Delegated legislation in Zambia: The effectiveness of controls on delegated legislation

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Ng'amb, Nyuma Kapamba
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In Zambia, being a society that has undertaken the positive task of providing welfare services for the community, it was long realised that there is a need for the legislature to delegate power to the executive or other agencies to make rules having a legislative character. The grant of such powers however have not strictly adhered to the principle that they should be within the narrowest possible limits and that they should carefully define the extent and purpose of delegated legislation and should provide for the procedure by which they can be brought into effect.Consequently, fundamental human rights have been abrogated by means of delegated legislation and the acts of the executive have been seen to directly and injuriously affect the person or property or rights of individuals in society.Further, the enactments which result from legislative delegated powers in Zambia have operated in such a manner that they are seen not to be fair and reasonable and in some instances, for example, sub-delegated legislation, are not drafted in clear form. They at times also deviate from general principles of legislation or from the directions laid down by the legislature.Though control mechanisms such as the Constitution, publication before coming into operation, consultation of interests and judicial review exist to check delegated legislation, there effectiveness has in many instances been doubted. For instance, statutory instruments through exclusion clauses have effectively been held by the court to take away its jurisdiction in controlling executive action. Sub-delegated legislation has also on many occasions persistently overlooked the need for publication yet instruments such as byelaw and orders directly affect the individual. Antecedent prescribed procedures of hearing, enquiry or consultation have been ignored or where implemented, only been restricted to persons mentioned in the enabling Act. This perpetuates unlawful or unreasonable executive action, as parties whose rights and interests are affected are not consulted. From inception, some procedures in the Zambian Constitution originally intended to deal with delegated legislation have to date shown no record of ever being invoked thus rendering them ineffective.In the light of all the above mentioned irregularities plus many others, there is urgent need for policy formulation as well as strict adherence to existing delegated legislation control procedures to facilitate a reasonably human rights conscious environment. This would be in line with the rule of law principles that require that an individual should not be subjected to unknown laws and should not be subjected to injurious and unlawful actions of the executive. IX
Delegated legislation , Legislative power