ZAMBIA OPEN UNIVERSITY

SCHOOL OF LAW

STUDENT NAME: KASIMBI MOOYE

PROGRAM: BACHELOR OF LAWS (LLB)

COURSE: CONSTITTIONAL LAW 1

COURSE CODE: LL121 COMPUTER: 221000000

YEAR OF STUDY: 2023, SEMESTER ONE

LECTURER: MS TRACY MBANDAMINA

DUEDATE: 08 DECEMBER, 2023

PHONE NO: 097000021300 EMAILADDRESS: zakayalatengo60@gmail.com

QUESTION: Discuss the concept of separation of powers and explain how this
concept has been achieved in Zambia.

1
Introduction

The Constitution of Zambia creates the organs of the state encompassing the law
making, executive and judicial organs which reflects the democratic ideal that if power is
concentrated in the hands of a few, it is prone to misuse1. This provision aims to
safeguard against arbitrary and capricious governance and the abuse of power 2. In the
new constitutional order promulgated in 2016, although the three organs of the state
seemingly work independently, there have been instances of tensions between the
judiciary and the other arms of government.

Unfortunate incidents of members of the Legislature and executive failing to honor the
court rulings and disregard for court orders have been witnessed. Reports of
interference in the work of the judiciary and the legislature have also been recorded in
certain cases3. In a government whose legitimacy is vindicated by a court, it is ironical to
observe a selective attitude towards respecting subsequent court orders and interfering
in it works through issuing threats and the like.

Generally, this essay is an attempt to analyze the doctrine of separation of powers in

Zambia. As such, when analyzing the issue at hand, focus will also be made on
determining Zambia's levels of implementation of the doctrine of separation of powers.
In doing so, the paper will examine the levels of interference of these organs in each
other’s operations and whether this interference is unwarranted or meant to serve as a
check in order to ensure that they all exercise their power within the scope of their
authority. The first part will briefly explain what the doctrine is all about.

The Doctrine of Separation of Powers

This is a concept that can be traced back to the 16th century with Aristotle, Polybius,
Cicero, St. Thomas Aquinas, and Machiavelli who all argued that mixed regimes of the
one, the few, and the many were the best forms of regimes in practice because they led
1
Gloppen (2003). The Accountability Function of the Courts in Tanzania and Zambia: Democratization and the
Judiciary: Oxford University Press.
2
Alder, J (2005) Constitutional and Administrative Law, 5th Edition, Palgrave Macmillan, London
3
Ndulo, Muna (2013) “Judicial Reform, Constitutionalism and the Rule of Law in Zambia: From a Justice System to
a Just System,” Zambia Social Science Journal: Vol. 2: No. 1, Article 3

2
to a system of checks and balances4. Baron de Montesquieu, who is widely quoted on
the subject of the doctrine of separation of powers, suggested a pure separation of
powers system5. Van der Vyver, borrowing from Montesquieu, is of the opinion that
separation of powers is composed of the following principles:6

i. The principle of trias polita, requiring a formal distinction between the

legislature, executive and judiciary.

ii. The principle of personnel according to which the same people should not be
allowed to serve more than one branch of the government at the same time.

iii. Separation of functions between the three branches to avoid one interfering
with or assuming the roles of the other and

iv. The principle of checks and balances that requires that each organ be
entrusted with special powers designed to serve as checks on the exercise of
functions by the others in order to come to an equilibrium.

In its simplicity, separation of powers according to Black’s Law Dictionary denotes that
power should not be vested in the hands of few, but clearly donated to three arms of
government so that none should have excessive powers 7. Such a situation gave rise to
the famous quote of Lord Atkin’s that ‘power tends to corrupt and absolute power tends
to corrupt absolutely.’ The constitution of Zambia captures the principles elucidated by
Van der Vyver, as have been described above. As regards formal distinction and
precision of functions, the constitution is clear in that the sovereign power of the people
is delegated to the Legislature, Executive and Judiciary and goes on further to assign
their functions8.

4
Calabresi G and Berghausen E, ‘The rise and fall of the separation of powers’ 106 Northwestern University Law
Review (2012)
5
Cooper S, ‘Considering ‘Power’ in Separation of Powers’ Standard Law Review (1994)
6
Van der Vyver JD, ‘Political Power Constraints in the American Constitution’ South African Law Journal (1987).
7
Brayan Carner, Black‟s Law Dictionary (9th ed, West Publishing Company 2009) 45.
8
Constitution of Zambia 2016, arts 61, 90 and 119

3
Analysis of the Doctrine of Separation of Powers in Zambia- Theory and Practice

Zambia’s Constitution does not expressly provide for the doctrine of separation of
powers, but the institutional arrangements outlined in all the constitutional regimes of
the country infer its existence. Further, state power has been divided and dispersed to
the three main arms of government; executive, legislature and the judiciary.

The Legislature

The legislative authority of the Republic of Zambia is derived from the people and is
only vested in and exercised by the parliament through Bills passed by parliament and
assented to by the President with the role of protecting the constitution and promote
democratic governance9. Part VI of the constitution of Zambia deals with the Legislature
which derives its legitimacy from the people10 as already stated. The constitution is
further very categorical that, ‘no person or body, other than Parliament, has the power
to make a provision having the force of law in Zambia except under authority conferred
by this constitution or by legislation11.’ It thus solely places the law-making function in
the legislative arm.

The Executive

The Zambian constitution provides for the executive branch12. The functions of the
executive are not easily pointed out and some scholars have argued that this is
because the executive functions in most of the world constitutions are merely the
residue of the functions of government after legislative and judicial functions have been
carved out13. That notwithstanding, Part VII of the constitution has outlined the functions
of the executive, constraining itself to the narrow understanding of the executive14 by
looking at the different functions of the President, the Vice President and the Cabinet,

9
Sangwa John (2005) The Constitutional Framework of Administrative Law (unpublished)
10
Constitution of Zambia 2016, art 61 and 62 (1)
11
Ibid, art 62 (3)
12
Ibid, art 90, 91 (1), (2)
13
Report of the Mung’omba Constitutional Review Commission (2005) p315: A Technical Committee on the
Constitution Making Process.
14
Kapur AC, Principles of political science, (1996), 575. A narrow understanding of the executive refers only to the
Chief Executive Head of State and his advisers and ministers.

4
these functions according to Shukla include; policy formulation, maintaining law and
order, initiating legislation etc15.

The Judiciary

The constitution of Zambia provides for the Judiciary which is entrusted with judicial
authority16. Judicial authority refers to the powers vested in a tribunal to decide
authoritatively and conclusively disputes between subjects of the State, or between the
State and its subjects17. This judicial authority is derived from the people and is vested
in the courts and tribunals established by the court18. In addition to the key guiding
principle the courts and tribunals should consider, vital provisions of safeguarding
independence of the Judiciary are provided which means that one organ of government
should not usurp or encroach upon the powers or work of another. Further the principles
include security of tenure, and remuneration as well as the proviso that the Judiciary is
only subject to the constitution and the law and not subject to the control or direction of
any person or authority19.

Checks and Balances

The idea of checks and balances is part and parcel of the doctrine of separation of
powers and probably the most controversial precept that is also reflected in the
constitution. It refers to the restraints which operate between the different institutions of
government in order to guard against abuses of powers20. The legislature in Zambia, for
instance, checks the executive through reserving the power to impeach a President21,
while the Executive, on the other hand, checks the Legislature through presidential
assent of Bills into law. The Judiciary on its part checks the Executive and Legislature

15
Shukla VN, Constitution of India (1980); Ram Jawaya Kapoor v State of Punjab AIR (1955) SC 549:1955 2 SCR225.
16
Constitution of Zambia 2016, art 118 (1)
17
Currie and De Waal, The New Constitutional and Administrative Law, (2001) 268.
18
Ibid.
19
E.C.S. WADE & A.W. BRADLEY, (2001) Constitutional and Administration Law 50
20
Carrol A, Constitutional and administrative law, Longman Publishers, 2007, 39.
21
Constitution of Zambia Act 2016, art 108

5
through its power of judicial review22. This is in line with idea postulated by Montesquieu
that ‘le pouvoir anête le pouvoir’ meaning that power should check power.

However, despite the fact that separation of powers doctrine promotes a system of
checks and balances existing among the three organs of the government to ensure a
strong nurtured democratic system, the judiciary in Zambia still faces threats by the
executive of being removed from office sometimes for political expediency 23. Threats
and attempts by the legislature to remove judges for their decisions is a show of
intolerance and vengeance against the Judiciary for their ‘unfavorable’ orders. This
guarantees that only if and when the three arms of government work in understanding
their constitutional role, and not self-interest, the doctrine of separation of powers may
not serve its intended purpose.

The Courts and the Executive

One of the functions of government of the Republic of Zambia is to protect the rights of
individuals24, however, in most cases; government is the major violator of these rights
that it is meant to protect. Consequently, the concept of separation of powers is one of a
number of measures that have been derived to reduce the likelihood of abuse of power
by the government and the violation of individual rights. There have been several
instances when the court has stopped or nullified the decisions of the executive
because it was unlawful, ultra vires the constitution or infringing on fundamental rights
and freedoms25.

In some instances, court decisions have been ignored and the executive has seemly
interfered in the judicial operations by questioning its decisions. The case in point which
is the most recent one is the famous case of Former Ministers’ stay in office after

22
Constitution of Zambia 2016, art 134 (c)
23
George Kunda (2000). Justification for Judicial Code of Conduct and Accountability: Zambia Law Journal, Vol. 32.
24
Ibid, Part III of the Laws of Zambia
25
See for example, the case of Attorney General v Clarke Appeal Judgment No 96A/2004, ILDC 1340 (ZM 200)
where the Court quashed a deportation order against a defendant for failure to observe procedural fairness;
Mumba v The People (1984) Z.R. 38 (H.C.),, a provision in a statute which mandated an accused person in a
criminal case to give a sworn statement was held to be inconsistent with the Constitution and was subsequently
quashed by the court; and Christine Mulundika and the Five Others vs. Attorney General S.C. (1995) (1996) where
the court held the provisions o the Public Order Act null and void for being in conflict with the constitution.

6
parliament was dissolved in 2016 at the whims, preferences and advice of the
president. The Constitutional Court ruled that the stay in office was illegal because a
person holding office in one organ of government should not owe his tenure to the will
or preferences of persons in any of the other organs26. The Ministers who had stayed in
office illegally were ordered by the court to refund the money and any benefits received
in the process. The order was ignored by a good number of them and only a few were
willing to honor the court judgment. The Court decision was publicly protested by the
members of the executive who were of the opinion that the decision was unfair 27.

The instant matter where former Ministers could not honor the court order is a cause of
anxiety as this creates a perception than the government Ministers who fall under the
executive organ are superior or are competing with the courts in certain matters where
their decisions have been questioned. Where Ministers therefore by their actions step
outside the boundaries of law, courts have the Constitutional mandate to bring them
back to track and that is all that the courts do and the Executive should obey the court
order whether they agree or not. If one does not agree with an order, then he ought to
move the court to discharge the same. To blatantly ignore it and expect that the court
would turn its eye away is to underestimate and belittle the purpose for which courts are
set up and in the process undermining separation of powers.

If the executive violates the procedural requirements of the supreme law of the land, it is
for the courts of law to assert the authority and supremacy of the Constitution in line
with the law28. However, Gloppen indicates that not all matters may be reviewed as
there are certain matters that are pre-eminently within the domain of the executive, for
instance, the courts may not make orders that impact on state policy 29. The courts may
not involve themselves in policy formulation, and in instances where the constitutionality
of the policies of the executive are challenged, the courts give orders accordingly only to

26
‘Ex-Ministers to pay back k75, 000 each for staying in office illegally’ July 18, 2020: www.lusakatimes.com.
27
Ibid.
28
Bradley, A.W & Ewing, K.D (2007) Constitutional and Administrative Law, 14th Edition, Pearson, Harlow.

29
Gloppen, S (2003). The Accountability Function of the Courts in Tanzania and Zambia: Democratization and the
Judiciary: Oxford University Press.

7
the extent of the unconstitutionality of such policy and this must be done carefully
without discrediting the legitimate function of the executive from formulating such
policies30.

The Courts and the Legislature

As already alluded to, the principle is that one organ of the government should not
usurp or encroach upon the powers or work of another. This means, for example, that
the legislature should not do the work of the judiciary and the judiciary should maintain
its lane31. In Zambia, separation of power in this context is practically enforced in many
instances and it is in public domain that the judiciary and not the legislature do its work
of adjudicating and interpreting the law without interference from parliament.

However, there are some instances when there is a clash whereby the legislature
usurps power to interpret the law instead of leaving to the judiciary to do its work. Cases
abound and one of the most controversial decisions by the courts with regard to the
legislature is Chishimba Kambwili v Attorney General32. The petitioner an estranged
member of parliament had his seat declared vacant by the Speaker of the National
Assembly on the account that he had crossed the floor by acting as a political
consultant of another party. The Constitutional Court found that the action of the
Speaker to have been unconstitutional as the office is not vested with power to interpret
the law or resolve constitutional matters and therefore usurped the powers of the
judiciary. The Constitutional court in Chishimba Kambwili’s case did defend its
jurisdiction to determine matters of interpreting the law.

The Kambwili’s decision is very important because it reinforces Montesquieu’s theory

that the three arms of government, that is to say, the Executive, the Legislature and the
Judiciary have their respective mandates clearly set out in the Constitution and that, as
far as possible, each arm of Government must desist from encroaching on the functions
of the other arms of government. In fact, from the analysis of case law highlighted in this

30
Ibid.
31
Bradley, A.W & Ewing, K.D (2007) Constitutional and Administrative Law, 14th Edition, Pearson, Harlow.

32
Chishimba Kambwili v Attorney General 2019/CC/009

8
paper, it is clear that the court’s position has always been that it can only interfere with
the exercise of the Executive and the Legislature’s mandates if it is alleged and
demonstrated that they have threatened to act or have acted in contravention of the
letter and spirit of the constitution.

The judicial-parliament relationships must adhere to the doctrine of separation of

powers. Unlimited legislative usurpation or interference in judicial proceedings has it has
been observed in certain instances may pose a threat to the purposes underlying the
separation of powers, in particular, ensuring that legal disputes are protected from
political influence and factional interest. In fact, judicial power is protected by
guaranteeing the independence of the judiciary33. Unfortunately, judicial independence
is a ar etched concept in Zambia because judicial appointments are made by the
President indirectly through the Judicial Service Commission whose members are
predominantly political appointees34. The ideal thing is that each arm of government has
its own distinct functions and is not allowed to encroach on the functions of the other
arm of government as observed in Kambwili case. However, the challenge in Zambia
lies in the constitutional order which allows partial fusion of the executive and the
legislature. This practice has led to some difficulties which have been translated in the
actual working of the constitutional order35.

Executive Dominance vs. Separation of Powers in Zambia

Even though the current Constitution implies provision for separation of powers, in
reality, the executive branch of government has stronger control and influence on the
functionaries of the legislature and the judiciary. As the Constitution gives the President
power to appoint Cabinet Ministers, Parliament’s mandate of making laws
independently is unattainable because it has become an extension of the executive. In
addition, members of the National Assembly have more allegiance to their respective

33
Jackton Ojwang, ‗Ascendant Judiciary in East Africa: Reconfiguring the Balance of Power in a Democratizing
Constitutional Order‘ (Strathmore University Press 2013) 123.
34
Act No. 2 of 2016.
35
Sangwa JP The Constitutional Framework of Administrative Law (unpublished) (2005).

9
parties than to their constitutional mandate of enacting progressive legislation and
acting as a check on the executive36.

Further, because the executive appoints his cabinet from among the legislature, it can
be concluded that chances are high that motions and acts of parliament are voted for
not on merit, but on party lines and therefore there is no objectivity in the manner
business is conducted. Unpopular motions and legislation are affirmed strictly on
partisan lines37. Some of the appointments made by the President to constitutional
offices are ratified by Parliament not on merit, but because of allegiance to the
appointing authority.

As for the judiciary, partisan traits can be seen in the manner in which adjudications are
conducted38. Some judges are appointed because they are useful to the executive
branch of government and not because they are fit and proper to hold judicial positions.
The bias in these imposed judges is normally seen when they are called to resolve
matters of political significance as they mostly find for government39.

The above scenario has basically turned the legislature and judiciary into rubber stamps
for the executive, causing the President to emerge as a powerful force, much stronger
than parliament and judiciary as institutions. This position is, unfortunately, not
highlighted by the Constitution, but has been created by the undefined powers
bestowed in the President40. Unrestrained usurping of power by the executive has been
allowed by the other branches of government for a myriad of reasons, among them
monetary gains, fear of persecution by government machinery and failure to uphold
constitutional responsibilities41.

36
Ibid.
37
Ibid, n 27
38
An example is one by the name of Meebelo Kalima who was appointed as Director of Public Prosecution (DPP)
by the President. With a majority vote from the ruling party, Parliament ratified his appointment despite
representations from the Law Association of Zambia that he was not fit and proper to hold the constitutional office
of DPP. Months later, Mr. Kalima was suspended by the President on allegations of improper conduct and a
tribunal was set to investigate the allegations and probe the possibility of his removal from office.
39
Sangwa JP The Constitutional Framework of Administrative Law (unpublished) (2005).
40
‘Zambians’ Trust in the Judiciary Failing, as well as Legitimacy: Afro Barometer Survey Field Work for Round 6 in
Zambia conducted in 2014. Available at www.afrobarometer.org. accessed 12 August 2021.
41
Ibid.

10
In addition, the second proposition by Van der Vyver that no one person should serve in
two arms of government meaning that a cabinet minister should not seat in parliament
seems to be missing in Zambia. For example, in Zambia, members of parliament (MP)
can serve in two organs of government because the president appoints his cabinet from
within his members of parliament42. In principal, MPs in Zambia serve both in the
executive and legislative bodies. This is in sharp contrast to the ideals of separation of
powers as espoused by Van der Vyver.

Conclusion

In summary, this paper has shown that separation of powers is indirectly provided for in
the Constitution of Zambia through the creation of the Executive, Legislature and the
Judiciary. The Judiciary should be independent of the executive, and ministers who fall
under the executive should not be responsible to parliament. In several instances, the
doctrine of separation of powers has been put onto practice but in some instances, the
legislature and the executive have been found ignoring, undermining or interfering in the
work of the judiciary. Although the pure doctrine of separation of power is really too
complex to achieve, it is desirable that there is some form of overlapping of one or more
of the three organs of government to prevent uncertainty and tyranny. The overlap must
be balanced so that no organ of the government usurps the powers of the other organs.
The overlap is usually in the form of interrelationships between the three organs of the
government with each organ being independent of each other. There must be checks
and balances within the three organs of the government to perform the function of
questioning and controlling for the benefit of the individuals and society. This allows the
government to function as a unit and at the same time not interference.

42
Constitution o Zambia, art 116

11
Bibliography

Alder, J (2005) Constitutional and Administrative Law, 5th Edition, Palgrave Macmillan,
London

Barnett, H (2006) Constitutional and Administrative Law, 6th Edition, Routledge-

Cavendish, Oxon

Brayan Carner, Black‟s Law Dictionary (9th ed, West Publishing Company 2009)

Bradley, A.W & Ewing, K.D (2007) Constitutional and Administrative Law, 14th Edition
Pearson, Harlow

Carroll, A (2007) Constitutional and Administrative Law, 4th Edition, Pearson, Harlow

Currie and De Waal (2001). The New Constitutional and Administrative Law
E.C.S. WADE & A.W. BRADLEY, (2001) Constitutional and Administration Law 50
Carrol A, (2007). Constitutional and administrative law, Longman Publishers

Calabresi G and Berghausen E, (2012). ‘The rise and fall of the separation of powers’
106 Northwestern University Law Review

Cooper S, (1994). ‘Considering ‘Power’ in Separation of Powers’ Standard Law Review

Gloppen, S (2003). The Accountability Function of the Courts in Tanzania and Zambia:
Democratization and the Judiciary: Oxford University Press.

George Kunda (2000). Justification for Judicial Code of Conduct and Accountability:
Zambia Law Journal, Vol. 32.
Jackton Ojwang, (2013). Ascendant Judiciary in East Africa: Reconfiguring the Balance
of Power in a Democratizing Constitutional Order‘(Strathmore University Press)

Kapur AC, Principles of political science, (1996), 575. A narrow understanding of the
executive refers only to the Chief Executive Head of State and his advisers and
ministers.

12
Report of the Mung’omba Constitutional Review Commission (2005) p315: A Technical
Committee on the Constitution Making Process

Sangwa John (2005) The Constitutional Framework of Administrative Law (unpublished)

Constitution of Zambia 2016, art 61 and 62 (1)

Shukla VN, Constitution of India (1980); Ram Jawaya Kapoor v State of Punjab AIR
(1955) SC 549:1955 2 SCR225

Van der Vyver JD, ‘Political Power Constraints in the American Constitution’ South
African Law Journal (1987)

Cases

Attorney General v Clarke Appeal Judgment No 96A/2004, ILDC 1340 (ZM 200)

Christine Mulundika and the Five Others vs. Attorney General S.C. (1995) (1996)

Chishimba Kambwili v Attorney General 2019/CC/009

Mumba v The People (1984) Z.R. 38 (H.C.)

Statutes

Constitution of Zambia Act, 2016

Judicial Service Commission Act No. 2 of 2016

13