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

1
 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

2
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.

3
Chapter 1 of the Laws of Zambia
4
The Constitution of Zambia Act Cap 1 of the Laws of Zambia

3
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 by the Teaching Service Commission on grounds of
being partisan. 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
6
[1948] 2 AC 548
7
[1952] 2 QB 86
8
[1972] Z.R 1

4
 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
10
SCZ No. 13 of 2003

5
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.

6
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