INTRODUCTION

The essence of this paper is to discuss on the main sources of administrative law and in
Zambia. It will by all means try to explain what each source of administrative law really is and
give its significance to the law of administration.

Source means the origin of the material content of rule or the formal stamp of authority as
law.1 With the view to control administrative operation of the government, it is necessary to
know the sources of administrative powers. In common law countries like Zambia, there is no
droit administratiff in the sense of there being a different or separate system, and administrative
law is a part of the ‘ordinary law’ of the land.2

In Zambia, administrative Law forms part of the ordinary law of the land. Therefore, in this
branch of public law the main concern is with the Constitution, statutes, subordinate legislation
and case law/common law. However, administrative law is very closely allied to the study of the
government. Ideas about government change and have an influence on law. It is therefore, that
administrative law is concerned with the study of documents, orders and decisions which are not
true sources of law. The main sources of administrative law are as follows as explained;

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. 3 For instance, Sangwa
talks of Article 30 of the Constitution 4 which confers power upon the President to declare, after
consultations with Cabinet, that a state of public emergency exists in Zambia. He explains it
saying that, the said provision puts a limitation on the exercise of this power by the President. It
does so because, according to him with regards to how the Article is interpreted is that 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

1
www.quora.com/ sources of administrative law
2
https://lawsikho.com/course/diploma-companies-act-corporate-governance
3
Sangwa J.P, L.341; administrative law. P: university of Zambia
4
The 1996 constitution of the laws of Zambia
purposes is the concern of administrative law. In that light the constitution becomes a source of
law on the part of the executive as an administration for it is headed by the president.5

Zambia has a written Constitution which is the supreme law of the land. Being the
grundnorm of the legal system of the country, its conditions overrides all legislative and
administrative actions.6 Besides providing for functional organization and consequential growth
in administrative process, the Constitution has also provided for an elaborate control mechanism.
Take for instance the part where the constitution of Zambia says that, “Every person has the right
and duty to defend this Constitution and resist or prevent a person from overthrowing,
suspending or illegally abrogating this Constitution.”7 And that when such happens such a matter
relating shall be heard by the Constitutional Court.8

Statutes: Very often statutes, which create public institutions like the Anti corruption
commission Act, citizens economic empowerment Act, Law association of Zambia Act etc.
prescribe their powers and how they are to be exercised. Take for instance the electoral
commission of Zambia which is an administrative body whose functions are provided for in its
Act one of which is to make sure that elections are conducted in a free and a fair manner. 9 That
in its self is an administrative law and if the opposite is done due to selfish desires then the
statute will be brought in to see whether or not the conduct of the administrative body is correct
according to the statute. It is therefore, the concern of administrative law to ensure that such
powers are used for the realization of the policy objectives on which in the statute is founded and
not any other goals.10

Common Law: The common law is creation of the courts. Following the concept of
staredecisis, courts will decide a case today in the same way they decided in other cases in the
past if comparable factual situations are involving. 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. In the case of Christine Mulundika and 7 others v the people 11 where the facts
in issue are were the appellant challenged the constitutionality of certain provisions of the Public
5
Article 91 (2) of the 2016 constitution (Amendment) Act No. 2 of the laws of Zambia.
6
Article 1(1) of the 2016 constitution (Amendment) Act No. 2 of the laws of Zambia.
7
Article 2 of the constitution amendment Act No. 2 of 2016 of the laws of Zambia
8
Article 1(5) of the 2016 constitution (Amendment) Act No. 2 of the laws of Zambia.
9
Section 4(2)(a) of the Electoral Commission of Zambia Act, No. 25 of 2016.
10
Sangwa J.P, (2002) L.341; administrative law. P: university of Zambia
11
(1995) S.J.
Order Act Cap 104, especially section 5(4).12 The appellants challenge followed on the
fundamental freedoms and rights guaranteed by articles 20 and 21 of the Constitution. 13 A
subsidiary challenge related to the exemption of certain office-holders from the need to obtain a
permit. This provision that was challenged is an administrative law for it is enforced by an
administrative body which is the ministry of home affairs working with the police service. It was
held in this case that the law unconstitutional so was the actions of the police stopping an
assembly where people were exercising their constitutional right and this case is now law termed
common law. In the case of Laura Miti, Chama Fumba and 4 others v the people 14 in this
case they were charged with the offence of “disobeying lawful orders” contrary to clause 127. 15
However, Magistrate Mwaka Mikalile ruled that citizens have the right to assemble. Magistrate
Mikalile stated that the Police must not prevent the citizens unlawfully. 16 And, this was based on
the case aforementioned.

The 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. 17 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 each generation to interpret 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 Labor Relations Act has created the Industrial Relations Court. In order to ensure
12
Penal code Chapter 87 of the laws of Zambia
13
The 1996 constitution of Zambia
14
(2017) www.Zambianeye.com
15
Penal code Chapter 87 of the laws of Zambia
16
www.Lusakatimes.com
17
Sangwa J.P, L.341; administrative law Pg. 4. P: university of Zambia
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.18

A subsidiary legislation or delegated legislation made pursuant to the Act of parliament,

thus conferring the said power. However, in a country with an unwritten constitution, such as
Great Britain, some government functions or power may be based on constitutional conventions,
practice or even judicial precedents.19

Incidental power: This is a power is not expressly granted, but necessary for the
accomplishment of the express powers. It is the power to do things which are auxiliary, related,
subordinate, incidental to or providing support to express duties and functions, and are necessary
to achieve the purpose of the express power, even though such incidental power is not expressly
granted by statute. The law looks at the reasonableness of the act done pursuant to the exercising
the power and determines whether such power could be regarded as related, incidental or
ancillary to the express power or not.20

CONCLUSION

To conclude this paper, it can be understood that there are so many sources of administrative
law and this depends on each country and the system they apply. In Zambia, there many sources
of administrative law and these include as alluded to in this paper as customary law, constitution,
judicial precedence, subsidiary legislation, incidental power and instruments. And what these
sources have in common is that they are used as limits to how administration powers are applied.

18
Sangwa J.P, L.341; administrative law. P: university of Zambia
19
Anwo J.O & Sabitiyu L.B, (2012) Principles of administrative law. Pg.12 para. 5. Published by National Open
University of Nigeria.
20
Anwo J.O & Sabitiyu L.B, (2012) Principles of administrative law. Pg.12 para. 6. Published by National Open
University of Nigeria.
BIBLIOGRAPHY

BOOKS

Anwo J.O & Sabitiyu L.B, (2012) Principles of administrative law. Published by National Open
University of Nigeria.

Sangwa J.P, L.341; administrative law. P: university of Zambia

CASES

christine mulundika and 7 others v the people (1995) S.J.

Laura Miti, Chama Fumba and 4 others v the people (2017) www.Zambianeye.com

STATUTES

Penal code Chapter 87 of the laws of Zambia

The 1996 constitution of Zambia

The 2016 constitution (Amendment) Act No. 2 of the laws of Zambia.

The Electoral Commission of Zambia Act, No. 25 of 2016.

OTHER SOURCES

www.Zambianeye.com

www.Lusakatimes.com

www.quora.com/ sources of administrative law

https://lawsikho.com/course/diploma-companies-act-corporate-governance
 ROCKVIEW
UNIVERSITY

SCHOOL OF LAW

STUDENT: RICHARD MUTAKILA

STUDENT ID: 18400663
PROGRAMME: BARCHELORS OF LAW
COURSE: ADMINISTRATIVE LAW
LECTURER: MR. MBEWE
INTAKE: JUNE I8
YEAR: TWO
TERM: TWO
Assignment No. ONE
DEAD LINE: 7TH, NOVEMBER, 2019.
QUESTION: sources of administrative law are the materials
through which administrative law is derived in Zambia." Discuss