A ZAMBIAN PERSPECTIVE ON

SEPARATION OF POWERS
by Mutowa Sinda

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 CAVENDISH UNIVERSITY ZAMBIA
SCHOOL OF LAW

A ZAMBIAN PERSPECTIVE ON SEPARATION OF POWERS

BY
MUTOWA SINDA
(005-486)
 TABLE OF CONTENTS
D AT i T — i
Acknowledgements
Ded
et O, iv

CHAPTER ONE
THE DOCTRINE OF SEPARATION OF POWERS IN THEORY

10 troduction ........................................................................................
1.1 Background of the StUAY............oiiiiiiiiiiiiiiiiii e

1.2 Problem statement

1.3 Purpose Of STUAY.......ouuutii i
T Gi C ST STy ——
1.5 RESEArCh QUESHIONS. ........eutiiiiiietiiiiiie et e e
1.6 Methodology..........oooooiiiiiii

1.7 Outline of the Teport..................ooiiiiiii

CHAPTER TWO

2.0 INErOUCHION. ...t

2.1 Historical view on separation 0f POWETS. ..........ccvviiieuieiiiieeeeii
e

2.2 Scholars take on separation of POWETS...........ccoiiiieiiiiiii i

2.3 Law governing separation 0f POWETS..............ccooeiiiiiiiiiiiiiiiiiiii e
2.4 Principles of Constitutional Supremacy.

2.5 CONCIUSION ...

CHAPTER THREE

.3 Quantitative research methodology.

3.4 Qualitative research methodology..............ooooiiiiiiiiiiii i

3.5 ReSearch desi@n. ... ......uuiiiiiiiiniiiiiiiii it

3.6 RESEArCh SIALCZY . ......uue ittt

B R ST CHICH
i Ce I
3.8 S0urces Of data...........uumuiiiiiiiii it
] DTy i 2 T T Thonono00000000000000000000000600000E05000a0a000000000000000000000000000000

3.10 Reliability and Validity (triangulation)...................ocoiiiiiiiiiii i

3.11Ethical consideration. ......................uuuuiiiiiiiiiiiiiii e

312 CONCIUSION. ...

CHAPTER FOUR
4.0 INtrodUCtiON ........ooiiiiiitiii i e
4.1 The legislative arm of government ...................oiiiiiiiiiiiii i

4.1.1 The Zambian legislature .................oooooiiiiiiii

s

412 CONCIUSION ...

4.2 The judicial arm of GOVErNMENt ...............ouiiiiiiiii i

4.2.1 Judicial independence .

4.2.2 The Zambian judiciary

4.2.3 CONCIUSION L.ooviiiiii e

4.3 The executive arm 0f OVEIMMENT ...........uuuiuetiiieiiiiiiiiieeiieeeeieeeeeaaiaanees

4.3.1 POWer theOries ...........oooiiiiiiiiiiii i

4.3.2 The Zambian executive

'HAPTER FIVE
CONCLUSION AND RECOMMENDATIONS
5.1 INEOUCHON. ...
5.1.1 Findings and conclusions of chapter two ..............ccccoooiiiiiiiiiiiiiiiieiiinens
5.1.2 Findings and conclusion of chapter three ..................c.oooooiiiiiiiiiii,
5.1.3 Findings and conclusion of chapter four ..............................
.4 Findings and conclusion of chapter five................................

S5 T S O —
52 RECOMMENDATIONS ..........c..c..... Ststssssssssesssassanasssassasasasnssansssssssas
5.2.1 RECOMMENDATIONS TO THE THREE AIMS OF GOVERNMENT ...............

5.2.2 RECOMMENDATIONS TO THE GOVERNMENT ............cccooiiiiiiiiinnnns

BIBLIOGRAPHY

DECLARATION
I, MUTOWA SINDA, student number 005-486 do hereby declare that this is my genuine work,
similar piece of work has not been recorded at Cavendish University Zambia for the award of
Bachelors of Laws Degree or any other award. All other works cited or used in this research have
been duly acknowledged.

ACKNOWLEDGEMENTS
All glory and praises go the almighty God for his protection and mercies throughout and the
successful completion of this research. Special and grateful thanks go to my parents Vengi Sinda
and Jean Nzowvu for their endless and immeasurable love and support as well as their contribution
to this research. To my parents am really grateful and humbled. God bless you always.

Ialso want to say thank you to my sujggvisor, Mr Ndlovu Nkosi for his encouragement and
Support for without him this research would not have been possible. He not only supervised my
work but also made sound suggestions and corrections which improved the quality of my work,
sir am really grateful.
20
Special thanks also go to my sisters (my best friends) who have ever been so loving, supportive
and bringing out the best in me. Ruth Sinda and Esther Sinda. You guys have always been able
to light up my world and able to see the best in me, you’re ever encouraging words, your
company and always telling me I can do it even when things are hard or seem impossible. Thank
you for always believing in me. Things really seemed impossible when Dad passed on, but you
two found ways of putting me back on truck, brightened my days and made me smile. Ruth and
Esther words cannot describe how much I love you both. Both of you have been my parents, my
sisters and friends. GOD bless you two always. We have done it this is our law degree.

I also wish to thank the lectures in the faculty of law, thank you for your time and valuable
contributions to this research. To the Two Deans Mr Nkosi and Ms Chinambu thank you for your
guidance from 1* year to my 4" year.
Special thanks to my Uncle, Martin Nzovu for your fatherly love, support and guidance. you
have really been that father figure for me since the passing of Dad, your ever kind heart and
helping heart is unmeasured will forever be grateful. To my cousins Hannah Nzovu and Khumar
Nzovu thank you for always been there and for the love and support and not forgetting , Taongo
chaongopa, Chengelo Nzovu, Collins Nzovu, chileleko Nzovu, Musasha Sampa and Michael
Chaongopa thank you for been the best cousins one would ask for and always making sure am
okay.

To my friends Elizabeth Mbaya, Chilala J Maniza, Mumbi Chanda, Royed Mulenga , Queen M.
Chanda, Harriet Kabwe, Ernest Sinyangwe, Grace Mutale, Tom Maniza, Mathew Lungu,
Patricia Kalulu and Semba. Thank you for being so loving, supportive and encouraging.
Elizabeth Mbaya, you have especially been my uplifting voice when am down or things seemed
impossible throughout my studies at Cavendish, thank you for never growing weary of my
problems.

I also want to thank Apostle Mike Phiri for his spiritual guidance and supportive ways. Your
encouragement not only to me but also my family, God bless you always. To Apostle Mwape
and Apostle Saka to you I also say thank you for the supportive ways and prayers.

DEDICATION
To the memory of my late father VENGI SINDA who believed in me and my ability to achieve
even before I did. Who never doubted me in any way and who believed in me been the best
lawyer one day this wouldn’t have been possible without all your sacrifices and love. This is for
you my guardian angel. I miss you.

CHAPTER ONE
GENERAL INTRODUCTION
1.0 INTRODUCTION
History has taught us that society needs laws and rules to govern how individuals within that
community relate, where there are no such laws, society fails and history provides opulent
evidence of civilization's thatfgiled because of weak governance structures.' There has been a
lot of debates in line with the Zambian Constitution over the last few years with many calls for
the need to review the separation of powers between the three branches of government because
the current provisions in the Constitution are inadequate to prevent abuse of afority among the
three branches of government. This dissertation will examine the perspective view of separation
of powers in Zambia.

A community can have laws afff rules to govern them as per Constitution, society still needs to
question who will make them, who will enforce them and how punishments will be given for
breaking the laws and rules. It is perhaps through introspection that society grew stronger and
civilization lasted longer as governance structures improved. With good and strong governance
structures thisgggjults to a good government and people will be governed well and we shall see a
good balance among the three branches of government and checks and balances will be more
sufficient.
A democratic government typically comprises of three branches: the executive, legislature and
judiciary. The executive is the branch of government responsible for effecting and enforcing the
laws. The legislature is the branch in charge for making statutory laws, whilst the judiciary’s role
is to interpret laws and administer justice. The nature of the power vested in each organ often
requires that a limit be placed on the manner in which such powers are enjoyed. Which is often
done through a Constitution. Agfjonstitution is, to put it in simple terms a document that governs,
regulates, states and stipulategghe functions of the three branches of government and the
relationship among the three. Separation of powers is usually understood from Baron
Montesquieu’s view whose core argument was that political [fperty can only be achieved where
there is no abuse of power by one organ of government. The separation of power principle
promulgates the prevention of tyranny instigated by the conferment of enormous power on a
person or organization. Therefore there is need to create organizational, formal and procedural
divisions of public power to ensure that public authority is wisely exercised and not abused.

g BACKGROUND OF STUDY
The term “trias politica™ or * separation of power” was coined by Charles-Louis de Secondat,
baron de La Brede et de Montesquieu, an 18" century French social and P@ifcal philosopher.
The doctrine of separation of powers is a system whereby the government is divided Into three
major organs, namely, the Executive, the Legislature and the Judiciary. The three have separate

! Google, definition of separation of powers.

functions to perform in the day running of the government machinery. It also means that there is
s&arale personnel as well in the three organs of government. >
Separation of powers therefore entails that each organ of the state will perform its functions
without undue interference from the other organs. Each organ should be left to do what is
assigned to it under the Constitution. If any organ is not performing well it ought to be reminded
and its performance monitored by way of accountability. That is not interference but a system
called checks and balances in the interest of a goofjgovernment. As defined in the preamble,
Zambia is a sovereign democratic Republic?. The doctrine of separation of powers under the
Zambian system is not adhere to in the strict sense of the doctrine. This is due to the fact that
there is a close linkage in the operations of the three organs of government.
The close linkage between the legislature and judiciary can be traced from the fact that while
both organs are creatures of the Constitution, their roles are complimentary. For instance, judges
are appointed by the president on the advice by the judicial service commission subject to
ratification by the National Assembly in accordance with Article 95(I) of the Constitution of
Zambia. * This appointment system ensures transparency as it takes into account the suitability
of a nominee by questioning the competence of the nominees. The process further minimize
political influence in the appointment of judges.
In the execution of duties, the judiciary checks on the powers of the legislature. For instance , the
Supreme Court of Zambia in the landmark decision in the case of Christine Mulundika and 7
Others v The People had occasion to determine whether certain provisions of an Act enacted by
parliament, the Public Order Act , were ultra vires the constitution and, therefore, null and void
ab initio>. In the decision, the Court annulled section 4 and 5 of the Public Order Act for being in
contravention of Article 20 and 21 of the Constitution.
In another case of Akashabwata Lewanika v the Attorney General and Another, in the year
1999, the High Court of Zambia had occasion to check on the exercise of the National
Assembly’s disciplinary power over its members. In this case, a member of parliament, Mr.
Akashabwata Lewanika, wrote a letter to the Speaker disassociating himself from a decision of
the National Assembly on grounds that it was unjust. The disassociation was expressed in a
manner derogatory to the speaker and the House as a wrale. N

On the 18" of February 2020, a judgment was ggndered i the case of Chishimba Kambwili v
Attorney General 2019/CCZ/009. In this case the Constitutional Court found the action of the
Speaker to have been unconstitutional as the office is not vested with power to interpret or

> Montesquieu
* The @nstitution of Zambia.
* The constitution of Zambia.
3 Christine mulundika and 7 others v the people
© Akashabwata Lweanika v the AG and Others.
resolve constitutional problems. 7 This power is vested in the judiciary and the speaker,
therefore, usurped the powers of the judiciary.
The idea that a government should have three separate organs has occupied the mindggf lawyers
and jurists for a very long time now. The earliest person to talk about the doctrine of separation
of powers or that the government should be divided into the three main organs was Greek
Philosopher called Aristotle. In hisgggok called “Politics " he made the first attempts to classify
the organs of government he said: ‘All states have three elements : (1)that which deliberates
about public affairs, (2) that which is concerned with magistrates and (3) that which has judicial
owers.”
History has time and again shown that unlimited power in the hands of one person or group in
most cases means that others are supposed or their powers curtailed. The separation of powers in
a democracy is to prevent abuse of power and to safeguard freedom for all.

12 STATEMENT OF THE PROBLEM

1
Article 1 of the Zambian Constitution states inter alia that Zambia is a democratic state and that
the Constitution is the supreme law of the land.’ The notion of separation of powers is therefore
subject to two principles. The congjtution provides each arm of government with specific
functions and clearly lays down a separation of powers which it is envisaged would enhance
checks and balances.
Under the Constitution of Zambia the Executfgg has been specified under part IV of the
Constitution and Article 33(1) states that the president of the Republic of Zambia who is the head
of state and Government and Commandcr-in-Chifif the Defense force. Article 33(2) vests all
the executive powers in the President which shall be exercised by him directly or through
officers subordinate to him."
Part V of the Constitutjg of Zambia deals with the Legislature. Article 62 talks about the
legislative powers and fiiembership of parliament. The legislative power of the Republican of
Zambia shall vest all powers in parliament which shall consist of the President and the National
Assembly. !
>
Part V1 of the Constitution of Zambia contains the Judicature. Article 91(1) states what the
Judicature of the Republic shall consist of .

7 Chishimba Kambwili v the AG 2019/CCZ/009.

* Aris@Be, book called politics
? The Constitution of Zambia, 2016.
!0 The Constitution of Zambia, 2016.
' The constitution of Zambia , 2016.
At present however, they seems to be mum'nlerference among the three arms of government
due to non-effective checks and balances hence no balance of power among the three organs of
government. Therefore they is need to analyze the implementation of the doctgfe of separation
of powers in Zambia if necessary make some references to othegfjhrisdictions which Zambia can
learn from although there may also be possible abuse of power by the executive which in most
cases, is the dominant authority.

1.3 GENERAL OBJECTIVE OF THE STUDY

As a general objective seeks to show the benefits of adhering to the doctrine of separation of
powers through the implementation of effective checks and balances till present day in Zambia.

14 SPECIFIC OBJECTIVE @
7
1. To examine the level of adherence of the doctrine of separation of powers in Zambia
2. The importance of checks and balances among the three organs

1.5 SIGNIFICANCE OF THE STUDY

Zambia just like other African countries have the common trend of vestirggall powers in the head
of state( the executive) ever since their gain of independence in so doing the executive exerts a
lot of influence on the functioning of the other organs of government. As a result their
independence is compromised and hence the possibility of political liberty being reduced t@E%)
great extent. This research will therefore show the importance of the non-rigid application of the
doctrine of separatf§j of powers by effective checks and balances as to ensure that there is no
arbitrariness and a balance of power among the three organs of state is achieved.

1.6 RESEARCH QUESTION

1. What is separation of powers and what factors are affecting the proper adherence of it?
2. What is the importance of checks and balances among the three organs?
3. What s rule of law?

1.7 METHODOLOGY
To achieve the above tasks, this dissenaliorwill adopt a desk of research method, namely
consultation of the Constitution of Zambia, Articles, Journals, and Textbooks, Paper
presentations, Newspapers, Periodicals and research via online presentations on the subject
matter with full acknowledgement of source.

1.8 BIBLIOGRAPHY
This will contain the materials that will be used in this research.
 CHAPTER TWO
LITERATURE REVIEW
20 %I'RODUCHON
The separation of powers, together with the rule of law and parliamentary sovereignty, runs like
a thread throughout the constitution of the United Kingdom. It is a doctrine which is fundamental
to the organization of a state and to the concept of constitutionalism —in so far as it prescribes the
appropriate allocation of powers, and the limits of those powers, to differing institutions. The
concept has played a major role in the formation of constitutions. The extent to which powers
can be, and should be, separate and distinct was a central feature in formulating, for example,
both the Americans and French revolutionary constitutions.

In any state, three essential bodies exist: the executive, the legislature and the judiciary. It is the
relationship between these bodies which must be evaluated against the backcloth of the
principles.'” The essence of the doctrine is that there should be, ideally, a clear demarcation in
function between the legislature, executive and judiciary in order that none should have
excessive power and that there should be in place a system of checks and balances between the
institutions.

Constitutional development in Zambia can be traced back to the British colonial times, especially
from the beginning of the 1950s. Its constitution building history can be divided into post-
i.ndependcnce and post-cold war periods.

Zambia operates on the principle of constitutional supremacy and as such all the three organs of
government are subject to the constitution. To this end, the three organs of government are
expected to provide checks and balances o each other in the exercise of their constitutional
powers. '3

21 H‘STRORICAL VIEW ON SEPARATION OF POWERS

11
The identification of the three elements of the Constitution derives from Aristotle (384-322BC).
In “The Politics” , Aristotle proclaimed that ‘there are three elements in each constitution in
respect of which every serious lawgiver must look for what is advantageous to it; if these are
well arranged, the constitution is bound to be well arranged , and the differences in constitutions
are bound to be well correspond to the differences between each of these elements. The three

'2 Hilaire Barnett, constitutional law book.

13 ASGP, Article on A BALANCEOF POWER.
are, first, the deliberative, which discusses everything of common importance; second, the
officials; and third the judicial elements."
The constitutional seeds of the doctrine wee thus sown early, reflecting the need for governing
according to and under the law, a requirement encouraged by some degree of a separation of
function between the institutions of the state.'®
The constitutional historian FW Maitland traces the separation of powers in England to reign of
Edward I(1271-1307). In Edwards’s day all become definite-there is the Parliament of the three
estates, there is the Kings Council, and there are the well-known courts of law.'®

Baron Montesquieu in the early years while living in England [gg§i really stressed the importance
of the three arms of government been really independent. The importance of the independence of
the judiciary was stressed in De I'Esprit des Lois(1748): when the legislative and executive
powers are united in the same person, or in the same body of magistrates, there can be no liberty
and again , there is no liberty if the power of judging is not separated from the legislative and
executive. That's why there is need for separation of powers and for the three to operate
independently. '’
The clearest expression of gif§ demand of separation of functions was remarked by Montesquieus
when he observed that the English constitution were inaccurate at the time, representing more a
description of an idealized state than reality.'® His main argument or preference was for a more
pure separation of power and a proper balance of power and effective checks and balances in the
fivemmem.

Ivor Jennings has interpreted Montesquieu’s words to mean not that the arms of government
should have no influence over the other, but rather that neither should exercise the power of the
other."”
Sir William Blackstone, a disciple of Montesquieu, adopted Montesques strict doctrine,
reworking his central idea to incorporate the theory of mixed government. While it was of central
importance to Blackstone that, for example, the executive and legislature should be sufficiently
separate to avoid ‘tyranny’, he nevertheless viewed their total separation as potentially leading to
dominance of the executive by the legislature.”’ Thus, partial separation of powers was required
to achieve a mixed and balanced constitutional structure.

!4 The politics , BK iv, xiv, 1297

b
'3 Constitutional and administrative law-2002 by Hilaire Barnett.
16 G820
' De I’Esprit des lois, 1748.
15 @Hle, 1967, pp84-85.
' Jennings, 1959b, appendix I.
2 Commentaries on the Laws of England(1765-69), Vol 1.
2.2 SCHOLARS TAKE ON SEPARATION OF POWERS
Different scholars have had they take or say on one of the most debated topics around the world,
separation of powers. Men of class such gfjAristotle, Montesquieu and Dicey were among the
first to pen they views on the importance of separation of powers and the need for government to
be separated. Below are the views or takes of different scholars on separation of powers:
45
1. ARISTOTLE
Turning from the ethics treatises to their sequel, the politics, the reader is brought down
to earth. “Man is a political animal,” Aristotle observes; human beings are creatures of
flesh and blood, rubbing shoulders with each other in cities and communities?'.

The Aristotle (384-322) in his book “The Politics™ stated that: there are there elements
in each constitution in respect of which every serious lawgiver must look for what is
advantageous to it; of these are well arranged, the constitution is bound to be well
arranged, and the differences in constitutions are bound**.
42
The 5n of the Politics, Aristotle says, is to investigate,on the basis of the constitution
collected, what makes for good and bad government and to identify the factors favorable
or unfavorable to the preservation of a constitution. Aristotle asserts that all communities
aimgg)some good.”*
On of Aristotle’s many interests was government. He studied how people in all times and
places known to him were ruled. Towards the end of his years at Lyceum, Aristotle
lectured and wrote a number of essays on governmengf¥aken together, these essays make
up a book that today we know as Aristotle’s Politics. The term constitution had a
different meaning to Aristotle gzn it does to us today. He envisioned a constitution that
was organized document with all the customs, rules and laws about how a city —state
should be ggzgrned. These were sometimes written and at times not but there were still
understood. According to Aristotle, citizens, were “all who share in civic life of ruling
and being ruled in turn.”

2. ?AONTESQUIEU
The term tripartite system is commonly ascribed to French Enlightenment political
philosopher Baron de Nfhtesquieu, although he did not use such a term but referred to
distribution of powers. The origin of checks and balances, like separation of powers
itself, is specifically created to Montesquieu in Enlightenment (in the spirit of the laws,
1748) 2* Under this influence was implemented in 1787 in the Constitution of the United
States.

2! Article on political theory of Aristotle.

2 The politics, by Aristotle
¥ The politics, by Aristotle.
24 The spirit of the law,by Montesquieu.
 Montesquieu described the various forms of distribution of political of power among a
legislature, an executive, and a judiciary. Montesquieu’s approach was to present and
defend a form of government whose powers were not excessively centralized in a single
monarch or similar ruler (a form known then as aristocracy).
EY
The doctrine of separation of powers emerged as a distinct doctrine in his famous book
the spirit of laws. The main principles of separation of powers as stated by Montesquieu
are as follows:>
> He wrote that in every state there are three kinds of power legislative, executive and
judiciary. He laid his views that England, the liberty of people was preserved by
institutional arrangements such as Kings, Parliament and Law Courtsin.
» Power should be divided between different branches of government
> Each organ shall be separate and distinct and shall exercise its power within its own
sphere( separation of powers)
Each branch should have some authority over the other branches to check the cases
v

of abusgf power( check and balances system)

One of his clearest expression of demand for a separation of functions. It has been
remarked that Montesquieu’s observations on the English constitution were inaccurate at
the time, representing more a description of an idealized state than reality.* He really
fought for a more pure and organized government with a pure checks and balances and
mostly the need for the three arms of government to be all independent and operate
freely.

3. F.WgMAITLAND
The Constitutional historian, F.W. Maitland, traces the doctrine of separation of powers
in England to the reign of Edward I, when he posited that: “In Edwards’s day all becomes
definite, there is the parliament of the three estates, there is the King’s crown, and there
are the well-known courts of law”. »/

4. VISCOUNT HENRY
He similarly advanced the doctrine of separation of powers. He was concerned with the
necessary balances of powers within a constitution, arguing that the protection of liberty
and security within the state depended uponffghieving and maintaining some equilibrium
with the crown, parliament and the people. He observed that “since this division of
powers and these different privileges constitute and maintain our government, it follows

25 Separation of powers , Article

2 Vile, 1967, pp 84-85.
27 Atticle by Afe Babalola
 that the confusion of them tends to destroy it. The proposition is, therefore, true; that in a
constitution like ours, the safety of the whole depends on the balances of the parts.”"

& LAW GOVERNING SEPARATION OF POWERS

Separation of powers is a doctrine of Constitutional law under which the three branches of
government (executive, legislative, and judicial) are kept separate. This is also known as the
system of checks and balances, because each branch is given certain powers so as to check and
balance the other branches. Each branch has separate powers, and generally each branch is not
allowed to exercise the powers of the other branches.

The Legislative Branch exercises congressional powers, the Executive Branch exercises
executive powers, and the Judicial Branch exercises judicial review. 2 @
24
The separation of powers constitutes one of the most important principles of contemporary
liberal democracy and the rule of law. It requires the allocation of government authority to
separate institutions consisting of , at least in principle, separate individuals. Each institution may
then serve as a check on the actions of the other institutions. However, the meaning of this
principle is ambiguous and, as a result of various theoretical and dogmatic approaches,
may be
understood in various ways. It must also be noted that the idea of the independence the
branch’s.
84
The Constitution is the supreme law of the land. Our safety, our liberty, depends on us
preserving lhe%\slilulion of the land just like our four fathers did.

In Zambia the prigggiple of separation of powers derives from the Constitution, according to the
Constitution, the main organs of the States are the Executive,
the Legislature and the Judiciary.
Chapters IV, V and VI regulates the duties and powers of each organ. *'

As defined in the Preamble, Zambia is a sovereign democratic Republic.’ Article I states that
the sovereignty to the people who shall exercise their sovereignty through the democratic
institutions of the state in ggfgordance with the constitution. Zambia adopts the principle of
separation of powers. The legislative, executive and judicial organs are the main organs of the
state. The execu(ivem belongs to the President as he/she is the head of the government. He
exercises this power ly or through officers subordingg to him as stipulated in Article 333
Chapter V sets forth provisions regarding the legislature. Article 62 states that the legislative
power of the Republic of Zambia shall vest in parliament which consists the president and
National Assembly. Chapter VI provides for the judiciary and states that the judiciary power is

% Article by Afe Babalola

* Cornell Law Review Article.
% Oxford constitutional law, separation of powers by Piotr Mikuli.
*! The Zambian Constitution.
32 The Zambian Constitution.
¥ The Zambian Constitution.
vested to the independent courts.* The main bodies of the judiciary are the Supreme Court of
Zambia, the High court of Zambia, the Industrial Relations court, the Subordinate courts, the
Local courts. Further the Constitution other institutions of the stiggre regulated and these
institutions are mainly the local administrative governments, the office of the auditor General,
the armed forces, the police and the security intelligence services.

2.3.1 THE THREE ORGANS OF THE STATE;

1. THE EXECUTIVE
The executive is the branch of government that is responsible for the daily administration of
enforcing the laws, formulating and implementing policies in the country. The executive branch
is headed by the Republican President, and includes the Cabinet, Government line ministries and
public service departments.

The executive is in charge of enforcing the law ma@gby parliament through the various law
enforcement agencies. Formulates and implements government policiesghd programs through
various line ministers and other spending agencies. It also provides for services such as health,
education and state security. It further carries out delegated legislative functions such as issuing
of statutory instrument.
2. THE LEGISLATURE
The legislative arm of government is one that is in charge of making laws, amends, repeals and
providing other oversight roles such as scrutinizing government programs and approving
government financial estimates (budget). The legislative power of the Republic of Zambia is held
by the National Assembly which consists of 156 directly elected members and not more than
eight members nominated by the president. It is headed by the speaker.

Some of the functions of the legislature is making laws, scrutinize government policies, looking
closely at the actions of the executive and checking its powers so that the government is
responsible and accountable.
One important thing to Note is that, the National Assembly has the power to impeach the
president and vice president for violating the Constitution or for gross misconduct.

3. THE JUDICIARY
The judiciary is the arm of government that is responsiblegfor interpreting the laws made the
legislature. It has powers vested to it by the Constitution to adjugate over legal matters and
decide on legal disputes through courts. This arm of government is headed by the Chief Justice.

# The Zambian Constitution.

The judiciary interprets the laws of Zambia and deals with legal disputes. It also adjudicates over
leg**al matters.
All members of the judiciary are expected to be independent and impartial. They should carry
out all their functions in accordance with the law.**

2.4 PRINCIPLES OF CONSTITUTIONAL SUPREMACY

One cannot talk about constitutional supremacy without citing the Miller case. R (Miller) v
Secretary of Statgfor exiting the European Union®” is one of the famous cases in
constitutional law which ruled that the British Government (the executive) may not initiate
withdrawal from the European Union by formal notification to the council of the European
Union as prescribed by Article 50 of the Treaty on European Union without an Act of
Parliament, giving the government parliaments perfgission to do so. The Supreme Court ruled
that this was unlawful and was null and void. This case was seen as having constitutional
significance in deciding the scope of the royal prerogative in foreign affairs. The court also ruled
that devolved legislatures in Scotland, wales and Northern Ireland have no legal right to veto the
act.®
The constitutional supremacy is a principle which states that the provisions of the Constitution
are superior to any other law of the land. It states further that if any other law is inconsistent with
the constitution, such contravening section or law will be null and void.

This principle requires both citizens and governments to be subject to known and standing laws.
The supremacy of the law also requires generality in the law. This principle is a further
development of the principle of equality before the law.

The Constitution of Zambia makes provision for constitutional supremacy. Article 1(3)
specifically states 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 inconsistency, be
void,™
This principle makes sure thagjthe law is followed and interpreted correctly and also make sure
that no one is above the law. In the recent case of Chishimba Kambwili v Attorney General,
2019/CC/009, it shows or demonstrates lack appreciation of supremacy of the constitution and
how the speaker made a judgment outside his constitutional powers.
10
The duty of the cq¥ is merely to interpret the law as it exists on the statute books, what this
means is that it is section 24(c) and 27 of the Penal Code which are in direct conflict, and
contravention of the provisions of the Supreme Law, namely article 15 of the Constitution. In

Miller v secretary of state for exiting the European union

% @he electoral commiss of Zambia, arms of government.
3 er v secretary of state for exiting the European country.
* Wikipedia
¥ The Zambian constitution
the case of Thongpy Mumba v The People(1984) ZR 38( HC judgment HNR/438/1984)
which was a case referred to the High Court by Subordinate Courts for determination , applicant
was being tried in the lower courts for an offence under the Corrupt practices Act. Under section
53(1) of the Act, it was a requirement that if the accused elected to say something in defense, he
had to say it on oath only. This clearly excluded the option to make an unsworn statement. The
defence submitted that the provisions of section 53(1) of the Act contravened article 20(7) of the
Constitution. The court held in that case an accused person in a criminal trial cannont be
compelled to give evidence on oath if he elects an unsworn statement. Consequently , the court
declared that the said section 53(1) of the Corrupt Practices Act was unconstitutional and
therefore null and void and that it should be severed from the Act. ** The other case which we
can refer to is Banda v The People (2002) AHRLR 260 which the appellant was convicted of
murder to gFjtion 200 of the Penal Code, subject to corporal punishment which the Constitution
of Zambia states that no person should be subjected to corporal punishment or inhuman
treatment®!.

6 CONCLUSION
It is important to ensure that a constitution has legal supremacy: if a government passed a law
that violated the constitution or was not in line with or conflicted with a constitutional provision.
Such laws could be challenged in a court of law and could be overturned on the ground that it is
unconstitutional.

40 Thomas Mumba v the People (1984), ZR 38.

41 Banda v the people 2002
 CHAPTER THREE
RESEARCH METHODOLOGY
3.0 INTRODUCTION
This chagpr will look at the way the research questions will be resolved. There are different
research methods used in this research, hence a comprehensive list of methods is used for data
collection and its analysis as stated below.

3.1 RESRCH APPROACH AND PHILOSOPHY

Usually, two types of research methodology were used in combination by the researcher, these
include the Quantitative Research Methodology and Qualitative Research Methodology. Such
combination was used in order to best analyze the topic at hand or research question “a Zambian
perEclive on separation of powers™.

32 QUALITATIVE RESEARCH METHODOLOGY

Qualitative research is the process of collecting, analyzing, and interpreting non-numerical data,
such as language. Qualitative research can be used gunderstand how an individual subjectively
perceives and gives meaning to their social reality. There are different types of qualitative
research which are phenomenological model, the ethnographic model, grounded theory, case
studyahiston'cal model and the narrative.

This relies on data obtained by the researcher from first-hand observation, interviews,
questionnaires (on which participants writes descriptively), focus groups, participant-
observation, recordings made in natural settings, documents, and artifacts.
33
3.3 QUANTITATIVE RESEARCH METHODOLOGY
Quantitative research is defined as a systematic investigation of phenomena by gathering
quantifiable data and ggrforming statistical, mathematical, or computational techniques. This
deals with collecting information from existing and potential customers using sampling methods
and sending out online surveys, online polls, questionnaires, etc. the results of which can be
depicted in the form of numerical.

Example of quantitative research is the survey conducted to undergyyl the amount of time a
doctor takes to tend to a patient when one is taken to the hospital. Quantitative research
templates are objective, elaborate, and many times even investigational .

3.4 RESEARCH DESIGN

The research design refers to the overall strategy that you choose to integrate the different
components of the study on a coherent and logical way, thereby, ensuring you will effectively
address the research problem: it constitutes the blueprint for the collection, measurement and
analysis data.

3.5 RESEARCH STRATEGY

This provides the overall direction of the research including the process by which the research is
conducted. Case study, experiment, survey, action research, grounded theory and ethnography
are exagles for such research strategies.
This is the nuts and bolts of your application, describing the rational for your research and the
experiments you will do to accomplish your desired goals.

3.6 RESEARCH CHOICE

By definition, sociology refers to the systematic study of human behavior and society. In line
with this, the most important methodological choices researchers makes is based on the distinct
between qualitative and quantitative data.

3.7 SOURCES OF DATA

Date collection techniques, there are principal and subordinate sources of data, respectively:

a. Principal data obtained in the field.

b. Subordinate data is data that is already in existence such as published materials.

3.8 SAMPLING FRAME

A sampling frame is a list or other device used to define a researchers population of interest. The
sampling frame defines a set of elements from which researcher can select a sample of the target
population.
3.9 SAMPLE SIZE
Sample size measures the number of individual samples measured or observations used in a
survey or experiment.

This study took 40% of the sampling frame. This means that the total number of samples were
40. This was well represented covering all areas.

3.10 SAMPLING TECHNIQUES

This study was both qualitative and quantitative in nature, which involves all the techniques and
critically analyzing the information.

3.11 ETHICAL CONSIDERATION

 25
Saunders et.al (2009), defines ethics as the %ropriawness of your behavior in relation to the
rights of those who become the subject of your work or are affected by it. Research ethics
therefore relates to questions about how we formulate and clarify our research topic, design our
research and gain access, collect data, process and store our data, analyse data and write up our
research findings in a moral and responsible way. This means that you have to ensure the way
you design your research is both methodologically sound, confidentiality, data protection.

3.12 LIMITATION OF STUDY

The limitation of the study are those characteristics of design or methodology that impacted or
influenced the interpretation of the findings from your research.

a. TIME

Time proved to be a constraining factor in attaining the most positive rewards from this study.

b. FINANCIAL CONSTRAINTS

The cost of research was limiting factor as it was not enabling to capture respondents. Academic
research has proven to be costly cause all the expenses are beard or covered by the researcher
without any form of sponsorship or the university. It also played as a limiting factor in this study.
 CHAPTER FOUR
DATA ANALYSIS AND IMPLEMENTATION

4.0 INTROD TON

'ODUCTIO!
The aim , as the Constitution of Zambia has done, is to separate the functions of the three
branches of government-the executive, the legislature and the judiciary-so that no single branch
is able to operate alone, assume comgggg state control and amass centralized power*2. Most
questions that has been asked are the three arms of government really independent? Does
fipamu'on of powers really exist in Zambia or it’s just a myth?

Zambia operates on the principle of Constitutional Supremacy and such all the three organs of
government are subject to the Constitution. To this end, the three organs of government are
expected to provide checks and balances on each other in the exercise of their Constitutional
powers. **
In order for us to illustrate if there is really separation of powers {gpong the three arms it is
necessary first to look at the division of powers that each have as providedgyithin the text of the
Zambian Constitution, and also look at how the three arms of government provide checks on
each other with the view of attaining a balance of power and upholding the rule of law.

4.1 THE LEGISLATURE

1
The legislature, which is the law maker as it is empowered to enact laws and make alterations to
the Constitution subject to the Constitution, is comprised of the National Assembly and the
President who make up parliament*. The legislature, through the committees monitor the

2 gikipedia
4 A balance of power, by Mrs Doris Katai Katebe Mwinga. Clerk of the national assembly of
Z{Fia
“ Article 62 of the Constitution of the Republic of Zambia
performance of government such as the Public Committee which ensures that the allocated
res(.uurces are used for the intended purpose.
1
In checking the executive, the National Assembly is empowered to impeach the President in
instances where he violates the Constitution or for gross misconduct. This illustrates that
Parliament ensures that the President acts within the scope of his constitutional authority,
upholding the rule of law and constitutionalism as he is not exempt from governing in
accordance with the law even though he has immense powers as the Head of State. The National
EmBsembly also ratifies appointments made by the President such as those High Court Judges,
Secretary to the Cabinet, Attorney General, Solicitor General and the Director of Public
Prosecutions. “Ratification by the National Assembly is meant to ensure that these appointments
are based by merits and not the ability by the president to manipulate these offers and use their
positions to advance his own interests.

The South African constitution IgfEone a step further with regard to the power of the parliament
to ensure that the executive acts withiggge confines of the authority conferred on it by the
constitution. The president has to act in agfprdance with the law and ensure that he carries out
the will of the people. If he does not, the National Ass@gbly which is the representative of the
people will recall him from office. This isgggcause the members of the National Assembly are
empowered to change the government by passing a vote of no confiderggin the president and, or
the Cabinet if it feels that the executive is not functioning satisfactory. If the National Assembly,
by a vote supported by a majority of its members, passes a motion of no confidence in the
Cabinet excluding the president, the president must reconstitute the Cabinet and if it is a vote of
no confidence in the president, the president and the other members of the Cabinet and any
Deputy Ministers must resign*.
Thabo Mbeki, South Africa’s former president was forced to resign from the presidency after
losing a power struggle with his rival and current president Jacob Zuma in the African National
Congress Party (ANC). He signed following the ruling ANC’s request that he do so due to his
alleged abuse of power in trying to quash his rival tgEgpterfering in Jacob Zuma’s legal
prosecution for corruption. Althggzgh it was not the National Assembly that passed a vote of
confidence, his party members, some of whom are members of the National Assembly reflected
in their voting that he had lost support and was therefore not fit to be president.
The result was
that Kg: a Mothlante had to finish off the remaining seven months of his second term.

Zambia was in the process of adopting a new constitution, which Draft Constitution was not
enacted having failed to master the majority of support in Parliament by 15" April,2011. 1t
would have explicitly egggowered the National Assembly to scrutinize and oversee actions of the
executive, aggjove and increase or decrease in the number of ministers and deputy ministers,
approve the establishment or dissolution of government ministries as provided under the
Constitutiongfpprove international treaties and agreements before they are ratified or acceded to,
approve the emoluments of the President as well as other officers specified under the

4 Article 37, 53, SEBISS., 56, 95 of the Constitution of Zambia.

4 Section 89, 109 of the Constitution of the Republic of South Africa
Constitution and approve or ratify states of public emergency or threatened states of emergency
as well the measures to be undertaken during these periods."” The result therefore would have
been that only genuine states of emergency would be declared and the President would not be
able to do as he wishes as the approval of Parliament would be required.

The authority of the legislature to carry out all these functions ordinarily put it in a position
where it is able to ensure that the executive does not abuse its authority or act to the detriment of
the Zambian citizens. Furthermore, the ability of the National Assembly to scrutinize acts of the
executive puts it in a position where it ensures that the government of the day effectively carries
out its mandate and that it does so in accordance with the law.
Parliament basically has the power to ensure that in carrying out their functions, the other
branches act within the scope of their authority and do not violate the law. This extends to the
power of the Parliament to pass laws with retrospeffjve affect which in essence makes earlier
judicial decisions irrelevant and unenforceable. In d@éhg so, Parliament is able to cure anomalies
in the event of the judiciary having made a decision baggd on political opinion or interference by
the Executive as opposed to a decision based on merit. It is therefore possible for parliament to
pass retrospective legislation overturning a jggial decision as was in the case in Burmah Oil
Co. Ltd v Advocate (1965) AC 75. ““When pagament simply by-passed a court decision to
enacting new legislation. This case is about the destruction of oil fields in Burma by British
forces during the Second World War. The sabotage was committed in order to prevent the
plantations from falling into the hands of the advancing Japanese arm. The House of Lords held,
by majoriggthat although the damage was lawful, it was the equivalent of requisitioning the
property. This was done for the good of the people or public as to prevent abuse of power and the
proprietor should be compensated from public funds. The findings of the case was that Burmah
Oil Company eggitled to receive compensation for their misconduct of destroying the plantations.
However, after the passing of an Act of Parliament with retrospective effect, the war Damage
Act 1965, which exempts the Crown from liability in respect of destruction of property caused
by the Acts lawfully done by the Crown during or in contemplation of the outbreak of law in
which it is engaged.
Additionally, in the case of Ujagar Prints v Union of India*® that a competent legislature can
always validate a law which has been declared invalid by the courts provided the infirmities and
vitiating factors noticed in the declaratory judgment are moved or cured. Such validating law can
also be made retrospective. If, in the light of such validating and curative exercise made by the
legislature, granting legislative competence, the earlier judgments becomes irrelevant and
unenforceable, that cannot be called an impermissible legislative overruling of the judicial
decision. All that the legislature does is to usher in a valid law with retrospective effect in the
light of which the earlier judgment becomes irrelevant.

47 Article 142 of the Draft Constitution of the Republic of Zambia

8 (1965)AC 75.
4(1989) 179 ITR 317
@iven such powers to the Zambian legislature, there may be a lot of problems because the
legislature is compromised by the fact that ministers are appointed from Members of Parliament
and the Executive therefore has a lot of influence in the enactment of legislation. One of the
arms of government may take advantage of this power and ensure thatgyhenever they are not
happy with the other arm of government for example the Executive is not happy with the Judicial
decision which they cannot appeal and secure a victory, legislation is passed so that the decision
of the court is overturned hence becoming irrelevant and unenforceable. Although this is meant
to be a check on the judiciary, it would in effect serve to advance the interests of the Executive to
a great extent in a one party dominant state like Zambia.

In Zambia,
the ability of the legislature to effectivelygheck the Executive is somewhat
compromised because the Constitution provides that ministers shall be appointed from amongst
members of National Assembly.™ The effect of this is that members of the legislature are part of
the executive and as such are given prestigious positions with privileges such as access to cars
and international travel, allowances anggng other things that they want to continue enjoying. As a
result, in carrying out functions, if the majority of members are from gge ruling party as is often
the case, decisions will not be based on merit but on the desire of the ruling party as is often the
case in Zambia, decisions will be based on the desires of the ministers and not on merit in order
to maintain they positions and keep enjoying the privileges which comes with the position but in
such situations you really question the existence of democracy. In a democratic state, democracy
entails that the people choose their leaders and so the majority of Members of Parliament being
from the ruling party is a good thing, however, the caliber of most of these Member of
Parliament who are only interested in furthering their interests and not effectively carrying out
ir functions is what compromises the competence of parliament.

Article 33 of the Constitution of Zambia®'. Gives the president powers to appoint ministers from
the National Assembly which also enables him or her to appoint even membersg the opposition
parties. By doing so, debates are sometimes based on opportunism. This means that the members
will debate in a way that will please the executive in order to create opportunities for
appointment as ers. This creates a lot of division in the opposition andgggnsequently
undermines the role of the opposition in ensuring that the government rules in accordance with
the rule of law and implements the wishes of the electorates.
Mostly, cabinet will do things to please the President because once you seem to be in the
president’s bad books their fear removal from office as minister. We have had instances were a
minister will seem to speaker out in the past and have the mind of their own, a clear illustration is
was the removal of Mike Mulongoti, the then Minister of works and supply who seemed hard to
control due to his independent mind and it showed that only people with minds that can be
controlled maintain their positions or people who do things to please the president’. Another
illustration would be Harry Kalabe, the then Minister of foreign affairs in Zambia who resigned
from his position because of his strong mind and not been allowed to be controlled and stay quiet

30 Article 46(2) Of the Constitution of Zambia.

3! Article 33, of the Zambia constitution.
32 The post newspaper, 19" February 2011
when things are not okay. As a result, more often than not, appointments are not meritorious but
are based on how loyal people are to the president and hence mediocre men are left to run the
country. What we often see is the failure of those people to properly advise the President for fear
of losing their jobs.

Despite the changes of Constitutions, one thing that most of them keep having or not changing is
the position of the appointment of ministers from Parliament in order to ensure a credible,
independent and g@npetent parliament. Making references to past constitutions Article 130(1) 3
provides that the president shall appoint not more than twenty-one persons as ministers of the
National Assembly may approve, from amongst gEjmbers of National Assembly. This was
clearly in conflict with the proposed Article 147(|ggpf the Mung’omba Draft Constitution which
provides that the President appoints as ministers, persons who are qualified to be elected as
members of the National Assembly but are not members of the Assembly. **

One of the things that Zambia keeps facing is the interference of the three arms of government.
This hds denied Zambia the opportunity to achigge a parliament that is effective in carrying out
tive functions as well as doing proper checks and balances on the executive and
judiciary because the executive is still able to ensure that the outcome of any debate and
legislation passed is in their favor. Mostly people who are elected into office by the electorates
tend to forget the people that simput them there and just do things that please them. This has
resulted in Zambia not developing much and seeing the increase of poverty levels high, a
situation that needs to be rectified fast.
Looking back at some factors that compromise the ability of the legislature to effectively check
the executive is that voting is sometimes based on party lines and not individual opinion. For
example during the debates of the Pgilic Order Act and the Broadcasting Act, the secretary
general of the then opposition party United Party for National Development (UPND) warned that
any UPND members of parliament who supported a Bill that the oppo@#in had decided to reject
would be disciplined.® Similarly, threats of losing gratuity by the late President Levy
Mwanawasa to Movement for Multi-Party Democracy(MMD) Members of Parliament over their
reluctance to support the Local Government Bill which sought to extend the term of councilors
to five years showed that the principle of separation of powers is not effectively upheld as there
anipulation or interference in the functions of the legislature by the executive. The
atened MMD members of parliament all voted in favour of the Bill hence not exercising their
conscience in doing so but only making decision that was imposed on them*®. This clearly
showed then which still happens now that the president has so much power that he uses to
intimidate and manipulate the people’s representatives.
1
It has been seen for the past years that the Constitution has been violated by the legislature. It has
however been checked in order to keep it within the confines of its authority and balance the

3 Arti@130(1)
3 The Draft Constitution proposed by the Wila Mung’omba Constitution Review Commission.
33 The monitor, 8-11 February 2002
3 Times of Zambia, 6™ August 2004
1
’owers of the three organs of government. In the case of Mmembe and Others v The National
Assembly*’ parliament decided to exercise judicial power in adjudicating and imposing an
infinite prison sentence on journalists that were perceived to have violated its privileges. The
journalists wrote a contemptuous article about the conduct of the members of the National
Assembly. The National Assemigly then decided to impose an indefinite prison sentence on them
and the High court held that the National Assembly had no powers of adjudication under the
Constitution as such powers are Constitutionally lodged in the judiciary.

4.1.1 CONCLUSION
This arm of government as stipulated in the Constitution is to enact and make laws. It is suppose,
to function in a way that enpEgs that the executive carries out its functions correctly. It also
participates in ensuring the independence of the judiciary through the ratification of judicial
appointments. However, the legislatures check on the executive is not as effective as it should be
because ministers who are part of the executive are selected from the National Assembly. As a
result, these people exercise some form of restraint in checking that the executive has acted
within the scope of its authority in order to safeguard their positions and the privilages that come
with them.

4.0THE JUDICIAL ARM OF GOVERNMENT

fl JUDICIAL INDEPENDENCE
40
In the modern democratic or constitutional state, the principle of an independent judiciary has its
origins in the theory of separation of powers whereby the executive, legislature and judiciary
form three separate branches of government which in particular constitutes a system of mutual
i cks and balances aimed at preventing the abuse of power. This entails that there is no
int@grence with the work of judiciary. It essentially means two things, firstly, there should be
no interference with the work of the judiciary by the other organs and secondly, judges should
have a secure tenure of office and not be dismissed easily.
15
The independence of the judiciary entails independence of the individual judges and the
institution as whole. Despite the need for the judiciary to exercise its responsibility without being
influenced by the executive, legislature or other institutions, it is subject to various pressure that
may compromise its ability to do so. There are therefore a number of appointment of judges,

793/HP/147
tenure of th@fydicial office, remuneration and the manner in which the judges may be disciplined
or removed play an important role in ascertaining how the judiciary is.
It is only an independent judiciary that is able to dispense justice impartially, basing its decisions
on the law everggghen it takes into account the need to balance the expectations of society and the
law as it is. An independent judiciary plays an important role in ensuring that the rights and
freedonfgg@f individuals are protected foe the judiciary to efficiently fulfill its role in society, the
general public must have full confidence in its ability to carry out its functions in an independent
and impartial manner. When the public loses its confidence in the judiciary, it will not be able
fully perform its role @ will not be seen to do so by the people. An independent and impartial
(diciary upholds the entire structure of a free and democratic constitutional order. Therefore,
unless judges and prosecutors and lawyers inclusive, are able to exercise their professional duties
freely, independently and impartially, and unless the executive and legislature are likewise
always prepared to ensure their independence, rule of law will certainly be eroded and with it,
effective protection of the rights of the individual.

In the Canadian case of Valiente v The Queegg§ The Supreme Court discussed the notion of
judicial independence and impartiality. It was stated that judicial independence connotes not only
a state of mind but also a status or relationship to others, particularly to exeggtive branch of
government that rests on objective conditions or guarantees. By contrast, it described the concept
of judicial impartiality as referring to a stgggof mind or attitude of the tribunal in relation to the
issues and the parties in a particular case. Impartiality implies that judges must not harbor
perceptions about the matter put before them and they must not act in ways that promote the
interests of one of the parties while putting the other at a serious disadvantage.

Every country takes into account certainggnsiderations in selecting a person for appointment of
judicial office. Although this may differ fr@n country to country, Principle 10 of the Basic
Principles of judicial independence which are neutral with regard to the appointment of judges
and hence ensure no bias®
Executive been with the power to appoint judges may pose a threat to the independence of the
judiciary in addition to lack of security of tenure especially in situations where judges are
employed on tempgEyry contracts or where they are easily dismissed. According to principle 7,
the judiciary must be provided with adequate resources to enable it perform its functions

% Human Rights in the Administrative of justice: A Manual on Human rights for judges,
prosecutors and lawyers. Chapter 4: independence and impartiality of judges, prosecutors and
LafiEfrs. Page 117.
* EB8S) 2 S.C.R 673
% Basic principles on the independence of the judiciary adopted by the Seventh United Congress
on the prevention of crime and the treatment of offenders held at Milan from 26" August to 6"
September 1985 and endorsed by the General Assembly resolution 40/32 of 29" November 1985
and 40/146of 13" December 1985.
properly. In addition, principle 7%'provides that the term of office of judges, their independence,
security, adequate remuneration, and conditions of service, pensions and the age of retirement
shall be adequately secured by law. Failure to ensure this will not only render the judiciary to
perform but may also render it amenable to undue pressure and corruption.

{E@hermore, prevailing circumstances in a particular situation may also determine the

independence of the judiciary. For instance, a judge may be influenceggy the sentiments of the
general public when deciding a case that involves rape. However, the judiciary has both the right
and duty g ensure fair court proceedings and issue reasoned decisions. Public criticism of the
{gliciary by either the executive or legislature that is aimed at intimidating judicial officers or
arbitrary detentions and direct threats to their lives, including killings and detentions by either
the state or the individuals involved may also undermine the judiciary independence* In
ensuring judicial independence, principle I requires all institutions to abide by thgdgment
rendered by the courts even when they do not agree with them.®* This is because such respect
for judigigyauthority is essential for the maintenance of the rule of law and constitutionalism as
well as respect for human rights.

9
In ensuring that the judiciary is really independent, it =usl be able to handle its own
administration and matters that concern its operations in general. This includes the assignment of
cases to judges within the Court to which they belong as this, according to principle 14 of the
Basic Principles of judiffal independence, is an internal matter of judicial administration.** This
ensures that there is no inappropriate or unwarranted interference with the judiciary.

4.2 THE ZAMBIAN JUDICIARY

The Constitution of Zambia provides for an independent and impartial judiciary that is subject
only to the constitution and the law and which provides to conduct itself in accordance with the
code of conduct promulgated by parliament. f#e judiciary consists of the Constitutional Court of
Zambia, the Supreme Courts of Zambia, igh Courts of Zambia and other courts as may be
prescribed by an Act of Parliament.”® The ftdiciary is an autonomous institution and hence it is
not subject to any direction from any other institution or individual. The other organs should
therefore ensure that they do not interfere with the functions of the judiciary in carrying out their
functions.

“! Basic principles on the independence of the judiciary.

2 Human Rights in th@JAdministration of justice.
% Basic principles on the independence of the judiciary.
¢ @ man Rights in the Administration of justice.
% Article 91 of the Constitution of the Republic of Zambia.
 1
The Supreme Court is the final court of appeal which only acts as the court of first instance in the
e of a Presidential election petition. The High Court on the other hand has, except in matters
in which the Industrial Relations Courts has exclusive jurisdiction under the industrial and labour
relations Act, unlimited and ofginal jurisdiction to hear and determine any civil and criminal
proceedings under any law * In the case of Zambia National Holdings and United National
Independence Party v TEgJAttorney General,” the jurisdiction of the High Court was
affirmed. It was held that no cause is beyond the competence and authority of the High Courts:
no restriction applies as to type of cause and other matters as would apply to lesser courts.
However, the High Court is not exempt from adjudicating in accordance with the law including
complying with procedural requirements as well as substantive limitations such as those ones
found mandatory sentences or other specification of available penalties or , in civil matters,
the
types of choices of relief or remedy available to litigants under the various laws or causes of
action.
Ell
As Zambia was undergoing np.rocus of adopting a new constitution which was not fruitful, the
Draft Constitution also had provisions on the threegggeans of state. With regards to the judiciary,
it established as superior courts, the constitutional court, the Supreme Court and other courts.
Back then the only significant developments would have been made had the Constitution been
enacted are the establishmefgggy the Constitutional Court and Courts of Appeal cause back then
there no was court that was dealing with constitutional matters. The constitutional court is the
one that deals with presidential matters.
1
The chief justice, Deputy Chief Justice and judges of the higher courts are appointed by the
president subject to ratification by the National Assembly. For the high court judges, they are,
subject to ratification by the National Assembly appointed by the president on the advice of the
judicial service commission. ® One of the things that the Draft Coggtitution then wanted to
bring out was for the judiciary to be fully independent. This means that until people see the need
to change the position, the president selects the judges of the Supreme Court as the advice of the
judicial service commission is not required. What this meant is that in this one party dominate
state where a party controls the National Assembly, it will endorse the will of the president in
carryifgg out its functions of ratification as the majority of members are from the ruling party.
What this results in is the appointment of judges who may easily be manipulated by the president
hence compromising the independence of the judiciary.

considering the role of the judiciary, it is cardinal to consider its powers and functions. The
first fundamental role of the judiciary is to uphold the Constitution while the second is to provide
a platform where citizens can turn to for protection when their constitutional rights have been
violated.

S
% Article 93(1),
—
94 (1) of the constitution of the Republic of Zambia.
(1994) 5.1 22 @)
% Article 93, 94 of the Constitution of the Republic of Zambia.
In South Africa, the president doesn’t fully have the responsibility to appointiggnt of judges. He
is required to consult certain authorized institutions. Therefore, the president, after consulting the
judicial service commission and the leader of parties represented in the National Assembly,
appoints the president and Deputy President of the Constitutional Court and, after consulting the
judicial services commission, appoints the chief justice and deputy chief justice. The judges in
the various courts are ajgg}inted by the president on the advice of the judicial president service
commission. As for the judges of the constitutional court, the president of the court and the
leaders of the parties present in the National Assembly must also be consulted.*”

Looking at the Zambian situation with regards to tenure of office and remuneration can be
contrasted with that of South Africa. The South African constitution und@gptedly provides for a
situation that will certainly encourage the independence of the judiciary. According to section
176, a constitutional court judge is appointed for a non-renewable term of 12years, nut must
retire at the age of 70. Other judges will hold office untifggjey are discharged from active service
in terms of an Act of Parliament. In addition to this, the salaries, allowances and benefits of
judges may not be reduced. "

The independence of the Zambian judiciary is in a way compromised which has created among
the people reluctance to take poligigpl disputes to courts. This is clearly shown by the behavior of
some political party to file party. In the case of The Attorney General, The Movement for
Multi-Party Democracy v Lewanikai and Four Others! in this case, we see how the supreme
courts acts gave itself power to legislate certain powers that aren’t conferred to it by the
Constitution ghe courts had interfered with the powers belonging to the Executive arm of
govegggent. Article 71(2) (c) provides that, a member of National Assembly shall stop being one
once that person leaves the party which he or she belonged to when the person was gcted.
There is no provision that allows a person who resigns from a political party to still be a member
of parliament as an independent member of parliament. The Supreme Court also added some
words vice vise to the provision.

In checking the executive, the judiciary has some executive actions to judicial review, in the case
of Roy(larke v The Attorney General ”* this case illustrates the application of judicial
review against the decision of the Minister of Home Affairs to deport the applicants pursuant to
section 26(2) of the Immigration and deportation Act. The decision to deport the applicant was as
aresult of an Article that was published in the Post Newspaper on the 1* of January 2004. It was
held the decision to deport the applicants was a clear violation of the Constitution and was null
and void. The appeal made to this was dismissed.

—@
% Section 173, 174 of the Constitution of the Republic of South Africa.
" The constitution of South Africa
71(1994)S.J 2(S C)
722004/HP/003
The other case that illustrates that the executive actions are subject to judicial review is
Mwamba and Mbuzi v The Attorney General 73 the appellants challenged the appointments of
some ministers, was this done in a constitutional way or not. Even though this case was
dismissed it really shows that the judiciary does do checks on the executive and acts within its
authority. @
12
Similarly, legislation is reviewable as it was in the case of Christen Mulundika and 7 others v
The Atggrney General™ An arrest was issued to the appellants because of the violation of
Article 5(4) of the Public Order Act which states that any person holding a public meeting nffEg)
obtain a permit. Even though this wasn’t in lif§ with the constitution which violated Article 20
and 21 of the constitution which provides for freedom of expression and freedom of assembly
and association respectively, and therefore was null and void. This clearly shows that the
judiciary arigpzf government or the courts really check up on the legislation and making sure
they adhere to the rule of law and uphold constitutionalism. The executive is also checked to
make sure that they don’t interfere with the legislative works and work according to their powers
as stated in the constitution.

4.2.1 CONCLUSION
Judicial independence is something that Zambia needs and must be working towards, in some
areas or to a certain extent judicial independence has been attained. It’s a principle used by the
courts to exercise public functions. With the introduction of some new courts we shall see an
effectiveness in the handling of some cases and with the introduction of the Constitutional courts
now all presidential matters will be handled there and according to the constitution.

4.3 THE EXECUTIVE ARM OF GOVERNMENT

The Executive powers are given directly to this arm of government by the constitution and are
exercised by the president because all powers agg vested to him or her who is elected in office by
the Zambian people and has to be in power for five years and are now limited to two terms.
Prior to the 2016 Constitutional Amendment the Zambian vice-president was appointed by the
president, but the current 2016 amendment puts the vice-president on the same electoral ticket as
the president (Article 110 Sec 2, 3 and 4) and in the event of a vacancy of an elected president
the Vice President is the immediate successor to the president and remains President until the
next general election (Article 106 Sec 5(a) and Sec 6).”This is in contrast to the 1996
constitution that required a by-election within 90 days of an elected president's vacancy with the
Vice President acting as an interim (as was the case with former Acting-President Guy Scott in
October 2014 to January 2015 and former President Rupiah Banda in 2008 after the deaths of
Presidents Sata and Levy Mwanawasa (respectfully).

731993 5CZ
741995,5C2,) 25
7% National Assembly of Zambia. 5™ January 2015.
Once his elected from the National Assembly gfp ceases to been a member of parliament this
relates to the president. The president and his ministers are individually and collectively
responsible to pafi'amen( of which they must be part of. ¢
Due to the much powers the executive has, it is at times violates the principles that constitutes
the framewoiffls of the constitution. An illustration of separation of powers and rule of law was
shown when former Defense Minister, whose elections to the National Assembly was nullified
on the grounds of corruption which was held in the Supreme Court which illustrated the balance
of probability beyond reasonable doubt in the case of Michael Mabenga v Sikota Wina and
Others” was given office to people who don’t have full qualifications. This cases shows the
disobedience of the court when the President was is supposed to uphold the constitution and
enforce the law violated it. The nullification by the Supreme Court to remove him from his
position was a clear indication that he wasn’t fit for that office and as a leader he failed to uphold
his office with integrity.
This clearly shows that the executive at times doesn’t let the judiciary to fully operate freely
because there is so much interference from the executive because some of the decisions made by
the judiciary are at times influenced by the executive.

The dominance of the executive over @her organs arms of government is as a result of the
amount of power vested into it by the Cofgtitution. The executive headed by the Head of State
and government has a lot of powers. The president has always dominated the constitution
process making and approves the process and content by ajfifiinting and approving the
Constitution Commission review. This was clearly shown in the case of Derrick Chitala v The
Attorney General™ The questioning of the constitution by the appellant because it was
believed to have been done in bad faith and unlawful.

We have also seen instances in v@ljich the Executive has interfered in other institutions, it has at
times intdfflered in the functions aimed at ensuring the rule of law and constitutionalism. This
was seen in the case of Mazka and others v Mwanawasa and others™the executive has
interfered with the investigations of the Task Force on corruption.
In most democratic states, the president seems to have a lot of powers and his immunity is one
thing that is impossible to remove especially if his in the ruling party and impeachment of the
president is really hard because most of the Members of Parliament will always side with the
president no matter what.
Although the executive may seem like or appear to be the weakest among the three due to the
ways the judiciary and legislature are able to check up on it , but it’s the most powerful and the
one branch that has the most influence among the three. The dominance of the one party state in
most parliamentary decisions is that the executive will always have more power over the most
decision making and enactments of the laws.

76 Constitution of South Africa, Section 86, 93

772003, 5CZJ 15.
785CZ ), 14 OF 1995.
7(2005) ZR 138
 ]
Government officials serve at the mercy of the President, who has powerto remove them from office
of influence their appointment to any such office.

43.1 CONCLUSION
The executive is the most dominate organ and has some influences in some functions or running
of other organs. It seems to be the least checked among the three and at times act outside its
scope as stipulated in the constitution and as such there is no much balance of separation of
power. To say that the executive is responsible for the National Assembly is like telling them
they are in charge of themselves and when one §Jin charge of their powers or how they operate
who can question them. In South Africa for the parliament to pass a vote of no confidence
ensures that the executive carries out its functions according to the constitution and upholding
the rule of law. Which is something that the Zambian government can adopt or learn from so that
there is a balance of power, however, this might seem a bit impossible in a one party-state
because most of the Members of Parliament are made up of the ruling party.
‘A CHECKS AND BALANCES
1
Checks and balances entails that each arm of government shares in the powers of the others or at
a certain level exercisgpontrol over each other’s actions hence supplementing the doctrine of
separation of powers. Zambia operates on the principle of constitutional supremacy and as such
all three arms of government are o provide checks and balances on each other and operate within
E@authority as constituted for in the constitution. Checks and balances makes the principle of
separation of powers more effective by balancing the powers of each arm of government and
providing proper checks and balances against each organ through a positive check that each
organ s does on the other®".
The origin of checks and balances, like separation of powers itself, is specifically credited to
Montesquieu in the Enlightenment (in The Spirit of the Laws, 1748). Under this influence it
was implemented in 1787 in the Constitution of the United States.

According to the principle of checks and balances, each of the branch of the state should have the
power to limit or check the other two, creating a balance between the three separate powers of
the state. Each branch's efforts to prevent either of the other branches becoming supreme form
part of an eternal conflict, which leaves the people free from government abuse. Immanue Kant
was an advocate of this, noting that "the problem of setting up a state can be solved even by a
nation of devils" so long as they possess an appropriate constitution to pit opposing factions
against each other.*'Checks and balances are designed to maintain the system of separation of
powers keeping each branch in its place. The idea is that it is not enough to separate the powers
and guarantee their independence but the branches need to have the constitutional means to
defend their own legitimate powers from the encroachments of the other branches.® They
guarantee that the branches have the same level of power (co-equal), that is, are balanced, so that
they can limit each other, avoiding the abuse of power. The origin of checks and balances, like

. C. Johari, Principles of Modern Political Science. Page 358

# Kant immanue, 1971. Political writings
# The Avalon project, federalist No 48
separation of powers itself, is specifically credited to Montesqueu in the Enlightenment (in The
Spirit of the Laws, 1748). Under this influence it was implemented in 1787 in the Constitution of
the United States
A clear illustration is that under the American Constitution, there is need senate’s approval with
regards to appointments by the President and making treaties in order to ensure that the, ident
does not abuse his or her powers. Hoever, the fact that vaild appointments can be made with the
advice and consent of senate does not make such appointments the joint responsibility of senate
and the president.®* This still remains the voluntary act of the president which senate, in cjecking
that the president dggggnot abuse his powers can only ratify or reject. The case of Myers v
United States®* in which the Supreme Court held that the consent of senate does not mean that it
makes the appointments clearly states that position.

In sharing judicial powers, the president has the power to pardon people convicted of crimes,
execute decisionsgfjthe courts and appoint judges subject to ratification by senate. With regards
to legislation, the president has power to veto Bills. Congress establishes the size of the federal
Epurts and when necessary impeaches thggjidges from office. The Supreme Court through
judicial review has the power to declare any law that is inconsistence with the Constitution void
to the extent of its inconsistency.

a
4.5 RULE OF LAW AND DEMOCRATIC GOVERNANCE
Rule of Law and Democratic Governance As the “rule of law™ is one of the most important
political and legal conceptions in democratic governance, it is important to begin our
conversation with an examination of the concept: What does “rule of law™ mean? To some, the
rule of law calls for the elimination of wide discretionary authority from government processes.
To others, the rule of law means the existence of formal rules which do not discriminate between
citizens and to still others it means due process of law. The concept assumes the existence of
inalienable rights and liberties which government should not touch or violate. Predominant
among such rights are property rights, the right to free expression, freedom of association,
equality before the law, due process and protection against discrimination. To some extent, the
essence of the rule of law lies in its juxtaposition the “rule of men.” It is comprised of the
following basic principles: that all stgg power ought to be exercised under the authority of laws,
and that there should be rules of law governing the election and appointment of those who make
and execute policy, as well as the manner in which policies are made and executed. It demands,

# 8,0 Nwabueze, presidentialism in commonwealth Africa, page 30

272, U.5 521 (1962)
4
Ena! policies be executed in such a way as to ensure rationality and fairness. The rule of law
connotes the use of state power, through rules of law for the establishment of the economic and
social system agreed upon by the people via constitutionally sanctioned representative
institutions or other acceptable surrogates. It calls for governance in accordance with the
constitution. All power, whether of Parliament, the executive or the courts, must be exercised in
accordance with the constitution, which is the final word on the powers and roles of each branch.
Constitutionalism as an element of the rule of law largely depends on how constitutional
limitations imposed on government are interpreted and enforced. Integral to the rule of law and
constitutionalism is the doctrine of the separation of powers. I will come back to the doctrine of
separation of powers. As Nwabueze has observed: “liberty implies the limitation of power by
law and the one institution above all others essential to the preservation of the rule g law has
always been and still is an honest, able, learned, and independent judiciary”.** The maintenance
of an independent and accountable judiciary is fundamental to constitutionalism and the
protection of human rights. The worldwide emergence of constitutions with wide-ranging and
justiciable Bills of Rights has rekindled public awareness and interest in the role of courts as a
forum through which to seek individual and collective justice and the sustenance of a democratic
culture. In democratic states, courts are asked to review government’s acts for compliance with
the Bill of Rights. An independent body’s review of governmental acts -- in the interests of
maintaining the efficacy of the constitutional guarantee of individual rights -- is an essential and
important mechanism of democratic governance. Moreover, such a review being at the instance
of an individual assures personal participation in government. In the famous case of Marbury v.
Madison, Chief Justice Marshall observed: “It is emphatically the province and the duty of the
judicial department to say what the law is. Those who apply the rule of particular cases must of
necessity expound and interpret the law. A law repugnant to the constitution is void. Courts as
well as other departments are bound by that instrument.” The courts are the guardians of
fundamental rights and provide a forum for public debate so that the exercise of public power by
democratically elected persons remains accountable. Judges’ interpretations of the constitution
and other laws support the rule of law, not executive whims: and judicial review permits courts
to declare as invalid law or conduct that is inconsistent with the constitution. Only an
independent judiciary can effectively review governmental acts and ensure the constitutional
guarantee of human rights. Equally, the executive must support the independence of the
judiciary. About a year after Nelson Mandela became President, the Constitutional Court of
South Africa heard an urgent application (The Executjg Council of Western Cape Legislature
and Others v. President of South Africa and Others)* challenging legislation that purported to
confer powers on the President to legislate, which President Mandela did by way of
proclamations. The proclamations dealt with the vital local government elections that were soon
to be held. An application was brought on the basis that the legislature may not empower the
President to legislate and, to the extent that the President purported to do so, he acted in conflict
with the Constitution. Mr. Mandela was named as one of the respondents. The challenge was
e —
% B.O Nwabuseze, ideas and facts in constitutional making, faculty of law. University of Ibadan.
Spktrum books limited, Ibadan. 1993, p189
%1995, Constitution Court of South Africa. CCT/27/95.
successful. The court held that the provision purporting to empower the President to enact
legislation was inconsistent with the constitution; enacting legislation was a function of
Parliament and not within the President’s powers. The court came to this conclusion
notwithstanding the fact that all political parties had agreed that the President should have the
power to do what he did. In a remarkable display of leadership, the same day of the court’s
decision, Mr. Mandela rushed to the television and radio stations and declared that, while he had
signed the proclamation believing that he had the power to do so, he respected the decision of the
constitutional court and appealed to all concerned to similarly accept the court’s decision. As
George Bizos has lamented: What a pity that many African leaders do not follow this
example®’some would argue that the power vested in the judiciary to set aside the laws made by a
legislature constitutes a subversion of democracy. In response, I would draw upon the words of
the Constitutional Court of South Africa in the Simelane case (IFgmocratic Alliance V. The
President of South Africa and Others, Case No. ICCT, 122/11 (which in turn quoted former
Chief Justice Mahomed’s words to the International Commission of Jurists):

That argument is, I think, based a demonstrable fallacy. The legislature has no mandate to
make a law which transgresses the powers vesting in it in terms of the Constitution. Its mandate
is to make only those laws permitted by the constitution and to defer to the judgment of the court,
any conflict generated by an enactment challenged on constitutional grounds. If it does make
laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the
court on any challenge to such laws, it is in breach of its own mandate. The court has a
constitutional right and duty to say so and it protects the very essence of a constitutional
democracy when it does. A democratic legislature does not have the option to ignore, defy or
subvert the court5%

The same observations are valid for the executive branch. It too lacks a mandate beyond that
which is granted to it by the constitution. The executive can only do what it is authorized by the
constitution to do. The determination of whether an executive action is constitutional is a judicial
matter — in other words, it is a matter constitutionally left to the courts to decide. Executive
actions are, therefore, properly subject to judicial review to determine their compliance with the
constitution. This process of checks and balances among the branches of government supports
the rule of law and democratic governance.

4.6 CONCLUSION
There is need for the three arms of government to operate independently and for not one of them
to interfere with the other much. Separation of powers is something that most Africans countries
fail to uphold because there is so much power vested in one branch of government which in most

8——
# Remarks by George Bizos during the Presenation of a Doctorate, Center for Human Rights,
University of Pretoria, 9 December, 2011.
8 |bid
case is the executive. The executive been headed by the president seems to have more authority
than the others.
In Zambian there is no much adherence to separation of powers because the constitution has
vested so much powers in the president who also happens to be part ogghe National Assembly
and also has the powers to appoint judges, so looking at hggyso much power is given to the
president who heads the executive to what extent can the principle of separation of powers be
adhered to. It would be best if there was a committee that appoints the judges so that they operate
freely and don’t feel like they owe anyone anything for their positions.

@ CHAPTER FIVE
81
CONCLUSIONS AND RECOMMENDATIONS
5.1 INTRODUCTION
This chapter will look at the conclusions and recommendations of each chapter. Conclusion
interprets the findings of the research and answers that statement problem of the research while
recommendations are the researcher’s opinions which come after the conclusion which should be
in line with the research findings.

13
5.1.1 FINDINGS AND CONCLUSION OF CHAPTER TWO
Chapter two of this research deals with literature review, which looks at different takes on what
different scholars had to say or write about separation of powers back then. It dots us back as to
what lead or inspired them to come up with the principle.

A literature review is a comprehensive summary of previous research on a topic.The literature

review surveys scholarly articles, books, and other sources relevant to a particular area of
research. The review should enumerate, describe, summarize, objectively evaluate and clarify
this previous research.

In chapter two we looked at scholars such as Aristotle, Montesquieu and others and what draw
their inspiration to write about separation of powers or in other terms good governance. This
draw from the bad governance that was been experienced back then and how they can make it
better. Courts then didn’t have much power has the president or king then was the one to preside
over most matters which saw a slow move in most judicial issues and no separation of powers
because duties were been done or carried out by the same people.
[100]
Separation of powers is the buildup of checks and balances and also rule of law. Igghost African
countries a common tend is that of vesting so much power in the president which violates the
principle of separation of powers that the scholars back then tried so hard to achieve and bring to
light. Politics plays a major role also in ensuring good governance and a balance of power.

Atrticles, books and posts were written about separation of powers and also how they can be
implemented famous books such as “the politics”, “governance * etc which gave or gives most
governments ways on how to run the country in respective to their constitution and upholding the
rule of law.

5.1.2 FINDINGS AND CONCLUSION OF CHAPTER THREE

(s looks at the type of research that is been used and the approach used when researching,
Research methodology is the specific procedures or techniques used to identify, select, process
and analyze information about the topic. In a research paper, the methodology section allows the
reader to critically evaluate a study's overall validity and reliability. In this research the two types
were used quantitative and qualitative research in achieving the results desired. Different
techniques were used to identify the problem statement and make sure the research is carried out
successfully. When u dealing with quantitative you dealing with the process of collecting and
analyzing numerical data mostly when you dealing with graphics, drawings and tables while
qualitative looks at deals with collecting, processing and analyzing non-numerical data.
This research took both approach as data was collected, in person interviews were conducted and
different books were read and also looked on different website to really collect data and also
make reference to some cases and different articles and papers.

An academic research might look easy but its very time consuming and very costly. It times up
most of one’s time and at times you find that time allocated to it might not be enough because
they is so much to look at, red on and collect. You find that the time you allocate ti it might not
even be enough as you had approximated.

Finances is also another factor that hinders a proper research from being carried out. Research is
very costly and for one to really have a proper research you must really have enough finances so
that you not limited.

5.1.3 CONCLUSION AND FINDINGS OF CHAPTER FOUR

Data collection, this is the chapter that deals with all the information about the research. It
contains all the findings and date you have collected. This is where you do all the interviews,
surveys, questionnaires, documents and records etc.

This thesis looked at separation of powers in Zambia and also looked at other countries that
Zambia cam emulate from. Most of the data used is from books, documented, interviews and
website information on different articles dealing with separation of powers or governance.
Date from before independence has been collected after independence and also recent
happenings. Separation of power isn’t a new cry for most countries or people it has been a
burning issue since some countries gained independence as some were still using or stuck on the
principles used by their slave masters.
il
Zambia has in the past years been able to adhere to the principle of separation of powers in some
situations or instances but there is still a carry for a proper balance of power on the government
because there has been instances where the executive seems to be interfering with the judiciary
or aggimes influence the legislatures decisions on some law making this is easily done because
B president is the head of the executive and is also part of the National Assembly which has
cabinet ministers who are appointed by the president and in such a case you find that there is a
lot of interference by the executive it is more dominate and has a lot of influence over other arms
of government.

There is need for the Zambian government to really uphold the principle of separation of powers
and the supremacy of the constitution so that they don’t violate or go against thr provisions of the
constitution has it has been provision in certain cases just like the recent one that involved
chisimba kambwili were the speaker interfered in the judicial affairs as he had no authority to
pass the jg#gment he did just because his the speaker which was unconstitutional and a clear
violation of separation of power and also abuse of power was seen here.

5.1.4 CONCLUSION AND FINDINGS OF CHAPTER FIVE

This chapter most looks at the researcher’s findings and recommendations. It gives a brief
summary on the different chapters of this research and also the researcher gives their opinion on

the way forward or tries and offers solutions on the topic been researched on and possible
applications.

5.1.5 CONCLUSION

In conclusion, each chapter as shown plays a very important role in making sure that the research
is effectively carried and each step is followed. Separation of powers isn’t just a cry for
Zambians or African coumry‘fll also the world at large. And we have seen different scholars

write about the importance of upholding the rule of law and making sure that the supremacy of
the constitution is not violated.
52 RECOMMENDATIONS

52.1 RECOMMENDATIONS TO THE THREE ARMS OF GOVERNMENT

For years and years there has been a carry for Zambia to uphold dfidoclrinc of separation of
powers and constitutionalism. In order for this to happen, Zambia must ensure that checks are

fully utilized so as to ensure that powers of these organs are balanced and no organ dominates
%other. In doing so we shall see a change in a number of things and also adherence to the
doctrine of separation of powers effectively

The three arms of government must be able to operate separately but still be able to do checks on
each other and with no much interference from the other. The executive been headed by the

president is okay him been the president but that shouldn’t also make him to be part of the

legislature where is the balance of power in this case. Because already here we seeing a situation

where the executive interferes with the law making process, it would be good to find ways in
which the executive doesn’t interfere much in the legislature just like it does interfere in the
judiciary when the president appoints judges, yes that’s his constitutional rights but can’t we

have a committee that is in charge of appointing judges so that there are able to operate freely
and not feel like they have to obey whatever the president says and fail to execute their duties
nicely. Also the National Assembly is made up of ministers from the ruling party, which means

that there only interest is making sure that they do things that please the president forgetting the
ones that elected them. Ministers should be appointed based on merits and not because one is

known or is in good books with the president, we have seen carders hold government positions

which there have no idea about, putting someone with no experience or what so ever just because
the person is beneficial to the president isn’t a sign of good governance.
Legislature is made up of Members of Parliament who later become cabinet ministers after they
appointment by the president which in this case we already see that the two are closely linked
and the other arm will be more dominate because it’s the one responsible for appointing cabinet
minsters who will be enacting laws and making them so they will make sure that laws been

implementing are in there favor and don’t care if that affects the ones that elected them into
office which in Zambia has been the case sadly, we have seen how selfish people become after
been put in office and the common trend is forgetting to live up to their manifesto .

I would recommend that the three arr&of government remain as independent s possible and also

the three arms of government should uphold the rule of the law and constitutional supremacy. If
the three arms don’t have much interference, the country will experience a lot of good change
and justice will be seen more and this will bring about economic growth.

52.2 RECOMMENDATIONS TO THE GOVERNMENT

The Zambian government has shown in the past years that has failed to fully uphold the rule of
law and operate within its jurisdiction, for government to rule well they must ensure that the
three arms of government don’t interfere.

Firstly, the appointment of ministers from parliament should be done with. This will to some
extent contribute to the credibility of parliament which will be able to carryflut its functions

based on the capability of the members and not opportunism. Furthermore, parliament should be
empowered to be able to override the President’s veto as in the case in the United States of
America so that members do not fear the dissolution of parliament based on the president’s
opinion. Appointing ministers from outside parliament will ensure that professionalism is taken
into account hence credible and competent people leading the country because appointments

would then be on merits and not because.

Secondly, when it comes to judges ben appointed this should be left to the judiciary and the
judicial service commission to identify who fits that position based on their qualification and
professional work ethi s and those that uphold the rule of law and personal integrity. This will
result in an independent and impartial judiciary that will do things in the right way and uphold its
ethics and ensure that justice is dispensed. All planning of the judiciary and the emoluments of
the judges should be left to the judiciary when allocation of funds is been done by the minister of
finance.

Thirdly, in order too effectively check the executive and ensure that the will of the electorates is
carried out, the National Assembly should be empowered to exercise a veto of no confidence in

the government of the day in addition to its power of impeachment, if it feels that the

government is not upholding the principle of constitutionalism or if they fail to govern the people
well. This would result in members of parliament to represent the ones that elected them well

and put the best interest of the people first and not theirs. There should be a provision of veto of
no confidence either in the president or the cabinet ministers.
BIBLIOGRAPHY

BOOKS

Montesquieu, the Spirit of Laws, G. Bell &Sons Limited, London, 1994.

Nwabueze B. O, Presidentialism in commonwealth Africa , C. Hurts & Co, London, 1973.

Shackleton R, Montesquieu: A critical biography, oxford university press, oxford, 1961

Aristotle. The Politics.

Hilaire Barnet, Constitutional law book.

Commentaries on the laws of England vol 1.

Vile, 1967, Pg 84-85.

CASES

Chisimba kambwili v The Attorney General 2019/CCZ/009(2020).

Derick itala v Attorney General SCZJ. 14 of 1995.

The Attorney General and others v Lewanika and four others(2994) S.J. 2 (S.C) .

Michael Mabanga v Sikota Wina and others (2005) ZR 138.

Mmembe and Others v The National Assembly. 93/HP/14.

Roy Clarke v The Attorney General 2004/HP/003.

Christine Mulundika and others v The Attorney General, SCZJ 25 of 1995.

Mazoka and others v Mwanawasa and others (2005) ZR 138.

Thomas Munba v The People (1984) ZR 38.

Banda v The People 2002.

Miller v Secretary of state for existing the European Union

Ujagar Prints v Union of India (1989) 179 ITR 317.

71
Burmah Oil Co Ltd v Advocate (1965) AC 75.

STATUTES

The Constitution of the Republic of Zambia.

The Constitution of the Republic of South Africa.

The Constitution of Zambia, 1964.

The Constitution of Zambia, 1973.

The Public Order Act.

REPORTS
Report of the national commission on the establishment of a one-party participatory Democracy
in Zambia. Lusaka, 1072.

Electoral commission of Zambia, the three arms of government, 2019.

Initial Report of the National Constitutional Conference, June 2010.

A balance of separation of powers by Mrs Doris.

The electoral Commission of Zambia, arms of government.

ASGP, article on balance of power.

Oxford constitutional law, separation of powers by Mikuli

Article by Afe Babalola.

Basic principles on the independence of the judiciary.

Human Rights in Administrative of Justice page 117.

National Assembly of Zambia 5* January 2015.

The Avalon project, federalist No 48.

Basic principles on the judiciary independence of the judiciary.

Atrticle on political theory of Aristotle.

J. C. Johari, principles of modern political science page 358

OTHER DOCUMENTS
a
The Draft Constitution of the Republic of Zambia.

Human Rights in the Administration of Justice: A Manual on Human rights for judges and
lawyers.

The Constitution of the United National Independence Party.

The Draft Constitution proposed by the Wila Mung’omba Constitution Review Commission.
NEWSPAPERS

Times of Zambia, 6™ August 2004.

The Post Newspaper, 19" February 2011.

The Monitor, 8-11 February 2002.

WEBSITES

http://press-pubs.uchicago edu/founders/documents/vich10s3 html.

www historycommons .org/entity.jsp?entity=yaser

www srparationofpowers.com

plato.stanford edu/entries/constitutionalism.

Ibid.
A ZAMBIAN PERSPECTIVE ON SEPARATION OF POWERS
ORIGINALITY REPORT

52.
SIMILARITY INDEX
45,
INTERNET SOURCES
16%
PUBLICATIONS
424
STUDENT PAPERS

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