention. It was decided soon after the
assumption of direct British administration to extend the famous principles of
indirect rule, to the territory. This principle, which had already been applied
in other British colonies, entailed the use of existing African institutions to
effect colonial rule, thereby minimizing both the antagonism of the people
and expenditure.

Indirect rule was implemented in Northern Rhodesia by establishing native

authorities and recognising native courts. Native authorities were established
in all areas of the territory and were vested with minimal local government
powers such as taxation and policing. Native courts were first recognised by
statute in 1929, with the enactment of the Native Courts Ordinance. Under
this ordinance, the Governor was empowered to constitute any “chief,
headman, elder or council of elders” in any area into a native court. This did
not, however, prevent the exercise of judicial powers by those who already
did so in their own communities.

The Native Courts established under this Ordinance were separate from the
rest of the judiciary: the High Court and the magistrates' courts. No appeals
lay from the Native Courts to the Magistrates’ Court or to the High Court.
Nevertheless, there were already in existence some Native Commissioner’s
Courts. These assumed the role of appellate courts in relation to the Native
Courts. Native courts were only empowered to administer customary law
and to adjudicate over civil cases in which the parties included Africans.

In 1936, it was deemed necessary to clarify the status and jurisdictional

limitation of native courts. This was done by the enactment of the Native
Courts Ordinance 1936 and the Barotse Native Courts Ordinance 1936. Apart
from these changes, which enabled the Government to establish a number of
native courts covering the whole territory, this system of administering justice
remained in force until 1966.

(c) Developments During the Federation of Rhodesia and Nysaland: Even

before the Second World War, two issues were to dominate Northern
Rhodesian politics and determine its constitutional development: the demand
by African nationalists for majority rule and/or self-determination and the
campaign by white settlers for closer association or amalgamation with

45
Southern Rhodesia. As early as 1929, the Hilton Young Commission advised
that:

In the present state of communications the main interests of

Nyasaland and Northern Rhodesia, economic and political, lie not
in association with the eastern African territories, but rather with
the self-governing colony of Southern Rhodesia.

In 1938, the Bledisloe Commission was appointed to “explore the feasibility of

closer association between the two Rhodesias and Nyasaland.” The
Commission also endorsed the idea of closer association between the three
territories, but did not recommend immediate steps in that direction.
Nonetheless, consultations continued between white politicians in Northern
Rhodesia and Southern Rhodesia and the British Government. Finally, at a
conference held at Victoria Falls, in Northern Rhodesia, in 1951, a firm
decision was arrived at recommending to the British Government the
establishment of a federation in Central Africa. This recommendation was
accepted. The Federation of Rhodesia and Nyasaland Act, enacted by the
British Parliament in 1953, authorised the Queen to establish such a
federation. In the same year, the Federation of Rhodesia and Nyasaland
(Constitution) Order in Council joined the three territories to form the
Federation of Rhodesia and Nyasaland.

Under the federal scheme, the three territories retained their respective
statuses: Northern Rhodesia and Nyasaland remained protectorates, while
Southern Rhodesia remained a colony. The Constitution provided for the
office of a Governor-General, appointed by the Crown. He was the personal
representative of the Crown. The Constitution also established a federal
legislature of thirty-five members. This body had legislative power over
certain matters exclusive of the territorial legislatures (the federal legislative
list) and powers to legislate over other matters concurrently with the
territorial legislatures.

The establishment of the Federation had one important effect upon the
judicial system of Zambia. The Federal Constitution established a Federal
Supreme Court. The Court consisted of the Chief Justice, appointed by the
Governor-General and between two and six judges, who were to include the
Chief Justices of the three territories. Under Article 53 of the Constitution, the
Supreme Court had exclusive jurisdiction over matters relating to the
interpretation of the Constitution and matters in which the Federal
Government was a party. The Supreme Court also had appellate jurisdiction
from the High Courts of the three territories. Article 61 provided for appeals
from the Supreme Court to the Judicial Committee of the Privy Council.

46
The idea of establishing the Federation of Rhodesia and Nyasaland was not
supported by all the sectors of the population. The Africans of Northern
Rhodesia, in particular, had vehemently opposed any form of association with
Southern Rhodesia. Instead, they had campaigned for reforms to the electoral
law to introduce universal adult suffrage. As African political parties were
formed Africans began to demand self-government and independence from
British rule. The decade 1953 to 1963 was volatile in Northern Rhodesia. The
many factors of that era culminated in a general election, based on "one man -
one vote", in 1962, which was won by the United National Independence
Party, led by Kenneth Kaunda. He formed a coalition government with the
African National Congress in 1963. The Federation was dissolved in that year.
In 1964, under yet another constitution, fresh elections were held which were
won outright by the United National Independence Party. This Party formed
the first Government when Northern Rhodesia was granted independence in
October 1964.

(d) Developments After Independence: The new constitution provided for a

popularly elected executive President who was also the Head of State. It also
provided for a Vice-President and a cabinet appointed from among the
members of the National Assembly. The legislative power was vested in a
Parliament consisting of the President and single chamber National
Assembly. The Assembly consisted of seventy-five elected members, not more
than five nominated members nominated by the President and a Speaker. The
legislative power was exercised through Bills passed by the National
Assembly and assented to by the President. Enactments were termed “Acts of
Parliament”.

Quite expectedly, independence brought about some changes in the judicial

system of Zambia. The dissolution of the Federation of Rhodesia and
Nyasaland ended the Federal Supreme Court. Within Zambia, the January
1964 Constitution established a Court of Appeal with unlimited appellate
jurisdiction. The Independence Constitution also provided for a Court of
Appeal consisting the Chief Justice, one Justice of Appeal and other puisne
judges.

The Constitution also empowered the President to declare that the Judicial
Committee of the Privy Council should be an appeal court for the Republic.
The President never exercised this power and the provision was not repeated
in the 1973 Constitution.

The Independence Constitution created a Judicial Service Commission under

the chairmanship of the Chief Justice. The Constitution conferred advisory
and executive functions over appointments to judicial offices upon the

47
commission. The provisions relating to the Judicial Service Commission were
substantially retained under the 1973 constitution.

The subordinate courts were retained by and large in their old form even after
independence. Various aspects of the Subordinate Courts had undergone
changes since the enactment of the Subordinate Courts Act in 1934. The
changes related mostly to jurisdiction and other related matters, and did not
affect the basic structure and status of these courts. After 1964, the notable
change was in the manner of appointing magistrates. They were to be
appointed by the Judicial Service Commission.

Some radical changes were made at the level of the Native Courts. The
general feeling at the time was that Native Courts had to be integrated in the
judiciary. The first step came in the form of provision that appointments of
the Native Courts’ presiding justices were henceforth to be made by the
Judicial Service Commission. Meanwhile, initiatives were underway for the
enactment of a new statute to provide for Native Courts. The Local Courts
Act was enacted in 1966. It repealed the Native Courts Ordinance and the
Barotse Native Courts Ordinance. It constituted Local Courts in place of
Native Courts. It provided for appeals from Local Courts to Magistrates’
Courts. The 1966 Local Courts Act was aimed at integrating the Local Courts
into the judiciary to produce one hierarchy of courts instead of two.

The introduction of the one-party system did not bring about major changes
in the judicial system of Zambia. It did, however, bring about one important
change. The Court of Appeal was abolished and in its place, a Supreme Court
was established. Very little has changed in the judiciary even after the
introduction of the Constitution of 1991. The same is true even after the
enactment of the Constitution amendment Act No. 18 of 1996.

Before concluding this part, it is important to summarise the judicial system in

place today. The Supreme Court of Zambia, established under Article 91 of
the Constitution is the highest court in the country. It is a court of unlimited
appellate jurisdiction. It consists of the Chief Justice, the Deputy Chief Justice
and seven appeal judges or such greater number as may be prescribed in an
Act of Parliament.

The High Court of Zambia is the second highest court. It is a court of

unlimited original and appellate jurisdiction, except for matters specifically
reserved for the Industrial and Labour Relations Court and has original
jurisdiction over all civil and criminal matters. The High Court consists of the
Chief Justice (ex-officio) and such number of puisne judges as may be
determined in an Act of Parliament. The High Court also has supervisory
powers over all proceedings in all the courts subordinate to it.

48
The Constitutional Amendment Act No. 18 of 1996 has introduced an
interesting development in the number of courts for the Republic. The
Industrial Relations, which was from its inception a tribunal is now, became
part of the Judicature of Zambia. The real benefits of this change are hard to
see, but the most immediate problem has been confusion between the powers
of the High Court and that of the Industrial Relations. Furthermore, whereas
the role of the Industrial Relations Court is to do substantial justice, there is a
steady departure from this guiding principle. The Industrial Relations Court
has become more and more legalistic in its determination of cases although, as
an institution, is it ill-equipped for this role. Cases are determined not on the
basis of the facts of the case or in order to do substantial justice, but because
there are legal precedents to that effect especially those from the Supreme
Court.

The other courts down the hierarchy are the subordinate courts. These are
provided for under the Subordinate Courts Act. They are presided over by
magistrates. Both the courts and the magistrates are divided into classes, and
the relationship of the various classes of magistrates to the various classes of
subordinate courts is clearly stated by Section 3 of the Act. It enacts:

There shall be and are hereby constituted courts subordinate to the

High Court in each district as follows:
(i) A Subordinate Court of the first class to be presided over by
a Senior Resident magistrate, Resident Magistrate or a
magistrate of the first class;
(ii) a Subordinate Court of the second class to be presided over
by a magistrate of the second class;
(iii)a Subordinate Court of the third class to be presided over by
a magistrate of the third class.

The jurisdiction of each subordinate court is limited both territorially and

substantively on a graduating scale depending on the class of the court and
the magistrate. Subordinate courts also have appellate jurisdiction to hear
appeals from local courts.

Finally, at the bottom of the hierarchy of courts are the Local Courts,
established under the Local Courts Act 1966. They are presided over by Local
Court presidents. Their jurisdiction is limited both territorially and in terms of
the substantive law. With regard to the latter, the statute provides that they
may only administer African customary law and such other statutory laws as
may be explicitly extended to them. In practice, Local Courts administer
customary law exclusively.

49
As already alluded to, appointments to judicial offices at certain levels are
made by the Judicial Services Commission. However, the Chief Justice,
Deputy Chief Justice and Judges of the Supreme Court are appointed by the
President subject to ratification by the National Assembly. 23 Judges of the
High Court are appointed by the President on the advice of the Judicial
Service Commission, subject to ratification by the national Assembly.
However, the Chairman and Deputy Chairman of the Industrial Relations
Court are appointed by the President in his own discretion and such an
appointment does not require ratification by the National Assembly. In order
to ensure their independence, the tenure of office of Judges is protected by the
Constitution.

23 See Article 93

50
THE LEGAL FRAMEWORK OF PUBLIC ADMINISTRATION

Introduction

In this part, it is intended to merely outline the legal framework of public

administration in Zambia. An exhaustive study of how a state like Zambia is
governed would, to be successful, have to run into many papers. Nonetheless,
this outline is useful for two reasons.

Firstly, in so far as the discussion will trace the history and development of
the instruments and institutions of government, it will be very useful as a
background to understanding the various processes of government as they
currently operate, a desirable goal for both students and those wielding
public authority.

Secondly, since the ultimate objective of this study is to analyse the role of the
courts in Zambia in the process of controlling executive and legislative
authorities, an understanding of the nature and extent of the administrative
process will be useful when drawing conclusions on this issue.

The institutions of public administration of “the administrative process” in

Zambia consist of and include all those methods, institutions and officers
through which government policies and functions are implemented and
performed other than the legislature and the judicature. In particular, they
include the following:

(a) The Central Government: The President in his capacity as Chief

Executive his cabinet, the various ministries departments and all the
public officers who serve in these organs
(b) District Councils and their organs and officers;
(c) Parastatal bodies and their officers; and
(d) Public bodies and other authorities established under the
Constitution and under various statutes
All administrative authorities in Zambia are creatures of either the
constitution or statute. Therefore, all public power in Zambia is either
constitutional or statutory in origin. However, the administrative process
included certain “private” bodies; namely, those parastatal companies which
have been incorporated under the companies Act.

The administrative process includes certain special procedures, which have

become so fundamental to the powers of government as to deserve special
mention. These include delegated legislation, administrative adjudication and
commissions of inquiry.

51
History and Development of Public Administration

The nature and extent of public administration in any country depends on the
nature of the functions, assumed by the government. Thus, it has been
repeatedly observed, in relation to England, that as long as the functions of
the State were conceived to consist only in the administration of law and
order and the defence of the country from external aggression; so long as the
state followed a laissez faire philosophy in the matter of the organisation of the
economy, public administration remained minimal in scope and extent. It was
only with the onset of the social welfare state, during the last century that
public administration started to expand commensurably with the increase in
state participation in the economic and social spheres.
Similarly, the extent of the involvement of the State of Zambia in the
economic and social spheres has had a bearing on the scope of public
administration. The ensuing discussion is based on that premise.

(a) Public Administration under Company Rule: The modern system of

government and public administration is Zambia is a legacy of British colonial
rule. Colonial rule was initially effected by the British South Africa Company.
The Charter from British Government to this Company empowered it to
administer the territory. The Company thus gradually established the basic
institutions of government such as the courts and police force. It also divided
the territory into administrative divisions; small units called districts and
larger ones, comprising a number of districts each, called provinces. To this
day, the country is divided for administrative purposes into districts and
provinces, the boundaries of which have only slightly changed since the
colonial era.

The boundaries of these units were based on the boundaries of the territories
inhabited by the various tribes, although ultimately the government has
always had the sole discretion to decide the matter.

It is sometimes suggested that the emphasis in the division of the country on

political and administrative convenience has retarded development. More
consideration should instead be given to the demarcation of regions suitable
for economic and social planning. Nevertheless, the Government which was
established during the early stages of company rule was very small in size in
North-Western Rhodesia and Northern-Eastern Rhodesia consisting of the
administrators of the territories and a skeleton staff in each case. The reasons
for this position were obvious. Firstly, the South Africa Company was first
and foremost a commercial concern. Its prime concern was the exploration of
the territories for minerals. It only administered the territories as an incident
to this central function. Secondly, the population in the two territories was

52
still very small. The 290,000 square miles expanse of the territories was
occupied in 1900 by only 770,000 Africans and 1,000 European immigrants.
Finally, the territory was still under developed in modern terms.
Communication was difficult and there were no industries.

With the gradual increase in settler population, most of whom settled mostly
along the “line of rail” - a narrow strip of fertile land across the centre of the
country where the railway was constructed - public administration also
increased. At the same time, the Government started to establish institutions,
which became the embryo of local government in Zambia. In the few rural
areas where European immigrants settled, the government established what
were called “road boards” which were corporate bodies entrusted with
certain basic local government functions, in particular the maintenance of
roads. Along the line of rail, wherever European settlers settled, Village
Management Boards were established as early as 1913.

For the administration of the affairs of Africans, the Company relied partly
upon the existing traditional institutions to execute its limited functions of
administering law and order and collecting taxes. This form of public
administration: minimal central government and rudimentary local
government continued until 1924.

(b) The Structure of Administration 1924 to 1964: The termination of

company rule naturally resulted in some changes in administration. The
Governor became the Chief Executive of the territory and in charge of Central
Government. He headed the Executive Council of officials who were also
nominated members of the Legislative Council. They were responsible for
various government departments with countrywide jurisdiction. Provincial
and district administration was retained and, through Provincial and District
Commissioners and their subordinates, became a major part of public
administration.

Meanwhile, with the commencement of copper mining in the 1920's, the

country's industrial development was becoming noticeable. The immigrant
population too continued to increase. These developments were gradually
creating a distinct urban sector, with its attendant problems. The Government
responded by strengthening the system of local governments. It enacted the
Municipal Corporations Ordinance in 1927 and the Townships Ordinance in
1928. Under these statutes, municipal corporations and township
management boards were established. Municipalities and townships had
similar powers and functions, but the former, were more prestigious and
were only established in areas with large populations.

53
The first municipality, Livingstone, was established in 1928 and therefore
others were constituted at various stages. In response to requests by the
mining companies, the Government in 1933 enacted a different statue, the
Mine Townships Ordinance, to provide for the establishment of a system of
local government on the then burgeoning “Copperbelt”. Under this statute, a
number of mine townships management boards were created. They
constituted distinct units of administration, providing, in their respective
jurisdictions, basic services like housing, health care, roads and electricity.
They were supported financially by the mining companies, which also
nominated members of the boards for appointment by the Governor.

The members of urban municipal corporations and township boards were

elected by Europeans only, as were the members of the Legislative Council.
However, the government had earlier considered the issue of how best to
govern Africans at the local level. It had been decided to extend Lord
Lugard’s doctrine of “indirect rule” to the country. Various statutes were
enacted to implement this. Under these statutes, some traditional rulers were
recognised as “Native Authorities”. They were empowered to exercise certain
local government functions in their areas such as the administration of law
and order. Even more important were the “Native Treasuries” established in
1936 to raise revenue through taxation. These were key to the system of
indirect rule, because it was considered that no real advances could be made
in getting Africans to be responsible for their own local government until
their own local institutions controlled the purse-strings.

There was a strong lobby during the colonial era to develop native authorities
and native treasuries into effective units of local government. Practically,
however, those bodies never really developed beyond being devices through
which the colonial government could reduce its financial burden for the
administration by Africans at local level while retaining control over them.

The next important development, which affected public administration, came

with the establishment of the Federation of Rhodesia and Nyasaland. While
this did not affect the basic form of government: central government, local
government and native authorities, it did lead to some functions of
government being transferred to the new federal institutions based in
Salisbury. During the ten years of federation, the federal Government had
exclusive jurisdiction over some government functions while its departments
had powers over other functions concurrently with the municipal
government.

The federal structure had influenced the policy makers. In 1959, the structure
of central government in Northern Rhodesia was slightly changed. As has
been outlined above, central government functions before 1959 had been

54
exercised by departments headed by members of the Executive Council who
were responsible to the Chief Secretary and the Governor, and by provincial
and district administration. In 1959, the ministerial system was adopted. All
government departments were henceforth placed under cabinet ministers
who were appointed by the Governor from among the members of the
Legislative Council. No major changes occurred to affect the basic structure of
the administrative process until after 1964.

To summaries: the administrative process just before 1964 consisted of the

following:
(i) The Central Government headed by the Governor and his Ministers
who were responsible for various government ministries and their
departments and for provincial and district administration;
(ii) A number of local authorities, variously termed municipal
corporations, township management boards and mine townships
management boards depending on the statute under which they
had been constituted;
(iii) Native authorities; and
(iv) A small parastatal sector. This will be explained later.

(b) Public Administration in Zambia Since 1964: The entire scheme of public
administration has been undergoing constant reform since 1964. These
reforms have been necessitated by the need to adjust the structure of public
administration so that government objectives may be implemented
effectively. Accordingly, it is necessary to reflect on the functions of the
government as they evolved from the colonial era through to the post-
independence period.

During colonial rule, the Government's functions were conceived mainly as

the “traditional” functions of maintaining law and order and creating a
climate conducive for the existence of a free-enterprise economy.
Significantly, a Companies Ordinance was enacted as early as 1921 to provide
for the formation, management, administration and winding-up of limited
liability companies. It preceded even the Penal Code.

However, the colonial government was not absolutely laissez faire in character.
There was some measure of official commitment to the provision of social
services, and even to the formulation and implementation of economic
development programmes. Education and health-care in particular were in
1925 accepted as a legitimate concern of government. Notions of economic
development, as being an objective which colonial government had to pursue,
were advocated by eminent colonists like Lord Hailey and Lord Lugard.

55
By 1947, following the enactment by the Imperial Legislature of the Colonial
Development and Welfare Act 1940, a ten year “development plan” was
formulated. This plan envisaged the expenditure by government of
£13,000,000 between the period 1947 to 1956. In the event, £47,500,000 was
spent.

As the colonial era ended, however, it became apparent that all the initiatives
of the colonial government towards the provision of social services and the
attainment of economic development had attained very little in real terms for
the Africans.

Certainly, by the end of colonial rule in 1964, the country was one of the
richest and most urbanized in Africa and this was mainly due to its vast
mineral wealth. However, the country abounded in contradictions. The
disparities between the urban sector and the rural sector, where at
independence 80% of the population of three and half million people lived,
were very profound. Those in the urban sector lived in conditions of relative
opulence, while people in the rural areas were dogged by the usual
manifestations of under-development: ignorance, poverty, hunger and
disease.

There were also vast differences in the standards of living between the
minority European and Asian communities and the Africans, with the former
exercising more power in the economy and generally living in better
conditions than the latter. There were many reasons for these disparities.
Firstly, the colonial development programmes placed more emphasis on the
construction of infrastructure necessary for the extraction of the mineral
wealth. Roads, railways, airstrips and communication infrastructures received
preference over social services.

Secondly, it was the official policy of the colonial government to discriminate

between the races in every area of government expenditure. In education for
example, the government maintained two departments: one to cater for
European education and the other for African education. The number of
school places for Africans and the expenditure on African schools was much
less than for Europeans. In 1925, for example, out of 200,000 African children
for whom educational facilities were required only 600 were in government
schools. Only £348 was spent on African education compared with £7,722 on
European education. Secondary education was unavailable until after the
Second World War: and even then, enrollment of Africans was very low.

The performance of the colonial government in the field of education was

unimpressive that by 1964 a United Nations survey revealed that there were
no more than 100 African university graduates and 900 others with secondary

56
school certificates in the entire country. That was the legacy bequeathed to the
new government in 1964.

As is invariably the case in the process of de-colonisation everywhere, it was

realised that the attainment of political independence was meaningless if the
economy was controlled from outside and there was no significant
development. The ultimate objective was to attain economic independence by
initiating rapid economic and social development.

The technique employed elsewhere: the formulation and implementation of

national development plans, was adopted. Altogether, five development
plans were formulated in Zambia between 1964 and 1991. Although they
differed in points of detail, they all aimed at certain general objectives namely:

(i) To diversify the economy from being almost exclusively copper-

based to being mainly agricultural-based;
(ii) To reduce the disparities between the urban and the rural areas;
(iii)To expand education and training facilities
(iv) To expand social services; and
(v) To extend the transport and communication network

Under these development plans, the Government invested vast amounts of

money into various sectors of the economy.

These economic development plans were not the only means through which
the government sought to attain economic development. In 1967 the ruling
party, the United National Independence Party (UNIP) adopted a national
philosophy called “Zambian Humanism.” The philosophy advocated a “man-
centered society” - a society in which every man and woman is accepted for
what he or she is: a human being, rather than for his or her economic or social
status and power in society. For practical purposes, Humanism was a
rejection of capitalism because of the latter's individualism and propensity to
promote the class struggle and the exploitation of the economically weak by
those who own the means of production.

The philosophy of Zambian Humanism had shortcomings. Despite a number

of attempts to expound it, it did not stand the more exacting definitions of a
“philosophy”. Nonetheless, it was the foundation for all the reforms
undertaken in Zambia since 1967. The most relevant of these were the
economic reforms.

The economy of Zambia in 1964 was a free enterprise economy. It was within
that context controlled by non-Zambians either through companies
incorporated in Zambia but controlled from outside (multi-national
corporations) or directly by non-Zambians resident in Zambia. It was realised

57
soon after independence that, unless the State deliberately intervened in the
organisation of the economy, it would take many generations for Zambians to
acquire any measure of influence in the economy. The government thus
embarked on economic reforms to enable itself and the citizens of Zambia to
acquire influence in the economy.

In 1968, the government acquired controlling interests in twenty-six key

companies in the economy. At the same time, it made the retail trade sector a
proscribed area for non-Zambians. Credit facilities were extended to
Zambians and restricted for others. On subsequent occasions until 1970 the
government acquired controlling interests in numerous companies in various
spheres of the economy either by acquiring shares in the enterprises
concerned, for example the mining companies, or by wholly nationalising
them for instance the passenger road transport companies.
At independence, the new government had two choices in the matter of the
nature of the administrative process through which it was to perform its
functions of governing the country and implementing its ambitious
development programmes. It could have either completely revolutionized the
government structure which it inherited or gradually adapted it to meet new
demands. In the event, the latter option appeared to hold sway. Some changes
where made to the central government and local government structures and
the parastatal sector gained prominence as an arm of government.

(c) Central Government: The 1964 Constitution established a central

government largely similar in form and functions to the colonial central
government. It was headed by the President who was both the Head of State
and the Chief Executive. It provided for a cabinet of a Vice-President and
Ministers appointed by the President from among the Members of
Parliament. The main functions of the cabinet were to advise the President on
the policies of the Government and to head government ministries. Central
Government administration was effected at two levels: through government
ministries and departments and through provincial and district
administration.

The Central Government retained the functions, which the colonial Central
Government had always performed, notably defence, law and order and the
provision of the two most important social services: health care and
education. These functions are still being performed by central government.

The form and nature of the Central Government has, however, undergone
some changes. The first “change” relates to its size. This followed logically
from the assumption by the State of a more active role in spheres in which it
had hitherto been passive. With the increase in government expenditure in

58
areas like education, health care, communications and rural development,
government administration expanded not only in terms of the number of
departments but also in terms of the number of employees. In 1964, there
were only 14 ministries and 76 departments. By 1976, these had increased to
18 and 132 respectively. The number of employees increased from 42,870 in
1967 to 70,540 in 1975; an increase of 65%.

After independence, the government also decided on the policy of

decentralising its administrative structure. The policy was based on the
rationale that the more involved people became in formulating and
implementing development policies and the closer they were to the
instruments of government, the greater the energies they would put in to
ensure the success of government policies.

This policy started in 1969 with the famous reforms of that year. The most
important change of that year was the posting of Cabinet Ministers and
Permanent Secretaries to the provinces. Partly, as a result of decentralization
and as a necessary consequence of the increasing power of the ruling party in
Zambia, the administrative processes also gradually became politicised.

Throughout the colonial period, the administration had been kept separate
from the political arena. Civil servants were actually prohibited from taking
part in political activities beyond casting their votes. This policy was founded
on the multi-party system of government where the role of administrators
was seen as consisting in passively implementing government policies
without regard to political considerations.

After 1964, it was considered that since the Government was introducing far-
reaching programmes of development, which would have to be administered
by civil servants, they had to be associated with the political processes. This
meant that a system of public administration was required which would be
orientated towards development policies.

The politicisation of the administration was achieved gradually and by

various ways. From the outset the post of Permanent Secretary, being the link
between the politicians as policy-makers and the organs of public
administration became a political one. Secondly, various institutions were
established to supervise the implementation of the development plans. These
institutions consisted largely of officials of the ruling party.

The administrative reforms of 1969 also enhanced the process of politicising

the administrative structure. The office of District Governor was established.
District Governors were appointed by, and were the personal representatives
of the President in their respective districts. They were the political heads in

59
districts and as such supervised and co-ordinated government departments,
especially it involved the implementation of development programmes. In
practice, however, District Governors were always contending with District
Secretaries on supremacy in matters of public administration at district level.
The local Administration Act 1980, finally established District Governors as
the heads of government in their districts.

The 1973 Constitution introduced another political institution into the arena
of public administration: the Central Committee of the Party. The intention
was to implement the doctrine of the supremacy of the party over the
Government. For practical purposes the Central Committee was the policy
making body of the Party. The Party Constitution also provided that should
any decision of the Central Committee conflict with any decision of the
Cabinet on any matter of government or party policy, the decision of the
Central Committee shall prevail.

The structure of central government after 1973 was reformed so that for every
Minister there was a corresponding Member of the Central Committee. The
former continued to be the heads of the ministries for purposes of public
administration while the latter were intended to supervise the
implementation of major policies. The fine distinction between administration
and policy enabled Members of the Central Committee to exercise some ill-
defined but important roles in administration.
The structure of central government outlined existed until 1991, when one-
party rule ended and the country embraced political pluralism. However, at
district level some major changes were introduced in 1980.

(d) Local Government: In 1964, local government was run through municipal
corporations, townships management boards and mine townships
management boards in the urban sector and native authorities in the rural
areas. There was a desire to integrate these systems into a uniform system of
local government. The first step was taken in 1964 when the native
authorities, which had hitherto been under a Ministry of Native Affairs, were
brought under the jurisdiction of the Ministry of Local Government.

A new Local Government Act was enacted in 1965. Although it did not
specifically repeal the existing legislation, this statute, together with the Mine
Townships Act, became the basis for local government in the country. Among
its innovation was to change the name of native authorities to rural councils
and to make them representative.

After 1965, the basic structure of local government in the country was made
up of a single-tier system consisting of municipal councils, including cities, a
title, which could be bestowed upon large municipal councils. The name

60
carried no legal consequences. Township councils and mine townships
management boards were introduced in urban areas, and rural councils in the
rural areas. These councils and boards exercised their jurisdictions in
municipalities, townships, mine townships and rural areas, whose boundaries
were defined by the Minister. The councils consisted of elected and appointed
councilors and the ratio was determined by the Minister. In practice, the
number of elected councilors by far exceeded those appointed ones, thereby
making the councils truly representative.

The mine townships management boards consisted of members nominated by

the mining companies and appointed by the Minister. There was no element
of representation.

The councils and management boards were empowered to perform a large

number of functions. In practice, however, they only performed such
functions as their limited funds and stage of development permitted, with
larger authorities performing more functions than smaller ones.

Additionally, local authorities were required to perform functions beyond

those specified by their parent Acts. Statutes like Public Health Act and the
Town and Country Planning Act conferred additional functions.

Local government financing was done in the case of councils by government

grants and by direct taxation through rates, personal levy and other fees. In
the case of mine townships management boards, they received grants from
both the Government and the mining companies. Additionally, local
authorities could, as corporate bodies, raise revenue by the normal ways such
as borrowing or issuing bonds, subject to strict central government control.

Local authorities, despite being corporate bodies, were obviously subject to

certain controls. The most relevant for the present purposes was central
government control. Under the Local Government Act, the Minister exercised
control over local authorities in various ways, namely:
(i) While local authorities had delegated authority to make by-laws,
these could not come into force until confirmed by the Minister. In
the process, the Minister could amend or revoke them at any time
after they had come into force.

(ii) The Minister had concurrent power to make regulations. In the

event of a conflict between these and the by-laws, the Minister's
regulations prevailed.

(iii)The Minister exercised far-reaching financial control by

determining the grants or loans, which Parliament could vote to
individual authorities. He also determined the exact manner in

61
 which the money was expended and approved any loans or other
fund-raising schemes by local authorities.

(iv) The Minister had one ultimate “control”. He could if he was

dissatisfied with the performance of a local authority, transfer the
functions of such authority to a local government administrator.

Local Government existed on the pattern described here until 1980. The
importance of local authorities as institutions through which the government
provided some essential services to the people cannot be doubted. It is quite
fair to say however that in the context of the new development orientation of
government since 1964, the local authorities have not played a big role,
compared to central government and the parastatal sector, in implementing
development programmes.

The reforms of 1980 radically changed the nature of Local Government in

Zambia. The representative element in local government was removed. There
was no local government in Zambia, but merely local administration based on
the aptly titled Local Administration Act 1980.

This Act repealed the Local Government Act, the Municipal Corporations Act,
the Townships Act, the Mine Townships Act, the Local Government Service
and the Local Government Elections Act. It became the sole basis of local
administration in the country.

Under this Act, a system of district councils replaced the old local authorities.
The names of the old authorities were retained although they could be
changed by the Minister or the President.

Each district council consisted of:

(i) The District Governor as chairman;

(ii) The District Political Secretary (a non-elective party official);
(iii)Two District Trustees appointed by the Provincial Committee and
approved by the Central Committee of the Party;
(iv) The Chairman of all the Ward Committees in the district (Wards
were small party units which supervised local development
programmes);
(v) All the members of Parliament in the district;
(vi) One representative from each of the mass organisations in the
district: the party's Women's and Youth Leagues;
(vii) One representative from each of the trade unions in the district;
(viii) One representative from each of the security forces: Zambia
Army, Zambia Air Force and Zambia National Service; and

62
 (ix) One Chief elected by all the chiefs in the district.

Evidently, some of the members of the councils were elected to some other
representative institutions before qualifying either ex officio for instance, the
Members of Parliament, or through being "seconded" as members of district
councils. However, that did not make district councils as representative as the
local authorities they replaced.

The new district councils rather than being directly responsible to the people
in the district were answerable to the Party. According to Section II of the Act,
no person could become councilor unless he was a member of the Party and,
if he did not already hold office in the party, had been approved for that
purpose by the Central Committee of the Party. Furthermore, councilors held
office for such period and on such terms and conditions as were determined
by the Central Committee.

The Local Administration Act, 1980 was further proof of the supremacy of the
Party in Zambia. The Local Administration Act introduced institutions, which
had a bearing, to varying degrees, on public administration at local level.
These are:
(i) District Committees;

(ii) District secretaries;

(iii)Provincial Councils:

(iv) Provincial Committees; and

(v) Provincial Secretaries.

Provincial councils were provincial assemblies in which district councils

deliberated and co-ordinated their development efforts.

The functions of the district and provincial committees were largely political.
District committees were, in a way, sub-committees of district councils while
provincial committees were sub-committees of provincial councils. Provincial
secretaries were intended to provide the technical and administrative
machinery necessary for serving the national organs of the Party and the
Government at provincial level.

Finally, district secretaries were more important in terms of day-to-day public

administration. In each district, they consisted of such officers as the council
designated. They were under the supervision of the District Executive
Secretary, formally called the District Secretary. The function of each district
executive secretary was to co-ordinate Government functions in the district.

63
Despite the Local Administration Act, 1980, the day-to-day public
administration did not noticeably change. Part I of the schedule of the new
Act, which enumerated the functions of district councils, was reminiscent of
Part I of the schedule to the repealed Local Government Act.

Furthermore, in such matters as the authority of district councils to make

delegated legislation through by-laws and the relationship of district councils
to central government and the power of levying taxes and other fees, the new
Act adopted the pre-existing principles.

(c) The Parastatal Sector: The third arm of public administration in Zambia
until 1991 was the parastatal sector. A parastatal body is any corporate body
in which the State has the majority or controlling interest.

The local government provided wide-ranging services in their areas,

formulated and implemented development programmes and for that purpose
exercised powers of taxation. Parastatal bodies on the other hand were
established to perform specific functions and had no powers of taxation.

Parastatal bodies must also be distinguished from specialised government

departments, which because of the nature of their functions, have been
structured like parastatal bodies. Zambia National Broadcasting Corporation
is an example of such a body. The distinction here is quite clear. It is evident
from the statute, under which a particular body is established that the body is
a corporate body, then it is a parastatal body; conversely, if it is not a
corporate body then it is a government department.

There are two ways of classifying parastatal bodies in Zambia. They were
classified based on the functions they performed or the method by which they
were established. On the lines of the first method of classification parastatal
bodies in Zambia were in three categories: the commercial type, which were
supposed to operate on purely commercial lines, the semi-commercial type
which were usually public utility corporations like Zambia Railways which
have to blend their pursuit for profits with a strong regard to public interest
and the “non-commercial” type, created by statute to perform specific non-
commercial functions.

On the other hand, parastatal bodies in Zambia were classified based on the
method of their incorporation. According to this approach, there were two
types of parastatal bodies in Zambia: those, which were established by special
Acts of Parliament and those, which were established under the Companies
Act.

The parastatal sector was not a homogeneous class of bodies. It consisted of

bodies, which were divergent in their form and in their functions. However,

64
with the aid of the two schemes of classifications outlined above it was
possible to divide them into groups as an aid to understanding the nature and
size of the parastatal sector in Zambia.

Parastatal bodies have a long history in Zambia. The earliest parastatal bodies
were created in the 1930's: the Agricultural Rural Marketing Board, the Maize
Control and the Cattle Control Board. Others were created during the
federation: the Victoria Falls Electricity Board. Many have since been
dissolved.

The significance of parastatal bodies as instruments of administration

increased after 1964. The new government committed itself to ambitious
programmes of change, which transformed its role from that of a passive
administrator to an active innovator and participant in the economic and
social spheres. The numerous programmes continued in the development
programmes and the additional government functions, which followed the
economic reforms, had to be undertaken by government functionaries. The
choice was open to government to delegate these functions to its departments,
or to devolve them to local government or the parastatal sector. In the event,
the parastatal sector was favoured. The reason for this choice was never
disclosed. However, it is common knowledge that throughout the world,
state-controlled public bodies are considered appropriate institutions through
which to implement government programmes in the commercial, industrial
and sometimes even social sectors, and for the regulation of certain private
activities.

Parastatal bodies, it was believed, were capable of being more efficient than
government departments since they were free of the bureaucracy of central
government.
The expansion of the parastatal sector from 1964 until 1991 can best be
described in two stages: in terms of the increase in the number of statutory
bodies and companies incorporated under the Companies Act.

(d) Statutory Bodies: Statutory bodies established after 1964 may be classified
into three categories: those of a commercial or semi-commercial type, those
established to undertake specific social functions and those of a regulatory
character.

Statutory bodies of the commercial or semi-commercial type included the

following:-
(a) Zambia Railways Board,
(b) Zambia Airways Corporation,
(c) Posts and Telecommunications Corporation,
(d) The Bank of Zambia,

65
 (e) The Zambia Agricultural Development Bank,
(f) The Cold Storage Board,
(g) The Dairy Produce Board,
(h) The National Agricultural Marketing Board,
(i) The Tobacco Board, and
(j) The State Lotteries Board.

Examples of statutory bodies established to perform specific social functions

are:
(a) The University of Zambia.
(b) The National Council for Scientific Research,
(c) The National Food and Nutrition Commission,
(d) The Flying Doctor Service,
(e) The Workmen's Compensation Fund Control Board,
(f) The Zambia Council for the Handicapped,
(g) The Zambia National Provident Fund Board,

Examples of regulatory authorities are:

(a) The Food and Drugs Board,
(b) The General Nursing council,
(c) The Medical Council of Zambian
(d) The National Road Safety council of Zambia,
(e) The Road Traffic Commission,
(f) The National Sports Council of Zambia
(g) The Law Association of Zambia
(h) The Council of Legal Education, and

Finally, mention must be made of those statutory bodies, which defy

classifications:
(a) Zambia National Commission for UNESCO

(b) The Council of Law Reporting,

(c) The Law Development Commission and the Institute of Legislative

Drafting.

The functions performed by statutory bodies are thus very diversified.

However, they possess similarities. Firstly, they were subject to the same
controls, namely, judicial control, ministerial control, parliamentary controls
and control by the commission for investigations. In some cases, statutory
bodies were and are subject to control by special tribunals. This is the case, for
example, in the case of the Zambia Railways Board, whose decisions in the
matter of the determination of rates could be challenged by the Rates
Tribunal.

66
In practice, the extent to which these controls were exercised varied. For
example, statutory bodies of the commercial or semi-commercial type were
subject to closer ministerial control than those statutory bodies that regulate
entry to, and membership, to certain professions such as the Medical Council
of Zambia and the Law Association of Zambia.

(e) Companies Incorporated Under the Companies Act: Following the

announcement of the first set of economic reforms in 1968, the number of
government-controlled companies, incorporated under the Companies Act
started to increase at a phenomenal rate. In that year, Government had
interest in twenty-six major companies in varied fields of the economy. The
Government's interests in these and other companies, which were
subsequently nationalised or partially nationalised in the industrial and
commercial sectors, were entrusted to the Industrial Development Company
Limited (INDECO). This company was established in 1951, as Northern
Rhodesia Industrial Development Company. It became a parastatal company
in 1964 when it was wholly nationalised.

In 1969, the Government announced its intention to acquire a 51% interest in

the Mining companies, then owned by two mining companies, Anglo-
American Corporation and Roan Selection Trust. By 1970, negotiations had
been completed. A new company, Mining Development Corporation
(MINDECO) was formed to hold the government's 51% interest in the two
mining companies which became known as Nchanga Consolidated Copper
Mines (NCCM) and Roan Consolidated Mines (RCM) Subsequently
MINDECO negotiated for and acquired on behalf of the Government,
controlling interest in other mining ventures.

In the field of transport, the Government decided in 1971 to take over all the
major transport concerns. The National Transport Corporation (NTC) was
incorporated to be the holding company for three transport companies, the
United Bus Company of Zambia (UBZ for passenger transport), Contract
Haulage (for goods haulage) and Zambia Tanzania Road Services, a joint
venture between the Governments of Zambia and Tanzania.

The third set of economic reforms affected the financial sector. The President
said that regard:

As the finance sector plays such a significant role in the mobilisation of

the monetary resources of the economy, it was only logical and
necessary that Government should take a direct role in the control of the
financial sector if the economic reforms are to produce any meaningful
results . . . .

67
The Financial Development Company (FINDECO) was established as the
main holding company in the financial sector. Through FINDECO the
Government subsequently nationalised all the building societies and created a
new company: the Zambia National Building Society (ZNBS) to run this
sector. In the insurance sector into the Zambia State Insurance Corporation
(ZSIC) was created. Government also partially nationalised the banks.

Meanwhile, by 1970, the number of parastatal companies incorporated under

the Companies Act had increased so much that in order to maintain effective
control over them, the Government decided to establish a giant holding
company: the Zambia Industrial and Mining Corporation (ZIMCO). All the
parastatal companies then in existence and those, which were incorporated
subsequently, became subsidiaries of ZIMCO either directly or through other
intermediate holding companies.

In 1972, ZIMCO's subsidiaries were INDECO, MINDECO, FINDECO and

NTC. These in turn were the holding companies for a very large number of
operating companies, covering virtually every sector of the economy.
The only group of parastatal companies incorporated under the Companies
Act, which was then not under ZIMCO, was the Rural Development
Corporation (RDC). This 100% government owned company had been
formed to be the holding company for all parastatal companies in the rural
development and agricultural sectors.

From 1972 until 1991, changes were taking place in the entire parastatal
sector: more companies were established, while the structure of the parastatal
sector itself was undergoing constant change. At its zenith, ZIMCO covered
every aspect of the economy of Zambia. It was possibly the largest public
corporation in Africa. It provided employment for 30% of the entire work
force of Zambia and contributed 60% of the Gross National Product of
Zambia. Its importance as a feature of public administration obviously needs
no emphasis.

Developments After 1991

The economic and political changes introduced by the Government since

independence were designed to develop the country by improving the
welfare of the people. By the end the 1980s, it was obvious that the goals
which had been outlined by the government were far from being met, in fact,
serious problems had emerged created by the very system that was intended
to address them.

The introduction one-party rule in 1972 brought great promises for the future.
One of the most forceful arguments advanced in favour of eliminating other

68
political parties was the need for national unity, stability and economic
development, which are the most urgent needs of any developing country. 24
The preamble to the UNIP Constitution declared:

Recognising that the Party shall be the leading political force and
shall continue to be a revolutionary mass orgnisation in which
participatory democracy shall be rigidly and strictly maintained,
welded together by patriotism and the revolutionary acceptance of
belonging to it; determined to mould a new Zambia in which
equality, justice, solidarity, peace, political, economic and social
progress shall all reign, free from poverty, disease, ignorance and
exploitation.... 25
By the end of the 1980s, there was a semblance of national unity, and political
and constitutional stability. But economic and social development, in real
terms the elimination of poverty, disease, ignorance hunger and exploitation
of the weaker members of the society, which the Party pledged to eliminate
was far from being addressed. In fact, people's standards of living had
collapsed. The social and economic infrastructure established in the first few
good years, immediately after independence, lay in ruins. The road network
had collapsed, hospitals had no medicines and schools lay in a state of
disrepair. The unemployment levels soared and people’s buying power
tumbled. The country’s external debt soared to an all time high. By the middle
of the 1980s, the IMF had lent more money to Zambia than to any other
country in Sub-Saharan Africa.

The country’s total external debt was about $ 3.5 billion at the end of 1984. By
1986, it had risen to $ 5.1 billion and $ 6 billion by 1988. 26 The impact of the
debt was graphically presented by Good: “The significance of this sum can be
assessed first of all, on a per capita basis, where it represented a debt in excess
of $ 700 for every Zambian, just about the worst in Africa.” 27 Good went to
say: “For example comparable figures for 1986 were $ 341 for the Gambia and
Guinea Bissau, $ 228 for Zaire and $ 211 for Mozambique. 28 The last two
countries have never known peace and stability as much as Zambia, and this

24See Nwabueze, Presidentialism in Commonwealth Africa, pp. 230-236, for the evaluation of
these arguments.
25The Party Constitution was annexed to the Constitution of Zambia, 1973, by virtue of
Article 4(3) thereof.
26Kenneth Good, "Debt and the One Party State in Zambia", The Journal of Modern African
studies, 27 (1989), 297.
27Ibid., p. 301.
28Ibid.

69
pointed to the fact that peace and stability alone cannot lead to economic and
social development.

The economic mess was attributed to mismanagement and wastage at the top
levels of the one-party state. 29 Good argued: “The 25 year record of the
Government led by Kenneth Kaunda is very largely negative. It has brought
economic collapse to the country compounded by external and internal
indebtedness, and by waste, mismanagement and misappropriation of
production resources.” 30 As to the cause, he concludes: “Zambia’s acute
malaise is a consequence chiefly of internal factors derivative of the single
party state and Kenneth Kaunda’s personal rule.” 31 The solution lay in
carrying out economic and social reforms, which had to be pursued within a
revitalised constitutional framework:

As things stand, debt concessions and additional foreign aid would

worsen rather than improve the situation, since it would strengthen
and encourage an inefficient and authoritarian regime without
bringing benefit to the majority of the people. Domestic reforms
aimed at creating efficiency and democratization in government, as
well as the long term diversification of the economy, are the
essentials for future development. 32

Kaunda and his ministers, on the other hand, denied that the country’s
problems were caused by internal factors, but by external forces, and the
principal causes being the collapse of copper prices on the world market, IMF
conditionalities and the rising metropolitan interest rates. The picture painted
was that Zambia, irrespective of its policies and system of government, was
simply the passive victim of these external forces. 33 Makgetla writes:

Zambia’s economic difficulties originated in international factors.

In the two decades of independence an unusual high degree of
external dependency, inherited from the colonial era, continued to
characterize the economy. Imported inputs accounted for at least
one-third of all costs in mining and manufacturing.... Meanwhile,

29Ibid., p. 300. See also Good, “Systematic Agricultural Mismanagement: the 1985 ‘Bumper’
Harvest in Zambia", The Journal of Modern African Studies 24 (1986), 257-284. Good illustrates
how lack of commitment on the part of the political leadership led to the wastage of the
harvest of 1985; Also see James Pletcher, "The Political Uses of Agriculture in Zambia", The
Journal of Modern African Studies 24 (1986), 603-617
30Ibid., p. 313.
31Ibid., pp. 297-8.
32Ibid., p. 298.
33Ibid., p. 297.

70
 the production of copper and related minerals contributed a steady
nine-tenths of exports revenues. But in 1975, the terms of trade for
copper plummeted by nearly 50 per cent, and merchandise imports
promptly contracted by almost one-quarter, seriously affecting
production. Since then the price of copper has stagnated. 34

Between 1975 and 1986, Zambia was forced by the IMF to attempt,
unsuccessfully, seven different stabilization and adjustment programmes.
Without exception they all produced contraction of the economy, inflation
and unemployment. A series of devaluation of the currency fueled galloping
inflation. These also caused huge increases in the prices of the basic food, with
the ending of subsidies. In December 1986 the increase in the price of mealie
meal produced food riots in which a number of people were killed by security
forces. 35

Both views are valid and point to the fact that Zambia's desperate economic
situation was a complex problem caused by a combination of factors.
Another black spot on Kaunda's reign was the country's human rights record.
Though it was argued that the one-party system would not negate people’s
basic rights and freedoms, apart from the right to form or belong to a political
party other than the ruling party, studies revealed gross abuses of basic
rights. 36 From 27 July 1964, when the last Governor of Northern Rhodesia
declared the state of emergency to suppress the rebellion waged by the
Lumpa religious sect, Zambia was under a state of emergency until 8
November 1991, when the declaration lapsed with the change in the
presidency. 37 The declaration remained in force notwithstanding the fact that
the entire sub-region, including South Africa, was moving towards peaceful
resolution of conflicts. Throughout the period of the emergency the President
enjoyed extensive powers of detention without trial.

The introduction of one-party system of government and the continued

existence of the state of emergency were the two most critical factors, which

34Neva Seidman Makgetla, "The Theoretical and Practical Implications of IMF conditionality
in Zambia", The Journal of Modern African Studies 24 (1986), 395
35Carolyn Baylies and Morris Szeftel, "The Fall and Rise of Multi-Party Politics" in Zambia"
Review of African Political Economy, 81. Kaunda subsequently denounced the IMF stabilisation
programme and stated in an interview that he hoped the IMF could devise adjustment
programmes which would not require him to shoot his own people.
36 See Zimba, The constitutional Protection of Fundamental Rights and Freedoms in Zambia: a
Historical and Comparative Study; Chanda "Zambia: A Case Study in Human Rights in
Commonwealth Africa." Chanda’s work unlike that of Zimba is rich in terms of accounts of
violations of human rights; See especially Chapter Four.
37See Article 31(7) of the Constitution of 1991.

71
militated against constitutionalism and good governance in Zambia. The
impact was widespread. A near pathological fear was created in the minds of
the Zambians to the point that they dared not express views critical of the
Government. It was, therefore, difficult to create a strong public opinion on
pressing national issues. Conditions were not ideal for the emergence of non-
government interests groups to assume the task of diffusing power
throughout the country.
These economic factors with other factors combined to bring the one party
rule to an end and paved way for a new dispensation, which called for
political and economic liberalism.

Serious changes have since occurred. The parastatal sector, which was viewed
as the engine for economic and social development has since been dismantled
by divesting government interests into private hands. The State is no longer
an active participant in securing the economic and social welfare of the
people.

Apart from changes in the parastatal sector, the structure of the central
government has remained the same. At local government, the Local
Administration Act has been repealed and replaced by the Local Government
Act. In essence, the system of local government in place from 1965 to 1980 has
been restored.

CONCLUSIONS
It is now over a decade since one-party ended and it would be fair to draw
some conclusions from the experience of the past years. Although democracy
has been accepted as, the system of government for Zambia very little has
been done since 1991 to make this goal a reality. Apart from the changes in
people occupying various positions of government, the institutions they run
are largely those, which were developed by Kaunda during his twenty-seven
year hold on power. Where there have been changes these have largely been
incremental and not substantive.

In the central government, everything has been engineered in such a way that
the powers enjoyed by Kaunda were retained and improved upon. Very little
has been done in the form of reform. At local government level, what has
been done is simply to remove the local government structures created under
the Local Administration Act of 1980, and restore the local government
structures abolished in 1980. However, the central government has not
allowed the local government structures to operate or function freely. All
local authorities are dependent on the central government for funding. This
position has been worsened in some cases by the decision by the President, to
all councils, to sale the housing units, without providing an alternative source
of revenue.

72
Although the privatisation of government interests in various commercial
entities is almost over the real benefits are yet to be seen. There has been no
corresponding in-flow of private investment. Unemployment has continued
unabated especially with the privatisation and liquidation of some companies.
The economic and social infrustructure have continued to deteriorate.
Whatever the situation it is incumbent upon government to address these
problems. There is no doubt that any effort to resolve them will require
changes in the structure of both the central and local government.

73
 CONTROL OF ADMINISTRATIVE ACTIONS

Introduction
Zambia, like most other African countries, is an artificial creation of imperial
powers. After decades of colonial rule, it faces at least four major pressing
problems 38: First, forge the bonds of unity and nationhood, and foster wider
loyalties beyond parochial, tribal or regional confines. Second, convert a
subsistence economy into a modern cash economy without causing social
upheaval or economic chaos. Third, industrialise and introduce a
sophisticated system of agriculture. Fourth, erase poverty 39, disease and
illiteracy, raise the standard of living of the people, and in short create a
modern state with all its trappings.

According to Zambia’s constitutional order the branch of government with

responsibility to address these challenges is the executive. Administration is
commonly associated with the executive branch of government. It is the
branch of government charged with executing the laws and policies to
address these challenges. Government’s efforts in addressing these
formidable tasks will inevitably entail government interfering with society,

38 S.K. Asante, "National Building and Fundamental Rights," Cornell IJL 2 (1969), 84, quoted
in Alex Amankwah "Constitutions and Bills of Rights in the Third World Nations: Issues of
Form and Content", The Comparative and International Journal of Southern Africa, 21 (1988),
207.
39 See Government of the Republic of Zambia and the United Nations Systems in Zambia,
Prospects for Sustainable Human Development in Zambia, (Lusaka, 1996) p. 7-8. It is estimated
that about 70% of the Zambian population is poor and out that that 59% constitutes the “core
poor”, in that they cannot satisfy their nutritional requirements unaided. Zambia is now
classified as one of the world’s least-developed and worst-indebted developing country. The
manifestation of poverty in Zambia has grown to the extent that it is described as a social
crisis. Child and maternal mortality has increased to the level where it is expected that by the
year 2000 one in every four children will die before the age of five. The level of child
malnutrition is one of the highest in Africa. In 1992, one in every two Zambian children was
malnourished and 40% of the children under five were stunted and there has been no
improvement in this area. The sharp drop in living conditions over the last decade could
signal renewed acceleration in fertility in the years ahead. The improvement in living
conditions experienced in the 1960s and 1970s had by the 1990s significantly declined. By the
mid-1990s, nearly all rural houses still had only earth or sand floors. More than half of the
households have an average of 3 to 7 persons per sleeping room. Only 3% of rural households
and 40% of urban households have electricity. Most urban residents have access to piped
water, but much of this is no longer safe. Less than half of the urban residents have access to
adequate sanitation: uncollected garbage is heaping uncollected in the streets. On the other
hand, less than half of the rural residents have access to safe drinking water supply that is in
working order. Living conditions are worse among the country’s poorest, worst off and those
living in the most remote areas – with most people living in overcrowded, unhygienic
conditions. This has in turn contributed to the emergence of frequent serious epidemics of
cholera and dysentery over the past years.

74
the economy and generally with people’s lives. It is therefore imperative to
set the ground rules and mechanisms to govern the executive branch of
government in its efforts in addressing these problems.

Some mechanisms and rules have been developed over the years and they are
non-judicial, judicial and constitutional. The first segment examines non-
judicial mechanisms and institutions designed to keep administrative
agencies and officers in check. The second part focuses on judicial review of
administrative actions. The Constitution, the statutes enacted by Parliament
and rules set by administrative agencies themselves coupled with the
possibility of judicial review provide the legal limits within which
administrative agencies must operate. The last part focuses on what would
ordinarily fall in the realm of constitutional law: constitutional judicial review
of the legislative and the executive actions. The presidential constitutional
order, which combines some aspects of the Westminster and American
presidential constitutional models, has given rise to this special area of
administrative law. In addition, to be considered in this part is how to police
the judiciary itself.

Non-Judicial Controls of Administrative Actions

Apart from judicial review of administrative actions, which we will examine

later in detail, there are institutions and mechanisms whose raison d’être is to
supervise the administration, and ensure that administrative agencies and
officers work within the law. The presidential parliamentary system in
Zambia is designed to keep the administration in control. The President’s
authority to appoint commissions of inquiries in exercise of his power under
the Inquiries Act, the various administrative tribunals established under
different Acts of Parliament, the Commission for Investigations are among the
non-judicial institutions and mechanisms designed to keep the administration
under control.

Presidential Parliamentary System

A parliamentary system of government by its very nature is designed to keep

the administration in check. The Zambian Constitution embraces the concept
of separation of powers. The legislative powers of Zambia are vested in
Parliament, that is the National Assembly acting together with the President.
The executive power is vested in the President, whereas judicial authority is
vested in the Supreme Court, High Court, Industrial Relations Court 40,

40 Although the Industrial Relations Court has been in existence since 1973, it has always
been an administrative tribunal until in 1996, when it became part of the judicature. The
reason for this change has never been properly articulated.

75
Magistrates Courts, Local Courts and any other court that may be created by
Parliament. The endorsement of the concept of separation of powers is an
expression of the need to control power.

The Constitution creates the position of the President of the Republic of

Zambia who is the Head of State and Government, and the Commander-in-
Chief of the Defence Force. 41 Article 44 of the Constitution stipulates the
functions of the President. The President must perform with dignity and
leadership all acts necessary or expedient for, or reasonably incidental to the
discharge of the executive functions of the Government. The Constitution
does not define the Executive functions.

The Constitution vests the executive power of the Republic of Zambia in the
President. The Constitution does not define executive power and what
activities fall within that scope. Neither does it provide any guidance on the
functions of the executive branch of government.

Although it is not possible to provide a precise definition of executive power,

it has been taken to mean the remainder of the power after the legislative and
judicial powers are taken out. 42 Executive power includes the power to
formulate policy and implement it. It includes the initiation of legislation, the
maintenance of law and order, the protection and enhancement of economic
and social welfare of the people, the direction of foreign policy, and generally
the carrying on of the general administration of State. 43

Article 44(2), in particular, provides that the President has power to do certain
specific things, such as to dissolve the National Assembly; accredit, receive
and recognise ambassadors; grant pardon; negotiate and sign international
agreements; establish and dissolve government ministries. The list is merely
illustrative of the things the President has the power to do. Given the
language of the Constitution, the President has the power to do things, which
may not be specifically provided for by either the Constitution or an Act of
Parliament, provided the acts in issue are not in conflict with the Constitution
or any other law in force.

41 See Article 33 of the Constitution.

42 For an extensive discussion of this issue, see Nwabueze, O. B. Presidentialism in
Commonwealth Africa. London: C. Hurst & Company, 1974.
43 See V.N Shukla’s Constitution of India (Luncnow: Eastern Book Company, 19980) p. 481-2.
See also Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549: 1955 2 SCR 225; Jayantilal
Amaritlal Shodham v. F.N. Rama], AIR 1964 SC 648: (1964) 2 SCR 294. extensively discussed
by Nwabueze

76
This partly explains why it is not possible to successfully challenge certain
decisions or actions by the President, questionable and morally unacceptable
though they may be. The decision by the President to sell Government and
Council houses ahead of the elections of 1996, under the guise of empowering
the people to own property, was clearly intended to give him and his party
political advantage over other parties. There is no legislation or constitutional
provision, which prohibits the President from making such a decision. The
creation of the “Presidential Slush Fund” which he disburses as he pleases is
another example.

The executive power vested in the President can be exercised either directly
by the President himself or through officers subordinate to him, 44 among
them the Vice-President and Ministers. The President appoints the Vice-
President and the Ministers. The Vice-President can exercise the power
specifically conferred on him by the Constitution and any other piece of
legislation. He may also exercise such power as may be conferred on him by
the President.

The Constitution confers power upon the President to appoint Ministers,

Deputy Ministers and Provincial Deputy Ministers. The Ministers are
responsible, while under the direction of the President, for such business of
Government including the administration of any Ministry or Department of
Government as the President may entrust to them. The Deputy Ministers
assist Ministers in discharging the business of government. In the absence of
the Minister, the Deputy cannot act in the position of the Minister. The
practice has been to appoint another Cabinet Minister to act in the absence of
the substantive Minister.

The Minister being a delegate of the President cannot delegate his authority
to the Deputy Minister. A Deputy Minister can act on behalf of the Minister
only if the President has expressly conferred that authority on him.
Notwithstanding the presence of the Minister, the President can authorise a
Deputy Minister to exercise the power of the Minister. The Vice-President, the
Ministers, Deputy ministers and Provincial Deputy Ministers exercise only
such power or discharge such functions as are given to them by the President.
In essence, they are all delegates of the President. The ultimate executive
authority is vested in the President.

The President, Vice-President and the Ministers make up the Cabinet. The
functions of the Cabinet are to formulate government policies and advise the
President on matters of policy and on any other matter that may be referred

44 See Article 33(2).

77
to it by the President. It is however difficult to perceive a situation where the
President can be advised by Cabinet, as he is himself part of Cabinet.

Parliament’s influence on those with responsibility to run the administration

is two-fold. For one to be eligible for appointment as Vice-President, Minister,
Deputy Minister, and Provincial Deputy Minister he must be a Member of
Parliament. Secondly, Article 51 provides that Cabinet and Deputy Ministers
(who are not members of Cabinet) are collectively accountable to the National
Assembly. 45

There is an assumption that Members of Parliament represent the interests of

the members of their constituencies. Ideally, a Member of Parliament must
explain to the constituents various decisions and policies of government. The
people must present their grievances to their Member of Parliament. The
Member of Parliament must follow up on the complaints on behalf of his
constituents with the relevant government departments or ministries. Where
necessary the matter can be brought up in the National Assembly, and the
Minister responsible may be required to respond to the issues raised by the
Member on behalf of his constituents.

The Minister concerned may make a public statement or commitment binding

on the administration to address the problems raised by the Member of
Parliament. This arrangement provides a check on the administration in its
implementation of various policies. Members of Parliament are support to
protect their constituents from administrative decisions, which may affect
them negatively and cause the administration, to make that will benefit them.

This is true where the party, which controls the administrative branch of
government, does not command an overwhelming majority in Parliament.
The party controlling the executive branch of government will be forced to
compromise or cooperate with the dominant party in Parliament to have
some of its policies given the force of law.

In addition, the National Assembly has powers to set up various select

committees whose role is to scrutinize various aspects of government policies.
Any such committee has power, according to Section 10 of the National
Assembly (Powers and Privileges) Act, to order any person to appear before
it and give evidence, produce any paper, book record or document in his
possession or control.

For instance a Committee of Parliament exists which scrutinizes

appointments to constitutional offices. Article 56 of the Constitution provides

45 See also section 6 of the Parliamentary and Ministerial Code of Conduct Act.

78
for the position of Director of Public Prosecutions (DPP) with power to
institute and undertake criminal proceedings against any person before any
court, except a court-martial, for any offence committed. The power vested in
the Director of Public Prosecutions is vested in him alone to the exclusion of
any other person or authority. The Constitution expressly provides that the
DPP in exercising the power vested in him shall not be subject to the control
or direction of any person or authority.

The office of the DPP enjoys further protection under the Constitution. The
DPP, like a Judge of the High Court and Supreme Court, can vacate his office
only upon attaining the age of sixty. He can be removed from office only on
account of incompetence or inability to perform the functions of his office.
The inability to perform may arise due to infirmity in body or mind. The DPP
may also be removed from the office on account of misbehaviour. The
removal of the DPP is not automatic. Once the allegations, which may lead to
the DPP, have been, they have to be investigated. The President will appoint a
three-man tribunal headed by a Chairman and two other persons holding or
who have held high judicial office.

In essence, the DPP enjoys a protected tenure. The elaborate constitution

protections are available because of the importance of his office and the
nature of the power he has to exercise. Apart from the President who enjoys
immunity from criminal prosecutions, 46 the DPP is expected to institute
criminal proceedings against any person within the Republic who is
suspected of having committed an office. This includes ministers an even
members of the President’s own family.

It follows that for the office of the DPP to function as expected by the framers
of the Constitution only men of good and high moral standing should assume
the office. For one to occupy the office of the DPP he must be beyond
reproach and incorruptible.

It is in realisation of this fact that the drafters of the Constitution provided

that appointment of any person to the office of the DPP be done by the
President, since the DPP falls within the executive branch of government. The
National Assembly must ratify the appointment in order to protect the DPP
from the President.

This arrangement is designed to ensure that the right person capable of

discharging the functions of the office of the DPP is appointed.

46 See Article 43(2) of the Constitution.

79
The committee of Parliament on constitutional appointments is expected to
investigate any person appointed by the President to the office. If the
candidate is found wanting the Committee is supposed to report to the
National Assembly recommending the rejection of the candidate and the
National Assembly will accordingly reject the President’s choice of the
DPP. 47

The mechanism is designed to ensure that the President does not appoint a
person can control to the office of DPP.

Assessment of the Parliamentary system of Government

A properly functioning parliamentary system in Zambia is an ideal yet to be

realised. There is no rapport between the people and their Members of
Parliament. The understanding of the nature of the relationship between the
Member of Parliament and the constituents is still lacking. Members of
Parliament are elected more on the strength of the party on whose ticket they
stand, and not on account of individual abilities or standing in the eyes of the
electorates. The party and not the people determine who should be a Member
of Parliament. Allegiance to the party counts more than commitment to the
voters. 48

The ideals reflected in these constitutional provisions have never been

realised. Both the Committee and the Assembly have tended to endorse
candidates who have the President’s approval. 49 The rejection of a nominee
is considered an affront to the President as the nominating authority.

47 Although this mechanism has been in force since 1991, there is no record of any person
appointed by the President to the office of the DPP or any other Constitutional office being
rejected by the National Assembly.
48 This is clearly illustrated in the Chingola Constituency. In 1991, two candidates stood for
election: Enock Kavindele stood as a candidate for the United National Independence, (UNIP)
whereas Ludwig Sondashi stood as a candidate for the Movement for Multi-Party Democracy
(MMD). Ludwing Sondashi won the election. Three years later the same candidates stood in
the same constituency. The only difference this time was that Kavindele stood on MMD ticket
whereas Sondashi stood as a National Party candidate (NP), a break-away party from the
MMD. Kavindele won the election.
49For instance in the appointment of Mr. Kalima as Director of Public Prosecution (DPP) the
Law Association did not support his nomination. That notwithstanding, the President
appointed him and his appointment was ratified by the National Assembly. A few months
later Mr. Kalima was suspended and a Committee appointed to investigate various
allegations of impropriety made against him for possible removal from the office. It is ironic
that a person who had met the President’s and the Select Committee’s approval would be
found wanting a few months later.

80
Some of the Members of Parliament do not feel obliged to visit their
constituents or maintain contact. They often have no idea of the problems
facing people in their constituencies. This is worse in constituencies where the
Member of Parliament is not resident 50 in the constituency or has a
ministerial position, which will require him to take residence in Lusaka.
Whether the Member of Parliament discharges his obligations to the
constituents it matters less; he will retain his position as a Member of
Parliament for the same constituency provided he stands as a candidate for a
popular party and has the full backing of the party.

The parliamentary arrangement in Zambia does not check administrative

actions. Party concerns as opposed to the concerns of the people are the
factors, which determine the conduct of the Members of Parliament.

During the sittings of the Mwanakatwe Constitution Commission,

representations were made that the new Constitution should confer power
upon people within a constituency to remove their Member of Parliament
from the National Assembly, where he is unable to discharge the functions of
his office as the people’s representative. The demand was widespread and in
response, the Commission under Article 134 of the Draft Constitution
conferred upon members of a constituency the right to remove their
representative from the membership of the National Assembly. A member
was to be recalled if he had failed to undertake a reasonable number of visits
to his constituency, failed to attend to constituency matters and for
misconduct.

The misconduct envisaged under Article 134(4) (c) was not defined. Members
were expected to file a petition with the Constitutional Court, which was to
be created under the proposed Constitution, supported by not less than one-
third of the registered constituents. The petition was to state the grounds and
particulars upon which the application was founded.

The Government did not accept the recommendation. The Draft Constitution
was rejected and Article 134 was not one of the Articles adopted and
embodied in the Constitution (Amendment) Act of 1996. That this issue was
considered by the Constitution Commission and provision made in the
proposed Constitution was recognition of the enormity of the problem.

Historically parliamentary arrangement in Zambia has never been an effective

non-judicial mechanism for checking administrative actions. The presidential
parliamentary political system, its supporting constitutional framework and

50 The election rules in Zambia do not require residence in a constituency as a pre-condition

to standing in any constituency.

81
underlying ideas are alien to Zambia. The Independence Constitution
prescribed a presidential multi-party system of parliamentary government.
The sound articulation of the system required a ruling party or coalition of
parties and an opposition party or coalition of parties. The Western
parliamentary system adapted for Zambia included the presidential aspect
and was based on the idea of politics understood in terms of zero sum game.
Any gain in parliamentary seats by one party or a coalition of parties is
equivalent to the loss of another rival party or a coalition of parties.

In the American presidential system and other Western parliamentary

systems where the system is in place, its operation does not provoke total
hostility between the rival parties or coalition parties. Political parties
perceive competition for political power as a mixed interest game, in which
the competing parties have, not only ideologically antagonistic interests, but
also significant interests in common to maintain competition for power. The
winning party may take all the offices associated with the victory but it does
not set out to destroy the future opportunities of the defeated party of ever
coming to power. This has worked well in Western liberal societies, because
there exist shared values and willingness between parties to both the rules of
the game and the maintenance of the political order. 51

In the post-independence Zambia, politics took a different dimension from

what the drafters of the Constitution envisaged. Historically it was unrealistic
to expect the system of government to operate as it did in the Western
presidential or parliamentary system of government. Party politics were
unknown among Africans until 1959 when the African National Congress
(ANC) accepted to take part in the elections after the constitutional changes,
which enfranchised a number of Africans.

The purpose of a political party is to mobilise the people and resources to gain
access to the regular executive and legislative machinery of the State. The
attainment of that goal, before 1959 was seen as the negation of colonial rule.
The very idea of colonial rule was based on absolute supremacy of the Crown.
Political parties were never recognised until it became obvious that the
territory was moving towards internal self-rule. There was, therefore, no time
for the new African leadership to perceive and accept politics as a game in
which, though the parties may have different ideological ideas, there must
still be common interests and common desire to respect and maintain the
political order. For Zambia and most other countries, Ollawa observes:

Not surprising interaction between parties tended to degenerate

into a negative mode of competition. Since politics as conducted by

51Ollawa, Participatory Democracy in Zambia, pp. 235-6.

82
 one party is felt by the other as to be normless, there hardly existed
any shared common standards of the rule of the game, which could
permit inter-party collaboration or compromise in the process of
political interaction. This being the situation, a party or a coalition
of parties on coming to power never hesitated to employ its
'organizational weapons' ... to exploit all sources of power that were
latent or manifest in every aspect of political and economic life of
the country to deal with its opponents or members of the opposing
party. 52

Lewis has condemned this manipulation of power in the zero-sum game in

Africa: "Translated from a class to a plural society this view of politics is not
just irrelevant; it is totally immoral, inconsistent with the primary meaning of
democracy, and destructive of any prospect of building a nation in which
different peoples might live together in harmony". 53

The chances of sustaining a multi-party political arrangement was further

undermined by the fact that in Zambia's traditional societies, the word
opposition was unknown, but it has come to mean an enemy who had to be
destroyed. The position is further complicated by the diversity in cultures and
political arrangements. Apart from notable nations such as those of the Lozi,
Bemba and Ngoni very few traditional societies had comprehensive
governmental institutional arrangements. All traditional societies were made
part of one state and the impact of their advances in government did not go
beyond the boundaries of their own nations.

This can be contrasted with the position in Botswana, which has emerged as a
shining example of democracy in Sub-Saharan Africa. Mbao observes that the
success is mainly because many Batswana believe that pre-colonial Tswana
political tradition, relative to the Kgotla, was democratic and thus provides an
historical basis for the liberal democracy. Customs and laws limited the
powers of traditional authorities. Notwithstanding the fact that there is multi-
party democracy in the country, members of political parties still rally behind
the chiefs and divest themselves of Party affiliations when they are at Kgotla
meetings and still perceive the Kgotla as an effective institution for resolving
issues that extend beyond political barriers. Batswana still rally behind the
chiefs than behind their Members of Parliament. The use of the Kgotla and the
chiefs in the evolution of the democratic process is an acknowledgment of the
possible co-existence of the Westminster style of parliamentary democracy

52Ibid., pp. 236-7.

53Arthur W. Lewis "Beyond African Dictatorship: The Crisis of the One-party State".
Encounter, 25 (1965), 9, quoted from Ibid. p. 237-8.

83
with the traditional government in one type of national government. 54 The
other, equally important factors, include Botswana's relative economic
prosperity and cultural homogeneity, 55 which are both lacking in Zambia

The successful operation of the political arrangement was limited from the
very beginning. The elections of January 1964, saw UNIP win fifty-six of the
sixty-five seats and the ANC with only nine. The weak position of ANC
meant that there was no rivalry between parties. This instead shifted within
the ruling Party. It must be noted that both leaders of ANC and UNIP lacked
interest in promoting and sustaining the political system and this partly
explains the inter-party violence experienced in the first few years of
independence.

Almost all UNIP Government policies were viewed in terms of how the areas
supporting the ANC would be affected or how one region would enjoy
material benefits and political advantages from the control of government
machinery by the leaders of certain ethnic groups within the ruling group.
The statement by Mungoni Liso (ANC Member of Parliament), in his
contribution to the debate on the repeal of the referendum clause, is
instructive. Whereas the Government's reason for the amendment was to
make the constitution flexible to change and do away with the costly
mechanism of the referendum, Liso argued: "I have been informed... that this
amendment or this Bill has been prompted by the fact that the Barotse
Province enjoys a certain amount of special status. In that there is a Barotse
Agreement and there are some highly placed politicians who would not
tolerate a tribe other than their own having any agreement that does not exist
in their own home area." 56 The Barotse Agreement could have been
abrogated without repealing the referendum clause. Whichever way the issue
is perceived it shows how far removed the system of government was from
the reality.

Similarly, when the UNIP Government decided in 1966 to ban the export of
labour to South Africa most of the political leaders from Barotseland
Province, where the majority of the migrant labourers came from, viewed the
decision in terms of its negative economic impact on the region. Consequently
when the Lozi based United Party (UP) was formed it capitalised on the

54M.L.M. Mbao "Constitutional Government and Human Rights in Botswana" Lesotho Law
Journal, 6 (1990), 204-5.
55Ibid., p. 205.
56Parliamentary Debates col. 2177 (16 April, 1969).

84
decision to ban migrant workers and other grievances of the people of
Barotseland to build its base in the area. 57

Inter-party rivalry was instead replaced with intra-party competition for

power. The political groups, which competed for the control of the party and
government policies, were generally ethnic or regional groups which:

designates a regionally or ethnically structured group within UNIP

which seeks to dominate the strategic positions in the authoritative
decision-making structures of the political system with a view to, at
the minimum, influencing government distributive outputs to its
advantage or that of its region/province. Like inter-party
competition, the two basic sources of social tension associated with
party-sectionalism are those deriving from socio-economic
developmental disparities among regions and those reinforced by
communal group affiliations which are usually based on ethnic or
linguistic interactional variables. 58

In addition to providing the individual nationalist leaders with the quickest

avenue for upward mobility and personal advancement the nationalisation of
politics, which accompanied the transfer of power to indigenous Zambians,
also presented for the masses a source of miraculous material benefits. And
because of the clear absence of shared values among the politicians, even
those within the same party, the national leadership was isolated on the basis
of ideological motivations and aspirations. 59

Internal political rivalry reached its zenith during the elections to the UNIP's
Central Committee in 1967. The alliance between some ethnic groups ensured
that members of some ethnic groups got seats on the Committee and others
were excluded largely on tribal lines. 60 At the end of the elections, Kaunda
decried:

We have canvassed so strongly and indeed, viciously, along tribal,

racial and provincial lines, that one wonders whether we really
have national or tribal and provincial leadership. I must admit

57Ollawa, Participatory Democracy in Zambia, pp. 238-9.

58Ibid.
59Ibid. p. 239.
60For a detailed discussion of these events see Ibid.: Carolyn Baylies and Morris Szeftel, "The
Fall and Rise of Multi-Party Politics in Zambia", Review of African Political Economy, 54 (1992),
75-91: Idem, The Dynamic of Zambia's One-Party State ed. Cherry Gertzel (Manchester:
Manchester University Press, 1984), generally, and Gupta, Government and Politics in Africa,
pp. 127-51.

85
 publicly that I have never experienced in the life of this young
nation, such a spate of hate, based entirely on tribe, province, race,
colour and religion, which is the negation of all that we stand for in
this party and Government. I do not think that we can blame the
common man for this. The fault is ours fellow leaders - we, the
people here assembled. 61

The resignation of Kapwepwe from UNIP and the formation of his own
political party, United Progressive Party (UPP), was part of the continued
convulsions within UNIP. Although UPP was immediately proscribed on 4
February 1972, it was clear to remaining members of the Party that the multi-
party system of government, as operated in Zambia, was encouraging ethnic
differences and posed a danger to national integration. 62 Remedial measures
were needed and the introduction of one-party rule was found to be the
solution. According to Baylies and Szeftel the single party system can be seen
as an attempt to contain structural political conflicts within the context of
chronic underdevelopment. In an economy such as Zambia's, it is always
unlikely that factional demands could ever be satisfied. The attempt to do so
badly distorted an already unevenly developed mono-economy. The creation
of a huge state sector fell victim to the effort to control resources and rewards
- and the parastatal corporations quickly became engulfed by political
patronage. 63

It is evident that after eight years of a multi-party parliamentary system soon

after independence and eighteen years of one-party rule nothing has been
learnt.

The events of the past nine years have revealed some inherent weaknesses in
the 1991 Constitution. It cannot stand its celebrated task as a bulwark of
defence against authoritarianism, since the party, which controls the executive
branch of government also, controls the National Assembly. The only
restraint available is the morality of those wielding power. The same powers,
institutions and practices, which led to the collapse of the Independence
Constitution, are still in place and at the disposal of the new political
leadership. Should they decide to use them nothing can deter them.

61Mulungushi Conference 1967 - Proceedings of the Annual General Conference of the United
National Independence Party held at Mulungushi 14-20 August (Lusaka: Government Printer),
p. 52.
62Ollawa, Participatory Democracy in Zambia, p. 249.
63Baylies and Szeftel, "The Fall and Rise of Multi-Party Politics in Zambia", Review of African
Political Economy, p. 80.

86
The electoral system embodied in the Constitution of 1991, is the same as that
of 1964. This constitutional arrangement coupled with the people's
discontentment with the UNIP Government and the general economic decline
enabled the MMD to get a landslide victory. UNIP was reduced to a regional
party, 64 just like the ANC was in 1964.

There are parallels with the developments soon after independence. The
MMD secured 125 seats in the 150 seats National Assembly in the election of
1991. This was the repeat of the 1964 elections, in which UNIP obtained fifty-
five of the sixty-five seats. The elections of 1991 merely created a shift from a
de jure one party system to a de facto one party state. To all practical purposes
there is no opposition party, and no inter-party competition for political
power.

As was the case between 1964 and 1972, the rivalry over power has shifted
within the MMD. This is evident from the resignation of some members of
MMD to form the Caucus for National Unity (CNU) 65 and the formation of
the National Party (NP). 66 The dismissal of Dean Mung’omba and Derrick
Chitala from the MMD ahead of the elections of 1996, and the subsequent
formation of Zambia Democratic Congress (ZADECO) was the clearest
indication of the death of intra-party competition for power itself. They were
the last of the founder members of the MMD who had illusions about the
party’s commitment to the ideals of democracy and hoped that they would
compete for the presidency of the party and ultimately that of the Republic
without undermining the party and endangering their own membership.
Most of the members of the party with presidential ambitions have been
purged from the party and the President has succeeded in surrounding
himself with loyal followers. The majority is compromised and has no life or
existence independent from the party and government.

Membership of the MMD has become the basis for wealth. People, who just
before 1991, were walking, not only were they driving after 1991, they were
being driven in every new make of vehicle on the market. The cost of the
luxury was unjustifiable and still is given the enormity of the country’s

64See generally, National Democratic Institute for International Affairs and Carter Center of
Emory University, The October 31, 1991 National Elections in Zambia.
65Patrick Katyoka formed the CNU as a reaction to the MMD Government's failure to
address what was promised during the campaign. The CNU has since been dissolved and the
Katyoka is now back as a member of MMD.
66See Weekly Post (13-19, August, 1993), pp. 10-11. The National Party was formed following
the resignation of about ten Members of Parliament from the MMD. Some of the reasons
given for their resignations were corruption and drug dealing among Government officials,
failure to promote a democratic culture and poor management of the economy.

87
economic problems. Connection with government or with someone with links
to government is the basis of business. Merit is no longer an issue.

The privatisation of the huge parastatal sector, a legacy of the UNIP

government, can at best be described as an act of looting sanctioned by the
Government. A good number of the companies were sold to people in
government or people with close connections with Government officials. The
majority of them lacked business acumen and could not keep companies
afloat. They instead sold off the assets and closed the companies.

The most of the Members of Parliament are beneficiaries or still hope to

benefit from the policies of government. They were in one way or another
indebted to the executive branch government. They are compromised hence
cannot play their collective role of checking the possible excesses of the
executive. The distinction between the legislature and the executive
disappeared. The Members of Parliament have collectively traded the
authority vested in them by the Constitution in return for personal and
collective favours from the executive. 67

There are other reasons to account for this situation. The very premise of the
changes of 1991 was flawed. The MMD a coalition of various individuals had
as its agenda the removal the UNIP government from power. The majority of
them were part of the UNIP government, but by 1991, they had fallen out of
favour. They did not have any programme of action as to what was to follow
the removal of UNIP from power. Although the movement is premised on
democracy and all other ideals, there is no national consensus on how these
ideals are to be realised. Furthermore, the majority of them cut their political
teeth under the tutelage of UNIP and Kenneth Kaunda. They have no idea of
politics other than Kaunda’s and UNIP’s brand.

In the election of 1996, the MMD sought to wipe out all the opposition parties
and effectively undermine the parliamentary system of government. Just
ahead of the elections, the government contracted an Israeli Company to
carry out the registration of voters. 68 The voters’ registers were rejected by all
the opposition parties on the premise that they favoured the MMD.

67 An example of the later is the practice of giving vehicles to Members of Parliament at the
beginning of every five-year term. Any such scheme requires the approval of the executive
branch of government.
68 Section 14 of the Electoral Act, Chapter 13 of the Laws of Zambia, provides that the
registration and the conduct of election was to be under the direction and supervision of the
Electoral Commission. The opposition parties who contended that this was a sure way of
rigging the elections rejected the NIKUV Contract. They contended that Section 14 of the
Electoral Act had been violated in that the registration of voters’ exercise had been given to
NIKUV and Israeli company as an independent contractor. Even though there was no

88
Since the election of 1991, there was consensus within the MMD party that the
1991 Constitution was a compromise Constitution and that soon after the
elections steps were to be undertaken to prepare a popular constitution,
which would stand the test of time. After a great deal of hesitation the
President finally appointed a Constitution Commission with mandate to
formulate a new Constitution for the country and in party determine, how
this Constitution was to come into force. 69 Most of the recommendations of
the Commission were rejected. The Draft Constitution was rejected. The idea
of introducing a new Constitution was also rejected. The MMD with its
majority in the National Assembly, proceeded to introduce a new
Constitution, by purporting to amend the Constitution of 1991. 70 The
Constitution, which emerged, was clearly designed to favour the MMD and
disadvantage other parties, especially UNIP, which presented a real challenge
to its continued hold on power. 71

All the opposition parties were united in their opposition to the NIKUV
electoral registers and the amendment to the Constitution and threatened to
boycott the elections unless these grievances were made. The MMD never

evidence of rigging the elections through NIKUV’s involvement, for purposes of legitimising
the electoral process government should attended to the concerns of the opposition parties
and arrive at a registration exercise acceptable to all the parties.
69 Three modes of adoption of the Constitution were suggested in the terms of reference:
through the National Assembly then in force, Constituent Assembly and Referendum. The
conclusion of the Commission was that adoption of the Constitution through the National
Assembly was the least favoured mode of adoption of the Constitution based on the
representation from the people. This was because the National Assembly was dominated by
the MMD, which controlled over 125 of the 150 seats in the Assembly. The Commission
produced a Draft Constitution and recommended that it be presented to a Constituent
Assembly for further consideration and should finally be submitted to referendum for the
people’s approval.
70 In reality the amendments to the Constitution resulted in a new Constitution. The entire
Constitution of 1991 was repealed and reenacted apart from Part Three, the Bill of Rights,
whose alteration requires a referendum.
71 The President of UNIP Kenneth Kaunda, the man who had led Zambia’s struggle for
independence, the first and only black Prime Minister of Zambia, the first President of the
Republic, the man who had been President of Zambia for 27 years became ineligible to stand
for election as President due to a new Constitutional provision, which required a presidential
candidate to “a true Zambian”. In addition to a candidate being a Zambian, the candidate’s
mother and father must be Zambians either by birth of descent. See Article 34 of the
Constitution. This provision was clearly aimed at barring Kenneth Kaunda. It is a notorious
fact that both his parents were from Malawi. Article 35 was another provision of the
Constitution designed for Kenneth Kaunda. Under the 1991 Constitution one could hold the
office of President for two five-year terms. But the counting of this limitation was to start
with Constitution of 1991. Under Article 35, the starting point was removed. Any person who
has held the office of President two five terms at any time since the post of President was
introduced was not eligible to stand for election as President.

89
budged, notwithstanding the demands made both within and outside the
country. The MMD did not see the need to alter its position for the sake of
strengthening and legitimising the democratic process. UNIP responded by
advising its followers to boycott the registration of voters’ exercise. When it
was clear that the MMD government would not change its stand on the
electoral registers and the Constitution, UNIP boycotted the elections.

The combined effect of these measures was that the opposition parties were
wipe out from the National Assembly. The MMD got over 130 seats.
Although this was celebrated as a victory for the MMD, in reality it marked
the death of parliamentary system in Zambia and the negation of the
democratic gains of 1991.

Recommendations

The consequence of these developments is that the legislative branch of

government has always been appendage of the executive branch of
government and not as an independent institution with power to check on the
possible excesses of the administration.

For the Parliamentary arrangement to be an effective means of controlling the

administration and its officers some radical changes are needed. First
education is needed for both the Members of Parliament and the people. The
Members of Parliament need to understand their role, and the people need to
know what to ask and expect from them. At party level the existence of an
opposition or opposition parties has to be accepted as necessary for the
survival of the system of government itself.

Independence needs to be created between the Executive and the Legislature.

Some of the petitioners before the Mwanakatwe Constitutional Commission
called for the appointment of Ministers from outside Parliament as opposed
to from the National assembly which has been the practice since the position
of Minister was introduced. 72 Article 107(2) of the proposed constitution
made provision for the appointment of Ministers from outside the National
Assembly. The proposal was meant to strengthen the position of the National
Assembly by making it independent, separate and distinct from the
Executive, so that it could effectively play its role and check on administrative
actions. This proposal was never introduced in the Constitution
(Amendment) Act of 1996. It died with the draft Constitution.

72 The position of Minister was first introduced before independence when elected members
of the Legislative Council were allowed to occupy positions in the administration of the
territory.

90
The Select Committee system can be improved by encouraging Committees
to conduct its business in public through public hearings. As the arrangement
stands, the people appointed often owed their allegiance to the appointing
authority: the President. In order to create independence in the minds of the
holders of constitutional offices, it would help if hearings on their
appointments were open to the public, so that in the event of appointment
one would owe his appointment not to the appointing authority, but to
himself and the public. He needs to win public support. Once appointed such
a candidate would be indebted to the people for having confidence in him
and not necessarily to the President.

Commissions of Enquiry

Since independence, a number of commissions have been appointed by the

President to inquire into various issues. The most notable are those appointed
to obtain people’s view on the constitutional order necessary for Zambia at
various times in history.

The one-party Constitution of 1973 was based on the findings and

recommendations of the Commission of Inquiry appointed by the President
in 1972, following the President’s decision that Zambia be a one-party state.
The role of the Commission was to get people’s view on the constitutional
framework of the one-party State.

Similarly, the Constitution of 1991, introduced in response to public demands

for the return to political pluralism, was based on the recommendations of the
Constitution Commission appointed in 1990, approved by the government.

All the Commissions have been appointed by the President in exercise of his
power under the Inquiries Act. The Act has been in place since 1967. The
President has power under section 2 of the Act to 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 in the interest of the public.
The commission is issued at the discretion of the President. This does not,
however, vitiate the value of this statutory provision in contributing to the
proper functioning of the administration.

There are pre-conditions to be satisfied before a commission can be issued.

The President must be convinced that there is a matter, which needs to be
investigated and that it would be in the public interest for an inquiry to be
held on the matter. The issuing of a commission is an acceptance on the part
of the President that the matter at hand is so serious that he alone cannot
decide. That it is in the interest of the Republic that other persons should look

91
into the issue and make the necessary findings and recommendations to the
President.

It is the duty of commissioners, once appointed, to make a full, faithful and

impartial inquiry in accordance with the terms of reference of the
commission, and to report the results of the inquiry to the President.
Ordinarily a commissioner is expected to be an upright and impartial person
for him to effectively discharge his obligations under the Inquiries Act and
contribute to the proper functioning of the administration.

The appointment of the commission of inquiry headed by Madam Justice

Florence Mumba to inquire into the road traffic accident involving the former
Vice-President Levy Mwanawasa was in response to speculation that the
accident was caused by his enemies within government. The mandate of the
Commission was to investigate these allegations, establish the real cause of
the accident and how such accidents can be avoided in future.

The appointment of the Commission of Inquiry, headed by Mr. Justice

Lewanika, to inquire into circumstances leading to the death of Baldwin
Nkumbula was amid allegations that the government was responsible for his
death. It was the duty of the Commission to establish whether indeed his
death was an accident or murder.

In both cases, the appointment of the commission was intended to verify the
veracity of the allegations of wrongdoing attributed to the administration.
There is no limit on the issues that the President can decide to have
investigated and the institutions to be investigated. The only requirement is
that the inquiry involves an issue that is in the public welfare.

The commission of inquiry headed by Justice Bobby Bwalya was appointed to

inquire into the frequent closures of the two public universities. This was
amid allegations of mismanagement of the institutions by management. The
Commission was mandated to investigate all aspects of the university life and
operations at the University of Zambia and the Copperbelt University. The
Commission was empowered among other things to:

(a) inquire into the effectiveness and efficiency of the administrative

structures of the universities;
(b) inquire into matters relating to the academic performance of the
universities;
(c) the mode of financing the universities;
(d) matters concerning students’ welfare;

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 (e) the relationship between government and the two universities. 73

The commissioners were expected to indentify the problems and make

recommendations on how they can be addressed. The ultimate objective was
to ensure that the two public universities functioned properly.

The commission of inquiry headed by Mr. Justice Japhet Banda appointed in

August 1998, is mandated to investigate the allegations of abuse of power by
the police and other internal security wings of government in their
investigation of the attempted coup in October 1997. The creation of the
commission was in response to a report of the Human Rights Commission
dated 30 May 1998, where it was reported that people suspected of
involvement in the attempted coup were tortured by members of the security
and police forces involved in the investigations.

The commission has been tasked to identify the security and police officers
involved in the acts of torture and where these have been identified to
recommend the administrative and disciplinary measures that must be taken
to avoid acts of torture and human rights violations in future. Where these
acts have been established, the Commission is expected to recommend
compensation to the victims.

The power vested in the President under section 2 of the Inquiries Act
properly exercised has the potential of assisting in the proper functioning of
the administration and other public institutions. It presents a unique
opportunity to place the administration and other public institutions under
scrutiny by honest and impartial commissioners often without links to the
administration or institution under investigation.

Assessment of the Commissions of Inquiries

The experience in Zambia with commissions of inquiries has not been a

happy one. This has not been due to flaws with commissions as non-judicial
mechanism for controlling administrative actions, but due to shortcomings
from the President. The three constitution commissions appointed so far have
not in anyway contributed in building a sound constitutional order in Zambia
or respect for the constitution as the supreme law of the land.

Once the commission has completed its work it must be submit its report to
the President, who is under no obligation to act on the recommendations. He
is at liberty to accept the recommendations he finds favourable and reject the
rest. For instance, although the people of Zambia were never asked in 1972
whether or not they favoured one-party rule, some of their suggestions on

73 See S/I No. 55 of 1997.

93
how to realise a viable one-party system were rejected. The commission
recommended a maximum of two five-year terms for any President. The
recommendation was rejected. It was argued that one should be allowed to be
President as long as the people wanted him. The consequence of the decision
was that a de facto life President emerged.

The commissions of inquiries have very limited impact as a non-judicial

means of controlling administrative actions and decisions to secure to an open
and accountable government. Experience in Zambia has shown that
commissions of inquiry, by their very nature, are not suitable as a means of
achieving a popular and legitimate constitution.

Most of the recommendations of the constitution commission appointed in

1993, headed by John Mwanakatwe were rejected. The draft constitution
prepared by the commission was never even considered by the government.

By the President naming the members of the commission, he is in a position to

determine, or at least to decisively influence the commission’s thinking in
advance. Although it is the duty of commissioners to make a full and
impartial inquiry in accordance with the terms of the commission,
commissioners are often not critical of the President as the appointing
authority.
Once the report has been prepared there is no obligation on the part of the
president to make the report known to the public, and there is no
specification as to the time when the report should be made known to the
public. Commissions are appointed to contain public pressure on issues of
concern to the people. The people are pacified and told that the matter was
receiving attention from the commission. Very often reports are released
when public interest on the issues inquired into has long waned. Others are
just never released. Those that are released the recommendations are often
not acted upon.

There is obligation on the part of president or government to act on the report

of the commission. This is evident from the report of the commission of
inquiry appointed to inquire into allegations of human rights abuses under
the previous and present governments, headed by Bruce Munyama.
Although one of the findings of the commission was that there were human
rights violations under the Kaunda regime, and that this trend has continued,
nothing has been done to ameliorate the condition. There has been no
prosecution or any form or action taken against those identified as violators of
people’s rights and freedoms. No attempt has been made to set up or reform
the existing institutions so that the problems of violations of human rights
identified by the commission do not occur again. The police force, identified

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as the major culprit, has not undergone any reform other than the change of
name from police force to police service.
However, with a sincere and committed President commissions of inquiries
can be affective ways of controlling the administration. It can make the
administration accountable and more responsive in meeting its obligations to
the people.

Administrative Appeals Tribunals

As already noted the executive branch of government is responsible for the

administration of the country. It has the power to formulate and implement
various policies. More often than not, the legislation on the statute books
stems from specific government policies. From a policy decision, a piece of
legislation is formulated providing various ways of realising the policy
objectives. For instance, one of the reasons for enacting the Lands Act is to
provide for statutory recognition of customary land tenure and for the
conversion of a customary tenure into leasehold tenure. There has never been
such a mechanism before. 74 The creation of such a statutory arrangement has
its dangers. Very often people entrusted with the responsibility to make
administrative decisions to satisfy the policies of government may make
decisions injurious to other parties. Some statutes impose obligations on the
public, which require enforcement.

In addition to providing statutory means of realising government policies, the

administration has often gone further, in many cases, to provide an internal
statutory mechanisms for addressing problems, which may arise in the
implementation of the policies. These arrangements are broad and diverse. It
is not possible to draw generalisations, which are true to all situations.
However, most of these institutions can be grouped into two broad categories.
In the first category, the administration creates statutory bodies with
authority to review on appeal any decision of an administrative officer. These
are often called appeals boards or tribunals. The name is not that important.
The true character of the institution is determined by examining its functions.
These can be permanent or ad hoc. There are other administrative agencies
with power to hear and determine any complaint by any aggrieved party.
(UNZA Staff Tribunal): Some of these institutions are ad hoc like the one
under the Ministerial and Parliamentary Code of Conduct Act, it is
constituted as when there is need often permanent institutions.

74 There are number of reasons advanced to support this initiative. One of them was that
holders of land through customary, should be allowed to convert it into leasehold tenure so
that they can use their land as security for securing loans.

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The only thing common to all arrangements is that they are supposed to
provide a speedy and inexpensive way of resolving disputes arising in the
pursuit of the policy objectives underlining the Act. The hearings are
informal. There is no requirement to observe the rules of evidence, as is the
case in formal court proceedings. The objective of the tribunals is to establish
the facts of the case and render a decision that is fair and just in the
circumstances of the case.

(a) Administrative Tribunals

The administrative tribunals are of two kinds. There are those, which are
established on a permanent basis with permanent staff such as the Lands
Tribunal. There are others, which are established on ad hoc basis, as and when
there is a matter to be investigated. An example of this is the tribunal, which
is established by the Chief Justice pursuant to section 14 of the Parliamentary
and Ministerial Code of Conduct Act. 75

The Lands Tribunal: The Lands Tribunal is constituted under the Lands Act.
The Act was enacted in 1995 amid serious opposition from civic organisations
and other interested parties. 76 The Land Act has, among many other things,
re-organised the entire land tenure system in Zambia, which was previously
governed by various statutes and Orders in Council. In any such exercise,
there are always possibilities of disputes. It was out of the realisation of this
fact that the Lands Tribunal was established under Section 20 of the Act.

The jurisdiction of the Tribunal is very wide. The Tribunal has authority to:

75 The creation of the tribunal is in line with Article 54 of the Constitution. The tribunal
establishes a Code of Conduct for Members of Parliament in accordance with Article 71 of the
Constitution. The Tribunal is established whenever a Member considers that a statement
made in the press or other media alleges directly or by implication that he has violated Part II
of the Act. The Member may write to the Chief Justice giving the particulars of the breach
alleged and request that a tribunal be constituted to investigate the allegations. Any member
of the public can lay a complaint before the Chief Justice against any Member of Parliament
or Minister who has breached Part II of the Act. Part II of the Act provides a Code of Conduct
applicable to all Members. The tribunal depending upon its findings may recommend such
administrative actions; criminal prosecutions or such other actions as it may deem fit. The Act
is silent on the effect of the recommendations. From experience in the case involving the late
Dr. Remmy Mushota and Patrick Katyoka, the recommendations of the Tribunal are binding
upon the National Assembly and the President. This is an interesting development in the
administration’s efforts to curb possible abuse of power by Members of Parliament and
Ministers.
76 One of the arguments advanced was that by giving legal recognition to land held under
customary land tenure and the possibility of converting it into leasehold tenure, chief in
Zambia would loose land, which they have held for generations. Some tracks of land would
fall in the hands of foreigners much to the disadvantage of the local people.

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(1) inquire into and make awards and decisions in any dispute relating to
land
(2) inquire into, and make awards and decisions relating to any dispute or
compensation to be paid under the Act
(3) generally inquire and adjudicate upon any matter affecting the land rights
and obligations, under the Act of any person or Government
(4) to perform such acts and carry out such duties as may be prescribed under
the Act or any other written law.

The Lands Tribunal has extensive powers to investigate various issues

concerning land in Zambia. This is however limited to matters touching on
the various aspects of the Lands Act. For instance, the Lands Tribunal has no
jurisdiction to entertain a dispute between the parties over the completion or
none-completion of the contract to sale land. This is a matter of contract
between two interested parties and the Act Lands Act does not cover such
matters.

Similarly, the Tribunal has no jurisdiction to entertain a dispute between the

Government and an individual over the sale of Government pool houses. The
right of any civil servant, who is a sitting and who qualifies to own land in
Zambia pursuant to section 3 of the Lands Act, to buy the property he
occupies is not founded on any provision of the Lands Act. The right to buy
stems from Government’s decision contained in Cabinet Office Circular No.
12 of 1996.

Disputes over the alienation of customary land by the President falls within
the category of cases, which can be entertained by the Lands Tribunal. The
President’s right to alienate customary land is specifically provided for in
section 3 of the Lands Act. The Lands Tribunal can adjudicate upon any
dispute over the conversion of customary land tenure to leasehold.

It is not possible to catalogue the kind of cases, which can be entertained by

the Lands Tribunal. The only criterion is that the dispute must involve
something done or not done pursuant to the provisions of the Lands Act.

(i) Remedies: The Act does not specify the remedies that may be ordered by
the Lands Tribunal. From the language of section 22, the Tribunal upon
hearing a dispute has the power to give such orders or awards as are
necessary in the circumstance of the case to give effect to its findings. The
Tribunal is, of course, guided in its decisions or awards by the relief sought
and by the nature of the dispute.

(ii) Proceedings of the Tribunal: The proceedings of the tribunal are informal
in comparison to judicial proceedings. The proceedings are presided over the

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Chairman and there must be at least five members including either the
Chairman or the Vice-Chairman for the Tribunal to transact its business. The
determination of any matter before the Tribunal is according to the opinion of
the majority of the members hearing the case.

The Tribunal is not bound by the rules of evidence applicable in civil

proceedings. Any party to the dispute can appear either in person or through
counsel at his own expense.

(iii) Appeals to the Supreme Court: The Lands Tribunal is the only
administrative tribunal whose decisions can be appealed against directly to
the Supreme Court. 77 This is unusual and it is difficult to establish the
reasons for this position. This has prompted some members of the Tribunal to
contend that on matters of land the Land Tribunal shares the same
jurisdiction as the High Court for Zambia, a position similar to that enjoyed
by the Industrial Relations vis-à-vis the High Court in industrial relations
matters, until 1996. Members have further contended that the decisions of the
Lands Tribunal are not amenable to review by the High Court.

The Lands Tribunal is different from the Industrial Relations Court. Article 94
of the Constitution establishes the High Court and confers on it unlimited and
original jurisdiction to hear and determine any matter civil or criminal
proceedings under any law, except matters which are exclusively reserved for
the Industrial Relations Court by the Industrial and Labour Relations Act.
Although the Industrial and Relations Court is a creation of statute its
existence is recognised by the Constitution, and it is now part of the
judicature.

There is no such provision in the Constitution concerning the Lands Tribunal.

The Lands Tribunal is merely an administrative institution and not a court. Its
decisions are amenable to review by the High Court. Section 29 of the Lands
Act to the extent to which it purports to oust the jurisdiction of the High
Court in its decisions is unconstitutional. It violates Article 94, which confers
upon the High Court original and unlimited jurisdictions to determine any
matter civil or criminal.

Even with section 29 of the Lands Act in place, the High Court still has
jurisdiction over the actions and decisions of the Lands Tribunal. Section 29
refers to appeals against the decisions of the Lands Tribunal. The High Court
can entertain applications concerning the operations or activities of the Lands
Tribunal, other than reviewing its decisions on appeal.

77 Section 29

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Section 22 of the Lands Act stipulates the extent of the jurisdiction of the
Lands Tribunal. Where the Lands Tribunal exceeds its jurisdiction and
entertains a dispute, for instance, between a mortgagee and mortgagor, such
proceedings and decisions are reviewable by the High Court under its
inherent power of review. Where the Lands Tribunal acts in want of
jurisdiction, its decision will be quashed by the High Court. The challenge will
not be on its decisions but its authority to entertain the dispute arising from a
mortgage.

(iv) Evaluation of the Lands Tribunal: Although the Lands Tribunal is a

fairly new institution, its popularity is steadily increasing. More and more
people are presenting cases. This is likely to continue provided it promptly
decides the cases and remains impartial in its decisions, especially in cases
involving the Government.

There are, however, serious contradictions in the procedure of the Lands

Tribunal and also in the supervising ministry. Section 24 of the Lands Act
confers power upon the Chief Justice to make regulations to govern the
procedure of the Tribunal and for summoning witnesses to appear before the
Tribunal. The regulations issued by the Chief Justice in 1996 appear to limit
the jurisdiction of the Lands Tribunal. 78 For instance, regulation 3(1)
provides: “An appeal to the Tribunal against any directive or decision may be
instituted by sending the Secretariat, in duplicate, a written notice of appeal---
.”

The rules are framed on the assumption that the Lands Tribunal is an
“appeals tribunal” and not a tribunal with jurisdiction to hear any matter
arising under the Lands Act. According to Rule 3(1) for the Lands Tribunal to
be moved there must be a decision or directive made under the Lands Act
and one must be aggrieved by such a decision or directive. The role of the
Lands Tribunal is therefore to review such a decision or directive.

This is contrary to section 22 of the Lands Act. The Act does not make
reference to appeals. The Lands Tribunal has the power to hear any matter
concerning land provided it can be related to some provision of the Lands
Act. This is not the case from the Regulations. According to the regulations,
the Lands Tribunal cannot entertain a dispute between two chiefs over the
extent of their customary lands. This is so since no decision has been made in
the matter.

This is contrary to section 22. The said section employs the expressions such
as the Tribunal shall “inquire into and make awards and decisions in any

78 See S/I No. 90 of 1996.

99
disputes”, “inquire and adjudicate”. They connote original jurisdiction on the
part of the Lands Tribunal to hear and determine any matter covered by the
Act.

The jurisdiction of the Lands Tribunal is not limited to appeals, as the

Regulations appear to suggest. The Lands Tribunal has authority to hear and
decide any matter, whether or not, it has been decided by a person in
authority. Section 15(1) of the Lands Act provides that any person aggrieved
with a decision or directive of a person in authority may apply to the Lands
Tribunal. Section 15(2) defines a person in authority as the President, the
Minister of Registrar.

Matters of land in Zambia fall under the Ministry of Lands. The Lands
Tribunal as an administrative agency is supposed to be under the Ministry of
Lands. However, this is not the case. Section 28 provides that the Ministry
responsible for legal affairs will provide secretarial and accounting assistance
to the Lands Tribunal. The rationale for this arrangement is difficult to
establish. The right ministry to provide such assistance is the Ministry of
Lands.
(b) Appeals Tribunals

The majority of the tribunals in Zambia are appeals tribunals. The

distinguishing characteristic is that they review decisions of people in
authority presented to them by an aggrieved person. The most important
appeals tribunals in Zambia are the Town and Country Planning Tribunal and
the Revenue Appeals Tribunal.

The Town and Country Planning Tribunal

The Town and Country Planning Tribunal is established by section 6 of the

Town and Country Planning Act. The Act seeks to regulate the
development 79 and sub-division 80 of land in Zambia. Although the Tribunal
is not called an “appeals tribunal”, its character is that of an appeals tribunal.
This is inferred from its jurisdiction. 81 The Act confers authority upon the
planning authorities and the Minister to make certain decision regarding the
development of various pieces of lands. The tribunal has jurisdiction to
review any such decision made by the planning authority or Minister.

79 Development of land is defined in section 24(4) “the carrying out of any building,
rebuilding, or other works or operations on or under land, or the making of any material
changes in the use of the land or buildings---“.
80 Sub-Division is defined in section 22(3) as “the division of any holding of land into two or
more parts whether the sub-division is effected for purposes of conveyance, transfer,
partition, sale, gift, lease, mortgage or any other purpose”.
81 See Sections 11 and 29.

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Anyone aggrieved by the decision of the Tribunal has the right to appeal to
the High Court against the decision. 82

Revenue Appeals Tribunal

The second most important appeals tribunal is the Revenue Appeals
Tribunal 83 established in 1998. There are a number of statutes, which regulate
the collection of government revenue. Each one of these statutes until 1998
provided an administrative arrangement for dealing with disputes, which
arose in the enforcement of the various legal provisions. The Revenue
Appeals Tribunal Act has repealed all these institution and has provided for
one appeals tribunal to deal with all the disputes arising from the
implementation of the various Acts of Parliament. The Tariff Appeals
Court 84, the Tax Appeals Court 85 and the Value Added Tax Appeals
Tribunal 86 have been abolished and in their place, the Revenue Appeals
Tribunal has been created.

The Zambia Revenue Authority created under section 9 of the Zambia

Revenue Authority Act is responsible for the collection of revenue on behalf
of the Republic. In its implementation of the intentions of Government
contained in the three principal pieces of legislation namely the Customs and
Excise Act, the Income Tax Act and the Value Added Tax, disputes are
inevitable.

These pieces of legislation confer powers of varying degrees on the Zambia

Revenue Authority to carry out a number of decisions and actions in
furtherance of the objectives outlined in the Acts. Power is likely to be abused
in the process. In response to these potential problems, the Revenue Appeals
Tribunal has been created.

Jurisdiction of the Revenue Appeals Tribunal: The authority of the Tribunal

is limited. In the relation to matters, arising under the provisions of Customs
and Excise Act the Tribunal can hear and determine an appeal in three
situations. First, where an importer of goods feels that the goods he has
imported are incorrectly classified by the Commissioner under the Customs
Tariff. Before the tribunal can be moved, the importer must pay the duty as
demanded by the Commissioner or furnish security to cover the amount of
the duty due and payable. The importer must appeal within three months

82 Section 11(2)
83 Revenues Appeals Tribunal Act No. 11 of 1998.
84 Established under the Customs and Excise Act,
85 Established under the Income Tax Act
86 Established under the Value Added Tax.

101
from the date of the payment of the duty. The essence of the appeal is to allow
the Tribunal to review the decision of the Commissioner to classify the item in
issue in the manner it is been classified. If the Tribunal finds that the
classification is wrong, it will make such a declaration. The effect of the
finding is that the duty paid will have been improperly paid and a refund will
be ordered.

The second situation arises where a person intends to import or manufacture

an item, which he is of the opinion that the Commissioner General has
wrongly classified it. In such a situation, the intention is to secure the correct
classification of the item in the Customs Tariff.
The third situation applies where the Commissioner General has determined
the value of the goods intended for importation into Zambia or manufactured
within Zambia for purposes of taxation and the party involved is aggrieved
by the value fixed by the Commissioner General.

In relation to the provisions of the Value Added Tax Act, the Tribunal has
authority to hear appeals stemming from the decision by the Commissioner
General on the registration, or cancellation of registration of a supplier. The
decision to refuse the registration of a supplier can be a subject of appeal to
the Tribunal. The Tribunal has authority to hear and determination an appeal
on the tax assessed on the supply of goods and services or on the importation
of any goods. Any person aggrieved by the decision of the Commissioner
General on the amount of the input tax that may be credited to him as a
supplier can appeal to the Tribunal. The decision to allow or disallow the
apportionment of input tax is founded on the application of various
administrative rules. Where a person is dissatisfied with the rules applied in
his case, he has the right to appeal to the Tribunal.

The Commissioner has power under section 25 of the Value Added Tax Act to
require a taxable supplier to pay any tax or interest due before the period
allowed under the period. This power can only be exercised where the
Commissioner General is of the view that such tax or interest may not be paid
within the time allowed under the Act by reason of loss, transfer or
disposition by the supplier of his assets. Where such a notice has been issued,
the aggrieved person has the right to appeal against the Commissioner
General’s decision to issue such a notice.

The Commissioner General has power under the Value Added Act to require
security from a supplier. Any such decision can be a subject of appeal before
the Tribunal.

In relation to the Income Tax Act, the Tribunal has authority to hear any
appeal against an assessment of tax. The Tribunal has authority to hear and

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determine any matter, which the Minister has prescribed by regulation is a
subject of appeal under the Act.
Composition of the Revenue Appeals Tribunal: The Revenue Appeals
Tribunal in all is made up of seven members appointed by the Minister of
Finance. Three of the members must be legal practitioners of not less than
seven years standing recommended by the Judicial Service Commission and
who in the opinion of the Commission have sufficient knowledge and
experience in tax matters. 87 Two other members must be accountants
certified as such by the Zambia Institute of Accountants. The last two
members must be from the business community.

The Minister must appoint the Chairman and Vice-Chairman of the Tribunal
from among the three members who are legal practitioners. Membership to
the Tribunal is for a period of four years from the date of appointment and a
member once appointed is eligible for re-appointment for another term of
four years.

One may cease to be a member, other than through death, where he absents
himself from three consecutive meetings of the Tribunal without any
reasonable excuse. One can also lose his membership of the Tribunal if he is
an undischarged bankrupt. Members who are members of the Law
Association of Zambia or the Zambia Institute of Certified Accountants will
cease to be members of the Tribunal when they are no longer members of
such bodies. In the event of a vacancy under any of the situations, the
Minister can appoint a new member who will hold office for the remainder of
the period held by one who has ceased to be a member.

Appeal to the High Court: Any person dissatisfied with the decision of the
Tribunal has the right to appeal to the High Court against such a decision. The
appeal may be founded on a question of law or mixed law and facts. An
appeal to the High Court cannot be based on facts alone.

Upon hearing, the appeal the High court has the power to send the case back
to the Tribunal for rehearing, confirm, increase, deduce, or annul the
assessment or decision of the Tribunal. The High Court can also make such
orders on costs as it may deem fit in the circumstances of the case.

Assessment of Administrative and Appeals Tribunals

87 It is difficult to see the relevance of the Judicial Service Commission in the appointment of
the three members. The Commission has nothing to do with the legal practitioners. The body
that is better placed to recommend such members would be the Law Association of Zambia,
which has direct dealings with the legal practitioners. It can easily determine who among its
members has sufficient knowledge and expertise tax matters.

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Although there a number of administrative and appeals tribunal on the
statutes their real impact in controlling administrative decisions and action is
very limited. The majority of the tribunals are not known both among legal
practitioners and the general public. The institutions have done very little to
publicise their existence and functions. To many legal practitioners the
judicial system is still the only viable institution for resolving disputes
between the administration and people who have been affected by the
decisions and actions of the administrative agencies and officers.

Recourse to the tribunal is not mandatory. One may choose to move the
tribunal or pursue his grievances through the courts. Even where there is
provision to appeal to the High Court against the decision of the tribunal,
there is no obligation on the part of the dissatisfied party to present his case
before the High Court.

The most serious constraint is that the extent of the jurisdiction of the
tribunals is very limited, especially in the case of appeals tribunal. There are
very defined grounds on which one can present his case to the tribunal. In
relation to the Revenue appeals Tribunal, the real problems facing interested
parties is not so much on the assessments made by the Commissioner General
or his classification of various items on the Customs Tariff. The real issue lies
in the exercise of power by various officers of the Zambia Revenue Authority
in the course of performing their duties.

For instance, section 37 of the Value Added Tax Act places an obligation on
any person who is involved in the supply of goods in the course of a business
to furnish the Commissioner General or any other authorised person
information, which he has access to. The information must relate to goods or
their supply. The Commissioner General must specify the time and manner in
which the information should be made available. Failure to comply with such
a demand is a crime under section 39 of the Act.

Very often officers of the Zambia Revenue Authority do not conduct

themselves according to law. They have been known to enter premises and
forcefully take any such documents or books, which in their opinion are
necessary. They do not have such authority to forcefully enter business
premises and seize various records of the business without a warrant. 88

A person aggrieved by the conduct of the officers cannot lay a complaint

before the Tribunal, as this beyond its jurisdiction. The cases of abusive of
authority are much more than cases of dissatisfaction with the classification of

88 Section 38(2) of the Act empowers officers of the Authority to obtain search warrants.

104
an item by the Commissioner in the Customs Tariff. The Tribunal cannot
entertain such complaint. The only forum where such a case of abuse of
power can be entertained is in the High Court.

Ordinarily the administrative and appeals tribunals are supposed to provide

speedy resolution of grievances as opposed to the judiciary, but this is not the
case. More often than not appeals take just as along as the cases before the
courts to be determined.

The general collapse of the economy in Zambia has also seriously

undermined the effectiveness of the administrative and appeals tribunals. For
instance, there can be no appeal before the Town and country Planning
Tribunal unless a decision has been made either by the Minister or a planning
authority. Due to serious administrative constraints, it takes time for either
the Minister or the planning authority to decide matters referred to them. The
presentation of an application before the Minister or planning authority is
dependent on the existence of an effective institutional capacity to enforce
various provisions of the Town and Country Planning Act. This is not
possible because the inspectors are not enough.

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 The Commission for Investigations

Introduction
Until 1974, the only means of protecting the citizens against abuse by the
administration was through the court’s power of judicial review, which will
be discussed below, an appeal to an administrative tribunal and seeking
intervention of Parliament through a Member of Parliament. Each one of
these mechanisms has limitations. Judicial review is often cumbersome and
expensive and can only be undertaken with the help of a legal practitioner.
There are decisions or acts of the administration, which are not amenable to
judicial review. Judicial review is founded on very well defined and limited
grounds. The intervention of Parliament in the decisions and action of the
administration has never been effective in Zambia. The tribunals deal with
specific issues, as defined in the empowering legislation.

Even if these institutions were effective in their control of the administrative

decisions, there are certain classes of cases, which are beyond their
jurisdiction. For instance issues of corruption, among public officers, may be
difficult to address. The creation of the Commission for Investigation was in
response to demands for an institution other than the courts to control the use
of power by public officers. Although the institution of the ombudsman has
its origin in Scandinavian countries, the Zambian model was in response to
the unique problems facing country, especially corruption.

Historical Background

The institution of the ombudsman was unknown in Zambia until 1972, as the
country moved from a multi-party political arrangement to one-party rule. It
emerged as one of the recommendations of the Commission appointed in
1972 to determine the constitutional framework for a one-party system of
government.

A number of the people who appeared before the Commission called for the
establishment of the office of the Ombudsman with authority to investigate
abuse of power in particular corruption in all its forms in the country. The
petitioners were concerned in that some political leaders and those who with
connections to public officers had accumulated considerable wealth through
dubious means and in so short a time after independence. 89

The Constitution Commission accepted the proposal. It concluded that there

was need to establish such an office to investigate allegations of corruption

89Parliamentary Debates Col.180 (23 July-2 August, 1974) Chona

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and abuse of power. The establishment of such an institution would have a
number of benefits. The Ombudsman would be looked at as independent and
impartial, factors that are critical for the survival of the institution.
Complaints would be presented informally and without any cost. The
Ombudsman would consider the whole field, in which a complaint would
arise by allowing flexibility in investigating complaints, which is not possible
with ordinary courts of law. The Ombudsman would be of value to the
administration. He would informally advise, remind and reprove public
officers or institutions found wanting. The very fact that a complaint against a
public officer or public institution can be considered by the Ombudsman was
a significant restraint on public officers.

All the recommendations of the Commission were accepted by the

Government and when the Constitution came into force in 1973, it provided
for the Ombudsman in the form of a Commission for Investigations 90 and the
Investigator General 91 who was Chairman of the Commission.

Those holding public offices saw the creation of the Commission for
Investigation as one way of strengthening the protection of the people from
the arbitrary exercise of authority. Anyone resident in Zambia would have
the right to lodge complaints with the Commission against abuse of power by
those in authority.

The Creation of the Commission

The one-party constitution, which came into force in 1973, provided for the
Commission for Investigation and for the Investigator General. The
Commission for Investigation was made up of the Investigator General, as
Chairman, appointed by the President and three other members.

In 1974, Parliament enacted the Commission for Investigation Act. The

purpose of the Act was to provide for the powers, privileges and immunities
of the Commission, and make various provisions to enable the Commission to
perform its functions.

Some preparatory work was done before the Bill was presented before
Parliament. Since the position of the Investigator General was already
established under the Constitutional, the President appointed Mr. Justice
Chomba as Investigator General, before the Act was in place. Justice Chomba

90 See Article 117 of the Constitution.

91 Article 118.

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visited Tanzania, New Zealand and India to study the operations institution
of the Ombudsman in those countries. 92

In his contribution to the debates on the Bill Mr. Justice Chomba observed:
“...people outside Zambia feared when One Party participatory democracy
was introduced. There had been some misguided rumours or feelings that
Zambia would no longer be a democratic country. By introducing this
Commission, --- it indicates clearly the Zambian Government’s views and the
feelings we have expressed many times – [on] democracy.” 93

The introduction of this Commission was seen as proof of the country’s

commitment to democracy. 94

The Constitutional Changes of 1991

In 1990, Zambia reverted to a multi-party political arrangement and a new
Constitution was introduced, which affected the Commission for
Investigation. The Constitution of 1991, unlike that of 1973, only provided for
the existence of the Investigator General. 95 Article 90 of the Constitution
provided for the position of the Investigator General appointed by the
President in consultation with the Judicial Service Commission. For one to
qualify for appointment as Investigator General he must be qualified for
appointment as Judge of the High Court and anyone who holds the office of
President, Vice-President, Minister, Deputy Minister or Member of
Parliament is not eligible to hold the office Investigator General.

If the person appointed to the position of Investigator General holds any

statutory office, he must resign from that office. Once appointed the
Investigator General enjoys a protected tenure similar to that enjoyed by
Judges of the High Court and Supreme Court. The Investigator General must
vacate his office upon attaining the age of 65. However, the President may
allow him to continue in office for such period as may be necessary to allow
him to complete his work. The Investigator General can only be removed
from office for incompetence or inability to perform the functions of his office,
whether the inability arises from infirmity of body or mind or from any other
cause.

If the question for the removal of the Commission for Investigation arises for
it to be investigated two-thirds of the Members of the National Assembly

92Parliamentary Debates col.184 (23 July-2 August 1974).

93Ibid. Column 190
94Ibid.
95 See Article 90 of the Constitution

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must pass a resolution to that effect. Once such a resolution has been passed
the Speaker of the National Assembly must send a copy of the resolution to
the Chief Justice who will appoint a tribunal to look into the possible removal
of the Investigator General.

The tribunal will investigate the matter and report to the President. The
President may suspend the Investigator General during the time of the
investigation. If the tribunal recommends that the Investigator General be
removed from office the President will carry out that recommendation.

Article 90 of the constitution concludes by providing that the powers,

functions and procedures of the Investigator General shall be provided for in
an Act of Parliament.

Commission for Investigations Act

In response to these constitutional changes, a new Act, the Commission for
Investigations Act was passed and came into force on 6 September 1991.
There are differences with the first Act, which came into force 16 August 1974.
The Act of 1974 provided for the powers, privileges and immunities of the
Commission. It also made other provisions to enable the Commission to
perform its functions. The Act did not provide for the creation of the office of
the Investigator General or the Commission itself. These were already
provided for under the Constitution.

Under the present arrangement, the Constitution only provides for the
existence of the Investigator General. The Commission itself is established
under section 4 of the Commission for Investigation Act. The Commission is
made of the Investigator General and three other members appointed by the
President. The Investigator General is appointed by the President in
consultations with the Judicial Service Commission. The National Assembly
must ratify the appointment of a Commissioner. The appointment will lapse,
unless ratified before the end of the sitting following the appointment.

A Commissioner can hold his office for a period of three years, but he is
eligible for re-appointment for another term of three years. The President has
the power to remove a Commissioner from his office for inability to perform
the functions of his office.

The reason for creating the position of Investigator General under the
Constitution and for the Commission for Investigation under an Act of
Parliament is difficult to establish. The Constitution does not refer to the
Commission for Investigations. Although it provides that the powers,
functions and procedures of the Investigator General shall be provided for in
an Act of Parliament, the Act does not address these issues. The Commission

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for Investigations Act refers to the functions, powers and immunities of the
Commission for Investigation as a body and not in the Investigator General as
person.

Jurisdiction of the Commission

The Commission has authority to investigate any complaint or allegations 96

made against any person in the service of the Republic (a civil servant), and a
person employed by a local authority.

By 1974, the Government was already a key player in the economy through
the nationalisation of various businesses previously in private hands and
creation of new parastatal companies. The Commission has authority to
investigate complaints or allegations against members and persons in the
service of the institutions or organisation whether established by an Act of
Parliament or otherwise in which the Government holds majority of shares or
exercises financial or administrative control.

The Commission had authority to investigate any person holding office with
the United National Independence Party. This was largely because the
distinction between the Party and Government was blurred. The Party was
supreme and all the institutions of government and all other institutions
under the control of the government were such to the party.

The Commission enjoys broad powers of investigations in any matter of

individual injustice or administrative abuse of power or authority. It may
involve corruption, tribalism, nepotism, intimidation and all other forms of
discrimination taken by or on behalf of any department or Ministry of
government, any statutory corporation set up entirely or partly out of public
funds voted by Parliament, including institutions of higher learning.

The power of investigations extends to any member of the public service,

security forces, organization within the Republic and any person for any
action taken in the exercise of the administrative functions of that
department, ministry, corporation, authority, organization.

The Commission is empowered to inquire into complaints notwithstanding

that there is provision in a written law to the effect that an act, or omission
shall be final or that no appeal shall lie in respect of such an act, or omission.
This is true even if there is a provision that no proceeding or decision shall be
challenged, reviewed, quashed or called into question.

96 See Section 4 of the Act.

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The Commission has powers to make orders, which have the same force as
orders made by the Courts of law. For example when someone is a witness he
is obliged to attend otherwise, he will suffer the same legal consequences, as
refusal to appear before a court of law would entail. 97

The Commission cannot, however, investigate any matter before the court for
determination (sub-judice) or a decision of the court or any matter relating to
the exercise of prerogative of mercy. 98

Although the field of investigations by the Commission is wide, there are

limitations. Even if the Commission can legally investigate a complaint, it will
not be investigated if the complainant or aggrieved person has or had the
opportunity of obtaining relief by way of representation to an executive
authority. The Commission will not hear a complaint where it is possible for
the aggrieved person to obtain a relief or redress by means of an application,
appeal, reference or review to or before a tribunal established by or under any
law. The Commission will not hear a complaint if one has a chance of
obtaining redress through the courts.

Notwithstanding these limitations the Commission may investigate the

complaint if it is satisfied that in the circumstances of the case it would not be
practical to expect the complainant to obtain redress through application or
representation to an executive authority, tribunal or through the courts. 99

The Commission may refuse to investigate a complaint where the complaint

is trivial, frivolous, vexatious or not made in good faith. The Commission
may decline to investigate a complaint where it is obvious that the inquiry
will be unnecessary, improper or just fruitless. The President cannot be a
subject of investigation by the Commission. 100

The Act of 1991 is a reproduction of the 1974 Act. The only difference of
significance in relation to the jurisdiction of the Commission is that the
Commission cannot investigate complaints against officers holding offices in a
political party. This is largely because of the return to a plural political
arrangement and that there is a distinction between the Government the
party.

Procedure Before the Commission

97See Section 12 of the Act of 1991.

98See Section 3(2) of the Act of 1991.
99Section 10.
100 Section 3.

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An individual or group of persons can make a complaint or allegation either
in writing or orally. 101 On receipt of the complaints, the Commission will
conduct, in respect of deserving cases; an inquiry aimed at ascertaining their
genuineness. The Act empowers the President, where he thinks fit, to direct
the Commission to conduct an investigation into any allegations of abuse of
authority by any public official. The Commission can also investigate any
allegation of maladministration or abuse of office or authority by any person
to whom the Act applies. However, the Commission cannot move on its own
motion. There must be allegations made for it to move into action.

The Commission is not intended to assume the role of a court of law, nor
indeed a supra-judicial body with power to review decisions of the courts of
law or those of judicial officers acting in their judicial capacity. The
Commission can only deal with complaints by individuals against
administrative acts, omissions and decisions of public officials in so far as they
affect the ordinary man.

If the result of the investigation is a finding that by reason of the public

official’s conduct, act, omission or decision, the complainant has suffered
injustice or hardship the Commission will make written recommendations to
the President suggesting the remedy to the injustice.

All investigations of the Commissions are held in camera. Although this was
strongly objected to during the debates in the National Assembly, those who
advocated for investigations to be open to the public lost.

In conducting its investigations the Commission is at liberty to obtain

evidence from any source. The rules of evidence do not apply. It is for the
Commission to get its evidence from any source or in any manner it deems
right. Representation before the Commission through a lawyer is not a right.
It is for the Commission to decide. 102

Submissions of the Report to the National Assembly

The Commission is expected to submit reports to the President and another
report by 31 December of every year, to the National Assembly containing
the summary of cases investigated and the action taken or recommended. The
Report submitted to the National Assembly cannot disclose the identity or
contain any statement, which may point to the identity of the person whose
conduct was the subject of investigation by the Commission.

Immunities of the Commission

101 See Section of the Act.

102Section 16(2)

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The work of the Commission cannot be challenged, reviewed quashed or
called into question in any court except where the Commission had no
jurisdiction to entertain the complaint. 103 Members of the Commission
cannot face any proceedings civil or criminal for anything done in good faith
in the course of performing their functions under the Act. No member of the
Commission can be called to give evidence in any court of law or tribunal in
respect of anything that has come to his knowledge while performing his
function under the Act.

Evaluation of the Commission

The Commission for investigation suffers from the same problems, which
other institutions, which are supposed to watch on the administration, suffer.
The creation of the Commission was not borne out of genuine concern for the
people and to promote good governance. It is one of the many institutions
created for purposes of public relations aimed at those outside the country.

The need for such institutions cannot be questioned or doubted. However, the
experience of Zambia has shown that creating an institution is one thing but
clothing the institution with the necessary powers to discharge its functions is
another. Although the Commission has been in existence for well over twenty
years, it is virtually unknown to the majority of the people. The reason is
partly due to failure by the Commission to sell itself to the people, and to
institutional constraints.

The institutional weaknesses have undermined the Commission for

Investigations. That the Commission cannot move on its own motion is a
serious drawback. Unless directed by the President, it can move only when an
allegation of abuse of authority has been made and the Commission is of the
view that it ought to be investigated.

The requirement that all investigations be held in camera is a serious

constraint on the Commission. It may be right to contend that in order to
protect complainants and encourage them to come forward with complaints,
it is necessary to hold investigations in camera. Based on the experience of the
last 25 years of the Commissions there is more to be gained by the
Commission holding its investigations in public.
Its reports to the President and the National Assembly are of little value as
they are for the consumption of a very small group of people and do not
receive coverage through the media.

103See Section 23.

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The provision that the commission will not investigate a complaint where the
complainant can obtain remedy by addressing his complainant to an
administrative authority, tribunal or the court is unrealistic for an institution
that is not known at all known. The reason behind the creation of the
Commission is to provide people an institution with power to deal with
complaints, which cannot be entertained by the courts or any other
institution, in the most expedient and inexpensive way. Requiring people to
pursue administrative channels or tribunal or courts defeats the very raison
d’être of the Commission.

The major weakness of the commission it has no power to order remedies

once the substance of the complaint has been established. The most the
Commission can do is to submit a report to the President together with the
conclusions and recommendations. There is no obligation on the part of the
President to act on the recommendations of the Commission. Once the report
has been submitted to him, he may take such decision, as he may think fit.

Recommendations

In its current form, the Commission is not of value. Anyone serious cannot
create an institution with power to investigate wrongs but lack the power to
take the appropriate remedial measures. Given the country’s experience in
limiting government the need for such an institution, and many others cannot
be over-emphasized. There is need for a robust Commission for
Investigations with power to take such remedial measures as may be
necessary in the circumstances of the case. 104

The investigation must be made in public unless the nature of the

complainant reveals that doing so would endanger the complainant or would
not be in the public interest. The reports of the Commission should be
available to the public.

The Commission should hear any complaint that has merit. The fact that the
complaint can be entertained through the courts of law, by an executive
authority, or on appeal before a tribunal established under some other Act of
Parliament should not hinder one from presenting his case to the

104Recent trends show that Ombudsmen being created have powers to initiate such
investigations, as they may find suitable. In South Africa, the Ombudsman is known as the
Public Protector. The institution is considered as one of those institutions necessary for the
sustenance of Constitutional Democracy. He has the power to investigate any conduct in
state affairs, or in public administration in any sphere in government, that is alleged or
suspected to be improper or to result in any impropriety or prejudice. He has the power to
take appropriate remedial action. See Article 182 of the South African Constitution.

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Commission. The only ground for the Commission to decline to investigate a
complaint should lack of merit.

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