ZAMBIAN OPEN UNIVERSITY
SCHOOL OF LAW
NAME: PATSON SWETA
STUDENT NO. :21812035
PROGRAM: BACHELOR OF LAWS DEGREE (LLB)
COURSE/CODE: CONSTITUTIONAL LAW I (LL II) 2ndASSIGNMENT
LECTURE: MR. BESA MULENGA
DUE DATE: 22rd OCTMBER, 2018
Quoted in Constitution, Governance and Democracy,1 AV Dicey stated the following:
“Democratic sentiment, further if not democratic principle, demands that law should on the whole correspond with public opinion; but when a large body of citizens not only are opposed to some law but question the moral right of the state to impose or maintain a given law, our honest democrat feels deeply perplexed how to act”.
With reference to the law of the constitution and democratic governance give a detailed discussion on the statement above
This essay will discuss, with reference to the law of constitution and democratic governance AV Dicey statement as Quoted in constitution, governance and democracy. ”Democratic sentiment, further if not democratic principle, demands that law should on the whole correspond with public opinion; but when a large body of citizen not only are opposed to some law but question the moral right of the state to impose or maintain a given law our honest democrat feels deeply perplexed how to act.”
The law of constitution and democratic governance is embedded in the idea that the government should be limited in its powers and that its authority depends on its observing these limitations. These limitations are in the form of individual or group rights against government, such as rights to free expression, association, equality and due process of law. The attempt to limit governmental arbitrariness, which is the premise of a constitution, has several times met with failure. This failure has had a negative effect on both human and material development of Zambia, (Matlosa, 2005).
Furthermore, the law of constitution and democratic governance demands that for the majority of people to benefit, specific criteria must be laid down to ensure that all presidential appointments, especially for senior positions in the military, the public service, and the judiciary, are informed by clearly defined objective criteria based on experience, expertise, and qualifications which limit the scope for partisan political considerations. In particular, there is a need to ensure that commissions making the necessary recommendations for appointments, such as the Judicial Service Commission, are genuinely independent and that those appointed directly or indirectly by the Government should never make up more than one-third of the membership, (Rosenbloom, 2003).
The law of constitution and democratic governance also encourages that, while the presidents in Zambia remain the sole repository of executive power to ensure that there is no confusion as to who bears ultimate responsibility for executive decisions; the impunity with which the presidents operate must be limited by adequate checks and balances by the people. The excessive powers, which most presidents have been vested with or have been allowed to claim for themselves through sloppiness in constitutional design, can be curbed in a number of ways, (Lynne, 2007).
The law of constitution and democratic governance also indicates that, Constitutional provisions must recognise the basic rights and duties of political parties were different citizens of the republic belongs too. Constitutionalising their status necessarily means that their actions will come under public scrutiny at all times, not just during elections. Perhaps the greatest merit of this process is that it will promote internal democracy and ensure that private actions can be brought against political parties which break their own rules. Constitutional provisions should lay down basic principles for elections within all political parties to ensure that persons with criminal records or who are subject to the legal process are barred from seeking or holding political office, (Shapiro, 1988).
Furthermore, the law of constitution and democratic governance demands that, Government institutions should be more effective and made more easily accessible to the poor and marginalised in society. For instance, ombudsmen and anti-corruption institutions should be decentralised and have offices in as many districts as possible and not merely in the capital city. They must be given powers to be both reactive and proactive. These institutions can only be credible if they provide what one can describe as low or retail constitutionalism which will address the rampant impunity and abuse of power by official’s at the most basic level of the public administration as opposed to high or wholesale constitutionalism that addresses the concerns of the elites, (Matlosa, 2005).
Furthermore, when there is good governance and majority of the citizen are involved in governance, they will be respect to the rule of the law and when this is achieved, peace is attained. A fair, predictable and stable legal framework is essential so that businesses and individuals may assess economic opportunities and act on them without fear of arbitrary interference or expropriation. This requires that the rules be known in advance, that they be actually in force and applied consistently and fairly, that conflicts be resolvable by an independent judicial system, and that procedures for amending and repealing the rules exist and are publicly known, (Rosenbloom, 2003).
The law of constitution and democratic governance also champions that, discretionary powers of administrative authorities must have clear legal boundaries and be subject to a number of constitutional and administrative law standards, such as objectivity and consistency in application. Furthermore, authorities should use administrative discretion in a transparent manner, following a pre-established administrative procedure, (Shapiro, 1988).
Furthermore, the principle of constitution and democratic governance requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population, (World Bank, 2008).
The law of constitution and democratic governance also promotes accountability, so that the majority citizen benefits. When there is good governance, they will be accountability and eventually peace will be attained. At the macro level this includes financial accountability, in terms of an effective, transparent and publicly accountable system for expenditure control and cash management, and an external audit system. It encompasses sound fiscal choices, made in a transparent manner, that give priority to productive social programmes such as basic health services and primary education vital to improving the living standards of the poor and promoting economic development over non-productive expenditures, such as military spending. At the micro level it requires that managers of implementing and parastatal agencies be accountable for operational efficiency. Auditing systems should meet international standards and be open to public scrutiny, (Rosenbloom, 2003).
Good governance requires that most citizens have an opportunity to participate during the formulation of development strategies and that directly affected communities and groups should be able to participate in the design and implementation of programmes and projects. Even where projects have a secondary impact on particular localities or population groups, there should be a consultation process that takes their views into account, (World Bank, 2008).
In summary, the fundamental idea behind the law of constitution and democratic governance provide a solid basis for the respect of the rule of law, democracy, public participation in agency rule making, representation of stakeholders and other interest parties, representativeness, transparency, fundamental fairness, effective supervision of administrative operations and other democratic values.
Good governance requires mediation of the different interests in society to reach a broad consensus in society on what is in the best interest of the whole community and how this can be achieved. It also requires a broad and long-term perspective on what is needed for sustainable human development and how to achieve the goals of such development. This can only result from an understanding of the historical, cultural and social contexts of a given society or community.
Lynne, G. (2007). Doctrine of Separation of Powers. University of Zambia, Faculty of Law. University of Zambia.
Matlosa, K. (2005). Elections and Democracy in Southern Africa, Progress, Problems and Prospects for Electoral Systems Reform: EISA) conference paper (Vol. 29).
Rosenbloom, D. (2003). Administrative Law for Public Managers. Boulder, CO: Westview.
Shapiro M (1988). Who Guards the Guardians? Judicial Control of Administration. University of Georgia Press, Athens, GA
World Bank (2008). World Development Indicators Online. Accessed through Economic and Social Data Service, Manchester.