Administrative Law

The basis of the whole subject of administrative law is the control of power within the lawful campus. Administrative law deals with the aspect of the problem of power. The essay aims, therefore, to discuss in relation to the statement that in a democracy such as Zambia, administrative law is the most important vehicle for administrative justice,

the salient dimensions of administrative justice and

highlight the most important rights linked to administration of justice. After this, a conclusion shall, based on the discussion, be drawn. Salient Dimensions of Administrative Justice (i)

Administrative law in General

Administrative law is a branch of law concerned with the control of power by public bodies.

These public bodies can be ministers or public corporations.

Administrative law is not concerned with private law. In the case of the Ludwig Sondashi v Godfrey Miyanda (sued in his capacity as General Secretary of MMD)1 the application, upon being fired from the Movement for Multiparty Democracy sought an order for judicial review of the decision by the party. The High Court held that the Movement for Multiparty Democracy being a club whose activities were private could not be a subject of public law such as an order for judicial review under administrative law. In order to carry out the many schemes of public service and control, powerful engines of authority have to be set in motion. Administrative law, however, comes in to provide control. Wade hence, explains that: “To prevent them from running amok there must be constant control, but political and legal… The legal control is the task of the courts of law. 1

(1992 – 1994) ZR 115

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This legal control, together with a few special features of the political control, provides the subject matter of administrative law. The problem throughout is how to keep a powerful government within legal bounds, and how at the same time to help it work efficiently.”2 The easiest, though perhaps the least satisfactory of the possible definitions is to be found by appropriating one of the three features of the traditional separation of powers. If the powers and authorities are classified, in a state, as legislative, administrative and judicial, then administrative law might be said to be the law that concerns administrative authorities as opposed to the others. The main question that administrative law attempts to answer is how executive power can be controlled by law and also, so to speak colonized by legal principles of fair and proper procedure. CONSTITUTIONAL - SUPREMACY (THE COURTS) In Zambia, administrative justice is achieved, mainly because of the constitutional supremacy enshrined in the law. For example, the constitution of Zambia Act, stipulates in Article 1(3) that: “This constitution is the Supreme Law of Zambia and if any other law is inconsistent with this constitution that other law shall, to the extent of the consistence, be void” In Zambia, the main agents of administrative justice are the courts. The courts are able to declare any act of a public authority or body ultra vires if it is seen that the said body or authority acts outside its powers. In Fred M’membe and Bright Mwape v Attorney – General where the applicants had been arrested by Parliament for contempt of parliament, the High Court noted and held that 2

W.Y.P. Wade, Administrative Law, London: Sweet and Maxwell, 1989. P. 12

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the power used by the National Assembly was ultravires and that the only competent body to arrest in Zambia where the courts of law. Further in Roy Clarke v The Attorney General3 the applicant sought judicial review of the Minister of

Home Affairs decision to have him deported for writing satirical

articles of the President, critical to the president at the time. The High Court noted that his deportation was ultravires the ministers powers contained in the Immigration and Deportation Act. All the above are being espoused to show that the courts can restrain excesses and the courts are independent of the executive. The investigator General The office of Investigator General is a very important office in the attainment of administrative justice. This office is established by the Constitution of Zambia. Article 90(1) of the Constitution of Zambia Act stipulates that: “There shall be an Investigator General of the Republic who shall be appointed by the President

in consultation with the Judicial Service

Commission and shall be the Chairman of the Commission for Investigations.4 This office is a very important office for the control of executive power in that it investigates any public body or corporation. The functions and powers of the Investigator General are spelt out in the commission for Investigations Act. The Office of Investigator General helps achieve administrative justice for any aggrieved by an act of a public body or corporation in that it investigates such an abuse of power and recommends to the President on the action to be taken against such body or corporation in the event that an abuse of office or power has been established.

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Chapter 1 of the Laws of Zambia The Constitution of Zambia Act Cap 1 of the Laws of Zambia

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The most important right linked to administrative justice. (i)

Article 18(1) of the Constitution of Zambia states that : “A person… shall be afforded a fair hearing within reasonable time by an independent and impartial court established by law.”5 The right to be heard is one of the main natural rights that man is endowed with. If a person has been, for example, fired by a public body without being given a fair hearing or being not heard at all, administrative law brings in the right to be heard. In the celebrated English case of Ridge v Baldwin6 the

Chief Constable was suspended

on some

charges. He was called before a disciplinary body but was not called before another body that eventually dismissed him from the force. It was held by the House of Lords that his dismissal was null and void as he had not been given the opportunity to be heard. Further, in the case of Cooper v Wandsworth Rural Council7 it was held that the decision to demolish the houses notwithstanding that , it was a right one was nevertheless void as the council had not given the applicant the right to be heard. In the Zambian case of Kangombe v Attorney General8 the right to be heard was also discussed. In the case, the headmaster applicant had been suspended being partisan.

by the Teaching Service Commission on grounds of He went to appear before the Commission, it was

resolved that he be re-instated but the then Secretary General of Government, Aaron Milner put in the report to be submitted to the President some allegations which has not personally been brought to 5

Ibid, Article 18 [1948] 2 AC 548 7 [1952] 2 QB 86 8 [1972] Z.R 1 6

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the attention of the applicant. The applicant was accordingly dismissed by the President. The court had the opportunity to look at the right to be heard when it stated that his dismissal was null and void as the applicant had not been given the right to be heard on the allegations sent to the President which led to his dismissal. (ii)

A person not to be a judge in his own case Another right connected to Administrative justice is for a person not be a judge in his own cause. This is expressed in Latin as “Neno det in Causa Sua”. There will, eventually be conflict of interest if such a case arises and administrative justice cannot be attained. In the case of Dines v Guard Junction Canal9 Lord Cottenan had shares in the canal. When a dispute arose between the canal and the applicant, the case came before the General Lord.

He properly disclosed his interest but

nevertheless, proceeded to hear the case and gave a sound decision. On appeal, the House of Lords stressed the fact that even if the decision given by Lord was unbiased, there were fact that the had adjudicated in the matter made him an interested party and hence substantiating this as a ground for appeal. In the Zambia case of Patel and Another v Yoram Mumba and Others10 the notion of being a judge in one’s cause was rejected. However, the Supreme Court, in deciding in the above case which involved in the lower court a conversation by the trial judge and the respondents lawyer as to a funeral for the judge’s niece whom Counsel knew and where the duo planned to go together before the judge gave a ruling, the appellants claimed that the judge by personally knowing the respondent’s counsel had become impartial leading to him granting the respondents an injunction on frivolous grounds. The Supreme Court, however, noted that in Zambia, the legal profession is a small and young profession and the notion of judges and counsel knowing each other personally 9

[1868] 2 HC 392 SCZ No. 13 of 2003

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could not be ruled out especially that some of these judges and lawyers were either classmates at University or some were students of others. The above are the most important right connected to administrative justice. CONCLUSION In conclusion, it can be accepted that administrative law is the most important vehicle for administrative justice in a democracy like Zambia. Important to note is that some of the main agents of administrative law in the country such as the Courts and the Investigator General are authoritatively enshrined in the constitution. Also to be noted is that the rights linked to administrative law such as the right to be heard in particular is not only stipulated by Article 18 of the Constitution but has been adjudicated upon the courts.

BIBLIOGRAPHY Wade, W.Y.D. Administrative Law, London: Sweet and Maxwell, 1989.

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STATUTES The Constitution of Zambia Act, Chapter one of the Laws of Zambia. The Commission of Investigations Act, Chapter 39 of the Laws of Zambia. CASES Ludwig Sondashi v Godfrey Miyanda (sued in his capacity as General Secretary of the Movement for Multiparty Democracy) [ 1992 – 1994] ZR 115

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