DELEGATED

LEGISLATION
UNIT 3
 Introduction
• The Constitution provides that:
“62 (2) The legislative authority of the Republic is vested in
and exercised by Parliament.
(3) A person or body, other than Parliament, shall not have
power to enact legislation, except as conferred by this
Constitution.”

“67. (1) Article 62 or 63 shall not prevent Parliament from

conferring on a person or authority power to make statutory
instruments.”
 Introduction
Legislation can be divided into:
• Primary legislation, that is legislation passed by Parliament;
and

• Subsidiary or subordinate legislation, that is legislation created

by bodies or individuals under powers delegated to them by
Parliament. These powers empower them to create such
legislation.
 Definition
• Delegated Legislation refers to the law-making power
conferred by parliament on the executive.

• As the exercise of this law-making power is a derivative

power, not the original one, it is called subordinate legislation.

• It is subordinate in terms of the Act under which it is

exercised. It is void if it violates the parent Act, or transgresses
the power granted under the Act.
 Types of delegated
legislation
Delegated legislation consists of the following:

• (1) Statutory Instruments

• (2) By-Laws
• (3) Rules and Regulations
• (4) Circulars
• (5) Directives
 (1) Statutory Instruments
• The most popular form of delegated legislation in Zambia is
statutory instruments.

• Article 62 of the Constitution confers the legislative powers of

the Republic of Zambia in Parliament, which is made up of the
President and the National Assembly.

• Notwithstanding Article 62, Article 67 provides that

Parliament can confer on any person or authority power to
make statutory instruments.
 (1) Statutory Instruments
• The Interpretation and General Provisions Act, Cap 2 defines
“statutory instrument” as
any proclamation, regulation, order, rule, notice or other
instrument (not being an Act of Parliament) of a legislative, as
distinct from an executive character;

• Section 18 of Interpretation and General Provisions Act

provides that every statutory instrument shall be published in
the Gazette and shall be judicially noticed.
 (2) By-laws
• Other than Sis, there are other instruments, which have the
force of law such as by-laws.

• By-Laws have been defined as

rules made by some authority subordinate to the
legislature for the regulation, administration or management of a
certain district, property, undertaking etc, and binding on all
persons who come within their scope.
 (2) By-laws
• In case of the local authorities by-laws are rules made by the local
authorities, and their operation are restricted to the locality to which
they apply.

• Section 58 of the Local Government Act No. 2 of 2019 confers

powers on the Councils to make by-laws.

• No by-law can, however, have the force of law until it has been
confirmed by the Minister [section 62(1)].

• The argument in support of by-laws is that authorities need to make

laws suited to their particular circumstances.
 (3) Rules and Regulations
• A statute may authorise a minister or a government minister to
make a wide variety of rules and regulations.

• These rules, and orders in Council, are collectively known as

statutory instruments.
 (4) Circulars
• Government departments frequently issue circulars to other
authorities.

• By a circular, we mean no more than a communication of

which copies are sent to several persons.

• A circular may do no more than contain information, for

example, drawing the authorities attention to a recently
published report, or explaining a new legislation or a new
government policy, which the authorities are being called upon
to observe.
 (4) Circulars
• A circular may contain advice as to the exercise by the recipient of
some powers.

• A circular may go further than this and confer powers or impose

duties.

• Depending upon the language and effect, a circular may assume the
force of law.

• For instance, the guidelines of the sale of govt. houses to sitting civil
servants are contained in a circular issued by Cabinet. This provides
the legal framework and the authority to dispose of Govt. houses.
Restrictions on delegation
The Statutory Functions Act, Cap 4 restricts the delegation of statutory
functions.
• 5(1) No person may delegate a statutory function with which he is
vested unless he is expressly so authorised by the Act by or under which
such function was conferred or imposed:
Provided that the President, the Vice-President, a Minister, the
Secretary to the Cabinet, the Attorney-General or a Deputy Minister may,
subject only to section six, by writing under his hand, delegate to any
other person any statutory function with which he is vested.
• (2) Any delegation of a statutory function may be made subject to such
conditions, qualifications or exceptions as may be prescribed therein.
• (3) Any person who has delegated a statutory function may,
notwithstanding such delegation, discharge, such function himself.
Restrictions on delegation
6. (1) The President shall not transfer any statutory function-
(a) conferred on any person by the Constitution; or
(b) conferred on a Judge of the High Court or the Supreme
Court; or
(c) which he is expressly prohibited from transferring by
any Act.
• (2) No person shall delegate any statutory function-
(a) which he is expressly prohibited from delegating by any
Act; or
(b) unless a contrary intention is expressed-
o (i) which is conferred on him by the Constitution; or
o (ii) to make statutory instruments or to hear appeals.
 Rationale for Delegated
Legislation
• It saves parliamentary time without in any way, undermining
overall responsibility. Since parliament cannot go into minute
details, it can better concentrate itself on major issues of
policy and matters of principles.

• It is conducive to flexibility. Since details are left to be filled

up by the executive, they may be easily changed in response to
fast changing needs, without necessitating a formal
amendment on the Act
 Rationale for Delegated
Legislation
• It permits the utilisation of expert knowledge. Parliament is
not competent enough to determine minute details beyond
broad policy objectives.

• Parliament cannot foresee all sorts of contingencies which

may arise when a particular scheme is put into
implementation. It is, therefore, necessary that discretion is
allowed to the official to deal with the situation by issuing
rules and regulations to deal with ad hoc regulations.
 Rationale cont.…
• Parliament is not always in session. Emergencies, which are
not unlikely phenomena, call for prompt action. There is
therefore need for the Executive to be suitably empowered to
deal with emergencies.
 Pitfalls of Delegated
legislation
• Government officials are sometimes prone to ignore, or at
least underestimate, popular convenience and will – curtailing
individual rights and liberties, which results in arbitrariness
and injustice. It is prone to abuse.

• Matters of vital importance including policy matters are

sometimes delegated to the executive, argued to be
undemocratic. This is objectionable as policy determination is
a task of parliament.
 Pitfalls of Delegated
legislation
• Empowering clauses in the Act are sometimes vague, giving
almost a blank cheque to the executive.

• Inadequate scrutiny by parliament of the rules and regulations

makes delegated legislation also grow into despotism.

• A vast amount of law is created, statutory instruments out-

numbering by far the amount of Acts passed by Parliament
each year
 Safeguards
Judicial Control
• If a minister, government ministries, department, or statutory
agency or local authority exceeds its delegated powers its
action would be held by the court to be ultra vires (beyond the
powers of) and therefore void.

• Subordinate legislation can be challenged on the grounds that

it infringed the parent Act, breached a constitutional principle
or any other judicial review ground
 Safeguards
Parliamentary Control
There are several methods of Parliamentary control.
 Some SIs must be laid before Parliament
Section 22 (1) of Cap 2 states:
All rules, regulations and by-laws shall be laid before the
National Assembly as soon as may be after they are made...
 Safeguards
 Committee on Delegated Legislation
Standing Order No. 154 (4) sets out the functions of the committee
as follows:
 The Committee shall scrutinise and report to the House, through
the Speaker, whether the powers to make orders, regulations, rules,
sub-rules and by-laws delegated by Parliament are being properly
exercised by any person or authority within such delegation.

 If the Committee is of the opinion that a Statutory Instrument

should be revoked wholly or in part or should be amended in any
respect, it reports that opinion and the ground thereof to the House.
 Safeguards
 The consideration of the report is through a motion in the
House which if carried, becomes a decision of the House.