By Inutu Akolwa, Mordecai Mweene and Mwila Chikwanda
Architecture is the art and technique of designing and building, as distinguished from the skills associated with construction. The practice of architecture is employed to fulfil both practical and expressive requirements, and thus it serves both functional and aesthetic ends.
In Zambia, the institute responsible for promoting the general advancement of architecture and the facilitation of acquiring of knowledge in architecture and the allied professions, is the Zambia Institute of Architects.
The Institute was founded in 1954, as the Northern Rhodesia Institute of Architects and was later renamed as the Zambia Institute of Architects in 1964. In 1995, the Institute was established as a statutory body by the enactment of the Zambia Institute of Architects Act, Chapter 442 of the Laws of Zambia.
Twenty years into its existence, the Institute took note of concerns arising from stakeholders regarding the adequacy of the provisions of the Act and its implementation. Accordingly, the Institute embarked on a nationwide stakeholder engagement process in 2015, which has resulted in the development of the Zambia Institute of Architects (ZIA), draft Bill.
The Zambia Law Development Commission (ZLDC) was engaged by ZIA in June 2019, to finalise the process for the development of the ZIA Bill.
In this Article, the ZLDC gives an overview of the salient features of the current Zambia Institute of Architects Act, with a focus on concerns raised by stakeholders. It also presents a comparative analysis taking into consideration the concerns raised by stakeholders. Further, it highlights the process of the review of the current law and discusses the key provisions in the draft Bill. The Article concludes by outlining the remaining legislative processes that should be facilitated by other role players for the enactment of the proposed Bill into law.
Prior to the engagement of the Commission, the Institute conducted extensive stakeholder meetings from which numerous problematic areas were identified in the current ZIA Act. These could be summed as follows: the need to regulate architects, allied architectural professionals, architectural technologists, architectural technicians, graduate members, students and architectural firms in one piece of legislation; to consider removing the Minister from the appeal process; to provide for strict regulations relating to the registration of joint ventures; to introduce provisions that will enhance the secretariat; and to ensure adherence to the law(compliance)
In regard to the above, stakeholders submitted that the following was required to address some of the weaknesses in the law-
the need for classifications of architects in line with experience, expertise and services an architect can render, however this is not to sit in the Act but regulations to allow to easily change as ZIA seeks to increase its membership and may require to change classes. However, categories maybe outlined in the Act;
Provision for the Joint venture requirements in the Act which will apply to both local and foreign architects;
Provision for administrative penalties to apply for-non adherence to certain provisions in the Act;
Once a repeat offender, the Act should allow the Institute to reserves the right not to register an offender for further joint ventures;
Members of the public seeking certain specified architectural services will commit an offence if engage a non-architect for such architectural services
In addressing the weaknesses identified, a comparative study was carried out to review the relevant legislation of selected African countries. This was done for purposes of benching standards and best practice to guide the review of the ZIA Act. The countries that were considered in this regard were Tanzania (Architects and Quantity Surveyors (Registration) Act, 2010), South Africa (Architectural Profession Act No. 44 of 2000), and Kenya (Architects and Quantity Surveyors Act, Chapter 525). The key areas of focus for the comparative study were based on problematic areas identified by Zambia Institute of Architects and stakeholders during the consultative meetings. These have earlier been highlighted above. Below is a summary of findings, on specific aspects of focus, from the comparative study conducted.
Prohibition of provision of Architectural Services without Registration
Part II of the Tanzanian Architects and Quantity Surveyors (Registration) Act of 2010 provides for the registration of architects, quantity surveyors, and foreign firms. Section 20 states that “A client or developer who undertakes design, building or construction works shall ensure that an architectural or quantity surveying firm is registered prior to the execution of the design, building or construction works”. Where this is not complied with, the Registrar may issue a stop order or take other legal action.
Section 18 of the Architectural Profession Act, 2000 of South Africa provides for the registration of architects, and prohibits a person from practicing in any of the categories contemplated in the provision, unless he or she is registered in that category.
Section 3 of the Architects and Quantity Surveyors Act, Chapter 525 of Kenya states that “Subject to the provisions of this Act, no person shall practise under any name, title or style containing any of the words or phrases “architect”, “architecture”, “architectural”, “quantity surveyor” or “quantity surveying” unless he is registered under this Act as an architect or a quantity surveyor, as the case may be:” However, this provision does not apply to any person in the service of the Government or to any person who, for the purpose of preparing any particular piece of work for the Government, is exempted by the Minister from the provisions of this Act.
Registration of Joint ventures and foreign firms
Stakeholders submitted that there was need, where a foreign firm intended to provide architectural services in the republic, for that firm to register a joint venture with a local firm.
Section 15 of the Architects and Quantity Surveyors Act, of Tanzania provides for the registration of a foreign person and the registration of a foreign. It states that “Every foreign firm operating in Tanzania shall provide information in a form prescribed by the Board as to the nature, period and qualification of professionals working for it or under the firm and any additional information that the Board may require.”
It also requires a foreign firm to have employed foreign persons only where that person’s qualifications and skills are not available in Tanzania, and to have entered into a joint venture agreement with a local firm for carrying out the specific assignment, in order to be registered .
Curriculum and Continuous Professional Development
In regards to the qualifications of practitioners under the Bill, stakeholders were of the view, that a minimum level of competence should be complied with. They further submitted there should be a provision continuous professional development
The ZIA submitted that there was need to insert provisions in the Bill that would ensure compliance with its provisions. Compliance with the law may be addressed through education, as well as inspections to be carried out by the regulatory body.
With regards to education, section 10 of the Architects and Quantity Surveyors Act Chapter 525 of Kenya states that the Board shall have the right from time to time to formulate, vary and carry into effect a scheme and curriculum for education in architecture and quantity surveying.
Section 13 of the Architectural Profession Act of South Africa outlines the powers of council with regard to education in architecture. Section 5 of the Architects and Quantity Surveyors Act, of Tanzania provides that one of the functions of the Council is to promote awareness and educate the public on the professions of architecture and quantity surveying as well as the duties and responsibilities of architects and quantity surveyors, and to promote, monitor and provide continuing professional development opportunities and facilities for the study and training in architecture, quantity surveying and allied subject.
Categories of practitioners under the Bill.
Stakeholders submitted that there was need to expand the application of the Act to include professions that are allied to Architects, as they play a key role in the provision of architectural services. These categories of members should be given a membership certificate by ZIA. Further, the Act should provide for the registration of a Firm, which should be given a practicing certificate by ZIA.
The comparative study showed that in South Africa, the law regulates the architectural profession, which includes Architect, Architectural Technologist, Architectural Draughtsperson, or candidates for each of the aforementioned categories. Similarly, in Tanzania, the law regulates Architects, which it defines to include interior designers, landscape architects, furniture architects, conservation architects, and naval architects; Architectural Draughtsmen and Architectural Technicians; quantity surveyors; and their firms.
The findings from the preliminary research done by ZLDC and a desk study affirmed that it is indeed necessary to review the current law as proposed by the Zambia Institute of architects
In order to finalise the draft Bill, the Commission conducted a desk review focused on the areas identified during stakeholder consultations conducted by the Institute. A Regulatory Impact Assessment exercise was also conducted on the basis of the findings of the desk review. The assessment was done with a view to determine whether the concerns of stakeholders required a policy or regulatory intervention. The Assessment culminated in the development of Regulatory Impact Assessment (RIA) Report pointing towards a regulatory intervention.
Following the two exercises above drafting meetings were conducted to develop the Bill. The said Bill was presented to stakeholders during an engagement meeting and a validation meeting for consideration. The process was concluded by the final review and adoption by the Commission.
Some of the salient features of the Bill are:
Functions of the Institute
The Bill provides for the registration and regulation of architects, allied architectural professionals, architectural technologists, architectural technicians, graduate members, student members and architectural firms. The Bill also defines allied architectural professionals to include landscape architects, interior designers, urban designers, project or building managers, and marine architects.
Prohibition of practice without membership certificate
The Bill has a provision prohibiting a person that is not registered under the Bill from offering architectural services.
The Bill prohibits architects, allied architectural professionals, architectural technologists, architectural technicians, graduate members, student members and architectural firms from offering architectural services without registration under the Bill. It should also prohibit clients from engaging a person that has not been duly registered under the Bill to offer architectural services.
Code of conduct and ethics
The Bill empowers the Council to develop a Code of Conduct. It also establishes the Professional Ethics and Conduct Committee, whose function will be to hear matters of professional misconduct, and to promote adherence to the Code of Conduct. Also established is an independent Appeals Committee whose function will be to hear and determine appeals from the decisions of the Council and the Professional Ethics and Conduct Committee. Appeals from the Appeals Committee shall lie with the High Court.
Prohibition of foreign architectural firm operating in the Republic without registration of a joint venture
The Bill prescribes the prohibition of a foreign firm from providing architectural services in the Republic without registration of a joint venture with a local firm. It similarly, prohibits a local firm from partnering with a foreign firm in providing architectural services in the Republic without registration of a joint venture.
The penalty for failure to register a joint venture should be a maximum of 3,000,000 penalty units or imprisonment not exceeding three years.
Registrar and other staff
The Bill provides for the appointment of a Chief Executive Officer and other staff of the Institute. The Chief Executive Officer is referred to as the Registrar.
Functions of Council
The functions of the Council include making recommendations to the Higher Education Authority on the development of curricula.
One of the functions of the Council is to make recommendations to the relevant state institutions for the closure of a non-compliant construction site. The Bill also provides for the appointment of inspectors to ensure compliance with Act.
Supremacy of Act
A supremacy clause is inserted in the Bill, stating that subject to the Constitution, where there is an inconsistency between the provisions of the Act and the provisions of any other written law relating to the regulation of architects and the practice of architecture, the provisions of the Act shall prevail to the extent of the inconsistency.
Tenure of office for the Council Members
Provision is made in the Bill for the regulation the tenure of office to avoid members serving in the council for more than two terms
Establishment of Appeals Committee
The Bill provides for appeals to lie to the appeals committee rather than to the Minister.
WAYFORWARD
The final outputs of the process were a project report and draft Bill. The two documents were submitted to the Zambia Institute of Architects and the Ministry of Infrastructure, Housing and Urban Development being the key implementer and the responsible ministry respectively. The Bill shall be conveyed to the Ministry of Justice for internal legislative processes and tabling before Cabinet for approval. Subsequently, the Bill will be presented to Parliament for consideration and enactment into law.