Introduction

In this part, we shall define administrative law and identify which branch
of law it belongs to. In addition, we will discuss its purpose and nature
as well as the sources.
Definition of Administrative Law
• Administrative law is that law which deals with the administrative arm
of government.
• It is a body of general principles governing the powers and duties of
the officers of the state.
• It serves as an instrument or vehicle for getting things done via
established institutions.
• It concerns the day to day administration of the country at central and
local level while putting into practice constitutionally decided policies.
Purpose of Administrative Law
• It is the purpose of administrative law to answer the question how and
through what means government in any given society will be effectively
controlled.
• It is the purpose of administrative law at any given time to provide answers to
the questions arising from the interaction of government agencies among
themselves and with the private individual.
• Scholars have stated that the primary purpose of administrative law is to keep
the powers of government within their legal boundaries so as to protect the
citizen against their abuse and to prevent the powerful engines of authority
from running amok.
• It is also the purpose of administrative law to make sure that public authorities
are compelled to perform their functions according to laid down procedure.
Nature of Administrative law
• By its nature, administrative law is coercive, meaning that it
commands the doing of something and/or forbids certain actions.
• Authorities vested with power are obliged to operate and exercise
their administrative authority within the confines of the law that gives
them the power to act.
• Society expects government to provide services such as health,
education, security among others. In these areas, administrative
power is given to agencies and individuals to act accordingly.
• Most governmental power is couched in very wide terms and as such
open to abuse whether intentional or otherwise.
Relationship Between Administrative
Law and Constitutional Law
• The relationship between these two branches of law is one of mutual
existence.
• Constitutional law creates and allocates power to government and
government agencies while administrative law checks the exercise of that
power for the betterment of society as a whole.
• This relationship can be seen in many cases that have come before the courts
for example where a litigant claims the exercise of certain administrative
power is unconstitutional.
• Therefore, without administrative law, constitutional law would be chaotic and
without constitutional law, administrative law would not exist. Constitutional
law establishes the basis of administrative action. See Sharma v A/G (1978) ZR
163.
Sources of Administrative Law
• Administrative law is derived from the same sources as constitutional
law because they both form part of a branch of law known as public
law.
• The difference between the two is that while constitutional law deals
with the setting up of governments, administrative law deals with the
operation of those governments, delimiting the powers allocated to
each department and ensuring that those entrusted with the exercise
of those powers do not abuse them.
• Some of the sources are local statutory law, English law, Customary
law, Case law, International law and writings of jurists.
Local Statutory Law
• This exists at three levels being the constitution, Acts of Parliament or
Statutes and Delegated Legislation or Statutory Instruments.
• Constitution: The Constitution is a source of administrative law in the
sense that it creates the government system and allocates power to the
various departments and agencies. It is the supreme law of the land and
all other laws draw their authenticity from it. Article 1(1) of the 2016
amendment creates the supremacy of the constitution.
• Where administrative actions infringe on the rights of individuals, the
courts declare such actions as unconstitutional. See Christine Mulundika
case (1995-97) ZR 20, Resident Doctors Association case (2003) ZR 88,
Auther Wina and others v A/G (1990-1992) ZR 95
Local Statutory Law cont’d
• Acts of Parliament: This is an important source of administrative law as the
various Acts of Parliament lay out administrative powers including the extent of
application. They further specify who or which institutions will exercise the said
powers. See the Public Health Act.
• Delegated Legislation: This is legislation promulgated by Ministers and other
authorities upon whom parliament has conferred power to legislate. See article
67 of the constitution. It is often in form of statutory instruments, practice
directions and by-laws. It is the chief source of administrative law in the sense
that government authorities directly exercise their administrative functions. It
has the advantage of easily coming into effect and easily falling off once the
matter for which it was created has been resolved. Delegated legislation should
not contradict the parent Act. See NAPSA v Phillip Stuart Wood SJZ/45/2018
English Law
• This has been imported into the country through section 2 of Chapter 11 the
English Law (Extent of Application) Act and Chapter 10 British Acts (Extension)
Act which states which aspects of English law are applicable in the country
and which specific statutes have been extended to Zambia respectively.
• English law remains a gap filler unless the country does not have a law of its
own. See The People v Shamwana (1982) ZR
• Common law remedies like damages, injunctions and declarations originate
from English law just like prerogative remedies like certiorari, prohibition and
mandamus.
• To the extent of its application in the country and its bearing on
administrative law, English law is a source of administrative law.
Judicial Precedent or Case Law
• This refers to the decisions of the courts interpreting the constitution
and other legislative enactments.
• Courts have power to declare administrative actions or pronouncements
as unconstitutional or to give effect to them.
• Case law is an important source of administrative law for it shows how
the powers conferred on government departments are exercised and
checked for the benefit of the society as a whole.
• When dealing with case law, under the doctrine of judicial precedent or
stare decisis, decisions of higher courts are binding on all lower courts.
Courts with the same jurisdiction do not bind each other. See
Malembeka v ECZ, A/G (SJZ/34/2017).
Customary Law
• Customary law is the oldest form of law known to man. It is recognized by
the constitution in article 7 (d). Further Part XII of the constitution creates
the institution of Chieftaincy and the House of Chiefs. These institutions are
guaranteed and shall exist according to the culture, customs and practices of
the people to whom they apply.
• Customary law is valid and shall apply for as long as it is not repugnant. See
article 1(1) of the constitution which brings customary law and customary
practices in the ambit of constitutional scrutiny.
• By virtue of these provisions, chiefs wield a lot of administrative power to
enable them manage their subjects. The exercise of these powers must be
checked. See Lukwamuna and Zulu v Headwoman Mwachindalo LAT 48/2018
and LAT 49/2018.
Writings and Opinions of Jurists
• Scholars and researchers alike often write books, reports, articles after
extensive and intensive research into particular questions of law.
• Such writings have often given meaning to various concepts in that the
writers take time to explain in detail the meaning around the said
concepts.
• Although these writings do not command binding authority, it is
common practice for judges, scholars and researchers to quote
authoritatively from such resources on the meaning of matters under
their consideration.
• To the extent that these writings discuss administrative law, they become
a good source of it.
International Law
• Zambia is party to various international instruments some of which are
human rights instruments.
• In order for the citizens to benefit from these instruments, there is need
for domestication. However, as was stated in Sarah Longwe v
Intercontinental Hotels 1992/HP/765, the action by a state to sign and
ratify without reservation is a clear indication of its willingness to be
bound by the provisions of such a treaty.
• These treaties may bring into the country aspects that allocate
administrative authority to relevant officials. Therefore, to the extent
that these have a bearing on administrative authority, international law
becomes a source of administrative law.
Non-legal rules of the Constitution
• These are also known as conventions. They are neither Acts of
parliament nor judicial decisions.
• They are rules of constitutional behavior considered to be binding
upon those who operate the constitution but are not enforceable by
the courts. They remain unwritten.
• They prescribe rules of constitutional behavior and are observed by
government officials, legislators and judicial personnel.
• These conventions serve a wide range of administrative purposes and
vary in importance. They develop under every system of government.
• They are practices embraced in day to day activities.