SUPREMACY OF THE CONSTITUTION

Supremacy of the constitution is basically an Administrative and Constitutional law concept

that places the constitution above the three organs of government. That is the constitution is
above the three organs of government, i.e. the Executive, the Legislature and the Judiciary are
below the constitution. This is so stated by the constitution itself in Article 1(1)(2)(3)(4) which
provides as follows:

1. (1) This Constitution is the supreme law of the Republic of Zambia and any other written
law, customary law and customary practice that is inconsistent with its provisions is void to the
extent of the inconsistency.
(2) An act or omission that contravenes this Constitution is illegal.
(3) This Constitution shall bind all persons in Zambia, State organs and State
institutions.
(4) The validity or legality of this Constitution is not subject to challenge by or before
a State organ or other forum1

It is important to state that the constitution is not above the people of Zambia. This is
because the people of Zambia are “sovereign”, that is the people are above the
constitution. Sovereignty of the people simply means that the people are sovereign, that
is the people are the ones that determine how they should be governed. This they do so
by them crafting a constitution to determining how they should be governed. The
constitution itself states the fact that the people are the sovereign authority. This is
provided for in Article 5(1)(2)(3) of the constitution2 which provides thus:

5. (1) Sovereign authority vests in the people of Zambia, which may be exercised directly or
through elected or appointed representatives or institutions.
(2) Power that is not conferred by or under this Constitution on any State organ, State
institution, State officer, Constitutional office holder or other institution or person is
reserved for the people.
(3) The people of Zambia shall exercise their reserved power through a referendum,
as prescribed.

It therefore follows that the sovereignty of the people and the supremacy of the constitution
over all organs of the state can be demonstrated as follows:

1
The Constitution of Zambia (Amendment) Act No. 2 of 2016
2
Ibid.,
 The People - Sovereign Authority as per Article 5

Constitution – Supreme against all the organs

of Government as per Article 1

Executive, Legislature, Judiciary – These organs

are
subordinate to
the Constitution
as per Article 1
As has been demonstrated above Article 1 of the constitution3 declares that ‘the constitution is
the supreme law of Zambia and that any other written law, customary law and customary
practice that is inconsistent with the constitution provision is void to the extent of the
inconsistency.
Furthermore, Article 1(2) provides that ‘an act or omission that contravenes the constitution is
illegal.’ While Article 1(3) provides that ‘the constitution shall bind all persons in Zambia,

state organs and state institutions.’ And sub Article 1(4) provides that ‘the validity or legality
of this
Constitution is not subject to challenge by or before a State organ or other forum.’

These stated provisions in the constitution where introduced by the drafters of the constitution
in order to avoid any doubt as to the supreme position occupied by the constitution visa vis
other institutions of government. The implication of these provisions is serious from the
administrative law stand point in that no person or institution in Zambia is above the
constitution. Parliament whom the legislative authority of the state is vested cannot purport to

3
See Article 1 (I) (2) (3) of the constitution of Zambia (Amendment) no. 2 of 2016
have or exercise authority or enact legislation which violates the constitution. In addition,
Parliament cannot do anything that is not permitted by constitution. Whatever Parliament does
must be within the limits set by the constitution. The same applies to the Executive wing of
government. This is so in that the President and his members of cabinet and other public
officers should do only that which is permitted by the constitution.
The president cannot do or take any action which cannot be justified within the frame work of
the constitution. The same is the case for Ministers in the exercise of power conferred on them
by Acts of Parliament. For example, Ministers have the power to issue instruments with legal
force such as statutory instruments. The position of any statutory instruments with legal force
is that it must comply with the empowering legislation that is the Act of parliament and with
the constitution. Where provisions of statutory instruments are in conflict with enabling law,
then such instrument is to be void to the extent of the inconsistence, with the relevant provision
of the empowering Act of parliament. Similarly, where a statutory instrument is inconsistent
with the constitution, that instrument is void to the extent that is inconsistent with the
constitution. The same is also true for the judiciary. Article 122 of the constitution provides
that in the exercise of the judicial authority, the judicially shall be subject only to the
constitution and the law and shall not be subject to the control or direction of a person or an
authority. This is in effect does not entail that judges of the superior courts and the interior
courts are independent from the constitution and the law. The article provides that they are
subject only to the constitution and the law. This means that they are bound to operate within
the constitution and law as established from time to time. Law in this regard means an Act of
Parliament, Statutory instrument etc. This is true even for the Supreme Court. It is bound to
follow its decision unless in situations where it will be illegal or unfair to follow its earlier
decision, then it can go against its own earlier decision.
Similarly, Article 133 of the constitution establishes the high court and article 134 confers on
it unlimited and original jurisdiction to hear and determine any case, civil or criminal under
any law except for matters reserved for the constitutional court under article 128. The exercise
of that jurisdiction is not limitless. It has to be exercised within the constitution and the law
and in accordance with the rules and the procedures which have been developed overtime.

The said Article 122 of the constitution that provides for judicial independence provides thus:
 122. (1) In the exercise of the judicial authority, the Judiciary shall be subject only to this
Constitution and the law and not be subject to the control or direction of a person or an authority.
System of court 54 No. 2 of 2016] Constitution of Zambia (Amendment) Ranking of Supreme
and Constitutional Courts Functional independence of Judiciary
(2) A person and a person holding a public office shall not interfere with the performance of a
judicial function by a judge or judicial officer.
(3) The Judiciary shall not, in the performance of its administrative functions and management
of its financial affairs, be subject to the control or direction of a person or an authority. (4) A
person and a person holding a public office shall protect the independence, dignity and
effectiveness of the Judiciary.
(5) The office of a judge or judicial officer shall not be abolished while there is a substantive
holder of the office.

The following case law demonstrates the supremacy of the constitution over each organ
of Government as demonstrated above:
The case of Bedford Henry Chilufya Kango’mbe v The Attorney General,4
demonstrates the Supremacy of the constitution over the Executive. The fact of this case
were as follows:

The applicant, a schoolteacher, was dismissed from the Teaching Service. He applied to the
High Court to have the dismissal invalidated.

Held: (i) The power to appoint, confirm or exercise disciplinary control over persons in the
Teaching Service or to remove such persons from office is vested in the President. But the
President's position in this connection shall be exercised by the Teaching Service Commission
in the name of and on behalf of the President. The President can himself exercise his powers
only if he requires expressly or by implication, the Teaching Service Commission to refer to
him any matter which is actually under consideration by the Commission.

(ii)Sections 115A and 115B of the Constitution show that the exercise of disciplinary powers is
in the alternative, not concurrent or cumulative. In other words, either the President exercises
the said powers when the matter is still under consideration by the Teaching Service
Commission or the Teaching Service Commission itself exercises them in the name of and on
behalf of the President. There is no power for the President to set aside a decision of the
Teaching Service Commission made under section 115B (2) of the Constitution or vice versa.

The case of Banda v The People5 demonstrates the supremacy of the constitution over the
Legislature. The facts of the case were as follows:

The brief facts of the case are that on 14 November 1998 at about midnight, police were
patrolling Mulamba Street in Libala Stage 4B in their motor vehicle, a Jetta. They met and
challenged the appellant, who was in company of his friends to stop. [The appellants and his

4
[1972] HP/511
5
(2002) AHRLR 260 (ZaHC 1999)
 friends] did not stop, but ran away in different directions. [The police gave] chase and the
appellant was apprehended. In the process of executing an arrest, the appellant became violent
and broke the rear window of the police vehicle.

The appellant pleaded guilty to, and was convicted of malicious damage to property. The
learned magistrate sentenced him to one-month simple imprisonment which he suspended for
a period of twelve months. In addition, the learned magistrate ordered ten strokes of a cane. It
is this latter part of the sentence against which the appellant appealed.

The High Court presided over by Judge Esau Chulu, struck down the then provisions of section
23(c) of the Penal Code Act Cap 87 of the laws of Zambia, which provided for corporal
punishment as one form of punishment among others that a court could impose. Judge Chulu
reasoned that section 24 (c) was unconstitutional because it offended Article 15 of the
Constitution of Zambia which provides as follows: ‘A person shall not be subject to torture or
to inhumane or degrading punishment or like treatment.’

See also the case of Christine Mulundika and 7 others v the People,6which also
demonstrates the supremacy of the constitution over the Legislature. In this case, the supreme
court declared as null and void section 5 (4) of the public order act, that allowed the police to
give or deny permits to individual that intended to hold a public gathering. The Supreme Court
held that section 5 (4) of the Public Order Act was unconstitutional as it contravened articles
21 of the constitution of Zambia. Article 21 of the constitution is the article in the Bill of Rights
that provides for the right to freedom of assembly. See also the cases of Geoffrey Bwalya
Mwamba v The Attorney General,11 and the case of Chishimba Kambwili v Attorney
General.12In both cases, the Court held that the Speaker acted contrary to the constitution and
his actions were therefore null and void. In both cases, the court found the action of the Speaker
to have been unconstitutional as the Speaker is not vested with power to interpret or resolve
constitutional problems. This power is vested in the judiciary and the Speaker, therefore,
usurped the powers of the judiciary.

The case of Zambia National Holdings Limited and United National Independence Party
(UNIP) V. The Attorney-General,13 also demonstrates the supremacy of the constitution over
the Courts. The facts of this case were that:
The appellants brought a petition in the High Court to challenge the decision for the respondent
to acquire compulsorily under the Lands Acquisition Act the appellants' land being Stand

6
(1995 – 1997) Z.R. 20
 number 10934 Lusaka which was also known as the New UNIP Headquarters. The President
resolved that it was desirable or expedient in the interests of the Republic to acquire this
property whereupon the appropriate Minister gave notice to the appellants of the Government's
intention in that behalf and the steps and formalities under the Act for such acquisition were
commenced. The appellants wrote to the respondent suggesting a sum of money to be aid as
compensation but as it turned out, and as the parties specifically informed the learned trial judge,
they wished the question of compensation to be postponed until the court had disposed of the
challenge to the legality and constitutionality of the compulsory acquisition. The petition was
unsuccessful and the appellants appealed.

Held:

(i) Although Article 94 of the constitution gives the High Court unlimited jurisdiction that
court is bound by all the laws which govern the exercise of such jurisdiction
(ii) Statutory instruments only come into force in when made in accordance with the relevant
section of Cap 2 and Article 80 of the Constitution
(iii) The Lands Acquisition Act did not contravene the spirit and intent of Article 16(1) of the
Constitution

11
2015/HP/1279
1312 S.C.Z. Judgment No. 3 of 1994)
2019/CCZ/009.

(iv) The appellants did not discharge the burden which was on them to demonstrate
mala fides on the part of the President
(v) The acquisition here was not unlawful for want of a prior tender of compensation

In addition, the case of Godfrey Miyanda v Matthew Chaila (Judge Of The High
Court),7 demonstrates the independence of the Judiciary from control or interence
from any person or authority as provided under Article 122 of the constitution.
However, the case does not demonstrate that the Judiciary is above the constitution and
the law. The facts of this case were thus:
The petitioner filed a civil suit on 10th September, 1981. The hearing of the suit commenced
before the respondent on 22nd August, 1983. The hearing of the case was concluded on 7th
September, 1983 but judgment was not delivered until 18th October, 1984. Dissatisfied with
the length of time which it took the judge to prepare and deliver judgment the applicant
brought this action. He contended that by failing to deliver judgment within reasonable time
the judge was in breach of Art. 20(9) the Constitution of Zambia.

Held:
(i) A judge cannot be taken to court for delaying in adjudicating on the case;

7
[1985] Z.R. 193 (H.C.)
(ii) The public have a right to have the independence of the judiciary preserved; the
absolute freedom and independence of judges is imperative and necessary for the better
administration of justice.
 THE DOCTRINE OF SEPARATION OF POWERS
Essentially issues to be examined here are the meaning of the doctrine of Separation of Powers,
the brief background to the doctrine as well as the doctrine of Checks and Balances.

Brief Background to The Doctrine of Separation of Powers

The doctrine of Separation of powers can be defined basically as the act of vesting the
legislative, executive, and judicial powers of government in separate bodies. Basically, it can
be said that the doctrine of separation of powers simply calls for the division of the authority
of government into three main organs i.e. the Judiciary, Executive and the Legislature.

It is important to understand that the concept of Separation of powers is merely a concept or

theory. This being the case, the concept is only operationalised in practice by a State by
crafting a constitution that embraces the concept. When this is not done, the concept merely
remains a concept that has no legal effect and not justiciable.

The doctrine of "the separation of powers" is derived from Montesquieu, whose elaboration of
it was based on a study of John Locke's writings and the British Constitution of the 18th
century. Locke, in his Second Treatise of Civil Government, wrote:-

It may be too great a temptation to humane frailty, apt to grasp at power, for the same persons
who have the power of making laws, to have also in their hands the power to execute them,
whereby they may exempt themselves from obedience to the laws they make, and suit the law,
both in its making and execution, to their own private advantage.8

It is important to note from the above that Locke’s concept of separation of powers focused
only on the separation of the Executive from the Legislature.

The doctrine of the separation of powers was developed further by Montesquieu, who was
concerned with the preservation of political liberty. He wrote that-

Political liberty is to be found only when there is no abuse of power. But constant experience
shows us that every man invested with power is liable to abuse it, and to carry his authority as

8
Ch.X11, para. 142, quoted in Vile, p.62.
 far as it will go....To prevent this abuse, it is necessary from the nature of things that one power
should be a check on another...When the legislative and executive powers are united in the same
person, or in the same body of magistrates, there can be no liberty....Again, there is no liberty,
if the judiciary power be not separated from the legislative and executive. Were it joined with
the legislature, the life and liberty of the subject would be exposed to arbitrary control; for the
judge would then be the legislator. Were it joined to the executive however, the judge might
behave with violence and oppression. There would be an end to everything, were the same
man, or the same body, whether of the nobles or of the people, to exercise those three powers,
that of enacting laws, that of executing the public resolutions, and of trying the causes of
individuals." 9

The point stressed in this statement is that within a system of government based upon law, the
judicial function should be exercised by a body separate from the legislature and executive. It
certainly does not imply that the three organs ought to have no influence or control over the
acts of each other, but only that neither should exercise the whole power of the other.

It is important to note from the above statement by Montesquieu that his concept of separation
of powers focused on the separation of all three organs of the State from each other. In
addition, his concept introduced the concept of checks and balances whereby each organ
should be a check and balance of the other.

The extent to which the separation of powers doctrine is implemented differs from country to
country. For example, in France and other European countries governmental powers are
coordinated by the Cabinet or Council of Ministers - which is created by, but in fact controls,
the legislature in which its members sit. The executive in some democratic countries is made
responsible to the legislature. However, in authoritarian states the executive has acquired
complete domination over both the legislature and the judiciary. In democratic countries the
doctrine of separation of powers has mainly been implemented by the securing of the
independence of the judiciary from the control of the executive branch.

No constitution goes further than that of the US Constitution of 1787 in applying the doctrine
of separation of powers.

9
De L'Esprit des Las, Book X1, Ch. 6, quoted in Vile.
Meaning of The Doctrine of Separation of Powers in Its Modern Form as
Elucidated by Montesquieu

. The concept of 'separation of powers' means at least three different things as follows:
(a) that the same persons should not form part of more than one of the three organs of
government, for example, that Ministers should not sit in Parliament. For example, in
Zambia and Britain, this has not been achieved as ministers in both countries are
members of both the Executive and the Legislature. This is so in that in both countries,
there is a fusion between the Executive and the Legislature. In Zambia for example the
constitution creates this fusion in article 116(1) that provides that ‘the President shall
appoint a prescribed number of Members of Parliament as Ministers.’ In the United
States for example, there is separation between the Legislature and the Executive. This
is so in that in the United States, Ministers (known as Secretaries) are not part of the
Legislature. This is so in that in the States, Ministers are appointed outside Parliament;
(b) that one organ of government should not control or interfere with the work of
another organ, for example, that the Judiciary should be independent of the Executive.
In addition, Legislature should enjoy some autonomy from the Executive in its
performance of its legislative function. It is important to mention that the organ of
government that has the tendency to interfere in the other organs is the Executive. This
is so in that the Executive is the one that has a tendency to interfere in the other two
organs that is, the Legislature and Judiciary. It is important to state that following the
constitution amendment in 2016 by Act No.2 of 2016, the Executive interference in the
Legislature and Judiciary has been relatively reduced as compared to the way it was
under the Constitution Amendment No.18 of 1996. This has been achieved with the
enactment of the Constitution of Zambia Amendment Act
No. 2 of 2016. This is so in that as regards Executive inference in the Judiciary, the
President now does not have the power of setting up a tribunal to investigate the
question of removal of superior court judges from office as was the case before the
amendment. Before the amendment, the President was vested with the power to appoint
judges of all the superior courts, in addition, he had the sole rights to appoint a tribunal
to investigate the question of whether a particular judge should be removed from office
or not. The President had the sole authority to hand pick the persons to constitute a
tribunal to investigate the removal of a judge from office. The tribunal appointed by
the President was vested with power to recommend the removal of a judge from office.
This kind of power vested in the President amounted to interference with judicial
independence by the Executive (President) and could be easily abused. However, after
the amendment to the Constitution, the power to remove judges from office has been
vested in the Judicial Complaints Commission as provided under article 236 of the
constitution.

In addition, the enactment of the Constitution of Zambia Act No. 2 of 2016 has
somewhat reduced the Executive interference in the Legislature. This is so in that the
Executive
(President)’s power to veto legislation has been lessened. This is so in that previously,
the President had enormous power to veto legislation passed by the National Assembly
and in addition to dissolve Parliament where he refused to assent to a Bill on the second
occasion, even if the Bill had been passed by 2/3 of the Members of Parliament. This
enormous power was vested in Article 78 (3) (4) (5) of the Constitution of Zambia as
amended by Act No. 18 of 1996. However, under Article 66 of the Constitution of
Zambia Act No.2 of 2016, this power has been lessened. This is so in that the President
now is not vested with power to dissolve Parliament after 2/3 of the majority of the
Members of Parliament have passed a Bill on second occasion after the first occasion
was vetoed by the President. Instead, the constitution now provides that the Bill show
become law after 7 days, see Article 66 of the constitution. This position in the current
constitution is similar to the position under the constitution of the United States of
America.
(c) that one organ of government should not exercise the functions of another, for
example, that ministers should not have legislative powers. This element has not been
achieved in Zambia. This is so because in Zambia, as stated above, the constitution
allows for a fusion between the Executive and the Legislature there by creating a
situation whereby ministers are at the same time law makers. This is not the case in the
 States as Ministers are not part of the Legislature as they are appointed from outside
Parliament as stated above.

It needs to be pointed out that in considering each of these aspects of separation of powers, it
must be remembered that complete separation of powers is not possible either in theory or in
practice. This is so in that according to the concept of separation of powers, law making is
supposed to be the function of the Legislature. However, Ministers also make law through
statutory instruments. In addition, the President is part of the Legislature when it comes to law
making and can make law through statutory instruments when he is supposed to just execute
law. In addition, the Judiciary is the organ that should adjudicate disputes, however the
Judiciary also makes law through judicial precedents. In addition, certain organs of the
Executive also adjudicate administrative disputes, when according to separation of powers
this function is supposed to be the sole function of the Judiciary.

Checks and Balances

Checks and balances refers to a mechanism designed to limit power of a single individual or
body of government and provide for harmonious interrelationship of the organs of government.
Checks and balances are intended to allow legitimate power to govern and good ideas to be
implemented, while abuse of power, corruption, and oppression are minimised.

The phrase checks and balances was coined by Charles Montesquieu. It is important to note
that
Montesquieu’s concept of separation of powers not only advocates for separation of the three
organs of state from each other, as demonstrated above, but that it also provides for checks
and balances. In John Locke’s concept, he did not touch on the concept of checks and balances.
This is another difference in the concept of separation of powers from that of Locke’s and
Montesquieu’s. The phrase checks and balances was coined by Charles Montesquieu. The
system of checks and balances is a creation of the constitution. Checks and balances guarantee
that no part of the government becomes too powerful. The idea underlying the concept of
checks and balances is to make the separation of powers more effective by balancing the
powers of one organ against those of another through a system of positive mutual checks
exercised by the governmental organs on one another. In a nutshell, checks and balances is
simply the power of one organ of the state to check the other.

It is important to understand that the concept of checks and balances, just like that of
separation of powers is merely a concept or theory. This being the case, the concept can only
be operationalised in practise by a state through crafting a constitution that embraces the
concept. When this is not done, the concept merely remains as a concept or theory that has no
legal effect and not justiciable.

Examples of the operation of checks and balances are as follows: For example, the legislative
organ of the government is in charge of law making. In Zambia for example, this is provided
for in articles 62(1)(2) and 63(1) of the Constitution. Article 62(1) provides that ‘there is
established the
Parliament of Zambia which consists of the President and the National Assembly.’ Article
62(2) provides that ‘the legislative authority of the Republic is vested in and exercised by
Parliament.’ On the other hand, article 63(1) provides that ‘Parliament shall enact legislation
through Bills passed by the National Assembly and assented to by the President.’ The executive
organ can veto the law passed by the legislature, thus the executive acts as a check and balance
on powers of the legislature to make law. In Zambia for example, article 66 of the constitution
empowers the President to veto legislation. On the other hand, the same article 66 empowers
Parliament to overturn a veto by the President by way of 2/3 majority vote of the Members of
Parliament.

Furthermore, Article 63 (2) provides for checking of the Executive by the National Assembly
as follows:

63. (2) The National Assembly shall oversee the performance of executive functions by—
(a) ensuring equity in the distribution of national resources amongst the people of Zambia;
(b) appropriating funds for expenditure by State organs, State institutions, provincial
administration, local authorities and other bodies;
(c) scrutinising public expenditure, including defence, constitutional and special
expenditure;
(d) approving public debt before it is contracted; and
 (e) approving international agreements and treaties before these are acceded to or
ratified.

In addition, the judicial organ of the state also checks the law passed by the legislature and
assented to by the executive for unconstitutionality. This therefore ensures that a law that is
unconstitutional is not binding. For example, article 128(2)(3) of the constitution empowers
the Constitutional Court to hear and determine matters relating to the constitutionality of any
law passed in Zambia. The legislative organ can also remove a President by impeachment for
not doing his job properly. Article 108 of the constitution, for example, empowers Parliament
to impeach the President by 2/3 majority votes of the members of parliament when the
President violates the constitution or other law, or where the President commits a crime under
international law or where the President commits gross misconduct. In addition, the executive
organ appoints judges of the courts and the legislative organ approves the appointment of the
judges by the executive. For example, article 140 of the constitution provides that ‘the
President shall on the recommendation of the Judicial Service Commission and subject to
ratification by the National Assembly appoint judges of the courts.’ In addition, there are
various Presidential appointees that are supposed to be ratified by the National Assembly. This
is also a check and balance by the National Assembly on Executive functions.
These are just a few examples of checks and balances. It follows from the above that the
doctrine of checks and balances has certain features and the following are the five main features
of checks and balances:
i) Checks and balances are the creation of the law, mainly the constitution.

ii) Checks and balances ensure the separation of powers as demonstrated above.

iii) Checks and balances ensure that each organ of the state has separate and
independent powers and areas of responsibility as demonstrated above. iv) Checks
and balances ensure that each organ of the state places limits on the powers
exerted by the other organs of the state, as demonstrated above.

v) Checks and balances ensure good governance by allowing legitimate power to

govern and good ideas to be implemented, while abuse of power, corruption
and oppression are minimised.
ACTIVITY
Now that you have gone through the topic on Separation of Powers, answer the following
questions:
1. Explain what is meant by the doctrine of separation of powers.

2. Distinguish between the doctrine of separation of powers and checks and balances.

3. Outline the five main features of checks and balances.

4. Is complete separation of powers possible in theory and practice?

 THE RULE OF LAW
“Rule of Law” plays an important role in administrative law. It provides protection to the
people against the arbitrary action of the administrative authorities. The expression ‘rule of
law ‘has been derived from the French phrase ‘la Principle de legality’. i.e. a government based
on the principles of law. In simple words, the term ‘rule of law, indicates the state of affairs in
a country where, in main, the law rules. Law may be taken to mean mainly a rule or principle
which governs the external actions of the human beings and which is recognized and applied
by the State in the administration of justice.

Rule of Law is a dynamic concept

It does not admit of being readily expressed. Hence, it is difficult to define it. Simply speaking,
it means supremacy of law or predominance of law and essentially, it consists of values. The
concept of the rule of Law is of old origin. Edward Coke is said to be the originator of this
concept, when he said that the King must be under God and Law and thus vindicated the
supremacy of law over the pretensions of the executives. Prof. A.V. Dicey later developed on
this concept in the course of his lectures at the Oxford University. Dicey was an individualist;
he wrote about the concept of the Rule of law at the end of the golden Victorian era of laissez-
faire in England. That was the reason why Dicey’s concept of the Rule of law contemplated
the absence of wide powers in the hands of government officials. According to him, wherever
there is discretion there is room for arbitrariness. Further he attributed three meanings to Rule
of Law.

(1) The First meaning of the Rule of Law is that ‘no man is punishable or can lawfully be made
to suffer in body or goods except for a distinct breach of law established in the ordinary legal
manner before the ordinary courts of the land. (The view of Dicey, quoted by Garner in his
Book on ‘Administrative Law, p.11.’).

(2) The Second Meaning of the Rule of Law is that no man is above law. Every man whatever
be his rank or condition. is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals (Ibid).
(3) The Third meaning of the rule of law is that the general principle of the constitution are the
result of judicial decisions determining the rights of private persons in particular cases brought
before the court. (View of Dicey, quoted by Garner in his book on Administrative Law,
p.11.)
The view of Dicey as to the meaning of the Rule of Law has been subject of much criticism.
The whole criticism may be summed up as follows.
Dicey has opposed the system of providing the discretionary power to the administration. In
his opinion providing the discretionary power means creating the room for arbitrariness, which
may create a serious threat to individual freedom. Nowadays it has been clear that providing
the discretion to the administration is inevitable. The opinion of Dicey, thus, appears to be
outdated as it restricts the Government action and fails to take note of the changed conception
of the Government of the State. Dicey has failed to distinguish discretionary powers from the
arbitrary powers. Arbitrary power may be taken as against the concept of Rule of Law. In
modern times in all the countries including England, America and India, the discretionary
powers are conferred on the Government. The present trend is that discretionary power is given
to the Government or administrative authorities, but the statute which provides it to the
Government or the administrative officers lays down some guidelines or principles according
to which the discretionary power is to be exercised. The administrative law is much concerned
with the control of the discretionary power of the administration. It is engaged in finding out
the new ways and means of the control of the administrative discretion. According to Dicey
the rule of law requires that every person should be subject to the ordinary courts of the country.
Dicey has claimed that there is no separate law and separate court for the trial of the
Government servants in England. He criticised the system of droit administratif prevailing in
France. In France there are two types of courts, Administrative Courts and Ordinary Civil
Courts. The disputes between the citizens and the Administration are decided by the
Administrative courts while the other cases, (i.e. the disputes between the citizens) are decided
by the Civil Court. Dicey was very critical to the separation for deciding the disputes between
the administration and the citizens. According to Dicey the Rule of Law requires equal
subjection of all persons to the ordinary law of the country and absence of special privileges
for person including the administrative authority. This proportion of Dicey does not appear to
be correct even in England. Several persons enjoy some privileges and immunities. For
example, Judges enjoy immunities from suit in respect of their acts done in discharge of their
official function. Besides, Public Authorities Protection Act, 1893, has provided special
protection to the official. Foreign diplomats enjoy immunity before the Court. Further, the
rules of ‘public interest privilege may afford officials some protection against orders for
discovery of documents in litigation.’ Thus, the meaning of rule of law taken by Dicey cannot
be taken to be completely satisfactory.

Third meaning given to the rule of law by Dicey that the constitution is the result of judicial
decisions determining the rights of private persons in particular cases brought before the Courts
is based on the peculiar character of the Constitution of Great Britain.

In spite of the above shortcomings in the definition of rule of law by Dicey, he must be praised
for drawing the attention of the scholars and authorities towards the need of controlling the
discretionary powers of the administration. He developed a philosophy to control the
Government and Officers and to keep them within their powers. The rule of law established
by him requires that every action of the administration must be backed by law or must have
been done in accordance with law. The role of Dicey in the development and establishment of
the concept of fair justice cannot be denied.
The concept of rule of law, in modern age, does not oppose the practice of conferring
discretionary powers upon the government but on the other hand emphasizing on spelling out
the manner of their exercise. It also ensures that every man is bound by the ordinary laws of
the land whether he be private citizens or a public officer; that private rights are safeguarded
by the ordinary laws of the land.10Thus the rule of law signifies that nobody is deprived of his
rights and liberties by an administrative action; that the administrative authorities perform their
functions according to law and not arbitrarily; that the law of the land are not unconstitutional
and oppressive; that the supremacy of courts is upheld and judicial control of administrative
action is fully secured.

Basic Principles of the Rule of Law

• Law is Supreme, above everything and everyone. Nobody is above the law.

10
See Journal of the Indian Law Institute, 1958-59, pp. 31-32
•All things should be done according to law and not according to whim
•No person should be made to suffer except for a distinct breach of law.
•Absence of arbitrary power being main and sole purpose of rule of law
•Equality before law and equal protection of law
• Discretionary should be exercised within reasonable limits set by law

•Adequate safeguard against executive abuse of powers

•Independent and impartial Judiciary
•Fair and Just Procedure
•Speedy Trial
 SOVEREIGNTY OF PARLIAMENT

Sovereignty of parliament is an administrative law concept which places Parliament above all
organs of the state. This entails that in jurisdictions where Parliament is supreme, Parliament
is above the Executive and Judicial organs of the State. A very good example of a jurisdiction
in which this concept thrives is the United Kingdom. In the United Kingdom, the Queen is the
‘sovereign’ authority while Parliament is supreme. This entails that in the United Kingdom,
every Act of Parliament is a supreme law, which can be equated to the constitution here in
Zambia. What this entails is that an Act of Parliament passed by the British Parliament is
equivalent to the constitution here in Zambia. This is because of the supreme position that
Parliament hold in the United Kingdom in relation to the Executive and the Judiciary. It follows
that the supremacy of the British parliament has the following consequences:
1. There is no higher authority than the Queen in Parliament and the Queen in
Parliament can change the law.
2. No one can legally question the enactments of the Queen in Parliament. Even the
Supreme Court as the highest court in the UK cannot refuse to enforce an Act of Parliament
on grounds that it is unconstitutional.
3. There is no limit to the legislative powers of the Queen in parliament.

It is important to note that: Parliament in the UK can shorten or lengthen its life.
One consequence of the British Parliament’s sovereignty is that Britain has no written
constitution.

The case of Burmah Oil Company Ltd v Lord Advocate11 demonstrates the supreme
position of Parliament in the United Kingdom.
This case concerned the destruction of oil fields in Burma by British forces in 1942, during the
Second World War. The destruction was ordered in order to prevent the installations from
falling into the hands of the advancing Imperial Japanese Army. It affected the Burmah Oil
Company which brought an action against the UK government, represented by the Lord
Advocate.
In the Outer House of the Court of Session, Lord Kilbrandon found in favour of Burmah Oil.
The Crown appealed, and the First Division of the Inner House of the Court of Session
unanimously reversed the decision below. Burmah Oil then appealed to the House of Lords.

11
[1965] AC 75
 The House of Lords held by a 3–2 majority that although the damage was lawful, it was the
equivalent of requisitioning the property. Any act of requisition was done for the good of the
public, at the expense of the individual proprietor, and for that reason, the proprietor should be
compensated from public funds. Viscount Radcliffe and Lord Hodson dissented.

This case resulted in the passing of a retroactive Act of Parliament, the War Damage Act 1965,
which retroactively exempted the Crown from liability in respect of damage to, or destruction
of, property caused by acts lawfully done by the Crown during, or in contemplation of the
outbreak of, a war in which the Crown was engaged. This Act could not be declared by any
court as ultra vires because an Act of Parliament in the United Kingdom is above any court of
law even the highest court of the land.

It is because of this that in England, judicial review of administrative action is limited to

checking the activities of the administration and not striking out the provisions of an Act of
Parliament for unconstitutionality.
The supremacy of the United Kingdom Parliament can be demonstrated by this diagram:

The Crown (King/Queen) (Sovereign authority)

Parliament (Supreme – i.e. above Executive

and
Judiciary)

Executive and Judiciary (subordinate to

Parliament)
 EXPLAINING PARLIAMENT AND THE LAW MAKING PROCESS

THE BILL PROCESS IN PARLIAMENT

Aim: This unit aims at introducing you to the stages that a Bill passes through in Parliament
before it becomes law. In addition, the unit will introduce you to the concept of Delegated
Legislation and its control
Objective: At the end of this unit you should be able to:
• Define what a Bill of Parliament is

• The types of Bills of Parliament

• Understand, the stages that a Bill passes through in Parliament before it becomes
law

• Understand what is meant by delegated legislation. In addition, you should be able

to know the various types of delegated legislation. Further you should be able to
understand how delegated power is conferred on public institutions and officers and
the importance of conferring delegated power on public authorities.

Introduction
One of the main functions of Parliament is to legislate, that is, to make laws. In all democracies,
this function is enshrined in the Constitution. In the case of Zambia, Parliament derives its
authority to legislate from Article 62 of the Constitution, which provides as follows:
62(1) there is established the Parliament of Zambia which consists of the President and the
Nation Assembly.
(2) The legislative authority of the Republic is vested in and exercised by Parliament.
63(1) Parliament shall enact legislation through Bills passed by the Nation Assembly and
assented to by the president.
In making laws, there is a procedure that Parliament strictly adheres to in enacting a new law
or amending or repealing an existing one. Basically, Parliamentary procedure is prescribed by
the National Assembly of Zambia Standing Orders of 2016.
Defining a Bill of Parliament

A Bill is a proposed law and no Bill can become law without being passed by the National
Assembly and assented to by the President. Before a Bill is passed into law, it goes through
various stages in Parliament, starting with the First Reading up to the third reading. The first
stage is only a presentation stage when the Bill is read for the first the time in the house.

Public and Private Member’s Bill

There are three types of Bills, and these are:

(a) Government Bills;

(b) Private Member’s Bills; and (c) Private Bills.

Government and Private Member`s Bills are called Public Bills when they affect the public as
a whole. The difference between the two, however, is that a Government Bill is one which is
introduced by a Minister, whereas a Private Member`s Bill is one brought up at the initiative
of a back-bencher.
A Private Bill is one which is promoted by persons or bodies outside the House and only affects
a limited section of the public. It is, however, introduced in the House by a back-bencher
following the lodging of a petition signed by the promoters of that Bill.

Stages of A Bill in The National Assembly Up to Assent Stage

A Bill introduced in the house must go through the following stages to become law:

(a) First Reading

The First Reading of the Bill is a formality. The Bill is presented and read for the first time.
No debate takes place and the Hon Mr. Speaker refers the Bill to the relevant Committee. The
purpose of doing this is to subject the Bill to a detailed scrutiny and the Committee, thereafter,
reports to the House. For the Committee to come up with a Report on the Bill, consultations
with various stakeholders are conducted. The Committee Report is used for informing the
debate in the House on the Bill. There is no set time limit within which a Bill should be
published before being introduced in the House.

However, under Article 79 (2) (a) of the Constitution, a Bill for the alteration of the
Constitution should be published in the Government Gazette for not less than thirty (30) days
before the First Reading. This requirement applies to Bills which seek to amend the
Constitution. (b) Second Reading

This is the most important stage in the legislative process of a Bill. At this stage, the principle
behind the Bill is debated in detail. The Member responsible for the Bill reads a prepared
speech which gives detailed explanation of what is involved in the Bill and its implications
and he/she outlines the advantages and disadvantages as perceived by him/her. This is followed
by a general debate on the Bill which is informed by the report of the relevant Committee on
the Bill. During the debate, unless one has been misquoted or one needs to clarify a point made
earlier, a member speaks only once to ensure that as many Members as possible have an
opportunity to contribute to the debate.
At the end of the debate, the Speaker puts the question to the House that the Bill be read a
second time. Members indicate by saying “AYE,” IF they are in favour of the Bill or “NO,”
if they are against it.
If they “AYES” are in the majority, Mr. Speaker orders the Bill to be read a second time. If,
on the other hand, the “NOES” are in the majority, the Bill is withdrawn and it cannot be
reintroduced during the same session.
If there is a dispute as to whether the “AYES” or the “NOES” are in the majority, a Division
is called.
In the case of a Bill to amend the Constitution, when the question is put by Mr. Speaker that
the Bill be read a second time, a vote is immediately conducted and the Bill requires the support
of at least two-thirds of the total membership of the House on Second Reading. (c) Committee
Stage

At this time, a Bill is ordered to be considered by the committee of the whole House. The
Committee examines the bill in detail, clause by clause. Members are free to speak more than
once and may introduce amendments provided such amendments are compatible with the Bill.
The Committee Stage is chaired by the Deputy Speaker or the Deputy Chairman of
Committees. (d) Report Stage

The Report Stage is in practice similar to the Committee Stage except that, here only additional
amendments to the Bill not moved at the Committee Stage, and not Clauses, are considered. If
a Bill has not been amended at Committee Stage, the Third Reading is promptly proceeded
with. The Report Stage affords Members an opportunity to make further amendments of which
notice would have been given. During this Stage, Mr. Speaker presides over the proceedings.
(e) Third Reading

The next stage of the Bill is the Third Reading. Here the Bill is reviewed in its final form and
no debate takes place. When the question has been put and agreed to, the Bill is deemed to
have been passed and, thereafter, is presented to the President for assent.
The only exception again is a Bill to amend the Constitution which has to be passed at Third
Reading with at least two-thirds majority of all Members of the Assembly.

Presidential Assent
A Bill is presented to the President for his/her assent only after three days from the date of the
third reading of the Bill. If the President gives his/her assent to the Bill it becomes law (an Act
of Parliament) and takes effect immediately it is published in the Government Gazette. The
President can, however, withhold his assent to any Bill, in which case the Bill is returned to
the National Assembly. Such a Bill is returned to the House with a message for the National
Assembly to reconsider the Bill and if the National Assembly thereafter passes the Bill on a
motion supported by a two- third majority the Bill is presented for assent to the President.
When a Bill is again presented to the President for assent, the President should assent to the
Bill within seven days of its presentation; otherwise the Bill is regarded as assented to upon
the expiration of seven days from the date when the Bill is re-submitted to the President for
assent. This is provided for under Article 66 of the Constitution.
In the exercise of legislative power in the House, to the enactment of the laws of Zambia, the
Legal Department monitors the progress of Bills in the House, the Presidential assent and the
publication of the Act in the Government Gazette. Members who may want to trace the debate
on any Bill afterwards may check with the Legal Department for dates and days from the Bills
register and thereafter may read the debate from the Daily Parliamentary Debates.
 DELEGATED LEGISLATION AND ITS CONTROL

Delegated Legislation
As propounded by Montesquieu, the power to legislate (i.e. make laws) in any country is
supposed to be exclusively vested in the legislature. Though this is the case, it follows
however, that in any country not all laws are made by the legislature alone. This is so in that
in almost all countries in the world, the power to make laws is vested in the legislature.
However, the legislature delegates to other public bodies or officers this power to make laws.

Meaning of Delegated Legislation

Delegated legislation is the authority or power to make laws that parliament delegates to
public institutions or officers such as ministers. In Zambia for example, the power to make
laws for the republic is provided for in article 62 (1) of the constitution that provides that ‘the
power to make laws for the republic of Zambia is vested in parliament which consists of the
president and the National Assembly.’ It follows that parliament which consists of the
president and the National Assembly, is the legislative authority of Zambia. This is the organ
that is mandated by the constitution of Zambia to make laws. The laws that are made by
parliament are known as Acts of Parliament or statutes.
However, notwithstanding the fact that Parliament is the body that is mandated to make laws
by the constitution the constitution also allows parliament to delegate its power to make laws
to other public bodies and officers. This authority that allows parliament to delegate its law
making power to other public bodies or officers is provided for under article 67(1) of the
Constitution. It follows therefore that article 67(1) of the Constitution allows parliament to
delegate its law making power to other public bodies or officers by way of Statutory
Instruments.
In terms of how the actual delegation is done, this is normally by way of parliament, when
enacting an Act of Parliament, Parliament will put a section in the Act that allows a public
body or officer, usually a Minister, to make rules or regulations under the Act.
For example in 2012 then Local Government Minister Nkandu Luo banned the manufacturing
and sale of strong liquor sachets commonly known as tujilijili. This ban was by way of
Statutory Instrument No. 23 of 2012. This statutory instrument was passed pursuant to section
53 of the liquor Licensing Act, 2011. Section 53 of the Liquor Licensing Act, 2011 is the
section in the Liquor Licensing Act in which Parliament delegated power to the Minister of
Local Government to make regulations through statutory instruments. In addition, during the
outbreak of the Covid 19 outbreak, the Minister of Health, DR Chitalu Chilufya passed
statutory instrument No. 22 which instrument imposed certain regulations which saw among
other things, the closure of schools, colleges and universities and also the requirement to wear
masks in public places as well as the need to observe social distancing. This instrument was
promulgated pursuant to section 28, 30 and 114 of the Public Health Act Cap 295 of the Laws
of Zambia. It follows that section 28, 30 and 114 of the Public Health Act Cap 295 is the
section in the Act in which Parliament delegated power to the Minister of Health to make the
said regulations through statutory instruments.

It follows therefore, that delegated legislation is simply that power to make laws that is
delegated by parliament to public bodies or officers such as ministers as demonstrated.
It is also important to note that delegated legislation must always be subordinate or subsidiary
to laws contained in the enabling Act of parliament as well as the constitution. That is delegated
legislation must not conflict or contradict provisions of the enabling Act for such delegated
legislation to be regarded as valid.

Types of Delegated Legislation

The nature and scope of delegated legislation as may be defined by statute is wide and varied.
In terms of the types of delegated legislation, the following are the types:

(1) Statutory Instruments (S.I)

Statutory Instruments are the most popular form of delegated legislation. As demonstrated
above, Article 62 of the Zambian Constitution confers legislative powers of the republic of
Zambia in parliament which is made up of the president and the nationality assembly.
Notwithstanding this provision article 67(7) provides that ‘Parliament can confer on any person
or authority the power to make statutory instruments’ i.e. statutory instruments must be
published in the Gazette not later than 28 days after it is made. But in the case of instruments
which will not have the force of law until approved by some body or authority, such
instruments must be published not later than 28 days from the date of its approval.
Article 27 of the constitution, provides for non judicial mechanisms for insuring that the
provisions of statutory instruments do not contradict the provisions of the constitution. This
the article does by providing that members of parliament not less than 30 in number may
request a report on a statutory instrument from the authority that 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 starting in its opinion, the provision of the statutory instrument
which are inconsistent 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
annual such instrument.
Article 67 (3) makes provision for challenging the validity of a statutory instrument through
judicial mechanisms. The article makes provision for any person to challenge the
constitutionality of any statutory instrument through judicial mechanisms. The article makes
provision for any person to challenge the constitutionality of any statutory instrument, by
making an application before the Constitutional Court, within fourteen days of the publication
of the statutory instrument in the Government Gazette. Article 67 (5) allows the Constitutional
Court to declare as void any provision in a statutory instrument that is inconsistent with any
provision of the constitution.

(ii) Bylaws

Apart from statutory instruments, bylaws are also another form of delegated legislation. By
laws have been defined as laws or regulations made for the regulation within the district of
certain property, issues, matters, etc. and binding on all persons who come within their scope.
They are an example of delegated legislation. The simplest example of bylaws are those made
by local authorities or councils.
Section 58 of the Local Government Act No. 2 of 2019 confers powers on the councils to make
By Laws.
An example of a bylaw is the Parking Levy of K5 that one has to pay for parking a motor
vehicle within the central business area of Lusaka Town. This parking Levy was passed by the
Lusaka City Council as a bylaw.
It is important to note however, that the power to make bylaws as provided by the Local
Government Act is subject to the other provisions of the Act and may apply to different classes
of persons, different classes of things and different circumstances. However, no bylaws shall
have the force of law until it has been confirmed by the Minister of Local Government.
(iii) Circulars
A circular is another form of delegated legislation. Government departments frequently issue
circulars to other authorities. By a circular it is meant no more than a communication by which
copies are sent to several persons. This in itself tells us nothing about the legal statuss or effect
of a circular which is a concern to administrative law.
However, this notwithstanding, a circular may contain mere Information only for example
drawing the attention of particular authorities to some recently published report, or explaining
a new legislation or a new government policy which the authorities may be called upon to
observe. In addition, a circular may contain advice as to the exercise by the recipient of some
powers or impose duties. Depending upon the language and the effect of the language so used
a circular may assume the form of law. For example, the guidelines on the sale of government
houses to sitting civil servants were contained in a circular issued by Cabinet. The Cabinet
circular was issued by the then government of President Fredrick Chiluba and it provided the
legal frame work and authority for disposing off of government houses. See the case of Wynter
Munacaambwa Kabimba v Lusaka City Council12above, on a circular as a source of
Administrative law.

12
(S.C.Z. Appeal No. 138 of 1998)
The Use of Delegated Legislation
Various arguments can be advanced in favour of and against delegated legislation, but one
thing that will remain true is that delegation of legislative powers to institutions other than
Parliament is a complex issue that requires the making of responsible decisions aimed at
addressing the economic and social needs of the people. As a result of this, there is need to
vest in other public bodies or officers, not only Parliament, the authority to make laws.
Some of the justification for the use of delegated legislation has been that parliament must
concern itself with principles underlying Acts of parliament, while the nitty gritties or specific
practical details must be left to delegated legislation. The justification for this is that in most
cases, delegated legislation e.g. statutory instruments, normally deal with technical issues
which are often extensive and detailed to be contained in Acts of Parliament.
The other justification for having delegated legislation is that the knowledge and experience
available outside the legislature and the civil service can be utilized through consultations by
way of delegated legislation. Indeed, it may be necessary to leave certain matters to be dealt
with by way of delegated legislation because at times, the time the bill is presented before
Parliament, the government may not know exactly how to deal with the problem it has set out
to address. The details, in terms of how to deal with the problem are therefore well placed to
be dealt with by way of delegated legislation.
The other justification for delegated legislation is the need to arm the state bodies other than
Parliament, with the power to make laws so that they can make law that would address
emergency situations.

Advantages and Disadvantages of Delegated Legislation

Advantages
(i) Pressure on parliament time

Parliament does not seat all year long and basically has no time to discuss nitty gritties of an
issue. Time is served by delegating the power to consider nitty gritties such as procedures and
subordinate matters to Ministers and their departments.
(ii) Technically of Subject Matter
 The subject matter of modern legislation is after all highly technical. Delegating enables
public officers to consult expert advisors and interested parties while the law is still in draft
stage. (iii)Flexibility

In large and complex sectors such as the Road and road Traffic Act, it is not possible to
foresee all the contingencies that may arise in a given situation and therefore to have them
provided for in an Act of Parliament, it is for this reason that unforeseen contingencies are
addressed by delegated legislation. By so doing, it is said that delegated legislation
provides for a degree of flexibility as circumstances can be addressed as and when they
arise by way of delegated legislation without the necessity of amending Acts of Parliament.
iv Emergency Powers
In emergency times such as war, serious strikes and economic crises they would often not be
time to pass Acts of parliament. However, because of delegated legislation, it would be easy
to address such emergencies.

Disadvantages
i) Delegate legislation may lack depth, as it may not take enough time of analyse the
issue in details.
ii) In delegated legislation, the law making power is taken out of the hand of the people
vested with the law making power and put in the hand of government offices who may
lack expertise.
iii) Delegate legislation may lead to situations where there are more statutory
instrument made in a year than the number of Acts of parliament made in that same
year. iv) Delegated legislation is easily brought and taken out of force. Because of this,
delegated legislation provides for multiplicity of laws in force and those repealed.

Control of Delegated Legislation

There are primarily two means of controlling delegated legislation. The first one is the
parliamentary control provided for under Article 27 of the constitution, discussed above. The
second one is by way of judicial control as provided under Articles 62 (3) (4), as provided
above. However, as regards judicial control, this will be discussed below, under the topic
judicial review of administrative action.

ACTIVITY
Now that you have gone through this unit, answer the following questions:
1. Define what a Bill of Parliament

2. What are the types of Bills of Parliament?

3. What are the stages that a Bill passes through in Parliament before it becomes law?
4. What do you understand by the term delegated legislation?
5. Explain the types of delegated legislation that can be conferred on public
authorities.
6. Do you think it is necessary to confer delegated authority on public authorities? If
yes, why do you think so and if no why?
 JUDICIAL REVIEW OF ADMINISTRATIVE OFFICERS
Aim: The aim of this unit is to introduce you to the concept of judicial review as a mechanism
of reviewing administrative action.

Objective: At the end of this unit you should be able to understand and appreciate the role
played by judicial review as a mechanism of controlling administration action. You should
also be able to know the grounds and remedies for judicial review.

Judicial and Non Judicial Control of Public Officers and Decision

When it comes to control of administrative action,13 there are basically two methods by which
administrative action is controlled. The first method is what is known as judicial control that
is done by way of what is known as judicial review of administrative action. While the second
method is by what is known as non judicial control of administrative action.
The unit will discuss the topic on judicial review of administrative action while the next topic
will discuss the topic on non - judicial control of administrative action

Judicial Review of Administrative Action

Judicial review is simply the power exercised by the courts of law of checking or reviewing
the actions or decisions of a public officer or institution to ensure that such action or decision
of a public officer or institution is within the law. When creating a public body, legislation will
often define duties, limits of power, and prescribe the reasoning the public body must use to
make decisions. These provisions will provide a means for decisions to be found unlawful. The
role of the judiciary is to ensure that public officers conduct their actions within the confines
of the law. Every public officer or institution is amenable to judicial review without any
exemptions. That is, everything done by a public officer is amenable to judicial review.

13
The term administrative action connotes actions or decisions of public institutions or public officers.
Constitutional Position of Judicial Review in Zambia and England

In the United Kingdom, the English constitutional theory, as expounded by A. V. Dicey, does
not recognise a separate system of administrative courts that would review the decisions of
public bodies (as in France, Germany and many other European countries). Instead, it is
considered that the government should be subject to the jurisdiction of ordinary Common Law
courts. At the same time, the doctrine of Parliamentary sovereignty does not allow for the
judicial review of Acts of Parliament, of the UK Parliament with a view to determine the
validity or legality of a provision of an Act of Parliament of the UK Parliament. This is so in
that every Act of Parliament of the UK Parliament is equivalent to the constitution when
compared to Zambia. This entails that the courts in the UK cannot review Acts of Parliament
for purposes of determining the validity or legality of a provision of the Act of Parliament.
This is the same situation in Zambia, as the Courts in Zambia cannot review provisions of the
Zambian constitution for purposes of determining the validity or legality of a provision of the
Zambian constitution (see Article 1(4) of the Zambian Constitution which provides that “the
validity or legality of this Constitution is not subject to challenge by or before a state organ
or other forum”).

This therefore entails that in the United Kingdom, judicial review is limited to reviewing the
actions of public officials and public bodies, for purposes of determining whether such actions
are in conformity with the provisions of Acts of Parliament. In addition, judicial in the UK also
reviews secondary (delegated) legislation, to determine whether such delegated legislation is
in conformity with the provisions of Acts of Parliament.

On the other hand, in Zambia, judicial review is concerned with reviewing the actions of public
officials and public bodies for purposes of determining whether such actions are in conformity
with the provisions of the constitution, provisions of Acts of Parliament, provisions of any
other delegated legislation as well as provisions of any other law. However, judicial review in
Zambia cannot be used to review the validity or legality of a provision of the constitution.
 Amenability to Judicial Review

It is important to note that for an action complained of to be amenable to judicial review, the
action must be such that it must have been taken by a public body, i.e. a body established by
statute or otherwise exercising a public function (see the Sondashi v Miyanda case). In R v
Panel for Takeovers and Mergers, ex parte Datafin36 the Court of Appeal held that a privately
established panel was amenable to judicial review because it in fact operated as an integral part
of a governmental framework for regulating mergers and takeovers, while those affected had
no choice but to submit to its jurisdiction.

In the UK, actions taken under the royal prerogative were traditionally thought to be no
justiciable political matters and thus not subject to judicial review, but the case of Council of

36
[1987] 1 QB 815
Civil Service Unions v Minister for the Civil Service,14 established that they can be subject
to judicial review, depending on the purpose for which the prerogative powers are exercised.

Ouster Clauses

Ouster clauses are simply clauses that may be incorporated in an Act of Parliament of the UK
Parliament, which clauses may exclude the powers of the court to review administrative actions
or decisions, thereby making the clause to be final, binding and not appealable (see the case
of R (Cowl) v Plymouth City Council). This state of affairs is possible in the UK because as
stated above, an Act of Parliament in the UK is equivalent to the constitution in Zambia. This
being the case, the courts in the UK, just as is the case in Zambia, cannot question the validity
or legality of the constitution. So in the UK, if a provision in an Act of Parliament provides
that a particular decision or action of a public officer or body is not subject to judicial review,
it entails indeed that such decision or action is not subject to review by any court in the UK,
this includes the Supreme Court which is the highest court in the UK.

14
[1984] UKHL 9
Exclusivity Rule

The Exclusivity rule, is simply a rule that prohibits a party aggrieved by an action of a public
body or public officer, from initiating any other form of litigation other than judicial review.
In the case of O'Reilly v Mackman,15the House of Lords held that where public law rights
were at stake, the claimants could only proceed by way of judicial review. They could not
originate their action under the general civil law procedure, because that would be avoiding
the procedural safeguards afforded to public authorities by the judicial review procedure, such
as the requirement of sufficient interest, timely submission and permission for judicial review.
However, a defendant may still raise public law issues as a defence in civil proceedings. So
for example, a tenant of the public authority could allege illegality of its decision to raise the
rents when the authority sued him for failing to pay under the tenancy contracts. He was not
required to commence a separate judicial review process (see Wandsworth London Borough
Council v Winder)39. If an issue is a mix of private law rights, such as the right to get paid
under a contract, and public law issues of the competence of the public authority to take the
impugned decision, the courts are also inclined to allow the claimant to proceed using ordinary
civil procedure, at least where it can be demonstrated that the public interest of protecting
authorities against frivolous or late claims has not been breached (see Roy v Kensington and
Chelsea and Westminster Family Practitioner Committee40)

Procedure for Judicial Review

Judicial review is not a normal cause of action as such and is not a dispute between the parties.
But rather it is a dispute regarding the decision or action or inaction of a public officer or
institution. In addition, judicial review is not a criminal matter and is not a violation of
fundamental rights. The subordinate courts and the local courts have no jurisdiction to hear
matters of judicial review. In Zambia, it is the high court which has original jurisdiction to hear
judicial review applications. That is, the first court of instance in judicial review proceedings
is the high court. The court of appeal and the Supreme Court are not courts of first instance in

15
[1983] UKHL 1
judicial review proceedings, therefore are not courts of original jurisdiction when it comes to
judicial review applications. It follows therefore that judicial review is a unique claim because
it is neither a civil nor a criminal case.
In terms of procedure, the Zambian high court rules are not exhaustive but they provide a basic
foundation for commencing judicial review proceedings. Order 53 of the Supreme Court rules
of England governs rules and procedures for judicial review in the United Kingdom. Tthe same
order 53 of the Supreme Court rules of England 1999 edition governs the rules and procedures
for judicial review in Zambia. Order 53 of the United Kingdom has come about as a result of
section 10 of the high court Act which provides that in the event of a lacuna in the laws of

39
1985
40
[1992] 1 All ER 705
Zambia, the practice and procedure in the United Kingdom as regards judicial review shall
apply to Zambia.

Requirements for Leave

Under Order 53 of the Supreme Court Rules of England 1999 edition, before a party can
commence judicial review proceedings, a party must apply for leave (permission) to
commence judicial review proceedings. The leave is obtained from the High Court, which has
supervisory jurisdiction over public authorities and tribunals. Leave may be refused if one of
the following conditions is not satisfied:
(a) The application must be made promptly and in any event within three months from
the date when the grievance arose.
(b) The applicant must have sufficient interest in a matter to which the application
relates. This requirement is known as the requirement of locus standi, or standing.
(c) The application must be concerned with a public law matter, i.e. the action must be
based on some rule of public law, not purely tort or contract (see the Sondashi v
Miyanda case above). However, the Court will not necessarily refuse leave if one of
the above conditions is in doubt. It may, in its discretion, examine all the circumstances
of the case and see if the substantive grounds for judicial review are serious enough.
 Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy
after it had considered the case on the merits. It is important to note that professional
legal practice requires that an aggrieved party must prior to seeking leave to commence
judicial review proceedings, write a letter to the proposed Defendant. The purpose of
the letter is to identify the issues in dispute and to avoid litigation where possible.

Grounds for Judicial Review

The courts have ever since the origins of judicial review exercised control to prevent the abuse
of discretionary powers. There are essentially two different levels at which the judicial controls
can operate namely:
1. The courts can on one hand intervene because the public officer/institution has for example
used its discretionary powers from a purpose not allowed by the legislation at all.
2. The courts can on the other hand intervene because the public officer/institution while able
in principle to use its powers to reach a certain end has done so in a manner felt to be
unreasonable, irrational and so disproportionate.

In practice however, it is not always easy to distinguish decisions based on illegality and those
based on irrationality because statutes conferring broad discretionary powers do not have neat
corners.
The oft-cited judgment of Lord green MR (Master of Rolls) in the WEDNESBURY case
(Associated pictures House Ltd v Wednesbury cooperation16), where a decision was passed
that no child under the age of 15 years old should be allowed to enter in a cinema hall. Two
possible meanings of the term unreasonable emerged from this judgment.
1. The first is what is normally referred to as the ‘UMBRELLA CASE where the term
unreasonable was used as a synonym for a host of more specific grounds such as taking into
account irrelevant consideration, acting for improper purpose and acting mala fide (bad faith).
According to Lord Green these tend to run into one another.
2. The second meaning may be termed as the “substantive case” of unreasonableness. A
decision may be attacked if it is so unreasonable that no unreasonable public body or officer

16
(1948) 1 KB 223.
would have made it. Lord Green gave an example of a teacher being dismissed because of
dying her hair. Such decisions by school authorities were deemed to be unreasonable. The main
grounds for judicial review as stated by Lord Diplock in the case of Council of Civil Service
Unions v Minister for Civil Service,17 are as follows:
(i)Illegality
(ii)Procedural impropriety
(iii)Irrationality (unreasonableness)
(iii)Legitimate expectation

The first two grounds are known as substantive grounds of judicial review because they relate
to the substance of the disputed decision. Procedural impropriety is a procedural ground
because it is aimed at the decision-making procedure rather than the content of the decision
itself. Those grounds are mere indications: the same set of facts may give rise to more than one
ground for judicial review.

Illegality
In the Lord Diplock’s words, this ground means that the decision maker “must understand
correctly the law that regulates his decision-making power and must give effect to it. Decision
may be illegal for many different reasons. There are no hard and fast rules for their
classification, but the most common example of cases where the courts hold administrative
decisions to be unlawful are the following:

i. The decision is made by the wrong person (unlawful sub-delegation).

If the law empowers a particular authority, e.g. a Minister to make certain decisions, the
Minister cannot sub delegate this power to another authority, e.g. an executive officer or a
committee. This differs from a routine job not involving much discretion being done by
civil servants in the minister’s name, which is not considered delegation. An example of
when this happened was in the English case of Allingham v Minister of Agriculture and

17
(1985) AC 374
 fisheries where a notice preventing farmers from growing sugar beet was unlawful because
the power to put up the sign was delegated by the original committee.
In Zambian case of Rev Lameck Kausa v the Registrar of Societies,18 the applicant,
applied for an order of certiorari on behalf of the African National Church. The application
was to quash the decision of the assistant Registrar of Societies wherein he had refused to
register the church and had rescinded its exemption from registration. The applicant
alleged that the orders where null and void as the Assistant Registrar had no jurisdiction or
power to issue the orders and consequently were not made by a proper authority. The
respondent contended that the real powers in the matters are either the Permanent Secretary
or the Minister of Home Affairs.
The court held among others that the judicial functions imposed on the Registrar of
Societies must be performed by him personally and cannot be carried out through
subordinate officers.
In short, the court held that the decision of the Assistant Registrar of Societies was illegal
as it was made by the wrong person.

ii. Jurisdiction: error of law or error of fact

The court will quash a decision where the authority has misunderstood a legal term or
incorrectly evaluated a fact that is essential for deciding whether or not it has certain powers.
In R v Secretary of State for Home Department, ex part Khawaja,19 the House of Lord
held that the question whether the applicant were “illegal immigrants” was a question of fact
that had to be positively proved by the Home secretary before he could use the power to expel
them. The power depended on them being “illegal immigrants” and any error in relation to that
fact took the Home Secretary outside his jurisdiction to expel them.
However, where a term to be evaluated by the authority is so broad and vague that reasonable
people may reasonably disagree about its meaning, it is generally for the authority to evaluate
its meaning. For example, R v Hillington Borough Council ex parte Pulhofer20, the local

18
(1977) ZR 195.
19
(1984) AC 74
20
(1986) AC 484
authority had to provide homeless persons with accommodation. The applicants were a married
couple who lived with their two children in one room and applied to the local authority for aid.
The local authority refused aid because it considered that the pulhofers’ were not homeless and
the House of Lords upheld this decision because whether the applicant had accommodation
was a question of fact for the authority to determine. iii. The decision maker went beyond
their power: ultra vires

The classic example of this is the case of Attorney General v Fulham Corporation (1921),
where Fulham Council had the power to set up wash-houses for those without the facilities.
They decided to charge people to use it. The court held that they went beyond their power by
trying to benefit commercially from selling something that was supposed to be for everyone.
Another example of this is the case of R v Secretary of State for Foreign Affairs ex parte
the World Development Movement. In this case, section 1 of the Overseas Development and
Cooperation Act 1980 empowered the Secretary of State for Foreign Affairs to assign funds
for development aid of economically sound projects. The Secretary assigned the Pergua River
in Malaysia which w21as considered as uneconomic and not sound. The House of Lords held
that this was not the purpose envisaged by the enabling statute and the minister therefore
exceeded his powers.
See also the case of Chishimba Kambwili v the Attorney General,46in this case, the
Constitutional Court of Zambia ruled that the Speaker went beyond his powers in declaring the
applicant’s seat in the National Assembly as vacant. This was also the case in Geoffrey
Bwalya Mwamba v The Attorney General, 22in which the High Court of Zambia ruled that
the
Speaker’s decision to declare the applicant’s seat vacant, was in excess of the Speaker’s
jurisdiction. iv. Ignoring relevant considerations or taking irrelevant considerations into
account.

This ground is closely connected to illegality as a result of powers being used for the wrong
purpose, for example in Wheeler v Leicester City Council, where the city council banned a
rugby club from using its ground because three of the club’s members intended to go on a tour

21
/CCZ 009
22
in south Africa at the time of apartheid. In R v Somerset County Council ex parte Fewings
the local authority decided to ban stag hunting on the grounds of it being immoral. In Padfield
v Ministry of Agriculture, Fisheries and Food, the Minister refused to mount an inquiry
into a certain matter because he was afraid of bad publicity.
In the Zambia case of Chilufya v City Council of Kitwe23 the City Council of Kitwe
terminated Chilufya’s trading licence to occupy a market stall by resolution influenced by
political considerations as Chilufya was believed to be a supporter of the African National
Congress (ANC) rather than UNIP. The high court held that a city council which terminates a
trader’s licence to occupy a market stall by resolution influenced by political consideration is
acting unreasonable, unfairly and contrary to the principles of natural justice therefore, ultra
vires.
v. Fettering discretion

An authority will be acting unreasonably where it refuses to hear applications or makes certain
decisions without taking individual circumstances into account by reference to a certain policy.
When an authority is given discretion, it cannot bind itself as to the way in which this discretion
will be exercised either by internal policies or obligations to others. Even though an authority
may establish internal guidelines, it should be prepared to make exceptions on the basis of
every individual case.

Irrationality (Unreasonableness)
It is a principle of law that in judicial review, the court is not concerned with merit of the
decision made so as to have the court substitute the decision made by the public officer with
that of the court. Instead, the court in judicial review is concerned with the decision making
process. Meaning, in judicial review, the court is concerned with whether the decision made is
not
‘illegal’ and is not ‘procedurally’ incorrect. This is true when the ground for judicial review is
illegality and procedural impropriety. The Supreme Court of Zambia in the case of Dean

23
(1967) Z.R 115 (H.C)
 Namulya Mung'omba & 2 others v Peter Machungwa & 2 Others24 stated as follows at
page
21:
"Judicial review is concerned with the decision-making process. Whether the tribunal had to act in the
matter, whether they followed the procedure, whether they exceeded their jurisdiction and matters of
procedural nature. Judicial process is not concerned with the merits of the decision…..

However, when the ground for judicial review is irrationality, also known as unreasonableness,
the court can consider the merit of the decision made, and even substitute the decision of the
decision maker with that of the court (see the case of the Attorney General25v Roy Clarke).

Under Lord Diplock’s classification, a decision is irrational if it is “so outrageous in its defiance
of logic or accepted moral standards that no sensible person who had applied his mind to the
question could have arrived at it.” This standard is also known as Wednesbury
Unreasonableness, after the decision in Associated Picture Houses Ltd v Wednesbury
Corporation where it was first imposed.

It follows therefore that it is important to note that unlike illegality and procedural impropriety,
the courts under this head look at the merits of the decision, rather than at the procedure by
which it was arrived at or the legal basis on which it was founded. The question to ask is
whether the decision “makes sense.” In many circumstances listed under “illegality” above,
the decision may also be considered irrational.

In addition, it is important to note that unreasonableness as a ground for judicial review arises
in situations concerning the use of discretionary powers. This is so in that the exercise of
discretionary powers must be exercised reasonably.
i. Proportionality
Proportionality is a requirement that a decision is proportionate to the aim that it seeks to
achieve. E.g. an order to forbid a protest march on the grounds of public safety should not be
made if there is an alternative way of protecting public safety, e.g. by assigning an alternative

24
SCZ Judgment No. 3 of 2003
25
SCZ Judgment Appeal No. 96A/2004
 route for the march. However, proportionality is not yet a separate ground of judicial review,
Although Lord Diplock alluded to the possibility of it being recognized as such in the future.
At present, lack of proportionality may be used as an argument for a decision being irrational.
(See the case of The Attorney General v Roy Clarke in which the Supreme Court of
Zambia held the decision of the Minister to deport the respondent from Zambia was
disproportionate to the acts done by the respondent).

Procedural Impropriety
A decision suffers from procedural impropriety if in the process of its making the procedures
prescribed by statute have not been followed or if the rules of natural justice have not been
adhered to. It follows therefore that procedural impropriety will arise in the following
circumstances:
i.Statutory procedures

An Act of parliament may subject the making of a certain decision to a procedure, such as the
holding of a public hearing or inquiry, or a consultation with an external adviser. Some
decisions may be subject to approval by a higher body. Courts distinguish between
“mandatory” requirements and “directory” requirements. A breach of mandatory procedural
requirement will lead to a decision being set aside for procedural impropriety.
ii. Breach of natural justice

The rules of natural justice require that the decision maker approaches the decision making
process with ‘fairness,’ what is fair in relation to a particular case may differ. As pointed out
by Lord Bridge in Lloyd V Mcmahon.26 “The rules of natural justice are not engraved on
tablets of stone.” Below are some examples of what the rules of natural justice require:

a) The rules against bias

The first basic rule of natural justice is that nobody maybe a judge in his own case. Any person
that makes a judicial decision and this includes e.g. a decision of a public authority on a request
for licence-must not have any personnel interest in the outcome of the decision. If such interest
is present, the decision maker must be disqualified even if no actual basis can be shown, i.e. it

26
(1987) AC 625
is not demonstrated that the interest has influenced the decision. The test as to whether the
decision should be set aside is whether there is a “real possibility (of bias),” as was established
in the
English case of Gough v Chief constable of the Derbyshire constabulary (2001)

iii. The right to fair hearing

Whether or not a person was given a fair hearing of his case will depend on the circumstances
and the type of the decision to be made. The minimum requirement is that the person gets the
chance to present his case. If the applicant has certain legitimate expectations, for example to
have his licence renewed, the rules of natural justice may also require that they are given an
oral hearing and that their request may not be rejected without giving reasons. Where the
decision is judicial in nature, for example a dismissal of an official in punishment for improper
conduct, the rules of natural justice require a hearing and the person affected afforded an
opportunity to question, examine and object to the evidence.

This was the principle in the case of Ridge v Baldwin27 cited above. See also the Zambian
cases of Kang’ombe v the Attorney General, Chilufya v City Council of Kitwe and Albert
Sachipango v Road Traffic commission. In Ridge v Baldwin,28 the Brighton police authority
dismissed its chief constable (Charles Ridge) without offering him an opportunity to be heard
or defend his actions. The chief constable appealed, arguing that the Brighton watch committee
(headed by George Baldwin) had acted unlawfully (ultra vires) in terminating his appointment
in 1958 without giving him an opportunity to be heard. This was following criminal
proceedings against him which he was acquired.

The House of Lords held that Baldwin’s committee had violated the doctrine of natural justice
when they dismissed Ridge without informing him of the charge and giving him an opportunity
to be heard. In the Zambian case of Kang’ombe v the Attorney General,29 the applicant
Kang’ombe was dismissed. The applicant Kang’ombe, a teacher was dismissed by the

27
(1964) AC 40 (HL)
28
(1964) AC (House of Lord)
29
(1973) ZR 114
 president from the teaching service commission, without being given an opportunity to be
heard or informing him of the charges levelled against him.

It was held by the Supreme Court (then court of appeal for Zambia) that the dismissal was null
and void as it was ultra vires and contrary to the principles of natural justice. This was so in
that the applicant was not given an opportunity to be heard or informed of the charges against
him before he was dismissed. See also the case of Chilufya v City Council of Kitwe cited
above.

iv. Duty to give reasons

Unlike many other legal systems, English administrative law does not recognize a general duty
to give reasons for decisions of a public authority. A duty to give reasons may be imposed by
statute. Where it is not, common law may imply such a duty and the courts do so particularly
with regard to judicial and quasi-judicial decisions.

It is important to state that the proposed Bill of Rights of 2016, that is National
Assembly of Zambia Bill No. 37 of 2016 (N.A.B. No. 37 of 2016) that failed to go
through the 2016 referendum contained a provision that intended to guarantee the
compulsory application of the Rules of National Justice in every situation where an
individual in Zambia was to be dealt with by a public authority. This entails that had
the Bill become law, an individual would have as a human right, the right to have the
“rules against bias”, the right to fair hearing and the right to give reasons for a
decision, to be applied to him whenever a public authority was dealing with the
individual. This provision was contained in clause 31 of the proposed Bill as follows:
31. A person has the right to administrative action that is expeditious, lawful, reasonable and
procedurally fair.

This provision would have vested this right in the individual by law and thereby removed
the enjoyment of this right at the discretion of the court as is the case currently as was the
case in the Chiluba v Attorney General case cited above.
It is important to note that countries like South Africa and Kenya have similar provisions
in their constitutions as follows:

The Constitution of the Republic of South African, 1996

In the South African Constitution the provision is contained in section 33 as follows:

33. (1) Everyone has the right to administrative action that is lawful, reasonable and procedurally
fair.
(2) Everyone whose rights have been adversely affected by administrative action has the right to
be given written reasons.
(3) National legislation must be enacted to give effect to these rights, and must—
(a) provide for the review of administrative action by a court or, where appropriate, an independent and
impartial tribunal;
(b) impose a duty on the state to give effect to the rights in subsections (1) and (2); and (c) promote an
efficient administration.

The Constitution of Kenya, 2010

In the Kenyan Constitution, the provision is contained in Article 47 as follows:

47. (1) Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable
and procedurally fair.
(2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by
administrative action, the person has the right to be given written reasons for the action.
(3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation
shall— (a) provide for the review of administrative action by a court or, if appropriate, an independent
and impartial tribunal; and
(b) promote efficient administration.

Legitimate Expectation
A legitimate expectation will arise when a person (or a group or class of persons) has been led
by a policy, promise or representation of a public body to understand that, for example, certain
steps will be followed in reaching a decision. Legitimate Expectation will arise in the following
circumstances:

a) When an individual or group has been led to think that certain steps will apply or
that they will be consulted or heard before certain steps are taken or certain decisions
are made.
b) When an individual or a group relies on a policy or guidelines which govern an area
of past executive action.
The above principle has been recognized in the case of R v Liverpool Corporation Ex Parte
Liverpool Taxi Fleet operators (1972). The court may uphold not only a legitimate
expectation that a certain procedure would be followed by a public body (“procedural”
expectations) but also an expectation of some substantive benefit see the case of Francis Peter
Kasoma v the Attorney General.55 This case is also known as the Press Association of
Zambia (PAZA) v Attorney General. In this case government prepared a media council Bill
requiring every journalist to be registered with the council before they can practice without
consulting the journalists even though the government had assured them that before the
decision was made, they would be consulted. The effect of the Bill would have been to displace
the existing PAZA.
The High court quashed the government’s decision to draft the Media Council Bill without
consulting the stakeholders, in this case the journalists through their representative body the
then
PAZA.

Judicial review therefore is a very unique action in the sense that:

1. Before one moves 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 e.t.c
2. That decision taken by a public officer must have an effect on someone i.e. the
decision must deprive someone of some right or some benefit. It is important to note also
that courts now allow judicial review to protect legitimate expectation.

55
1995/HP/29159
3. Courts will only intervene on very specific grounds. In principle then, judicial
review is necessary because of the following reasons:
a) A public officer may act with impurity in the face of the law.

b) A public officer may be biased in affecting the law

c) A public officer may exhibit dishonest conduct

d) There may also be cases where a public officer is genuinely in error in

understanding his powers.
 e) The public officer or decision maker can also overstate the extent of his
authority. Whether to bring an action for illegality, procedural impropriety,
irrationality or legitimate expectation is essentially a decision for a lawyer to make.
However, it is possible to challenge a decision based on illegality and or procedural
impropriety or unreasonableness/ irrationality or legitimate expectation on the same
facts.

Remedies Available under Judicial Review

The following remedies are available in proceedings for judicial review:

1. Certiorari

2. Mandamus

3. Prohibition

4. Declaration

5. Injunction

6. Damages

Certiorari (Quashing Order)

Certiorari is the primary remedy in judicial review. The primary function of certiorari is to
quash an invalid decision of a public officer. In other words, a public officer has acted and an
aggrieved party believes that his action is illegal and has acted outside the perimeters of the
law (illegality). Any action that is illegal can attract the remedy of certiorari. The effect of
certiorari is like that decision was never made at all (back to zero).
Certiorari is the core remedy in judicial review. The court will grant other reliefs if the remedy
of certiorari is not enough. The certiorari will serve to quash the offending decision and render
it retrospectively null and void. Certiorari cannot be used in an anticipatory action for example,
if one anticipates that a public officer will come to demolish the house, one cannot stop him
from coming to demolish though there are exceptions.
In the case of Albert Sachipango v Road Traffic Commission,30 the court held that the failure
by the Road Traffic Commission to give the applicant an opportunity to be heard before
revoking his driver’s licence was a breach of the rules of natural justice. Therefore certiorari
was issued to quash the decision of the commission.

In Chilufya v City Council of Kitwe,31 the court held that a city council which terminates a
trader’s licence to occupy a market stall by resolution influenced by political consideration is
acting unreasonably, unfairly and contrary to the principles of natural justice and therefore the
decision is ultra vires, and certiorari can lie to quash the decision.

Mandamus

Mandamus is a mandatory order that compels a public authority to fulfill their duties. Whereas
certiorari deals with wrongful acts, mandamus addresses wrongful failure to act. A mandatory
order is similar to a mandatory injunction discussed below. This is so in that mandamus is an
order from the court requiring a public authority to perform an act. Failure to comply by the
public authority to a mandamus order amounts to punishment as a contempt of court.

Examples of where mandamus might be appropriate include: compelling an authority to assess

a disabled persons needs, to approve building plans, or to improve conditions of imprisonment.
An order of mandamus may be made in conjunction with a quashing order, for example, where
a local authority’s decision is quashed because the decision was made outside its powers, the
court may simultaneously order the local authority to remake the decision within the scope of
its powers.
In the case of R v Cambridge University (1723) (or Bentley’s case), the court of kings Bench
issued mandamus to the University of Cambridge ordering the restoration to one Dr Bentley
of the degrees of Bachelor of Arts and Bachelor and Doctor of divinity of which he had been
deprived by the university without a hearing. Dr Bentley had been served with a summons to
appear before a university court in an action for debt. He said the process was illegal, that he
would not obey it and that the vice-chancellor was not his judge. He was then accused of

30
(1977) RZ 48
31
(1969) ZR 115
contempt and without notice deprived of his degree by the ‘congregation’ of the university.
Judge Forstscue of the court of Kings Bench issued mandamus directing the university to
restore Dr. Bentley to his academic degree. The judge stated that the decision by the university
to strike off Dr. Bentley of his academic degrees without giving him an opportunity to be heard
was against the rules of natural justice.

Prohibition

Prohibition is similar to certiorari in that it prevents a public authority or tribunal from acting
beyond the scope of its power. The key difference is that prohibition acts prospectively by
telling an authority not to do something in contemplation. Examples of where prohibition may
be appropriate include stopping the implementation of a decision in breach of natural justice,
or to prevent a local authority licensing indecent films, or to prevent the deportation of
someone whose immigration status has been wrongly decided.

Declaration

A declaration is an order which clarifies the respective rights and obligation of the parties to
the proceedings, without actually making an order. Unlike the remedies of certiorari,
prohibition and mandamus, the court is not telling the parties to do anything in a declaratory
judgment. For example, if the court declared that a proposed rule by local authority was
unlawful, a declaration would resolve the legal position of the parties in the proceedings.
Subsequently, if the authority were to proceed ignoring the declaration, the applicant who
obtained the declaration would not have to comply with the unlawful rule and certiorari,
prohibition and mandamus would be available. It is important to note that a declaration is a
discretionary remedy and as such it is given at the discretion of the court (see the case of
Chishimba Kambwili v the Attorney General,58in which the Constitutional Court ruled that
a declaration is a discretionary remedy and as such it is given at the discretion of the court).

Injunction

An injunction is an order made by the court to stop a public body from acting in an unlawful
way. Less commonly, an injunction can be mandatory, that is, it compels a public body to do
something where there is an imminent risk of damage or loss, and other remedies would not
be sufficient, the court may grant an interim injunction to protect the position of the parties
before going to a full hearing. If an interim injunction is granted pending final hearing, it is
possible that the side which benefits from the injunction will be asked to give an undertaking
that if the other side is successful at the final hearing, the party which had the benefits of the
interim protection can compensate the other party for its losses. This does not happen where
the claimant is legally aided.
It is important to note that in Zambia, an injuction cannot be given against the state. That is, an
injuction cannot be obtained against the Executive, Legislature and Judiciary. This is as
provided by the State Proceedings Act59 in section 16 of the Act that provides as follows:

16. (1) In any civil proceedings by or against the State the court shall, subject to the provisions of this
Act, have power to make all such orders as it has power to make in proceedings between subjects, and
otherwise to give such appropriate relief as the case may require:
Provided that-
(i) where in any proceedings against the State any such relief is sought as might in
proceedings between subjects be granted by way of injunction or specific performance, the court
shall not grant an injunction or make an order for specific performance, but may in lieu thereof
make an order declaratory of the rights of the parties; and
(ii) in any proceedings against the State for the recovery of land or other property, the
court shall not make an order for the recovery of the land or the delivery of the property, but
may in lieu thereof make an order declaring that the plaintiff is entitled as against the State to
the land or property or to the possession thereof.

58
2019/CCZ 009
59
Chapter 71 of the Laws of Zambia
(2) The court shall not in any civil proceedings grant any injunction or make any order against a public
officer if the effect of granting the injunction or making the order would be to give any relief against
the State which could not have been obtained in proceedings against the State.

It is important however to note that an injunction can be made against statutory bodies
such as Councils and other statutory bodies. See the case of Kabimba v Attorney
General and Another,32in which the Supreme court of Zambia held that an injunction
can be granted against Councils. In addition, in this same case, the Supreme Court ruled
that an injunction cannot be obtained against the State.

32
SCZ Judgment No. 13 of 1996
Damages

Damages are available as a remedy in judicial review in limited circumstances. Compensation

is not available merely because a public authority has acted unlawful. For damages to be
available there must be a recognized, private law cause of action such as negligence or breach
of duty.

ACTIVITY

Now that you have gone through unit nine, answer the following questions:

1. Explain what is meant by the term judicial review

2. Explain the grounds for judicial review and why it is necessary to review
decisions of public authorities

3. Explain the remedies available in judicial review.