^{Page 239 note 1} See, generally, Nwabueze, B. O., Constitutionalism in the Emergent States (London and Enugu, 1973).Google Scholar

^{Page 239 note 2} This is one of the basic theses advanced in Ghai, Y. P. and McAuslan, J. P. W. B., Public Law and Political Change in Kenya: a study of the legal framework of government from colonial times to the present (Nairobi, 1970).Google Scholar

^{Page 239 note 3} This point is explored at some length in Nwabueze, B. O., Presidentialism in Commonwealth Africa (London and Enugu, 1974)Google Scholar, especially ch. XII. See also Seidman, Robert B., ‘Law and Economic Development in Independent, English-Speaking, Sub-Saharan Africa’, in Wisconsin Law Review (Madison), 1966, pp. 999–1070Google Scholar, ‘Constitutions in Independent, Anglophonic, Sub-Saharan Africa’, ibid, 1969, pp. 83–127, and ‘Judicial Review and Fundamental Freedoms in Anglophonic Independent Africa’, in Ohio State Law Journal (Columbus), 35, 1974, pp. 820–50Google Scholar; James N. C. Paul ‘Some Observations on Constitutionalism, Judicial Review and Rule of Law in Africa’, ibid. 35, 1974, pp. 851–69; and also Martin, Robert, Personal Freedom and the Law in Tanzania: a study of socialist state administration (Nairobi, 1974), especially ch. 1.Google Scholar For a methodology through which the problem can be approached, see Marx, Karl, A Contribution to the Critique of Political Economy (London, 1971 edn.)Google Scholar, Marx, and Engels, , The German Ideology (New York, 1969 edn.)Google Scholar, and Lange, Oscar, Political Economy, Vol. I (Warsaw, 1963).Google Scholar

^{Page 239 note 4} Field Marshal Amin has not so far succeeded in creating the economic millennium. His achievements in other fields are discussed in Martin, David, General Amin (London, 1974)Google Scholar, and the International Commission of Jurists, , Violations of Human Rights and the Rule of Law in Uganda (Geneva, 1974).Google Scholar Concerning Kwame Nkrumah, see Fitch, Robert and Oppenheimer, Mary, Ghana: end of an illusion (New York, 1966).Google Scholar

^{Page 240 note 1} See, for example, two Kenyan cases: Wadhwa v. Nairobi City Council [1968,] E.A. 406, and Shah Vershi Devshi Ltd. v. Transport Licensing Board [1971,] E.A. 289.

^{Page 240 note 2} For example, in 1973, the King of Swaziland overthrew the constitution after a judicial decision which he did not like. See Ngwenya v. Deputy Prime Minister (unreported), Swaziland Court of Appeal, Civil Appeal No 1, of 1973, and Times of Swaziland (Mbabane), 13 04 1973.Google Scholar

^{Page 240 note 3} This is amply demonstrated by the fact that roughly half the sitting members were defeated in the Kenyan elections of 1969 and 1974, and in the Tanzanian elections of 1965, 1970, and 1975. For the Zambian situation, see Tordoff, William and Molteno, Robert, ‘Parliament’, in Tordoff, (ed.), Politics in Zambia (Manchester and Berkeley, 1974), pp. 197–241.Google Scholar

^{Page 240 note 4} There is now a considerable body of literature on the Tanzanian Permanent Commission of Enquiry. See Kiapi, A. A., Eastern Africa Law Review (Nairobi), I, 1968, pp. 198–205Google Scholar; Martin, Robert, The Journal of Modern African Studies (Cambridge), VII, 1, 04 1969, pp. 178–83Google Scholar; Ghai, Yash, East Africa Journal (Nairobi), VI, 8, 1969, pp. 33–8Google Scholar; Mang'enya, E. A. M., The Permanent Commission of Enquiry (Ombudsman) (Dar es Salaam, 1970)Google Scholar; Kjekshus, Helge, The African Review (Dar es Salaam), I, 2, 1971, pp. 13–29Google Scholar; Frank, B., Denver Journal of International Law and Policy (Denver), II, 1972, pp. 255–79Google Scholar; Kimicha, M., Journal of Administration Overseas (London), XII, 1973, pp. 46–50Google Scholar; Norton, P. M., International and Comparative Law Quarterly (London), 22, 1973, pp. 603–31Google Scholar; Martin, Personal Freedom and the Law in Tanzania, ch. v; and Oluyede, P. A., Public Law (London), 1975, pp. 8–27.Google Scholar

^{Page 240 note 5} The Nigerian Edict No. of 1974 is discussed in Khalil, M. I., ‘The Ombudsman of North Central State’, in Journal of Islamic and Comparative Law (Zaria), 1974, pp. 106–8.Google Scholar For a general review of developments, see ‘The Ombudsman in Africa’, Conference of African Jurists on African Legal Process and the Individual, U.N. Economic Commission for Africa, Addis Ababa, April 1971. Cf. also Rowat, D.C., The Ombudsman Plan (Toronto, 1973).Google Scholar

^{Page 241 note 1} Sections 100 and 101 of the 1969 constitution created an ombudsman, and required the legislature to enact detailed provisions concerning his operations and jurisdiction. When this constitution was overthrown in 1972 the ombudsman had not yet begun to function. For a rather superficial discussion, see Hagan, Josiah, ‘Whatever Happened to Ghana's Ombudsman?’, in Transition (Accra), 41, 1971, p. 29.Google Scholar

^{Page 241 note 2} Zambia's independence constitution is found in S.I. 1964, No. 1652.

^{Page 241 note 3} See, for example, Kachasu v. Attorney General (1969), S.J.Z. 10, discussed by Zafer, M. R., Zambia Law Journal (Lusaka), I, 1969, pp. 44–8.Google Scholar The Zambian courts prudently sidestepped an attempted legal challenge to the validity of the 1972 decision to establish a one-party state: Nkumbula v. Attorney General (1972) (unreported), HP CONST/REF/I. This case is discussed by Gupta, C. P., zambia Law Journal, V, 1973, pp. 147–54.Google Scholar

^{Page 241 note 4} (1970), S.J.Z. 41. For comment on this case, see Craig, J. T., Zambia Law Journal, III, IV, 1971–1972, pp. 143–52.Google Scholar The extraordinary reasoning of the Speaker concerning this matter can be found in the Zambian, National Assembly Debates (Lusaka), 19 01 1971, cols. 29–34.Google Scholar

^{Page 241 note 5} (1970), HP CONST/REF/2.

^{Page 241 note 6} The approach in this case is similar to that adopted by the Indian courts, and contrasts favourably with two East African judgements: Uganda v. Commissioner of Prisons; ex parte Matovu [1966], E.A. 514, and Ooko v. R. (unreported), High Court of Kenya at Nairobi, Civil Case No. 1159 of 1966.

^{Page 242 note 1} As illustrative cases, see R. v. Earl of Crewe; ex parte Sekgome [1910], 2 K.B. 576–interesting background information on this case is found in Pritt, D. N., Law, Class, and Society, Book 3 (London, 1971), pp. 114–16Google Scholar, and Chirenje, J. M., ‘Chief Sekgoma Letsholathebe II’, in Botswana Notes and Records (Gaborone), III, 1971, pp. 64–9Google Scholar; Ol le Njogo v Attorney General (1913), 5 E.A.L.R. 70; R. v. Amkeyo (1917), 7 E.A.L.R. 14; Re Southern Rhodesia [1919], A.C. 211; Fawaz v. Sudan Railways (1921), I SudanL.R. 171; Sobhuza IIv. Miller [1926], A.C. 518; Tshekedi Khama v. High Commissioner (1926–1953), H.C.T.L.R. 9; and Wallace-Johnson v. R. [1940], I All E.R. 241. For exceptions to this approach, see Sprigg v. Sigcau [1897], A.C. 238, and Cole v. Cole (1898), I N.L.R. 15. A history of the Zambian local court system is found in the lengthy article by Spalding, Francis O., Hoover, Earl L., and Piper, John C. in zambia Law Journal, II, 1970 pp. V–289.Google Scholar

^{Page 242 note 2} This would appear to be the suggestion made in Ghai and McAuslan, op. cit. For a more objective analysis of the courts in colonial Africa, see Morris, H. F. and Read, James S., Indirect Rule and the Search for Justice (Oxford, 1972).Google Scholar

^{Page 242 note 3} The first African Zambian judges of the High Court were appointed in November 1969. A number of the European judges have been, and are, Zambian citizens.

^{Page 243 note 1} The case in question was The People v. Silva and Freitas. For comments on this incident, see Martin, op. cit. pp. 72–3; Hall, Richard, The High Price of Principles (Harmondsworth, 1973 edn.), pp. 218–19Google Scholar; James, R. W. and Kassam, F. M., Law and Its Administration in a One-Party state (Nairobi, 1973), p. 5Google Scholar; and Pettman, Jan, Zambia: security and conflict (London and New York, 1974), p. 50.Google Scholar

^{Page 243 note 2} For other incidents, see Hall, op. cit. ch. XIV.

^{Page 243 note 3} See Pettman, Jan, ‘Zambia's Second Republic – the Establishment of a One-Party State’, in The Journal of Modern African Studies, XII, 2, 06 1974, pp. 231–44.CrossRefGoogle Scholar For general background, see Tordoff, op. cit., and Pettman, Zambia: security and conflict.

^{Page 243 note 4} National Commission on the Establishment of a One-Parts Participatory Democracy in Zambia. Report (Lusaka, 1972)Google Scholar, hereafter referred to as the Report.

^{Page 244 note 1} Report of the Presidential Commission on the Establishment of a Democratw One-Party State (Dar es Salaam, 1965).Google Scholar

^{Page 244 note 2} A number of members of the Zambian National Assembly appear to see this as the main task of the ombudsman; Debates, 15 February 1974, cols. 1535–56, and 16 December 1975, cols. 370–8.

^{Page 245 note 1} Lord Lloyd of Hampstead seems to believe that a judge-like approach on the part of an ombudsman would be a good thing; ‘The Parliamentary Commissioner’, in Current Legal Problems (London), 21, 1968, pp. 53–74.Google Scholar

^{Page 245 note 2} As witness the extraordinary official reaction in Kenya to a proposal for the creation of an ombudsman; Sessional Paper No. 5 of 1974, para. 107.

^{Page 245 note 3} See, for example, Tanzania. Permanent Commission of Enquity. Annual Report, 1966–67 (Dar es Salaam, 1968)Google Scholar, paras 10 and 31. Cf. also the useful comments by Norton, op. cit. pp. 627–31.

^{Page 246 note 1} Government Paper No. 1 of 1972, p. 18.

^{Page 246 note 2} This has been a constantly recurring factor in the annual reports of the Tanzanian Permanent Commission of Enquiry.

^{Page 246 note 3} See section 67 of the 1965 Interim Constitution of Tanzania, and section 24 and the first schedule to the Permanent Commission of Enquiry Act, No. 25 of 1966.

^{Page 246 note 4} Report, para. 129(6).

^{Page 247 note 1} Section 3 of the Zambian Commission for Investigations Act, No. 23 of 1974, which gave effect to these recommendations, originally provided in sub-section (d) that the following could be investigated: ‘the members and persons in the service of statutory corporations, bodies or boards, including institutions of higher learning, established wholly or partly out of public funds’. This phraseology was changed by the Commission for Investigations (Amendment) Act, No. 27 of 1975, and now reads: ‘the members and persons in the service of any institution or organisation, whether established by or under an Act of Parliament or otherwise, in which the Government holds a majority of shares or exercises financial or administrative control’. This new definition appears to be broad enough to include the University of Zambia.

^{Page 247 note 2} These two recommendations appear to be contradictory until one looks at the Tanzanian Permanent Commission of Enquiry, which has found it necessary to examine cases involving lapses in judicial administration, although it is not permitted to investigate ‘judicial decisions’. Although the ombudsman may not review the merits of determinations made by the courts, he may, and does, deal with corrupt or improper behaviour by judicial officers or court functionaries, delays in processing cases, losses of case files, and so on. Tanzania. Permanent Commission of Enquiry. Annual Report, 1967–68 (Dar es Salaam, 1969), paras. 14–16Google Scholar, and Interim Constitution of Tanzania, section 67(5).

^{Page 248 note 1} The vagueness of the Report on this question was probably intentional. Nwabueze has suggested that ‘The recommendations of the one-party state commission, which were based on the ombudsman provision of the Ghana Constitution of 1969, seemed to have envisaged a commission somewhat more independent of the President than the Tanzanian P.C.E.’; Presidenlialism in Commonwealth Africa, p. 209. This conception was clearly abandoned in the drafting of the constitutional and statutory provisions which actually created the ombudsman.

^{Page 249 note 1} Government Paper No. 1 of 1972. The specific recommendations concerning the ombudsman were accepted without change; ibid. pp. 18–19.

^{Page 249 note 2} The constitution is found in a schedule to Act No. 27 of 1973, and is analysed by Mubako, Simbi in Zambia Law Journal, V, 1973, pp. 67–85Google Scholar, and by Morgan, David G. in Public Law, 1976, pp. 42–63.Google Scholar

^{Page 250 note 1} Chomba, F. M., An Explanation of the Functions of the Commission for Investigations (Ombudsman) (Lusaka, 1974), p. 5.Google Scholar

^{Page 250 note 2} Constitution of Zambia, article 117(2).

^{Page 250 note 3} Chomba, op. cit. p. 2.

^{Page 250 note 4} In its first Annual Report the Commission for Investigations asserted that it was not, as an institution, a reproduction of any foreign model; while this is strictly true, the resemblances to the Tanzanian Permanent Commission of Enquiry are more than superficial.

^{Page 250 note 5} Chomba, op. cit. p. 4.

^{Page 251 note 1} Tanzania. Permanent Commission of Enquiry. Annual Report, 1966–67, p. 47.

^{Page 251 note 2} Chomba, op. cit. pp. 4–6.

^{Page 251 note 3} The limitations on the Commission's jurisdiction contained in the Act as originally enacted were made some what more stringent through amendments found in section 4 of Act No. 27 of 1975.

^{Page 251 note 4} See, for example, Abel, Albert S., ‘Commonwealth Constitutional Complications’, in Rowat, D. C. (ed.), The Ombudsman (London, 1968 edn.), pp. 281–7.Google Scholar

^{Page 252 note 1} Although these latter limitations were not found in the Act as originally enacted, they accord with statements made by the Investigator-General as to the procedures which would be followed. See Chomba, op. cit. pp. 4–5 and 8.

^{Page 252 note 2} The effect of the proviso to section 17 of Act No. 23 of 1974 is similar to that of sections 9(1)(b) and 10(2) of the Tanzanian Permanent Commission of Enquiry Act, although the Zambian rule affords greater protection by giving any individual complained against the right to make representations to the Commission. In Tanzania this right only arises when the making of an adverse report about an individual or organisation is contemplated. Section 17 of the Zambian Act suggests that the right to make representations only arises in cases where a complaint is being investigated. The implication from this would be that where the Commission is conducting an investigation at the behest of the President, or on its own initiative, this right would not arise. It should be added that this is not the way the present Investigator-General interprets section 17; see Chomba, op. cit. p. 5. For the Tanzanian practice, see Mang'enya, op. cit. pp. 7–8.

^{Page 252 note 3} Section 17(2) of Act No. 23 of 1974.

^{Page 252 note 4} Ibid. section 17(1).

^{Page 252 note 5} Ibid. sections 13–14. The procedure under section 14 was simplified by section 6 of Act No. 27 of 1975.

^{Page 253 note 1} Section 13 of Act No. 23 of 1974. The power of the Zambian President in this regard is similar to that given to the President of Tanzania by section 14(1) of the Permanent Commision of Enquiry Act.

^{Page 253 note 2} Chomba, op. cit. p. 7.

^{Page 253 note 3} Section 19(1) of Act No. 23 of 1974. The difficulty here is that no privilege attaches to statements made before the Commission. A person might be compelled to give self-incriminating evidence which could then be used against him in a subsequent criminal proceeding. Such a procedure would defeat the intention of article 20(7) of the constitution of Zambia which protects accused persons from giving evidence against themselves in criminal trials.

^{Page 253 note 4} Section 18 of Act No. 23 of 1974.

^{Page 253 note 5} Chomba, op. cit. p. 7.

^{Page 253 note 6} See Mang'enya, op. cit. p. 7, for the Tanzanian practice which is, presumably, contemplated by section 15(1) of the Permanent Commission of Enquiry Act.

^{Page 254 note 1} Cf. Zambia. Commission for Investigations. Annual Report, 1974 (Lusaka, 1975), which sold for 30 ngwee.Google Scholar

^{Page 254 note 2} See section 22 of the 1974 Zambian Act which, like so many others, is simply a slightly altered version of the Tanzanian Permanent Commission of Enquiry Act. This provision could also be relied on to allow a court to decide whether the Commission may commence an investigation on its own initiative.

^{Page 254 note 3} Cf. Martin, , Personal Freedom and the Law in Tanzania, pp. 212–13.Google Scholar

^{Page 254 note 4} See Tanzania. Permanent Commission of Enquiry. Annual Report, 1967–68, para, 27, and The Standard (Dar es Salaam), 17 08 1970.Google Scholar

^{Page 255 note 1} With this aim in mind it might be wondered why the pamphlet was written in English, and a complicated lawyer's version at that.

^{Page 255 note 2} During the first year of the Tanzanian Permanent Commission of Enquiry its members spent a great deal of time travelling up-country. Government and T.A.N.U. officials were excluded from the public meetings which were held to explain the new institution and to invite complaints. See Annual Report, 1966–67, paras. 5–12, and Mang'enya, op. cit. p. 14.

^{Page 255 note 3} The original Zambian estimate for staff salaries was K30,000, a not unreasonable annual amount; National Assembly Debates, 15 February 1974, col. 1554.

^{Page 255 note 4} A constant theme running through the annual reports of the Tanzanian Permanent Commission of Enquiry has been the negative effect of shortages of staff and limited accommodation and other facilities.

^{Page 256 note 1} Commission for Investigations. Annual Report, 1974, p. 2.

^{Page 256 note 2} This is similar to the experience in Tanzania during the early years of the Permanent Commission of Enquiry, as may be seen from the annual reports for 1966–67 and 1967–68.

^{Page 256 note 3} See Mang'enya, op. cit. p. 6, and a suggestion to a similar effect in Chomba, op. cit. p. 7. It is further of interest that section 10 of the 1974 Zambian Act appears to empower the Commission to investigate matters which are statutorily excluded from judicial review.

^{Page 256 note 4} Commission for Investigations. Annual Report, 1974, p. 2.

^{Page 256 note 5} For example, Cases Nos. 2–3/74, 8/74, 11/74, 23/74, 34–35/74, 52/74; ibid.

^{Page 256 note 6} For example, Case No. 1/74; ibid.

^{Page 256 note 7} By way of contrast, the annual reports of the Tanzanian Permanent Commission of Enquiry do not give any indication of the action taken by the President in individual cases.

^{Page 257 note 1} President Nyerere recognised this when he said: ‘But we must not forget that the Permanent Commission [of Enquiry] receives complaints only from the most literate, aware, or energetic and courageous of our citizens; its Reports understate, rather than overstate the problem.’ Freedom and Development/Uhuru na Maendeleo: a selection from writings and speeches, 1968–1973 (Dar es Salaam, 1973), p. 182.Google Scholar

^{Page 257 note 2} The development of such analysis is beyond the scope of this article. For a beginning, see Shaw, Timothy M., ‘Zambia: dependence and underdevelopment’, in Canadian Journal of African Studies (Montreal), X, 1976, pp. 3–22.Google Scholar For Tanzania, see Saul, John S., ‘The State in Post-Colonial Society: Tanzania’, in Miliband, R. and Saville, J. (eds.), The Socialist Register, 1974 (London, 1974)Google Scholar, and Shivji, Issa G., Class Struggles in Tanzania (London and Dar es Salaam, 1976)Google Scholar; and for Kenya, , Leys, Colin, Underdevelopment in Kenya: the political economy of neo-colonialism, 1964–1971 (London, 1975).Google Scholar

^{Page 258 note 1} This argument is advanced by Marx in his essay ‘The Eighteenth Brumaire of Louis Bonaparte’; see Marx, and Engels, , Selected Works, Vol. I (Moscow, 1969 edn.), especially pp. 435–6.Google Scholar

^{Page 258 note 2} See First, Ruth, The Barrel of a Gun: political power in Africa and the coup d'état (London, 1970), pp. 28–40.Google Scholar

^{Page 258 note 3} A comparative discussion is found in Gertzel, Cherry, ‘Administrative Reform in Kenya and Zambia’, in Rweyemamu, Anthony H. and Hydén, Göran (eds.), A Decade of Public Administration in Africa (Nairobi, 1975), pp. 185–207.Google Scholar

^{Page 258 note 4} Kenya. Public Service Structure and Remuneration Commission. Report (Nairobi, 1971), pp. 243–4.Google Scholar

^{Page 258 note 5} Sessional Paper No. 5 of 1974, para. 107. A carefully restrained analysis is presented by Rukwaro, G. K., in East African Law Journal, X, 1974, pp. 115–19.Google Scholar Reference should also be made to the same writer's comments in ibid. IX, 1973, p. 41. Further discussion of the possible rôle of an ombudsman in Kenya can be found in a superficial and inaccurate note by Kagombe, Maina, in Pan-African Journal (Nairobi), VI, 1973, pp. 209–16.Google Scholar

^{Page 259 note 1} Nyerere, op. cit. p. 58.

^{Page 259 note 2} Chomba, op. cit. p. 8.