The Concept of Separation of Powers in Zambian Constitutional Law

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With the support of relevant case law and or statute(s), critically outline the legal connection between constitutional law and administrative law in Zambia.

Administrative law is law that governs those who administer any part of governmental activities.

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Administrative law is not substantive law produced by the agencies, and it is not the substantive law created by the legislative bodies or court 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 alike.

Constitutional and administrative laws are the areas of law which establish and regulate the institutions of government within states. They also encompass the internal governance of supranational legal orders. They are increasingly concerned with the relationship between internal and external legal norms and the interaction between multiple layers of government within and beyond states.

Both the constitutional and administrative law is a part of the public law in the modern State. It is logically impossible to distinguish between administrative law from constitutional law and all attempts to do so are artificial On one hand administrative law deals with the organization, function, powers and duties of administrative authorities while constitutional law deals with the general principles relating to the organization and powers of the various organs of the state and their mutual relationships and relationship of these organs with the individuals. Constitutional law is the most important source of administrative law in Zambia. It is the origin and soul of administrative law. In other words, we can say that constitutional law is the mother of Administrative law. So, without a constitution, administrative law cannot perform its functions and work properly because it totally depends on the soul of our country’s constitutional law. Constitutional law and administrative law are both important legislations that govern the various affairs of the State.

There is a close connection between a country’s constitutional order, the principles and theories underlying the order and framework of administrative law. There are a number of concepts in constitutional law which has an impact on administrative law. The concept of separation of powers is one cardinal aspect that will help escape the arbitrary rule. It helps avoid a situation that will have only one organ performing all the duties. This concept will help us have a government that permits checks and balances. This concept and the concept of rule of law are in some way synonymous, they both influence checks and balances in the various administrative organs of government. The tasks are well shared among the three organs, the concept of separation of powers was well defined by Montesquieu to mean the procedure and norms to avoid arbitrary leadership, and He further stated that the three organs must be independent of each other. The most important concepts are Supremacy of the constitution. The three ideas affect how power vested in various administrative agencies and officers is exercised. The concepts define the limits of power and authority and ensure that those entrusted with the responsibility to manage public affairs of the people do so within the confines of the law.

Article 1 (3) of the constitution declares that the constitution is the supreme law of Zambia and if any other law is inconsistent with it, that other law to the extent of the inconsistency is void. This position is re-enforced by Article 1 (4) of the constitution which provides that the constitution shall bind all persons in the Republic of Zambia and all legislative, executive and judicial organs of the state. This provision was introduced by the drafters of the constitution in order to avoid any doubt as to the supreme position occupied by the constitution vis a vis other institutions of government.The implications of these provisions are serious form the administrative law stand point in that no person or institution in Zambia is above the constitution.

For example, the case of CHRISTINE MULUNDIKAKA & 7 OTHER V A/G The argument was based on the provisions of section 5 (4) of the Public Order Act which states that any person intending to call for a public meeting, gathering or procession is required to notify or obtain permission from the police, seven days before the actual day. However, Christine Mulundika and seven others applied for permission from the police but were denied, and they went ahead and were arrested by the police. She applied to the court to declare section 5 of the Public Order Act null and void. That it was inconsistent with Article 21 of the constitution which states that “a person shall not be hindered the enjoyment of his freedom of assembly and association. The court held that the action by the police was unconstitutional. That section 5 (4) of the Public Order Act was ultra vires to Article 21 of the constitution.

Constitutional law’s manifestations in administrative contexts canusefully be divided into three categories. First, ordinary administrativelaw provides mechanisms that are either constitutionally mandated orthat avoid constitutional violations. Second, constitutional norms andconcerns underlie and are evident in a number of administrative law doc-trines. Third, both courts and the political branches sometimes use doc-trinal mechanisms and substantive requirements to encourage agenciesto take constitutional concerns seriously, with the result that constitutional concerns influence the shape of agency decisionmaking.

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 constitution since independence. The concept calls for the division of the authority of government into three main organs i.e. the judiciary, executive and the legislature. In the modern application of the consequence of the concept is not that there must be a rigid three-fold division of classification of power but he value is in the emphasis in the checks and balance which are essential to prevent anonymous powers vested in the rulers and this is important from the administrative law standpoint. In practice, however, it has been seen that just like any country in the world, the doctrine of separation of powers has not been adhered to. For example, in Bright Mwape and Fred M’membe v Attorney-General15, Parliament, wrongly, assumed the powers of the judicially when it imprisoned the two journalist applicants for what it termed ‘Contempt of Parliament’. It was held that Parliament, in a country with constitutional supremacy had no such power under any law as this power was vested in the courts

The most obvious point of contact between ordinary administrative law and constitutional law is that ordinary administrative constraints on executive officials are sometimes constitutionally required. Perhaps the classic example is provisions for administrative hearings, which are often adopted to satisfy procedural due process’s requirements of notice and some opportunity to be heard. For example Wilkinson v. Austin, 545 U.S. 209, 216–17, 225–30 (2005) (detailing administrative system used for classifying prisoners for supermax, which included provisions for notice, hearing, and internal review, and concluding that this system, devised on the eve of trial, satisfied procedural due process requirements); Another instance involves the First Amendment. The Court has repeatedly held that administrative licensing systems or other forms of prior restraint based upon the content of speech must contain objective standards to circumscribe official discretion in order to be constitutional, as well as procedural safeguards such as the right to speedy judicial review of any administrative license denial. Another case was Freedman v. Maryland, 380 U.S. 51, 58–59 (1965)(requiring procedural safeguards for film licensing system to be constitutional, including prompt access to court to review license denial). Most recently, the Court’s decisions on parade licensing have underscored the importance of officials’ being required to explain their decisions, a typically administrative requirement.26In other contexts, specific administrative mechanisms are not constitutionally mandated but suffice to avoid constitutional violations.

Constitutional law is the most important source of administrative law in Zambia. It is the origin and soul of administrative law. In other words, we can say that constitutional law is the mother of Administrative law. So, without a constitution, administrative law cannot perform its functions and work properly because it totally depends on the soul of our country’s constitutional law. Constitutional law and administrative law are both important legislations that govern the various affairs of the State.

Law is a set of rules recognized as commanding or forbidding certain actions which are intended to regulate the conduct of all persons within a particular State and are enforceable by the courts of that State. Judicial control through review is only available to test decisions made by public bodies.

Judicial review is the power of the court, in appropriate cases before it, to declare a governmental measure either contrary to or in accordance with the constitution or other governing law, with the effect of rendering the measure invalid and void or vindicating and so putting it beyond challenge in the future.

Judicial review is not a criminal matter and is not a violation of fundamental rights. Subordinate and local Courts have no jurisdiction to hear matters of judicial review. You also cannot go to the Supreme Court because it is not a court of first instance. In view of the above then, it is apparent that only the High Court has jurisdiction to entertain judicial review proceedings. The Zambian High Court rules are not exhaustive but they provide a basic foundation for commencing judicial review proceedings. Judicial review therefore is a unique claim because it is neither civil nor criminal.

The measure or Act of Parliament results in an organ of government wrongly assuming the functions or taking the powers of another organ of government. Judicial review is an example of the functioning of separation of powers in a modern governmental system (where the judiciary is one of three branches of government). This principle is interpreted differently in different jurisdictions, which also have differing views on the different hierarchy of governmental norms

In Sondashi V Miyanda (Sued as National Secretary of the Movement for Multi-party Democracy) 44 it was held that the respondent, being a political party and its concerns being those of a private law, judicial review could not lie against a political party. The appellant was entitled to come to court, but adopted a wrong procedure, it was held: 'The proper course would have been to have issued a writ claiming a declaration and injunction, not by way of application for judicial review'.

Judicial review therefore is a very unique action in the sense that Before you move the court, there has to be a decision by a public officer and the source of that decision must come from the constitution, Statutory Instrument, and so on, That decision taken by a public officer must have an effect on you i.e. the decision must deprive you of some right or some benefit. Of late courts have also allowed judicial review to protect legitimate expectation.

The circumstances that that give rise to judicial Review are as follow: The measure or Act of Parliament violates Human Rights. The case of Fred Membe, Lucy Sichone & Bright Mwape V The Speaker Of The National Assembly Where the court held that national assembly’s preservation of its privileges did not extend toordering the arrest and detention of individuals. This is because such powers are preserved for the courts of law and therefore the Act of parliament was declared null and void as it was inconsistent with the constitution.

The measure of government or act of parliament is in infringement of the Constitution or other relevant pieces of legislation. 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 and sentiments of the executive, in reality, the legislature has become more of an extension of the executive. Members of Parliament have greater allegiance to their party and not to parliament as an institution.

When the measure or act results in an unauthorized delegation or transfer of power or authority to another organ of government. In Zambia, parliament, national assembly acting with the president legislates by means of Acts of parliament. Parliament may confer 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 or the legislative powers being exercised in their original jurisdiction.

In the case of Nyampala Safaries (Z) Limited and Others v Zambia Wildlife Authority and Others, 40 the Supreme Court of Zambia restated the basic principles underlying the process of judicial review viz the remedy of judicial review is concerned, not with the merits of the decision, but with the decision making process itself. In the above mentioned case it was obvious that the circumstance will move the high court to seek relief if one alleges that decision of an administrator or public officer has disadvantaged them. The purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and it is not part of that purpose to substitute the opinion of the judiciary or the individual judges for that of the authority constituted by law to decide the matter in question.

A decision of an inferior court or public authority may be quashed (by an order of certiorari) where that court or authority acted Without jurisdiction or Exceeded its jurisdiction or The decision is unreasonable in the Wednesbury sense, namely that it was a decision which no person or body of persons properly directing itself on the relevant law and acting reasonably, could have reached. The general theory of judicial control is simple. It is commonly called the doctrine of ultra vires, Administrative power derives from statute. The statute gives power for certain purposes only, or subject to some special procedure, or with some other kind of limits. The limits are to be found not only in the statute itself, but in the general principles of construction which the courts apply, provided, of course, that the statute has not expressly or implied modified it then follows that any act outside the defined limits is an act unjustified by law and hence ultra vires. If it is also a wrongful act by the ordinary law, it is illegal, and the ordinary remedies lie. Ultra vires refers to action which is outside or in excess of power of decision making bodies, while judges continue to use the term ultra, it is nowadays too limited a term, to encompass the whole ambit of judicial review, it may be preferable. Therefore, to regard judicial review as control of discretion and the regulation of the decision making process by the courts.

In this case, former Tourism minister William Harrington and Robert Chimambo are seeking an order in the High Court for the purpose of quashing Justice Musonda’s decision. Harrington seeks judicial review on Kapata’s acquisition of land in reserve forest. Hartington and Chimambo stated in their originating notice of motion for an order of certiorari and mandamus filed on March 5, 2020 in the Lusaka High Court principal registry, that on August 19, 2019 they wrote to the chief justice requesting her to establish a Tribunal to investigate alleged breaches by Kapata

The judiciary in any country is central to the protection of the rule of law and the protection of human rights and freedoms. It is also an essential check and balance on the other branches of government, ensuring that laws of Parliament and acts of the executive comply with the constitution and the rule of law. In conclusion,e Constitutional judicial review exists in several forms. This is essential to ensure that the organs of government carry out their functions in accordance with the law and do not exceed the power given to them.

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