MULUNGUSHI UNIVERSITY

SCHOOL OF BUSINESS STUDIES

DEPARTMENT OF LAW, LABOUR AND HUMAN RESOURCE MANAGEMENT

STUDENT NUMBER: 202110067

PROGRAM: BACHELOR OF LAWS (LLB1)

COURSE: LEGAL PROCESS

COURSE CODE: BLL 111

LECTUER: HONORABLE NGOSA. F

DUE DATE: 14th OCTOBER, 2021

ASSIGNMENT QUESTION: WHAT DO YOU UNDERSTAND BY THE STATEMENT

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Constitutional supremacy means that the constitution takes precedence over all other law in a
particular country, for example, statutes, case law, customary law or any other source of law. It is
important to ensure that a constitution has legal supremacy. If a government passed a law that
violated the Constitution in that it was not in accordance with or conflicted with a constitutional
provision. Such law could be challenged in a court of law and could be overturned on the ground
that it is ‘unconstitutional’. The aim of this assignment is to discuss the statement “ the validity
of all other laws depends on their conformity with the Constitution?” Thereafter, a conclusion
will be drawn.

According to Alfred Chanda1, a constitution is defined in two distinct ways. The concrete sense
and the abstract sense. A constitution in the concrete sense is a document in which the most
important laws of the country are authoritatively ordained. It commands superiority over other
laws. It is a single document which sets the theme for the creation of all other laws in the nation.
In the abstract sense, a Constitution is a system of laws, customs and conventions, which define
the composition and power of organs of the state, and regulates the relations of the various state
organs to one another and to the private individual. It is not found in a single document.

According to Article (1) of the Constitution of Zambia 2, the Constitution is the supreme law of
the Republic of Zambia and any other written law, customary law and customary practice that is
inconsistent with its provisions is void to the extent of the inconsistency. In addition, Article 2
states that an act or omission that contravenes the Constitution is illegal. The effect of Article (1)
is commonly referred to as constitutional supremacy. This means that no rule or conduct can be
inconsistent with a constitutional rule. If such an inconsistency arises, it is resolved by declaring
the offending law invalid to the extent that it contradicts a constitutional provision. Conversely
stated, to be valid, all law and conduct must conform to the prescripts of the constitution. In this
sense, the constitution is the ultimate authority for law-making and lawful conduct.

Constitutional supremacy has various implications for a state, state actors, and persons within a
state’s jurisdiction, primarily that the rules in a constitution both establish and constrain the
exercise of state power. A state can only act in terms of its constitution. If it exceeds the bounds
of the constitution its conduct is legally invalid. Anyangwe 3 states that “the principle of
1
Chanda Alfred (2012)
2
Constitution (Amendment) Act No. 2 of 2016
3
Anyangwe (1997)

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constitutional supremacy presupposes judicial control of the constitutionality of laws; a peace-
maker in matters of constitutional checks … the principle by necessary implication enjoins the
courts to ensure that all other laws are in conformity with the Constitution”

The principle in the foregoing paragraphs was upheld in the case of Thomas Mumba vs The
people4. In this case, the court held that section 53 (1) of the Corrupt Practices Act 5, Chapter 91
of the laws of Zambia, was unconstitutional as it took away an accused person’s constitutional
right not to be compelled to give evidence at his or her trial. On the basis of the case of Thomas
Mumba cited above, it can hereby be concluded that in so far as interpretation of the constitution
is concerned, statutory provisions are subordinate to constitutional provisions unless otherwise
expressly stated. Simply put, any provision of the law contradicting the provisions of the
constitution is null and void to the extent of the inconsistency.

Furthermore, the notion that the validity of all other laws depend on their conformity with the
Constitution was upheld in the case of Christine Mulundika and 7 Others vs The People 6. At the
heart of this case was whether certain provisions of the Public Order Act 7 Chapter 104 of the
Laws of Zambia went against and therefore contravened Article 20 on protection of freedom of
association and Article 21 on protection of freedom of assembly and association. The court
stated that “invalidity and constitutional guarantee of the rights of assembly and expression
preclude the prosecution of persons and the criminalization of gatherings in contravention of the
subsection pronounced against.” Simply put, the court held section 5(4) of the Public Order Act
Chapter 104 of the Laws of Zambia null and void as it was in conflict with Articles 20 and 21 of
the Constitution.

In other jurisdictions such as the United States of America (U.S.A), laws and regulations that are
in conflict with the Constitution are given a similar treatment as is the case in Zambia. For
instance, in the landmark case of Marbury v. Madison8, which was the first U.S Supreme court
case to apply the principle of judicial review. In the USA, judicial review is defined as the power
of federal courts to void acts of Congress in conflict with the Constitution. Judicial review has a
different definition in Zambia in that it is not limited to laws that are in conflict with the
4
Thomas Mumba vs The Attorney General (1984) Z.R 38
5
CAP 91
6
Christine Mulundika and 7 Others vs The People (1995)
7
CAP 104
8
Marbury vs Madison (1803)

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Constitution only. However, in the case in supra, the USA Supreme Court in an opinion
delivered by the Chief Justice thought that if a Constitution is superior paramount law, then”...a
Legislative Act contrary to the Constitution is not law”. On the duty of the Court, Chief Justice
Marshal said; “It is emphatically the province and duty of the judicial department to say what the
law is. Those who apply a law to a particular case of necessity expound and interpret that rule. If
two laws conflict with each other, the courts must decide on the operation of each law. If a law
be in opposition to the constitution, if both the law and the constitution apply to a particular case
so that the court must either decide that case, conformably to the law, disregarding the
constitution, or conformably to the constitution disregarding the law the court must determine
which of these conflicting rules govern the case. This is of the essence of judicial duty.”

Closer to home, Chief Justice Anthony R Gubbay 9 of Zimbabwe noted that “As the custodian of
the Constitution of Zimbabwe, the Supreme Court has stood resolute in its determination to
strike down an Act of Parliament, Presidential or Ministerial regulations or excessive use of
power by the state which transgresses one of the constitutional provisions.”

In conclusion, this paper sought to understand the statement “the validity of all other laws
depends on their conformity with the Constitution?” A Constitution was defined as the supreme
or highest law of a nation. It sets out fundamental rules, written or un-written that control how a
government can exercise public power and authority. It therefore follows that laws, rules and
regulations and customs that do not conform with the provisions of the Constitution are
unconstitutional and can be declared null and void to the extent of their inconsistency by the
courts of law.

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Anthony R. Gubbay (1997)

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References

Articles referred to:

Anthony R. Gubbay, The protection and Enforcement of Fundamental Human Rights: The
Zimbabwean Experience, Human Rights Quarterly, Johns Hopkins University Press, No. 2 of
Vol. 19 May 1997 at 232.

Anyangwe, Carlson, ‘The Zambian constitution and the principles of constitutional autochthony
and supremacy, (1997) Vol. 29 Zambia Law Journal at p 1-32.

Chanda, Alfred. Constitutional Law in Zambia. Lusaka. Unzapress. 2012

Zambian cases referred to:

Christine Mulundika and 7 Others vs The People (1995)

Thomas Mumba vs The Attorney General (1984) Z.R 38

American cases referred to:

Marbury vs Madison (1803)

Legislation referred to:

Constitution (Amendment) Act No. 2 (2016)

Corrupt Practices Act Chapter 91 of the Laws of Zambia

Public Order Act Chapter 104 of the Laws of Zambia

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