Please note that this is a draft. The material is under revision. ?This material has been prepared by John P. Sangwa and was initially part of a larger study undertaken by the author. The material is meant for students studying L341. The reproduction for any purpose whatsoever of this work or any part thereof in any form or manner is not allowed without the permission of the author. What is Administrative Law? Administrative law, as a subject, has defied definite and concrete definition.
Most scholars have confined themselves to formulating working definitions within the context of their works. There is, however, agreement 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. It includes, especially, the law governing judicial review of administrative actions. 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, and it is not the substantive law created by the legislative bodies or courts and administered by the agencies; instead, administrative law is the law, which governs the powers and procedures of agencies.
It includes procedural law created by the agencies but not the substantive law created by them, such as tax law, labour law, public utility law, transportation law, welfare law, town and country planning law, and the like.
Administrative Law Distinguished from Constitutional Law There is a distinction between constitutional law and administrative law. Constitution law refers to the formal rules, in the case of Zambia, embodied in one single document referred to as the constitution, which establish the main institutions of the state, prescribe their powers, their relation with each other and their collective position vis-a-vis the citizens. Administrative law on the other hand focuses on the powers vested in these institutions and how they use them.
For instance, the Banking and Financial Services Act, 1994, confers on the Bank of Zambia, the powers to regulate banking and regulated financial services and issue the necessary regulations from time to time. The Act itself and the regulations made pursuant thereto are not themselves of concern of administrative law. However, administrative law would touch on the authority of the Bank of Zambia to make regulations and upon the procedure employed in making them.
Administrative law tends to focus on three aspects of administration: rule-making procedure, where the public institutions or officers are conferred powers to make rules, adjudicative procedure where there is power to make decisions and judicial review, which focuses on the power of the court to review decisions of public institution to ensure that they are intra-vires the empowering legal instruments, and to declare them ultra-vires, where they are not 2 The Scope and Administrative Law Administrative law is concerned with public authorities.
It is concerned with the way power is acquired, where the public authorities get their powers from and the nature of those powers. It determines whether the exercise of a power subject to any particular procedure, or whether it must be exercised in any particular form. If so, it addresses the effect of failing to do so. It focuses on how to ensure that powers are used only for the purpose for which they are given – and that they are used effectively and efficiently. Administrative law is concerned not only with power but also with liabilities both of authorities and of their employees.
It is concerned with the bodies, which exercise these powers – central government departments, public corporations, local authorities and other institutions. The role of the courts, as independent institutions, in providing some checks on the exercise of public powers is the concern of administrative law. The courts are concerned with the legality of the administrative actions. Administrative law must be seen as an instrument of control of the exercise of administrative powers.
Administrative law, like any other branch of law is not an end in itself but means of getting things done by creating through the legal process, institutions, and granting them powers and imposing on them duties. The decision maker is subject to the law, but at the same time, he sees the law as something to use to achieve some end which society has chosen. Administrative law is a concern of a lawyer as much as for the public officers. There is need for public power, but there is also need for protection against its abuse. Administrative law attempts to address the age-old problem of abuse of power.
Administrative law as discussed in this course is limited to law concerning powers, procedures, and judicial review. It does not include the enormous mass of substantive law produced by the various agencies. Although public institutions are created by statutes, by executive order authorised by statute, and by constitutional provisions, and although their principal powers and functions are normally defined by the instruments, which create them, the great bulk of administrative law is judge-made law.
Some of the judge-made law either is or purports to be founded on constitutional or statutory interpretation. However, other judge-made law is made sometimes without reliance on either constitutional or statutory provisions. 3 SOURCES OF ADMINISTRATIVE LAW Introduction By sources we mean where one can look for answer whenever and administrative law issue arises. Administrative law is wherever law is. It is founded on the Constitution. It is in the statutes and in any form of statutory instrument.
Administrative law is also in the form of common law made by the courts and in the form of procedural rules made by administrative agencies themselves. Constitution The entire Zambian Constitution is in a way a source of administrative law. It is a limitation on government. It creates various organs of government and prescribes what they may or may not do and how they can do what they are empowered to do. For instance, Article 30 of the Constitution confers power upon the President to declare, after consultations with Cabinet, that a state of public emergency exists in Zambia.
The said provision puts a limitation on the exercise of this power by the President. The President can declare a state of emergency only after he has consulted with Cabinet. Failure to do so may render such a declaration null and void. Whether or not there has been compliance with the provisions of the constitution or whether the power has been exercised for the intended purposes is the concern of administrative law. Statutes Very often statutes, which create public institutions, prescribe their powers and how they are to be exercised.
It is the concern of administrative law to ensure that such powers are used for the realisation of the policy objectives on which in the statute is founded and not any other goals. Common Law The common law is creation of the courts. Following the concept of staredecisis, courts will decide a case today in the same way they decided in other cases in the past if comparable factual situations are involves. There is therefore a huge volume of guidelines on how the courts will decide a given case and this collection of clues is called common law.
Common law prevails on a point of law so long as there is no statute, regulation, or constitutional provision, which contradicts it. Judicial interpretations of statutes, regulations, and constitutional provisions are part of the common law. Much of the administrative law principles are in the form of common law. Formal laws do not regulate every aspect of administrative authority. 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. 4
Much of what is administrative based on the constitution is in fact common law. The Constitution is brief and at times vague. It is therefore, interpreted by the courts. It is in sense good that the Constitution is sometimes vague. This enables the each generation to interpreter it to accommodate social, political and other changes Administrative Instruments Some of the instruments with the force of law, which regulate public institutions, are made by the institutions themselves. This kind of law is imposed on the institutions by the public institutions themselves.
It is often in response to public pressure and public expectations exerted in different ways throughout the political process. For instance, the Industrial and Labour Relations Act has created the Industrial Relations Court. In order to ensure that people have access to the Court and receive fair hearing the Court has set its own rules, binding on itself and parties to the dispute, who have moved the Court. The rules, which the public institutions impose upon themselves, are often found in the same statute along with other rules and regulations made by the institutions.
For instance, in 1996, the President issued a directive that housing units owned by the government and local authorities be sold to sitting tenants. A circular to that effect was issued by Cabinet govern this exercise. Any dispute in this regard has been resolved by referring to this circular. As for the units owned by local authorities, the Ministry of Local Government and Housing issued a similar circular.
The first phase began from the moment British influence was established in the territory, which became known as Northern Rhodesia. The second phase, began long after the first phase had been properly grounded, focuses on judicial review; and the dominant part of judicial review is constitutional and statutory interpretation. Whereas other Western countries have already gone through the third phase, which focuses on procedures for formal adjudication and formal rule making, Zambia is just embarking on this phase. 9The value of such an approach is ably illustrated by Gordon R. Woodman, “Constitutions in a World of Powerful Semi-Autonomous Social Fields”, Third World Legal Studies – 1989, 120. He observes at pp. 2-3. : Although the skills of a lawyer are useful in the study of non-state laws, an adequate appreciation requires some revision of the traditional approach of students of state law. It is necessary to discard the concepts and axioms induced by the tendency of state laws to deny the legitimacy of other laws….
An effective state constitutional order takes account of the social realities which affect its objects and functioning. In Africa, where the relative unimportance of state law is at least as marked as anywhere else, other social orderings cannot realistically be overlooked. 39 The Development of Administrative Structures Zambia is a product of greed and conquest by the powerful, and of the weak seeking a haven for peace and security. The dispersal from the north, which involved the Lozi, Bemba, Lunda and other tribes, was largely precipitated by smaller chieftaincies seeking independence.
However, the migration of the Ngoni and the Kololo from the south was for the search of a sanctuary. The coming of Europeans brought another dimension to the history of Territory. Their conquest of the Territory was for economic reasons: to find raw materials to keep the wheels of the factories in Europe turning and good land to settle the landless people of Europe. The realisation of the economic objective was possible only if both internal and external threats to British presence in the area were taken care of.
The internal threats were addressed through the power of the pen, like in the case of the Litunga of Barotseland, and through the power of the sword as against the Ngoni. The motivating force was the greed of the private entrepreneurs. The role of the Imperial Government was merely that of protecting the interests of its citizens when threatened by another imperial power or forces within the Territory. The history of Northern Rhodesia is also a history of two competing cultures, one claiming superiority over the other. The Europeans came with new ideas about social formations.
All the existing tribal groupings were broken down and made part of one heterogeneous society curved out of the entire continent without regard to history, customs and origins. The impact of Western colonial rule is still indelibly imprinted in Zambia decades after independence. As Europeans moved into the non-Western world, north of the Zambezi, as traders, merchants, missionaries and adventurers, they carried with them expectations that all societies should be properly organised as states possessing attributes of sovereignty and adhering to rule of law. 0 This was not the case in the area, which became known as Northern Rhodesia. After the establishment of settlements, Europeans insisted that human relations, and more particularly the management of disputes, should fall under explicit and universally based laws. 21 To make life much more amiable 20Lucian W. Pye, “Law and the Dilemma of Stability and Change in the Modernization Process,” Vanderbilt Law Review 17 (1963), 24-25. 21Ibid. 40 they started building the state structures. The administrative structures, which emerged, made up the constitutional structures for the Territory. 2 The Making of Northern Rhodesia As a geographical unit, Zambia was created through the initiative of Britain during the partition of Africa. Following the examples of other European powers at the time in staking claims to large territories in the Africa, Britain was keen to extend sovereignty north of South Africa. Little effort was necessary to persuade the Crown to grant John Cecil Rhodes, at his request, a Charter incorporating the British South Africa Company, which was to pursue British interests in the area. This Charter was granted in 1889.
The Charter empowered the Company to acquire territories through concessions, agreements and treaties by or with indigenous rulers and administer it – without any financial assistance from the British Government. The Company’s field of operation was defined to be the territory north of the Crown colony of British Bechuanaland and of the Transvaal and west of the Portuguese possessions in East Africa. Rhodes sent agents to conclude treaties with local rulers. Through such treaties and conquests of the more militant tribes, Rhodes effectively asserted his, and ultimately British presence.
It now remained for Britain to secure the agreements of other European powers in accordance with the terms of the Berlin conference of 1884 – 1885. This was done through a series of treaties, which collectively determined the present border of Zambia. The name “Rhodesia” was first used to refer to the territories (obtained by Rhodes) in 1895. It was officially approved in 1897, by the British Government. In 1895, due to its vastness the territory was, administratively, divided by the BSA Company into two: North-Western Rhodesia and North-Eastern Rhodesia.
Both of them were being administered by the Company under the supervision of the British High Commissioners in South Africa and Nysaland respectively. At the time, a few outposts of administration were being established in the sparsely populated territories. In 1899 and 1900, two very important Orders in council were promulgated. The Orders, the Barotse North-Western Rhodesia Order in council and the North-Eastern Rhodesia Order in council, clarified the provisions relating to 22See H. F. Morris and J. S. Read, “Indirect Rule and the Search for justice”, (1972), 287, quoted n Filip Reyjents, “Authoritarianism in Francophone Africa from the Colonial to the Post Colonial State”, Third World legal Studies – 1988, p. 59. 41 the administration of the two territories to which they referred and also established the territories as “colonial protectorates”. Under the North-Eastern Rhodesia Order in Council, 1900 North Eastern Rhodesia was to be administered by an ‘administrator’, appointed by the Company with the approval of the Secretary of State for Colonies. The administrator was empowered to make regulations for the administration of justice, the raising of revenue and generally for “… he peace order and good government”. These regulations had to be approved by Her Majesty’s Commissioner for the British Central African Protectorate (Nyasaland now Malawi) and could be disallowed by the Secretary of State. The Commissioner himself could initiate legislation termed “Queen’s Regulations”. Under the North-Western Rhodesia Order in Council, 1899, the British Government retained firmer control in North-Western Rhodesia through the High Commissioner in South Africa because of the unresolved issue of the western border of the territory with the Portuguese territory of Angola.
The issue was not resolved until 1905. The High Commissioner had the power to legislate by proclamation. The Company had administrative powers, which were exercise through an administrator. Developments in the two areas indicated that they would best be administered as one territory. In 1911, Barotse North-Western Rhodesia and North-Eastern Rhodesia were merged to form Northern Rhodesia. The Company retained its administrative authority in the new territory. It was empowered to appoint an administrator for the territory, subject to the approval of the Secretary of State.
The legislative authority, which was to be exercised by proclamations, remained in the High Commissioner in South Africa. This arrangements prevailed until 1924 when company rule was terminated. Administration of Justice (a) Developments Under Company Rule: The major concern of the settlers was to establish structures for the settlement of disputes. Amongst the first institutions to be established in the territory were the courts. The major task of the Company was to establish the basic instruments of government administration. The judicial functions of the government were undeveloped.
Nonetheless, the legislative framework for the establishment of courts was already in existence. The Africa Order in Council of 1889, provided that every person holding Her Majesty’s Commission as a Consul-General should, if so authorised by the Secretary of State, form a consular court. This Order in Council even provided a code for criminal and civil procedure. In the event, it was not found 42 necessary to establish any consular courts as reliance was placed upon the second method of establishing courts: the Charter of the British South Africa Company itself.
One of the fundamental principles which was to be respected in the administration of justice was the need to differentiate between the indigenous people and the immigrants. Section 14 of the Charter directed the Company to have “careful regard” to the laws and customs of the local tribes. Thus, the courts which were established were limited in their jurisdictions to give effect to this principle. Between 1899 and 1909, two hierarchies of courts were established in Barotse North-Western Rhodesia and North-Eastern Rhodesia. Each consisted of a High Court, Magistrates’ courts, the Administrator’s Court and Native Commissioners Courts.
The High Courts were courts of unlimited jurisdiction and administered English law and local enactment, except in civil cases between Africans, when they were required to administer African customary law. The Administrators’ Courts also had similar jurisdiction as the High Court. They were introduced to enable the Administrators of the territories to have a role in the administration of justice. The Magistrates’ Courts were courts of first instance with limited jurisdiction. They were mainly concerned with adjudicating over disputes between white settlers and with administering criminal law.
The law administered in these courts was English law. The Native Commissioners’ courts were established in order to administer African customary law between natives. All the judges and the members of the other courts were nominated by the Company but appointed by the British High Commissioner in South Africa. They were amenable to dismissal as well. Although existing African traditional courts were not officially recognised, some limited protection was extended to customary law. First by the Barotse North-Western Rhodesia Order 1899 and later by the North-Eastern Rhodesia Order 1900, which for the first time invoked the repugnancy clause.
This clause provided that customary law be to be administered so far it was not “repugnant to natural justice or morality” or to any statutory law. Two systems of courts were established in each of the two territories by 1909. One system administered English law and statutory law between Europeans in civil cases. It also administered English penal law for all the inhabitants of the territory. The other system administered African customary law in civil cases between Africans. In 1911, when it was decided to combine North-Western Rhodesia and NorthEastern Rhodesia into a single country, it also became necessary to re-organise 3 the judicial system. However, as there also existed two well-established judicial systems, few changes were necessary beyond merging the two systems into one. There emerged a High Court of unlimited original and appellate jurisdiction, magistrates’ courts and native commissioners’ courts. The Administrator’s court was abolished. High Court judges were henceforth appointed by the Secretary of State in Britain. The officers in lower courts were appointed by the Company. Between 1911 and 1924, only minor changes effected to the judicial system and none of these affected the judicial system or its basic structure. b) Developments During Direct British Administration: During the early part of the 1920’s it became apparent, Northern Rhodesia was becoming too costly and complicated a territory to be administered by a company. In 1924, the company relinquished its powers in favour of direct British rule. The 1911 Northern Rhodesia Order was revoked and in its place was promulgated the Northern Rhodesia Order in Council, 1924 and the Northern Rhodesia (Legislative Council) Order in Council, 1924, and the Royal Instructions to the Governor of 1924. These three documents together constituted the basic constitutional instruments of Northern Rhodesia.
The Northern Rhodesia Order established the office of Governor, to represent the Crown. He was assisted by an executive council, the members of which were appointed by the Crown and served at his pleasure. In accordance with the “colonial protectorate” status of the territory, constituent power remained in the Crown and was exercised through Orders in Council made under the Foreign Jurisdictions Acts of 1890 and 1913. However, for the purpose of enacting laws to facilitate the administration of the country, a legislative council, dominated by (appointed) officials, was established.
This council exercised its legislative power through the enactment of ordinances. The change from company rule to direct British rule did not necessitate radical changes to the judicial system. The changes made merely reflected change-over to colonial rule. The power to determine the number of judges and magistrates in the country and to appoint them subject, in the case of judges, to such instructions as the Crown might give was vested in the Governor. There were also provisions permitting appeals from the High Court to the Privy Council.
In 1938, it was decided to establish a court of appeal for the three British colonies in central Africa, comparable to the East African Court of Appeal and Court of Appeal for West Africa. This Court was called the Court of Appeal 44 for Rhodesia and Nyasaland. The court was established under Ordinance No. 35 of 1938. It became the highest court for the three territories in criminal cases but provisions were included for further appeals to the Privy Council in civil cases. Meanwhile, the important issue of how best to administer the affairs of Africans was receiving much attention.
It was decided soon after the assumption of direct British administration to extend the famous principles of indirect rule, to the territory. This principle, which had already been applied in other British colonies, entailed the use of existing African institutions to effect colonial rule, thereby minimizing both the antagonism of the people and expenditure. Indirect rule was implemented in Northern Rhodesia by establishing native authorities and recognising native courts. Native authorities were established in all areas of the territory nd were vested with minimal local government powers such as taxation and policing. Native courts were first recognised by statute in 1929, with the enactment of the Native Courts Ordinance. Under this ordinance, the Governor was empowered to constitute any “chief, headman, elder or council of elders” in any area into a native court. This did not, however, prevent the exercise of judicial powers by those who already did so in their own communities. The Native Courts established under this Ordinance were separate from the rest of the judiciary: the High Court and the magistrates’ courts.
No appeals lay from the Native Courts to the Magistrates’ Court or to the High Court. Nevertheless, there were already in existence some Native Commissioner’s Courts. These assumed the role of appellate courts in relation to the Native Courts. Native courts were only empowered to administer customary law and to adjudicate over civil cases in which the parties included Africans. In 1936, it was deemed necessary to clarify the status and jurisdictional limitation of native courts. This was done by the enactment of the Native Courts Ordinance 1936 and the Barotse Native Courts Ordinance 1936.
Apart from these changes, which enabled the Government to establish a number of native courts covering the whole territory, this system of administering justice remained in force until 1966. (c) Developments During the Federation of Rhodesia and Nysaland: Even before the Second World War, two issues were to dominate Northern Rhodesian politics and determine its constitutional development: the demand by African nationalists for majority rule and/or self-determination and the campaign by white settlers for closer association or amalgamation with 45 Southern Rhodesia.
As early as 1929, the Hilton Young Commission advised that: In the present state of communications the main interests of Nyasaland and Northern Rhodesia, economic and political, lie not in association with the eastern African territories, but rather with the self-governing colony of Southern Rhodesia. In 1938, the Bledisloe Commission was appointed to “explore the feasibility of closer association between the two Rhodesias and Nyasaland. ” The Commission also endorsed the idea of closer association between the three territories, but did not recommend immediate steps in that irection. Nonetheless, consultations continued between white politicians in Northern Rhodesia and Southern Rhodesia and the British Government. Finally, at a conference held at Victoria Falls, in Northern Rhodesia, in 1951, a firm decision was arrived at recommending to the British Government the establishment of a federation in Central Africa. This recommendation was accepted. The Federation of Rhodesia and Nyasaland Act, enacted by the British Parliament in 1953, authorised the Queen to establish such a federation.
In the same year, the Federation of Rhodesia and Nyasaland (Constitution) Order in Council joined the three territories to form the Federation of Rhodesia and Nyasaland. Under the federal scheme, the three territories retained their respective statuses: Northern Rhodesia and Nyasaland remained protectorates, while Southern Rhodesia remained a colony. The Constitution provided for the office of a Governor-General, appointed by the Crown. He was the personal representative of the Crown. The Constitution also established a federal legislature of thirty-five members.
This body had legislative power over certain matters exclusive of the territorial legislatures (the federal legislative list) and powers to legislate over other matters concurrently with the territorial legislatures. The establishment of the Federation had one important effect upon the judicial system of Zambia. The Federal Constitution established a Federal Supreme Court. The Court consisted of the Chief Justice, appointed by the Governor-General and between two and six judges, who were to include the Chief Justices of the three territories.
Under Article 53 of the Constitution, the Supreme Court had exclusive jurisdiction over matters relating to the interpretation of the Constitution and matters in which the Federal Government was a party. The Supreme Court also had appellate jurisdiction from the High Courts of the three territories. Article 61 provided for appeals from the Supreme Court to the Judicial Committee of the Privy Council. 46 The idea of establishing the Federation of Rhodesia and Nyasaland was not supported by all the sectors of the population. The Africans of Northern Rhodesia, in particular, had vehemently opposed any form of association with
Southern Rhodesia. Instead, they had campaigned for reforms to the electoral law to introduce universal adult suffrage. As African political parties were formed Africans began to demand self-government and independence from British rule. The decade 1953 to 1963 was volatile in Northern Rhodesia. The many factors of that era culminated in a general election, based on “one man one vote”, in 1962, which was won by the United National Independence Party, led by Kenneth Kaunda. He formed a coalition government with the African National Congress in 1963. The Federation was dissolved in that year.
In 1964, under yet another constitution, fresh elections were held which were won outright by the United National Independence Party. This Party formed the first Government when Northern Rhodesia was granted independence in October 1964. (d) Developments After Independence: The new constitution provided for a popularly elected executive President who was also the Head of State. It also provided for a Vice-President and a cabinet appointed from among the members of the National Assembly. The legislative power was vested in a Parliament consisting of the President and single chamber National Assembly.
The Assembly consisted of seventy-five elected members, not more than five nominated members nominated by the President and a Speaker. The legislative power was exercised through Bills passed by the National Assembly and assented to by the President. Enactments were termed “Acts of Parliament”. Quite expectedly, independence brought about some changes in the judicial system of Zambia. The dissolution of the Federation of Rhodesia and Nyasaland ended the Federal Supreme Court. Within Zambia, the January 1964 Constitution established a Court of Appeal with unlimited appellate jurisdiction.
The Independence Constitution also provided for a Court of Appeal consisting the Chief Justice, one Justice of Appeal and other puisne judges. The Constitution also empowered the President to declare that the Judicial Committee of the Privy Council should be an appeal court for the Republic. The President never exercised this power and the provision was not repeated in the 1973 Constitution. The Independence Constitution created a Judicial Service Commission under the chairmanship of the Chief Justice. The Constitution conferred advisory and executive functions over appointments to judicial offices upon the 7 commission. The provisions relating to the Judicial Service Commission were substantially retained under the 1973 constitution. The subordinate courts were retained by and large in their old form even after independence. Various aspects of the Subordinate Courts had undergone changes since the enactment of the Subordinate Courts Act in 1934. The changes related mostly to jurisdiction and other related matters, and did not affect the basic structure and status of these courts. After 1964, the notable change was in the manner of appointing magistrates.
They were to be appointed by the Judicial Service Commission. Some radical changes were made at the level of the Native Courts. The general feeling at the time was that Native Courts had to be integrated in the judiciary. The first step came in the form of provision that appointments of the Native Courts’ presiding justices were henceforth to be made by the Judicial Service Commission. Meanwhile, initiatives were underway for the enactment of a new statute to provide for Native Courts. The Local Courts Act was enacted in 1966. It repealed the Native Courts Ordinance and the Barotse Native Courts Ordinance.
It constituted Local Courts in place of Native Courts. It provided for appeals from Local Courts to Magistrates’ Courts. The 1966 Local Courts Act was aimed at integrating the Local Courts into the judiciary to produce one hierarchy of courts instead of two. The introduction of the one-party system did not bring about major changes in the judicial system of Zambia. It did, however, bring about one important change. The Court of Appeal was abolished and in its place, a Supreme Court was established. Very little has changed in the judiciary even after the introduction of the Constitution of 1991.
The same is true even after the enactment of the Constitution amendment Act No. 18 of 1996. Before concluding this part, it is important to summarise the judicial system in place today. The Supreme Court of Zambia, established under Article 91 of the Constitution is the highest court in the country. It is a court of unlimited appellate jurisdiction. It consists of the Chief Justice, the Deputy Chief Justice and seven appeal judges or such greater number as may be prescribed in an Act of Parliament. The High Court of Zambia is the second highest court.
It is a court of unlimited original and appellate jurisdiction, except for matters specifically reserved for the Industrial and Labour Relations Court and has original jurisdiction over all civil and criminal matters. The High Court consists of the Chief Justice (ex-officio) and such number of puisne judges as may be determined in an Act of Parliament. The High Court also has supervisory powers over all proceedings in all the courts subordinate to it. 48 The Constitutional Amendment Act No. 18 of 1996 has introduced an interesting development in the number of courts for the Republic.
The Industrial Relations, which was from its inception a tribunal is now, became part of the Judicature of Zambia. The real benefits of this change are hard to see, but the most immediate problem has been confusion between the powers of the High Court and that of the Industrial Relations. Furthermore, whereas the role of the Industrial Relations Court is to do substantial justice, there is a steady departure from this guiding principle. The Industrial Relations Court has become more and more legalistic in its determination of cases although, as an institution, is it ill-equipped for this role.
Cases are determined not on the basis of the facts of the case or in order to do substantial justice, but because there are legal precedents to that effect especially those from the Supreme Court. The other courts down the hierarchy are the subordinate courts. These are provided for under the Subordinate Courts Act. They are presided over by magistrates. Both the courts and the magistrates are divided into classes, and the relationship of the various classes of magistrates to the various classes of subordinate courts is clearly stated by Section 3 of the Act.
There shall be and are hereby constituted courts subordinate to the High Court in each district as follows: (i) A Subordinate Court of the first class to be presided over by a Senior Resident magistrate, Resident Magistrate or a magistrate of the first class; (ii) a Subordinate Court of the second class to be presided over by a magistrate of the second class; (iii)a Subordinate Court of the third class to be presided over by a magistrate of the third class. The jurisdiction of each subordinate court is limited both territorially and substantively on a graduating scale depending on the class of the court and the magistrate.
Subordinate courts also have appellate jurisdiction to hear appeals from local courts. Finally, at the bottom of the hierarchy of courts are the Local Courts, established under the Local Courts Act 1966. They are presided over by Local Court presidents. Their jurisdiction is limited both territorially and in terms of the substantive law. With regard to the latter, the statute provides that they may only administer African customary law and such other statutory laws as may be explicitly extended to them.