CAVENDISH UNIVERSITY ZAMBIA

ASSIGNMENT BRIEF AND FEEDBACK FORM

STUDENT NUMBER: _mm104897 _______ ____

INTAKE JANUARY 2

ONE/TWO YEAR

LECTURER:
SABITA NAMAKANDO

SUBJECT: CONSTITUTIONAL LAW

ASSIGNMENT NO. 1

DATE HANDED OUT:

11/05/2023

DATE DUE IN: 11/05/2023

DAY/EVE/DL DL
ASSIGNMENT BRIEF

GIVEN SHOULD BE IN THIS BOX

STUDENT INSTRUCTIONS:

1. This form must be attached to the front of your assignment

2. The assignment must be handed in without fail by the submission date (see assessment schedule
for your course)
3. Ensure that the submission form is date stamped by the reception staff when you hand it in
4. Late submission will not be entertained unless with prior agreement with the subject tutor
5. All assessable assignments must be word processed
ASSIGNMENT GUIDANCE

This assignment is intended to assess the student’s knowledge in all of the following areas.
However, greater emphasis should be given to those items marked with a

(Tutor: - please tick as applicable)

ASSESSABLE SKILLS Please Tick.
Good and adequate interpretation of the questions

Knowledge and application of the relevant theories

Use of relevant and practical examples to back up theories

Ability to transfer and relate subject topics to each other

Application or use of appropriate models

Evidence of library research

Knowledge of theories

Written Business English communication skills

Use of visual (graphs) communications

Self Assessed ‘time management’

Evidence of field research

Tutor’s Mark Contribution

MARKS
(Administration only*)

LECTURERS FEEDBACK:

A constitution is a formal document which creates the organs of Government, defines their
functions, their relationship inter-se and delimits their relationship with the individuals.

1. The Bill of Rights

*
The Bill of Rights embodied in Part III of the current Zambian Constitution provides for the
protection of fundamental rights and freedoms. The challenge to progressively realize
economic, social and cultural rights in accordance with the International Covenant on
Economic, Social and Cultural Rights (ICESCRs) which Zambia has ratified is actually
enormous for a developing country like Zambia with inadequate resources to provide enough
schools, hospitals, social security, decent shelter and clean water to the majority of the
population. In Zambia, there are a number of institutions established to promote and protect
human rights. The major institutions promoting and protecting human rights, directly or
indirectly, are:

The Human Rights Commission established in 1997 in accordance with the Paris Principles.
It is mandated, inter alia, to investigate human rights violations and maladministration of
justice, and propose measures to prevent human rights abuses.

The Judiciary is the primary institution charged with the protection of human rights through
enforcing the Bill of Rights entrenched in the National Constitution. Anyone who feels that
his or her human rights have been or are about to be violated can seek redress through the
High Court which enforces the Bill of Rights.

The National Assembly, which consists of elected and nominated Members of Parliament,
carries out a wide range of important public responsibilities that enhance democratic
governance in Zambia. These responsibilities include making laws (Acts of Parliament),
approving proposals for taxation and public expenditure, and keeping the work of the
Government under scrutiny and review.

The Judicial Complaints Authority receives and investigates allegations of misconduct

against judicial officers. In their adjudicative duties, officers are expected to conduct
themselves with integrity, independence and impartiality in accordance with the Judicial
Code of conduct.

The Police Public Complaints Authority, established in 2002, addresses public complaints
against police misconduct in order to protect the rights of citizens. It has been reported that a
number of officers found to be violating or abusing human rights have been dismissed from
Police Service as a result of the work of the Authority.
The Zambia Police Service - Despite being charged with the responsibility to ensure
protection of human rights, the Police Service is often a major violator of human rights. Some
of the worst human rights abuses such as torture and extra-judicial killing of suspects have
been committed by police officers, and these have been widely condemned by human rights
defenders. Other common human rights abuses by the officers include false arrests, illegal
and over detention without trial. However, within Police Service, a Victim Support Unit
exists in almost all parts of the country to deal with violations of human rights, especially of
women and children.

The Commission for Investigations – is empowered to investigate complaints of mal-

administrative actions by pubic authorities brought to its attention. It can also recommend
corrective action to the affected agencies and obtain redress for a deserving complainant.

The Legal Aid Board – Article 18 (1) 9d) of the current Constitution provides that every
person charged with a criminal offence “shall unless legal aid is granted to him [or her] in
accordance with the law enacted by Parliament for such purpose be permitted to defend
himself [or herself] before the court in person, or at his [or her] own expense, by a legal
representative of his [or her] own choice.” It is for this purpose that the Legal Aid Board was
established in 2002, to provide free legal assistance especially to the poor and vulnerable
women and children who come in conflict with the law.

Therefore, the constitution ensures the protection of human rights by making sure the rights
that are put in place are well protected through the many organs that are created.

2. Separation of powers
It is important in a functioning democracy to divide governmental power between different
organs of the state in order to guard against the centralisation of power, which may lead to
abuses of power. This is known as the separation of powers doctrine. 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 complete state control and amass centralised power. While each
branch performs a number of different functions, each also plays a ‘watchdog’ role in respect
of the other. This helps to ensure that public power is exercised in a manner that is
accountable to the general public and in accordance with the constitution.
Basically, it is the rule which every state government should follow in order to enact,
implement the law, apply to specific case appropriately. If this principle is not followed then
there will be more chances of misuse of power and corruption If this doctrine is followed then
there will be less chance of enacting a tyrannical law as they will know that it will be checked
by another branch. It aims at the strict demarcation of power and tries to bring the
exclusiveness in the functioning of each organ.

This doctrine was recognized in the following cases Lord Diplock in Duport Steels v
Sirs said that the British constitution is firmly based on the separation of powers in that
Parliament makes the laws and the judiciary interpret them. In this case, separation of powers
was used to draw a distinction between the legislative and judicial functions with a view to
keeping the judiciary within bounds.

In M v Home Office Lord Templeman emphasized that Parliament makes the laws, the
executive carry the laws into effect and the judiciary enforce them. In Fire Brigades Union
case, Lord Mustill discussed the doctrine in his dissenting judgement, where he said that:

a) Parliament, the executive and the courts each have their distinct and largely exclusive
domain
b) Parliament has a largely unchallengeable right to make whatever laws it thinks right
c) The executive carries on the administration of the country
d) The courts interpret the laws and see that they are obeyed.

Therefore, if there is separation of powers it means that the country will work effectively,
because every organ is working perfectly without being concerned about how the other one is
working. In this way there can be guarantee of protection of human rights because, for
example judiciary there will be impartial judgments because there will be no one to order
them on the outcome of the judgments and even the legislatures will be answerable for them
crimes if they commit.

3. Judicial Review

Judicial Review is the power of the court in appropriate circumstances to declare a

Governmental move or act either contrary or in accordance with the constitution or any
governing law with the effect of rendering the measure invaluable and void vindicating its
validity and so putting it beyond challenge in the future.

The case of Marbury v Madson established the doctrine of Judicial Review where it was held
that the decision by Madson to refuse to deliver the commission was illegal. Judicial review
is concerned with whether the decision by the public authority is legal or not. It is concerned
with the procedure of how the public authority came up with that decision. The aim is to
make sure that the public authority followed the law when coming up with that decision
hence making sure that it is consistent with the Constitution.

The Judicial review make sure that the public authority is not going beyond its powers, utral
vires. If he goes beyond his power then it said to be unconstitutional, illegal and improper. In
the case of Nyampala Safaris (Z) Limited & Others vZambia Wildlife Authority (1). Here he
quoted a passage that reads: “that it is important to remember that in every case, the purpose
of judicial review is to ensure that the individual is given fair treatment by the authority to
which he has been subject and that - J13 - P315 it is not part of that purpose to substitute the
opinion of the judiciary or of individual Judges for that of the authority constituted by the law
to decide the matter in question.
The Attorney General -v- Malawi Congress Party (M.S.C.A. cas. No. 22) They did say the
defence never arose in the case. On the generality of constitutional law, there can be no
defence to that which is unconstitutional.