INTRODUCTION

The law prescribes various rules or tests for the limits of substantive powers. In general, these
rules are applicable according to whether or not the powers are discretionary and whether matters
of fact or law are in issue. However, before these rules are examined, it must be re-emphasised
very strongly that merely because the reviewing court considers a decision to be wrong on the
merits, ie matters within the limits of statutory powers, does not render it ultra vires. This paper
will clearly explain how the above statement which reads, “Administrative law endeavors to
ensure that personnel and institutions vested with public powers exercise them within the
parameters of the law” coincides, if at all, with the use of discretionary powers. This will be
done with the use of authorities.

ADMINISTRATIVE LAW

According to Foulkes administrative law is the law relating to public administration. It is

concerned with the legal forms and constitutional status of public authorities; with their powers
and duties and with the procedures followed in exercising them; with their legal relationship with
one another, with the public and with their employees and with the wide range of institutions,
both internal and external to themselves, which seek, in varied ways to control their activities.1
Furthermore Sangwa states that administrative law is law that governs those who administer any
part of governmental activities. Administrative law is not the substantive law produced by the
agencies instead; administrative law is the law, which governs the powers and procedures of
agencies. It includes procedural law created by agencies but not substantive law created by them,
such as tax law, labor law, public utility law, transportation law, welfare law, town and country
planning law, and the like.2 In addition administrative law is also defined as a body of law
created by administrative agencies in the form of rules, regulations, orders, and decisions to carry
out regulatory powers and duties of such agencies.3 On the other hand the principle of good
governance is too wide a franchise to tie down to a single definition. As a matter of fact, this
principle almost certainly means different things to different societies depending on the norms

1
Foulkes, D. (1995), Administrative Law (8th ed.). London: Butterworths. p. 1.
2
Sangwa, J.P., Administrative Law Lecture Notes L 341. Lusaka: Unza Press. p. 2. (Unpublished).
3
Musonda, P. (2006), Administrative Law 1 Module LL10 (1st ed.). Lusaka: Zaou Press. p. 1.

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and development of the said society. However, it is safe to assume, considering the various
attempts to define this concept, that a number of basic characteristics can be inferred. Therefore,
good governance can be said to be participatory, accord oriented, accountable, transparent,
responsive, effective and efficient, even-handed and comprehensive and following the rule of
law.4

In essence administrative law is a branch of public law that scrutinizes the powers vested in
administrative agencies and how these agencies use the powers and the procedure followed in
effecting, implementing and executing government policy. It ensures that administrative
agencies use the powers vested in them for the purpose for which they were made thereby
bringing about good governance, transparency and accountability in the running of the country
affairs. Suffice to state that administrative agencies have been given the power to make rules,
regulations, orders and adjudicative decisions and as a result the legislature and judiciary have
been exonerated from dealing with complex and technical matters that arise in these state
institutions. In order to curb despotism on how administrative officers carry out their duties it is
imperative that there is a branch of public law that monitors and checks the excess and exercise
of these duties. And only two mechanisms will be discussed in this paper, these being the
doctrine of separation of powers and judicial review.

SEPARATION OF POWERS AND ADMINISTRATIVE LAW

Besa stipulates that power corrupts and absolute power corrupts absolutely. Separation of powers
emphasizes a need for the proper exercise of power by the three institutions of government. Each
one of the three institutions has the propensity to operate beyond the powers allocated to it by the
constitution. Where no mechanisms are employed to curb the exercise of any the three
institutions of government, the people suffer the most. Separation of powers therefore represents
an important aspect of checks and balances through judicial review. Checks and balances
through judicial review justify the notion of separation of powers thereby safeguarding liberty of
the people.5

The concept of 'separation' may mean at least three different things:

4
WWW.unescap.org/pdd.
5
Besa, M. (2011), Constitution, Governance and Democracy. Ndola: Mission Press. p. 218.

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(a) that the same persons should not form part of more than one of the three organs of
government, for example, that Ministers should not sit in Parliament;

(b) that one organ of government should not control or interfere with the work of another, for
example, that the judiciary should be independent of the executive;

(c) that one organ of government should not exercise the functions of another, for example, that
ministers should not have legislative powers.

It needs to be pointed out that in considering each of these aspects of separation, it must be
remembered that complete separation of powers is not possible either in theory or in practice.6

Agarwal states that in many countries the legislature is under the executive and in certain
countries, the legislature has the right to remove the executive, similarly, in certain other
countries the judicially has the power to declare the laws, made by the legislature illegal. It
indicates that the three organs of the government have some relation with one another. But the
writers who believe in the principle of separation of powers are of the opinion that all the
government should not be concentrated in one organ.7

The case of Fred M’membe & Bright Mwape v. The Speaker of the National Assembly, The
Commissioner of Prisons & the Attorney-General,8 the court was of the view that the decision
by the Speaker to throw the applicants into prison was null and void. This is due to the fact that
our Parliament is not a court in any sense at all and that the High Court possesses power on
jurisdiction over major parliamentary actions. These authorities are underlining pieces of
evidence that the powers of Public officers are being reviewed thus ensuring accountability and
promoting good governance. However the court assumed the role of the legislature in the case of
Attorney General, The Movement For Multiparty Democracy V Akashambatwa Mbikusita
Lewanika & 4 Others9; the court assumed the role of the legislature by interpolating Article
72(1)C to mean vice versa. There by going against the theory of separation of powers. Such

6
Chanda, A.W., Constitutional Law in Zambia: Cases and Materials. Lusaka: Unza Press. pp. 63-64. (Unpublished).
7
Agarwal, R.C. (2002), Principles of Political Science (8th ed.). New Delhi: S. Chand & Company Ltd. p. 381.
8
1996/HCJ/X Unreported.
9
(1994) S.C.J. No. 2.

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decisions are likely to cause the public lose confidence in the judiciary and bring about poor
governance.

JUDICIAL REVIEW OF ADMINISTRATIVE ACTION

In order to enable them to fulfill their governmental functions, public authorities are vested with
a wide range and variety of legal powers and duties. Most of these are derived from Acts of
Parliament. Some may still be found in the common law, particularly the royal prerogative.10
Judicial review is the legal process through which an individual may challenge the legality of the
way in which any of these powers has been used. Traditionally applications for judicial review
were founded on allegations that an authority had acted either ultra vires (i.e. beyond its powers)
or in breach of the rules of natural justice (the common law rules of procedural fairness). Ultra
vires was rooted in the idea of whether a particular body had jurisdiction, ie whether it was
acting within the four corners of its powers. Those four corners might be stated expressly by the
donor of the power. However, Lord Diplock in Council of Civil Service Unions v Minister for the
Civil Service (1985) added the following to ultra vires:

• illegality;
• irrationality;
• procedural impropriety: and, possibly
• proportionality

THE SCOPE OF JUDICIAL REVIEW

Government bodies exercise both public and private law powers. It is in relation to the former
that an application for judicial review may be made. The distinction between the two is
somewhat blurred and is considered in more detail below. For introductory purposes, however, a
public law power may be described as one which will usually be authorised by statute or the
royal prerogative and is concerned with the regulation or protection of some aspect of the public
interest. The exercise of a public law power will often involve the restriction of private law rights
where this is perceived to be for the public benefit – e.g. the compulsory purchase of land for the
provision of public amenities.

10
De Smith (1995) Judicial Review of Administrative Action (5th edn), London: Stevens.

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The scope of judicial review by the High Court is unlimited in Zambia, except for matters
expressly reserved for the Industrial Relations Court. It follows that the High Court can hear a
complaint against any one in Zambia, and adjudicate on it as provided for by law.

WHO MAY BRING JUDICIAL REVIEW PROCEEDINGS: STANDING TO SUE

The whole of issue of locus standi has constitutional significance. The subject of standing can
be addressed depending on whether the challenge is presented before the court by way of an
application for judicial review under Order 53 of the Rules of Supreme Court, a statutory
application to quash, a statutory appeal, habeas corpus or various forms of private law
proceedings.

Where an individual is directly affected by the decision or other action of an administrative

agency, eg as an applicant for a licence, he will have locus standi and so should be able to seek
to obtain his remedy to deal with what he alleges to be an ultra vires decision. This assumes, of
course, that the allegation can be established before the court and that other requirements for the
remedy sought, such as an order of certiorari to quash, are present. Cases involving such a direct
interest in the issue before the court do not usually raise any problems of locus standi, unlike
those where a person has a less than direct interest.

In Maxwell Mwamba and Stora Solomon Mbuzi and the Attorney General,11 the issue of
standing was raised. The Applicants who were members of an opposition party challenged the
appointment by the President of two members of his political party, who had previously been
investigated for trafficking in drugs.

The substance of the case was that by appointing the two members of Parliament to ministerial
positions the President had acted contrary to the provisions of Article 44 of the Constitution.
They were not themselves directly affected by the appointments. The four Judges of the
Supreme Court (the majority) observed: “However, on the question of locus standi, we have to
balance two aspects of the public interest, namely desirability of encouraging individual citizens
to participate actively in the enforcement of the law, and the undesirability of encouraging

11
SCZ Judgment No. 10 of 1993.

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meddlesome private “Attorney Generals” to move the Courts in matters that do not concern
them.”12

Conclusion

This paper has discussed that statute places upon public bodies certain powers which must be
exercised within the prescribed limits. Any excess or abuse of those powers means that the
decision or other administrative action is ultra vires and may be dealt with through a range of
remedies, being an order of certiorari, an order of prohibition or mandamus, declaration and
injunction. To be ultra vires a decision has to be proved to have exceeded the express or implied
statutory limits of the powers given to the administrative agency, i.e to have gone beyond the
jurisdiction of that agency. Finally, this paper has qualified the statement that administrative law
endeavors to ensure that personnel and institutions vested with public powers exercise them
within the parameters of the law. The paper discussed the separation of powers before going to
judicial review so as to establish the source of limits between different organs of government or
public bodies.

12
Ibd., J4

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 REFERENCES

Agarwal, R.C. (2002), Principles of Political Science (8th ed.). New Delhi: S. Chand &
Company Ltd.

Besa, M. (2011), Constitution, Governance and Democracy. Ndola: Mission Press.

Chanda, A.W., Constitutional Law in Zambia: Cases and Materials. Lusaka: Unza Press. pp.
63-64. (Unpublished).

De Smith (1995) Judicial Review of Administrative Action (5th edn), London: Stevens.

Foulkes, D. (1995), Administrative Law (8th ed.). London: Butterworths.

Musonda, P. (2006), Administrative Law 1 Module LL10 (1st ed.). Lusaka: Zaou Press.

Sangwa, J.P., Administrative Law Lecture Notes L 341. Lusaka: Unza Press. p. 2.
(Unpublished).

Cases referred to

Attorney General, The Movement For Multiparty Democracy V Akashambatwa Mbikusita

Lewanika & 4 Others (1994) S.C.J. No. 2

Council of Civil Service Unions v Minister for the Civil Service (1985)

Fred M’membe & Bright Mwape v. The Speaker of the National Assembly, The Commissioner
of Prisons & the Attorney-General 1996/HCJ/X Unreported.

Maxwell Mwamba and Stora Solomon Mbuzi and the Attorney General SCZ Judgment No. 10
of 1993