Beruflich Dokumente
Kultur Dokumente
Statutes:
i.
ii.
iii.
Constitution of Zambia
Public Order Act CAP 104 LOZ
Electoral Act
Classification of Constitutions
Consequently, constitutions of countries have been classified into any one or a combination
of the following classes:
(i.)
(ii.)
(iii.)
(iv.)
(v.)
(vi.)
(vii.)
By sources of constitutional law, is meant the elements from where constitutional law
derives. This branch of law in Zambia is derived from various sources namely
1.) The Constitution of Zambia Act
2.) Legislation (law made by parliament) Not all acts of Parliament are sources of
constitutional law in Zambia. But rather it is legislation that has a bearing on the
governance of the nation. For example the Electoral Act, Public Order Act, Citizenship
Act, the NCC Act, the Parliamentary and Privileges Act etc
3.) Judicial Precedent law made by Courts of law (although primarily charged with
interpretation of law, courts do sometimes create law) and is also known as Case Law. It
is those cases that have a bearing on the governance of the nation which can be
considered judicial precedent dealing with constitution. Especially those decisions
interpreting the constitution and other pieces of legislation that have a bearing on the
governance of the nation. E.g. Christine Mulundika & Others v. the People (1995) ZLR
(Constitution and Public Order Act were subject-matters of
Nkumbula v. the Attorney-General (1972) ZR-subject-matter was the one-party state)
4.) Conventions (social practices)- constitutional conventions; these are conventions that
are adhered to by members of constitutional offices (such as the President, Ministers
etc) Musumba Dancing Photos, Letter Response to Hichilema and a Judge running a
brothel is a violation of constitutional conventions
These are rules of constitutional behavior considered to be binding upon those people
who are involved in the implementation of the constitution or those people who occupy
constitutional offices. In other words, constitutional conventions are those conventions
which prescribe the rules of constitutional behavior and which are supposed to be
observed by government officials, legislators and judicial officers. These rules are usually
unwritten and serve a wide variety of constitutional purposes and vary from country to
country. These rules develop under every system of government. There are also called the
Ethics of Governance.
5.) Opinions of Eminent Scholars (Authors) (articles, journals, textbook, book on the
subject-matter of constitutional law) where there exists no precedent to deal with the
matter at the heart of a case, the Judges may turn to the opinion of Eminent Scholars.
Dosso v. The State (1947) Hans Kellsen on the effect of Coups on the law. Salla v the
Attorney-General of Ghana (1967), once again the court was asked to consider the effects
of a Coup on the laws and did so on the opinions of scholars.
English law holds that no legal textbook has intrinsic authority of the law. The authority
of most eminent authors of textbooks is confined to the extent to which the court considers
Thomas Mumba v the People (1984) ZLR this case is an authority for the proposition
that the constitution of Zambia is the supreme law of the land.
1. Referendum
2. Parliament
3. Constituent Assembly
4. Constitutional Conference
9. Second reading-at this reading, the bill is debated and those in favor of the bill will
submit their reasons and those against will submit. Then there is a vote- 2/3rds
majority (as opposed to Ordinary Majority) (Mungomba Bill failed at the vote)
10. Committee stage- a small group of MPs are there to edit/perfect the Bill in terms of
wording used, punctuations and other matters. From this stage it goes back to the
House
11. Third reading-Bill is again debated; vote again with special majority-2/3rd majority
12. Then it goes to the President for assent at which point it becomes law
One method of bringing about the legitimacy is by subjecting the constitution-making process
to Popularization.
The Manner of Adoption of the constitution also has a bearing upon legitimacy- when it is
adopted by a small group of people it is unlikely to have legitimacy. By contrast, when it is
carried out by a large group of people it is likely to have legitimacy
Constitutionalism
It is a concept connoting limitation on governmental powers. Anything that restrains or limits
excessive governmental powers (Executive, Legislative and Judiciary) will be
constitutionalism. It is concerned with how to limit governmental powers of a state.
At one time in human history, governmental powers were concentrated in either one man
(dictator) or group of people (totalitarian system). The one man or group of people would
exercise all the governmental powers of making the law (legislative), governing the state
(executive) and deciding disputes arising in the nation (adjudicative).
The exercise of all governmental powers by one man or group of people inevitably led to
abuse/arbitrary/wanton (not following the law) exercise of power. The abuse of governmental
power brought about injustice and discontent to the governed. When this discontent became
apparent, scholars began looking for ways by which they could check governmental powers.
Hence, scholars began preoccupying themselves with the methods by which governmental
powers could be limited. Scholars like Aristotle, John Locke, Montesquieu and others became
proponents of constitutionalism. They devised various ways or means by which governmental
powers could be reduced. These are the means:
i.
The doctrine of separation of powers is concerned with the dividing of governmental powers
among three organs or agencies. These have long been identified as the executive, the
legislature and the judiciary.
This doctrine is said to have been initially propounded by a British philosopher known as
John Locke. He had the belief that it may be too great a temptation to human frailty, apt to
grasp power, for the same person making laws to have also in their hands the power to
execute the laws, the power to make the law and suit the law, both in its making and
execution, to their own private advantage. (Read John Locke)
The doctrine was developed further by another scholar known as Montesquieu, a French
political scientist who was concerned with the political liberty of the people. Montesquieu
believed that political liberty is to be found where there is no abuse of power. He observed
that experience shows that every man vested with power is likely to abuse it and carry his
authority as it could go. To prevent this abuse, it was necessary from the nature of things that
one power should be a check on another power. If the legislative and executive powers were
united in the same body of persons, there can be no liberty. Again there is no liberty if the
judicial power is not separated from the executive and legislative powers.
(Read MORE on this topic)
The extent to which the separation of power doctrine is implemented differs from country to
country and from constitution to constitution. Under the Zambian constitution, article 33
vests the executive functions of the republic in the President. The president delegates this
power (Ministers, A-G, S-G, DPP, Civil Servants) And he shall exercise these functions either
directly or indirectly through officers subordinate to him.
Article 62 (INVESTIGATE) of the constitution vests legislative functions of the republic in
parliament which consists of the President and the members of the National Assembly.
Article 63 (1) Constitution of the National Assembly 159
Article 91 vests the Judicial functions in the Court of Law
The Chief Justice is the head of the Judiciary
ii.
This is a principle whereby the powers of one organ are balanced against those of another
through a system of positive, mutual checks exercised by the government organs upon one
another.
Impeachment is a means of checks and balance
Judicial review is another means. Courts of Law have no capacity to initiate judicial review.
Any person affected by govermemt acts or ommisions which are not sanctioned by law can
bring proceedings against the government. Some one should have Locus Standi- or an
interest in the case.
(How many types of Judicial Review can there be?)
vi.
vii.
viii.
Judicial Review
The Rule of Law
Democracy
(Primary Principles of )
Multiplicity of political party
Free and fair elections at regular intervals
Respect of human rights
Representative Democracy (participation through elected representatives)
Direct Democracy (people participate in ruling themselves- Ancient Greece)
Guarantee/Observance of the Fundamental Human Rights
Federalism
Bicameralism
Second constitution- 1972 enacted but only came into operation by August 1973 (was
suspended for a while); Choma declaration- ANC disbanded then joined UNIP
JUDICIAL REVIEW
Judicial review refers to the power of the courts (especially the High Court) to declare
legislative and executive actions as either being contrary to constitution (unconstitutional) or
in accordance with the constitution or any other written law (illegal or unlawful).
The courts jurisdiction in this regard may be invoked by an aggrieved party who can show
that he has a locus standi (an interest) entitling him to challenge the executive or the
legislative act in question. The court in judicial review proceedings may declare the executive
or legislative act as unconstitutional or illegal because of the following:
i.
ii.
iii.
iv.
v.
Rule of Law
The concept of the Rule of Law is one concept that has received a lot of interpretation by
scholars and politicians. In essence to constitutionalism, the concept emphasizes the utmost
importance and predominance of the law in the process of governing a nation. It seeks to
keep at bay or suppress the inevitable excesses in the use of governing power by those entrust
with it beyond the law. The rule of law first points out that the law is supreme or predominant
as opposed to the wishes and desires of the governor. Secondly, the concept emphasizes the
equality of all people before the law.
Human Rights
It is premised on the belief that human beings have certain basic, natural and inalienable
rights. The state has a duty to recognize these rights in order that liberty may be preserved,
human personality may be developed and effective social democratic life may be promoted.
In other words, human rights are those entitlements a person has by virtue of being a person
and not by virtue of the law. When these rights are guaranteed or protected by the
constitution, they may become known as fundamental rights.
Human Rights disputes are significantly different from those that courts of law traditionally
deal with which require the courts to apply an existing rule contained in legislation or in
precedent. Human Rights cases by contrast require the court to assess the validity of a legal
rule or government decision against the concept of human rights and to decide to which a
right should be sacrificed to some important public goal.
Democracy
The word democracy simply means government by the people. It may also be defined as a
system of government, a set of institutions that fulfills at least two essential functions:
(i)
(ii)