Northrise University

30029 Kitwe - Ndola Dual Carriage Highway. P.O Box 240271, Ndola, Zambia.

ASSIGNMENT COVER SHEET

Student ID: 1905504

Student Name: Patrick Chibabula

Course Code: LAW210

Course Title: Business Law

Instructor Name: Mr. Joy Mulambia

Essay/Assignment Title: What is Delegated Legislation and Describe Parliamentary Controls on Delegated
Legislation

Due Date: 3rd September, 2020

Declaration:
I acknowledge that submitting this document binds me to the following:
To the best of my knowledge, I assert that no part of this assignment has been copied from the work of anyone else, be it another stude
or any other author or from any source except where due credit is given in the text below, or has been written for me by someone else
except where the relevant instructors and authorities have explicitly permitted such collaboration .

SIGNATURE: P. Chibabula

Instructor’s Comments:

GRADE [ ]
Delegated Legislation and Parliamentary Controls on Delegated Legislation 2

This academic paper discusses delegated legislation and parliamentary controls on delegated

legislation in Zambia. The scholastic data will build up from the definition of delegated

legislation and extend the exploitation to the following issues; form of delegated legislation, need

for delegated legislation, delegated legislation in Zambia, Parliamentary controls of delegated

legislation in Zambia and finally conclusion and recommendations.

Delegated Legislation

The term “delegated legislation” covers every exercise of power to legislate conferred by

an act of parliament and it is not the term of art. Delegated legislation is however at times

referred to as “subordinate law”. D.M. Walker (1997), defines delegated legislation as legislation

made not by Parliament, but by persons or bodies on whom Parliament has delegated power to

legislate on specified subjects and the aim being that the resultant instrument should be of

legislative and not executive force. This power is commonly delegated on ministers of state,

public corporations and boards, local authorities, courts, and other bodies and take the form of

statutory instruments.

Statutory Instruments

Under section 3 of the Interpretation and General Provisions Act (CAP 2) of the laws of

Zambia, a statutory instrument is “any proclamation, regulation, order, rule, notice or other

instruments (not being an act of parliament) of legislative as distinct from and executive

character”. From this definition, it is clear that an instrument may both be legislative and

executive in nature. Thus, if an instrument made in the exercise of delegated powers directs or

forbids the doing of a particular thing, the result of a breach thereof is, in the absence of

provision to the contrary, the same as if prohibition had been in the enabling statute itself.
Delegated Legislation and Parliamentary Controls on Delegated Legislation 3

To the same effect, Lord Alverstone, CJ in Willingale v Norris (1909) 1 K.B 57 at page

63, held that a penalty imposed by one statute for breach of any of the provisions was applicable

to breach of regulations made under an earlier statute with which it was to be construed as one.

Need for Delegated Legislation

Generally, delegating legislation is both cost and time serving, given the social demands

of our time and that parliament has functions to run for example, control functions, budget

functions and the long procedure of converting bills to laws, parliament does not have enough

time to make the demanded laws. The practicality of this justification can be found in the

ministry of finance and national planning – statutory instrument No. 16 of 2002. The instrument,

because of its nature and urgency with which it needed to be implemented did not pass through

the parliamentary procedure, thereby saving time and increasing government efficiency.

Delegated Legislation in Zambia

In the face of limited time, the Zambian parliament has had the issue of increased

legislative work. For this particular reason, parliament has greatly invested in the reduction of

pressure through delegation of power. In doing so, the house has made use and concerned itself

with laying down bare principles and leaving matters of detail to subordinate authority by giving

them the authority to add to a given Act.

For example, section 18 of the Explosive Act, Cap 115 of the laws of Zambia provides

that “18(1) the minister may, by statutory instrument, make regulations for the better carrying

into effect this Act.” Thus, the principle of delegating legislative power to other authorities to

make statutory instruments is contained in Article 80(1) of the Constitution of Zambia, which

states; “Nothing in Article 62 shall prevent Parliament from conferring on any person or

authority power to make statutory instruments.”

Delegated Legislation and Parliamentary Controls on Delegated Legislation 4

The provision above primarily supports the statement that, the duties of enacting

legislation in Zambia is a function of Parliament. Article 62 of the constitution vests the

“legislative Power of the Republic” in the parliament of Zambia consisting of the president and a

National Assembly. This power, is recognized, exercised by bills passed by the national

assembly and assented to by the president, after which they become ‘Acts’. From the discussion

above, it can be concluded that delegated legislation is always exercised through statutory

instruments.

Other Instruments

Making reference to Article 139(1) of the constitution of Zambia, different statutes may

refer to delegated legislation made under them by different names such as by-laws. Which are

the rules made by some authority subordinate to the legislature for regulation or management of

a certain item. These by-laws are found in section 76 of the Local Government Act which

confers power to council to make by-laws.

Another example of delegated legislation in Zambia is found in circulars. Which are

communications that confer power to impose duties and give it the force of law. A good example

of a circular can be found under the Ministry of Local Government and Housing Circular No. 2

of 2nd may 1996 made in conformity to section 67(1) of the Local Government Act No. 22 of

1991 which provides that “…67(1) Subject to the provisions of this section, a council may sell,

let or otherwise dispose of any property of the council.”

A further example of the force of law that statutory instruments may possess may be

found in the Preservation of Public Security Act, CAP 112 of the laws of Zambia in which

section 5(1) provides that “any regulation made under this Act may be made to apply to Zambia

or to any part thereof, and to any person or class of persons or to the public generally”.
Delegated Legislation and Parliamentary Controls on Delegated Legislation 5

Disadvantages of Delegated Legislation

On authority of provisions such as the foregone, delegated legislation has

been responsible for taking away citizen's liberties, property and mostly their enshrined

human rights. For instance, in earlier cases of Joyce Banda v Attorney General (1978) ZR

at page 2358; in Re Seegers (1976) ZR at page 11759 and another case of Valentine

Shula  Musakanya v The Attorney General (1981) ZR at page 188;“o the President

is empowered by the law to detain people for preservation of public security. The regulations

33(1) and 33(6) were used by the president and his delegates to imprison people, take away their

property and for many other purposes contrary to the provisions of the constitution. 

Parliamentary Controls on Delegated Legislation

In the Zambian set up and by the provisions of the Interpretation and General Provisions

Act, No. 6 Cap 2 of the laws of Zambia, all instruments that result from delegated legislation,

except the rules of the court have to be laid before Parliament. This section acts as an authority

for Parliamentary supervision and scrutiny of subordinate legislation. In particular, section 22(1)

and (2) of the Act. 

As a result of the provisions of section 22 of the Interpretation and General Provisions

Act, Parliament on authority of Standing Order No. 143(2) of the laws put in place a Committee

on Delegated Legislation. The Standing Order Provides that the Committee shall scrutinize and

report to the House, through Mr. Speaker, whether the powers to make orders, regulations, rules,

sub rules, and by-laws delegated by Parliament are being properly exercised by any person or

authority within such delegation." 

If the Committee is further of the opinion that a Statutory Instrument should be revoked

wholly or in part or should be amended in any respect, it reports that opinion and the ground
Delegated Legislation and Parliamentary Controls on Delegated Legislation 6

thereof to the House, and any such debate is subject to a motion in the National Assembly which,

if carried, would have the effect of the House. 

The Committee on its first session of the ninth National Assembly appointment on 13th,

March 2002 scrutinized the Ministry of Tourism-Statutory Instrument No. 78 of 2001- The

Mulobezi Site and Ancillary Railway Lines (Provisional Monument) (Declaration) Order, 2001

and concluded in its observation and recommendations. 

“Your Committee observed that, under the enabling Act, The National Heritage

Conservation Commission Act, section 27, which gives power to the Minister of Tourism to

declare a site a National Monument, requires that notice be issued to interested parties to afford

them an opportunity to lodge objections, if any. The explanatory memoranda lacked this

information.”. The committee thus ensures that relevant guidelines for making statutory

instruments as provided in the enabling Act are followed. 

Conclusion.

in summary, it is inevitable that the legislature may find it necessary to delegate

power to the executive or other agencies to make rules having a

legislative character. In doing so, it has been observed that at no time, or in no event shall

fundamental human rights be abrogated by means of delegated legislation and that it

must be insured that the extent, purpose and procedure appropriate to delegated

legislation are observed; it is thus subject to various methods of control. 

Delegated Legislation and Parliamentary Controls on Delegated Legislation 7