©Mark Timmerman
By Chola Abraham
November 25, 2025
Introduction
The Public Protector, also
known as the Ombudsman, has been in existence since the 1973 Constitution, and
it has survived all subsequent constitutions, until the 2016 Amendments of the
Constitution, when it was upgraded from Investigator General to Public
Protector.
Brief History
The Judicial system in
the Commonwealth countries was controlled by the colonial masters during the
colonial period. This was because the Courts were presided over by the
imperial judges who could not make decisions against the imperial government.[1] During post-independence,
the traces of the colonial master of controlling the Courts were seen in the
modern government. For example, in the case of Ngwenya v. Deputy Prime Minister and another.[2] Brief facts are that the
minister relied on an Act of Parliament and declared Ngwenya a non-citizen, and
ordered his deportation. The Court reversed the minister’s decision. Subsequently declared the Act in
particular unconstitutional. The king, following the judgment, suspended the
Constitution.[3]
Therefore, the decision of the King to suspend the Constitution mirrored the
imperial government.
However, Zambia has been
exceptional. For example, the Court in the case of the people v the Speaker
of the National Assembly (exp. Nkumbula),[4]
ordered the speaker to recognise Nkumbula as the leader of ANC and inform the
parliament that the seat is vacant. The other instance happened in the case of Attorney
General v. Chipango.[5]
Chipango was detained under the Preservation of Public Security Act, reg
33(3). Which required that the then, section 26(a)(b) (now Article 26) of the Constitution
is complied with. The detention did not comply with the said section(or
Article) 26. Therefore, the Court held by declaring the detention was unlawful.
In terms of the Court system, Zambia seemed to do better as compared to other Commonwealth countries, not
until the day when two Portuguese soldiers were patrolling the borders of
Angola and found themselves on the Zambian side. They were arrested, and the
black Magistrate imposed severe punishment on them. The white, but born in and a Citizen of Zambia, reversed the judgment. The then President, Dr Kenneth Kaunda
(now deceased), likened whites to some organisation in heaven watching our
people slaughtered on earth. Following the statement, multiple youths stormed
the Court almost killing the then Chief Justice. Dr Kaunda apologised; however
Chief Justice went and never returned.[6]
Thus, there was tension
between the Chief Justice and the head of state and the tension could have been
resolved by an independent body or person. However, there was no independent body or person to resolve the tension. Therefore, leading to the birth of the Ombudsman. The
Ombudsman was created pursuant to Articles 100 and 101 of the 1969
Constitution.[7]
However, the Constitution was suspended in 1972; hence, the Ombudsman never
operated till the enactment of the 1973 Constitution.
In 2016, pursuant to Article
243 of the constitution,[8] and critically detailed
under the Public Protector Act.[9]
The Ombudsman, who was previously called the Investigator General, is now
referred to as the Public Protector. The Public
Protector has a wider jurisdiction than the Investigator General, in terms of protecting and safeguarding individual
rights, during the receipt of public services and promoting good governance.
Function
The Public Protector
plays a vital role in the administrative system of Zambia. The functions of the
Public Protector are outlined pursuant
to Article 244 of the Constitution,[10] which provides that:
The Public Protector may
investigate an action or decision taken or omitted to be taken by a state
institution in the performance of an administrative function. An action or decision taken or omitted to be
taken is an action or decision which is unfair, unreasonable or illegal, or not compliant with the rules of
natural justice. The Public Protector may bring an action before a court; hear
an appeal by a person relating to an action or decision taken or omitted to be
taken in respect of that person; and make a decision on an action to be taken
against a public officer or Constitutional office holder, which decision shall
be implemented by an appropriate authority.[11]
According to Article 244
of the Constitution above, the Public Protector has a wide role to play in an
administrative system. It ensures inter alia that the rules of natural justice
are adhered to in the administration of public services. Further, Article 244
subjects all constitutional office orders, among other public officials, to the Public
Protector in case of any maladministration. Therefore, any maladministration by
the public officials must be reported
to the Public Protector, and the Public Protector will initiate the
investigation.
Further, the functions of
the Public Protector are outlined under section 6 of the Public Protector
Act.[12]
Section 6 of the Act provides inter alia that the Public Protector shall
consider the administrative actions, practices and procedures of state
institutions and make recommendations to the state institutions; on appropriate
ways of addressing the effects of inappropriate administrative practices; and for the
improvement of practice and procedure.
Therefore, it is clear
that the Public Protector is always available to protect citizens from inappropriate administrative work. Thus, it caters to both substantive and
procedural work. Therefore, all administrative issues, subject to the issues
under Article 245 of the Constitution, must be reported to the public protector
before the commencement of Court proceedings.
If the aggrieved party is
unhappy with the decision of the Public Protector, they have the right to appeal for
judicial review as provided for under section 15 of the Act. Therefore, the
Public Protector does not take away the right to sue or appeal in the Courts
of Law.
Limitations of the Functions
To every general rule
there is an exception. Therefore, Article 245 of the Constitution
provides the instances and cases which cannot be investigated by the Public
Protector. The circumstances are as follows:
The Public Protector shall not investigate a matter which: International organisations; is before a court, court-martial or a quasi-judicial body; relates to an officer in the Parliamentary Service or Judicial Service; involves the relations or dealings between the Government and a foreign government or an international organisation; relates to the exercise of the prerogative of mercy.
Therefore, the Public Protector is not the rightful body for matters concerning criminal and other matters as stipulated under Article 245 of the Constitution. The rationale is that the Public Protector, notwithstanding Article 244 (5) of the Constitution, which provides that the Public Protector is at par with the High Court, is not a Court. For example, the Court in the case of Public Protector of Zambia v Indeni Petroleum Refinery.[13] Held that the public protector is not pari passu with the High Court. Meaning that the Public Protector is not at the same level as the High Court. The Public Protector has jurisdiction only in administrative matters; therefore, it is administrative in nature. On the other hand, the High Court has Original and unlimited Jurisdiction in both civil and criminal matters, as stipulated under Article 134(a) of the Constitution.[14] Therefore, the Public Protector, by virtue of being an administrative body in nature, has limited jurisdiction in both civil and criminal matters. Thus, limiting its functions.
Importance of the Public Protector
The
public protector is important in many ways, and some of them are as follows:
Prior
to the effectiveness of the Ombudsman, people relied on lobbying MPs and
applications to the Courts in order to deal with the issues that concern citizens
and the state. For example, in the case of Shamwana v. Attorney General,[15]
the appellant appealed against the decision of the High Court to dismiss his petition that the proscription of the petition by the president was
unconstitutional. The court held that, in a petition to the National Assembly, the minister in charge
must sign the petition before presenting it to the speaker. However, the coming
of the Public Protector has put an end to lobbying MPs and direct application
to the Courts, in order to resolve the matters of maladministration.
Courts
are heavily burdened with backlog cases; therefore, for one to get a day for a hearing is an issue. However, the Public Protector is not indebted with
numerous cases, therefore it provides expeditious hearing of the matter.
The
Public Protector is an administrative body in nature; therefore, the rules of
evidence are not adhered to. This means that the Public Protector works
without undue regard to technicalities, as stipulated under Article 118 (2) (e)
of the Constitution.[16] Therefore, even where the
procedure is not strictly followed, the Public Protector will determine the
matter on merit, unlike the Courts. For example, the case of Hichilema and another
v Lungu and others.[17] Brief facts are that Hichilema and another failed to petition the presidential election within 14
days as provided by Articles 101(5) and 103(2) of the constitution. The Court
held that the days had already elapsed; hence, the case was dismissed on a technicality for want of jurisdiction. Therefore, it is for this reason which
makes the Public Protector is important because it deals with substantial justice.
The
public protector is cost-effective, this is because the need for counsel does not
usually arise, and the cases are accelerated. It is also the body created to be
an independent and impartial institution where complaints would be presented
informally.
[1]
Robert Martin, ‘The Ombudsman in Zambia’, the Journal of Modern African
Studies, Vol. 15, No. 2 (1997) pp. 239-259.
[2]
[1973] AC 1.
[3]
n1.
[4]
(1970) ZR 97 (HC).
[5]
(1971) ZR 1 (CA).
[6]
Time.com.
[7]
Zambian Constitution of 1969.
[8] Constitution of Zambia (Amendment) Act, No. 2 of 2016.
[9] Public Protector Act, No 15 of 2016
[10] Ibid.
[11] Ibid.
[12] Public Protector Act, No. 15 of 2016.
[13] [2019] CCZ 16.
[14] Constitution of Zambia (Amendment) Act No. 2 of 2016.
[15] (1988-89) ZR 44 (SC).
[16] Constitution of Zambia (Amendment) Act, No.2 of 2016.
[17] [2016] CC 0031.
