Amb. Dr. Elias Munshya

By E. Munshya, LLM, MBA, MDIV.

The Zambian state daily exercises power over the population in various ways. However, the Zambian state exercises this power through designated officers tasked with the duty to perform and exercise this power. The exercise of this power generally belongs to a branch of the law known as administrative law. The power that administrative bodies and individuals use can be derived from several sources such as the common law, statute or the constitution. When evaluating whether an administrative body or officer has the power to do an act, it is important to check with the enabling statute to see whether the statute does indeed grant the power to that administrative body or officer.

Zambian government ministers do exercise administrative powers. This power is mostly derived from statute and some of it comes from the common law. Most statutes giving the ministers administrative law powers are framed quite generally. For example, the minister of home affairs has the power to make an assessment that a particular foreigner in Zambia has become a danger to Zambia and must be removed. This power, known as a “discretion”, is very wide such that the statute leaves it to the minister’s good judgment and prudence to determine who can be deemed as a danger. In the past, courts of law have given great deference to ministers to exercise this power. However, this assumption is now under attack, and administrative bodies including ministers are now expected to be reasonable when exercising administrative law duties such as performed by the minister of home ministers.

This is what arose in the recently concluded Supreme Court case of Esan v Attorney General (2016). Mr. Esan, a British national, had his work permit revoked and subsequently ordered deported after the minister made an assessment that he had become a danger to peace and good order in Zambia. It was in December 2012 when Mr. Esan upon his return from an overseas trip got detained at the airport in Lusaka and got transported to Ndola where he was ordered deported as he had allegedly become a danger to Zambia.

Mr. Esan sought judicial review of the minister’s action and at first instance, the high court ruled against him declaring that Section 34 of the Immigration and Deportation Act granted the minister of home affairs unfettered discretion to declare an alien dangerous to peace and good order in Zambia and deport such aliens.

Mr. Esan appealed against the high court ruling and on December 9, 2016, the Supreme Court issued its ruling. This ruling, coming from Chief Justice I.C. Mambilima, Judge R.M.C. Kaoma and Judge M. Musonda, is monumental for several reasons.

1. It recognises within the ambit of Zambian democracy that, “courts ought to be conscious of emerging trends towards more open and transparent government that promote the rule of law, human rights and curbs arbitrariness” (p.25). It is my hope that this statement is being read by all judges in Zambia and being given the serious consideration it deserves.
2. Esan shows that judges of the Zambian courts are willing to stand up to the potential tyranny of executive power. This looks like a great reversal from former Acting Chief Justice Lombe Chibesakunda’s court which clothed the presidency with almost infallible powers in the case of Munalula and Kajimanga v. Attorney General case. In Esan, the judges are saying that the law that seems to clothe decision makers with seemingly absolute discretion must be interpreted strictly and in ways that give effect to the democratic character of the Republic.
3. The judges in Esan clarify the law regarding the duty that a decision maker has to give reasons for their decision. The statute does not obligate the minister to give reasons why she decides that person A should be declared persona non-grata. Nevertheless, in the “dispensation of open government”, declared Chief Justice Mambilima, “there is a growing school of thought advocating that reasons must be given for administrative decisions to show the considerations that the decision maker relied on to arrive at the decision and most importantly, to assist the affected persons and those reviewing the decision when it is challenged” (p. 31). Most importantly and crucially, “failure to give reasons for a decision amounts to a denial of justice and is, in itself, an error of law” (p.31).

Esan is in my opinion the most significant administrative law decision to have come out of the Zambian judiciary this year 2016. We look forward to the development of the law in this area. With rulings like this one, the Zambian judiciary is in good hands.

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Citation: Munshya, E. (2017). “Review of the Zambian Supreme Court’s Decision in Folayinka Esan v Attorney General (2016)”. Elias Munshya Blog. (www.eliasmunshya.org)