assignment 1 constitutional law

8/2/2019 Assignment 1 Constitutional Law

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Introduction

The following paper endeavours to discuss the doctrine of separation of powers and making

reference to the Zambian constitution, will then analyse each branch of government as provided

by the constitution discussing the challenges of attaining true separation of power and bringing

about good governance in the Country.

The Doctrine of the Separation of Powers

The doctrine of "the separation of powers" is derived from Montesquieu, whose elaboration ofit was based on a study of John Locke's writings and the British Constitution of the 18th

century. Locke, in his Second Treatise of Civil Government, wrote:-

It may be too great a temptation to humane frailty, apt to grasp at power, for the same

persons who have the power of making laws, to have also in their hands the power to

execute them, whereby they may exempt themselves from obedience to the laws they

make, and suit the law, both in its making and execution, to their own privateadvantage.1

The doctrine of the separation of powers was developed further by Montesquieu, who was

concerned with the preservation of political liberty. He wrote that Political liberty is to be

found only when there is no abuse of power. But constant experience shows us that every man

invested with power is liable to abuse it, and to carry his authority as far as it will go....To

prevent this abuse, it is necessary from the nature of things that one power should be a check on

another...When the legislative and executive powers are united in the same person, or in the

same body of magistrates, there can be no liberty....Again, there is no liberty, if the judiciary

power be not separated from the legislative and executive.2

Were it joined with the legislature, the life and liberty of the subject would be exposed to

arbitrary control; for the judge would then be the legislator. Were it joined to the executive

however, the judge might behave with violence and oppression. There would be an end to

1 Ch.X11, para. 142, quoted in Vile, p.62.

2 Chanda, A.C. Zambia Constitutional Law Cases and Materials manuscript, unpublished. P.29


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everything, were the same man, or the same body, whether of the nobles or of the people, to

exercise those three powers, that of enacting laws, that of executing the public resolutions, and

of trying the causes of individuals."3

The point stressed in this statement is that within a system of government based upon law, the

judicial function should be exercised by a body separate from the legislature and executive. It

certainly does not imply that the three organs ought to have no influence or control over the

acts of each other, but only that neither should exercise the whole power of the other.4

Separation of power in the Zambian Constitution

The Zambian Constitution has largely established the three branched of government namely the

Executive, the Legislature and the Judiciary and it provides for separate functions of each of

these three branches, so that no single branch is able to operate alone, assuming complete state

control and amassing centralised power.

The Zambian Constitution Provides as follows;

The Executive (IV)

Article 33(2) of the Constitution of Zambia provides that the executive power of Zambia vests

in the President and shall be exercised by him or her directly or through officers subordinate to

him.

Article 33(1) of the Constitution of Zambia provides that the President of the Republic of

Zambia shall be the Head of State and of Government and the Commander-in-Chief of the

Defence Force. The President is elected whenever Parliament is dissolved or the office of the

President becomes vacant, in terms of article 34 read with article 38 of the Constitution. The

election procedure is set out in article 34 and the election of the President shall be direct by

universal adult suffrage (citizens over the age of 18) and by secret ballot.

3 De L'Esprit des Las, Book X1, Ch. 6, quoted in Vile.

4Chanda, A.C. Zambia Constitutional Law Cases and Materials manuscript, unpublished. P.29


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Article 49 of the Constitution of Zambia provides for a Cabinet consisting of the President, the

Vice-President and the Ministers. The main role of Cabinet is to advise the President with

respect to the policy of the Government in terms of Article 50. In terms of article 51, Cabinet

and Deputy Ministers are accountable collectively to the National Assembly.

The Vice-President is appointed by the President from among the elected members of the

National Assembly in terms of article 45(2) of the Constitution of Zambia. The general role of

the Vice-President is to perform functions specified in the Constitution, any other law and as

assigned to him by the President in terms of article 45(4) of the Zambian Constitution.

In terms of article 46 of the Constitution of Zambia, there shall be such Ministers as may be

appointed by the President from among the members of the National Assembly. Further, in

terms of article 47, the President may also appoint such Deputy-Ministers from among themembers of the National Assembly as he considers necessary to assist the Ministers.

And article 44 establishes the functions of the president. And the same article subsection (2)

empowers the president to preside over meetings of the cabinet and (2) (a) empowers the

president to dissolve the National Assembly as provided in Article 88.

The president under Article 93(1) and (2) of the constitution of Zambia is empowered to

appoint the Chief Justice and his depute and the Supreme Court Judges subject to ratification of

the National Assembly. The is also

The Legislature (V)

Legislative or law-making power in Zambia vests in Parliament which, in terms of article 62 of

the Zambian Constitution, consists of the President and the National Assembly. Article 78(1)provides that legislative power of Parliament is exercised through Bills being passed by the

National Assembly and assented to by the President.

In terms of article 63(1), the National Assembly consists of:

(a) 150 elected members. The process for the election of the members of the National

Assembly shall be direct, by universal adult suffrage (citizens over the age of 18) and

by secret ballot. In terms of article 76, the Electoral Commission is required to review

the boundaries of the constituencies into which Zambia is divided for the purposes of

elections to the National Assembly. The number of constituencies shall be equal to the


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number of seats of elected members in the National Assembly in terms of article 77(1).

Each constituency elects one member to the National Assembly.

(b) not more than eight nominated members. In terms of article 68, the President may

nominate not more than eight people that he considers necessary to enhance the

representation of the National Assembly as regards special interests or special skills, to

be members of the National Assembly.

(c) the Speaker of the National Assembly. In terms article 69 of the Zambian

Constitution, the Speaker is elected by members of the National Assembly from among

persons who are qualified to be elected as members of the National Assembly but who

are not members of the National Assembly.

The relationship between the Executive and the National Assembly

Professor Chanda5 asserted that the National Assembly has demonstrated little independence

and has been dominated by the executive branch. This is because of the following reasons;

Ministers, deputy ministers and the Vice-President (who is the leader of government business

in the National Assembly) are all members of the Assembly. Because of the doctrine of

collective responsibility these officials are expected to defend the executive at all costs in the

Assembly. On average there are around 6568 Members of Parliament (MPs) who hold

positions in the executive branch.

The President appoints up to eight Nominated MPs, who hold office at his pleasure. The

President can fire them at any time.6 It is fair to say that such MPs are loyal to the appointing

authority and cannot, therefore, be said to be independent since they have no security of tenure.

For example, in 2001 elections the ruling Movement for Multiparty Democracy (MMD)

controlled more than two thirds of the seats in the Assembly. The primary loyalty of the MMD

MPs was to the Party President, who was also the Republican President. The Party President

dominates the Party and has a big say on who will stand on the Party ticket in elections. MMD

MPs who tried to show some independence from the executive were subject to disciplinary

proceedings by the Party and could be expelled from the Party. If this happened, they

automatically lost their seats in the Assembly.7 For example, the former Energy Minister, Ben

5 Chanda, A.C. Zambia Constitutional Law Cases and Materials manuscript, unpublished6 Cap. 1, Article. 74 of the Constitution of Zambia

7 Cap. 1, Article. 71 (2) (c) of the Constitution of Zambia


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Mwila, was expelled from the MMD in 2000 for defying President Chiluba who had banned

MMD Members from campaigning for the presidency.8

Virtually all legislation in the Assembly is introduced by Ministers. It is extremely rare for MPs

to initiate private members bills. In fact, there is not a single law passed by the Legislature

which was initiated by backbenchers, in Zambias history. At the close of 2002, for example,

three media Bills, namely, theIndependent Broadcasting Authority Bill, theZambia National

Broadcasting (Amendment) Bill and the Freedom of Information Bill, were introduced in the

Assembly by opposition MPs. However, the Speaker relied on Article 81 of the Constitution to

prevent the Bills being debated. Article 81 requires that any proposed bills that have financial

implications should have the prior approval of the President before the Speaker can authorise

their introduction in the Assembly.9

The Speaker is in practice often picked by the President, and elected by the MPs. Successive

Speakers have shown little inclination to be independent of presidential control. They are

extremely reluctant to make rulings against the executive on controversial issues which

challenge executive power. For example, in 2001 when dissident MMD MPs wanted to

impeach President Chiluba over the third term issue, the then Speaker (Mr Mwanamwamba)

refused to summon the Assembly within 21 days as mandated by Article 37 (1) (b) of the

Constitution. The Assembly remained in recess for over seven months. It was only summoned

to meet for a few days before dissolution after the impeachment threat was out of the way.

Thus, Professor Chanda argued that a highly partisan Speaker, who is loyal to the President,

cannot be expected to assert the independence of the Assembly. Moreover, the President also

appoints the Clerk, who is the Chief Executive Officer of the National Assembly. This clearly

undermines the autonomy of the Assembly, which ideally should have the power to appoint its

chief executive officer.10

The opposition has in the past made little difference because of its paltry numbers. Since 2002

the Assembly has been trying to assert its independence owing to the increase in the number ofopposition MPs. Although at the beginning of 2002 the opposition had a slight majority of seats

this changed subsequently through defections of some of the opposition MPs to the ruling

MMD. The appointment of over eight opposition MPs as Ministers or Deputy Ministers by the

then President late Mwanawasa, further weakened the opposition in Parliament (this trend has

continued as the current Patriotic Front government has just appointed six members of

parliament from the opposition party MMD).

8Chanda, A.C. Zambia Constitutional Law Cases and Materials manuscript, unpublished. P.29

9 Ibid. P. 291

10 ibid


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The National Assembly has not been successful in curbing executive excesses for number of

reasons, some of which have been outlined above. In terms of its legislative function the failure

of Members of Parliaments (MP) to initiate private members bills indicates lack of capacity as

well as reluctance by the executive to cede its monopoly in this area to the backbenchers. Thus,

legislation can only be passed if it is initiated by the Cabinet. The Assemblys oversight

functions have been compromised by its lack of independence from the Executive. Although

Parliament is supposed to control the public purse this is not the case in practice for a number

of reasons: MPs have no role in the formulation of the budget; MPs have no power to change

the total amount of the budget; MPs have no control over constitutional and statutory

expenditure, including contraction and repayment of loans; and MPs have no control over

supplementary expenditure, as the executive presents details of the excess expenditure years

after the money has already been spent.11

The National Assembly is relatively weak in relation to the Presidency. For example, the

President can dissolve the Assembly at any time,12 can fire nominated MPs at any time, and

appoints the Clerk of the National Assembly (as well as nominates the Speaker). Moreover, the

Assembly cannot, by a vote of no confidence, remove the President or any minister from office.

Even the Assemblys power to ratify presidential nominations to constitutional offices is

limited in the sense that the third nomination is binding whether the Assembly approves or

not.13

The Judiciary (VI)

This is a branch of government that performs judicial functions and this comprises of the

interpretation of the law, made by the legislature and implemented by the executive, by rule or

discretion to the facts of particular cases. It involves ascertainment of the facts in dispute

according to the law of evidence. Thus it adjudicates upon conflicts arising from state

institutions, between state institutions and individuals, and between individuals themselves.

Article 91 of Zambian constitution establishes the hierarchy of the Judiciary in the country with

the Supreme Court as the highest court and local courts bottom on the hierarchy while leaving

room for the establishment of more courts through Parliament as the need arise.

11Ibid. P. 292

12 Constitution, article. 88

13 Ibid article. 44(4)


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Article 91(2) of the Constitutionprovides that the judges, members, magistrates and justices, as

the case may be, of the various courts shall be independent, impartial and subject only to the

constitution and the law and shall conduct themselves in accordance with a code of conduct

promulgated by parliament.14 Article 91(3) states that the judicature shall be autonomous and

shall be administered in accordance with the provisions of an Act of parliament.

The above provisions of the constitution endeavours to make the Judiciary independent from

the influence of, especially the executive. Besa15 argues that this need for the independence of

the judiciary cannot be overemphasised as; scholars of Constitutional Law have further

expressed concern on the need for the judiciary to be independent. Blackstone observed with

regard to the judiciary:

In this distinct and separate existence of the judicial power in a peculiar body of men,nominated indeed, but not removable at pleasure by crown, consist one main preserve of the

public liberty which cannot subsist long in State unless the administration of common justice

be in some degree separate both from the legislative and from the executive power

While some degree of judicial independence is secured under the constitution, the same

constitution in Zambia however has tended to compromise this independence of this very

institution in governance. Where Article 91(2) has made such important provisions purporting

to secure judicial independence, further provisions within the constitution itself have tended to

reverse article 91(2) provisions. The provisions that reverse the provisions of article 91 (2) is

contained first within part VI of the constitution and further under part IV. Article 98 of part VI

provides for the tenure of the members of the High and supreme Courts. Under article 98(2),

there is some level of protection for the members of the bench which is in conformity with

article 91 (2), provisions however; article 98(3) has given powers to the president to interfere in

the operations of the judiciary. Under the article, the president has been given power toconsider the question of removing a judge of either the high court. If pursuant to article 98, the

president considers the removal of a judge, the president has further been given powers to set

up a tribunal to investigate the allegation on a judge by the president.16

14 Judicial Code Of Conduct Act

15 Besa, M. (2010). Constitutional law II. Zambian Open University

16 Besa, M. (2010). Constitutional law II. Zambian Open University


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Besa17 also argues that this idea under the constitution of Zambia to grant to the president the

power to interfere in the operations of the judiciary completely erodes the much required

independency that the judiciary is supposed to enjoy if it is to effectively probe the excesses of

both the executive and the legislature. Besa18 continued to argue that the president as head of

state, it may be necessary that his given the powers to appoint members of the High and

Supreme Court however, if the power to dismiss such judges still lies in the hands of the

president, then there can not be any meaningful independence in the judiciary and its role and

functions in upholding democracy in a country is completely defeated. Thus it is such

challenges that make it very difficult to attain true separation of power and good governance

under the current constitution of Zambia.

The effects of the interference in the proper operations of the judiciary was illustrated by the

case of High Court Justice Kabazo Chandas resignation when former late president Fredrick

Chiluba sought to set up a tribunal to investigate an alleged misconduct of the judge. This

happened when the judge operated under the dictates of the needs of natural justice by

acquitting a number of prisoners who had been in detention for longer periods than necessary

due to the prosecutions failure to prosecute and unnecessarily seeking adjournments. Among

the prisoners where those accused to have been involved in the 1997 coup attempt

masterminded by Captain Stephen Lungu alias Captain Solo but the prosecution lacked

evidence to directly link them to the coup plot. The release of the prisoners however infuriated

the executive leading to the then president contemplating setting up a tribunal with a view to

dismissing Judge Chanda from the bench but he resigned knowing that the matter would be

forgone as a tribunal is a mere formality.19

Another example of how the indecency of the Judiciary is undermined is that the President sets

salaries for High Court and Supreme Court judges, thereby enabling him to influence superior

court judges. In 1996, for example, when Mr. Chilubas election as President was beingchallenged by the opposition in the Supreme Court he awarded two salary increases exceeding

320 per cent to the judges within a period of nine months. At the same time, Magistrates and

Local Court justices were denied an increment, which led to a national-wide strike by

magistrates. In 2002 President Mwanawasa, who was facing three petitions challenging his

17 Ibid

18 Ibid

19 Ibid


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election as president in the Supreme Court, awarded a big salary increment to judges of the

Supreme Court and High Court. Other judicial officers were again left out.20

Conclusion

Separation of Powers is another aspect of good governance which safe guards the interests of

all citizens. The three arms of government analysed above are supposed to be independent so

that there is no abuse of power by one section of government. In Zambian, the Separation of

Powers is undermined due to excess powers given to the executive over the Judiciary and

legislature.

The President is empowered to appoint members of the Judiciary including the Chief Justice.

People appointed by the president are likely to be blindly loyal to the appointing authority. It isnot surprising that most people doubt the credibility of our judicial independence. Separations

of power lead to respect for the rule of law since those who go against the law are apprehended

regardless of their status.

Excessive power to one arm of government hinders transparency and accountability which can

be said to be the real key to good governance.

But it should be noted that in considering each of these aspects of separation power, it must be

remembered that complete separation of powers is not possible either in theory or in practice

BIBLIOGRAPHY

1. Besa, M. (2010). Constitutional law II. Zambian Open University

2. Chanda, A.C. Zambia Constitutional Law Cases and Materials, manuscript,

unpublished

20 Chanda, A.C. Zambia Constitutional Law Cases and Materials manuscript, unpublished


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assignment 1 constitutional law

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