CAVENDISH UNIVERSITY ZAMBIA

LAW FACULTY

CONSTITUTIONAL LAW

LECTURE NOTES

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CONSTITUTIONAL LAW 1
DESCRIPTION OF THE COURSE CUZ L251
In a given society at any given time, individuals are asserting interests as worthy of protection
by the law of that society. Therefore, law as a cornerstone of the edifice of “order” should meet
the challenges confronting the society. The law in order to be legitimate and legal must satisfy
the mandates of the constitution of the country.. The constitution unlike other Acts, is intended
to provide an enduring paramount law and a basic design of the structure and power of the state
and rights and duties of the citizens to serve the society through a long lapse of time. To this
end, lawyers particularly in Zambia have a leading role to play not only in defending the rights
of citizens, but also in helping a constitutional order tailored and responsive to the needs of the
Zambian people. Good Government based on the application of the principles of democracy
and constitution is undoubtedly a pre-condition to peace, stability, and ordered development in
the country. This course is therefore relevant to the understanding of the democratic society in
Zambia and the limits of the powers conceded by the ruled to the rulers.

This is a course in constitutional law which is aimed at preparing students to meet the
challenges that lie ahead of them as lawyers in a developing country, namely; assisting to
shape and sustain a democratic society based on respect of human rights. In a young
democracy like Zambia problems of democratic governance, accountability. and transparency
in the running of government are expected to be experienced to a greater extent .The course
aims at acquainting students with the nature and magnitude of those problems in order for them
to develop their own perceptions about appropriate solutions to these problems of governance
common worldwide.

Learning outcomes
On completion of the course students must be able to:

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1) Demonstrate an understanding of key constitutional concepts and principles.
2) Explain the importance of a constitution in the legal and political system of a country.
3) To demonstrate understanding of the various constitution making processes adopted by
various countries.
4) To develop his/her own perception regarding appropriate solutions to the constitutional
enactment problems faced by Zambia.
5) To show knowledge of constitutional law cases so far decided in Zambia and other
commonwealth courts and how courts have gone about resolving these cases.
6) Show appreciation of how some countries have used the constitution as a tool to limit
government’s power and enhance the protection of human rights.
7) Show an understanding of the Zambian constitution and the principles of constitutional
autochthony and supremacy.

Course Content
1) What is constitutional law?
2) Classification of constitutions?
3) Sources of constitutional law
4) Supremacy of the constitution
5) Judicial Review of Executive and Legislative Acts
6) Separation of Powers
7) Bicameralism and unicameralism
8) Constitutionalism and the principles of constitutional autochthony
9) Constitutional guarantee of Human Rights

Assessment
Evidence of objectives of the course may be in the form of:

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 a) Continuous assessment 50% (1 assignment and 1 mid semester examination of 25%
each)
b) Final examination 50%

Prescribed reading
1. B.O Nwabueze (1973) Constitutionalism in the Emergent States, London: Hurst & Co.
2. O Hood Philips, Constitutional and Administrative Law (Latest edition) London.
3. Lawrence Zimba, “The Origins and Spread of one Party states in Common Wealth Africa,
their impact on Personal liberties, A Case Study of the Zambia Model” Law in Zambia
edited by Muna Ndulo (1984) p. 113, Nairobi: East Africa Publishing use
4. The Zambian Constitution
5. Statutes and Judicial Decisions

Recommended Reading
1. A.W Chanda (1992), Zambia; A Case Study in Human Rights in Commonwealth Africa
J.S.D. Thesis, University of Zambia Library Special Collection Division .
2. D.H. Gann (1964), A History of Northern Rhodesia; Early Days to 1953,. London:
Chatto & Windus.
3. R.S. Hall (1976), zambia 1890 – 1964: The Colonial Period: London; Longman.
4. D.C. Mulford (1964), The Northern Rhodesia General Elections. Nairobi: Oxford
University Press.
5. D.C. Mulford (1967), Zambia: The Politics of Independence. L:ondon: Oxford
University Press.
6. L.S. Zimba (1984), The Zambian Bill of Rights: An Historical and Comparative Study
of Human Rights in common Wealth Africa. Nairobi: East African Publishing House.

WHAT IS A CONSTITUTION?
A constitution is a formal document which creates the organs of Government, defines their
functions, their relationship inter-se and delimits their relationship with the individuals. It can
also be defined as a formal document having the force of law, by which a society organises a

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government for itself, defines and limits its powers and prescribes its various organs inter-se,
and with the citizen. However, a constitution may also be used for other purposes than as a
restraint upon government. It is considered as a confluence between law and politics. The idea
of a constitution is primarily essential for the establishment and maintenance of peace, order
and governance in a society. It creates the basis upon which various super structures of a state
derive their very existence. A constitution covers subjects such as the head of the state, how he
is chosen, his powers, the cabinet, how it is chosen, its functions, the relationship between the
central government and local government, public institutions, human rights, franchise and
electoral boundaries, procedure of amending the constitution. Constitutional law, therefore, is
that part of the law which relates to its constitution. It is a branch of law which deals with the
method of government within the state. It affects the general public in that it provides for the
structure of the Legislature, Judiciary and the Executive.

A constitution can be viewed from two angles namely abstract and concrete. An abstract
constitution is a system of laws, customs and conversions which define the composition and
powers of the state and regulates the various state organs of one another and to the private
citizen. On the other hand, a concrete constitution is a document in which the most important
law of the country are authoritatively ordained. In this sense, it means that the constitution is
the supreme law of the land. In Zambia Article 1 (3) of Cap. 1 provides to the effect that
“ This constitution is the supreme law of the land and if any other law is
inconsistent with this constitution, that other law shall, to the extent of the
inconsistency, be void”.

Suffice to say that the constitution is the paramount law of the land to which all laws enacted
by parliament must conform or be deemed unconstitutional.
CLASSIFICATION OF CONSTITUTIONS
1. Written and unwritten constitution
A written constitution is a formal document or a series of formal documents containing the
fundamental law of the state in a codified or compact and written form and having special
legal sanctity. The constitution in this form is binding on all institutions or organs of the
state including Parliament. The world’s oldest written constitution is the United States of

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 America constitution of 1776. The majority of countries in the world have written
constitutions. The constitution cannot contain all the laws (most good constitutions are
small). Therefore, a constitution is invariably supplemented by the following:-
i) Amendments
Article 79(1) provides that subject to the provisions of this Article Parliament may
alter this constitution or the constitution of Zambia Act.
ii) Laws passed by legislation i.e. statutes and delegated legislation. Delegated
legislation is that legislation passed by the people other than Parliament, for example
ministers formulate statutory instruments which constitute the bulk of the law.
iii) Judicial Decisions interpreting the written law
iv) Customs and conventions regulating the working of the machinery of government
(note these are written rules).

An unwritten constitution on the other hand is a non-formal set of numerous statutes

which are not bound in a single document of legal effect and are enacted as single
documents through political evolution; for example the United Kingdom but these are
some constitutional law of several Parliament Acts of constitutions. In the U.K. the
constitution is not supreme to all other laws. It can be amended just like other laws hence
it has no sanctity. Parliament can make any law without any limit. The laws of this
unwritten constitution comprise statute law, common law and customs especially custom
law. They also consist of constitutional conventions. Thus, it contains both legal and non
legal rules. Legal laws evolve from statutes, judicial precedents and books of authority.
2. FLEXIBLE AND RIGID CONSTITUTION
A flexible constitution was defined by Dicey as “one under which the law of every
description can legally be changed with same ease and in the same manner by one and the
same body.” He defined a rigid constitution as “the one under which certain laws known as
fundamental laws can not be changed in the same manner as ordinary laws.” The
constitution of the United States requires either initiation by 2/3 of both houses of congress
and verification by the legislature of 2/3.

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 It is therefore rigid. Rigidity differs from one country to another and can be checked from
the number of times the constitution has been amended.

The British constitution is described as flexible because any principles or rule of the
constitution can be altered by the same body and in the same manner as any other law. The
Legislature is supreme over the constitution and can change constitutional laws any time.
The same is true of the New Zealand constitution. Most African constitutions are semi rigid
because although they contain stringent procedures of amendment, they have been
amended three to four times in the last forty years. Zambia is one of them. The flexibility
and rigidity of a constitution is also dependant on whether it is written or unwritten.

3. SUPREME AND NON SUPREME OR SUBORDINATE CONSTITUTION

The constitution supremacy and non-supremacy of the constitution is linked to the rigidity
and flexibility of a constitution. A supreme constitution is one that is above the Legislature
and demands that the court should hold void any exercise of power which does not comply
with the prescribed manner and form or which is otherwise not in accordance with the
constitution from which the power derives. The constitutions of Zambia, India, America
exercise this supremacy. These constitutions put in place Judicial Review to maintain the
powers of many organs of the state and so the constitutional supremacy can be maintained.
It can also be inferred from the foregoing that the supremacy can also be connected to
written constitutions since they are the ones which contain legal rules. The supremacy of
constitutions, for example, that of Zambia, demand that any changes to it should be
conducted in a series of procedures laid down.

A subordinate constitution like in U.K. can be amended by Parliament which is the

supreme overhead while on the other hand, a supreme constitution is very difficult to alter
and it needs a special body to alter. However, there are some constitutions that are
entrenched – They need special procedure to alter.

4. FEDERAL AND UNITARY CONSTITUTION

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 A unitary constitution provides for a unitary government with its various organs which are
run from the centre. Part 1 of the Zambian constitution in Article 1 for example, provides
that Zambia is a unitary, indivisible, multi-party and democratic sovereign state. It also
provides that there shall be the head of Government which Government shall be divided in
to one Legislature, one executive and one Judiciary. These are run from a central point and
are answerable to the head of the state. This constitution is usually supreme, written, rigid
and provides for all the rules in the organs of the state. A unitary constitution provides and
governs the legal framework of a unitary state. A unitary state is an indivisible single,
economic, political and social entity. Arguably, a unitary constitution is a strong unifying
force for people in a country as it does not provide arbitrary law. The Zambian constitution
is, therefore, unitary. As opposed to a unitary constitution, a federal constitution divides the
powers of government between central and state governments. The federal state exercises
authority over the state governments and creates a lease of items that are assigned to the
state government, for example the United States government and several state
governments. The Federal Government is governed by the President and is found in the
whole of America. It is responsible for things like communication and trade while the state
government have their own constitutions and their governments are responsible to the
Federal State. The Federation of Rhodesia and Nyasaland and Nigeria serve as very good
examples to this effect and these federal states are run by ministers.

5. REPUBLICAN AND MONARCHICAL CONSTITUTION

A Republic is a form of government in which the administration affairs is open to all
citizens. Some constitutions expressly provide for this and Zambia, the United States and
many more African states have Republican constitutions. The Government is of the people
because its representatives are chosen through the ballot. The constitution also provides for
the mode of selection, eligibility and all rules of universal adult suffrage.

A monarch on the other hand is a government in which the supreme power is vested in a
single person. The constitution also provides for this and where a monarch is vested with
absolute power, for example, Saudi Arabia – the government is termed despotic. On the
other hand, where the supreme power is virtually in the laws, and the administration is

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 vested in a single person, it is a limited constitutional monarch. Britain is a constitutional
monarch and is hereditary because legal power descends immediately from the possessors
to the next heir by blood. This distinction however, is not chiefly used.

6. SINGLE PARTY CONSTITUTION AND OTHER CONSTITUTIONS

A single party constitution is one which allows only one political party or ruling party to
operate or exist whilst a multiparty constitution allows a multiparty of parties to exist
simultaneously. Another system is that of Uganda of no party system (principally it is a one
party system, that is, every Ugandan is a member of the movement.

7. PRESIDENTIAL AND PARLIAMENTARY CONSTITUTIONS

In the Presidential System, the head of the Executive branch is also the head of the state
and is not a member or directly responsible to the legislature. The United States
constitution is Presidential in nature. The Zambian system where the President is not
answerable to Parliament and he is not appointed by Parliament is Presidential as well.

In the Parliamentary system, the chief of the executive is the Prime Minister who is a
member of and is responsible to the Legislature. In most cases, the Prime Minister is the
head of government but not head of the state. The Queen is the ceremonial head of the
state. The British Parliamentary System is parliamentary. However, not withstanding the
distinct classification, there are variations of application in this category, for example,
Kenya is a Presidential System where the President is required to have a constituency.

In the United Kingdom, the head of state is the Queen but Executive powers are carried out
by the Prime Minister. The British System of Parliamentary nature is known as the West
Minister (location of Parliament in the U.K.) system. There are wide variations in the way
different systems operate for example, the American President is not chosen by congress
and he is not responsible to them neither.

Activity: questions for discussion.

1. what is a constitution in the abstract and concrete sense?
2 . how does a constitution of the country affect the general public?

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 3. contrast the English constitution with that of Zambia
4.What are the merits of the unwritten UK constitution?

SOURCES OF CONSTITUTIONAL LAW

There are five sources of constitutional law:
1. The constitution itself is a source of constitutional law.
2. Legislation (Acts of Parliament) Legislation Law enacted by Parliament, and when an Act
of Parliament, known as a statute, is passed it becomes the law of the land. A statute is
superior to all sources of law and judges must enforce this law in the courts, even if it is
contrary to an existing binding precedent.

This supremacy of parliament over all other sources of law is called the SOVEREIGNTY
OF PARLIAMENT and it means that Parliament may make laws which have to be
enforced and cannot be challenged on the grounds that they illegal. Legislation includes
both statutes and statutory instruments (sis).

3. Judicial precedents or case law as it is often called, it is the source of a large part of
common law and equity. The law is “judge made” in that when a judge makes a decision in
a court on a particular aspect of law, other judges are bound to follow this decision in
subsequent cases “once a court has made a ruling on particular facts of a case, then the
same decision will be reached in any future similar case where the material facts are the
same or as a past action which may serve as an example or rule in future.
4. Conventions (Non Legal rules of the court) These are rules of constitutional behaviour
which are considered to be binding by and upon those who operate the constitution but
which are not enforced by the courts nor by the presiding officers in the house of
Parliament. These are binding on judges, members of the Executive and Legislation
because if they are broken they can not be enforced the courts of law.

In Britain the system of Government has developed because of conventions. This has been
helped by the unwritten constitution. Some examples of conventions under the British
system are:

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 i) Queens’s speech read at the opening of each session of Parliament. The speech is
prepared by the Prime Minister of the Government. This is a convention because
the Queen can not write it. Her personal views do not matter; she has to follow what
the Prime Minister advises.
ii) Royal Assent to Bills. In order for a bill to become a law both Houses of
Parliament, that is the House of Lords and House of Commons must approve and
the Queen must give royal assent. She must sign the Bill. The convention is that the
Queen gives her royal assent on the advice of the Prime Minister. She has no say in
the provision of the bill but in some cases she can refuse to sign.
iii) At common law, the sovereign has unlimited power of the Queen to appoint
cabinet. Anyone can be appointed to be a minister. The statutes do not require
anyone to be a member of Parliament but the convention is that the Queen must
appoint those in either the House of Commons or those in the House of Lords. If
someone from the outside is appointed, a peerage must be given (the title of Sir,
Lord etc) immediately or that person must contest a by-election.
iv) Elections – Although the conduct of general elections is regulated by the statute,
there is no statutory law regulating the conduct of the minister when the election
results is known, but there is a convention rule that the Government should have the
majority of the House of Commons. Therefore, when the Prime Minister’s party
loses in the elections, then he must step down or resign. Where the results are
inconclusive, he stays on so that he tries to form a new Government.

WHY CONVENTIONAL RULES SHOULD BE OBSERVED

According to the Canadian Supreme Court conventional rules are observed to ensure that the
legal framework of the constitution is operated in accordance with the constitutional values of
the period.
Read : Re Amendment of the Constitution of Canada 1982 125 D.L.R. (3rd) 1, 84
It follows that the positive reason for observing the conventions is to express prevailing
constitutional values and the negative reason is to avoid the difficulties that may follow from
unconstitutional conduct.

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OPINIONS AND CONCLUSIONS OF TEXT WRITERS OR
AUTHORITIES
In English law, it is a great and general rule that no legal text book has intrinsic authority as a
source of law. The authority of the most eminent text book writers is confined to the extent to
which the court considers that it accurately reproduces statutory law or judicial precedents
where the statutes has not yet judicially interpreted or where no court has pronounced
authoritatively on a case then the authority and academic authors may be of great value when a
case arises for decisions.

SUPREMACY OF THE CONSTITUTION AND THE SOVEREIGN OF

THE LEGISLATURE
The sovereign of the legislature is also known as the supremacy of parliament. The legislative
supremacy requires that there is no legal limitation upon the legislative competence of
parliament. Under the “British constitution Parliament has the power to make or unmake any
law whatever” – Dicey – Furthermore nobody or person is recognised by the law of England as
having a right to override or set aside the legislation of parliament. Under this doctrine, the
courts are under a duty to apply the law made by Parliament. It may not hold an Act of
Parliament unconstitutional or void.

POSITION UNDER A WRITTEN CONSTITUTION

The doctrine of Legislative Supremacy distinguishes Britain from those countries which
imposes limits on the Legislature and vests in the courts to decide whether those Acts are
compatible with the Legislation.
Read: Marbury V. Madison [1803] 1 Cranch 137

The court held that the judicial function vested in the court carried with it the task of seeing
whether the measure taken by congress is in conformity with the constitution. In a
constitutional system that accepts Judicial Review of the Legislation, Legislation can be held
invalid on a variety of grounds such as:-

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a) It conflicts with the doctrine of separation of powers or infringes human rights
guaranteed by the constitution or has not been passed according to procedure etc. where
there is a constitutional supremacy, the constitution rules, that is it is supreme in
ranking :
(1)
THE CONSTITUTION
(2)
STATUTES e.g. The Penal Code
(3)
STATUTORY INSTRUMENTS

In the above system Parliament is subject to the constitution. Therefore, it is only the court
which can say which law is constitutional or not.

Activity: questions for discussion.

1.outline the sources of constitutional law in order of their weight.

2.why are acts of parliament the highest form of law?
3.Give examples of conventions and briefly explain why the same should be observed.
4. How has the system of government in Britain developed?

SUPREMACY OF THE CONSTITUTION IN ZAMBIA

The constitution of the Republic of Zambia is the supreme law of the land and binds all persons
and all organs of the states at all levels. It is so expressly declared in Article 1 Clauses (3) and
(4) of the constitution. This concept of the constitution being the supreme law of the land
entails the subordination of all persons, organs and legislation in Zambia to the constitution of
Zambia. The constitution of Zambia declares that all power resides in the people. This entails
that the source of all legal authority is the people acting through their representatives

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assembled in their Parliament, they enacted the constitution and gave it to themselves. The
constitutional supremacy clause asserts the logical priority of the constitution over the
institutions which it has created and whose nature and power it describes and determines. This
supremacy of the constitution is derived from the people.
Read: 1) Christine Mulundika V. The People (1995)ZR 20
2) The Resident Doctors association V. The Attorney General 1997/HP/817

JUDICIAL REVIEW
Judicial Review is the power of the court in appropriate circumstances to declare a
Governmental move or act either contrary or in accordance with the constitution or any
governing law with the effect of rendering the measure invaluable and void vindicating its
validity and so putting it beyond challenge in the future. This in essence validates the
supremacy of the constitution.
Read: The Attorney – General V. The Speaker of National Assembly and
Akashambatwa Mbikusita Lewanika V. Frederick Jacob Chiluba.

Note: The notion behind Judicial Review is the recognition of the constitution as the supreme
law of the land.

Activity: questions for discussion

1.what change did the Mulundika case bring to the Zambian law?
2.what is judicial review? In your view do you think it has any impact? give clear reasons for
each side you take.
3.Briefly explain to Madonna why judicial review is not possible in England.
4.in relation to Zambia , discuss the statement that stability of the constitution depends on
political forces rather than the fact that it is written.

SEPARATION OF POWERS
The functions of the government is divided into three components for the following reasons:

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 i) To avoid Tyranny
ii) To improve the efficiency of the government in terms of service delivery.

The organs of the government are the Legislature, Judiciary and the Executive. The doctrine of
separation of power was first propounded by Montesqueiu who had a view that men’s minds
cannot be at rest if two or three of the kinds of government power are held in the same hands.
The theory of separation seems to presuppose the notion that the powers of government consist
largely in making laws, executing laws, and applying them to particular cases through the rule
of law.

ORGANS OF THE STATE

1. LEGISLATURE
The function of the Legislature is making of new laws and repeal of existing law. The
Legislature can be an elected body or it can be hand picked. A decree passed by a military
dictator can also be a Legislature. Examples of direct law making include
i) Referendum
ii) Initiative
Under a referendum certain measures have to be submitted to the electorate before it is
enacted by the Legislature. Initiative is where a certain number of measures are to be
proposed by the voters to signify the ascent or not. This kind of law making in Zambia
does not exist.

2. EXECUTIVE FUNCTIONS OR ADMINISTRATIVE FUNCTIONS

This is the general and detailed carrying on of government duties according to law
including the framing of policies and choice of manner in which the law should remain.

The general directive of policy include the initiation of Legislation, maintenance of order
and promotion of social, economic welfare, administration of public services and conduct
of foreign affairs.

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 Composition of the Executive
The head of state and his ministers, police, civil servants, defence, service commissions
such as the prisons commission, electoral commission.

3. THE JUDICIAL FUNCTIONS

This involves the interpretation of the law and its application by rule of disgration by facts
of particular cases.

THE DOCTRINE OF SEPARATION OF POWERS

This doctrine was propounded by a French man called Montesquieu whose elaboration was
based on John Locke who was a political scientist and had a belief that:
“It may be too great a temptation to humane frailty apt to grasp power for the
same persons making laws to have also in their hands the power to execute the
law, the power to make the law and suit the law both in its making and execution
to their own private advantage”
This doctrine was developed further by Montesquieu who was concerned with political liberty.
Montesquieu believed that “Political liberty is to be found only when there is no abuse of
power. But constant experience shows us that every man vested with power is likely to abuse it
and carry his authority as 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. If the Legislative and Executive powers
were united in the same body of magistrates or persons there can be no liberty. Again there is
no liberty if the Judiciary power is not separated from the Executive and the Legislature. This
statement stresses that within the same government different functions should be carried out by
an organ mandated to perform that function. This, however, does not mean that each body
should be free from the control or influence of the other bodies. Montesquieu did not insist on
an absolute separation. Thus, although the Executive is a separate branch, it properly partakes
(through the veto for example) in a legislative function. This blending or overlapping of
functions is in part necessitated by Montesqueiu’s intention that separation of powers check the
excesses of one or the other branch. Separation of powers here reinforces or even merges into
balanced government. Balance is to be thought not in total separation but in the artful

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involvement and mutual interactions of the several branches of the civil polity: executive,
nobility, and people. The separation of powers and balance of social orders are inextricably
interwoven.

HOW THE DOCTRINE HAS GROWN

The U.S Legislative powers are vested in the congress. The upper House consists of the senate
consisting of 100 members and the lower House consisting of the House of Representatives.
The representatives to this House are based on the population of a particular state, that is the
higher the population of a state, the higher the number of representatives. Executive power is
vested in the President. The Judicial power is vested in the Supreme Court and other federal
Courts.

The President holds office for a fixed term of 4 years and can serve for a maximum of 2 terms
of 4 years each i.e. 8 years. The President is separately elected i.e. becoming President in
America does not depend on the number of seats a party has won. The President’s powers are
prescribed by the constitution. The heads of various departments of government called
secretaries are responsible to the President and not to congress neither the President nor the
members of the senate can vote in Parliament. They have no direct power to initiate a bill. The
President may recommend to Parliament but he can not compel Parliament to adhere to his
recommendation. While the President has the power to veto, this veto can be over-ridden by
2/3 of both Houses. Treaties might be negotiated by the President but must be approved by 2/3
majority of senate. The President has power to nominate the Judiciary, statutory bodies but the
senate must confirm these appointments and they may refuse to do so. The President is not
directly responsible to congress for his conduct. He is irremovable from office but the
constitution has the provision through congress to remove him by a process called
impeachment if he committed crimes like bribery, treason and other high misdemeanours. See
Article 2(4). In the USA, Judicial independence is highly treasured; however, even if this is the
case, it is not possible to have complete separation of powers. No organ of the state can operate
in complete isolation of the others.

SEPARATION OF POWERS IN OTHER CONSTITUTIONS

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So many constitutions have been influenced by the doctrine of separation of powers. In France
it is considered to flow along the separation of powers that it is a cost to review the legality of
the Legislature or Executive. In place of the court, the counsel d’stat which is structurally part
of the executive has developed jurisdiction over administrative affairs.

MEANING OF SEPARATION OF POWERS

As a strong contrast between the USA and France show, the doctrine has a variety of
meanings. It may mean atleast three different things.
i) That the same person should not form part of more than 1 of the 3 parts of
government, for example ministers should not be members of Parliament as is the
case in Zambia.
ii) One organ of government should not control or interfere in the work of another, for
example the Judiciary should be independent of both the Legislature and the
Executive.
iii) That one organ of government should not exercise the functions of another, for
example ministers should not have legislative powers similarly the legislature
should not have judiciary powers.

In considering each of these aspects of separation of powers it is impossible to have a complete

separation of powers either in practice or in theory.

CHECKS AND BALANCES

The idea of checks and balances seeks to monitor and implement the idea of separation of
powers, for example the executive may be empowered to veto or dissolve the Legislature and
the Legislature may be empowered to impeach the head of state, approve the appointment of
certain top officers, to criticise and censure the Executive or as a final weapon to bring down
the government through a vote of no confidence. The Judiciary may have power to review the
acts of both Executive and the Legislature. The manner in which the organs might check each

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other varies from country to country depending on the system of government created by its
constitution. The idea of checks and balances presupposes that a particular function is allocated
to a specific organ as provided beyond its powers. Thus the idea of checks and balances aims at
ensuring that the powers of different organs of the state or separation of powers work
effectively by balancing the powers of one organ against those of another by or through a
system of positive mutual checks exercised by one government organ upon another.

The primary implication of the court in vindicating a governmental act or validity on its
political process and democracy is to check the government or to confer legitimacy upon the
act concerned. Thus the court may declare a governmental measure or act invalid because of a
number of reasons such as:-
1. The measure was not enacted in a prescribed manner.
2. That it violates or usurps constitutional powers or jurisdiction powers of other organs.
3. That it violates guaranteed rights.
4. It is an unorganised abduction of power of one agency by another.
5. It violates the powers of another government in a federation.
6. It conflicts with some other provisions in the constitution

Activity : questions for discussion

1.Briefly explain in your own words the meaning of separation of powers
2.how does the doctrine of separation of powers limit the powers of government?
3.how does the idea of checks and balances help implement the doctrine of separation of
powers?
4.how does the doctrine of separation of powers apply to Zambia?
5.what do you think parliament should do to override courts in Zambia?

CONSTITUTIONAL GUARANTEE OF HUMAN RIGHTS

Many constitutions such as the British constitution and the Zambian constitution under part III
embody a guarantee of Human Rights. The idea of human rights is premised on the belief that

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man/woman has certain basic, natural and inalienable rights and it’s the function of the state in
order that liberty may be preserved, human personality may be developed and effective social
democratic life is promoted, to recognise these rights and freedoms and allow them FREE
REIGN.

Human Rights are simply those rights that a person has by virtue of being a person.
Fundamental rights are those that are protected and guaranteed by the constitution while
ordinary legal rights are those that are protected by common law. Constitutional guaranteed
rights are called fundamental because while ordinary rights may be changed by Parliament,
they can only be amended by amending the constitution itself. No organ of the state can act
contrary to this. Any organ of the state which is repugnant to this can be declared void to the
extent of its conduct. According to Justice Jackson of the US Supreme court, the purpose of the
American Bill of Rights is to withdraw certain subjects of vicissitudes of political controversy
to place them beyond the reach of the majority and to establish them as legal principles to be
applied by the courts, ones right to freedom, freedom of worship and assembly, life, property,
free speech, press, and may not be subjected to vote. They do not depend on the outcome of
elections.
Read: BOARD OF EDUCATION V BURNETTE (1943) 319 US 624

THE RULE OF LAW

One of the prominent features of all democracy is the supremacy of the rule of law. It is the
rule of the principles of law and not of men or officers. Arbitrariness on the part of the

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Executive is excluded. The rule of law emphasises that the law shall be supreme. The rule of
law involves four (4) related but distinct ideas.

1. Law and Order is better than Anarchy.

In this sense the Rule of Law expresses preference to law and order in a community
than anarchy, warfare and constant strife. According to Dicey this means that no man is
above the law and that no man is punishable or can be unlawfully 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. Arbitrary power connotes the
government of will instead of law. Arbitrary rule, therefore, is government conducted
not according to pre-determined rules, but according to the momentary whims and
caprices of rulers. The Zambian constitution under Article 18(8) provides that “A
person shall not be convicted of a criminal offence unless that offence is defined and
the criminal offence is defined and the penalty prescribed in a written law”. To this
effect the Zambian constitution aims at protecting the fundamental rights and freedoms
of any individual.
2. Equity before the Law
According to dicey, this entails that all persons whatever their rank or condition are
subject to the ordinary law and jurisdiction of the ordinary tribunals. In this sense all
classes of citizens should have equal subjection to the ordinary law of the land
administered by the ordinary courts. The Zambian constitution under Article 1 clauses
(3) and (4) provide to the same effect.

3. Rule of Law refers to a body of political opinion

The third doctrine means that the English constitution does not contain declarations or
definitions or rights of its citizens as in other constitutions like Zambia’s. Suffice to say
in English, the rights of an individual were secured not by guarantees set down in a
formal document but by the ordinary remedies of private law available against those
who unlawfully interfered with his liberties, whether they were private citizens or
officials. In Zambia rights of people derive reference from the constitution whilst in

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 England it’s from Judicial decisions and because of this, this doctrine does not apply to
the Zambian context.

LIMITATIONS OF THE DOCTRINE OF GOVERNMENT ACCORDING

TO LAW
The doctrine stresses the importance of legal acts of government. In the system like that of the
UK where the constitution is not above Parliament, political decisions may readily be clothed
with legality. In the absence of constitutional guarantees for individual rights, the need for
legal authority does not protect a right from legislative invasion.

THE RULE OF LAW AS A BROAD POLITICAL DOCTRINE

The rule of law refers to a body of political opinions about what the detailed set of rules must
provide in matter both substance (e.g. whether the Government has power to detain citizens
without trial) and procedure the presumption of innocence in criminal procedure. If the law is
not to become merely a means of achieving whatever aim the government may favour, the rule
of law must go beyond the principle of legality. The inheritage principles and values of the
legal system are relevant in finding out what legal authority the government has for its acts.

Equality before the law

The right to equality before the law or equal protection by law is fundamental to any just and
democratic society whether rich or poor, political opponent of the state, minority all are
entitled to equal opportunities before the law. Those applying the law must apply it without
favour regardless of political affiliation, rich or poor etc. however, this is poorly applied in
many countries including Zambia, for example the Legal Aid is poorly administered as a result
many people find themselves behind bars because they are under represented. Equality before
the law is very difficult for ordinary citizens and thus problems arise when it comes to political
cases.

International movements to promote the rule of law

The Rule of Law has since 1945 been in parallel with the human rights movement and has been
a matter of discussion. The international movement for jurists convened a number of

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conferences for the purpose of agreeing on the context of the Rule of Law. The most important
of these conferences was held in New Delhi, India in 1959. This conference which issued the
New Delhi declaration was attended by more than 250 jurists. In answer to the questionnaire
that was circulated, in respect of the supreme value of human personality was stated to be the
basis of all law. Clearly that was the statement in general terms of what the law should be.
Taking this as a starting point, the Declaration of New Delhi stated that the Rule of Law should
involve the following elements:
1. Right to representative and responsible government, that is government must be elected
and be accountable to the people.
2. That a citizen who is wronged by the government should have a remedy.
Certain minimum standards or principles of the law contained in the UDHR 1945 and
European Convention on Human Rights 1950 should be present. Among these
principles are freedom of expression, assembly, prohibition of retroactive criminal law,
freedom from torture, right to life, fair trial guarantee etc. under fair trial guarantee the
following should be included:
a) Certainty of the criminal law – it must be written
b) Clearly stipulate the remedies for the actions
3. The presumption of innocence is fundamental to the law.
4. Reasonable rules relating to arrest, accusation and detention without trial. The right to
legal advice, public trial, right to appeal, absence of cruel and immoral punishment.
5. The independence of the Judiciary including proper grounds and procedure of the
removal of judges. Without the independence of the Judiciary you can not have the
above elements present.

Activity : questions for discussion

1.Briefly explain the meaning of the concept of rule of law.
2.To what extent does the same concept apply to Zambia?
3.Explain to Maradonna why the third meaning of the concept of rule of law does not apply to
Zambia.

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CONSTITUTIONALISM
It is universally accepted that government is a necessity as man can not fully realise himself.
Peace and development can only be realised in the context of an organised society. A necessity
of government has created problems for man, that is the problem of limiting the arbitrariness
inherent in government and to ensure that its powers are used for the good of society. It is this
concern that is expressed in the context of constitutionalism. Although constitutionalism
recognises the necessity of government, it insists the intention being placed upon its powers. It
connotes the limitation on government. It is the antithesis of arbitrary rule. Its opposite is
despotic government – government of men other than law. Arbitrary rule is government
conducted not according to pre-determined rules but according to the momentary whims and
caprices of the rulers. An arbitrary government does not cause to be so simply because it is
benevolent since all unfettered power is by its nature autocratic. Therefore, a dictatorship
government can never be a constitutional government and a totalitarian regime is even less so.

The concept of constitutionalism in essence is concerned with the limiting of government

power. It is linked with two other doctrines, that is democracy and constitution.

DEMOCRACY
The classic definition of democracy was given by Lincoln as “Government of the people, by
the people and for the people.” This definition emphasises the popular notion of government,
that is the idea that government vests upon the idea of the governed by means of election in
which the franchise is universal for both men and women and that it exists for their benefit.
Professor Wheane put it in the following words “Universal suffrage can create and support a
tyranny of the majority or minority of one man ….Have not modern tyranny brought to power
by the majority.” Suffice to say elections alone are not enough for a democratic government
because even in a dictatorship regime they take place. The crucial test is whether government
is limited by pre-determined rules. The fact, however, that there is a formal written constitution
according to whose provision the government is conducted is not necessary conclusive that the
government is a constitutional one. The determining factor is, does the constitution impose
limitations on government. The nature of the power of the constitution in this case is very
important.

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Nature of restraints on government
According to Professor De Smith in order for constitutionalism to exist the following must
exist “a temporally democratic government which may be willing to conceive that
constitutionalism is practised in a country where the government is genuinely accountable to an
entity distinct from itself, where elections are freely held in a wide franchise at frequent
intervals, where political groups are free to organise in opposition, legal guarantees of
fundamental civil liberties and enforced by an independent Judiciary and one may not easily be
persuaded by the use of constitutionalism in a country where any of these conditions is lacking,
(The New Common Law and its constitution). It is apparent that the limitation imposed by the
constitution is not conclusive but cardinal. The most important element is a justifiable Bill of
Rights. The democratic control mechanism of popular representation and responsibility, of the
government to the governed unquestionably increase the efficacy restraint upon the
government.

NECESSITY FOR ELECTIONS

The following are some of the reasons for the necessity for elections:
a) The electorate might change their minds since the last elections.
b) To prevent the government from being complaisant with regard to political and social
responsibilities.

A democracy requires that the public must be one of the factors for forming the
government and hence the government must strive to deliver to the general public.
Accountability and answerability of the governors to the governed is an element of
political responsibility. This requires more than a periodic report and radio broadcast
during an election. It presupposes freedom on the part of the people directly or through
their elected representatives to question the acts of the government. The duty is on the
part of the government to explain and try to justify its conduct at all times.

Activity:questions for discussion

1.what is the meaning of constitutionalism?

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2.How does it apply to Zambia
3:briefly explain to puff Diddy who is in your office whether the doctrine of constitutionalism
apply to England giving reasons why.
FEDERALISM AND UNITARALISM
The federal government is one which the constitution divides government power between the
central government and sub divisional governments giving to each subtantial functions, on the
other hand, in a unitary system the constitution vest all government power in the central
government. In such a system, the central government may delegate authority to local units by
a process called delegation. What it gives, however, it has the constitutional right to take away.
In a federal system the constitution is the source of both central government and sub-divisional
authority. Each unit has a core of power independent of wishes of those who control other
levels of government.

In Canada the constitution reserves to the central government powers not given to the local
government. In the USA, the constitution reserves to the state powers not given to the central
government. Federal systems create tensions as regards where authority resides. In the USA the
tension is resolved by tilting towards the supremacy of the central government.

AMERICAN FEDERALISM
The American Federalism is based on the following:-
i) The Constitution grants certain Legislative, Executive and Judiciary powers to the
government.
ii) Reserves powers not given to the central government to the state.
iii) Makes the national government supreme. In the federal constitution all laws passed
by congress and treaties ratified by the US are the supreme law of the land.

American citizens owe primary allegiance to the central government and also state
citizenship. Primary allegiance is owed to the state and to the central government.
iv) The Constitution denies some powers to both central and state governments, for
example, detention of people without rights, each state is not allowed to have a state
army respectively.

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Some powers given to the central government
1. regulating Coin money and regulate inter state commerce
2. Power to raise and support relations
3. Power to conduct foreign relations
4. Power to lay down uniform rules of nationalism
5. Power to tax

STATE POWERS
1. To tax and spend. In this system citizens pay two types of taxes viz state tax and central
government tax.
2. To regulate persons and property in order to promote the public welfare. This is known
as the police power. This power must be exercised in the manner consistent with the
constitutional limitations. This one of the most important powers of the state.
3. To regulate intra state commerce.
To take over private property. This is known as the power of eminent domain.Under the
constitution private property can be taken by the state provided the owner is adequately
compensated. NOTE: All governments have such power in the world. But the taking
over of property should be in the interest of the public for example taking over land by
the government to put up a school, army base or hospital or carrying out a land
redistribution exercise etc.
4.

HOW A CONSTITUTION IS MADE

There are various ways in use in different countries:
1. BY PARLIAMENT ENACTING THE CONSTITUTION:- This is the method that
has been used in Zambia since 1964. The President appoints a Constitutional Review
Commission under the inquiries Act, which gathers evidence from the public and sends
its recommendations to him. The President and his Cabinet then select the
recommendations they like and refer the same to Parliament for enactment.

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 2. BY REFERENDUM:- A panel of experts of a constitutional Review Commission

formulates a draft constitution which is then submitted to the people who must either

approve it by voting yes or reject it by voting no for example in Madagascar.

3. BY CONSTITUTIONAL ASSEMBLY ADOPTING A CONSTITUTION:- A

constituent Assembly is a group of people who have been elected/selected for the
purpose of making a constitution. Recent examples of this method of adopting a
constitution include South Africa, Ghana, Uganda and Namibia.
4. THROUGH A CONSTITUTIONAL CONFERENCE at which all political players
are represented. French speaking countries such as Mali, Congo DR, Gabon and Ivory
Coast have used this method. Under the constitution private property can be taken over
by the state provided the owner is adequately compensated.

5. To establish the republican form of state and local government subject only to the
constitution. People have liberties to impose them of the powers granted to them by the
constitution.

Activity: question for discussion

1.Explain the various methods of enacting the constitution citing specific countries where the
practice is used.
2.Which method do you think is highly representative and why?
3.Briefly explain to dolly parton why most constitutions do not last long.
BICAMERALISM AND UNICAMERALISM
Bicameralism is where legislative powers of the state are granted to two distinct chambers or
houses of the Legislature. Unicameralism is where legislative powers are granted to only one
chamber. In the USA for example the legislative powers is vested in the congress comprising
the upper chamber called the senate and the lower house called the House of Representatives.
The framers of the constitution felt that two chambers were needed so that the representation of
one may vest in the population where as the other states will be represented as individual
states. Moreover, it was thought that two chambers would act as a check on each other and
prevent the passage of ill-considered legislation. In this sense, two bills are passed. One starts

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in the house of Representatives and another starts in the congress so that at the end of the day
there are two bills stipulating the same thing.

Bicameralism also conforms to the framer’s general belief of balance of government. The
House of Representatives, it was thought, would reflect to the altitude of popular democratic
elements and the senate will reflect the elements of aristocratic rule. Each state elects (2) two
representatives to the senate who serve for a period of six years subject to re-election. The
number of representations each state has depends on its population size. Therefore, big states
like Texas, California and New York have very big numbers of representatives. However, there
are only 100 senators (i.e. from 50 states) owing to the fact that each state sends 2
representatives to the senate unlike representation to the lower house where the number is not
restricted.

Britain also has a bicameral parliament. The upper house is called the House of Lords and the
lower house is called the House of Commons. To be a member of the House of Lords, one
need not be elected but only inherit the seat while one need to be elected to be a member of the
House of Commons. Some lords are just appointed or knighted by the Queen. For example,
Margaret Thatcher is now Lady Thatcher. There are 110 temporal (earthly) lords and 26
spiritual lords. Spiritual lords are bishops of the Church of England. The formal power of the
lords is limited to imposing a temporary veto against the government bill.

THE WEST MINISTER SYSTEM

Main features
1. Diffusion of Executive powers
2. Partial fusion of organs of government
3. Responsibilities of the Executive to the Legislature

1. THE DIFUSSION OF EXECUTIVE POWERS

The characteristic feature of the west minister system is the diffusion of executive
powers. The Queen is both a temporal and spiritual head of state. The supreme

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 executive authority is vested in her and administrative powers of the state is
conducted in her name, however, the executive authority is exercised by the Prime
Minister in the cabinet. The principle convertion of the Queen is that the Queen shall
exercise her powers only upon and in accordance with the Prime Minster and Cabinet
Ministers except in a few occations, however she has the right to be consulted ,
encourage and also the right to offer her own initiative suggestions and advice to
cabinet ministers. even though they are not obliged to accept the formal advice
tendered by her. To be more clear, she has convertion rights to receive government
papers and minutes, to be adequately informed by the Prime Minister on matters of
governance, to receive foreign office dispatches, telegrams and state papers and
awards to be made in her own names so that she expresses her views formally. She
can remonstrate and offer strong objection to a proposed course of action, how much
attention is paid her views depends on her personal character. It is the Queen’s
prerogative to appoint a Prime Minister, however, by convertion her hands are tied
and hence she has to appoint from a party which wins the elections.

CABINET AND PRIME MINISTER

The cabinet and the prime minister occupy key places in the government. The Prime
Minister can not carry the Governmental duties alone, he needs the assistance of the
cabinet. The Prime Minister provides the individual leadership of the House of
Commons so cabinet provides for the party.

Activity : questions for discussion

1.Explain to your young sister the meaning of the terms bicameralism and Unicameralism
2.which method applies to Zambia?
3.Of the two which one do you think is better than the other? explain why
4.How does the west minister system differ form that of Zambia?
5.Explain any differences if any in the legislative houses obtaining in Britain and that obtaining
in America.

G O D B L E S S Y O U AS YOU PREPARE FOR MODULE TWO

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