MODULE SEVEN

THE EXECUTIVE AND LEGISLATIVE BRANCHES OF GOVERNMENT

LECTURE NOTES

Overview

 Clearly define the nature of executive power and the presidency

 Clearly distinguish between the Vice President, Ministers and Cabinet
 Correctly describe the functions of the Attorney – General, Solicitor – General and the
Director of Public Prosecutions
 Explain the function of the Commission for Investigations
 Correctly describe the Civil Service and the Law Enforcement Agencies
 Clearly describe the legislature
 Clearly explain the membership and the qualification
 Clearly explain the legislative powers and procedure
 Clearly explain the Code of Conduct for Parliamentarians

Introduction:

Under the doctrine of separation of powers, the governance of a state is traditionally divided
into three branches each with separate and independent powers and responsibilities: an
executive, a legislature and a judiciary. The distribution of power in this way is intended to
prevent any one branch or person from being supreme and to introduce ‘checks and balances’
through which one branch may limit another. According to a strict interpretation of the
separation of powers, none of the three branches may exercise the power of the other, nor
should any person be a member of more than one of the branches.

In practice, however, many countries do not aim for a strict separation of powers, but opt for
a compromise, where some functions are shared between the institutions of state. This is the
case in Zambia.

1.0 Nature of Executive Power

The nature of executive power refers to the power to execute the laws, to carry into
effect the provisions of the law, either by enforcement against persons contravening
them or by doing work or performing an act. Executive power presupposes some law
that is to be executed. This also implies the existence of a law pursuant to which the
action of the executive is done. This law includes the Constitution, enacted legislation
and international law.

1.1 The Presidency

Article 91(1) creates the office of the president who is Head of State and of the
Government as well as the Commander – in – Chief of the Defence Forces. The
executive power of the Republic is vested in the President, and subject to the other
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 provisions of the Constitution, shall be exercised by the President either directly or
through officers subordinate to him.

In performing his functions the President is required, unless it is otherwise provided,

to act in his own deliberate judgment and is not obliged to follow the advice tendered
by any other person or authority.

1.3 Election of President

 Read: Legal Resources Foundation v Zambia, Application No. 211/98

 Zambia Democratic Congress v The Attorney – General SCZ No. 35/1996
 Lewanika, Kambaila, Mungomba, Zulu and Mwaba v Chiluba
 Constitution of Zambia (Amendment)

1.4 The Vice President

Read Constitution of Zambia (Amendment) from Article 110 to 112

1.5 Ministers/ Provincial Ministers and the Cabinet

Ministers are appointed from among MPs and Cabinet is constituted under Article 116
of the Constitution. Cabinet formulates policy of the government and to advise the
President with respect to government policy and with regard to such other matters as
may be referred to it by the President. It should be noted that the advice of cabinet is
not binding on the President.

Read Constitution of Zambia (Amendment) from Article 113 to 117

1.6 Attorney – General

Principal legal officer appointed by the President but appointment has to be ratified by
parliament. Acts as an ex – officio member of Cabinet. Other functions include, inter
alia to cause the drafting of, and sign all Government Bills to be presented to
parliament, draw and peruse agreements, contracts, treaties, conventions and
documents by whatever name called to which government is party and to perform any
such functions as may be assigned to him by the President or by law. The AG also
represents government in courts or any other legal proceeding to which government is
a party. Under State Proceedings Act Cap 71 of the Laws of Zambia he is cited as the
defendant/plaintiff in civil suits involving government departments or officials.

Read Constitution of Zambia (Amendment) from Article 177

1.7 The Solicitor – General

The AG is assisted by the SG who is also an appointee of the President but ratified by
parliament. He enjoys no security of tenure as he may be removed from office
anytime. Article 179.

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1.8 The Director of Public Prosecutions

Office constituted in accordance with Article 180 of the Zambian Constitution.

Appointed by the President subject to ratification by Parliament. The DPP is the chief
prosecutor and has power to appoint any individual or class of individuals to be public
prosecutors generally or in respect of particular types of cases. DPP has power to
enter a nolle prosequi. The Constitution guarantees independence of the DPP
[(Article 180 (4) (C)]

1.9 Public Protector

Constituted under Article 243 (1) of the Constitution with its functions prescribed in
the Commission for Investigations Act, Cap 39 of the Laws of Zambia. The
Commission comprises four officers appointed by the President. The four include the
Chairperson.

1.10 The Civil Service and the Law Enforcement Agencies

The Civil Service is headed by the Secretary to the Cabinet. Appointed by the
President but subject to ratification by parliament. He is assisted by the deputy
Secretary to the Cabinet together with Permanent Secretaries of various ministries
who are top civil servants.

1.11 Law Enforcement Agencies

Article 192 creates the Zambia Defence Forces. The Zambia Police Service is a
creature of the Constitution under Article 104 and the Zambia Police Act, Cap 107 of
the Laws of Zambia. The Anti – Corruption Act No. 42 of 1996 creates the Anti –
Corruption Commission.

The Drug Enforcement Commission is created under the Narcotic Drugs and
Psychotropic Substances Act, Cap 96 of the Laws of Zambia. The Defence Act, Cap
106 of the Laws of Zambia and the Zambia National Service Act, Cap 121 of the
Laws of Zambia are a creation of parliament to support the law enforcement agencies’
activities.

The Zambia Security Intelligence Service created by parliament through Cap 109 of
the laws of Zambia. Article 193 (C) of the Constitution creates the Prison Service and
the modus operandi is laid out in the Prisons Act, Cap 97 of the Laws of Zambia.
Article 220 provides for the establishment of the Judicial Service Commission and
other commissions whose functions are prescribed in the Service Commissions Act,
Cap259.

2.0 The Legislative Branch of Government

The legislature is one of the three arms of government. It is obvious that this body is
fundamental to the operations of democracy and the exercise of good governance.

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2.1 Membership

Article 68 provides that the National Assembly shall consist of one hundred and fifty
six elected members; not more than eight nominated members; and the Vice
President, Speaker and, first and Second Deputy Speakers. The election of members is
to be by direct universal adult suffrage and by secret ballot in constituencies.

To qualify for election to the office of MP, a candidate must be a Zambian citizen, at
least twenty – one years old and literate and conversant with the official language of
Zambia, which is English.
Article 70 provides a list of unqualified persons for the office of MP.

2.2 Tenure

Article 81 provides for the tenure of office for MPs. Article 69 provides for
nominated members of parliament and Article 72 (f) empowers the President to
terminate such an appointment at any time.

The Clerk of the National Assembly is the CEO and is supported by a cadre of staff.
The Clerk is appointed by the President.

2.3 Legislative Powers

The National Assembly plays a very important role under the doctrine of the
separation of powers. Not only is it a law – making body but it also has oversight
responsibilities particularly in relation to the Executive Branch. Whether or not a
State observes good governance depends on the effectiveness of the legislature in the
way it carries out its duties and responsibilities. Article 63

The power of Parliament is exercised by Bills passed by the National Assembly and
assented by the President. Article 66 empowers the President to either assent the Bill
or veto its assent.

2.4 Fiscal Powers

Article 199 empowers Parliament to impose taxation through a statute. Parliament

therefore sets forth the taxation and the expenditure parameters for the Executive to
execute.

2.5 The Power of Impeachment

This is contained in Article 108 of the Constitution.

2.6 Parliamentary Committees

Provided for under Article 80. The system of committees ensures that the Executive is
accountable to Parliament. It enables parliament to conduct checks and balances on
the Executive. Under this, parliament can probe into any maladministration and make
recommendations for improvement.

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2.7 Code of Conduct for MPs

All MP, Ministers are required to conduct themselves during their tenure of office in
accordance with the code of conduct set by Parliament. Article 72 (2) or (3) (c) states
that a member of the National Assembly shall vacate the seat if s/he acts in a manner
inconsistent with the code of conduct prescribed by an Act of Parliament. The Act
referred to is the Parliamentary and Ministerial Code of Conduct Act whose object is
to establish a code of conduct for ministers.

2.8 Office of the Auditor – General

This is provided for under Article 249 of the Constitution.

Conclusion

The politics of Zambia takes place in a framework of a presidential representative democratic

republic, whereby the President of Zambia is head of state, head of government and leader of
a multi-party system. Executive power is exercised by the government, while legislative
power is vested in both the government and parliament.

The separation of government powers amongst three branches prevents abuses of power.
Each branch has some independent powers, but the three different branches also monitor and
limit each other. This is called a system of checks and balances. This system helps to make
sure that no one person or institution becomes too strong or controlling. The separation of
powers helps protect the rights of the people of Zambia.

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References:

Muna B. Ndulo & Robert B. Kent, Constitutionalism in Zambia: Past, Present and Future.
Journal of African Law. Vol.40, No.2

Prof. Chanda, A.W.,(2011), Constitutional Law in Zambia, Ch. 9

Besa, M., (2011), Constitution, Governance and Democracy, Ch. 4