THE UNIVERSITY OF ZAMBIA

SCHOOL OF LAW

LPU 2962 ADMINISTRATIVE LAW

CLASS NOTES (DECEMBER 2018)

INTRODUCTION AND CONCEPTS

Definition of Administrative Law: Administrative law is law that governs the activities of administrative
agencies of government. It governs those who discharge public office and regulates the manner in which
power is used to ensure it is used fairly and for the right reasons.

Sources of law: These include the following:

1. The Sources of Administrative Law include;
2. Constitution
3. Statutes
4. Common law/case law
5. Statutory instruments
(1) Constitution: The entire Zambian Constitution is a source of Administrative law as it not only creates
government, but establishes the mandates of most offices, and imposes limitations on public officials.

(2) Statute: Very often statutes which create public institutions do prescribe their powers and how they
ought to be exercised. Where a statute creates a public institution and prescribes how its power ought
to be used, it is the concern of administrative law to ensure the powers are exercised within the set
boundaries.

(3) Common Law: Common law, largely a creation of the Courts, provides guidelines on how the Courts
will decide a given case. Much of the Administrative law is based on common law principles. For
example, the idea that no one should be punished unheard is a common law principle that pervades
administrative law.

(4) Statutory Instruments: This I delegated legislation passed by those allowed to do so under enabling
legislation.

Purpose of administrative law

1. Concerned with ensuring that public decision makers act within the law and are accountable
before the law.
2. Concerned with ensuring that there is fairness in public administration;

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 3. In short it is concerned with Accountability and Transparency – which are elements of Good
Governance.
4. Ultimately, it ensures that power is utilized for the right purposes and within set limits and not
arbitrarily.

Relationship between constitutional and administrative law

Constitutional Law refers to the formal rules mainly embodied in one single document known as the
constitution, which establish the main institutions of the state, prescribe their powers, their relation
with each other and their collective position vis –a- vis the citizens.
Administrative Law focuses on the powers vested in these institutions and how they are exercised.

Admin Law is concerned with Public Authorities or Public bodies or Governmental bodies or public
decision maker(s). It is also concerned with the way powers are acquired, where the public authority
get their powers from and the nature of those powers:
• Concerned not only with power but also with liabilities both of authorities and of their
employees

• Concerned with bodies which exercise these powers namely central government departments,
public corporations, local authorities and other institutions

• Administrative Law must be seen as an instrument of control of the exercise of administrative

powers.

POWER AND JURISDICTION

Power means a legal discretion to carry out or refrain from carrying out any act.

In this area “jurisdiction” is a hard-worked word. Commonly it is used in its broadest sense, meaning
simply “power.” In some context it will bear the narrower sense of “power to decide” or “power to
determine”, but there will be no technical difference.

Sources of Power

1.Statutory Power

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Public administration is carried out to a large extent under statutory powers, conferred upon public
authorities by innumerable Acts of Parliament.

When the question arises whether a public authority is acting lawfully or unlawfully, the nature and
extent of its power has to be found in most cases by seeking the intention of Parliament as expressed or
implied in the relevant Act.

A statutory power will be construed as impliedly authorizing everything which can fairly be regarded as
incidental or consequential to the power itself. For example, a local authority may do its own printing
and bookbinding even though it is not specifically empowered to do so (A-G v Smethwick 1932).

Mandatory and directory conditions: Acts of Parliament conferring power on public authorities very
commonly impose conditions about procedure, eg, by requiring that a notice shall be taken within a
specified time or that the decision shall state reasons. If the authority fails to observe such a condition,
is its action ultra vires?

To decide whether validity follows o not requires as careful examination of the relevant legislation, to
ascertain the purpose of the statutory provisions. If the conclusion is reached that on a true construction
non-observance of the conditions is fatal to the validity of the action, that condition is said to be
“mandatory.” But if the conclusion is reached that non-observance does not lead to invalidity, the
condition is said to be “merely directory.”

Procedural and Formal Requirements: procedural safeguards, which are so often imposed for the
benefit of persons, are normally regarded as mandatory, so that it is fatal to disregard them. Where
there is a statutory duty to consult persons affected, this must genuinely be done, and reasonable
opportunity for comment must be given. (see the Labson Zimba case).

2.Corporate Powers

The legislature can incorporate a body through an Act of parliament. This has often been done with
regard to establishment of Universities, Colleges, and Professional bodies such as LAZ and ZICA. For
example, University of Zambia (UNZA) was established by Act of Parliament No. 66 of 1965

3.Contractual Powers

Public authorities frequently acquire powers by contract, eg, where a local authority lets houses and
under the terms of the lease has power to evict the tenant or to increase the rent.

Frequently the contractual power will derive from a statutory power such as the local authority’s power
to manage its housing estates.

Where a public authority’s contracts are made merely in the exercise of commercial liberty, they
generally fall outside administrative law since the ordinary law of contract provides adequate machinery
for their enforcement and control.

Legislative Power

Article 61 states that legislative authority of the republic derives from the people and that it should be
exercised in a manner that supports the constitution and promotes democratic governance. This is a

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new inclusion (since 2016). It emphasizes the importance of the putting legislative authority at the
service of the common good.

Article 62(1) establishes the parliament of Zambia, which consists of the President and the National
Assembly. This waters down the concept of separation of powers. Contrast this with section 42(1) of the
South African Constitution which simply states that parliament consists of the National Assembly and
the National council of Provinces, or section 93. (1) of the Kenyan Constitution which states that
Parliament shall consist of the National Assembly and the Senate.

Legislative authority is vested in and exercised by parliament.

Executive Power

Just as the legislature, article 90 states that executive authority derives from the people and shall be
exercised in a manner compatible with the principles of social justice and for the people’s well-being
and benefit.

Article 91(1) establishes the office of the President of the Republic of Zambia who shall be head of state
and government and commander in chief of the defence force. The president can exercise this executive
authority either directly or through officers or persons appointed by him/her.

Administrative Discretion

When applied to public bodies, in a generic sense the term “discretion” denotes their right or power to
choose between several alternatives in the exercise of their functions.

Administrative discretion is power or liberty to choose between alternatives in carrying into effect
policies laid down in legislation or law.
The hallmark of discretionary power is permissive language using words such as “may” or “it shall be
lawful” as opposed to obligatory language such as “shall”. But this simple distinction is not always a sure
guide, for there have been many decisions in which permissive language has been construed as
obligatory.(provide case).The case of The People vs. The Registrar of the University of Zambia, Ex Partes
Chitalu Gozo Lumbwe SCZ/8/40/1997 dealt with the interpretation of section 30(1) of the University Act
of No. 26 of 1992, which provides.
“Deans of Schools and Directors of Institutes, Bureaux or similar bodies shall be elected, from
among senior members of the academic staff of the schools, Institute, Bureaux or similar bodies
concerned, by their academic staff and in accordance with such election procedure as they may
determine,

Provided in the case of a school, Institute or Bureau or similar body in the process of being
established the Vice-Chancellor shall appoint the Dean or Director to hold office for a period of

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 one year but at the expiration of that period the academic staff shall hold elections as provided
for under this section.”

The Supreme Court held that the determination of the election procedure by the Staff of the unit
concerned was not mandatory but discretionary due to the use in the said section of the word “may”.

All discretionary powers have objective limits of some kind, but the problem lies in identifying them.

But it remains true that in all administrative cases there is an area of discretion, its size depending upon
the context, within which the administrator has a free hand.

The principle of objectivity authorizes the court to define the area of freedom. It is only one of the many
weapons in their armoury, but it is of primary importance. Without it they would be powerless to
prevent serious usurpations.

The object of the court is to prevent this at all costs by standing guard over the frontiers of free
discretion. In other words, the minister or other body must not be allowed to be the judge of the extent
of his/her own power.

Problems raised by Administrative Discretion

Rule by discretion necessarily means rule by men and not rule by law. The rule by men is not free from
dangers. The control of discretionary power is one of the difficult questions of our time. The problem of
tyranny by the entire machinery of government has been addressed largely by establishing political and
judicial controls, but the possible tyranny of individual public officers in the exercise of their
discretionary power is a much more serious problem. It defies both political and judicial controls. From
its very nature, discretionary power is not susceptible to external control. The legislature, after vesting
the necessary discretionary power in public officers, have little control over the use of that power. Even
judicial control is very limited.

The administrator in the exercise of his discretion powers may be authorised to exercise the function of
a legislator, but unlike the legislator, he may also be the judge and executor at the same time. Unlike, a
legislator an administrator is not under the watchful eye of the electorate, in that he does not have to
seek re-election. The administrator in exercising his discretion discharges the functions of a judge but he
does not have the training of a Judge.

Control of Discretion

a. a delegate cannot delegate

An element which is essential to the lawful exercise of power is that it should be exercised by the
authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it
causes administrative inconvenience, except in cases where it may reasonably be inferred that the
power was intended to be delegable.

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One aspect of the principle is the rule that participation of non-members in the deliberations or
decisions of a collective body may invalidate its acts.

The maxim delegatus non potest delegare (a delegate cannot delegate): the vital question in most cases
is whether the statutory discretion remains in the hands of the proper authority, or whether some other
person purports to exercise it.

b. Discretion Limited by Law

What the rule of law demands is not that wide discretionary power should be eliminated, but that the
law should control its exercise.

The first requirement is the recognition that all power has legal limits. The next requirement is that the
courts should draw those limits in a way which strikes the most suitable balance between executive
efficiency and legal protection of the citizen.

c. The Rule of Reason

Lord Halsbury in Rooke’s Case (1598), stated:

…and notwithstanding the words of the commission giving authority to commissioners to do

according to their discretion, yet their proceedings ought to be limited and bound with the rule
of reason and law. For discretion is a science or understanding to discern between falsity and
truth, between wrong and right, between shadows and substance, between equity and
colourable glosses and pretences, and not to do according to their wills and private affections,
for as one saith, talis discretion discretionem confundit.

Lord Macnaghten in Westminster Corporation v L and NW Railway (1905) stated:

It is well settled that a public body invested with statutory powers such as those conferred upon
the corporation must take care not to exceed or abuse its powers. It must keep within the limits
of the authority committed to it. It must act in good faith. And it must act reasonably. The last
proposition is involved in the second, if not the first.

In R v Secretary of State for the Environment e parte Nottinghamshire (1986), Lord Wrench stated:

A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A
discretion does not empower a man to do what he likes merely because he is minded to do so-
he must in the exercise of his discretion do not what he likes but what he ought. In other words,
he must, by the use of his reason, ascertain and follow the course which reason directs. He must
act reasonably.

The truth is that in a system based on the rule of law, unfettered governmental discretion is a
contradiction in terms. The real question is whether the discretion is wide or narrow, and where the
legal line is to be drawn. (Milford Maambo decision is nonsense!).

In Padfied v Minister of Agriculture, Fisheries and Food (1968) the House of Lords had to consider a
dispute under the milk marketing scheme established under the Agricultural Marketing Act 1958. The
Act provided for a committee of investigation which was to consider and report on certain kind of
complaint “if the minister in any case so directs.” The milk producers of the region close to London
complained that the differential element in the price fixed for their milk by the Milk Marketing Board

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was too low, since it ought to reflect the increased cost of transport from other regions but had not
been revised since WWII. But since that region was in minority on the Board, and any increase would be
at the expense of the other regions, the board could not be persuaded to act. The minister had power, if
the committee of investigation so recommended, to make an order overriding the Board. But he refused
to direct the committee to act, saying that since the producers were represented on the board, they
should be content with the normal democratic machinery of the marketing scheme. It was held that
where there was a relevant and substantial complaint the minister had a duty to act as well as a power
and that he could not use his discretion to frustrate the policy of the Act. Otherwise he would be
rendering nugatory a safeguard provided by the Act and depriving the producers of a remedy which
Parliament intended them to have. Mandamus was therefore granted to compel the minister to act as
the law required.

Lord Denning in Breen v Amalgamated Engineering Union (1971):

The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised

according to law. That means at least this: the statutory body must be guided by relevant
considerations and not by irrelevant. If its decision is influenced by extraneous considerations
which it ought not have taken into account, then the decision cannot stand. No matter that the
statutory body may have acted in good faith; nevertheless, the decision will be set aside.

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NATURAL JUSTICE AND LEGAL JUSTICE

Meaning of Natural Justice

In its broadest sense natural justice may mean simply “the natural sense of what is right and wrong.”

In its technical sense it is often equated with “fairness.”

In administrative law natural justice comprises two fundamental rules of fair procedure: that a
man/woman may not be a judge in his own cause; and that a man/woman’s defence must always be
fairly heard.

Violation of natural justice makes the decision void, as in any case of ultra vires.

Rules of natural justice operate as implied mandatory requirements, non-observance of which

invalidates the exercise of the power.

Rule against bias (No man a judge in his own cause-Judicial and Administrative Impartiality)

The principle is summarized in the Latin maxim: Nemo judex in re sua. A judge is disqualified from
determining any case in which he may be, or may fairly be suspected to be biased.

“Justice should not be done, but should manifestly and undoubtedly be seen to be done.”

In the case of R. v Sussex Justices, ex parte McCarthy [1924] 1 KB 256, a solicitor was acting for a client
who was suing a motorist for damage caused in a road accident. The solicitor was also acting clerk to the
justices before whom the same motorist was convicted of dangerous driving and he retired with them
when they were considering their decision. The fact that the clerk’s firm was acting against the interests
of the convicted motorist in other proceedings was held to invalidate the conviction, even though it was
proved that the justices had not in fact consulted the clerk and that he had scrupulously refrained from
saying anything prejudicial.

In John Ezekial Mumba v The People (2006) ZR 93 the Supreme Court quashed the conviction of the
accused because a military officer who took part in investigating the case also sat as a member of the
court-martial that convicted him, thus calling that court’s impartiality into question.

Any pecuniary interest, however small, automatically disqualifies a judge or decision maker.

In the case of R v Bow Street Magistrate ex p Pinochet Ugarte (No2) 1998, Amnesty International (AI)
was given leave to intervene in the proceedings before the House of Lords (now SC). Unknown to the
representatives of the former head of state at the time, one of the law lords was in fact an (unpaid)
director and chairperson of Amnesty International Charity Limited (AICL), a company under the control

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of AI, which was formed to carry out the charitable parts of AI. The law lord, who did not disclose his
links with AI, had no financial interest in the outcome and was not a party to the proceedings. It was
held that AI and AICL were various parts of an entity or movement working in different fields but
towards the same goal. This was enough to disqualify the law lord and matter was reheard before a
differently constituted Appeal Committee.

Contrast this with the Zambian case of John Kasanga and others v Ibrahim Mumba and Others (2006),
where the SC held, inter alia: 1) If Judges were to recuse themselves because any lawyer was known to
them, people or society would not get justice; 2) It was not the intention of the legislature in enacting
the Judicial (Code of Conduct) Act that any relationship between a Judicial officer and Counsel
representing any party should make a judicial officer disqualified from adjudicating in the matter.

In cases where there is no automatic disqualification it then has to be determined whether the judge’s
or decision maker’s decision-making interest in the matter is sufficient to justify disqualification.

The test applied is “whether a fair-minded and informed observer, having considered these facts, would
conclude that there was a real possibility that the tribunal was biased.”(Lawal v Northern Spirit Ltd
[2003] UKHL 35. The fair-minded observer is not an insider.

Matters that cannot found an objection: religion, gender, age, class,

Right to fair hearing

It is a fundamental procedure that both sides should be heard: audi alteram partem: “hear the other
side.”

This is a broad principle to the effect that bodies entrusted with legal power could not validly exercise
that power without first hearing the person.

For example, in the case of Labson Zimba v AG(1979) ZR 83: The applicant applied for the registration as
a society of the Mutendere Branch of Jerusalem Church. The registrar refused the application on the
ground that the interest of the peace, welfare or good order in Zambia would be likely to suffer
prejudice. The said refusal was upheld on appeal to the minister. The applicant applied for an order of
certiorari to remove into the High Court for the purpose of quashing the decision of the registrar. He
submitted that he was not accorded an opportunity to be heard when the application and appeal were
considered and secondly that the reason for the refusal was without merit.

It was held, inter alia, The registrar was under a statutory duty to have regard to certain criteria. He had
to determine whether the interest of peace, welfare or good order in Zambia would be likely to suffer
prejudice. There was a duty on him to act fairly and this required him, on considering the statutory
grounds upon which he could refuse registration to give the applicant sufficient indication of any
relevant objection raised against him to enable him to meet such objection without necessarily
disclosing his source of information.

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The rule is generally traced back to the old case of R v University of Cambridge (1723) (also referred to as
the Dr. Bentley’s case), in which it was asserted that the first hearing in human history was given in the
Garden of Eden. In this case the University of Cambridge had deprived that recalcitrant scholar of his
degrees on account of his conduct insulting the Vice-Chancellor’s court; but he was reinstated on a
mandamus from the Court of the King’s Bench, on the ground that deprivation was unjustifiable and
that, in any case, he should have received notice so that he could make his defence, as required by the
“laws of God and man.”

The Court in part stated: “…even God himself did not pass sentence upon Adam, before he was called
upon to make his defence. “Adam, says God, where art thou? Hast thou not eaten of the tree, where of I
commanded thee thatthou shouldn’t eat?” And the same question was put to Eve also.

The modern English restatement of the right to be heard in found in the case of Ridge v Baldwin ([1964]
AC 40. In this case the chief constable of Brighton had been tried and acquitted on a criminal charge of
conspiracy to obstruct the course of justice. Two other police officers were convicted, and the judge
twice commented adversely from the bench on the chief constable’s leadership of the force. Thereupon
the Brighton Watch Committee, without giving any notice or offering any hearing to the chief constable,
unanimously dismissed him from office. His solicitor then applied for a hearing and was allowed to
appear before a later meeting. The Committee confirmed their previous decision, but by a vote of nine
against three. The chief constable exercised his right of appeal to the Home Secretary, but his appeal
was dismissed. Finally, he returned to the courts of law, claiming a declaration that his dismissal was
void since he had been given no notice of any charge against him and no opportunity of making his
defence. This was refused by the High Court and by unanimous Court of Appeal. But it was awarded by
the House of Lords by a majority of four to one. The hearing given to the chief constable’s solicitor was
held to be irrelevant, since even then no notice of any specific charge was given, and natural justice was
again violated.

Similarly, see also the Zambian case of Gerrison Zulu v Zambia Electricity Supply Corporation Limited
(2005) ZR 39. The facts of this case are that while employed by the respondent as a Principal
Accountancy Assistant, the appellant committed the dismissable disciplinary offences of dishonesty and
neglect or refusal to obey lawful instructions, charges which the appellant admitted. Subsequent to
these charges, the appellant appeared before a disciplinary hearing committee which found him guilty
and on the recommendation of the Disciplinary Committee was discharged. Subsequently, the appellant
was written another letter informing him that due to the seriousness of the offence he had committed,
management had decided to summarily dismiss him. The appellant sought the nullification of his
dismissal and payment of terminal benefits. The learned trial Judge found that the appellant’s dismissal
was lawful. The appellant against the Judgment of the learned trial Judge.

The third ground of appeal is that the trial Judge had prejudged the case when in anger he took over the
cross examination of the appellant and told him that he had wasted the court's time and was biased in
favour of the respondent.

The record shows to us that the learned trial Judge made a lot of interventions during the trial. We
particularly quote the discourse between the learned trial Judge and the plaintiff on page 26 of the
record of appeal which is the subject of the third ground of appeal. After the plaintiff was referred to his
exculpatory letter in which he admitted the disciplinary offences brought against him, the exchange
went on in these words. 45

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 Court: did you tell your lawyers those things?

A Yes, my Lord

Court: You told him

A No, my Lord

Court: Why did you decide to mislead your lawyer? Do you know that you have put your
lawyer in a very difficult position, that is abuse of the process of the law, do you understand me?

A I do my Lord

Court Do you know the evidence your lawyer has led to this court?

A Yes I do

Court Why did you not tell him what happened regarding the dismissed or whatever you
thought it was, everything on the table to your lawyer so that he could give you a proper advice whether
this is worth going to court or not. If that letter was shown to your lawyer or any other lawyer of
that sort, he would not have wasted time to come and prepare these things which waste time and
money. You people, you should not think you can have it very easy in court, you have wasted the courts
time. You apologized to these people and you want the court to go behind that and give you a
judgment, for what Mr. Zulu? This case was instituted on 23rd August last year, so for all this one year
you have been bothering your lawyer on something, which does not even exist and today you are
bothering the court. Do you know that documentary evidence is the most battering evidence on
earth? Why did you behave like that Mr. Zulu. You mean your lawyer was going to be so daft that he
would take this matter to the court with that admission, you have been bothering your lawyer. You are
trying to cut in, to hide something, which is against you. Why did you behave like that please, why? I do
not know whether it is worth going into the proceedings."

Held:

2. Although trial Judge has the Judicial discretion to ask questions during the trial, he should not
use his discretion to insert himself into the substantive questioning during the trial. The trial Judge
should ask questions only to clear a point. The learned Judge in this case went beyond the normal
intervention.

3. The discretion to ask questions must be enlightened by intelligence and learning, controlled by
sound principles of law, of firm courage combined with calmness of mind, freedom from partiality, not
swayed by sympathy, nor warped by prejudice nor moved by any kind of influence, save alone the
overwhelming passion to do what is just.

4. The Judge when evidence is being given is to listen to it; asking question, only when it is
necessary to clear a point, to see to it that the advocates behave themselves; and keep to the rules laid
down by law’ to exclude irrelevancies and discourage repetitions; to make sure by wise intervention that
he follows the points made by the advocates; and assess their worth; and at the end make up his mind
where the truth lies.

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Scope and Limits of the Principle

Generally, the principle of the right to be heard is confined by no frontiers.

However, there are recognized exceptions, making it a flexible principle.

This is because sometimes urgent action needs to be taken on grounds of public health or safety, eg, to
seize and destroy bad meat exposed for sale or to order the removal to hospital of a person with an
infectious disease such as cholera (R v Davey [1899] 2 QB 301).

Even in cases not involving urgency it may be equally clear that no hearing is required. A decision to
prosecute or bring legal proceedings (Wiseman v Borneman [1971] AC 297; Nicol v A-G of Victoria [1982]
VR 353), or to carry out a search (R v Leiceter Crown Court ex parte Director of Public Prosecutions [1987]
1WLR1371), damaging though it may be to the accused, does not require him to be consulted or shown
the evidence in advance.

ADMINISTRATIVE CONTROL OF POWER

Definition and Rationale

Administration is commonly associated with the executive branch of government. It is the branch of
government charged with executing the laws and policies to address these challenges. Government’s
efforts in addressing these formidable tasks will inevitably entail government interfering with society,
the economy and generally with people’s lives. It is therefore imperative to set the ground rules and
mechanisms to govern the executive branch of government in its efforts in addressing these problems.

Some mechanisms and rules have been developed over the years and they are non-judicial, judicial and
constitutional. Here we look at the non-judicial or administrative rules or means of control of
administrative power.

Appeals to Ministers

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Many decisions taken by government agencies may have effects on the interests of individuals which
may engender some sense of grievance. In some such situations some form of appellate reconsideration
of the decision may be available to the aggrieved citizen

This is often within the administrative hierarchy itself, in order for a reconsideration of the decision at a
higher level. For our purposes, we will look at appeals to ministers.

Several statutes that empower government officers to make decisions allow for appeals to ministers by
those who may be aggrieved by their decisions:

1.Societies Act: 16. Any society, other than a society the registration of which has been cancelled
under the provisions of subsection (1) of section thirteen or in respect of which an order made under the
provisions of subsection (2) of section twenty-three is in force, which is aggrieved by the refusal of the
Registrar to register such society or by his decision to cancel the registration thereof or by his refusal to
grant any application made under the provisions of subsection (2) of section nineteen may, within
twenty-one days or such extended period as the Minister may allow, from the date of such refusal or
cancellation, appeal against such refusal or decision to the Minister.

2. Non-Governmental Organizations Act 2009: 22. (1) A non-governmental organization which is

aggrieved with any decision of the Board made under this Part may, within sixty days from the date of
the decision, appeal to the Minister.
(3)The Minister shall issue a decision on the appeal within thirty days from the date of the appeal.
(4) Any person aggrieved with the decision of the Minister may within thirty days of receiving the
decision from the Minister, appeal to the High Court.

THE PUBLIC PROTECTOR (The Ombudsman)

Introduction to the role of Ombudsman

The word “Ombudsman” is Swedish in origin and has no gender connotations, contrary to popular
views.

The 1974 resolution of the International Bar Association sets out the traditional functions of an
ombudsman in the following words:

An office provided for by the constitution or by action of the legislature or parliament and
headed by an independent high-level public official who is responsible to the legislature or
parliament, who receives complaints from aggrieved persons [alleging maladministration]
against government agencies, officials and employees or who acts on his/her own motion, and
who has the power to investigate, recommend corrective action and issue reports.

Generally, the role of an ombudsman is to receive and investigate complaints of maladministration

against government agencies, officials and employees. Government departments, officials and
employees wield enormous powers the exercise of which can have serious consequences for good

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governance and economic development. The office of the ombudsman generally deals with complaints
of administrative delays, abuse of public office, wrong use of discretion, misapplication of rules and
procedures, unnecessary delays, and taking actions or omissions actuated by malice or ill motives.

The Law Prior to the Enactment of the Constitution of Zambia (Amendment) Act No. 2 of 2016
The office of the Ombudsman was first introduced in Zambia in 1974. In Zambia the role of the
Ombudsman was performed by the Commission for Investigations, which was chaired by the
Investigator-General (IG). The IG was appointed by the president, in consultation with the Judicial
Service Commission.1 The IG must be someone qualified to be appointed a High Court judge.2 The IG
enjoyed security of tenure and retired at the age of 65 years.3 S/he may only be removed from office for
incompetence, inability to perform functions of the office or for misbehaviour, by the president on the
recommendation of a judicial tribunal and supported by a two-thirds resolution of the NA to that effect.4

The IG served with three other commissioners who were directly appointed by the president.5 The three
commissioners enjoyed no security of tenure. Their term of office was three years, renewable once and
were removable from office by the president, without any resort to an independent tribunal or the NA.6

The Commission had competence to investigate the following:

• Any person in the service of the Republic;

• The members and persons in the service of local authorities;
• The members and persons in the service of any institution or organization, in which the
government holds a majority of shares or exercises financial control;
• The members and persons in the service of any commission established by or under the
Constitution or any Act of Parliament.7

The Commission, however, is barred from investigating the president, decisions of a court or judicial
officer or of any tribunal established by law, or any matter relating to the exercise of the prerogative of
mercy.8 It has jurisdiction to inquire into the conduct of any person over whom it has jurisdiction
whenever directed to do so by the president and in any case it considers that an allegation of
maladministration or abuse of office or authority ought to be investigated.9

The Commission only had an office in the capital Lusaka and only made occasional visits to other
provinces. The consequence was that it was an institution not easily accessible to many citizens. Its
existence was not known by many.

The Commission is empowered to receive complaints or allegations from any individual or anybody of
persons whether corporate or not.10 Both oral and written complaints were admissible. The

1
Article 90(1) Constitution of Zambia 1996
2
Ibid, Article 90(2)(a)
3
Ibid, Article 90(3)
4
Ibid, Article 90(5) and (6)
5
Section 4(1) Commission for Investigations Act, Chapter 39 of the Laws of Zambia(repealed)
6
Ibid, section 5(2)
7
Ibid, section 3(1)
8
Ibid, section 3(2)
9
Ibid, section 8
10
Ibid, section 9(1)

14
Commission, however, could not ordinarily receive any complaint or allegation made two years after the
person making the complaint came to know of the facts giving rise to the complaint or allegation.11

Every investigation by the Commission was carried out in camera or in secret.12 The process, therefore,
closed off public participation. The Commission, however, had power to call for witnesses and
production of documents.13 The Commission could refuse or discontinue an investigation where it was
satisfied that:

• The complaint is trivial, frivolous or not made in good faith; or

• The inquiry would be unnecessary, improper or fruitless.14

Where the Commission decides not to conduct or to discontinue an investigation, it was required to
inform the complainant in writing but it was not required to give reasons for its decision.15

The work of the Commission had a weak enforcement mechanism. It is required to submit a report to
the president of every investigation it had conducted, which should contain:

• A summary of the evidence taken together with the conclusion and recommendations of the
Commission;
• A statement of any action that has been taken by any person whose conduct is under
investigation or by the department or authority of which such a person is a member or in which
he is employed, to correct or ameliorate any conduct, procedure, act or omission that is
adversely commented on in the report;
• Where any person has suffered loss or injury as a result of an alleged misconduct,
maladministration or abuse of office or authority by any person whose conduct is under
investigation, and the Commission has found allegations to be true, the Commission may in its
recommendations state that compensation should be paid to the person who has suffered such
loss or injury or to any dependent of such person, and shall determine the sum which it
recommends as compensation.16

It was entirely up to the president to take any decision or action with regard to the report as s/he
thought fit.17 The Commission was also required to submit a report on its operations annually to the NA.
The report to the NA shall not disclose the identity or contain any statement which may point to the
identity of any person into whose conduct an investigation has been or is about to be made.18 Without
these details, it means that the Commission’s report to the NA was of little use as it becomes difficult to
reasonably debate the matters it raises from an informed perspective or even follow up on some cases.
As a result, the Commission played no major role in the good governance discourse of the country and
has had very little impact on governance.

The Public Protector Under the Constitution of Zambia (Amendment) Act No.2 of 2016

11
Ibid, section9(4)
12
Ibid, section 16
13
Ibid, sections 13 and 14
14
Ibid, section 10(2)
15
Ibid, section 10(3)
16
Ibid, section 20
17
Ibid, section 21(1)
18
Ibid, section 22(1) and (2)

15
Establishment

Article 243(1) of the Constitution establishes the Public Protector (PP), who shall be appointed by the
President on recommendation by the Judicial Service Commission, subject to ratification by the NA.

A person qualifies to be appointed PP if that person—(a) is qualified to be appointed as a judge; and

(b) does not hold a State office or Constitutional office (article 243(2).

Section 7(1) of the PP Act 2016 creates the office of two Deputy Public Protectors, appointed by the
Public Protector on the recommendation of the Parliamentary Service. This seems contrary to the
constitution as the constitution does not contemplate these positions. In fact, article 246 of the
Constitution categorically states that when the PP is unavailable to perform his/her functions, the
President shall appoint another person to perform that role. It states: “Where the Public Protector is
absent from Zambia or is unable to perform the functions of office due to illness or other cause, the
President shall appoint a person qualified to perform the functions of the Public Protector until that
appointment is revoked or until the Public Protector returns to office.” The consequence of this could be
to dilute the autonomy of the PP.

247. (1) Subject to this Article, the Public Protector shall retire from office on attaining the age of sixty
years. Article 247 (3) further states that “The Public Protector may be removed from office on the
same grounds and procedure as apply to a judge.” This means that the PP has a tenure as relatively
secure as that of a judge of a superior court.

Functions of the Public Protector

Article 244(1) indicates the functions of the PP. it states that: “The Public Protector may investigate an
action or decision taken or omitted to be taken by a State institution in the performance of an
administrative function.” Article 266 defines a State institution as follows: “State institution includes a
ministry or department of the Government, a public office, agency, institution, statutory body,
commission or company in which the Government or local authority has a controlling interest, other
than a State organ.” Under the same article, a state organ is defined as “State organ means the
Executive, Legislature or Judiciary.” These provisions create unnecessary ambiguity. State organs do not
exist in abstract but are staffed by human beings and, therefore, should not be immunized from the
oversight of the PP.

(article 244(2)) An action or decision taken or omitted to be taken is an action or decision which is—
(a) unfair, unreasonable or illegal; or
(b) not compliant with the rules of natural justice. What constitutes rules of natural justice is defined
under section 2 of the PP 2016 Act as: ““rules of natural justice” means the principles and procedures
underlying the making of a decision or taking of an action by a State institution, which are that an act or
decision should be unbiased, transparent and made in good faith; and that each party should have equal
access to the person taking the action or making the decision and should be aware of the facts of the
decision and the documents that are used or adduced by the person taking the action or making the
decision.”

In furtherance of these functions, the PP may (article 244(3):

(a) bring an action before a court;

16
(b) hear an appeal by a person relating to an action or decision taken or omitted to be taken in respect
of that person; and
(c) make a decision on an action to be taken against a public officer or Constitutional office holder,
which decision shall be implemented by an appropriate authority.

Article 244(3)(c) suggests that the decision on action taken against a public officer or constitutional
office holder is binding and not a mere recommendation. This seems to be in line with South African
jurisprudence where the current PP model was borrowed.

See for example, the case of Economic Freedom Fighters v Speaker of the National Assembly and Other
[2016] ZACC 11, where South African Chief Justice, Mogoeng Mogoeng, in relation to the powers of the
Public Protector, stated:

If compliance with remedial action taken were optional, then very few culprits, if any at all,
would allow it to have any effect. And if it were, by design, never to have a binding effect, then
it is incomprehensible just how the Public Protector could ever be effective in what she does
and be able to contribute to the strengthening of our constitutional democracy. The purpose of
the office of the Public Protector is therefore to help uproot prejudice, impropriety, abuse of
power and corruption in State affairs, all spheres of government and State-controlled
institutions. The Public Protector is a critical and indeed indispensable factor in the facilitation
of good governance and keeping our constitutional democracy strong and vibrant.

The Public Protector Act no 15 of 2016, however, seems to walk away from this position as it does not
expressly consider remedial actions by the PP to be binding. Section 6(2)(a), for example, in vesting the
PP with power to consider administrative actions, only empowers the PP to make “recommendations”
to state institutions.

Section 6 of the PP Act 2016 expands the functions of the PP. these include:
• Taking preventive measures against maladministration;
• Initiate, receive and investigate complaints of alleged or suspected maladministration;
• Be the lead agency in in matters of combating maladministration;
• adopt and strengthen mechanisms for educating the public to respect the public good and
public interest;
• monitor and evaluate administrative activities and standards in State institutions and issue
reports on matters of public interest;
• promote public awareness of policies and administrative procedures on matters relating to
administrative justice;
• advise Government on good administrative practices; and
• perform any other functions as necessary or incidental to the performance of its functions under
this Act or as may be prescribed under any written law.
Powers of the PP
These are stated under Article 244(5) as follows:
(5) The Public Protector has the same powers as those of the
High Court in—
(a) enforcing the attendance of witnesses and examining them on oath;
(b) examining witnesses outside Zambia;
(c) compelling the production of documents;

17
(d) enforcing decisions issued by the Public Protector; and
(e) citing a person or an authority for contempt for failure to carry out a decision.

Limitations of the Powers of the PP

While the Constitution has given the PP extensive powers, these powers have confines and limitations.
Article 245 of the constitution lists those limitations. It states:
“The Public Protector shall not investigate a matter which—
(a) is before a court, court martial or a quasi-judicial body;
(b) relates to an officer in the Parliamentary Service [new requirement, does it exclude MPs?] or Judicial
Service;
(c) involves the relations or dealings between the Government and foreign government or an
international organization;[this restriction seems unreasonable].
(d) relates to the exercise of the prerogative of mercy; or
(e) is criminal in nature.[unnecessary restriction. Several instances of maladministration could be as a
result of criminal activities such as corruption]

Initiation of Investigation

This is governed by section 13 (1) of the PP Act 2016, which states:

“The Public Protector may investigate an allegation
of maladministration—
(a) on the Public Protector’s own initiative; or
(b) on receipt of a complaint made by
(i) a complainant acting in the complainant’s own interest;
(ii) an association acting in the interest of its members;
(iii) a person acting on behalf of a complainant;
(iv) a person acting on behalf, and in the interest, of a group or class of persons; or
(v) an anonymous person.”

Hearings
Section 20 (1) PP Act 2016 states:
“ The Public Protector may hold hearings for the purpose of conducting an investigation.” Section 20(2)
further states: “The Public Protector may hold its hearings in public or in private, or partly in private as it
considers appropriate.” This is an improvement over the former legislation which required investigations
to be carried out in camera.

Refusal to Investigate Complaint

“15. (1) The Public Protector may refuse to investigate a
complaint or, having commenced an investigation, discontinue the investigation if the Public Protector
considers that the—
(a) complaint is trivial;
(b) complaint is frivolous, vexatious or not made in good faith;
(c) complainant does not have sufficient interest in the action complained of, except that this paragraph
shall not apply to anonymous complaints;
(d) complainant has a right of appeal, review or remedy that has not been exhausted; or
(e) conduct or involvement to which the complaint relates is or has been the subject of an investigation
or other action by any other appropriate authority under any other written law.”

18
Reporting
Article 248 states that the PP shall report to the National Assembly on matters concerning its affairs.
Further, section 34(1) of the PP Act 2016 requires the Office of the PP to submit a report to the Speaker
of the NA, not later than 90 days after the end of the financial year. Section 34(2) enjoins the Clerk of
the National Assembly to lay the report before the National Assembly, not later than seven days after
the first sitting of the NA next after the report was received. This is an improvement over the former
legislation that required the PP to report to the President.

Possible strengths of the new PP Model

• reporting to parliament and not the president enhances transparency and accountability;
• relative secure tenure of the PP as he or she is removable in the same manner as judges of
superior courts;
• binding recommendations
• enhanced powers (eg, can commence a suit)
• allowed to hold public hearings, as opposed to secret investigations under the former law. This
increases transparency.

Possible Weaknesses of the New PP Model

• Article 245 has increased restrictions on the power of the PP while section 15 of the PP Act has
increased grounds for refusing to investigate or discontinue an investigation.
• The PP Act seems to walk away from the Constitutional provisions that empower the PP to make
binding decisions;
• Section 11 requires the PP to take an oath of office provided for in the Official Oaths Act. This
oath bears allegiance to the President, and therefore, waters down the autonomy of the PP;
• Section 21(3) states that the determination of a matter under the PP is by a majority. This
dilutes the autonomy of the PP. the PP, as the bearer of the constitutional mandate, should
have the final say.

Statutory Tribunals
The term “Tribunal” is used to describe any statutory body which possesses most or all of the following
features:
a) It is independent of the administration, and decides cases impartially as between the parties
before it. This feature serves to distinguish the “tribunal remedy” from that of “internal
administrative review.”
b) It reaches a binding decision in relation to the cases heard. This serves to distinguish tribunals
from inquiries, which hear evidence, but merely make recommendations;
c) Its decision will usually be made by a panel or bench of the tribunal members rather than by a
lone adjudicator.
d) It will adopt a procedure akin to, though rather simpler and more flexible, than of a court of law.
e) It will have a permanent existence, having been established specifically to deal with a particular
type of case, or with a number of closely related types of cases.
Note, however, that each tribunal is tailor made to suit the particular tasks before it, rather than
created to any set standard.

Potential Benefits/Advantages of Tribunals

a) Relatively cheap;

19
 b) More accessible;
c) Relatively free from procedural technicalities;
d) Possess more expert knowledge of the subject matter under dispute.

Examples of statutory Tribunals

Lands Tribunal
Lands Tribunal was initially established under section 20 of the Lands Act 1995.
It is now provided for under section 3 of the Lands Tribunal Act 2010.

Jurisdiction of Tribunal
The jurisdiction of the Lands Tribunal is stated under section 4(1) of the Lands Tribunal Act. The list is
extensive, as opposed to the narrow one which was provided for under section 22 of the Lands Act
1995, which only gave the Tribunal jurisdiction to:

(a) inquire into, make awards and decisions in any dispute relating to land under this Act;

(b) to inquire into and make awards and decisions relating to any dispute of compensation to be
paid under this Act;

(c) generally to inquire and adjudicate upon any matter affecting the land rights and
obligations, under this Act, of any person or the government; and

(d) to perform such acts and carry out such duties as may be prescribed under this Act or any
other written law.”

In view of the extensive jurisdiction of the Tribunal, specifically section 4(2)(h)and(i) which empower the
Tribunal to make any declaration it considers appropriate and to grant injunctive relief or any
interlocutory relief it considers appropriate, it means the case of Kawana Mwangelwa v Ronald Bwale
Nsokoshi and Ndola City Council SCZ No. 29 of 2000, is no longer good law. This case had held that the
Jurisdiction of the Lands Tribunal is limited to the settlement of “land disputes” under the Act and is not
an alternative forum to the High Court where parties can go to even for the issuance of prerogative writs
such as mandamus.

Composition
Section 5(1) provides for composition of the Tribunal:
a) Chairperson, who shall be a legal practitioner of at least seven years of experience;
b) Deputy chairperson, not less than seven years at the bar;
c) Representative of the AG, not less than seven years at the bar;
d) Representative of LAZ, not less than seven years at the bar;
e) Representative of House of Chiefs;
f) A registered planner;
g) A registered land surveyor;
h) A registered valuation surveyor;
i) Not more than three persons from the public and private sector.
Proceedings
This is provided for under section 10 of the Act. The Tribunal may sit at such places and times as the
chairperson/deputy chairperson determines.
The Tribunal is presided over by the Chairperson or the deputy chairperson in his/her absence.

20
The Tribunal is fully constituted if it has three members, which shall include the chairperson or deputy
chairperson.
Empowered to sit as a circuit tribunal, provided each circuit includes the chair, deputy or representative
of LAZ.

Matters determined by a majority vote where no consensus

Allowed to appoint expert assessors

Issuance of Judgment
Section 12 requires the Tribunal to issue judgment within 60 days after the conclusion of the hearing.
Appeals
Appeals from the Lands Tribunal lie to the High Court (section 16). Previously, it was to the Supreme
Court. a person aggrieved with decision of the Tribunal has to appeal to the High Court within 30 days of
the receipt of the decision of the Tribunal.

Tax Appeals Tribunal

See the Tax Appeals Tribunal Act No. 1 of 2015 for details

For details of other Tribunals, see the Sangwa notes.

Commissions of inquiry and service commissions

Inquiries provide members of the public or interested persons and opportunity to appear, produce
evidence, examine publicly and to have their views independently assessed prior to the final political,
legal, environmental, etc decision being taken

Purpose of Inquiries
a) Provide decision makers (political leaders and administrators) with the fullest information upon
which their decisions may ultimately be taken;
b) An opportunity to be heard will have been afforded to a wide range of shades of opinion; and
c) Evidence will have been presented, critically examined and finally assessed by independent
commissioners.

Differences Between Tribunals and Inquiries

a) Tribunals usually have a defined and permanent existence (whereas inquiries are established or
convened as needs arise (note, however, that some laws allow for ad hoc tribunals. Eg,
Ministerial and Parliamentary Code of Conduct Act);
b) Tribunals make binding decisions while inquiries hear the evidence and usually only make
recommendations

Appointment of Commissions of Inquiry in Zambia

All the Commissions have been appointed by the President in exercise of his power under the Inquiries
Act. The Act has been in place since 1967. The President has power under section 2 of the Act to issue a
commission appointing one or more commissioners to inquire into any matter in which an inquiry,
would in the opinion of the President, be in the interest of the public. The commission is issued at the

21
discretion of the President. This does not, however, vitiate the value of this statutory provision in
contributing to the proper functioning of the administration.
There are pre-conditions to be satisfied before a commission can be issued. The President must be
convinced that there is a matter, which needs to be investigated and that it would be in the public
interest for an inquiry to be held on the matter. The issuing of a commission is an acceptance on the
part of the President that the matter at hand is so serious that he alone cannot decide. That it is in the
interest of the Republic that other persons should look into the issue and make the necessary findings
and recommendations to the President.
It is the duty of commissioners, once appointed, to make a full, faithful and impartial inquiry in
accordance with the terms of reference of the commission, and to report the results of the inquiry to
the President. Ordinarily a commissioner is expected to be an upright and impartial person for him to
effectively discharge his obligations under the Inquiries Act and contribute to the proper functioning of
the administration.

Some Examples of Commissions of Inquiry

a) Mainza Chona Commission 1972, which led to the 1973 Constitution;
b) Mvunga Commission 1991, that led to the re-introduction of multiparty democracy;
c) Mwanakatwe Commission 1996;
d) Mung’omba Commission 2003’
e) Justice Florence Mumba Commission of Inquiry into the Traffic Accident involving Vice President
Levy Mwanawasa;
f) Justice David Lewanika Commission of Inquiry into the Circumstances Leading to the Death of
Baldwin Nkumbula
g) Justice Bobby Bwalya Inquiry into the Frequent Closures of the Two (UNZA and CBU) Public
Universities in Zambia;
h) Justice Japhet Banda Commission of Inquiry into the Abuse of Human Rights following the 1997
Coup Attempt;
i) Bruce Munyama Commission of Inquiry into the Abuse of Human Rights (during the First
Republic);

Weaknesses of Inquiries in Zambia

a) Commissions can only make recommendations. It is up to those in authority to act upon them
b) The experience from the constitution making processes shows that the government often
rejects most of the recommendations.

PARLIAMENTARY CONTROL OF ADMINISTRATIVE POWER

The principle of collective accountability

IT is a principle of our constitutional democracy that cabinet is jointly or collectively and severally
responsible to Parliament for policies pursued by central government and the action taken in pursuit of
those policies. By virtue of Article 63(2) of the Constitution the National Assembly “shall oversee the
performance of executive functions.”

22
Therefore, the natural course open to an aggrieved person is to write/appeal to his/her MP in an
attempt to seek redress.

The most common means of calling ministers to account for their departments’ actions are
parliamentary questions and debates.

a) Parliamentary Questions

A parliamentary question is a question put to a government minister by a private member on matters

relating to public affairs with which the minister is officially connected. Parliamentary Questions (PQs)
provide members from all political parties with an opportunity to interrogate Ministers on
current/topical issues and events that fall within the mandate of their ministry.

PQs are useful for they are one of the few ways in which back benchers can raise their concerns publicly
and expect a public ministerial reply.

There are four categories of questions in the National Assembly:

i. Questions for Oral Answer: the questions are answered only on the floor of the House. Oral
questions on the floor of the House give rise to supplementary questions. A member has the
right to ask a supplementary question upon being called by the Speaker. Supplementary
questions are required to be specific, relevant and within the scope of the subject-matter of
the main question.
ii. Questions for Written Answer: Questions for written answer are not taken in the House for
oral reply but are printed directly in the Daily Parliamentary Debates. An important feature
for about such questions is that a question for which notice has been given matures after
14days of its dispatch to the Ministry to reply. Therefore, a member does not expect a reply
until after the fourteenth day elapses.
iii. Short Notice Questions/Questions of an Urgent Nature: these are questions which may or
may not appear on the Order Paper but, in the Speaker’s opinion, are of an urgent nature
and relate either to a matter of public importance or to the arrangement of business of the
House, which by leave of the Speaker, may be asked without notice on any day.
iv. The Vice President’s Question Time: Standing Order 31(1) states that the Vice President is
allowed up to thirty minutes question time every Friday when parliament is in session.
Questions to the Vice President are asked on the floor of the House without notice and are
concerned with matters of government policy.

There are, however, a number of serious limitations to the effectiveness of such parliamentary action as
a regular means of securing redress:

i. The initiative in pursuing a remedy is taken out of the hands of the complainant, and
whether or not a satisfactory result ensues may depend much on the persistence and
standing of the particular MP whose constituent the complainant happens to be;
ii. Party political considerations may outweigh and take precedence over rational discussion of
the merits of the complaint. This is particularly where the PQ is raised by an opposition MP
or the government regards the issue as part of the continuing attack on government. A
minister is sometimes more likely to redress an issue where a PQ comes from MP belonging
to his/her party.
iii. Ministers do not always turn up on time, or at all, to answer questions, often pleading “state
affairs.”

23
 iv. MPs often have little or no assistance with researching questions and ministerial answers
and thus unable to respond to or challenge effectively Ministers who are reluctant to
provide full or reasoned answers.
v. PQ system only operates only when parliament is in session. There are often significant
periods when it is not sitting.

b) Parliamentary Debates

The focus of parliamentary debate is usually around legislation making and scrutiny of government
action. Article 76(1) of the Constitution guarantees the right of an MP to debate: “A Member of
Parliament has freedom of speech and debate in the National Assembly and that freedom shall not be
ousted or questioned in a court or tribunal.” Parliamentary Standing Orders regulate parliamentary
debates. Standing Orders derive their authority from Article 77 (1) of the Constitution which states:
“Subject to this Article and Article 78, the National Assembly shall regulate its own procedure and make
Standing Orders for the conduct of its business.”

Further, section 3 of the National Assembly (Powers and Privileges) Act Cap 12 of the Laws of Zambia
states:
“There shall be freedom of speech and debate in the Assembly. Such freedom of speech and debate
shall not be liable to be questioned in any court or place outside the Assembly.”

Section 4 of the same Act exempts MPs from civil or criminal proceedings in relation to words spoken or
written in a report to the Assembly or Committee.

However, this does not mean an MP may say what he/she pleases in the House. The House itself
imposes limitations via Standing Orders

A potential significance of parliamentary debate is that it provides an opportunity for highlighting key
issues of public concern.

Its limitation is that it depends largely on MPs’ access to information, their willingness to question the
executive and the Speaker’s independence and ability to allow the debate.

Further, any MP is barred from referring to sub-judice matters (matters before the judiciary) during
parliamentary proceedings.

Auditor General

The office of the Auditor-General (AG) is established through article 249 of the Zambian Constitution.
The AG is directly appointed by the President, on the recommendation of the State Audit Commission,
subject to ratification by the NA.

The functions of the Auditor General are listed under Article 250(1) of the Constitution as:

250. (1) The Auditor-General shall—

(a) audit the accounts of—
(i) State organs, State institutions, provincial administration and local authorities; and

24
 (ii) institutions financed from public funds;
(b) audit the accounts that relate to the stocks, shares and stores of the Government;
(c) conduct financial and value for money audits, including forensic audits and any other type of
audit, in respect of a project that involves the use of public funds;
(d) ascertain that money appropriated by Parliament or raised by the Government and
disbursed—
(i) has been applied for the purpose for which it was appropriated or raised;
(ii) was expended in conformity with the authority that governs it; and
(iii) was expended economically, efficiently and effectively; and
(e) recommend to the Director of Public Prosecutions or a law enforcement agency any matter
within the
competence of the Auditor-General, that may require to be prosecuted.

In performance of his/her duties, the AG has power to call for any relevant information from persons
responsible for the financial administration of an institution being audited as well as to have access to all
books, records, returns, reports and other documents relating to the accounts of anybody being
audited. Apart from special audits, the AG’s routine audit of government accounts is done annually.

Article 212 of the Constitution states that “The Auditor-General shall, not later than nine months
after the end of a financial year, submit an audit report to the President and the National Assembly, on
the accounts of the Republic audited in respect of the preceding financial year.”

Section 31(1) of the Public Audit Act Number 29 of 2016 mandates the Auditor General to submit audit
reports to the Speaker and thereafter public to the public.

The office of the AG has helped expose thefts, misapplications and abuse of public resources. However,
once it has conducted an audit and issued its report, it lacks power to bring about compliance with
public finance rules and regulations. It lacks power to sanction officials who have been found to have
stolen, misused or misapplied public funds. It can only make recommendations to appropriate
institutions and authorities on corrective measures to be undertaken. As a consequence, audit reports
are routinely ignored by the executive.19

Public Accounts Committee (PAC)

Parliamentary committees present another opportunity through which the legislature could hold the
executive accountable over its use of public resources. Committees offer the possibility of developing
specialization and detailed scrutiny. One committee that has a wide mandate over public finances is the
Public Accounts Committee (PAC). PAC consists of nine members appointed by the Speaker of the NA at
the commencement of every parliamentary session. The members choose a chairperson from among
themselves and the quorum of the committee is four.20

19
Alfred Chanda (2003) “National Integrity Systems: TI Country Study Report Zambia, 23
20
www.parliament.gov.zm/node/109 (Date if access: 26 June 2015)

25
PAC examines the accounts of appropriation voted on by the NA to meet public expenditure, as well as
reports of the Auditor- General on the public accounts.21 PAC may also perform other scrutiny functions
as assigned under the constitution and other laws. The Committee, in performance of its functions, has
power to order any person to attend and give evidence or to produce any paper, book, record or
document in the possession or control of such person.22

When the PAC has examined or scrutinized accounts, it usually prepares a report containing its findings
and recommendations and presents to the whole House for adoption. Once the House adopts the PAC
report, it is transmitted to the executive for action to be taken to correct the anomalies noted. The
executive is required to issue a Treasury Minute or Action Taken Report to the NA after six months,
outlining what action it had taken to cure the anomalies noted by the PAC. The executive, however,
routinely ignores the reports of the PAC and rarely reports back to the NA on the action it had taken to
correct the situation.23 Even where the PAC has found some public offices at the fault, it lacks power to
sanction them. It equally lacks the mandate to compel the executive to take any corrective measure to
address any wrong doing it identified.

Parliamentary committees

In order to effectively carry out its mandate, Parliaments in the commonwealth have evolved the
committee system as part of parliamentary procedure. The system enables the legislative bodies to
handle immense and minute tasks in greater detail. In Zambia these are provided for under the Standing
Orders.

There are two types of committees in Zambia: Sessional and Select Committees. Sessional Committees
include House-Keeping Committees and Watchdog Committees.

Watchdog Committees include general purposes Committees and Portfolio Committees.

Watchdog Committees consist of committees whose membership is composed of back benchers and
have the mandate to elect their own chairperson.

Select Committees are ad hoc appointed to look into a specific matter and after concluding their work,
and the adoption of their report by the House, stand dissolved.

Except for Housekeeping and Select Committees, the sittings of all sessional committees of the National
Assembly are open to the public.

a)General Purpose Committees

General Purpose Committees are watchdog and investigatory committees and are so named because
their mandate encompasses all government ministries and departments and all statutory institutions,
corporations and authorities. The committees falling under this category include:

i. Public Accounts Committee;

ii. Estimates Committee;
iii. Committee on Delegated Legislation; and
iv. Committee on Government Assurances

21
Ibid
22
Section 10 National Assembly (Powers and Privileges) Act, Chapter 12 of the Laws of Zambia
23
Alfred Chanda (2003) “National Integrity Systems: TI Country Study Report Zambia”

26
b)House Keeping Committees

House Keeping Committees are only concerned with internal parliamentary matters that deal with the
proper functioning of the House, and, as such these committees are not open to the public. These are:

i. Standing Orders Committee;

ii. Committee on Privileges, Absences and Support Services; and
iii. Reforms and Modernisation Committee.

c)Portfolio Committees

There are 11 Portfolio Committee which are responsible for scrutinising the functions or activities of
various government ministries and departments. These are:

i. Committee on Agriculture and Lands;

ii. Committee on Economic Affairs and Labour;
iii. Committee on Communications, Transport, Works and Supply;
iv. Committee on Health, Community Development and Social Welfare:
v. Committee on Information and Broadcasting Services;
vi. Committee on National Security and Foreign Affairs;
vii. Committee on Education, Science and Technology;
viii. Committee on Local Government, Housing and Chief Affairs;
ix. Committee on Legal Affairs, Governance, Human Rights and Gender Matters; and
x. Committee on Sport, Youth and Child Affairs.

Ratification of executive appointments

• The Constitution entitles the President to make virtually all important appointments to the
public service and to make all the major decisions relating to the welfare of the state. The
exercise of this power in many instances is indicated as subject to the National Assembly
approval or ratification. According to Chanda (2005) the requirement of ratification by the
National Assembly of certain appointment is meant to act as a check on presidential power. It is
designed to ensure that the people appointed by the President have integrity, proven ability and
experience.
• However, the Constitution has inbuilt clauses that in reality negate the significance of the
National Assembly (NA) in this regard. For example, Article 94(1) of the Constitution states that
where an executive function is subject to NA approval, the NA should give its approval within 21
days. If it declines, the President shall refer the matter to the Constitutional Court for
determination (Article 94(2)) and its decision shall be final. The provision effectively means that
the NA’s rejection of an executive decision or action cannot cause a lapse of that action. Instead,
the President has been given a subtle mechanism to always get his way out.
• Similarly, when it comes to ratification of presidential appointments (Article 95) by the NA, the
amended constitution has guaranteed the President almost unchecked power. The Constitution
states that where the NA twice rejects a presidential appointment (or even delays in making a
decision) the president shall make a third appointment, which shall take effect regardless of
whether the NA approves or not (Article 95(4)).

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 • The sum effect of Articles 94 and 95 is that the NA can never effectively check on the executive
as the executive has effectively been given powers to by-pass the NA. The NA is simply required
to rubber stamp executive decisions and actions. Parliamentary disapproval does not lapse
those decisions and actions as the executive can side-step the NA.

JUDICIAL REVIEW OF ADMINISTRATIVE AUTHORITY

Introduction

Article 134(c) of the Constitution vests in the High Court “jurisdiction to review decisions, as prescribed.”
Although the Constitution by this provision seems to vest in the High Court the power of judicial review,
its actualization requires further legislation. This legislation is yet to be passed. Therefore, there is
currently no Zambian statute on Judicial review. We rely on Order 53 of the Supreme Court of England
(The White Book) 1999 Edition. Get a copy.

Judicial review represents the means by which the courts control the exercise of governmental power.

It is concerned with the legality of the decision made, not with the merits of the particular decision. The
role of the court in judicial review is to ensure that public bodies act within their powers or act intra
vires. See the case of Nyampala Safaris (Z) Limited and Others v Zambia Wildlife Authority and Others
(2004) Z.R. 49 (S.C.) where the Supreme Court stated that: “That the remedy of judicial review is
concerned not with the merits of the decision, but the decision making process itself” and that “The
purpose of judicial review is to ensure that the individual is given fair treatment by the authority, to
which he has been subject and that it is not part of that purpose to substitute the opinion of the
Judiciary or of the individual Judges for that of the authority constituted by law to decide the matter
in question.”

It is primarily concerned about jurisdiction and natural justice.

It is through judicial review that the requirements of the legality of the exercise of powers of public
bodies is tested. Judicial review exemplifies the application of the rule of law in a democratic society.

A question may be asked about the legitimacy of judicial review: To what extent is it legitimate for a
non-elected judiciary to intervene to correct the administrative process which is controlled through
powers granted by the democratically elected government? One response to this question is that
judicial review ensures that the constitution’s dictates are obeyed and that violations are corrected.

What is a Public Body?

Judicial review is only available to test the lawfulness of decisions made by public bodies.

In determining whether or not the body whose decision is being challenged on an application for judicial
review is a public as opposed to a private body, the court will look at its functions.

The test is not whether or not the authority is a government body as such but rather whether it is a
body exercising powers analogous to those of government bodies.

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In the case of Ludwig Sondashi v Miyanda (Sued as National Secretary of the Movement for Multi-
Party Democracy) (1995) S.J. 1 (S.C.), the applicant brought an action for judicial review arguing that he
had been wrongly expelled from the ruling party (MMD). It was held that a party is a private an
incorporated entity not subject to judicial review. The court stated: “the question to be considered
therefore, is always whether the tribunal against which an order is sought is a tribunal dealing with
public law. In this case we have no hesitation in agreeing with the learned trial judge that a political
party so far as its domestic concerns are concerned is a private association and its tribunals deal with
private law not public law. We say this despite the fact that the result in this case would be that the
appellant would lose his seat in Parliament, which of course is a public matter, but that fact in itself
does not affect the functional status of the tribunal about which the court is being asked to concern
itself, that is, as a private tribunal.”

This should now be read in the context of article 60 of the constitution which regulates political parties.

In R v City Panel on Takeovers and Mergers ex parte Datafin Ltd (1987), it was stated that the Panel
was subject to judicial review, despite its lack of statutory source of power, because it was a body
exercising public functions analogous to those which could be, or could have been in the absence of the
Panel, exercised by a government department.

Lord Lloyd in that case further stated: “if a body in question is exercising public law functions, or if the
exercise of its functions have public law consequences, then that may be sufficient to bring the body
within the reach of judicial review.”

This should be contrasted, however, with the case of R v Disciplinary Committee of the Jockey Club, ex
parte Aga Khan (1993). In this case Aga Khan sought judicial review of the Jockey Club’s decision to
disqualify his winning horse from a race for failing a dope test. The court ruled that it had no jurisdiction.
This was because the relationship between the racehorse owners and the Club, and the powers of the
Club, derived from agreement between the parties and was a matter of private law rather than public
law.

Difference Between Judicial Review and an Appeal

Judicial review must be distinguished from an appeal against a decision.

In an appeal the appellate court will have the power to reconsider the case and to substitute its own
decision for that of the lower court.

An appeal may be made on both the law and facts of the case, (so that a full rehearing may take place).

Judicial review, by contrast, is concerned solely with the manner in which the decision maker has
applied the relevant rules: it is thus procedural in nature.

It is not for the court, in judicial review, to substitute its judgment for that of the decision-making body
to which powers have been delegated but, rather, to ensure that the adjudicator has kept within the
rules laid down by statute and the common law.

In the case of appeals, where the appeal is successful, it will usually result in a new decision being
substituted for the previous decision.

In the case of judicial review, a successful case will usually result in the previous decision being nullified
or quashed but no new decision will be put in its place. Instead, the concerned public body will be

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directed to determine the case according to the correct rules and procedure, and it is not inevitable that
a more favourable decision would be made in relation to the successful party.

Standing to Apply for Judicial Review

Order 53 rule 14(11) indicates who has standing to apply for judicial review. It states that “sufficient
interest” is the overriding rule governing the standing of an applicant to apply for judicial review. The
court must consider that the applicant “has a sufficient interest in the matter to which the application
relates.”

If the applicant has a direct personal interest in the relief which he is seeking, he will very likely be
considered as having a sufficient interest in the matter to which the application relates. If, however, his
interest in the matter is not direct or personal, but is a general or public interest, it will be for the court
to determine whether he has the requisite standing to apply for judicial relief.

The term “interest” should perhaps not be given a narrow construction, but should be regarded as
including any connection, association or interrelation between the applicant and the matter to which
the application relates.

The test of sufficient interest: in the case of R v Inland Revenue Commissioners ex parte National
Federation of Self-Employed and Small Businesses (1982), the HL set a two state test for standing. At first
instance, standing should be considered when leave to apply is sought. At that stage, the court is
concerned to ensure that “it prevents abuse by busybodies, cranks and other mischief makers”(Lord
Scarman). At the second stage, if leave is granted at first stage, when the merits of the case are known,
the court may revise its original decision and decide that after all the applicants do not have sufficient
interest. The Zambian SC approved this test in the case of Derrick Chitala (Secretary General of Zambia
Democratic Congress) v Attorney General 1995 and added: “Leave should be granted, if on the material
then available the court thinks, without going into the matter in depth, that there is an arguable case for
granting the relief claimed by the applicant …. the test to be applied in deciding whether to grant leave
to move for judicial review is whether the judge is satisfied that there is a case fit for further
investigation at a full interpartes hearing of a substantive application for judicial review. If, on
considering the papers, the Judge cannot tell whether there is or not, an arguable case, he should invite
the putative respondent to attend the hearing of the leave application and make representations on the
question whether leave should be granted (ibid.).”

Leave of Court

Judicial Review Cannot be commenced as a matter of right. An applicant for judicial review needs leave
of court. Order 53, rule 3(1) states: “No application for judicial review shall be made unless the leave of
the Court has been obtained in accordance with this rule.” See the case of The People v The Patents and
Companies Registration Agency Ex Parte Finsbury Investment Limited and Portland Cement Limited
Selected Judgment No 28 of 2018, indicating what purpose this leave serves.
In the case of Derrick Chitala v Attorney General (1995-1997) ZR, the court stated the purpose of
obtaining leave as follows: “The purpose of the requirement of leave is: (a) to eliminate at an early
stage any applications which are either frivolous, vexatious or hopeless and (b) to ensure that an

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applicant is only allowed to proceed to a substantive hearing if the court is satisfied that there is a case
fit for further consideration.”

Grounds for Judicial Review

In Council of Civil Service Unions v Minister of State for Civil Service (1985), the House of Lords took the
opportunity to offer a rationalization of the grounds for judicial review. It indicated that the grounds can
be subsumed under three principal heads, namely, illegality, irrationality and procedural impropriety. It
further indicated that further grounds for judicial review, such as “proportionality” might emerge.

Lord Diplock elucidated the concepts:

“By illegality as a ground of judicial review, I mean that the decision maker must understand correctly
the law that regulates his decision making power and give effect to it. Whether he had or not is par
excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by
whom the judicial power of the state is exercisable.

By irrationality, I mean what can now be succinctly referred to as Wednesbury unreasonableness

[Associated Provincial Pictures Limited v Wednesbury Corporation (1984)]. It applies to a decision which
is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had
applied his mind to the question to be decided could have arrived at it.[Nyampala Safaris (Z) limited and
Others v Zambia Wildlife Authority adopted this approach and stated: “The decision is unreasonable in
the Wednesbury sense if it is a decision which no person or body of persons properly directing itself on
the relevant law and acting reasonably, could reasonably have reached.”

I have described the third head as “procedural impropriety” rather than failure to observe basic rules of
natural justice or failure to act with procedural fairness towards the person who will be affected by the
decision. This is because susceptibility to judicial review under this head covers also failure by an
administrative tribunal to observe the procedural rules that are expressly laid down in the legislative
instrument by which its jurisdiction is conferred, even though such failure does not involve any denial of
natural justice.

That is to say that further development on a case by case may not in course of time add further grounds.
I have in mind particularly the possible adoption in the future of the principle of “proportionality” which
is recognized in the administrative law of several of our fellow members of the European Community….”

The case of Attorney General v Roy Clarke (2008) was determined on the basis of proportionality. The
Court stated in relevant parts:

“What we ourselves find irritating and offending are the reference to the concerned persons physical
appearances in crude language. While some other action could have been taken against the Respondent
for the descriptions, and the crude language he used, we find the deportation on these facts to be
disproportionate, was too extreme an action.”

“At the expense of being repetitive, we have found that, on the facts of this case and the authorities we
have cited, the deportation of the Respondent was disproportionate and it is for this reason that we
dismissed the appeal.”

Illegality

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Illegality most accurately expresses the purpose of judicial review, that is, to ensure that decision
makers act according to the law. Examples of illegality include:

• Errors of law and fact;

• Onerous conditions;
• Using powers for wrong purposes;
• Relevant and irrelevant considerations;
• Acting in bad faith;
• Fettering discretion;
• Unauthorised delegation;
• Failure to act.

Procedural Impropriety

Could be as a result of failure to comply with procedures laid down by statute or breach of natural
justice.

Statute: Failure to comply with procedures laid down by statute may invalidate a decision. The courts
distinguish between those procedural requirements which are mandatory, the breach of which will
render a decision void, and those which are directory, which may not invalidate the decision taken.

Natural justice: rules of natural justice are common law rules.

The essence of justice lies in a fair hearing. The rule against bias is strict: it is not necessary to show that
actual bias existed, the merest appearance or possibility of bias will suffice.

Financial bias: A financial interest in the outcome of a case will automatically disqualify a judge from
hearing a case. In Dimes v Grand Junction Canal Limited (1852), Lord Cottenham held shares in the canal
company involved in litigation. The House of Lords set aside the decision in which he had adjudicated
despite the fact that: “no one can suppose that Lord Cottenham could be in the remotest degree
influenced by the interest… It is of the last importance that the maxim that no man is to be judge in his
own cause should be held sacred.”

The mere appearance of a financial interest, even where it does not, in fact, result in actual bias but may
present the appearance of bias will be sufficient to disqualify a judge from adjudication.

See the R v Sussex Exparte McCarthy (1924).

In the case of Metropolitan Properties Co v Lannon (1969), Lord Denning stated:

…the court looks at the impression which could be given to other people. Even if he was as
impartial as could be, nevertheless, if right minded persons would think that, in the
circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he
does sit, his decision cannot stand…

The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed
when right minded people go away thinking: ‘The judge was biased.’

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However, a financial interest which does not go beyond the financial interest of any citizen does not
disqualify judges from sitting. For example, in Bromley London Borough Council v Greater London
Council (1983), the fact that all judges in the Court of Appeal were themselves both taxpayers and
users of public transport did not disqualify them from hearing the case.

The right to fair hearing: audi alteram partem

It is a fundamental requirement of justice that, when a person’s interests are affected by a judicial or
administrative decision, he or she has the opportunity both to know and to understand any allegations
made, and to make representations to the decision maker to meet the allegations.

A fair hearing may involve one or more of the following:

• The right to be given notification of a hearing;

• The right to be given indications of adverse evidence;
• The right to be given an opportunity to respond to the evidence;
• The right to an oral hearing;
• The right to question witnesses.

The basic requirement is that, irrespective of the decision-making body, whether judicial, quasi-judicial,
or administrative, the individual should be treated fairly in the decision making process.

In Christopher Lubasi Mundia v Attorney General (1986) ZR 37, a Commission of Inquiry was set
appointed to investigate wildcat strikes allegedly protesting the applicant’s tribalism and nepotism as
secretar7 of the board of the National Provident Fund. The Inquiry declined to let him appear
represented and to cross examine witnesses. It was held that under the Inquiries Act, a person whose
conduct is the subject of the inquiry has a mandatory right to representation while one who is in any
way implicated or concerned may be permitted to have legal representation. Representation means the
right of appearance of legal practitioners and other persons.

In the case of Lusaka City Council v Mumba (1976): “An administrator exercising quasi-judicial functions
cannot in any circumstances take part or appear to take part in hearing an appeal against his own
decision.”

And in the same case the court stated: “There has clearly been denial of natural justice in that the
respondent was called upon to answer unspecified charges, that being the case the appellant failed in its
duty to give the respondent a fair hearing, culminating in the principle of audi alteram partem being
seriously breached.”

In the case of Sachipango v the Road Traffic Commissioner (1977) ZR 48: “Failure to give an opportunity
to make representations as to revocation renders such revocation null and void.” (related to revocation
of driver’s licence).

The duty to give a hearing will be higher if a “legitimate expectation” has been created in the mind of
the complainant by the public body concerned.

A legitimate expectation will arise in the mind of the complainant wherever he or she has been led to
understand, by words or by actions of the decision maker, that certain procedures will be followed in
reaching a decision.

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Tw o considerations apply to legitimate expectations. The first is where an individual or group has been
led to believe that a certain procedure will apply. The second is where an individual or group relies upon
a policy or guidelines which have previously governed an area of executive action.

In R(Bibi) v Newham LBC (2001) a local authority which made promises which gave rise to legitimate
expectations that the applicants would be provided with accommodation with security of tenure had to
be honoured to the extent that the expectation was taken into account when allocating the applicant’s
position on the housing list. The applicants were refugees and accepted by the authority as homeless.
The authority wrongly thought that it was under a duty to provide accommodation with security of
tenure. However, the promise that such accommodation would be provided founded a legitimate
expectation which had to be considered.

REMEDIES

THE granting of a remedy in judicial review proceedings is at the discretion of the court. Even where the
applicant establishes his or her case, the court may refuse a remedy if there has been a delay in
commencing proceedings, or if the applicant has acted unreasonably, or where the public interest in
efficient administration could be damaged by the granting of a remedy.

The available remedies under public law are the “prerogative remedies:” Certiorari or quashing order,
prohibition or prohibiting order and mandamus or mandatory orders.

In addition, under private law there are the remedies of declaration, damages and injunction, which may
also be granted under judicial review proceedings.

Certiorari

Overlaps with that of prohibition. A certiorari order is one which quashes or sets aside as a nullity the
original decision.

So, it is both negative and retrospective in nature.

In the case of Council of Legal Education v Sokon (1986) ZR 41 it was held that Certiorari can be
awarded where, inter alia

- It is shown that there was a lack of jurisdiction;

- there is an error of law on the face of the record;

- there is a breach of any applicable rules of natural justice or there has been some fraud or
collusion and not on a complaint against the severity of a sentence or sanction.

In the case of R v Electricity Comrs exparte London Electricity Joint Committee Co (1920) Ltd (1924)
1KB 171, Atkin LJ summarized the history of certiorari and distinguished it from an order of prohibition
as follows:

The matter comes before us [the Court of Appeal] upon rules for writs of prohibition and
certiorari which have been discharged by the Divisional Court. Both writs are of great antiquity,
forming part of the process by which the King’s Court restrained courts of inferior jurisdiction
from exceeding their powers. Prohibition restrains the tribunal from proceeding further in

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 excess of jurisdiction; certiorari requires the record or the order of the court to be sent up to the
King’s Bench Division, to have its legality inquired into, and, if necessary, to have the order
quashed. It is to be noted that both writs deal with the questions of excessive jurisdiction; and
doubtless in their origin dealt with almost exclusively with the jurisdiction of what is described in
ordinary parlance as a court of justice. But the operation of the writs has extended to control
the proceedings of bodies which do not claim to be, and would not be recognized as, courts of
justice. Whenever any body of persons having legal authority to determine questions affecting
the rights of subjects, and having the duty t act judicially, act in excess of their legal authority
they are subject to the controlling jurisdiction of the King’s bench Division exercised in these
writs.

Certiorari, as a discretionary order, is not given as a matter of right. it is usually not given in the
following circumstances:

a) Not given to a plaintiff whose conduct does not merit it. Eg, in Exparte Fry (1954) 2 All ER 118, it
was refused to a fireman who had disobeyed what he believed to be an unlawful order and
been cautioned for breach of discipline. The CA refused certiorari to quash the caution. Even if
the order was unlawful the more proper course of conduct, within a disciplined service, was first
to obey, and then make a complaint through proper internal channels.
b) The applicant has not exhausted other remedies reasonably available, such as a statutory right
of appeal or the making of representations to a minister. See Zandamela case.

Prohibition Order

Prohibition is an order that prevents a body from making a decision which would be capable of being
quashed by certiorari.

It is thus protective in nature.

Mandamus

The order compels an authority to act. It does not lie against an authority which has complete discretion
to act. A failure to comply with the order amounts to contempt of court.

Mandatory orders do lie against the Government, and may be used to enforce action by a minister or
official.

An important aspect of the scope of mandamus is its issue to compel the proper exercise of
discretionary power. In cases where there has been failure to consider the exercise of a discretionary
power, the order will lie to compel proper consideration of the matter, and in cases where the
discretionary power has been abused, mandamus will lie to ordr the exercise of the power properly,
according to law.

Thus, in Padfield v Minister of Agriculture and Food (1968) AC997, mandamus issued to compel the
Minister to consider the complaint of the appellants according to the law.

Declarations

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A declaration is a statement of the legal position of the parties, and is not accordingly a remedy per ser.
Although lacking coercive force, public bodies will respond to a declaration and comply with its terms by
rectifying its actions. Declarations are available against the government.

Injunctions

An injunction is a standard remedy of private law for forbidding the commission of some unlawful act,
eg, a tort or breach of contract.

Although primarily a remedy against tort or other actionable wrongs, the injunction is also used as a
remedy in public law against unauthorized action by governmental and public bodies, although the
action in question would not be a tort or breach of contract.

Its sanction is imprisonment or some fine for contempt of court, or attachment of property.

Injunctions may be interim or permanent, and positive or negative. Injunctions may be used to prevent a
minister or administrative body from acting unlawfully.

There is a tendency by courts to refuse the remedy where the plaintiff has some other equally good
remedy, or where he has been guilty of delay or in some other way he has forfeited the court’s
sympathy.

Interim injunction

Where there is imminent danger of irreparable injury and damages would not be an adequate remedy,
the court may grant an interim injunction so as to preserve the position of the parties pending trial.

The court must assess the strength of the case and the balance of convenience, and its discretion is very
wide.

(When an interim injuction is granted before trial, the party protected must normally give an
undertaking in damages so that, if he loses at the trial, the party restrained is compensated for any loss
suffered meanwhile.

In Mungomba and Others v Machungwa and Others SCZ No. 3 of 2003, it was held that an interlocutory
injunction can be obtained in judicial review proceedings pending the determination of the substantive
judicial review application. The matter or circumstance to be considered are more than the balance of
convenience as between the parties concerned a very important consideration will be public interest
concerned.

Authorities on Circumstances When Damages Would not be Adequate When Seeking an Injunction

One of the oldest authorities when damages would not be an adequate remedy and when an injunction
would be an appropriate remedy in a dispute is the English case of Meux’s Brewery Co v City of London
Electric Lighting Co (1891-94) All ER 833. In this case a party who had a reversionary interest in a
property occupied by the defendant sought an injunction to restrain the defendant from damaging the
property which would result to him in freehold. Lord Halsbury indicated that in order for an injunction to
issue, the plaintiff needed to establish the right claimed or alleged to be violated (where this is
disputed). Once this is established, he should be entitled to an injunction as a matter of right. Citing Lord
Kingsdown with approval, Lord Halsbury stated the law to be as follows:

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 The rule I take to be clearly this: If a plaintiff applies for an injunction to restrain a violation of
a common law right, if either the existence of the right or the fact of its violation be disputed,
he must establish that right at law; but when he has established his right at law, I apprehend
that, unless there be something special in the case, he is entitled as of course to an injunction
to prevent the recurrence of that violation.

The English law on the matter has been stated more authoritatively in the leading case of American
Cyanamid Co V Ethicon Ltd (1975) 1All ER 504. In this case the court indicated the historical basis for
granting an interim injunction in proceedings, that is, it was in order to mitigate the risk of injustice to
the plaintiff during the period before the dispute or uncertainty could be resolved that the practice
arose of granting the plaintiff relief by way of interlocutory injunction. The Court stated the object of
granting an interlocutory injunction as follows:

“The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his
right for which he could not be adequately compensated in damages recoverable in the action if the
uncertainty were resolved in his favour at the trial.”

The court further stated that the power to grant an injunction is discretionary and must be weighed
against the corresponding need of the defendant to be protected against injury resulting from his having
been prevented from exercising his own legal right for which he could not be adequately compensated
under the plaintiff’s undertaking in damages if the uncertainty were resolved in the defendant’s favour
at the trial. The court, therefore, has the duty to weigh the need of the plaintiff against that of the
defendant and determine where the balance of convenience lies.

It was the court’s view that before granting the interlocutory injunction, it must be satisfied that the
claim is not frivolous or vexatious, that is, that there is a serious question to be tried. The court further
stated how to proceed in evaluating the balance of convenience:

So, unless the material available to the court at the hearing of the application for an
interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding
in his claim for a permanent injunction at trial, the court should go on to consider whether the
balance of convenience lies in favour of granting or refusing the interlocutory relief that is
sought.

The English authorities have to a large extent been followed consistently by the Zambian courts. In
Mobil Zambia Ltd v Msiska (1983) ZR 86, the court stated the law as follows in determining when an
injunction is appropriate: “In considering whether or not an injunction should be granted a most
important consideration is whether or not damages are an adequate remedy.”

The case of Shell and BP Zambia Ltd v Conidaris and others (1975) ZR 228 defined what kind of injury
would not be compensated for by damages and warrant the granting of an injunction: “Irreparable
injury means injury which is substantial and can never be adequately remedied or atoned for by
damages, not injury which can possibly be repaired.”

In the case of Airtel Holdings and others v Patents and Companies Registration Agency and others
(2012) 3ZR 494 the court stated that an interim injunction cannot be granted lightly. In order to be
granted, the plaintiff must demonstrate a pressing injury. It went on to state:

Needless to mention that the object of an interim injunction is to protect a claimant against
injury by violation of his right for which he could not be adequately compensated in damages.

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 Therefore, if an applicant can be fully compensated by an award of damages, no interim
injunction should be granted at all. In sum, the most important consideration is whether or
not damages are an adequate remedy.

In the instant case, which was a common law action in “passing off” or preventing the defendants from
registering a name similar to theirs, the court opined that any consequential injury could be atoned for
in damages and therefore declined to issue an injunction.

This jurisprudence was also applied in the case of Royal Oak (Pvt) Ltd v Lusaka City Council and Another
(2012) 3ZR 607, which went further to summarize the law in the area by stating three applicable
principles as follows:

The first principle is that if the claimant would be adequately compensated by an award of
damages, if he succeeds at the trial, and the defendant would be able to pay for them, no
injunction should be granted however strong the claimant’s case. The second principle is that
if the claim survives the previous head, the court must consider whether if an interim
injunction is granted, but the defendant succeeds at the trial, the defendant would be
adequately compensated in damages, which then would have to be paid by the claimant… The
third principle stipulates that if there is doubt as to adequacy of the respective remedies in
damages available to either party or to both, the court must consider the wide range of
matters which go to make up the general balance of convenience….

Where the three principles are not met then the court will not grant an injunction.

Halsbury Laws of England (21, 3rd Edition, pp364-366) provides a useful summary of the law in this area.
In paragraph 763, it states that in case of interlocutory injunctions in aid of the plaintiff’s right, all the
court usually has to consider is whether the case is so clear and free from objection on equitable
grounds that it ought to interfere to preserve properly without waiting for the right to be finally
established. However, it is not necessary that the court should find a case which would entitle the
plaintiff to relief at all events: it is quite sufficient if the court finds a case which shows that there is a
substantial question to be investigated, and that matters ought to be preserved in status quo until that
question can be finally disposed of.

Paragraph 765 states that the plaintiff must show that an injunction until the hearing is necessary to
protect him against irreparable injury; mere inconvenience is not enough. In a matter merely pecuniary,
the plaintiff must establish, not merely that there is a case to be tried, but that there is some probability
of his succeeding at trial.

Paragraph 766 summarizes the law relating to evaluating the balance of convenience in determining
whether or not to issue an injunction. It states:

Where any doubt exists as to the plaintiff’s right, or if his right is not disputed, but its violation
is denied, the court in determining whether an interlocutory injunction should be granted,
takes into consideration the balance of convenience to the parties and the nature of the injury
which the defendant, on the one hand, would suffer if the injunction was granted and he
should ultimately turn out to be right, and that which the plaintiff, on the other hand, might
sustain if the injunction was refused and he should ultimately turn out to be right. The burden
of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is
greater than that which the defendant will suffer, if it is granted, lies on the plaintiff.

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In Turnkey Properties v Lusaka West Development Co. Ltd & others v ZSIC Ltd
An interlocutory injunction is appropriate for the preservation or restoration of a particular situation
pending trial but it cannot be regarded as a device by which the applicant can attain or create new
conditions favourable only to himself, which tip the balance of the contending interests in such a way
that he is able or more likely to influence the outcome by bringing about an alteration to the prevailing
situation which may weaken the opponent’s case and strengthen his own.

Damages

An applicant for judicial review may be awarded damages in conjunction with one of the other
remedies. Damages will only be awarded if they would have been recoverable had the applicant begun
an action by writ (private law function).

LIABILITY OF PUBLIC AUTHORITIES

Liability for Human Rights Violations

See Constitutional law note on Bill of rights. Carefully look at article 28.

Liability in Tort

Public authorities, including ministers, enjoy no dispensation from the ordinary law of tort and contract,
except in so far as statute gives it to them.

Unless acting within their powers, they are liable like any other person for trespass, nuisance, negligence
and so forth.

Similarly, they are subject to the law of master and servant, by which the employer is liable for torts
committed by the employee in the course of his employment, the employee also being personally liable.

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The claimant, if injured by an employee in the course of his employment, may sue the master or the
servant or both, since both are liable, but in most cases, he will naturally choose to sue the master.

Breach of a statutory duty

Where a statute imposes a duty, it is sometime to be inferred that any person injured as the result of
breach of the duty shall have a remedy in damages, even in the absence of carelessness.

Not every breach of a statutory duty entails a private law liability for damages. In the care of X(minors) v
Bedfordshire Cc [1995] 2AC633, Lord Brownie-Wilkinson explained the position as follows:

The basic proposition is that in the ordinary case a breach of statutory duty does not, by itself,
give rise to any private law cause of action. However, a private law cause of action will arise if it
can be shown, as a matter of construction of the statute, that the statutory duty was imposed
for the protection of a limited class of the public and that parliament intended to confer on
members of that class a private right of action for breach of the duty. There is no general rule by
reference to which it can be decided whether a statute does create such a right of action but
there are a number of indicators. If the statute provides no other remedy for its breach and the
parliamentary intention to protect a limited class is shown, that indicates that there may be a
private right of action since otherwise there is no method of securing the protection the statute
was intended to confer. If the statute does provide some other means of enforcing the duty that
will normally indicate that the statutory right was intended to be enforceable by those means
and not by private right of action…. However, the mere existence of some other statutory
remedy is not necessarily decisive. It is still possible to show that on the true construction of the
specific duties imposed on employers in relation to factory premises are enforceable penalties
for any breach.

The court is usually sympathetic to an action for damages if the statute has no scheme of its own for
penalties and enforcement. And where the statute provides penalties, there is prima facie no private
law remedy.

The House of Lords in X(minor) stated:

The House has set itself firmly against damages as a remedy for breach of statutory duty in
public law. In future, where parliament fails to specify a particular remedy for breach of a public
duty the presumption will be that judicial review is the normal and exclusive means of
enforcement. It is difficult now to see any scope for extending the application of the tort of
breach of statutory duty in the public field.

In this case, Lord Brownie-Wilkinson held that failure by local authorities in their statutory duties of
identifying children in need or at risk of abuse or with special educational needs did not give rise to any
claim for damages in private law. Legislation setting up a regulatory system or a scheme of social welfare
was to be treated as intended for the benefit of society in general rather than for the benefit of
individuals, except where the statutory duty was very limited and specific. But a claim could succeed if it
were based on a free-standing common-law cause of action, whether in trespass, nuisance or breach of
a common law duty of care.

It can be said that administrative action which is not actionable merely as a breach of duty will found an
action for damages in any of the following situations:

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 1. If it involves the commission of a recognized tort such as trespass, false imprisonment or
negligence;
2. If it is actuated by malice, e.g., personal spite or a desire to injure for improper reasons;
3. If the authority knows that it does not possess the power to take action in question or is
recklessly indifferent to its existence;
4. If human rights have been infringed entitling the victim to just satisfaction.

However, all this should be read in the context of section 4 of the State Proceedings Act Cap 71 which
states:

4. (1) Subject to the provisions of this Act, the State shall be subject to all those liabilities in tort to
which, if it were a private person of full age and capacity, it would be subject- Liability of State
in tort
(a) in respect of torts committed by its servants or agents;
(b) in respect of any breach of those duties which a person owes to his servants or agents at
common law by reason of being their employers; and
(c) in respect of any breach of the duties attaching at common law to the ownership,
occupation, possession or control of property:

Provided that no proceedings shall lie against the State by virtue of paragraph (a) in respect of any
act or omission of a servant or agent of the State unless the act or omission would apart from the
provisions of this Act have given rise to a cause of action in tort against that servant or agent or his
estate.

(2) Where the State is bound by a statutory duty which is binding also upon persons other than the
State and its officers, then, subject to the provisions of this Act, the State shall, in respect of a failure
to comply with that duty, be subject to all those liabilities in tort (if any) to which it would be so
subject if it were a private person of full age and capacity.

(3) Where any functions are conferred or imposed upon a public officer as such either by any rule of
the common law or by any written law, and that officer commits a tort while performing or
purporting to perform those functions, the liabilities of the State in respect of the tort shall be such
as they would have been if those functions had been conferred or imposed solely by virtue of
instructions lawfully given by the State.

Liability in Contract

Government officials enjoy no special legal regime governing contracts made by public authorities.
Officials are subject to the ordinary law of contract which applies to them in the same way as to private
individuals and corporations.

Contractual obligations are not enforceable by judicial review, unless the question is whether the
contracting authority has exceeded its power.

Section 3 of the State Proceedings Act Cap 71 states:

3. Subject to the provisions of this Act, the State shall be subject to those liabilities in contract
to which, if it were a private person of full age and capacity, it would be subject and any claim

41
 arising therefrom may be enforced as of right against the State in accordance with the
provisions of this Act.

Further, section 4A places restrictions on courts ordering damages or compensation in respect of harm
or injury suffered as a result of a restriction or detention order signed by the President.

4A. Notwithstanding the provisions of this Act, no court of law shall make an order for
damages or compensation against the State in respect of anything done under or in the
execution of any restriction or detention order signed by the President.

In actions against the government, section 13 requires process to be served on the Attorney General.

13. All documents required to be served on the State for the purpose of or in connection with
any civil proceedings by or against the State shall be served on the officer of the Attorney-
General's Chambers having the conduct of such proceedings, or, if a legal practitioner in private
practice is acting for the State in such proceedings, on such legal practitioner.

Can the court order specific performance against the state or issue an injunction? Read section 16 of the
State Proceedings Act.
16. (1) In any civil proceedings by or against the State the court shall, subject to the provisions of
this Act, have power to make all such orders as it has power to make in proceedings between
subjects, and otherwise to give such appropriate relief as the case may require: Nature of relief

Provided that-
(i) where in any proceedings against the State any such relief is sought as might in
proceedings between subjects be granted by way of injunction or specific
performance, the court shall not grant an injunction or make an order for specific
performance, but may in lieu thereof make an order declaratory of the rights of the
parties; and
(ii) in any proceedings against the State for the recovery of land or other property, the
court shall not make an order for the recovery of the land or the delivery of the
property, but may in lieu thereof make an order declaring that the plaintiff is
entitled as against the State to the land or property or to the possession thereof.
(2) The court shall not in any civil proceedings grant any injunction or make any order against a
public officer if the effect of granting the injunction or making the order would be to give any
relief against the State which could not have been obtained in proceedings against the State.

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