In todays political world, democracies are characterised by shared decision making by the

executive, legislature and the judiciary branches as the three aims of government. The
constitution outlines the formal structure of how the three arms operate and interact. Zambia
operates on the principle of the constitutional supremacy; hence the three arms of government
are expected to provide checks and balances on each other on the exercise of their constitutional
powers. This essay will outline the formal distribution of powers and functions among these
three arms of government and the explain the variances that exist in their relationship due to the
electoral system and political environment in Zambia.
Zambias government is made up of three autonomous branches: the executive, the legislative,
and the judicial. The Executive Branch is headed by the president, his vice president, and the
ministers who are appointed to fill the positions. Legislative power of Zambia vests in
Parliament, which consists of the National Assembly and the President. The legislature consists
of a unicameral body of 150 elected representatives and up to eight appointed members. The
judicature is made up of the Supreme Court, the high courts, any other lowers courts that the
legislature should deem necessary.

The Executive
Article 33(2) of the Constitution of Zambia provides that the executive power of Zambia vests in
the president and shall be exercised by him or her directly or through officers subordinate to him.
Article 33(1) of the Constitution of Zambia provides that the president of the Republic of Zambia
shall be the head of state and government as well as the commander-in-chief of the defence
force. The president is elected whenever Parliament is dissolved or the office of the president
becomes vacant, in terms of article 34 read with article 38 of the Constitution. The election
procedure is set out in article 34, and the election of the president shall be direct by universal
adult suffrage (citizens over the age of 18) and by secret ballot. Article 49 of the Constitution of
Zambia provides for a Cabinet consisting of the president, the vice-president and the ministers.
The main role of Cabinet is to advise the president with respect to the policy of the government,
in terms of article 50. In terms of article 51, Cabinet and deputy ministers are accountable
collectively to the National Assembly. The vice-president is appointed by the president from
1

among the elected members of the National Assembly, in terms of article 45(2) of the
Constitution of Zambia. The general role of the vice-president is to perform functions specified
in the Constitution, any other law and as assigned to him by the president, in terms of article
45(4) of the Zambian Constitution. In terms of article 46 of the Constitution of Zambia, there
shall be such ministers as may be appointed by the president from among the members of the
National Assembly. Furthermore, in terms of article 47, the president may also appoint such
deputy ministers from among the members of the National Assembly as he considers necessary
to assist the ministers.
Ultimately, all of the power of the executive branch rests with the president. Besides these
conventional powers, the president also has the power to dissolve the National Assembly and in
turn call for elections (including his own). Most strikingly, however, the president has the power
to appoint the Attorney General as well as the Director of Public Prosecutions, both of whom
serve at the pleasure of the president. If the president has not dissolved the National Assembly
and called for elections himself, then Parliament (which is comprised of the National Assembly
and the president) picks the day for elections. Since 1996 the president has been limited to
serving two five-year terms. Elections are by universal adult suffrage (age 18) and are done by
popular vote. The impeachment of the president involves both the legislative and the judicial
branches of government.
Finally, the President could declare states of emergency, and in fact, Kaunda imposed a state of
emergency in 1964 that remained in effect throughout all the years of UNIP rule, until Chiluba
cancelled it a week after the November 1991 elections. Although the National Assembly was
supposed to approve a state of emergency and re-confirm its approval every six months, a 1969
constitutional amendment permitted a state of emergency to remain in effect indefinitely, unless
and until the National Assembly acted affirmatively to terminate it (or until a new President took
office). Even more important, nowhere did the 1964 constitution define the effect of a state of
emergency: what rights were or could be curtailed, and what authority and discretionary powers
the President could exercise that was otherwise denied to him

THE JUDICIARY
Article 91of the Constitution of Zambia vests judicial authority of the Republic in the Judiciary.
The judiciary consists of the Supreme Court of Zambia, the High Court of Zambia, the Industrial
Relations Court, the Subordinate Courts, the Local Courts and such other lower courts as may be
prescribed by an Act of Parliament. The Supreme Court is the highest and final court of appeal.
Except in cases involving Presidential election petition, the Supreme Court has no original
jurisdiction. The High Court, on the other hand, has original jurisdiction in all matters and as
such deals with both civil and criminal cases. The Industrial Relations Court deals with all labour
related matters. Further, the Zambian Constitution provides that the judiciary shall be
autonomous, impartial and subject only to the Constitution and the law, which it must apply
impartially and without fear, favour or prejudice.
Judges are appointed by the President on the advice of the Judicial Service Commission whose
composition is provided for in the Constitution, these appointments are Subject to ratification by
the National Assembly. The current establishment of judges is 50 High Court Judges and 11
Supreme Court Judges including the Chief Justice. Judges enjoy a security of tenure. They may
only be removed from office for either incapacity, gross incompetence or if one is guilty of gross
misconduct. In each of these cases, a tribunal has to be appointed to probe the allegation against
a Judge and advise the President accordingly whether or not such a Judge should be removed
from office.
In considering the role of the judiciary, it is cardinal to consider its powers and functions. The
first fundamental role of the judiciary is to uphold the Constitution while the second is to provide
a platform where citizens can turn to for protection when their constitutional rights have been
violated. The other roles of the Judiciary, envisaged by the Constitution include interpreting the
law, adjudicating disputes of both civil and criminal nature, determining the sentence of a
convicted criminal offender judicial review of administrative action and protecting the rights of
subjects by ensuring that justice is done under the rule of law.

THE LEGISLATURE
3

According to the Article 62 of the Constitution of Zambia, the legislative power of the Republic
of Zambia is vested in Parliament, which consists of the President and the National Assembly.
The National Assembly consists of one hundred and fifty (150) elected Members for term of five
years and not more than eight (8) nominated Members and the Speaker. The Zambian
Constitution mandates the President to appoint the Vice President, Cabinet and Deputy Ministers
from among the Members of Parliament. The Zambian Parliament is unicameral. The main
functions of the Zambian Parliament are to legislate, to oversee operations of the Executive arm
of government and to approve government expenditure and taxation measures.
The doctrine of separation of powers under the Zambian system is not adhered to in the strict
sense of the doctrine. This is due to the fact that there is a close linkage in the operations of the
three organs of government. The close linkage between the Legislature and the Judiciary can be
traced from the fact that while both organs are creatures of the Constitution, their roles are
complimentary. For instance, Judges are appointed by the President on advice by the Judicial
Service Commission subject to ratification by the National Assembly in accordance with Article
95 (1) of the Constitution. This appointment system ensures transparency as it takes into account
the suitability of a nominee by questioning the competence of the nominee. The process further
minimises political influence in the appointment of Judges.
In its execution of duties, the Judiciary checks on the powers of the legislature. For instance, the
Supreme Court of Zambia in the landmark decision in the case of Christine Mulundika and 7
Others v The People had occasion to determine whether certain provisions of an Act enacted by
Parliament, the Public Order Act, were ultra vires the Constitution and, therefore, null and void
ab initio. In the decision, the Court annulled sections 4 and 5 of the Public Order Act for being
in contravention of Articles 20 and 21 of the Constitution.
Many times the president uses his executive powers to over rule the legislative powers. For
example in the run to the 2011 general elections, the then president Rupiah Banda used his
powers to delay the announcing of the polling dates and made the announcement on dates he
presumed to be ok.The President also enjoys two additional powers that undermine the National
Assembly's control over national fiscal and budgetary policy.
4

Electoral Systems and Political Environment

The degree of separation or unity between the legislative and executive branches is perhaps the
major factor in determining legislative strength and independence. Specifically, the cleaner
separation between executive and legislative powers in presidential systems encourages
presidential legislatures to play more independent lawmaking and oversight roles than their
parliamentary counterparts.

In parliamentary systems, the parliamentary majority party or

coalition selects the chief executive from among its members. Cabinet members are also named
from the parliamentary majority. This unity between the legislature and executive is a
disincentive for the legislature to develop a strong committee system or deep policy expertise,
which could be used to challenge the executive. A loss of support or vote of no confidence in the
government results in both the government and parliament leaving office. Not surprisingly,
committees in parliamentary systems tend not to have large professional staffs, and policydecisions will generally be made within the ruling party or coalition and through government
ministries. Executive and legislative conflict is not common in parliamentary systems. Divisions
within the governing coalition however, reduce this executive parliamentary unity.
In presidential systems, by contrast, the president and legislature are elected separately, from
different constituencies and often for different terms. The president selects the cabinet from
outside parliament. Term lengths for presidents and parliaments are fixed and the fates of the
legislature and president are not intertwined as they are in parliamentary systems. With the
government thus divided, parliament has incentives to develop strong, effective committees and
to play a competitive lawmaking role. These incentives, however, do not mean that the
legislature will necessarily become a powerful, independent institution like seen in Zambia were
the head of the executive makes all the decisions and the legislature ascents to it. Lack of
political will to develop a strong legislature, poor infrastructure, strong political party control
from outside the legislature, a tradition of acquiescence to a strong executive. These all reduce
the likelihood that the legislature will become a strong and independent institution.

In the Zambian each branch of government has a distinct role to play and no one branch should
interfere in the others function. Parliament makes the law, the executive implements the law
while the judiciary interprets the law. But this doctrine is quite subtle. Our system of government
does allow for some overlap. For example, the executive is almost exclusively made up of
members of parliament and the president as head of the executive is a principal actor in the
legislative process. For example, while the judiciary is the ultimate interpreter of the law, both
parliament and the executive too, have interpretive functions. At the heart of Justice
Lengalengas March 23, 2016 ruling in the Geoffrey Bwalya Mwamba v. the Attorney General,
the Speaker of the National Assembly, and the Electoral Commission of Zambia (the GBM
2016 case) is the question of whether the Speaker as head of parliament had the power to make
the declaration that GBMs Kasama seat had become vacant. Edwin Mbewe, a legal
commentator and 4th year student at the Zambia Open University Law School has correctly
observed that the reason for Justice Lengalengas decision (known as ratio decidendi in legal
jargon), was that the Speaker has no powers to declare a seat vacant and that function is purely
the preserve of the High Court. It was this ratio that led Madam Justice Lengalenga to reverse
the Speaker and to grant the Kasama parliamentary seat back to GBM. My concern with Justice
Lengalengas ruling is that it betrays the doctrine of separation of powers and the ruling
misconstrues the High Courts role when interpreting the law.
In many cases the work of the legislature is compromised due to the fact that members of
parliament also belong the political parties and the majority belong to the ruling part. The law
makers hence operate under the rubber stamp system as they fear of losing their jobs. The
legislature manly comprise of people with strong political affiliation to the political parties and
usually offered jobs on patronage.
In conclusion, the Zambian governmental power is exercised by three branches of
government, namely: the executive, the legislature and the judiciary. The constitution separates
the functions and powers of the three arms in order to avoid the abuse of power by any single
branch. The relationship among the three is mainly influenced by the electoral system and the
political environment as seen in the case of Zambia.