Introduction

In every independent political society members unite together for the purpose of resisting
external force and the preservation of internal order. Each state has a duty to deal with a vast
mass of social problems either by direct activity or by supervision or regulation. In order to carry
out these functions a state must have agents through which to operate. These agents of a state are
classified according to their functions, among them is the executive whose duty is the
administrative function which is the general and detailed carrying on of government according to
the law. However, abuse in this government organization is inevitable, that’s why it is necessary
that the law should provide means to check it. It is therefore from this background this essay will
discuss the main attributes of administrative law in the governance of a country by making
reference to decided cases.

Definition of Administrative law

Administrative law as a subject has no defined concrete definition. However there are
agreements that administrative law is concerned with powers and procedures for the use of those
powers by public officers and institutions responsible for the performance of the functions of the
state.1 The term denotes the department and other organs of the executive staffed by permanent
officers of the nation under the general direction of the ministers answerable for their
stewardship in parliament.2 It therefore includes the law governing judicial review of
administrative actions and maybe defined as the law relating to the control of government
power.3 Therefore, administrative law is that law which governs those who administer any part
of government activities. Administrative law is not substantive law produced by agencies and it
is not the substantive law created by legislative bodies or courts and administered by the
agencies instead it is law which governs the exercise of powers and duties of public authorities.
It is not concerned with how they get their powers but with the manner in which public
authorities must exercise their functions. Administrative law therefore determines the
organizations, powers and duties of administrative authorities. 4 These authorities are

1
Borrie, G. J(1967) Elements of Public Law. London: Sweet and Maxwell
2
Jones, R. H(1968) Constitutional and administrative law. pp. 4
3
Ibid
4
Jackson, P and Leopold, P (2001) O. Hood Philips and Jackson: constitutional and administrative law (8th ed). pp.
69

1
distinguished from private individuals by the extent of their powers. An aspect of administrative
law is the control exercised by courts or tribunals over those powers, especially in relation to the
rights of citizens. The remedy of citizens may be left to the jurisdiction of ordinary courts or the
matter may be regulated by special courts or by administrative tribunals.5

Therefore, the importance of administrative law is derived from the fact that no public authority
may lawfully take any action unless that action is authorized by the law or reasonably incidental
to that which is authorized by law, any act done outside the legal powers of the authority will be
treated by the court as void. This is known as the doctrine of Ultra vires and it applies
irrespective of whether the authority is exercising judicial, quasi-judicial, legislative or
administrative functions. It applies to local authorities, tribunals, government departments and
other public authorities.

In view of the above we can say that administrative law is concerned with the performance of
public officials to ensure that they execute their duties in accordance with statutes, statutory
instruments, regulations or by-laws. Administrative law is therefore not concerned with private
matters.6 The function of administrative law is any country is to provide that its citizens are
entitled to fair treatment and if government defaults it provides adequate means of redness within
its legal system.7 It would ensure that the abuse of power by an administrative authority is well
controlled.

The attributes of Administrative Law in the governance of a country

Administrative law has three main attributes which are judge-made law, a flexible law and a law
balancing between public interest and private rights which will be discussed separately as
follows:
i. A judge-made law.
As indicated above administrative law is a branch of public law. It deals with the relationship of
individuals with the government. It determines the organization and power structure of
administrative and quasi-judicial authorities to enforce the law. It is primarily concerned with
official actions and procedures and puts in place a control mechanism by which administrative
agencies stay within bounds. However, administrative law is not a codified law. It is a judge-
5
Ibid
6
Garner, J. F (1979) Administrative law (5th ed). p. 7
7
Ibid

2
made law which evolved over time. Much of what administrative law is based on the constitution
is in fact common law. Common law prevails on a point of law, so long as there is no statute
regulation or constitutional provisions which contradicts it. The constitution is brief and vague
at times, therefore it must be interpreted by courts. For instance, the idea that no one should be
punished unheard is law which has been embraced by the courts as one of the common law
principles. In Shiling Bob Zinka v. Attorney General, 8 CJ Silungwe as he was then decided
that: “the principles of natural justice must be observed by the courts, tribunals, arbitrators and
all persons and bodies having the duty to act judiciary except where their application is excluded
or by necessary implication. A presumption that natural justice must be observed will arise more
readily where there is an express duty to decide only after conducting a hearing or enquiry or
where a decision entails for determining of disputed questions of law and facts.” Prima facie,
moreover, a duty to act judicially will arise in the exercise of a power to deprive a person of his
livelihood or of his legal status where that status is not merely terminable at pleasure or to
deprive a person of liberty or property rights or any other legitimate interests or expectations or
to impose a penalty. The principle of natural justice as the attribute of administrative law in the
governance of a country is in two folds:

(i) Audi alteram partem

This means that no man shall be condemned unheard. Each party must have reasonable notice of
the case he has to meet and he must be given an opportunity of stating his case and answer to any
arguments put forward against it.9 In Copper v. Wansworth Board Works,10 a demolition order
was quashed because the owner had no notice of an opportunity to be heard. Also in the case of
Kangombe v. The Attorney General,11 the applicant was a teacher who was charged before a
Teaching Service Commission. He was later dismissed basing on allegation not brought to his
attention so that he could exculpate himself. The dismissal was decided null and void as the Audi
Alteram Partem rule was violated.

(ii) Nemo Judex in Causa Sua

8
SCZ, Judgment No. 9 of 1991
9
Supra (note 4)
10
(1893) 14 CB(NS) 180
11
(1972) ZR. 14

3
This means that a man may not be a judge in his own cause. This is said to be the first most
fundamental principle of natural justice. The rationale is that a judge should be disinterested and
unbiased. A person affected by an administrative decision is not only entitled to his case being
heard but may also insist on his case being heard by a fair judge one free from any interest or
bias. The real test whether the likelihood of bias has been created. In Dimes v. Guan Junction
Canal,12 the House of Lords set aside a decree of Lord Chancellor Cottenham who had granted
an injunction to and confirmed the title of a company where he was a shareholder. It was
suggested that Lord Chancellor Cottenham was influenced by the interest he had in the company.
It is of fundamental importance that justice should not only be done but should manifestly and
undoubtedly be seen to be done. Hence the House of Lords held that the decree of Lord
Chancellor was voidable and set aside on grounds that he was a shareholder in the company.
ii. A flexible law.
Administrative officials are permitted to have policies as to the exercise of their discretionary
powers, but those policies must be flexible not rigid. 13 Therefore, the modern administrative state
usually concerns the efficacy of governance. Considering this, administrative agencies usually
can add necessary flexibility to governance, especially when it comes to how statutes are
implemented and applied. In other words, Parliament in effect delegates a kind of de facto
legislative power to the agency so that it can then act with the force of law.
Delegated legislation, or subordinate legislation as it is sometimes called, is legislation made by
authority of an Act of Parliament14 which is a kind of de facto legislative power to others
agencies. It includes statutory rules, by-laws, ordinances, orders in council and various other
instruments made by the executive. However, it is very difficult to give any precise definition of
the expression delegated legislation. It is equally difficult to state with certainty the scope of such
delegated legislation. According to Salmond, legislation is either supreme or subordinate. 15
Whereas the former proceeds from sovereign or supreme power, the latter flow from any
authority other than the sovereign power, and is, therefore, dependent for its existence and
continuance on superior or supreme authority. Delegated legislation thus is a legislation made by
a body or person other than the Sovereign in Parliament by virtue of powers conferred by such

12
(1846)3 HLC, 759-786
13
Adam Perry (2017) The flexibility rule in administrative law. Cambridge: Cambridge University Press
14
Pearce D and Argument S, (2005) Delegated Legislation, (3rd ed) LexisNexis Butterworths, Australia,
15
Ibid

4
sovereign under the statute. A simple meaning of the expression ‘delegated legislation’ may be
given as: When the function of legislation is entrusted to organs other than the legislature by the
legislature itself, the legislation made by such organs is called delegated legislation. 16
Nature and Scope of delegated legislation
Delegated legislation means legislation by authorities other than the Legislature, the former
acting on express delegated authority and power from the later. 17 Delegation is considered to be a
sound basis for administrative efficiency and it does not by itself amount to abdication of power
if restored to within proper limits. The delegation should not, in any case, be unguided and
uncontrolled. Parliament and State Legislatures cannot abdicate the legislative power in its
essential aspects which is to be exercised by them. It is only a non essential legislative function
that can be delegated and the moot point always lies in the line of demarcation between the
essential and nonessential legislative functions. The essential legislative functions consist in
making a law. It is to the legislature to formulate the legislative policy and delegate the
formulation of details in implementing that policy. Discretion as to the formulation of the
legislative policy is prerogative and function the legislature and it cannot be delegated to the
executive. Discretion to make notifications and alterations in an Act while extending it and to
effect amendments or repeals in the existing laws is subject to the condition precedent that
essential legislative functions cannot be delegated authority cannot be precisely defined and each
case has to be considered in its setting. In order to avoid the dangers, the scope of delegation is
strictly circumscribed by the Legislature by providing for adequate safeguards, controls and
appeals against the executive orders and decisions. In R v. Spencer,18 Yates J, states that by laws
are subject to the same judicial control as other acts of subordinate legislation.
The power delegated to the Executive to modify any provisions of an Act by an order must be
within the framework of the Act giving such power. The power to make such a modification no
doubt implies certain amount of discretion but it is a power to be exercised in aid of the
legislative policy of the Act and cannot travel beyond it; or cannot run counter to it; or can’t
certainly change the essential features, the identity, and structure or the policy of the Act.

16
Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, (6th ed), Vol. II, Wadhwa Nagpur

17
Ibid
18
(1766)3 Burr, 1839

5
Furthermore, it may be that the government is clear as to the broad policy to be pursued under an
Act and as to the primary legal rules necessary to achieve a particular goal. There may be less
certainty as to the technical, detailed rules necessary: the delegation of law making power
enables such rules to be worked out often in consultations with specialist interest groups outside
Parliament. The justifications for Subordinate legislation can hold good only if the powers
granted are sufficient clear and precise as to be adjudicated upon by the courts by way of judicial
review and if parliamentary scrutiny accorded to it, is adequate. 19 Therefore, the nature and scope
of delegated legislation as defined by statutes is wide and varied. The language used to confer
the power to make subsidiary legislation is also wide and varied. One has to examine the
language of the empowering legislation to determine the scope of delegated legislation. But there
are a number of different forms of delegated legislative powers to administrative bodies which
can be identified as follows:20
1. Some statutory provisions do expressly vest the rule making power in specified persons
or administrative agency for carrying out the purpose of the Act. Acts like the Banking
and Financial Services Act,21 section 124 empowers the finance minister on
recommendations of the Bank of Zambia to make regulations for or with respect to any
matter that is required by the act or permitted to be prescribed by regulation or that is
necessary or convenient to be so prescribed for carrying out or giving effect to the Act.
2. Another kind of delegated legislation exists where the legislation by way of schedule or
appendix. The statute confers powers or adds to the appendix or schedule given in the act.
This is what is called skeleton legislation. An example of this type of legislation is
provided for in the British Extension Act. 22 Attached to this piece of legislation is a
schedule of all British Acts that have been passed after 1911 which have been extended
to apply to Zambia. It is up to the relevant authority by way of Statutory Instruments to
add to the schedule other British pieces of legislation which can have an effect in Zambia.
3. There are also statutes which confer the power to exempt or include a particular subject
to the provisions of the Act.
iii. A law balancing between public interest and private rights.

19
Barnnet Hilaire (1998) Constitutional and Administrative Law (2nd ed). London: Cavendish
20
Supra (note 2)
21
Chapter 387 of the laws of Zambia
22
Chapter 10 of the Laws of Zambia.

6
The theme of “compulsory acquisition” can relate to many issues such as acquiring properties
compulsorily, paying compensation fairly, settling new places etc. However, the main issue still
resides in the question “Who needs land?”
Certainly, the State needs land for the national and public demands. One can imagine that,
without compulsory purchase, we could not have immense motorways or huge international
airports which could connect the people together no matter how far the distance is. Therefore,
public demand must be satisfied. In parallel, the individual also needs land to settle his or her life
and to satisfy human needs. Without caring and respecting individual’s properties, the public
facilities mentioned above and the compulsory acquisition which is supposed to serve the people
does not make any sense. The balance of public and private interests can be seen as a right
standard chosen to protect both parties: public demands and private interests. In fact, the scale of
the balance between public interests may be toward each part in a particular period of time or a
particular circumstance. It is obvious to say that: Under war or economic crisis, the public
interest needs to be more emphasized. If the people support it, they do not mind sacrificing their
private properties for common purposes. In peace, public interest is one of the effective ways to
harmonize the private interests of different classes in society. In a particular circumstance,
because of the majority’s interest, private interests can come second. For example: when as a
whole everyone in a community agrees to make their village’s footpath, everyone in that village
must volunteer to share the cost and maybe lose parts of their piece of land.
In general, balance between public interests and private property is an artificial definition, which
can be accepted in a certain way, in a certain time, not absolute. Like the law, balance is an ideal
state, which governments want to make perfect but it can never be done. Life is changing; it
requires a different element for different circumstances. The silence of the Land Acquisition
Act23 on the question of the purpose or purposes for which the State may compulsorily acquire
property upon payment of compensation does not per se give the State a blanket right to
compulsory acquisition without any cause or purpose. Furthermore, the purpose for compulsory
acquisition of property upon payment of compensation must be a public one. What constitutes
public use frequently and largely depends upon the facts surrounding the subject. The issue of
public use is a judicial question and one of law to be determined on the facts and circumstances
of each particular case. In William Jacks and Company (Z) Limited V O'connor, (in his

23
Chapter 189 of the laws of Zambia

7
capacity as Registrar of Lands and Deeds) Construction and Investment Holdings
Limited24 the court stated that: “… in common-law jurisdictions the purpose for compulsory
acquisition of property upon payment of compensation must be a public one. What constitutes
public use frequently and largely depends upon facts surrounding the subject.”

Therefore the right to acquire property is provided for under section 3 of the Act 25 which
empowers the President to compulsorily acquire any property of any description. Whenever, he
is of the view that it is desirable or expedient in the interest of the republic to do so. Therefore
the sole test in the determining the validity of the compulsorily acquisition is whether or not it is
in the interest of the republic to acquire the land in question. Although the Act is silent on the
question of purpose or purposes for which the state may compulsorily acquire property, it has
been held by the High court of Zambia that the purpose must be a public one (William Wise v.
Attorney General).26
Once the president has resolved to compulsory acquire property, the minister of lands is required
to give notice of intention to acquire property to the persons interested in the property. The
notice will invite all parties interested to submit all claims for publication in the national gazette.
The notice to yield up the property comes after. This refers to the giving up of the property and
section 1027 refers to compensation and provides that compensation shall be paid for
compulsorily acquired. The compensation must be in the form of money or if the owner desires
estate equivalent to the land acquired.
Conclusion
As much as administrative law is concerned with public authority, so as its attributes apply to all
judicial and quasi-judicial bodies. The High Court has at common law a supervisory jurisdiction
over special tribunal, ministers, public authorities who have quasi-judicial powers. This
supervisory jurisdiction which is exercised mainly by order of certiorari is designed to ensure
that such tribunals or persons are regulated by these attributes as a way of governance of a
country.

BIBLIOGRAPHY
24
(1967) Z.R. 109 (C.A.)
25
Supra(note 23)
26
1990/1992
27
Supra (note 23)

8
Adam Perry (2017) The flexibility rule in administrative law. Cambridge: Cambridge
University Press.
Barnnet Hilaire (1998) Constitutional and Administrative Law (2nd ed). London: Cavendish
Borrie, G. J(1967) Elements of Public Law. London: Sweet and Maxwell
Garner, J. F (1979) Administrative law (5th ed). London: Butterworth
Jackson, P and Leopold, P (2001) O. Hood Philips and Jackson: constitutional and
administrative law (8th ed). London: Sweet and Maxwell.
Jain, M.P. & Jain, S.N.; (2007) Principles of Administrative Law, (6th ed), Vol. II, Wadhwa
Nagpur
Jones, R. H (1968) Constitutional and administrative law. London: Mac Donald and Evans
Ltd.
Pearce D and Argument S, (2005) Delegated Legislation, (3rd ed) LexisNexis Butterworth,
Australia,

Table of Cases
Copper v. Wansworth Board Works (1893) 14 CB (NS) 180
Dimes v. Guan Junction Canal (1846)3 HLC, 759-786
Kangombe v. The Attorney General (1972) ZR, 14
Shilying Bob Zinka v. A. G SCZ, Judgment No. 9 of 1991
R v. Spencer (1766)3 Burr, 1839
William Jacks and Company (Z) Limited V O'connor, (in his capacity as Registrar of
Lands and Deeds) Construction and Investment Holdings Limited (1967) Z.R. 109 (C.A)

William Wise v. Attorney General , 1990/1992

Table of Statutes

Banking and Financial Services Act, Chapter 387 of the laws of Zambia
British Extension Act, Chapter 10 of the Laws of Zambia.
Land Acquisition Act, Chapter 189 of the laws of Zambia