LEGAL PROCESS NOTES

UNIT 1

INTRODUCTION TO LAW

1. What is ‘law’?

Working definition: Law is a set of rules recognised as commanding or forbidding

certain actions, so as to regulate the conduct of all persons
within a particular State and are enforceable by the courts of
that State. [Munalula]

QUESTION: But is law capable of being defined in a single sentence? Is

sally accepted definition of law?

NOTE: The difficulty associated with defining the concept of law has
given rise to various theories or schools of thought on the
‘nature’ of law. These include the Natural Law School of thought
and the Positivist School of thought.

Jurisprudence is the course that deals with theories of law in

detail.

2. CLASSIFICATIONS OF LAW

2.1 Civil and Criminal law

(a) Possible meanings of ‘Civil Law’

• Law governing civil wrongs rather than criminal wrongs;
• Law of a State as opposed to other types of law such as
international law or common law system.

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• Roman law; the corpus Juris civilis.

(b) Distinction between ‘Civil Law’ and ‘Criminal Law’

Civil Law Criminal Law

Proceedings are called ‘civil Proceedings are called ‘criminal

proceedings’ proceedings’

Party prosecuting is called

Party suing is called ‘Plaintiff’ or
‘prosecutor’ while party being
‘Claimant’ or ‘Petitioner’ while party
prosecuted is called ‘accused’ or
sued is called Defendant or
defendant
Respondent
Criminal law is concerned with proof
Civil law is concerned with proof of
of ‘guilt’
‘liability’ (Proof of responsibility)
Focus is ‘punishing’ the offender
Focus is ‘compensating’ the victim

Standard of proof is ‘balance of

Standard of proof is ‘beyond
probability’
reasonable doubt’

QUESTION: Can a ‘wrong’ be both civil and criminal? If so, are there any
examples?

2.2 Public law and Private law

• Public law regulates the organization of the State, the relation

between the different organs of the State and the relation
between the State and its subjects.

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Examples of public law include constitutional law, criminal law

and Administrative law.

• Private law regulates the relationship between persons i.e. Legal

subjects. More specifically, it determines the different rights and
duties that persons may have.

Examples include contract law; property law; tort law;

commercial law; family law e.t.c

QUESTION: Can organs of the State also be ‘regulated’ by private law?

2.3 Common law and equity

(a) Possible meanings of ‘Common law’

• The part of law which is contained in the decisions of the Courts

rather than having been enacted by Parliament (Judge made law
as opposed to statutory law);

• Meaning the law in a distinctive aspect, distinguish it from

doctrine of equity that evolved from the courts of chancery.

• Meaning the law of England that is applied and has no historical

connection to the English law, (Basically the different world legal
systems).

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• The part of the law of England formulated, developed and

administered by the old common law Courts, based on the
common customs of the country and unwritten.

NOTE: that Common law is usually distinguished from ‘statute law’ (i.e. the law
laid down in Acts of Parliament) and ‘civil law’ (i.e. the law of Rome).

(b) Meaning of ‘equity’

In the layman’s language, equity means natural justice. In legal

systems which are based on the English legal system, equity
refers to ‘the body of rules originally administered by the
Court of chancery in England’.

Equity is now a system of law in itself. Branches of equity

include trusts while equitable remedies include specific
performance and injunctions.

NOTE: Every student should ensure that he/she understands the origins of both
common law and the doctrine of equity.

2.4 International law and municipal/domestic law

• International law may be described as a body of rules that

determine how sovereign States conduct themselves towards
each other and towards each other’s subjects. International
law has several areas of specific focus including international
human rights law; international humanitarian law;
international trade law; international business law;
international investment law; international economic law etc.

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But the principles applicable in all these areas are drawn

from either international customary law or bilateral or
multilateral agreements. For this reason, international law is
divided into two main categories namely customary
international law and the law of bilateral or multilateral
agreements. But there are also sub categories exist. These
include Public international law and private international law.

QUESTION: Is international law ‘law’? Is it enforceable?

• Municipal law, on the other hand, is a collection of rules, the

object of which is to maintain and preserve order in a State.
It is also called domestic law or national law.

2.5 Substantive law and Procedural law

Substantive law sets out the actual rights and duties of legal
subjects while procedural law spells out the procedure for
enforcing the substantive rights and duties. In other words,
substantive law sets out the actual rules to govern human
conduct while procedural law deals with the legal remedies by
means of which the rules are ere enforced. Procedural law is
also sometimes called ‘adjectival law’.

3. Purposes and attributes of a good legal system

Definition of legal system

The meaning of a legal system means the operation of law in a country in an

orderly manner. This means that laws are enacted in a recognized and
accepted manner, and these laws are to be obeyed by the citizens of a

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country and there is a mechanism put in place to enforce these laws in a

country.

Attributes of a good legal system

i. Certainty – clearness of the prohibited or permitted behaviour and
the consequences of not abiding.

ii. Comprehensivity – a legal system should endeavour to cover all

potential problems and disputes i.e. it should be exhaustive in the
sense of covering every possible contingency. But is this possible in
legal systems of developing countries which depend on borrowing
from the legal systems of former colonial powers?
iii. Simplicity- in striving for comprehensiveness through exhaustive
written coverage of every possible contingency, a legal system must
not end up being massively complex.
iv. Written law – It is generally accepted that unwritten laws are
considerably less certain compared to written laws. However, it
does not follow that all written laws provide the appropriate level of
certainty. Furthermore, having written laws achieves very little in a
society where most of the population is not literate.
v. Understandable – It is not enough that law be written,
comprehensive and simple. It must also be relatively
understandable to the people whom it is supposed to guide and
regulate.
vi. Accessibility- should be seen from two points of views. The first is
easy accessibility of the laws while the second is accessibility of
legal services in general. Is it easy to access laws in a country
whose legal system partially relies on foreign laws?
vii. Flexibility- A good legal system is one that is sufficiently
adaptable to accommodate new kinds of problems and adjust to

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changes in the needs and desires of those whom it serves. Society

is dynamic and so should be the law.
viii. Inexpensive law – Running a good legal system is not cheap.
Neither is accessing legal services cheap. But the ideal situation is
that the
• Speedy adjudication
• Written
• Thorough procedures
• Fair and equal treatment.

QUESTION: Is a good legal system one that is alive to the:

• political realities of the country?
• the moral values of the country?

4. Law and Society

• A complex relationship exists between law and society which every

student of law must be aware of. The relationship is studied in
detail in a course called ‘Jurisprudence’ offered later in the LLB
programme.

• Suffice, at this stage, to point out that every society, however

primitive, has one or more rules intended to regulate different
aspects of human behaviour in that society.

• Because law is intended to regulate human conduct, it can be an

instrument of political, socio and economic change in the society.
QUESTIONS: Does law influence change in society?

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Do changes in society influence the development of law?

What is the role of lawyers in society?

5. Law and Justice

• Like the relationship between law and society, the relationship between
law and justice is a complex one and will be explored in detail in the
course ‘Jurisprudence’.

• Suffice to state that the concept of justice denotes ‘fairness’ and law is
intended to bring about a ‘just’ or ‘fair’ society. Therein lies the
relationship between law and justice. But it is not as simple as that!

QUESTIONS: What is ‘justice’ or ‘fairness’?

Is ‘justice’ or ‘fairness’ inherent in every law?

6. Rights and duties

• A right has been defined as ‘an interest recognised and protected

by law, respect for which is a duty and disregard of which is a
wrong [Salmond].

• A duty, on the other hand, may be defined as a legal relation of a

person who is commanded by society to act or forbear for the
benefit of another person, either immediately or in future and who
will be penalized by society for disobedience.

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• At this stage of the LLB studies, it is sufficient for the student to

note that where there is a right, there is always a corresponding
duty for someone to respect that right.

• The relationship between rights and duties is studied in detail in

‘Jurisprudence’.

UNIT 2

WORLD LEGAL SYSTEMS

2.1 Introduction

What is a ‘legal system’?

• It has been defined as “an operating set of legal institutions, procedures, and
rules. In this sense there is one federal legal system and fifty state legal
systems in the United States, separate legal systems in each of the other
nations, and still other distinct legal system in such organizations as the
European Economic Community and the United Nations.”

• It has also been described as referring to “the nature and content of the law
generally, and the structures and methods whereby it is legislated upon,
adjudicated upon and administered, within a given jurisdiction”.

Does it follow that there exists as many ‘legal systems’ as the known countries of
the world?

• True. However, many of them exhibit certain commonalities of principle and

practice. Because of the historical background of most countries, their legal
systems tend to replicate, with minor variations, the characteristics of major
legal systems of the world. These are the Common law system; the Civil law

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system; and the Roman-Dutch law system. Others are the Islamic legal system
and the customary law legal system.

2.2 The English Common law

• Common law is the legal tradition which evolved in England from the 11th
century onwards. It is defined as that ‘part of the law of England formulated,
developed and administered by the common law courts, based originally on the
common customs of the country and unwritten’.

• Common law is the foundation of private law, not only for England, Wales and
Ireland, but also in forty - nine U.S. states, nine Canadian provinces and most
countries which first received that law as colonies of the British Empire and
which, in many cases, have preserved it as independent States of the British
Commonwealth.

• The main characteristic features of the English common law system are the
doctrine of precedent and the practice of the adversarial system. However,
there are other characteristic features worth noting. These include the fact that
Common law judges are appointed from among the practicising lawyers and
need not undergo any specialised training. Also, the doctrine of equity is given
a lot of emphasis when compared to the civil law legal systems.

2.3 The Civil law

• ‘Civil law’ may be defined as ‘that legal tradition which has its origin in Roman
law, as codified in the Corpus Juris Civilis of Justinian, and as subsequently
developed in Continental Europe and around the world’. Civil law eventually
divided into two streams: the codified Roman law (as seen in the French Civil
Code of 1804 and its progeny and imitators - continental Europe, Québec and
Louisiana being examples); and uncodified Roman law (as seen in Scotland
and South Africa).

• The main characteristic features of the Civil law system are the prevalence of
codes and the practice of the inquisitorial system. Unlike in common law
jurisdictions, civil law jurisdictions place very little emphasis on the doctrines of
precedent and equity. Further, civil law judges undergo specialised training.

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The following excerpt might be useful to students:

Characteristics of common law systems

The common law family is usually defined by reference to the following

characteristics:
 a concern to determine legal disputes according to their individual
circumstances and the relevant judge-made case law, rather than by
applying general statements of legal principle;

 a traditional picture of common law that presents the source of law

as being found in the texts of individual judgments. There was never,
therefore, a single authoritative statement of the common law. It was
thus, in important aspects, always ‘unwritten’ yet
‘written’.

What does it mean to talk of law being both written yet unwritten? It
is crucial to keep emphasising the nature of the common law
tradition. In his Commentaries on the Laws of England (1765−69),
Blackstone was careful to describe the common law as ‘unwritten
law’ in contrast with the written law of statutes or codes. He was
familiar with the common law as a form of oral tradition derived from
general customs, principles and rules handed down from generation
to generation by the court lawyers and judges who participated in a
common life by eating and drinking in one of the Inns of Courts to
which all had to belong. Eventually this oral tradition was reflected in
the reports of the decisions of the important court and the
‘knowledge’ was then stored in a ‘written’ form, namely the law or
case Reports. You should note, however, that there was no
organized system of court reporting until the late nineteenth century
and prior to that all reports were private initiatives (made by barristers
who were in the courts and circulated privately for a fee to
supplement the barrister’s income).

Moreover, the relationship of the Law Reports and the common law
is not straightforward. For it was traditionally held that the words
of the Law Reports themselves were not the common law, but
that the decisions of the courts as reflected in the Law Reports
provide authorities for what the common law can be argued to
be. In other words, and this is the ‘mysterious’ bit, the common law
is always something more than what is written down! What is written

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down are pragmatic instances of judges articulating what they take

the law to be. So when one is looking for the law in a case one reads
the words, but the law is always something more than the words that
one reads! It is always accepted that the law is open to development
and better articulation.

In addition, modern common law legal systems have substantial

bodies of highly detailed legislation, which comprise another primary
source of law;

 it applies to all legal persons including the state (traditionally there is

no division between public and private law);

 the adoption of an inductive form of legal reasoning whereby legal

principles are derived from the texts of many single judgments;

 a litigation system in which the trial is the distinct and separate climax
to the litigation process;

 courtroom practice which may be subject to rigid and technical rules;

 the fact that the parties to the dispute essentially control proceedings
and that there is an emphasis on the presentation of oral argument
by counsel. The role of the judiciary is more reactive than proactive.
Given the parties’ opportunity and responsibility for mounting their
own case, the system is more participatory;

 the fact that the judiciary possesses an inherent power to adjudicate

separately from the executive or political process. While the judiciary
may be paid by the state, they exercise a separate power free from
political interference; and

 the fact that the expense and effort of determination of disputes

through litigation falls largely on the parties.

Characteristics of civil law systems

The civil law family is usually defined by reference to:

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 a concern to determine legal disputes according to predetermined

legal principles established to maintain social order;

 the source of law being found in authoritative statements of basic

legal principles – for example, the Civil and Criminal Codes – issued
by the state and propounded upon by legal scholars;

 the separation of public law (concerning relations between the

individual and the state) and private law (between individuals);

 the adoption of a deductive form of legal reasoning whereby

preexisting general statements of legal principle are applied to the
specific circumstances of individual cases;

 in litigation, the fact that no rigid separation exists between the stages
of the trial and pre-trial in court cases. Legal proceedings are viewed
as a continuous series of meetings, hearings and written
communications during which evidence is introduced, witnesses
heard and motions made;

 rules relating to courtroom practice which are intended to be minimal

and uncomplicated;

 a less conspicuous role played by lawyers, with an emphasis on

written submissions rather than oral argument. The judiciary in theory
and practice play a more organisational and inquisitive role. The
greater directorial role of the judiciary allows less room for the parties
to direct their own case. In this sense the system is more hierarchical
than participatory;

 the fact that, as officers of the state, the judiciary possesses no

separate and inherent power to adjudicate; and

 the fact that a greater proportion of the effort and expense of dispute
determination through litigation falls on the state.

It is the combination of these elements within each of the two families of common
law and civil law and their respective court procedures and practices which permit
the shorthand descriptors of ‘adversarial’ and ‘inquisitorial’ to be used. In the
classical adversarial form of trial:

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… the judge sits to hear and determine the issues raised by the parties, not
to conduct an investigation or examination on behalf of society at large …
So firmly is all this established in our law that the judge is not allowed in a
civil dispute to call a witness whom he thinks might throw some light on the
facts. He must rest content with the witnesses called by the parties.
(See Jones v National Coal Board [1957] 2 QB 55, 63−64 per Denning
LJ.)

2.4 Customary Law

• Customary law is the oldest form of law known to man worldwide. It consists
of customs, practices and beliefs that are accepted by a given society as
obligatory rules of conduct. It is not enacted but grows or develops with time.
It expresses itself not in a succession of words, but in a course of conduct. It
has no definite authors; there is no person or defined human agency one can
praise or bless for its being good or bad.1

• It has been defined as:

 practices, which by common adoption and long unvarying habits, have

come to have the force of law;

 rules, which in a particular community, have from long usage obtained

the force of law;

 a body of customs, accepted by members of the community as binding

upon them;

 organic or living laws of the indigenous people, which regulate their lives
and transactions;

 unrecorded tradition and history of the people, which has “grown” with
the “growth” of the people to stability and eventually become an
intrinsic part of their customs; or

1
L Fuller, 1968

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 usages or practices of the people, which by common adoption and

acquiescence and by long and unvarying habits, have become
compulsory and have acquired the force of law with respect to place, or
the subject matter to which it relates.

2.4.1 Fundamental features of customary Law

• There are six fundamental features of customary law. These are:

1. It must be in existence at the material time

2. It must be an existing native law and custom; not that of by gone

Days;

3. It must be flexible (elastic), organic (not static), regulatory and a living

law of the indigenous people subject to it;
4.
5. It must be of universal application in a given community;

6. It must enjoy acceptability as a custom; and

7. It must be unwritten (or partly written and partly unwritten).

2.4.2 Requisites for applicability of customary law

• In order for a custom to be legally binding, it must meet four requisites. It must be:

1. reasonable;
2. long established; 3. uniformly observed; and
4. certain.

• Thus a custom, if it is to be a customary law, must be reasonable and obligatory,

convenient, and neither arbitrary, discretionary, objectionable nor unjust, and of
continuous usage from time immemorial.

Note: Even where a custom is reasonable and certain and has fulfilled all the specified
essentials, the court may still refuse to enforce it for the following reasons:-

(a) It is repugnant to natural justice, equity and good conscience;

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(b) It is incompatible with any law at the time being in force or other currently
binding customs;

(c) It is contrary to public policy; or

(d) It is injurious to public interest.

QUESTION: Is a rule of customary law repugnant to natural justice, equity and good
conscience merely because it is inconsistent with or contrary to the English
Law?note this question

2.4.3 Proof of customary law

• A customary law must be proved by strong evidence in any of the following ways:

1. Expert evidence and opinion e.g. evidence of traditional leaders (chiefs)

who possess special knowledge of the subject matter;

2. Evidence of credible witnesses e.g. evidence of persons who are

sufficiently acquainted with the custom;

3. Assessors: Persons with local knowledge and duly appointed assessors

may assist with their knowledge;

4. Writers: Text books, manuscripts that are recognized by the subject

people may be used in evidence; or

5. Judicial Notice. The evidence Act provides that custom may be

established as judicially noticed or evidence may be called to establish
what a custom is and the existence of such a custom and to show that
persons or a class of persons concerned in the particular case regard
the custom as binding upon them.

2.4.4 Problems of customary law

• There are two major problems of customary law. These are:

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1. It is not codified. For this reason it is uncertain and vague; and only in
the minds of those who administer it or those who are subjects to it
especially the custodian of traditions and customs; and

2. It is a question of facts and difficult to apply by reason of its multiplicity,

diversity, cultural apathy, ideological conflicts, influence of civilization
etc.

2.5. The Islamic legal system

2.5.1 Introduction

• Islamic law is a body of rules which gives practical expression to the religious faith
and aspirations of the Muslim. The fundamental tenet of Islam is total and
unqualified submission to the will of Allah, which is defined by Islamic law in terms
of a comprehensive code of behaviour covering all aspects of life.

• Islamic law started with the advent of Islam. It derives from Mohammed’s mission
and its bases are the Qu’ran and the Sunna. The overall goal of the Islamic law is
to promote welfare of mankind. This goal in broad general terms implies, among
others, to ensure growth and justice and in specific terms relates to the protection
of religion, life, reason, progeny and property.

2.5.2 Sources of Islamic law

• The main sources of Islamic Law are:

1. The Holy Qu’ran – Is the foremost source of Islamic law. It is the

book given by God.
2. Sunna – sayings and deeds of Prophet Mohammed.
3. Ijma- or consensus of opinion of learned Islamic scholars;
4. Qiyas – or analogy reasoning. Process of independent reasoning by
qualified scholars to obtain legal rules from Shariah using the
analogical reasoning and induction?
5. Istihad – Legal presumptions, customs, public interest

2.5 Roman Dutch law

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Refer to Dr Munalula’s textbook, pages 40 to 45

UNIT 3

HISTORICAL DEVELOPMENT OF THE ZAMBIAN LEGAL SYSTEM

The reception of English law in Zambia

(a) The nature of the Zambian legal system

Zambia has a dual legal system made up of the tribe specific customary laws and
the ‘received law’. English law is the received law and is based on the English
Common law and system. But just what is English law and how was it received in
Zambia?

(b) The meaning of the term ‘English law’

When described as ‘received law’ in former British colonies and protectorates, the
term ‘English law’ refers to “the common law, the doctrines of equity and the
statutes of general application which were in force in England on a particular cut –
off date”. In the case of Zambia, the cut – off date is 17th August, 1911. The English
Law (Extent of Application) Act, CAP 11, whose long title is “An Act to declare the
extent to which the Law of England applies in the Republic” provides, in section 2,
as follows:
Subject to the provisions of the Constitution of Zambia and to any other
written law-
(a) the common law;
(b) the doctrines of equity;

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(c) the statutes which were in force in England on the 17th August, 1911
(being the commencement of the Northern Rhodesia Order in Council,
1911); and
(d) any statutes of later date than that mentioned in paragraph (c) in force
in England, now applied to the Republic, or which hereafter shall be
applied thereto by any Act or otherwise;
shall be in force in the Republic.

(c) The various modes of reception of English law in Africa

The reception of English law (and indeed all other European laws) in Africa can be
traced to the days when European colonists came to Africa. The colonists brought
their laws with them. In the same way the French introduced their Civil Code to
their territories, so did the Belgians, Italians and the Dutch.

Unlike the French, Belgians, Italians and the Dutch, the English did not have a ready
– made Code to carry to their territories in Africa. Rather, they brought their
common law, as supplemented by their own and territorial legislation. The modes
of introducing English law in the newly acquired British territories varied depending
on the manner in which a particular territory was acquired. But in the main, they
were five namely:

i. Introduction by English settlers: Wherever they go, English settlers are

presumed to take their English law with them. Under this mode of
introducing English law, there is no express enactment stating that English
law shall be applicable to the newly acquired territory. However, only so
much of the English law as is suitable to the circumstances of the newly
acquired territory is applicable. It is through this mode that English law was
introduced in most former British Colonies.

ii. Introduction by the imperial government by Order in Council or Act of the

imperial parliament: Under this mode, English law was introduced not by
settlers but by an express enactment. Thus, it was the enactment (i.e.
legislation) that provided for the introduction and observance of English law.

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The enactment was either made by the Crown by Order – in – Council or by

the colonial legislature by means of local legislation (through ordinances,
proclamations, Acts e.t.c).

The powers conferred on the Crown to promulgate an Order – in – Council

were found in the British Settlements Act, 1887 for settlements and in the
Foreign Jurisdiction Act, 1890 for protectorates and trust territories. On
the other hand, the powers of the Colonial legislature to introduce English
law through local enactment were granted to such legislature by the
Crown. In the latter case, the authority for the application of English law
is to be found in such enactments as the English Law (Extent of
Application) Act, CAP 11, in the case of Zambia.

iii. General reception of all English law on a particular topic (e.g. the law of
crime, the law of real property) by local ordinance;
iv. Adoption of specific English enactments: e.g. under the British Acts
Extension Act, Cap 10 of the laws of Zambia, the following English
enactments were adopted as applying in Zambia i.e. the Conveyancing Act,
1911; the Forgery Act, 1913;the Industrial and Provident Societies
(Amendment) Act, 1913; the Larceny Act, 1916; The Bills of Exchange (Time
of Noting) Act, 1917; the Married Women (Maintenance) Act, 1920; the
Gaming Act, 1922; the Industrial and Provident Societies (Amendment) Act,
1928; the Limitation Act, 1939; and the Law Reform (Enforcement of
Contracts) Act, 1954.

N:B Please note that these have been uplifted from the 1995 edition of
the Laws of Zambia. It is therefore note an updated version of the British
enactments applicable to Zambia. It is also possible that some of these
British Statutes have since been replaced by local legislation.

v. Adaptation and re-enactment of English law in local ordinances: e.g. the

Companies Act, Cap 338 of the laws of Zambia is based on the 1948 British

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Companies Act while the Matrimonial Causes Act No. 20 of 2007 is based on
the 1973 British Matrimonial Causes Act.

(d) The mode of reception of English law in Zambia

When the different modes of reception of English law discussed above are
considered, one comes to the conclusion that English law was introduced in Zambia
largely by means of mode (b) i.e. introduction by the imperial government by Order
in Council or Act of the imperial parliament. In this regard, the English law (Extent
of Application) Act, Cap 11 of the laws of Zambia is worth noting.
However, one cannot discount the contribution of modes (c), (d) and (e) in which
case the British Acts Extension Act, Cap 10 of the laws of Zambia is worth noting.

It is worth noting that in terms of practice and procedure, the Zambian law still
resorts to English law even now. This is evident in the provisions of some Zambian
Acts of Parliament e.g. section 12 of the Subordinates Court Act provides that “the
jurisdiction vested in Subordinate Courts shall be exercised (so far as regards
practice and procedure) in the manner provided by this Act and the Criminal
Procedure Code, or by such rules and orders of court as may be made pursuant to
this Act and the Criminal Procedure Code, and, in default thereof, in substantial
conformity with the law and practice for the time being observed in England in the
county courts and courts of summary jurisdiction”. Meanwhile, section 14 of the
same Act makes it very clear that “All British Acts declared by any Act to extend or
apply to Zambia shall be in force so far only as the circumstances of Zambia permit;
and, for the purpose of facilitating the application of the said British Acts, it shall be
lawful for a Subordinate Court to construe the same with such verbal alterations,
not affecting the substance, as may be necessary to make the same applicable to
the proceedings before the court; and every magistrate or officer of court, having
or exercising functions of the like kind or analogous to the functions of a magistrate
or officer referred to in any such law, shall be deemed to be within the meaning of
the enactments thereof relating to such lastmentioned magistrate or officer”.

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The High Court and Supreme Court Acts have similar provisions. Section 10 of the
High Court Act provides that “the jurisdiction vested in the Court shall, as regards
practice and procedure, be exercised in the manner provided by this Act and the
Criminal Procedure Code, or by any other written law, or by such rules, order or
directions of the Court as may be made under this Act, or the said Code, or such
written law, and in default thereof in substantial conformity with the law and
practice for the time being observed in England in the High Court of Justice”.
Interestingly, section 11 (1) of the same Act goes a step further by importing the
English law on probate. It provides that “the jurisdiction of the Court in divorce and
matrimonial causes and matters shall, subject to this Act and any rules of court, be
exercised in substantial conformity with the law and practice for the time being in
force in England”. Subsection (2) of section 11 further declares that “the law and
practice for the time being in force for the Probate, Divorce and Admiralty Divisions
of the High Court of Justice in England with respect to the Queen's Proctor shall,
subject to rules of court and to any rules made under the provisions of the Colonial
and Other Territories (Divorce Jurisdiction) Acts, 1926 to 1950, of the United
Kingdom, apply to the Attorney-General”.

Meanwhile, section 8 of the Supreme Court Act, Cap 25 provides that “the
jurisdiction vested in the Court shall, as regards practice and procedure, be
exercised in the manner provided by this Act and rules of court:

Provided that if this Act or rules of court do not make provision for any
particular point of practice and procedure, then the practice and procedure
of the Court shall be-

i. in relation to criminal matters, as nearly as may be in accordance with

the law and practice for the time being observed in the Court of
Criminal Appeal in England;

ii. in relation to civil matters, as nearly as may be in accordance with the

law and practice for the time being observed in the Court of
Appeal in England.”

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(e) The quantum of the English law received

Where there is a specific adoption of English law on a particular topic, only so much
of the English law as is specifically adopted will apply. The procedure for bringing
about such a specific adoption is the enactment of a local piece of legislation which
merely adopts a named English statute as part of the law of the ‘receiving’ country,
with minor amendments (method (d) above). Today, however, the tendency is to
draft a local ordinance, which although perhaps reflecting many of the features of
an English model, yet permits a greater degree of adaptation of English law to local
needs (method (e) above).

Where there has been a general reception of English law, the actual content of
English law received is not at all ascertained at the time of reception, because all
“the common law, the doctrines of equity, and the statutes of general application
which were in force in England” at the date of reception in the ‘receiving’ country
are taken as applying in that country. According to Dr. Munalula, “the significance
of the general reception of English law in this manner is that it provides the residual
law (i.e source of law of last resort) of the territory, to which reference is made in
the absence of any express rule deriving from specifically local law”.

QUESTION: To what extent can the received English law, or the cases on which it
rests (since it is derived in part from judge-made law, the common law
and equity) be still consulted or applied even where there is an express
local enactment? This is the problem of English judicial decisions in
African colonial courts, which is dealt in UNIT 6 of this course.

4.0 The evolution of the Zambian Courts System

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(a) The1899 to 1911 Courts System

The Zambian Court system as it exists today is a product of the court system
introduced by the British Colonists when the present day Zambia was acquired at
the beginning of 20th Century.

At the time the British colonists acquired North-Western Rhodesia in 1899 and
North – Eastern Rhodesia in 1900, some form of judicial system in the name of tribal
courts was already in existence administering customary law. However, this tribal
judicial system was not an elaborate judicial system. It was not until the coming
into effect of the Barotseland North-Western Rhodesia Order in Council of 1899
that an elaborate judicial system was first established in the North- Western part
of today’s Zambia.
In the Order in Council, provision was made for the appointment of judges and
magistrates thereby paving way for the establishment of the High Court and
Subordinate Courts for the territory. The Order in Council also expressly stated that
except where otherwise stated in the Order, English law was to apply in the
territory. And although Article 9 of the Order in Council provided some form of
protection of customary laws, no official recognition was extended to the tribal
courts themselves. The Article provided as follows:

The High Commissioner in issuing such proclamations shall respect any native
laws or customs by which the civil relations of any native chiefs, tribes or
populations under her Majesty’s protection are now regulated except so far
as the same may be incompatible with the exercise of her majesty’s power
and jurisdiction.

The North-Eastern Rhodesia Order in Council of 1900 relating to the part of today’s
Zambia not covered by the Barotseland North-Western Rhodesia Order in Council
of 1899 established an even more elaborate judicial system than had the
Barotseland North-Western Rhodesia Order in Council. A High Court was created
with civil and criminal jurisdiction over all cases in the territory. There was also
provision for appeals from the High Court to her Majesty in Council in relation to
civil cases if the amount involved reached a set threshold. For Criminal cases, the
High Commissioner was given power ‘to remit or commute in whole or in part any

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sentence of the High Court. Magistrate’s Courts were also created with a specific
provision that anyone dissatisfied with the decision of a Magistrate may appeal to
the High Court.

The main similarity between the Barotseland North-Western Rhodesia Order in

Council of 1899 and the North-Eastern Rhodesia Order in Council of 1900 is that
both did not officially recognise tribal courts nor was any system of appeal provided
from tribal courts to Magistrate Courts or the High Court. But both provided some
protection of customary law “so far as that law is not repugnant to natural justice
or morality or to any order made by her Majesty in Council or to any regulations”
made under the Order.
Thus, between 1899 and 1911, two distinctly different systems of judicial
administration developed, the officially recognised courts administering English
law (and infrequently, customary law ‘in civil cases between natives’) and the de
facto tribal courts administering customary law.

(b) The1911 to 1964 Courts System

On 4th May, 1911, the Northern Rhodesia Order in Council of 1911, revoking the
Barotseland North-Western and North-Eastern Orders in Council and merging the
two territories into one jurisdiction, was promulgated. Its provisions on the Court
system closely followed the pattern of the North-Eastern Rhodesia Order in Council
of 1900. The material difference was how High Court Judges were appointed. Tribal
Courts were being established, Magistrate Courts were being expanded and a Penal
Code for the territory was being developed.

In 1929, official recognition was given to the Native Courts (today’s Local Courts).
This was done through the enactment of the Native Courts Ordinance of 1929.
Meanwhile, the Magistrate’s Courts were expanded and the Penal Code developed
in 1933. In the same year, the High Court Ordinance clarified the High Court’s
position vis-à-vis the Magistrate’s Courts, extended the powers and jurisdiction of
the High Court for Northern Rhodesia to those of the High Court of Justice of
England and elaborated on the rules and procedure to be followed by the court in
cases involving customary law.

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In 1936, the Native Courts Ordinance was amended to facilitate the establishment
of urban Native courts. The decision to create urban Native courts was necessitated
by the growing numbers of Africans who were migrating from rural areas to work
in urban areas. Thus, the urban Native courts were intended to carter for the rural
dwellers turned urban dwellers.

From the establishment of urban native courts in 1936 to 1960, statutory changes
in the judicial structure of Northern Rhodesia were relatively minor. But with the
coming of independence in 1964, several changes were introduced in what was
now the Zambian Judicial system. There was established for the first time a Court
of Appeal for Zambia.
(c) The Zambian Court system from 1973 to date

In 1973, the Court of Appeal was abolished and replaced by the Supreme Court of
Zambia. Another major change was the establishment, in early 1990s, of the
Industrial Relations Court which, until then, had been operating as an Industrial
Relations Tribunal. Another notable change came through the enactment, in 1992,
of the Small Claims Court, Cap 47 of the laws of Zambia. It is pursuant to this Act
that the Small Claims Courts, currently on pilot in Lusaka and Ndola, have been
created.

The result is that the current Zambian Court system, starting with the highest court,
is as follows:

1. The Supreme Court;

2. The High Court (and the Industrial Relations Court);

3. The Subordinate Courts;

4. The Local Courts; and

5. The Small Claims Courts.

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(d) The future Zambian Court system

The current draft drat constitution has proposed the establishment of a Court of
Appeal and a Constitutional Court. If established, the Court of Appeal will be at the
level between the Supreme Court and the High Court while the Constitutional Court
will be at the same level as the Supreme Court. The Constitutional Court will
actually be a Division of the Supreme Court.

Stare decisis in Zambia’s courts

(a) What is the meaning of ‘stare decisis’?

‘Stare decisis’ is a principle of English Law by which previous judicial decisions
(precedents) are binding and must be followed.

Like Courts of several countries whose legal systems are based on the English
common law system, the Zambian Courts follow the principle of stare decisis. The
principle has been part of Zambia’s judicial system since the introduction of English
law during the colonial days. However, the post-independence approach to the
principle is not the same as the pre-independence approach.

(b) The pre – independence approach

Before independence, there was a rigid approach to the doctrine of stare decisis in
the then Northern Rhodesian courts. The courts were bound by decisions of higher
English Courts, especially the House of Lords and the Privy Council (at least with
respect to cases appealed to it from Northern Rhodesia). English decisions
construing statutes “imported” in the territory were followed religiously even if
“strange results” were produced. Thus, according to one commentator, “stare
decisis was pursued with even more rigour than in England itself”. All this was

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because there was automatic application of English substantive and procedural law
to the near complete exclusion of any inputs based on local needs.

Even in cases dealing with uniquely local concepts e.g. witchcraft, the Courts
insisted on referring to the then current laws and standards of England. In nearly
all the more ordinary decisions that have been published, the needs and public
policies of Northern Rhodesia were completely ignored in favour of any English case
or rule found to be closest in point.

It may be noted that very few Northern Rhodesian decided civil cases appeared in
published reports and the explanation advanced for this was that “most of the
Judgments and decisions turned upon the construction of English law of contracts,
torts etc and that very few of such cases threw any light on the law peculiar to
Northern Rhodesia.” The only major exception to the pattern of reflexive reliance
on the correctness of English rules and decisions tended to occur in cases dealing
with the law of sedition and civil liberties (in which the Courts were harsher than in
England) and in cases where the level of education and ‘development’ of individuals
were at issue (in which the Courts displayed an embarrassing paternalism).

Thus, before independence, the dogma of ‘stare decisis’ was routinely used, often
on a mechanical basis. What is important to note, though, is that while this
mechanical approach to the principle of stare decisis may have suited the needs of
a rather poorly trained and inadequately staffed judicial system, it contributed very
little to the development of rules of law suited to the conditions of the country or

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to the development of a method of analysis sufficiently flexible and creative to

enable the law to move forward.

(c) The post-independence approach

With the coming of independence in 1964, it was impossible for the Courts to
continue to reflect complete dependence on a foreign jurisprudence as the primary
source of Zambian law. The tide of national identity was running strong and the
bonds of political and economic subservience were formally severed. This meant
that the law too should move ahead both in order to serve the image of sovereignty
and, much more importantly, to stimulate or at least to participate, in the growth
and culture of the new republic.

The new thinking meant that the Zambian Courts could no longer take a mechanical
approach to the principle of stare decisis. It also meant that it was time for Zambian
Courts to view law as an instrument of social change and that as the Zambian
Society and policies changed, so too must the law be adjusted. Under such
conditions, it was inevitable that the method of the law would turn away from
automatic recourse to past precedents, especially precedent from outside the
country, towards consideration of the practical needs of society as perceived by the
law-makers.
Not surprisingly, therefore, the decisions of Zambian Courts made after
independence reveal that the former rigid adherence to the doctrine of stare
decisis has been relaxed and that the new approach is based on considerations of
public policy and less on pure, policy-neutral legal authority. The Supreme Court
has since explicitly stated that it is not bound by past decisions: “The United States

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Supreme Court, the Supreme Court of the Republic of Ireland, the ultimate Courts of
Canada, Australia, South Africa and most European Countries, hold themselves free,
if they think it right to do so, to refuse to follow a previous decision. Recently, the
House of Lords in England has abandoned its rigid adherence to the rule of stare
decisis. I have no doubt that this Court as the ultimate Court of appeal for Zambia
is not absolutely bound by its previous decisions.”

Mention must be made that the capacity of Zambian Courts to break from the past
precedents also extends to precedents from jurisdictions other than Zambia.
Further, cases from the Northern Rhodesia Courts are not binding on Zambia’s
Courts today. Nor are English cases and cases from other common law jurisdiction.

It should also be noted that a similar flexibility has been exercised with regard to
the interpretation of statutes copied from or modeled on English legislation. The
Zambian Courts now firmly declare that statutes can be construed only in their own
context, regardless of what the position of various foreign authorities may be.
Despite the foregoing, it can be safely stated that the doctrine of stare decisis is still
a very powerful notion in Zambian Courts today and continues to exercise a lot of
influence in the law. Even in decisions in which the Courts have expressed their
unwillingness to be bound by the past, especially English decisions, they have more
often than not regarded themselves as persuaded by such precedent “in the
highest degree”.

(d) Conflicts between received English law and the customary law

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i. What conflicts arose between the received English law and customary law
and how were they resolved?

Conflicts between customary law and received English law were of course
inevitable. One such conflict would arise when a white settler and an African were
involved in the same law suit. In such a case, English law was held to be applicable
as customary law was only applicable where the parties involved in the law suit
were exclusively Africans.

A second problem arose when customary law was clearly the applicable law but
was substantively abhorrent to the European Judge or magistrate. In such
instances, the judge or magistrate had 3 options at his disposal:
1. The first option was to merely disregard the advice of the assessors as to
what the law was or what the facts were. Reason? The court was, and is still
not bound to follow the opinion of assessors.
2. The second option was to find a direct conflict between the customary law
and the received English law. Recall that Section 12 of the Local Courts Act,
CAP 29 provides that customary law that is incompatible with the provisions
of any written law “shall not be applicable. Section 16 of the subordinate
Courts Act, CAP 28 has a similar provision.
3. The third option was for the Judge to use the “repugnancy” standard to reject
the application of customary law. This is because under the received English
law, customary law was not applicable if it was regarded as “repugnant to
natural justice, equity and good conscience”. See Section 16 of Cap 28; and
Section 12 of Cap 29.

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ii. Whose standard was applicable in deciding whether or not a given

customary law was “repugnant to natural justice, equity and good
conscience?”

The English standard. This was made clear in Matengula V LRNR 148,151(1951) in
which the Court cited the repugnancy provisions of the statutes and held that the
“pointing out” tradition was unacceptable as ”against justice as we people in
England see it.” See also Kaniki v Jairus (1967) ZR, 71 (HC); and Gwao Bin Kilimo v
Kisundi Bin Ifuti, 4 TLR 63 (1938). Extracts of the judgments in these two cases are
found in the book ‘Legal Process: Zambian cases, legislation and commentaries”.

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UNIT 4

SOURCES OF LAW IN ZAMBIA

4.0 Introduction

In its simplest terms, the phrase “sources of law” simply refers to the various
materials from which the law that we use is gotten from. To a very large
extent, these materials are a product of the country’s constitutional set up
as well as the historical basis of the country’s legal system.

In Zambia, the major sources of law are the Constitution; Acts of Parliament;
Delegated legislation; Judicial precedent; Customary law; Common law,
Equity and English statutes; international law; and modern textbooks.

i. Constitution of Zambia
The Constitution of Zambia is the primary source of law in Zambia. It is the
primary source of law because it is the supreme law of Zambia and if any
other law is inconsistent with it, that other law, to the extent of the
inconsistency, is void. Further, it binds all persons in the Republic of Zambia
including all Legislative, Executive and Judicial organs of the State at all
levels.2

That the Constitution is the supreme law of Zambia entails that the existence
and validity of other laws in the country depends on the extent to which such
other laws are consistent with the provisions of the constitution. This
relationship between the constitution and other laws was ably explained in

2
See Article 1(3) and (4) of the Constitution

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the case of Thomas Mumba vs. The Attorney General 3 In that case, Mr.
Justice DK Chirwa had this to say:

“In countries like Zambia where there is a written constitution, the

Constitution is the supreme law, any other laws are made because the
Constitution provides for their being made; and are therefore subject
to it. It follows therefore that unless the Constitution is specifically
amended, any Act that is in contravention of the Constitution is null
and void”.

The case of Thomas Mumba just referred to is one of those cases which confirms
the position that the validity of all other laws depends on the extent to which such
laws are consistent with the provisions of the constitution. In that case, the
applicant was standing trial in the subordinate court for an offence under the
Corrupt Practices Act. Section 53 (1) of the Act required that where such an accused
elected to say something in his defence, he had to say it on oath only (thus
excluding the option to make an unsworn statement). The defence submitted that
the provisions of section 53(1) of the Act were in contravention of Article 20 (7) of
the Constitution.

At the hearing of the matter in the High Court, Counsel for the Applicant submitted
that the provisions of section 53 (1) of the Corrupt Practices Act contravened the
provisions of Article 20 (7) of the Constitution in that the said section compelled
the accused, if he elected to say something in his defence to give evidence, whereas
Article 20 (7) of the Constitution stated that one, in a criminal matter, should not
be compelled to give evidence. It was submitted that since the section was in
conflict with the Article of the Constitution, it should be declared null and void and
unconstitutional.

In response to the submissions by Counsel for the Applicant, it was submitted on

behalf of the Attorney General that section 53 (1) of the Corrupt Practices Act was
not in conflict with the Constitution in that the section did not compel an accused
person to give evidence and that as such the accused person’s right to remain silent

3
(1984) ZR, 38

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was still maintained. The State further submitted that all the section in question
said was that if the accused person elected to say something he had to do so on
oath. After considering arguments from both counsel, the learned Judge had this
to say:

“In countries like Zambia where there is a written constitution, the

Constitution is the supreme law, any other laws are made because the
Constitution provides for their being made; and are therefore subject to it. It
follows therefore that unless the Constitution is specifically amended, any Act
that is in contravention of the Constitution is null and void.

There is no doubt that the provisions of Section 53 (1) of the Corrupt Practices
Act is in direct conflict with the provisions of Article 20 (7) of the Constitution.
Under ordinary interpretation of statutes one would have said that the latest
Act impliedly repealed or amended the old Act but there can be no implied
amendment to the Constitution. The Constitution is sacrosanct and it cannot
be amended by implication. To amend the Constitution certain requirements
have to be met as provided for in Article 80 of the Constitution and a
certificate has to be issued or inserted on the Bill as provided for under Section
5 (3) of the Acts of Parliament Act, Cap. 16. The Corrupt Practices Act does
not in its own body purport to amend the Constitution. Section 64 of the Act
amends the Penal Code and Section 65 ceases the application of the
Prevention of Corruption Act, 1916 of the United Kingdom to Zambia. Section
53 (1) of the Act, therefore, is blatantly in conflict with Article 20 (7) of the
Constitution. This conflict cannot even be resolved by reference to Article 20
(12) of the Constitution as sub-article (7) is not mentioned in that sub-article.
Neither can it be resolved by reference to the general derogatory Article 26
as Article 20 is deliberately left out”.

The case of Christine Mulundika & 7 Others vs. The People4 is another case which
confirms the position that the validity of all other laws depends on their conformity
with the constitution. In that case, the appellants had challenged the
constitutionality of certain provisions of the Public Order Act, Cap. 104 of the Laws

4
(1995) ZR,

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of Zambia, especially section 5(4) which required any person wishing to hold a
peaceful assembly to obtain a permit and contravention of which was criminalised
by section 7 of the same Act. The challenge related both to the requirement of a
permit and the prosecution based on the absence of such permit and was grounded
on the fundamental freedoms and rights guaranteed by
Articles 20 and 21 of the Constitution. A subsidiary challenge related to the
exemption of certain offices from the need to obtain a permit which is said to be
discriminatory contrary to Article 23 of the Constitution.

The Supreme Court held that the then section 5(4) of the Public Order Act, Cap. 104
of the Laws of Zambia contravened Articles 20 and 21 of the constitution and was
null and void and therefore invalid for unconstitutionality. The Court further held
that the invalidity and the constitutional guarantee of the rights of assembly and
expression precluded the prosecution of persons and the criminalisation of
gatherings in contravention of section 5(4) of the Act. “Accordingly”, stated the
court, “a prosecution based on paragraph (a) of section 7 which depended on
subsection 4 of section 5 would itself be inconsistent with the constitutional
guarantees and equally invalid”.

ii. Acts of Parliament

Article 62 of the Constitution vests the legislative power of the Republic of Zambia
in Parliament which consists of the President and the National Assembly. The
power is exercised through Acts of Parliament.

Subject to the provisions of the constitution, the legislative power of Parliament is

exercised by Bills (Proposed laws) passed by the National Assembly and assented
to by the President.5

Article 44 (3) (b) of the constitution empowers the President of the Republic of
Zambia to initiate legislation for submission to and consideration by the National
Assembly. But the constitution is silent on whether Members of the National
Assembly can initiate their own Bills.

5
See Article 78(1) of the Constitution.

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In practice, Members of the National Assembly are at liberty to initiate their own
Bills for submission to and consideration by the National Assembly. However,
certain Bills with financial implications may only be introduced on the
recommendation of the President.

Types of Bills

(a) Government Bill

These are also referred to as Public Bills because they affect the public as a whole.
A Government Bill is presented by His Honour the Vice –President or a Cabinet
Minister. The bill comes with a Memorandum signed by the Attorney General. The
Memorandum gives objectives and reasons why the Bill should be passed.

(b) Private Bill

This type of Bill is usually sponsored by a person or persons with private interests
to advance. The Bill aims at enacting or altering the law that only affects a particular
person or body of persons such as private companies. For example, a Bill entitled
“The Moslem Marriage Recognition Bill” would enable a law to be passed that
would recognise Moslem marriages.

A Private Bill may be presented on a petition by the promoter who could be a single
person or group of persons. The promoter of a Private Bill is also responsible for
the costs incidental to the passage of the Bill in the National Assembly.

(c) Private Members’ Bill

This is like a Government Bill. A Private Members’ Bill is also a Public Bill and the
cost associated with its drafting and passage in the National Assembly is met from
public funds. The only difference between a Government Bill and a Private
Members’ Bill is that it is introduced in the National Assembly, by a Private Member
of the National Assembly i.e. a back-bencher.

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(d) Hybrid Bill

A Hybrid Bill is a Bill which, although general in its intended application, affects
certain private or local interests. The Standing Orders give the Speaker the power
to determine whether a Bill is hybrid or not.
In Zambia, the most common type of Bills that are introduced in the National
Assembly are Government Bills and Private Members’ Bills.

Stages of a Bill

(a) First Reading

The first reading of the Bill is a formality. A Bill is presented and read for the first
time. The presentation of the Bill is done by the Minister or the Private Member
responsible. Only the title of the Bill is read out. There is no time limit that is
provided for between the time that the Bill is published by the Government Printer
and when it should be read for the first time in the National Assembly except for a
constitutional Bill. In the case of a Constitutional Bill, it should be published in the
Government Gazette for not less than thirty (30) days before the First Reading.

After the Bill is read for the first time, the Bill is referred to the appropriate
Committee for consideration. The Committee has the power to summon witnesses
to contribute to the efficacy and objectives of the Bill. Witnesses include Ministers,
Permanent Secretaries and other stakeholders. Witnesses should convince the
Committee on the purposes and appropriateness of the Bill. It is important,
therefore, that the witnesses that appear before the Committee are adequately
prepared.

The proceedings of the Committees are open to the public and the media. The
Committee produces a report that is taken into account during the second reading
stage of the Bill.

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(b) Second Reading

This is the most important stage in the legislative process of a Bill. At this stage, the
principle behind the Bill is debated in the House in great detail. The Cabinet
Minister or Member responsible for the Bill discusses the principles and objectives
of the Bill and takes into account the contents of the report of the
Committee that considered the Bill. At the end of the debate, the House decides
whether to proceed with the Bill or not. If the majority of the Members choose to
proceed, the speaker orders the Bill to be read a second time. If on the other hand,
the majority decline, then the Bill is withdrawn and it cannot be reintroduced
during the same session.

In the case of a Constitutional Bill, when the question is put by the Speaker that the
Bill be read a second time, a vote is immediately conducted and the Bill requires
the support of at least two-thirds of all Members of the House.

(c) Committee Stage

At this stage, the Bill is ordered to be considered by the Committee of the whole
House. The Committee examines the Bill in detail, clause by clause. If there are any
amendments to the Bill either as a result of the Committee’s Report on the Bill or
by the Cabinet Minister or Private Member responsible for the Bill, the
amendments are presented to the Committee of the Whole House at this stage for
adoption or otherwise.

The Deputy Speaker is the Chairperson of the Committee of the Whole House. At
the stage of the Committee of the Whole House, Members of Parliament are free
to speak more than once and are free to introduce various amendments to the
Bill.

(d) Report Stage

The Report Stage is when the amendments made at Committee Stage are reported
to the Whole House. At this stage, the House has an opportunity to reflect on the
amendments. Only additional amendments to the Bill not moved at Committee
Stage are considered.

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If a Bill has not been amended at Committee Stage, the Third Reading is preceded
forthwith without the Report Stage.

(e) Third Reading

At the Third Reading stage of a Bill, the Bill is reviewed in its final form and no
debate takes place. When the question has been put and agreed to, the Bill is
passed and, therefore, is presented to the President for assent.

A Constitutional Bill has to be passed at Third Reading with at least two-thirds

majority of all Members of the National Assembly.

(f) Presidential Assent

A Bill is presented to the President for his assent only after three days from the date
of the Third Reading of the Bill except for Bills relating to raising of revenue and
expenditure. If the President gives his assent, the Bill becomes an Act of Parliament
or law and takes effect immediately it is published in the Government Gazette.

The President can, however, withhold his assent to any Bill, in which case the Bill is
returned to the National Assembly. Such a Bill is returned to the House with a
message for the National Assembly to reconsider the Bill. If the National Assembly
thereafter passes the Bill on a Motion supported by a two-thirds majority, the Bill
is again presented to the President. When a Bill is again presented to the President
for assent, the President should assent to the Bill within twenty-one days of its
presentation unless he sooner dissolves Parliament.

iii. Delegated legislation

Article 80(1) of the Constitution gives Parliament authority to confer on any person
or authority power to make rules, regulations, by-laws, orders e.t.c with the effect
of law. However, this delegated authority should ensure that all rules, regulations,
by-laws or orders so made are in conformity with the parent or main Act enacted
by Parliament.

All delegated legislation, which is sometimes known as subsidiary legislation, takes

the form of Statutory Instruments (SIs). Section 2 of the Interpretation and General

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Provisions Act6, defines a Statutory Instrument as “any proclamation, regulation,

order, rule, notice or other instrument (not being an Act of Parliament) of a
legislative, as distinct from an executive, character”.

That Statutory Instruments are a source of law is unquestionable under section 20

of the Interpretation and General Provisions Act. This is because under subsection
6 of section 20, “any act done under or by virtue of or in pursuance of a statutory
instrument shall be deemed to be done under or by virtue of or in pursuance of the
written law conferring power to make the instrument”.

But it is mandatory that every provision of a Statutory Instrument must be

consistent with the provisions of the parent or main Act. Any provision of a
statutory instrument which is inconsistent with any provision of the parent Act is
void to the extent of the inconsistency7.

The Parliamentary Committee on Delegated Legislation is responsible for ensuring

that all Statutory Instruments are in conformity with the principal statute under
which they are made and that they also do not contravene the provisions of the
Constitution.

iv. Common law, Equity and English statutes

Common law is the legal tradition which evolved in England from the 11th century
onwards. It is defined as that ‘part of the law of England formulated, developed and
administered by the common law courts, based originally on the common customs
of the country and unwritten’.

Common law is the foundation of private law, not only for England, Wales and
Ireland, but also in forty - nine U.S. states, nine Canadian provinces and most
countries which first received that law as colonies of the British Empire and which,
in many cases, have preserved it as independent States of the British
Commonwealth.

6
Cap 2 of the Laws of Zambia. See also Article 139(1) of the Constitution
7
See subsection 4 of section 20 of Cap 2.

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On the other hand, equity is a body of rules which seek to advance what is ‘just’
and ‘fair’ in the circumstances of each case. For this reason, equity is said to denote
‘natural justice’. Equity developed as a result of defects in the common law.8 The
importance of the doctrine of equity is that whenever there is a conflict between
law and equity, the latter (equity) prevails.

The extent to which common law, equity and English statutes are a source of law
in Zambia is spelt out in the English law (Extent of Application) Act9. Section 2 of
the Act provides that

“Subject to the provisions of the Constitution of Zambia and to any

other written law-

(a)
the common law;
(b)
the doctrines of equity;
(c)
Statutes which were in force in England on the 17th
August, 1911 (being the commencement of the
Northern Rhodesia Order in Council, 1911); and
(d) any statutes of later date than that mentioned in
paragraph (c) in force in England, now applied to
the Republic, or which hereafter shall be applied
thereto by any Act or otherwise;
shall be in force in the Republic”.
It is important to note that notwithstanding (despite) section 2 of the English law
(Extent of Application) Act, there are certain British Statutes which are still a source
of law in Zambia despite coming into force after 17th August, 1911. These are
specified by the British Acts Extensions Act.10 They include the Conveyancing Act,
1911; the Forgery Act, 1913; the Industrial and Provident Societies (Amendment)
Act, 1913; the Larceny Act, 1916; The Bills of Exchange (Time of Noting) Act, 1917;
the Married Women (Maintenance) Act, 1920; the Gaming Act, 1922; the Industrial

8
The defects are discussed in UNIT 3
9
Cap 11 of the Laws of Zambia
10
Cap 10 of the Laws of Zambia

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and Provident Societies (Amendment) Act, 1928; the Limitation Act, 1939; and the
Law Reform (Enforcement of Contracts) Act, 1954.
Mention must also be made that notwithstanding (despite) the provisions of the
English law (Extent of Application) Act, Cap 11 of the laws of Zambia, all English
Statutes that apply to Zambia by virtue of that Act serve only as ‘reserve’ sources
of law in Zambia. This means that we can only resort to such English statutes if our
own Zambian Acts of Parliament are silent on a particular issue/matter. This
position was confirmed by the High Court in the case of The People vs. Shamwana
& Others11 In that case, the accused were charged with treason. Proving the case
of treason was dependent on Act No. 35 of 1973. Before this Act, the law provided
that one could not be convicted of treason if there were two witnesses to an overt
act or two witnesses who each observed a separate overt act of the same kind of
treason. This was the law in England and Zambia. But Act No. 35 of 1973 changed
the law in Zambia ensuring that there was no requirement as to a specific number
of witnesses to prove the offence of treason. After the Act came into force, the
offence of treason could be proved like any other criminal offence

Among the issues that were raised was whether the law applicable to the offence
was by virtue of the English Law (Extent of Application) Act, the English Treason Act
of 1795. The High Court ruled as follows:

“The English Law (Extent of Application) Act, Cap 4 is an enabling Act in that
in the absence any legislation in Zambia on any subject, English statutes
passed before 17 August will apply. Where Zambia enacts an Act with similar
provisions to an English Act, the Zambian Act is used not the English statute”.

The Court therefore concluded that the Zambian Act No. 35 of 1973 and not the
English Treason Act of 1795 was applicable to the offence with which the accused
stood charged. Accordingly, the accused were convicted.

11
(1982) ZR, 122

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Also worth noting is the fact that in terms of practice and procedure, the Zambian
legal system also relies heavily on English law. This is evident in the provisions of
the Subordinate Courts Act12; the High Court Act13; and the Supreme Court Act14.

Section 12 of the Subordinates Court Act provides that “the jurisdiction vested in
Subordinate Courts shall be exercised (so far as regards practice and procedure) in
the manner provided by this Act and the Criminal Procedure Code, or by such rules
and orders of court as may be made pursuant to this Act and the Criminal Procedure
Code, and, in default thereof, in substantial conformity with the law and practice
for the time being observed in England in the county courts and courts of summary
jurisdiction”.

Section 10 of the High Court Act, as read with section 2 of the High Court
(Amendment) Act No. 16 of 2002, has a similar provision. It provides that “the
jurisdiction vested in the Court shall, as regards practice and procedure, be
exercised in the manner provided by this Act and the Criminal Procedure Code, or
by any other written law, or by such rules, order or directions of the Court as may
be made under this Act, or the said Code, or such written law, and in default thereof
in substantial conformity with the law and practice for the time being observed in
England in the High Court of Justice provided that the Civil Court Practice 1999 (The
Green Book) of England or any other civil court practice rules issued after 1999 in
England shall not apply to Zambia unless they relate to matrimonial causes”.

In similar lines, section 8 of the Supreme Court Act, as read with section 2 of the
Supreme Court (Amendment) Act No. 15 of 2002, provides that “the jurisdiction
vested in the Court shall, as regards practice and procedure, be exercised in the
manner provided by this Act and rules of court:

Provided that if this Act or rules of court do not make provision for any
particular point of practice and procedure, then the practice and procedure
of the Court shall be-

12
Cap 28 of the Laws of Zambia
13
Cap 27 of the Laws of Zambia
14
Cap 25 of the Laws of Zambia

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i. in relation to criminal matters, as nearly as may be in

accordance with the law and practice for the time
being observed in the Court of Criminal
Appeal in England; ii. in relation to civil matters, as
nearly as may be in accordance with the law and practice
for the time being observed in the Court of Appeal in
England.”
except that the Civil Court Practice 1999 (The Green Book) of
England or any other civil court practice rules issued after 1999
in England shall not apply to Zambia unless they relate to
matrimonial causes”.

However, it is important to note that all British Acts declared by any Act to extend
or apply to Zambia are in force so far only as the circumstances of Zambia permit
and, for the purpose of facilitating the application of the such Acts, it is lawful for
any Court to construe the same with such verbal alterations, not affecting the
substance, as may be necessary to make the same applicable to the proceedings
before the court.

v. Judicial precedent15

The doctrine of precedent (Something that has been done before) is one of the
characteristic features of not only the English legal system but also all legal systems
founded upon the English common law system like Zambia.
Judicial precedent may be defined as “a judgement or decision of a court of law
cited as an authority for deciding a similar set of facts” or as “a case which serves
as an authority for the legal principle embodied in its decision”. The doctrine of
precedent declares that cases must be decided the same way when their material
facts are the same.

15
For more on the use, types, advantages and disadvantages of judicial Precedent see UNIT 6

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vi. Customary law16

Customary law is the oldest form of law known to man worldwide. It consists of
customs, practices and beliefs that are accepted by a given society as rules of
conduct. It is not enacted but grows or develops with time. It expresses itself not in
a succession of words, but in a course of conduct. It has no definite authors; there
is no person or defined human agency one can praise or bless for its being good or
bad.17

In Zambia, as in several other countries, different tribes observe different customs,

practices and beliefs. The customs, practices and beliefs observed by each tribe
sometimes act as a source of customary law for members of the tribe.

Other than the fact that customary law has been part of Zambia’s legal system since
colonial days, its existence is also expressly recognised by Article 23(4) (d) of the
Constitution of Zambia.

That customary law is a recognised source of law in Zambia is also evident by the
provisions of the Local Courts Act18 and the Subordinate Courts Act.

According to section 12 of the Local Courts Act, every Local Court has jurisdiction
to administer the African customary law applicable to any matter before it, as long
as such a law is not repugnant to natural justice or morality or incompatible with
the provisions of any written law. Further, any offence under African customary
law, where such law is not repugnant to natural justice or morality, may be dealt
with by a local court as an offence under such law notwithstanding that a similar
offence may be constituted by the Penal Code or by any other written law provided
that such local court shall not impose any punishment for such offence in excess of
the maximum permitted by the Penal Code or by such other written law for such
similar offence.

And section 16 of the Subordinate Courts Act recognises the application of

customary law in the following terms:

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16
For more on the principles governing the application of customary law, see UNIT 2 17
L Fuller, 1968
18
Cap 29 of the Laws of Zambia
“Subject as hereinafter in this section provided, nothing in this Act shall
deprive a Subordinate Court of the right to observe and to enforce the
observance of, or shall deprive any person of the benefit of, any African
customary law, such African customary law not being repugnant to justice,
equity or good conscience, or incompatible, either in terms or by necessary
implication, with any written law for the time being in force in Zambia. Such
African customary law shall, save where the circumstances, nature or justice
of the case shall otherwise require, be deemed applicable in civil causes and
matters where the parties thereto are Africans, and particularly, but without
derogating from their application in other cases, in civil causes and matters
relating to marriage under African customary law, and to the tenure and
transfer of real and personal property, and to inheritance and testamentary
dispositions, and also in civil causes and matters between Africans and non-
Africans, where it shall appear to a Subordinate Court that substantial
injustice would be done to any party by a strict adherence to the rules of any
law or laws other than African customary law: Application of African
customary law

Provided that-

(i) no party shall be entitled to claim the benefit of any

African customary law, if it shall appear, either from
express contract or from the nature of the transactions
out of which any civil cause, matter or question shall have
arisen, that such party agreed or must be taken to have
agreed that his obligations in connection with all such
transactions should be regulated exclusively by some law
or laws other than African customary law;

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(ii) in cases where no express rule is applicable to any matter

in issue, a Subordinate Court shall be guided by the
principles of justice, equity and good conscience.

vii. International law

International law may be described as a body of rules that determine how sovereign
States conduct themselves towards each other and towards each other’s subjects.
International law has several areas of specific focus including international human
rights law; international humanitarian law; international trade law; international
business law; international investment law; international economic law etc. But the
principles applicable in all these areas are drawn from either international
customary law or bilateral or multilateral agreements. For this reason, international
law is divided into two main categories namely customary international law and the
law of bilateral or multilateral agreements. But there are also sub categories exist.
These include Public international law and private international law.

Bilateral and multilateral agreements are a source of law in Zambia only if they have
been domesticated. Domestication simply means according a bilateral or
multilateral agreement the force of law so as to make it enforceable in the courts
of law. This is achieved through the enactment, by Parliament, of the relevant
enabling legislation.

It is worth noting that no bilateral agreement can be domesticated unless it has

been ratified or acceded to by the Zambian Government.

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That Bilateral or multilateral agreements are a source of law only if they have been
domesticated is exemplified by the case of Zambia Sugar Plc vs Fellow Nanzaluka.16
In that case, Mr Nanzaluka was employed by Zambia Sugar Plc in 1992. His
employment was terminated without notice in 1996. He was paid three months
salary in lieu of notice. He brought an action in the Industrial Relations Court. The
court accepted that the conditions of service had been complied with but held that
the action was contrary to the International Labour Convention No. 158 of 1982
which forbids termination of an employee’s contract of employment without valid
reasons. On appeal to the Supreme Court, it was held that international
instruments on any law although ratified and assented to by the state cannot be
applied unless they have been domesticated and that since Zambia had not yet
domesticated the International Labour Convention No. 158 of 1982, the convention
was inapplicable to Zambia.

The case of Attorney General vs. Roy Clark 17 also sheds light on the need for
international instruments to be domesticated before they become applicable to
Zambia. In this case, Mr. Roy Clark challenged his deportation from Zambia. It was
contended, inter alia, on behalf of Mr. Clark that the Minister of Home Affairs
should have taken into account Article 13 of the International Covenant on Civil and
Political Rights before deporting Mr. Clark because Zambia is a signatory to the
Covenant. The High Court accepted this argument. On appeal, this is what the
Supreme Court stated:
“….The learned trial Judge said that when deporting the respondent, the
Minister should have taken into consideration Article 13 of the International
Covenant on Civil and Political Rights to which Zambia is a signatory. Article
13 requires that a potential deportee must be given an opportunity to be
heard unless there are compelling reasons of national security. It was Dr.
Matibini's submission that in this case, it has not been demonstrated that
there existed compelling reasons. Dr. Matibini ended his submissions on this
ground by saying the learned trial judge was on firm ground when he held
that it was unlawful to deport the respondent when there is no compelling

16
Appeal No. 82 of 2001
17
(2008) ZR, 38

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reasons of national security and because deportation interfered with his

family life.

We have considered these submissions. We agree that in applying and

construing our statutes we can take into consideration international
instruments to which Zambia is a signatory. However, these International
Instruments are only of persuasive value unless they are domesticated in
our laws. The provisions relating to deportation as contained in section 26(2)
which we have reproduced above are clear. We cannot import in our
interpretation of section 26(2) glosses and interpolations derived from Article
13(1) aforesaid. Under section 26(2) long stay in Zambia and raising a family
in Zambia by an alien does no legally immunize a foreigner from deportation.
Further, for one to be deported under section 26(2) there need not necessarily
be compelling reasons of national security….”18[Own emphasis]

On the other hand, the position with regard to the application of international
customary law is less clear. There is no Zambian decision on the issue although the
English position may provide some guidance. The English position is that customary
rules of international law are deemed to be part of the law of England and
applicable by British courts provided they do not conflict with statutory law and
have been determined by British courts of final authority.

viii. Modern text books

Modern textbooks written by eminent legal scholars are often resorted to for a
variety of legal principles in various areas of law.

18
(2008) ZR, 38 at 61

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UNIT 5
5.0 STATUTORY INTERPRETATION

5.1 Why the need for Statutory Interpretation?

 There are several reasons giving rise to the need for statutory interpretation.
These include:
1. The impossibility of asking individual MPs on what they meant of
any word that you do not understand in the statute - In our day to
day conversations, it is not uncommon, if someone says something that
you do not understand, for you to ask that person to explain what he/she
meant. Such an opportunity is impossible with written documents, not
less so with statutes.

In the case of a document written by a single author, an attempt may be

made to ask him/her what he/she meant of any statement that you do
not understand in the document. That is assuming the author is alive
and can be contacted through some means. But it is not possible to ask
individual Members of Parliament (MPs) of what they meant of any
statement included in the Act of Parliament because, firstly, they are too
many to be approached individually. Secondly, the words contained in
an Act of Parliament pass through the legal machinery of law-making

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and individual MPs cannot be put into the witness box to supplement or
interpret what has been formally enacted. Therefore, in practice, the
meaning of the words contained in the Act of Parliament is not
necessarily the meaning intended by any actual person in particular, but
the meaning that is conventionally attached to such words.
2. Draft persons sometimes refrain from using words which they
consider to be implied in what they have written - The problem with
this approach is that if different users of the statute are not familiar with
the implied meaning, the possibility of them coming up with different
meanings of the same provision arises.
3. Draft persons may use words or phrases with a core meaning
(which everybody knows and agrees) and a peripheral (also known
as ‘penumbra’) meaning which is not known by everyone.
For example, the word “vehicle” is generally taken to mean some kind of
a “motor” vehicle. But the same word may also cover an “ox-cat”.

4. Statutes sometimes contain ambiguous words deliberately

inserted by draftspersons. There are several reasons why
draftspersons sometime deliberately insert ambiguous words in the
statute. They range from political reasons to just the need for such
ambiguity.

5. Ambiguities also arise out of printing or drafting error.

5.2. Rules of statutory interpretation.

 There are various rules which courts employ in the construction of statutes.
It is important to note that the court may, in the same case, make use of
more than one of these rules. The rules are:

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1. Literal rule of interpretation – This rule states that words used in the
statute must be construed in accordance with their “literal and
grammatical” meaning. The literal and grammatical meaning of the
words is also known as the plain or “natural and ordinary” meaning of
the words.

The classic statement of the literal rule of statutory interpretation is

contained in the Sussex Peerage Case (1884) 8ER at page 1034. In
that case, Lord Tinda CJ said:

“if the words of the statute are in themselves precise

and unambiguous, then no more can be necessary
than to expound those words in their natural and
ordinary sense. The words themselves alone do, in
such a case, best declare the intention of the law giver.”

There are several cases illustrating the application of the literal rule
of interpretation. In Kenyon v Eastwood (1888) 57 LJ QB, 455 , an
Act of Parliament provided that orders for committal must be made
in “open court”. The Court held that an order made, not in the actual
open court room but in the room next to it (which was also open to
the public), was invalid.

Miller v Saomons (1853) 7 EX, 475 is another example. In that

case, an Act of Parliament required Members of Parliament, before
voting in the House, to take oath in a form which concluded with the
declaration that it was taken “on the true faith of a Christian”. Taking
a literal interpretation approach to the provision, the Court held that
the oath taken by Jewish Parliamentarians was not “on the true faith
of a Christian” and consequently excluded Jewish Parliamentarians

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from voting. This was notwithstanding the fact that the history of the
enactment shared that the intention was to test the loyalty, not the
religious creed, of the MPs.

Whiteley v Chappell (1868-69) LR, 4 QB 147, is another commonly

cited case on the literal rule of interpretation. In that case, it was a
statutory offence to impersonate “any person entitled to vote” at an
election. The defendant, who had impersonated someone who had
been entitled to vote but who had died before the date of the election,
was convicted of the offence. Although the defendant was, on
appeal, acquitted on the ground that dead persons were not ‘entitled
to vote’, the fact that the lower court had convicted the defendant is
enough reason to get worried. Clearly, the impersonation was not of
a person entitled to vote because a dead person cannot be entitled
to vote: he does exist and cannot therefore have any rights, not less
so the right to vote.

In Zambia, cases illustrating the application of the literal rule of

interpretation include Mutale v. Attorney General (1979) ZR, 139.
In that case, the applicant sought leave to apply for a writ of habeas
corpus. He challenged his detention under the Preservation of Public
Security Regulations on the grounds that the detaining authority had
not complied with the constitutional requirement to furnish him with
a statement in writing specifying in detail the grounds upon which the
applicant was detained. The statement of grounds furnished read as
follows: ‘That between 1 January 1971 and 11 December 1973, you
conspired with other persons in Zambia to commit crimes and that
you organized and managed the commission of serious crimes in
Zambia which acts are prejudicial to the security of the Republic of
Zambia’.

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In his judgment, Mr. Justice Bweupe had this to say: “The question
that arises in my view is: What is then meant by the phrase
‘specifying in detail’?” After some analysis on the issue, he continued
thus: “It seems to me, therefore, that in the construction of the statute
words should be taken in their literal meaning which is not
necessarily the dictionary sense but the sense in which the words
are used in common parlance. What then is the popular sense of the
phrase ‘specifying in detail’? The popular sense of the phrase in my
view is therefore that the detaining authority must furnish sufficient
information which should enable the detainee to direct his mind to it
when making his representations”. In the learned judge’s view, the
statement given to the applicant in this case did not contain sufficient
information. Consequently, the judge ordered the release of the
applicant.

NOTE: Also read Edward Mweshi Chileshe v ZCCM, SCZ Judgment No.
10 of 1996 in which the meaning of ‘social status’ as used in section
108 of the Industrial and Labour Relations Act, was considered.

It must be noted, however, that when in operation, the literal

approach to statutory interpretation does not always achieve the
obvious object and purpose of the statute. The cases of Kenyon v
Eastwood, Miller v Saomons and Whiteley v Chappell clearly
show that the literal approach to statutory interpretation does not
always achieve the object and purpose of the statute being
construed. It is this general recognition of the inadequacies of simple
literalism which has led modern Judges to look elsewhere for a
guiding principle. More emphasis is now placed on the importance
of interpreting a statute in the light of the general purposes behind it

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and the intentions of Parliament as expressed in the Act. This is

referred to as purposive interpretation.

Thus, in Fletcher vs Budgen (1974) 2 ALL, 1243, the Divisional

Court of Queen’s Bench decided that under the Trade Descriptions
Act, 1968, a buyer of goods, in this case a car dealer, could be guilty
of the offence of falsely describing goods when he told a private
seller that his car was almost worthless, bought it, repaired it and
sold it at a considerable profit. Lord Widgery, CJ said that although
he had never thought of the Act as applying to buyers of goods, it
was necessary in the public interest that it should, at least in the case
of expert buyers, and that in his view such decision “is not in any
sense illogical and is not likely to run counter to any intention which
Parliament may have had”.

2. Context rule of Interpretation – This rule states that where the words of
a statute are not clear or plain after using the literal rule, then such words
must be construed in the context in which they have been used in the
statute. In this regard, the context rule of statutory interpretation is
regarded as a modification of the literal rule of interpretation. The
context rule is sometimes expressed in the Latin maxim noscitur a sociis,
translated as “a word may be known by the company it keeps.”

Thus, the context rule of statutory interpretation allows one to look not
only at the rest of the section in which the word appears but at the
statutes as a whole, and even at earlier legislation dealing with the same
subject matter. This is because it is assumed that when Parliament
passes an Act, it probably has the earlier legislation in mind and
probably intended to use words with the same meaning as before.

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There are several cases illustrating the application of the context rule of
statutory interpretation. English cases on the rule include Jewish Blind
Society Trustees v Henning (1961) 1WLR, 24; Ratcliffe v Ratclife
(1961) 1 WLR; 1455 and R v Price (1964) 2QB 76, among others.
In Zambia the case of Ntombizine Mudenda v The Attorney General
(1979) ZR, 245 sheds more light on the application of the context rule of
statutory interpretation. The case involved an application for a writ of
habeas corpus ad subjiciendum. The applicant was detained under
regulation 33 (1) of the Preservation of Public Security Regulations and
was served with the following grounds of detention. “That you on
unknown dates but during the year 1978 and October 1979 in collusion
with others yet unknown indulged in the illegal and illicit trafficking in
precious stones like emeralds”.

Counsel for the applicant contended that the grounds of detention were
too general, imprecise and vague and that the words ‘like emeralds’
were vague as they might be interpreted to mean precious stones, which
are similar to emeralds, in respect of which being in possession of or
trafficking in would not be a ground for detention. Mr. Justice Silungwe,
CJ, as he then was, stated thus:

“….the word ‘like’ in the context in which it was used here meant
that the precious stones were the ‘same as’ or ‘similar to’
emeralds. The question is: could a reasonable person have
understood the word in this way? …. There are only two types of
precious stones the trafficking in which is illegal, namely
diamonds and emeralds. It is therefore not misleading or vague
to use the phrase ‘like emeralds’ because it can only refer to

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emeralds or diamonds and that is the case that the detainee has
to answer and she has every opportunity to do so”.

3. The fringe meaning rule of Interpretation: This rule of interpretation

requires that a statute must be interpreted in the light of the general
policy behind its enactment. The rule is based on the fact that the words
we use, while having a central core meaning that is relatively fixed, may
also have a fringe of uncertainty when applied to a given set of facts.
For example, the word “building” is generally understood to mean a
building structure built on land. But a Judge may not find it easy to
decide whether a temporary Wooden Hurt or a telephone kiosk is a
building. Similarly, the word “vehicle is generally understood to refer to
“motor vehicle”. But an ‘ox-cart’ may also be called a vehicle. It is in
circumstances when there is uncertainty as to the meaning of the word
that the fringe rule of interpretation requires that the word be interpreted
in the light of the general policy behind the statute.

Attorney General v Steven Luguru, SCZ Judgement No. 20 of 2001

illustrates the application of this rule. In that case, the respondent was a
Tanzanian national employed in the Zambian civil service. After his
request to buy his house as a sitting tenant was rejected, he brought an
action before the Lands Tribunal which ordered that the house be sold
to him within a specified period. On appeal, a number of issues were
raised including the interpretation of the preamble. Madam Justice
Chibesakunda, delivering the Judgment of the Supreme Court stated
thus:
“The Tribunal did not consider the meaning of the preamble.
The Tribunal ignored the spirit of empowering Zambians to
acquire their own houses. The Tribunal thought that so long
as you are a civil servant and a sitting tenant and so long as

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you qualify under section 3 of the Lands Act, you are warm
and dry. On strict interpretation of the Cabinet Circular and
Interpretation of the Local Government and Housing and the
University of Zambia circulars on the sale of houses, the
intention of Government becomes very clear. The intention
was to empower Zambians who were sitting tenants to
purchase pool houses. The Tribunal misdirected itself and
erred in ignoring the preamble”.

4. The mischief rule of Interpretation: This rule, also often known as the
rule in Heydon’s case, states that where a statute has been passed to
remedy a weakness in the law, the interpretation which will correct that
weakness (mischief) is the one to be adopted. Under this rule, it is
believed that for the sure and true interpretation of all statues, four things
are to be discerned and considered. These are:

(a) What was the common law before the making of the Act?
(b) What was the mischief and defect for which the common law
did not provide?
(c) What remedy has Parliament resolved and appointed to cure
the defect?
(d) Once the remedy provided for in the Act is known, the Act
must be construed in such a way as to suppress the mischief
and advance the remedy according to the true intent of the
Act.

Cases abound in which the mischief rule was applied. One such case is
Hutton v Esther Urban District Council (1973) 2 ALL ER 1123. In that
case, the council proposed to construct a sewer to drain surface water from
houses and roads and also to take flood water from a river. The most

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economical line of the sewer would take straight through the claimant’s
bungalow, which would have to be demolished but might be rebuilt after the
sewer had been constructed. The Public Health Act, 1936 empowered the
council to construct a public sewer “in, on, or over any land”. The claimant
argued that the expression “land” did not include buildings and therefore,
the council had no power to demolish his bungalow. However, section 3 of
the Interpretation Act of 1889 (applicable at the time) provided that unless
a contrary intention appears, the expression ‘land’ includes buildings.
Applying the mischief rule, the Court of Appeal held that the Interpretation
Act was applicable and “land” therefore, included buildings. In
consequence, the council had power to demolish the claimant’s bungalow.

The Zambian case on the mischief rule is The People v Shamwana and
Others. In that case, the accused were charged with treason. Proving the
case was dependent on Act No. 35 of 1973 (Zambian Treason Act). Prior to
this Act, the law provided that one could not be convicted of treason unless
there were two witnesses to an overt act or two witnesses who each
observed a separate overt act of the same kind of treason. This was the law
in England and Zambia. But Act No. 35 of 1973 changed the law in Zambia
ensuring that there was no requirement as to a specific number of witnesses
to prove the offence of treason. After the Act came into force, the offence of
treason could be proved like any other criminal offence.

The following is an extract of Mr. Justice Chirwa’s judgment:

“What is the effect of Act No.35 of 1973? I seek guidance from
Lindley, M.R, said in the case of Re Mayfair Property Company
(1898) 2 Ch. 28 at p. 35. ‘In order properly to interpret any statute it
is necessary now as it was when Lord Coke reported Heydon’s case
to consider how the law stood when the statute to be construed was

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passed, what the mischief was which the old law did not provide and
the remedy provided by the statute to cure that mischief’.

In Macmillan and Co., v Dent (1907) 1 Ch. 107, Fletcher Moulton LJ

put it this way at 120: ‘In interpreting an Act of Parliament you are
entitled, and in many cases bound to look to the state of the law at
the date of the passing of the Act – not only the common law, but the
law as it then stood under the previous statutes in order properly to
interpret the statute in question. These may be considered to form
part of the surrounding circumstances under which the Legislature
passed it and in the case of a statute just as in the case of every
other document you are entitled to look at the surrounding
circumstances at the date of its coming into existence, though the
extent to which you are allowed to use them in the construction of
the document is a wholly different question”.

It must be observed that the mischief rule is closely related to the

“purposive approach” to the interpretation of statutes. In fact, some
commentators refer to it as the ‘purposeful approach’. In practice, however,
the purposeful approach is wider than the mischief rule. The distinction was
aptly explained by Lord Nicholls in R v Secretary of State for
Environment, Transport and the Regions, exparte spath Ho/me
(2001) 2AC. 349 at 397E in the following words;

“Nowadays, the Courts look at external aids for more than merely
identifying the mischief the statute is intended to cure. In adopting a
purposive approach to the interpretation of statutory language,
Courts seek to identify and give effect to the purpose of the
legislation. To the extent that extraneous materials assist in
identifying the purpose of the legislation, it is useful too”.

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So stated, the purposive approach is wider than the mischief rule since it
does not suppose (as the mischief rule does) that all statutes are passed
for the purpose of remedying a mischief, as opposed to promoting some
social good or purpose. In recent years, the purposive approach has
supplemented both the literal rule and the mischief rule as the proper
approach to the ascertainment of Parliament’s will.

The close relation between the mischief rule and the purposive approach
came to light in the case of Gardiner vs Sevenoaks EDC (1950) 66, TLR,
1091. In that case, the local authority served a notice under the celluloid
and cinematograph film Act 1922 on the occupier of a cave where film was
stored, requiring him to comply with certain safety regulations. The cave
was described in the notice as “premises”. Gardiner, who was the occupier,
appealed against the notice on the ground that a cave could not be
considered ‘premises’ for the purposes of the Act. The Court held that whilst
it was not possible to lay down that every cave would be premises’ for all
purposes, the Act was a safety Act and was designed to protect persons in
the neighborhood and those working in the place of storage.
Therefore, under the “mischief rule”, this cave was ‘premises’ for the
purposes of the Act.

4(a) So what, then, is the distinction between the mischief rule and the
purpose approach?
Both the mischief rule and the purposeful approach aim to give effect to the
general purpose and intention behind the legislation. However,
1. mischief rule applies only where there is a gap in the common law
whereas purposive approach applies whether the area covered
by the enactment was previously within the domain of common
law or statute law;

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2. Purposive approach is merely one aspect of the modern

emphasis on the importance of the context and, therefore, can be
regarded as having evolved from literalism. On the other hand,
mischief rule predates literalism; and
3. mischief rule was originally intended to restrict the scope of the
Court’s inquiry to the four corners of the Act itself whereas
purposive approach as currently practiced clearly allows
reference to various materials, and may even allow reference to
Hansard.

5. The Golden rule of Interpretation: This rule states that a statute must
be construed in such a way as to produce a reasonable and sensible
result, even if this involves departing from the literal meaning of the
words. The rule allows the court to prefer a sensible meaning to an
absurd meaning where both are linguistically possible. Under this rule, it
does not matter that the absurd meaning is the more natural and obvious
meaning of the words. In short, this rule requires that statutes must be
construed in such a way as to avoid absurdity.

The case of Attorney General and MMD v. Lewanika and 4 others, SCZ
Judgment No. 2 of 1994 is one of the Zambian cases that illustrate the
application of the golden rule in Zambia. The case involved an appeal to the
portion of the High Court Judgement that applied the literal rule of
interpretation to the provisions of Article 71(2) (c) of the 1991 Zambian
Constitution.

The Respondents were members of the MMD. On 31st October, they stood
for elections on the MMD ticket. They won elections and took their seats in
the National Assembly. On 12th August, 1993, they announced their
resignation from the MMD prompting the MMD National Secretary to write

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to the Speaker of the National Assembly informing him that the respondents
were no longer members of the MMD. Following the receipt of the
notification from the MMD National Secretary, the Speaker, on 27 th August,
1993, wrote the respondents informing them that in terms of Article 71(2)
(c) of the Constitution of the Republic of Zambia, the respondents ceased
to be MPs with effect from 13th August, 1993, the date when the MMD
National Secretary wrote the Speaker. The Respondents then petitioned the
Attorney General contending that although they had resigned from the MMD
on whose ticket they won the elections, they were still MPs and asked the
Court to declare the
Speaker’s decision in relation to their seats as null and void.
Using the literal rule of interpretation, the learned High Court judge
construed Article 71 (2) (c) of the Constitution as enacting that if an MP
leaves the party on whose ticket he or she was elected to the National
Assembly but does not join any political party, that person retains the seat
in Parliament as an independent MP. It is against this interpretation that the
Attorney General appealed. The gist of the appeal was that the learned trial
judge had misdirected herself by applying the literal rule of statutory
interpretation to Article 71 (2) (c) instead of the purposive rule of
interpretation. After discussing Counsel’s arguments at great length, the
Supreme Court observed thus:
“In the instant case, we have studied the judgment of the court below
and we find it sound and correct by applying the literal interpretation.
However, it is clear from the Shariz and Nothman cases that the
present trend is to move away from the rule of literal interpretation to
‘purposive approach’ in order to promote the general legislative
purpose underlying the provision. Had the learned trial judge
adopted the purposive approach she would undoubtedly have come
to a different conclusion. It follows, therefore, that whenever the strict
interpretation of statute gives rise to an unreasonable and unjust
situation, it is our view that judges can and should use their good

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common sense to remedy it, that is by reading words in if necessary,

so as to do what parliament would have done had they had the
situation in mind. We, therefore, propose to remedy the situation in
this case by reading in the necessary words so as to make the
Constitutional provision fair and undiscriminatory. Consequently, the
necessary words to be read in are ‘vice versa’. Hence Article 71(2)
(c) should now read (leaving out those sub – clauses of application):
71(2) A member of the National Assembly shall vacate his
seat in the National Assembly: (c) in the case of an elected
member, if he becomes a member of a political party other
than the party, of which he was an authorised candidate when
he was elected to the National Assembly or, if having been an
independent candidate, he joins a political party or vice versa.

See also Mumbuna Wamuneo Mwisiya v The Council of the

University of Zambia (1981) ZR 247.

NOTE: Students are advised to note that in the Lewanika case referred to above; several
other rules of statutory interpretation were discussed. It is therefore
important that every student reads the case.

6. The ejusdem generis rule: This is a rule covering things of the same
species or type. The rule states that where general words follow
particular words, the general words must be construed as being limited
to persons or things within the class outlined by the particular words.
For example, the phrase ‘other animals’ in ‘dogs, cats and other animals’
must be construed to refer to animals of the domestic type and would
not be extended to cover animals such as elephants and camels which
are not domestic animals.

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The application of the ejusdem generis rule is illustrated in the case of

Lane vs London Electricity Board (1955) 1 ALL ER 324. In that case,
the claimant was an electrician employed by the defendant to install
additional lighting in one of its substations. While inspecting the
substation, he tripped on the edge of an open duct and fell, sustaining
injuries. The claimant claimed that the defendant was in breach of its
statutory duty under the Electricity (Factories Act) special regulations in
that the part of the premises where the accident occurred was not
adequately lighted to prevent ‘danger’. It was held that the word
“danger” in the regulations meant ‘danger from shock, burn or to her
injury’. Danger from tripping was not ejusdem generis, since the specific
words related to forms of danger resulting from contact with electricity.

7. Expression unius exclusio alterius: This rule simply means that the
mention of one thing excludes others. Thus, under this rule, where
specific words are used and are not followed by general words, the Act
applies only to the instances mentioned. For example, where a statute
contains an express statement that certain statutes are repealed, there
is a presumption that other relevant statutes not mentioned are not
repealed.

The case of R v Immigration Appeals Adjucator, exparte Crew, the

Times, 26 November, 1982. In that case, an Immigration Appeals Tribunal
had, in interpreting the Immigration Act, 1971, ruled that a woman who was
born in Hong Kong of a Chinese mother and putative English father was not
entitled to a certificate of partiality (a certificate allowing immigration). There
was an appeal to the Court of Appeal where the sole question was whether
the word ‘parent’ used in the 1971 Act included the father of an illegitimate
child. The father in this case was unknown. It was held that since the
definition section in the 1971 Act specifically mentioned the mother alone in

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the context of an illegitimate child, the rule expression unis est exclusion
alterius served to exclude the father of an illegitimate child for these
purposes as a ‘parent’. According to the Court of Appeal, the Act required
partiality to be decided on the basis of the mother alone and consequently,
the daughter of a Chinese mother was not a partial.

5.3 Presumptions

5.3.1 Introduction

• In interpreting statutes, various presumptions may be applied, all of which are of a

negative or restrictive character. They are the background of legal principles
against which all Acts of Parliament are viewed and in light of which Parliament is
assumed to have legislated without being expected to express them.

• The following extract aptly explains the rationale behind presumptions:

“Presumptions may be regarded as instances of the proposition that the

duty of judges goes beyond the automatic enforcement of the dictates of
Parliament. The judges’ function is also to do justice in accordance with
certain settled principles of law in a free society; and they are entitled to
assume that Parliament does not intend to subvert these principles, unless
there is a clear statement that it does. For this reason, the courts apply the
rule that when Parliament has conferred a judicial or quasi-judicial power

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upon a person, that power must be exercised in accordance with the rules
of natural justice. When Parliament creates a new crime, this is presumed
to be subject to certain defences at common law such as self-defence and
duress, and also (very frequently) to the requirement of the state of the mind
(intention, knowledge or recklessness). These are judge-made principles
required by our ideas of justice and grafted on the statute by
‘implication’ although there may be no words in the statute to suggest them”.

5.3.2 Definition

• A presumption is a fact assumed to be true under the law. According to

Osborn’s Concise Law Dictionary, a presumption is “a conclusion or inference
as to the truth of some fact in question, drawn from other facts proved or admitted
to be true”. Thus, a presumption can obviate the need for proof, or make the
process easier.

5.3.3 Types of Presumptions

• Types of presumptions include the following:

i. Rebuttable presumptions of law – These are inferences which the law

requires to be drawn from given facts and which are conclusive until
disproved by evidence to the contrary. Examples include the presumption
of innocence of an accused person; the presumption of death of a person
who has not been heard of for 7 years; the presumption of legitimacy for
children born in wedlock; and the presumption of marriage.
ii. Irrebuttable presumptions of law – These are absolute inferences
established by law. Evidence is not admissible to contradict them: they are
rules of law. Irrebuttable presumptions of law are also sometimes known as
‘conclusive presumptions’. Examples include the rule that a person below

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the age of 8 (in Zambia) is not criminally liable for his or her actions and
omissions.
iii. Presumptions of fact – These are inferences which may be drawn from a
given set of facts but not conclusively.

• It must be noted that presumptions are so many that there is no universally agreed
upon list of them all. Therefore, even the list that follows below is not exhaustive:
it is merely intended to introduce the student to some of the presumptions that may
be encountered in relation to the interpretation of statutes. The list is as follows:

1. Presumption of the constitutionality of a statute – Under this presumption,

every Act of Parliament is presumed to be consistent with the Constitution and,
therefore, constitutional, unless the contrary is proved. But see the position
taken by the court in The People v Bright Mwape and Fred Mmembe (1995)
on the presumption of constitutionality of statutes.

2. Presumption against injustice - The rationale behind this presumption is that

any law enacted by Parliament is never intended to bring about or cause
injustice to any person subject to it (law). The operation of this presumption is
illustrated by the case of Coltman v Bibby Tankers Ltd (1987) 3 ALL ER,
1068. The case rested on the interpretation of section 1(3) of the Employer’s
Liability (Defective Equipment) Act of 1969 which defined the word
‘equipment’ as including “any plant machinery, vehicles, aircraft and clothing”.
The question for the court’s determination was whether a worker injured in a
ship had a remedy under the Act since ships were not included in the definition.
The High Court held that the worker had a remedy under the Act even though
ships were not mentioned in the definition because it would be
‘unjust’ to differentiate between accidents in aircrafts and ships. Although the
Court of Appeal reversed the decision, the House of Lords unanimously
reinstated the original decision with Lord Oliver stating as follows:

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“The purpose of the Act was manifestly to saddle the employer with liability
for defective plant of every sort with which the employee is compelled to
work in the course of his employment, and I can see no ground for excluding
particular types of chattel merely on the ground of their size or the element
on which they are designed to operate”.

3. Presumption against retrospectivity: Under this presumption, every statute

is presumed to operate with prospective and not retrospective effect. However,
this presumption is not applicable where the statute expressly states that it shall
have retrospective effect. In Zambia, the reason is that Article 79 (7) of the
Republican Constitution gives Parliament power to enact laws with
retrospective effect.

It is also important to note that a distinction is always drawn between matters

of procedure and matters of substance in the application of the presumption
against retrospectivity. The distinction is that the presumption is not applicable
when matters of procedure are involved: it is only applicable when matters of
substance are involved. In Zambia, this position has been confirmed by the
High Court in two unreported cases relating to the amendment of the Local
Government Act prohibiting execution of court judgments on the property of
local authorities. However, the Supreme Court is yet to pronounce itself on the
matter as no opportunity has occurred for it to do so.

The position is different in the United Kingdom (UK). It would appear that the
distinction between matters of procedure and matters of substance has since
disappeared. The new approach for the application of the presumption appears
to be that the issue should not be whether the matters involved are procedural
or substantial but rather whether the retrospective application of the law would

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be unfair in the circumstances of each individual case. Read Yew Bon Tew v
Kenderaan Bas Mara (1982) 3 ALL ER, 833; Re A
Solicitor’s Clerk (1957) 3 ALL ER, 617; Secretary of State for Social
Services v Tunnicliffe (1991) 2 ALL ER, 712; and L’Office Cherifien des
Phosphates and another v Yamashita Steamship Co. Ltd: The Boucraa
(1994) 1 ALL ER, 20.

4. The presumption that mens rea is a necessary ingredient of statutory

offences: Common law requires two elements to be present before an accused
person may be convicted of a crime. The elements are actus reus and mens
rea. Many statutes also require the presence of both elements before the
imposition of criminal liability is made. However, the problem arises where a
statute creating an offence is silent on the requirement of mens rea. The
problem is compounded by the fact that there are strict liability offences whose
proof is not dependent on the presence of mens rea because mens rea is not
a necessary element in strict liability offences.

When such a problem arises, the courts will normally presume that Parliament
expected mens rea to be a precondition of guilt and accordingly they will refuse
to convict in its absence. However, this is a rebuttable presumption meaning
that if evidence is adduced to prove the contrary, the accused may be
convicted.

5. Presumption of strict interpretation of penal provisions. The presumption

is that all penal provisions must be construed in favour of the accused person
unless the evidence adduced by the prosecution leaves no doubt as to the
guiltiness of the accused. Thus, as far back as 1873 in Dickenson v Fletcher
(1873) LR 9 CP1, Brett J stated as follows:

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“Those who contend that a penalty may be inflicted must show that the
words of the Act distinctly enact that it shall be incurred under the present
circumstances. They must fail if the words are merely equally capable of a
construction that would, and one that would not, inflict the penalty’.

• As already noted above, presumptions are many and cannot all be covered here.
But students may wish to also familarialise themselves with the presumption
against gaining advantage from wrong doing; the presumption relating to
consolidating and codifying statutes; and the presumption relating to ‘and’ and
‘or’, among others.

5.4 Finding Parliament’s intention

5.4.1 Introduction

• Looking at UNIT 5.10 of the course outline for this course, one gets the impression
that the process of statutory interpretations is all about ‘finding
Parliament’s intention’. This impression is also supported by the words of Lord
Simon in Ealing London Borough Council v Race Relations Board (1972) 1
ALL ER, 105, in which he stated that “it is the duty of a court to interpret an Act of
Parliament as to give effect to its intention”. The question that arises is: Is the
process of statutory interpretation aimed at giving effect to the intention of
Parliament as expressed in a particular Act of Parliament?

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• While the words of Lord Simon in the Ealing London Borough Council case may
seem to suggest an affirmative answer to the question, other authorities suggest
the contrary. For example, Lord Reid in Black-Clawson International Ltd v
Papiewerke Waldho-Aschaffenburg AG (1975) 1 ALL ER, 810, stated thus: “we
often say that we are looking for the intention of Parliament, but that is not quite
accurate. We are seeking not what Parliament meant but the true meaning of what
they said”. Support for Lord Reid’s point may be found in Hilder v Dexter (1902)
AC, 474, where Lord Halsbury declined to give judgment as to the meaning of the
Companies Act 1900, on the ground that he had drafted the Act. He said:

“I have more than once had occasion to say that in construing a statute, I
believe the worst person to construe it is the person who is responsible for
its drafting. He is very much disposed to confuse what he intended to do
with the effect of the language which in fact has been employed. At the time
he drafted the statute, at all events, he may have been under the impression
that he had given full effect to what he intended, but he may be mistaken in
construing it afterwards just because what was in his mind was what was
intended, though perhaps it was not done. For that reason I abstain from
giving judgment in this case myself”.

• Despite the difference of opinion as exemplified above, it appears plausible to

argue that the language used in any Act of Parliament is primarily intended to
communicate the intention of Parliament behind such Act. It follows that in
construing an Act of Parliament, the court aims at giving effect to the intention of
Parliament. However, it depends on which side of the debate one is.

5.4.2 Intrinsic and Extrinsic Aids to Statutory Interpretation

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• Both intrinsic and extrinsic aids to statutory interpretation are ‘materials’ which the
court may consult in ascertaining the meaning of the word or words used in a
statute.

(a) Intrinsic aids are those that are found within the four corners of a given statute.
They are, in essence, a sum total of the various parts of a statute. These are:
the short title; the long title; the date of assent; the enacting formula; the
sections and subsections; marginal notes; the extent of application; and the
commencement date. In addition, an Act of Parliament will normally have
definition section; savings and repeals section (sometimes known as
transitional provisions); and schedules at the end of the Act. What is important
to note is that not all these are of equal significance as indicators of the meaning
of the statute.

The following is what the courts of law and some commentators have said in
reference to the usefulness of some of the intrinsic aids of statutory
interpretation:

i. Long title - According to Lord Lane CJ, in R v Galvin (1987) 2 ALL

ER, 851: “One can have regard to the title of a statute to help resolve
an ambiguity in the body of it, but it is not, we consider, open to a court
to use the title to restrict what is otherwise the plain meaning of the words
of the statute simply because they seem to be unduly wide”.

And Lord Simon in Black-Clawson International Ltd v Papiewerke

Waldho-Aschaffenburg AG (1975) 1 ALL ER, 810 took the view that
where a long title provides ‘the plainest of all guides to the general
objectives of a statute’, there can be no justification for restricting its use
to cases of ambiguity.

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ii. Short title - The leading case is Re Boaler (1915) 1 KB, 21 in which
it was noted that a short title is part of the Act and as such the court
can and should consider it. However, a short title is, by its very
definition, a short title and therefore, as Scrutton LJ put it,
‘accuracy may be sacrificed to brevity’.

iii. Headings and marginal notes – According to Lord Reid in Director

of Public Prosecutions v Schildkamp (1969) 3 ALL ER, 1640,
there has long been a general consensus that headings and marginal
notes are relevant to the process of interpretation ‘provided we
realize that they cannot have equal weight with the words of the Act’.
They have less weight than the words of the Act because ‘they enact
nothing’. See also Stephens v Cuckfied RDC (1960) 2 QB 373; and
R v Montila (2005) 1 ALL ER, 113.

iv. Schedules – In Attorney General v Lamplough (1878) 3 ExD

214, Brett LJ stated that “a schedule in an Act is a mere question of
drafting, a mere question of words. The schedule is as much of the
statute, and is as much an enactment, as any other part”. In Zambia,
section 9 of the Interpretation and General Provisions Act, Cap 2
of the Laws of Zambia provides that “every Schedule to or table in
any written law, together with notes thereto, shall be construed and
have effect as part of such written law”.

v. Definition section – This is a very important intrinsic aid to statutory

interpretation because it provides guidance on the meaning attached
to the various terms used in the statute. Definition sections contain
two types of provisions. First there are those provisions which simply
state that the defined terms shall ‘mean’ whatever the provision
states them to mean. The second category consists of those

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provisions which state that the defined terms shall ‘include’ whatever
the provision states them to include. In cases falling within the latter
category the words will have not only their special statutory meaning
but, according to Lord Selborne
LC in Robinson v Barton-Eccles Local Board (1883) 8 App.
Cas. 798, they will also posses their ‘ordinary, popular and natural
sense whenever that would be applicable’.

• The following extract from Glanville Williams’ Learning the Law sums up the
significance of extrinsic aids for purposes of statutory interpretation:

“Not all of these [intrinsic aids] are of equal significance as indicators of the
meaning of the statute. There is a good deal of ancient learning about the
matter, but the essential distinction is that some of these features are the
enacting parts of the statutes (which can be considered and amended by
Parliament), whereas others (the cross-headings, the side-notes or
marginal notes and the punctuation) are regarded as being of less
significance since they do not enact anything. It seems likely, however that
a court… would permit some use of them if they shed light on the meaning
of the Act.”

(b) Extrinsic materials, on the other hand, are materials, outside the four corners
of the Act but very often related to the Act in one way or the other, that the court
may make use of in ascertaining the meaning of the words used in the statute.

The main categories of extrinsic materials normally discussed by

commentators on the subject are pre-parliamentary materials (such as the
National Constitution Conference Report in relation to the interpretation of the
Republican Constitution that will be enacted arising out of the deliberations of
the Conference), parliamentary materials ( especially hansard) and

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postparliamentary materials (e.g. guidelines issued by a Government Ministry

or Department responsible for administering or supervising the administration
of a given piece of legislation).

It must be noted, however, that the extent to which courts may make use of
these types of extrinsic materials is still a subject of debate. But there is a
plethora of authorities suggesting that courts may seek some guidance from
these matters in deserving cases.

The Interpretation and General Provisions Act, Cap 2 of the Laws of

Zambia is perhaps the most useful intrinsic material for statutory interpretation
purposes. The importance of this piece of legislation, so far as the interpretation
of statutes is concerned, cannot be over emphasized and is apparent from the
long title of the Act: “An Act to amend and consolidate the law relating to
the construction, application and interpretation of written law; to provide
for the exercise of statutory powers and duties; and to provide for matters
incidental to or connected with the foregoing”.

It is also worth noting that section 2(1) of the Interpretation and General
Provisions Act makes it very clear that the provisions of the Act apply to every
written law passed or made before or after the commencement of the Act, unless a
contrary intention appears in the Act or in the written law concerned.

While it is important for students to familiarize themselves with all the provisions
of the Interpretation and General Provisions Act, Students are particularly
urged to ensure that they take time to acquaint themselves with provisions in
Parts II, III, IV, V, VII and VIII of the Act.

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UNIT 6

JUDICIAL PRECEDENT

6.1 Introduction

• The doctrine of precedent is one of the characteristic features of not only

the English legal system but also all legal systems founded upon the English
common law like Zambia.

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• Judicial precedent may be defined as “a judgement or decision of a court of

law cited as an authority for deciding a similar set of facts” or as “a case
which serves as an authority for the legal principle embodied in its decision”.
The doctrine of precedent declares that cases must be decided the same
way when their material facts are the same.

6.1.1 The wider and narrower view of precedent

• The doctrine of precedent may be formulated in both a wider sense and a
narrower sense. When formulated in its wider sense, the doctrine of
precedent simply states that it is desirable that similar cases should be
decided in a similar manner. This wide view of precedent is based:
i. partly on the proposition that consistency is an important
element of justice;
ii. partly on the fact that the practice of following previous
decisions results in improved efficiency because points of law
which have once been decided can simply be applied in latter
cases without being subjected to repeated rearguments; and
iii. partly on judicial comity i.e. the mutual respect which judges
have for their colleagues.
• The use of precedent in this wider sense is not peculiar to legal systems
founded on English common law: the courts in any developed country do,
to some extent, follow and make use of precedent in this sense.
• On the other hand, the doctrine of precedent, when formulated in a narrow
sense, simply states that courts are bound to follow earlier decisions. It is
the idea of precedent in this narrow sense which is largely peculiar to legal
systems founded on English common law and is embodied in the doctrine
of Stare decisis which simply means ‘to stand by decisions’. Under this
doctrine, all courts bind all lower courts and some courts, at least to some
extent, bind themselves. The hierarch of the courts, which is discussed in
UNIT 7, is relevant in this context.

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6.2 Types of precedent

6.2.1 Original precedent

• This is a type of precedent which creates and applies a new rule e.g. the
‘neighbour principle’ was first created and applied in Donoghue v
Stevenson (1932) AC, 562.

6.2.2 Binding precedent

• A binding precedent is a decided case which a court must follow whatever
the result of its application e.g. in Zambia every decision of the Supreme
Court is binding on all lower courts regardless of its merits. Binding
precedents are sometimes called ‘authoritative’ precedents.

6.2.3 Persuasive precedent

• A persuasive precedent is one which is not absolutely binding but which
may be applied. In Zambia, for example, all English decisions and decisions
made by courts of other legal systems founded on the English common law
are not binding on the Zambian courts: they are merely persuasive. Also,
the decision of a High Court Judge is not binding on another High Court
Judge: it is merely persuasive.

How Judicial Precedent works

When faced with a case on which there appears to be a relevant earlier decision,
the judges can do any of the following:

7 Follow - If the facts are sufficiently similar, the precedent set by the earlier
case is followed, and the law applied in the same way to produce a decision.

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8 Distinguish - Where the facts of the case before the judge are significantly
different from those of the earlier one, then the judge distinguishes the two
cases and need not follow the earlier one.

9 Overrule - Where the earlier decision was made in a lower court, the judges
can overrule that earlier decision if they disagree with the lower court’s
statement of the law. The outcome of the earlier decision remains the same,
but will not be followed. The power to overrule cases is only used sparingly
because it weakens the authority and respect of the lower courts.

10 Reverse - If the decision of a lower court is appealed to a higher one, the higher
court may change it if they feel the lower court has wrongly interpreted the
law. Clearly when a decision is reversed, the higher court is usually also
overruling the lower court’s statement of the law.

More on how judicial precedent works

Distinguishing
The court may refuse to follow a previous decision on the ground that the material facts
in the previous decision are not the same as the material facts in the case before court.
Whenever the court comes to such conclusion, the case on which the court is required to
pronounce itself is said to be distinguishable from the previous decision.

Distinguishing a case on its facts, or on the point of law involved, is a device used by
judges usually in order to avoid the consequences of an earlier inconvenient decision
which is, in practice, binding on them. Thus, distinguishing an earlier case from a later
case is simply a way of saying that the earlier case is irrelevant to the later case and
cannot, therefore, be followed as precedent. Put differently, the practical implication of
distinguishing an earlier case from a later case is that the earlier case is rendered

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inapplicable to the later case. It does not, however, imply criticism of the correctness of
the earlier case. Neither does it imply that the earlier case cannot be followed in future
cases founded on similar facts.

Overruling
Overruling simply means declaring a previous decision as having been wrongly decided.
This happens when a higher court reaches the conclusion that a decision made in an
earlier case by a lower court was based on the wrong application of the law or that the
ratio decidendi of such decision is no longer desirable. An example of a decision overruled
on the ground that it was based on the wrong application of the law is Anderton v Ryan
(1985) 2 ALL ER 335 which was overruled by the House of Lords in R v Shivpuri (1986)
2 ALL ER 334 in relation to the Criminal Attempts Act, 1981 while Miliangos v George
Frank Ltd (1975) 3 ALL ER 801 is an example of a decision that overruled previous
authorities on the ground that the it was a decision which was no longer desirable.[ The
previous authorities had decided that judgments could not be given in a foreign currency].

In Zambia, the power to overrule a previous decision lies only with the Supreme Court.
The Supreme Court can overrule previous decisions of the High Court as well as overrule
its own previous decisions. But the High Court cannot overrule its own previous decisions
although it may disapprove such decisions.

The practical implication of overruling a previous decision is that such decision loses all
its authority and ceases to be precedent forthwith in relation to all future cases.

Reversing
Reversing is the overturning on appeal, by a higher court hearing the appeal, of the
decision of the lower court. The appellate court, on reversing the decision of a lower court,
substitutes its own decision. For example, where a party to a case decided by the High
Court is dissatisfied with the decision of the High Court and appeals to the Supreme Court

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and the Supreme Court allows the appeal by reaching at a different decision from that of
the High Court, the decision of the High Court stands reversed.

In practice, a decision that has been reversed has no authority as precedent and cannot,
therefore, be followed in any future case founded on similar facts. Neither is it binding on
the parties to it.

Dissenting
To ‘dissent’ is to ‘disagree’ or to hold a ‘different’ opinion. The term dissenting is used in
relation to any judgement of a judge or judges who reach a different decision from the
majority of the judges hearing a case. This happens when a case is heard by a panel of
three (03) or any other odd number of judges and the minority of judges on the panel
disagrees with the conclusion reached by the majority of the judges on the panel. In such
circumstances, the decision of the minority judges on the panel is known as a ‘dissenting’
judgment while that of the majority of judges on the panel is known as the
‘majority’ judgment. The ‘majority’ judgement is the one that is binding and that may be
followed in future as precedent, not the ‘dissenting’ or ‘minority’ judgement.

It is important to note that ‘dissenting’ judgments are presently not a feature of the
Zambian legal system, at least in practice. This is because although our judges are, in
theory, entitled to reach different conclusions in any case that is being heard by a panel
of judges, we do not see any dissenting judgments being delivered. This state of affairs
might be attributed to the lack of resources, human and time, to accommodate the luxury
of a judge sitting to put his/her disagreements with colleagues in a separate judgment.

What approach do judges take in deciding a case?

As already stated above, judicial precedent or case law comes from the decisions
made by judges in the cases before them (the decisions of juries do not make case
law). In deciding a case, there are two basic tasks: first, establishing what the facts
are, meaning what actually happened; and secondly, how the law applies to those

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facts. It is the second task that can make case law, and the idea is that once a
decision has been made on how the law applies to a particular set of facts, similar
facts in later cases should be treated in the same way, following the principle of
stare decisis described above. This is obviously fairer than allowing each judge to
interpret the law differently and also provides predictability, which makes it easier
for people to live within the law.

The judges listen to the evidence and the legal argument and then prepare a written
decision as to which party wins, based on what they believe the facts were, and
how the law applies to them. This decision is known as the judgment, and is usually
long, containing quite a lot of comment which is not strictly relevant to the case, as
well as an explanation of the legal principles on which the judge has made a
decision.

The explanation of the legal principles on which the decision is made is called the
ratio decidendi – Latin for the ‘reason for deciding’. It is this part of the judgment,
known as binding precedent, which forms case law.

All the parts of the judgment which do not form part of the ratio decidendi of the
case are called obiter dicta – which are Latin for ‘things said by the way’. These are
often discussions of hypothetical situations: for example, the judge might say ‘Jones
did this, but if she had done that, my decision would have been . . .’. None of the
obiter dicta forms part of the case law, though judges in later cases may be
influenced by it, and it is said to be a persuasive precedent.

In deciding a case, a judge must follow any decision that has been made by a higher
court in a case with similar facts. The rules concerning which courts are bound by
which are known as the rules of judicial precedent, or stare decisis. As well as being
bound by the decisions of courts above them, some courts must also follow their
own previous decisions; they are said to be bound by themselves.

The doctrine of precedent in Zambia

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Zambia, as explained in UNIT 3, is a dual legal system comprising the ‘received’ English
law and the local customary law. The doctrine of precedent is part of the common law
tradition inherited from the ‘received’ English law. In order to facilitate access to previous
judicial decisions in Zambia, the Council of Law Reporting publishes the Zambia Law
Reports which are available for sale to lawyers and interested members of the public.

When an issue arises on which there are no Zambian previous decisions, English
previous decisions relevant to the issue may be used. However, English cases are not
binding on Zambian courts: they are merely persuasive. So are the decisions from other
common law jurisdictions.

It is also important to note that the use of judicial precedent is governed by the hierarchical
nature of the court system which makes the decisions of higher courts binding on the
lower courts. Thus, the decisions of the Supreme Court are binding on all the courts lower
than the Supreme Court in the judicial hierarchy. But the Supreme Court is also bound by
its own previous decisions subject to its jurisdiction to overrule itself, as will be explained
later. In the same way, decisions of the High Court bind all the courts that are below the
High Court in the judicial hierarchy. But unlike the Supreme Court, the High Court cannot
overrule itself: it can merely disapprove itself. Of course, when a High Court Judge
disapproves the decision of another High Court Judge, this creates a problem as to which
of the two decisions is binding on the lower courts since High Court Judges enjoy the
same level of jurisdiction and are not, save for reasons of certainty and consistency in the
law, bound by the decisions of each other. Whenever such a situation arises, the latest
of the two conflicting decisions is the one binding on the lower courts.

Decisions of lower courts do not bind anyone other than the parties to it if they choose
not to appeal to the higher courts. The ratio decidendi of a case

What is regarded as precedent and therefore to be followed is the ratio decidendi of a

case. The ratio decidendi of a case is simply the reason or ground for a decision. Although

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ratio decidendi is also defined as “the material facts of a case plus the decision thereon”,
there is no universal agreement on this definition.

A general formula for determining the ratio decidendi of a case has been suggested in
the following ways:
“Suppose that in a certain case facts A, B and C exist and suppose that the court
finds that facts B and C are material and fact A immaterial, and then reaches
conclusion X (for example judgement for the Claimant, or judgement for the
defendant), then the doctrine of precedent enables us to say that in any future case
in which facts B and C exist, or in which facts A, B and C exist, the conclusion must
be X. If in any future case facts A, B, C and D exist and fact D is held to be material,
the first case will not be direct authority, though it may be of value as an analogy”.

What facts are legally material? That depends on the particular case but take as
an illustration a “running down” action, that is to say an action for injuries sustained
through the defendant’s negligent driving of a vehicle. The fact that the Claimant
had red hair and freckles, that her name was Smith, and that the accident
happened on a Friday are immaterial, for the rule of law upon which the decision
proceeds will apply equally to persons who do not possess these characteristics
and to accidents that happen on other days. On the other hand, the fact that the
defendant drove negligently, and the fact that in consequence the Claimant was
injured, are material, and a decision in the Claimant’s favour on such facts will be
an authority for the proposition that a person is liable for causing damage through
the negligent driving of a vehicle”. [Glanville William’s Learning the Law, p 93]

It is clear from the foregoing extract that the importance of the materiality of the facts
cannot be discounted when it comes to ascertaining the ratio decidendi of a particular
case. But who decides which facts are material – the earlier judge or the later one? To
fully appreciate the answer to this question, one needs to recognise that the concept of

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ratio decidendi is capable of being used in two distinct ways: descriptively and
prescriptively.

In its descriptive sense, the phrase ratio decidendi is used to describe the way in which
the earlier judge reached the decision. In this context, a later judge must acknowledge
the materiality of the facts which the earlier judge treated as being material.

On the other hand, the phrase ratio decidendi when used in its prescriptive sense refers
to the statement of law derived from the earlier case which that case prescribes as being
the law for later courts to follow. The distinction between the two has been aptly explained
by one commentator in the following terms:
“Should we not….try scrupulously to respect the distinction between that use of
the term ratio decidendi which describes the process of reasoning by which a
decision was reached (the ‘descriptive’ ratio decidendi), and that which identifies
and delimits the reasoning which a later court is bound to follow (the ‘prescriptive’
or binding ratio decidendi)? [See Ian McLeod’s Legal method, p 150]

It is important to note that it is not uncommon for a judge to base his or her decision on
more than one line of reasoning. In other words, a judge might advance more than one
reason for his or her decision. In such circumstances, there are as many ratios as the
reasons advanced by the judge and all of them are binding on a later judge: the later
judge cannot pick and choose between or among the reasons.

The concept of obiter dictum

An obiter dictum is a ‘saying by the way’. It is an observation by a judge on a legal question
suggested by a case before him, but not arising in such a manner as to require a decision
on it. Thus, the concept of obiter dictum embraces all those parts of a judgement which
are capable of law but which do not fall within the definition of ratio decidendi. Unlike the
ratio decidendi of a case, the obiter dictum is not binding.

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It is important to note that although obiter dictum is not binding, it does not follow that it is
worthless in terms of the doctrine of precedent: dicta may, in practice, be so persuasive
that a judge may feel compelled to follow it. In this regard, a distinction must be made
between gratis dicta and judicial dicta. The former are mere throwaways (sayings which
are given away, as it were, free) and so of very little, if any, value or persuasive force.
They are considered as not having been given much thought by the judge before saying
them. Judicial dicta, on the other hand, are preceded not only by a great deal of careful
thought, but also by extensive argument on the point in question. It is this careful thought
and extensive argument that makes judicial dicta so strongly persuasive as to be
practically indistinguishable from ratio decidendi.

The concept of res judicata

This is another important concept worthy of consideration. It stems from the fact that the
practical administration of justice in any legal system requires that once a case has been
decided the parties should be bound by the decision because endless reopening of cases
is wasteful of resources as well as creating injustice to those who have to defend
themselves repeatedly in respect of the same matter. The point at which finality is
imposed depends on the detail of the appeal system that may be available, but at some
stage the appeals must run out and finality has to be imposed. This requirement of finality
is made possible by the doctrine of res judicata, which is translated as “the matter has
been decided”. BOZ v Jonas Tembo and Others (2002) ZR

Advantages and disadvantages of precedent

i. Advantages
(a) Precedent ensures certainty and, therefore, predictability in the law. This is
because by looking at an existing precedent, it is possible to forecast what
a decision will be and plan accordingly;

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(b) Precedent ensures uniformity in the law. Treating similar cases in the same
way gives the system a sense of justice and makes the system acceptable
to the public.
(c) The doctrine of judicial precedent is flexible in the sense that there are a
number of ways in which its application can be avoided. This enables the
system to change and adapt to new situations.
(d) Judicial precedent is practical in nature. Unlike legislation, it is based on real
facts.
(e) Judicial precedent is detailed in the sense that there is a wealth of cases to
refer to.
ii. Disadvantages
(a) Rigidity. Although precedent is flexible, it can, at the same time, be rigid. If
a previous decision made by a higher court is cited before a lower court in
a later case, the lower court has no option but to apply such previous
decision regardless of its merits because a lower court has no power to
question the merits of a previous decision made by a higher court. This, in
practice, may result in injustice to parties involved in the later case.
(b) There is far too much case law which is also sometimes very complex;
(c) Difficulties can arise in deciding what the ratio decidendi of a case is,
particularly in cases where there are several reasons advanced for the
decision.
(d) There may be a considerable wait for case to come to court for a point to
be decided.

Is it open to the Supreme Court to depart from its previous decisions?

In Paton v Attorney General and Others, (1968) Z.R.185, Doyle, J.A., as he then
was, had this to say, at p. 190:

“Mr. Ryan, for the defendant cross-appellant, first argued that Thixton’s case
was wrongly decided. He submitted that this court was not bound by its
previous decisions. The United States Supreme Court, the Supreme Court of
the Republic of Ireland, the ultimate courts of Cananda, Australia, South

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Africa and most European countries hold themselves free, if they think it right
to do so, to refuse to follow a previous decision. Recently, the House of Lords
in England has abandoned its rigid adherence to the rule of stare decisis. I
have no doubt that this court as the ultimate Court of Appeal for Zambia is
not absolutely bound by its previous decisions. It can, however, only be for
very compelling reasons that the court would refuse to follow a decision of
the court and only where the court clearly considered that the previous
decision was wrong. The relaxation of the rule is not its abandonment and
ordinarily the rule of stare decisis should be followed. Abandonment of the
rule would make the law an abyss of uncertainty. Mr. Ryan urged that it was
open to this court to refuse to follow a previous decision which was not
unanimous. That, in my view, is not a compelling reason. Thixton’s case was
fully argued and it has certainly not been shown that it was clearly wrong.
Indeed I, as the dissenting Judge in that case, recognised and recognise that
the result which flowed from the majority decision was more in accord with
natural justice than that which flowed from the view of the law which I felt
compelled to take. This point therefore fails.”

The Supreme Court expressed similar sentiments in Kasote v The People (1977)
Z.R. 75:
“The Supreme Court being the final court in Zambia adopts the practice of the
House of Lords in England concerning previous decisions of its own and will
decide first whether in its view the previous case was wrongly decided and
secondly if so whether there is a sufficiently good reason to decline to follow
it. We have already pointed out that Chibozu was wrongly decided and the
next question for us to consider is whether there is sufficiently strong reason
for us to decline to follow the decision in that case, it is our considered view
that justice was not served in Chibozu because the symbolic scales of justice
mean that just as an accused person should not be convicted unless there is
sufficient and cogent evidence proving his guilt beyond reasonable doubt, the
State also should not be made to lose a case unless the evidence it adduces
cannot, in law, support a conviction; that way the scales are balanced. On
this basis we come to the conclusion that sufficiently strong reason does exit

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to warrant the overruling of Chibozu on the basis that it is a non sequitur. We

therefore hold that Chibozu is no longer good law to the extent considered in
this judgment and it is therefore overruled.”

And in Abel Banda v The People (1986) Z.R. 105, the Supreme Court had this to say:
“The problem before us therefore is that we have made case law which we
have now realised is indefensible. The principle of stare decisis requires that
a court should abide by its ratio decidendi in past cases. Put simplistically in
order to have certainty in the law decisions of courts should be consistent and
should not be so readily changeable as to make it at any given time what the
law is on a given issue. In order to uphold this principle therefore past
decisions should not be exploded for the sole reason that they are wrong.
Courts should stand by their decisions even if they are erroneous unless there
is a sufficiently strong reason requiring that such decisions should be
overruled”.

From the above cited cases, it is clear that the Supreme Court of Zambia regards
itself as bound by its previous decisions. At the same time, however, the Supreme
Court has power to depart from its previous decision if the previous decision is
‘indefensible’. The following are some of the circumstances that can justify the
Supreme Court’s decision to refuse to follow its previous decision:
i. When the previous decision has been overruled; ii. When it comes
to the attention of the court that the previous decision was made per
incuriam (the per incuriam doctrine); and
iii. When it comes to the attention of the court that the circumstances
in which the previous decision was made have since changed
(the changed circumstance doctrine).

The per incuriam doctrine

A decision that was made per incuriam is simply one that was made “through lack
of care”. In R v Simpson (2003) 3 ALL ER, 531, the Court of Appeal, through Lord
Woolf, explained the basis of the per incuriam doctrine in the following ways: “the
basis of the per incuriam doctrine is that a decision given in the absence of relevant

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information cannot safely be relied upon. This applies whenever it is at least

probable that if the information had been known, the decision would have been
affected by it”.

In an earlier case of Duke v Reliance Systems Ltd (1987) 2 ALL ER, 858, Sir John
Donaldson MR stated that he had
“…always understood that the doctrine of per incuriam only applies where [a
court] has reached a decision in the absence of knowledge of a decision
binding on it or a statute, and that in either case it has to be shown that had
the court had this material, it must have reached a contrary decision….”.

The changed circumstance doctrine

This doctrine states that “with the ceasing of the reason for the existence of a legal
rule, the legal rule itself ceases to exist”.

PRESUMPTIONS

Introduction

• In interpreting statutes, various presumptions may be applied, all of which

are of a negative or restrictive character. They are the background of legal
principles against which all Acts of Parliament are viewed and in light of
which Parliament is assumed to have legislated without being expected to
express them.

• The following extract aptly explains the rationale behind presumptions:

“Presumptions may be regarded as instances of the proposition that

the duty of judges goes beyond the automatic enforcement of the
dictates of Parliament. The judges’ function is also to do justice in
accordance with certain settled principles of law in a free society; and
they are entitled to assume that Parliament does not intend to subvert
these principles, unless there is a clear statement that it does. For this

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reason, the courts apply the rule that when Parliament has conferred
a judicial or quasi-judicial power upon a person, that power must be
exercised in accordance with the rules of natural justice.
When Parliament creates a new crime, this is presumed to be subject
to certain defences at common law such as self-defence and duress,
and also (very frequently) to the requirement of the state of the mind
(intention, knowledge or recklessness). These are judge-made
principles required by our ideas of justice and grafted on the statute by
‘implication’ although there may be no words in the statute to suggest
them”.

Definition

A presumption is a fact assumed to be true under the law. According to

Osborn’s Concise Law Dictionary, a presumption is “a conclusion or
inference as to the truth of some fact in question, drawn from other facts
proved or admitted to be true”. Thus, a presumption can obviate the need
for proof, or make the process easier.

Types of Presumptions

• Types of presumptions include the following:

iv. Rebuttable presumptions of law – These are inferences which the law
requires to be drawn from given facts and which are conclusive until
disproved by evidence to the contrary. Examples include the
presumption of innocence of an accused person; the presumption of
death of a person who has not been heard of for 7 years; the
presumption of legitimacy for children born in wedlock; and the
presumption of marriage.
v. Irrebuttable presumptions of law – These are absolute inferences
established by law. Evidence is not admissible to contradict them: they
are rules of law. Irrebuttable presumptions of law are also sometimes

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known as ‘conclusive presumptions’. Examples include the rule that a

person below the age of 8 (in Zambia) is not criminally liable for his or
her actions and omissions. vi. Presumptions of fact – These are
inferences which may be drawn from a given set of facts but not
conclusively.

• It must be noted that presumptions are so many that there is no universally

agreed upon list of them all. Therefore, even the list that follows below is not
exhaustive: it is merely intended to introduce the student to some of the
presumptions that may be encountered in relation to the interpretation of
statutes. The list is as follows:

6. Presumption of the constitutionality of a statute – Under this

presumption, every Act of Parliament is presumed to be consistent with
the Constitution and, therefore, constitutional, unless the contrary is
proved. But see the position taken by the court in The People v Bright
Mwape and Fred Mmembe (1995) on the presumption of
constitutionality of statutes.

7. Presumption against injustice - The rationale behind this presumption is

that any law enacted by Parliament is never intended to bring about or
cause injustice to any person subject to it (law). The operation of this
presumption is illustrated by the case of Coltman v Bibby Tankers Ltd
(1987) 3 ALL ER, 1068. The case rested on the interpretation of section
1(3) of the Employer’s Liability (Defective Equipment) Act of 1969 which
defined the word ‘equipment’ as including “any plant machinery,
vehicles, aircraft and clothing”. The question for the court’s
determination was whether a worker injured in a ship had a remedy
under the Act since ships were not included in the definition. The High
Court held that the worker had a remedy under the Act even though ships
were not mentioned in the definition because it would be ‘unjust’ to
differentiate between accidents in aircrafts and ships. Although the Court

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of Appeal reversed the decision, the House of Lords unanimously

reinstated the original decision with Lord Oliver stating as follows:

“The purpose of the Act was manifestly to saddle the employer with
liability for defective plant of every sort with which the employee is
compelled to work in the course of his employment, and I can see no
ground for excluding particular types of chattel merely on the ground
of their size or the element on which they are designed to operate”.

8. Presumption against retrospectivity: Under this presumption, every

statute is presumed to operate with prospective and not retrospective
effect. However, this presumption is not applicable where the statute
expressly states that it shall have retrospective effect. In Zambia, the
reason is that Article 79 (7) of the Republican Constitution gives
Parliament power to enact laws with retrospective effect.

It is also important to note that a distinction is always drawn between

matters of procedure and matters of substance in the application of the
presumption against retrospectivity. The distinction is that the
presumption is not applicable when matters of procedure are involved: it
is only applicable when matters of substance are involved. In Zambia, this
position has been confirmed by the High Court in two unreported cases
relating to the amendment of the Local Government Act prohibiting
execution of court judgments on the property of local authorities.
However, the Supreme Court is yet to pronounce itself on the matter as
no opportunity has occurred for it to do so.

The position is different in the United Kingdom (UK). It would appear that
the distinction between matters of procedure and matters of substance
has since disappeared. The new approach for the application of the
presumption appears to be that the issue should not be whether the
matters involved are procedural or substantial but rather whether the
retrospective application of the law would be unfair in the circumstances

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of each individual case. Read Yew Bon Tew v Kenderaan Bas Mara (1982)
3 ALL ER, 833; Re A Solicitor’s Clerk (1957) 3 ALL ER, 617; Secretary of
State for Social Services v Tunnicliffe (1991) 2 ALL ER, 712; and L’Office
Cherifien des Phosphates and another v Yamashita Steamship Co. Ltd:
The Boucraa (1994) 1 ALL ER, 20.

9. The presumption that mens rea is a necessary ingredient of statutory

offences: Common law requires two elements to be present before an
accused person may be convicted of a crime. The elements are actus reus
and mens rea. Many statutes also require the presence of both elements
before the imposition of criminal liability is made. However, the problem
arises where a statute creating an offence is silent on the requirement of
mens rea. The problem is compounded by the fact that there are strict
liability offences whose proof is not dependent on the presence of mens
rea because mens rea is not a necessary element in strict liability offences.

When such a problem arises, the courts will normally presume that
Parliament expected mens rea to be a precondition of guilt and
accordingly they will refuse to convict in its absence. However, this is a
rebuttable presumption meaning that if evidence is adduced to prove the
contrary, the accused may be convicted.

[Link] of strict interpretation of penal provisions. The

presumption is that all penal provisions must be construed in favour of
the accused person unless the evidence adduced by the prosecution
leaves no doubt as to the guiltiness of the accused. Thus, as far back as
1873 in Dickenson v Fletcher (1873) LR 9 CP1, Brett J stated as follows:

“Those who contend that a penalty may be inflicted must show that
the words of the Act distinctly enact that it shall be incurred under the
present circumstances. They must fail if the words are merely equally
capable of a construction that would, and one that would not, inflict
the penalty’.

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As already noted above, presumptions are many and cannot all be covered
here. But students may wish to also familarialise themselves with the
presumption against gaining advantage from wrong doing; the presumption
relating to consolidating and codifying statutes; and the presumption
relating to ‘and’ and ‘or’, among others.

Finding Parliament’s intention Introduction

• Looking at UNIT 5.10 of the course outline for this course, one gets the
impression that the process of statutory interpretations is all about ‘finding
Parliament’s intention’. This impression is also supported by the words of
Lord Simon in Ealing London Borough Council v Race Relations Board (1972)
1 ALL ER, 105, in which he stated that “it is the duty of a court to interpret an
Act of Parliament as to give effect to its intention”. The question that arises
is: Is the process of statutory interpretation aimed at giving effect to the
intention of Parliament as expressed in a particular Act of Parliament?

• While the words of Lord Simon in the Ealing London Borough Council case
may seem to suggest an affirmative answer to the question, other authorities
suggest the contrary. For example, Lord Reid in Black-Clawson International
Ltd v Papiewerke Waldho-Aschaffenburg AG (1975) 1 ALL ER, 810, stated
thus: “we often say that we are looking for the intention of Parliament, but
that is not quite accurate. We are seeking not what Parliament meant but
the true meaning of what they said”. Support for Lord Reid’s point may be
found in Hilder v Dexter (1902) AC, 474, where Lord Halsbury declined to
give judgment as to the meaning of the Companies Act 1900, on the ground
that he had drafted the Act. He said:

“I have more than once had occasion to say that in construing a

statute, I believe the worst person to construe it is the person who is

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responsible for its drafting. He is very much disposed to confuse what

he intended to do with the effect of the language which in fact has
been employed. At the time he drafted the statute, at all events, he
may have been under the impression that he had given full effect to
what he intended, but he may be mistaken in construing it afterwards
just because what was in his mind was what was intended, though
perhaps it was not done. For that reason I abstain from giving
judgment in this case myself”.

• Despite the difference of opinion as exemplified above, it appears plausible

to argue that the language used in any Act of Parliament is primarily intended
to communicate the intention of Parliament behind such Act. It follows that
in construing an Act of Parliament, the court aims at giving effect to the
intention of Parliament. However, it depends on which side of the debate
one is.

Intrinsic and Extrinsic Aids to Statutory Interpretation

• Both intrinsic and extrinsic aids to statutory interpretation are ‘materials’

which the court may consult in ascertaining the meaning of the word or
words used in a statute.

• Intrinsic aids are those that are found within the four corners of a given
statute. They are, in essence, a sum total of the various parts of a statute.
These are: the short title; the long title; the date of assent; the enacting
formula; the sections and subsections; marginal notes; the extent of
application; and the commencement date. In addition, an Act of Parliament
will normally have definition section; savings and repeals section (sometimes
known as transitional provisions); and schedules at the end of the Act. What
is important to note is that not all these are of equal significance as indicators
of the meaning of the statute.

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• The following is what the courts of law and some commentators have said in
reference to the usefulness of some of the intrinsic aids of statutory
interpretation:

j. Long title - According to Lord Lane CJ, in R v Galvin (1987) 2 ALL ER,
851: “One can have regard to the title of a statute to help resolve
an ambiguity in the body of it, but it is not, we consider, open to a
court to use the title to restrict what is otherwise the plain meaning
of the words of the statute simply because they seem to be unduly
wide”.

And Lord Simon in Black-Clawson International Ltd v Papiewerke

Waldho-Aschaffenburg AG (1975) 1 ALL ER, 810 took the view that
where a long title provides ‘the plainest of all guides to the general
objectives of a statute’, there can be no justification for restricting
its use to cases of ambiguity.

ii. Short title - The leading case is Re Boaler (1915) 1 KB, 21 in which it
was noted that a short title is part of the Act and as such the court can
and should consider it. However, a short title is, by its very definition,
a short title and therefore, as Scrutton LJ put it, ‘accuracy may be
sacrificed to brevity’.

vi. Headings and marginal notes – According to Lord Reid in Director of

Public Prosecutions v Schildkamp (1969) 3 ALL ER, 1640, there has
long been a general consensus that headings and marginal notes are
relevant to the process of interpretation ‘provided we realize that they
cannot have equal weight with the words of the Act’. They have less
weight than the words of the Act because ‘they enact nothing’. See
also Stephens v Cuckfied RDC (1960) 2 QB 373; and R v Montila (2005)
1 ALL ER, 113.

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vii. Schedules – In Attorney General v Lamplough (1878) 3 ExD 214, Brett

LJ stated that “a schedule in an Act is a mere question of drafting, a
mere question of words. The schedule is as much of the statute, and
is as much an enactment, as any other part”. In Zambia, section 9 of
the Interpretation and General Provisions Act, Cap 2 of the Laws of
Zambia provides that “every Schedule to or table in any written law,
together with notes thereto, shall be construed and have effect as part
of such written law”.

viii. Definition section – This is a very important intrinsic aid to statutory

interpretation because it provides guidance on the meaning attached
to the various terms used in the statute. Definition sections contain
two types of provisions. First there are those provisions which simply
state that the defined terms shall ‘mean’ whatever the provision states
them to mean. The second category consists of those provisions which
state that the defined terms shall ‘include’ whatever the provision
states them to include. In cases falling within the latter category the
words will have not only their special statutory meaning but, according
to Lord Selborne LC in Robinson v Barton-Eccles Local Board (1883) 8
App. Cas. 798, they will also posses their ‘ordinary, popular and
natural sense whenever that would be applicable’.

• The following extract from Glanville Williams’ Learning the Law sums up the
significance of extrinsic aids for purposes of statutory interpretation:

“Not all of these [intrinsic aids] are of equal significance as indicators

of the meaning of the statute. There is a good deal of ancient learning
about the matter, but the essential distinction is that some of these
features are the enacting parts of the statutes (which can be
considered and amended by Parliament), whereas others (the
crossheadings, the side-notes or marginal notes and the punctuation)
are regarded as being of less significance since they do not enact

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anything. It seems likely, however that a court… would permit some

use of them if they shed light on the meaning of the Act.”

• On the other hand, extrinsic materials are materials, outside the four
corners of the Act but very often related to the Act in one way or the other,
that the court may make use of in ascertaining the meaning of the words
used in the statute.

• The main categories of extrinsic materials normally discussed by

commentators on the subject are pre-parliamentary materials (such as the
National Constitution Conference Report in relation to the interpretation of
the Republican Constitution that will be enacted arising out of the
deliberations of the Conference), parliamentary materials ( especially
hansard) and post-parliamentary materials (e.g. guidelines issued by a
Government Ministry or Department responsible for administering or
supervising the administration of a given piece of legislation).

• It must be noted, however, that the extent to which courts may make use of
these types of extrinsic materials is still a subject of debate. But there is a
plethora of authorities suggesting that courts may seek some guidance from
these matters in deserving cases.

• The Interpretation and General Provisions Act, Cap 2 of the Laws of Zambia
is perhaps the most useful intrinsic material for statutory interpretation
purposes. The importance of this piece of legislation, so far as the
interpretation of statutes is concerned, cannot be over emphasized and is
apparent from the long title of the Act: “An Act to amend and consolidate
the law relating to the construction, application and interpretation of
written law; to provide for the exercise of statutory powers and duties; and
to provide for matters incidental to or connected with the foregoing”.

• It is also worth noting that section 2(1) of the Interpretation and General
Provisions Act makes it very clear that the provisions of the Act apply to

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every written law passed or made before or after the commencement of the
Act, unless a contrary intention appears in the Act or in the written law
concerned. Students are, therefore, well advised to.

• While it is important for students to familiarize themselves with all the

provisions of the Interpretation and General Provisions Act, Students are
particularly urged to ensure that they take time to acquaint themselves with
provisions in Parts II, III, IV, V, VII and VIII.

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UNIT 7 ZAMBIA’S COURT SYSTEM AND THEIR JURISDICTION

Historical background of Zambia’s legal system22

Zambia’s present legal system is the product of a history that includes two distinct
legal traditions. In the pre-colonial period, each of the many ethnic groups in the
territory of modern Zambia resolved disputes in accordance with its own customs.
Common features of these customary systems included a desire for prompt
resolution of differences, informal procedures, a conciliatory approach that
emphasized continuing social relationships, and a concern for avoiding lasting
enmity and preserving harmony, order, and security within the community. The
British colonists who arrived in the late 19th century brought with them their own
laws and procedures. They introduced English common law and established British-
style courts and related institutions to administer justice.

Giving effect to English common law for the European population was a substantial
challenge for colonial administrators. The authorities were content to allow tribal
courts applying customary law to continue to administer justice for the African
population. Early Orders in Council authorizing the appointment of judges to apply
English law also called for respect for “native laws or customs,” except where found
incompatible with the exercise of British sovereignty.

The creation of a structure for the administration of justice in colonial Northern

Rhodesia based on English law was thus combined with tolerance for the continued
application of customary law. This combination evolved into a dual system that
continues to influence the development of the rule of law in Zambia today. As the
institutions of colonial governance became more firmly established, Orders in
Council broadened the jurisdiction of a High Court, magistrates’ courts, and native
commissioner courts and authorized those courts to apply customary

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22

law in cases where Africans were among the parties “if not repugnant to justice and
morality or inconsistent with any enactment [of British law or colonial ordinance].”

At the same time, the vast majority of litigation involving Africans continued to be
dealt with under customary law in the traditional courts that had existed prior to
the arrival of the colonists. The subject matters addressed often involved the
possession and transfer of land and other property, inheritance, marriage, divorce,
and personal status. The traditional courts also dealt with offenses under
customary law, deciding on punishment and on duties of restoration and
reconciliation.

The colonial administration gave enhanced official status to the so-called “native
courts” in 1929 and, at the same time, began to exercise increased control over
them. The 1929 Native Courts Ordinance authorized magistrates’ courts to review
and revise native court decisions. Regulation of traditional courts was consolidated
in the Native Courts Ordinance of 1936, regarded as the predecessor of the post-
independence Local Courts Act of 1966. The formalization of the status of these
courts was motivated, in part, by the establishment of native courts, beginning in
the 1920s and 1930s, in urban areas populated by individuals of diverse ethnicity
from various parts of Zambia. Increasing urbanization and mobility necessarily
complicated the application of a customary law system that had originated and
operated in the context of stable, homogenous village communities.

The administration of justice was the theme of a series of African conferences that
were organized in the 1950s and 1960s as the colonial era was coming to an end.
These conferences produced broad agreement on four principal goals: - A
professional magistracy, to provide safeguards against abuses of judicial power;
- Specialized courts, to improve quality and efficiency;
- Separation of powers, to diminish risks of executive influence on judicial
decisions; and
- Unification of national legal systems, to encourage equal justice based on a
single body of law and a single justice system.

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Under post-independence constitutions and legislation, the local courts are an

integral part of the justice system under the leadership of the Chief Justice. Local
court magistrates, like subordinate court magistrates, are named by the Judicial
Service Commission. Appointments of local court magistrates are now based on
nominations by provincial local court officers from among residents of the districts
where the courts sit. Previously appointed only for three-year terms, these local
court magistrates now serve under permanent appointments, subject to good
behavior, with retirement at age 55. The increased tenure of local court magistrates
is intended to contribute to the professionalization of this corps of judges who still
hear the majority of cases in Zambia.

The duality of Zambian law – as applied by the local courts, on the one hand, and
by all other Zambian courts, on the other – is gradually being eroded. The
subordinate courts apply customary law when hearing appeals from local court
decisions. For their part, local courts are obliged not to follow customary law when
doing so would be “incompatible with the provisions of any law.” For example, the
Zambian law on intestate succession guarantees property rights of widows in the
estates of their late husbands, whereas under customary law the estate of a
married man normally went to his family (parents, siblings, and their progeny)
rather than to the widow. In addition, local courts can be authorized “to administer
all or any of the provisions of any written law.” The Zambian Law Development
Commission, a statutory body that prepares government-sponsored legislation, is
working with the Director of Local Courts to develop a law to harmonize the
customary law to be applied by local courts throughout Zambia. This initiative is
intended to contribute to more equal treatment in the local courts of similarly
situated persons. In some isolated regions, disputes continue to be resolved under
customary law by traditional chiefs’ courts outside the statutory framework of the
local courts and without regard to written law, even though the resulting decisions
have no legal standing.

Summary of Zambia’s present Judicial System23

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Under Part VI of the Constitution and the Judicature Administration Act, the
Judiciary is an autonomous institution. The Judiciary is headed by the Chief Justice.
Article 91 of the Constitution declares that judicial officers shall be independent,
impartial, and subject only to the Constitution and the law. Under the Judicial Code
of Conduct Act of 1999, the ethical conduct of adjudicators is regulated under the
supervision of the Judicial Complaints Authority. Judicial officers are expected to be
above family, personal, private, political, and other interests, and above public
clamor or criticism.

The court system is administered by a Chief Administrator appointed by the

President under the Judicature Administration Act. The Chief Administrator’s rank
is the equivalent of a permanent secretary in the civil service. Policies concerning
human resources in the Judiciary are set by the Judicial Service Commission, which
employs the staff, appoints local court and subordinate court magistrates, and
proposes candidates to the President for appointment to be High Court judges. The
Judicial Service Commission is provided for by Article 123 of the Constitution; its
composition, functions, and procedures are established by the Service
Commissions Act. It is chaired by the Chief Justice and its members include the
Attorney General, Chair of the Public Service Commission, Secretary to the Cabinet,
a judge nominated by the Chief Justice, the Solicitor General, a member of the
National Assembly appointed by the Speaker, a representative of the Law
Association of Zambia, the Dean of the University of Zambia Law School, and a
member appointed by the President.

Prior to 1994, the MOJ, at that time the Ministry of Legal Affairs, was responsible
for the court administration functions now performed by the Chief Administrator.
Also, prior to 2007, many of the functions of the Judicial Service Commission to
employ and oversee judicial staff were carried out by the Public Service
Commission. The present structure represents a major improvement in the
administrative autonomy of the judiciary.

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Local court and subordinate court magistrates are appointed by the Judicial Service
Commission to permanent positions and must retire at the age of 55, after which
they may be re-appointed on contract by the Commission. A proposal to

23

raise the retirement age of magistrates to 65 is under consideration. High Court

judges are appointed by the President on the recommendation of the Judicial
Service Commission, subject to the ratification of the National Assembly. They
enjoy security of tenure up to the retirement age of 65 after which they may be re-
appointed by the President on contract. Supreme Court judges are appointed by
the President subject to National Assembly ratification. Once appointed, a judge of
the High Court or the Supreme Court cannot be removed from office until
retirement at age 65, nor can his or her office be abolished. The removal process
must comply with constitutional procedure effectuated by a tribunal.

Financing for the Judiciary comes from funds appropriated by Parliament, as well
as court fees. The Judiciary retains 100 percent of its fees, with 40 percent retained
in the districts where they are collected (stations) and 60 percent remitted to
headquarters. Monies raised from court fines may not be retained and are remitted
to the Central Treasury. Salaries of Supreme Court and High Court judges are drawn
directly from the Treasury in accordance with the Constitutional Emoluments Act
whereas emoluments of subordinate and local court magistrates and judicial staff
are met through Judiciary appropriations. The Judiciary makes its own budget
within the confines of a ceiling set by the Minister of Finance. Although the
Government retains ultimate responsibility for infrastructure development, the
Judiciary budget includes some infrastructure development and donors may
directly support additional capital projects and programs. The accounts are subject
to audit by the Auditor-General and the Judiciary must submit an annual report to
Parliament.

The court structure may be likened to a pyramid with the higher levels of courts
exercising supervisory powers over the lower levels. At the bottom of the pyramid
lie 470 local courts, staffed by local court magistrates and applying customary law.
Decisions of the local courts may be appealed to the subordinate courts, which hear

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those appeals de novo. There are subordinate courts in 54 districts throughout the
country. Most of the subordinate court magistrates are not members of the bar (lay
magistrates). Increasingly, professional magistrates (lawyers) are found presiding
over the subordinate courts located in major cities. Appeals from the subordinate
courts lie to the High Court, which conducts proceedings in all the provincial
capitals. Of equal rank to the High Court is the
Industrial Relations Court, a specialized tribunal that hears labor disputes. At the
top of the hierarchy is the Supreme Court, which hears appeals from the High Court
and the Industrial Relations Court. Although based in Lusaka, the Supreme Court
regularly sits also in Ndola and Kabwe.

There are a number of specialized adjudicative institutions with limited jurisdiction

that fit into this hierarchy at various levels or stand alone: The Lands Tribunal is
equivalent to the High Court. The Small Claims Court, still at the pilot stage, is the
equivalent of the subordinate court and appeals there from on points of law only
will lie to the High Court. Standing alone are the Municipal Courts, the Revenue
Appeals Tribunal, and the Town and Country Tribunal.

Customary law matters must be commenced in the local courts. The local courts
administer customary law in any matter insofar as such law is not repugnant to
natural justice or morality or incompatible with the provisions of any written law.
They may adjudicate customary law offenses equivalent to statutory offenses and
municipal offenses to the same extent. Also, the Local Courts Act permits local
courts to try criminal and municipal cases when so authorized by the magistrate in
charge. Local courts are not formally courts of record, although some of them
create summary records of their proceedings.

The subordinate courts are first instance courts of record, following relatively
simple procedures. They handle both civil and criminal cases within their territorial
jurisdiction. The Subordinate Courts Act limits the size of civil claims, the types of
offenses, and the penalties that these courts can impose. In addition, different
classes of magistrate handle matters within certain statutory bands. Matters within

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the subordinate court’s jurisdiction must be commenced there rather than in the
High Court.

The High Court has original and appellate jurisdiction in both civil and criminal
matters. Constitutional matters, civil marriage divorce, and capital offenses such as
murder and treason all commence in the High Court, which has very rigid
procedures. The High Court has a commercial division with special judge-driven
procedures to speed up litigation. The Industrial Relations Court has less rigid
procedures and focuses on delivering substantive justice in labor matters. The
Supreme Court has appellate jurisdiction over both civil and criminal appeals from
the High Court and the Industrial Relations Court as well as appeals from the
Lands Tribunal. It has original jurisdiction only in the matter of a presidential
election petition. There is no restriction on the right of appeal through the court
hierarchy from the local court to the Supreme Court. However, the costs of
litigation rise substantially as a case proceeds up the appellate ladder.

Pro se appearances by litigants in the higher courts are extremely difficult because
of the rigid adherence to procedure as a prerequisite to the hearing of substantive
issues. The appellate court does not hear the matter de novo or call witnesses, and
rarely reviews the lower court’s findings of fact. Rather the appeal focuses on
determining matters of law as presented in the court record. Enforcement of
judgments is the responsibility of the Sheriff, who is appointed by the Judicial
Service Commission, and bailiffs also appointed by the Commission.

The volume of litigation and the workload of the courts are not fully discernable
from the available data. The Registrar’s Office was able to provide information on
the number of cases filed and the number of cases disposed of by the Supreme
Court, High Court, Industrial Relations Court, and Subordinate Courts. However,
data were not available on the backlog of cases that will determine to a great extent
when the courts will be able to take up the newly filed cases. No specific
information was available about the volume of work of the local courts. However,
one knowledgeable source estimates that the local courts dispose of 90 percent of

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the adjudications in Zambia. The available data on cases filed and disposed of in
2008 are set out in Table IV-3 below.

The Constitutional and Statutory provisions of the present court system

The legal basis of Zambia’s present court system is Article 91 of the republican
Constitution. It provides as follows:
91(1) The Judicature of the Republic consists of: i. the Supreme Court
of Zambia; ii. the High Court for Zambia; iii. the Industrial
Relations Court; iv. the Subordinate Courts; v. the Local
Courts; and vi. such lower Courts as may be prescribed by an Act
of Parliament.

(2) The Judges, Members, Magistrates and Justices, as the case may be of
the courts mentioned in clause (1) shall be independent, impartial and
subject only to this Constitution and the law and shall conduct
themselves in accordance with a code of conduct promulgated by
Parliament.

(3) The Judicature shall be autonomous and shall be administered in

accordance with the provisions of an Act of Parliament.

It is worth noting that pursuant to Article 91(1) (e) above, we have the Small Claims
Courts Act, Cap 47 of the laws of Zambia which establishes the Small Claims Courts.
The Small Claims Courts are still being run on a pilot basis in Lusaka and Ndola.

The jurisdiction, tenure of office, structure and establishment of the different

Courts is, in the case of higher courts, contained in the constitution and, in the case
of lower courts, contained in specific Acts of Parliament.

In addition to the formal Court structure mentioned above, chiefs are permitted to
hold their own hearings in what may loosely be termed as ‘traditional courts’ but

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these are not formally recognised as Courts. A matter heard by the chief’s Court
must be heard de novo if it is taken to the Local Court.
It must also be mentioned that other specialized adjudicating fora exists. These
include the Lands Tribunal; the Revenue Appeals Tribunal; the Town and Country
Planning Tribunal; and Military Courts (or Court Marshals)

The Supreme Court of Zambia – Judges and jurisdiction of the Court

i. Constitutional provisions

92(1) There shall be a Supreme Court of Zambia which shall be

the final Court of appeal for the Republic and shall have such
jurisdiction and powers as may be conferred on it by this
Constitution or any other law.

(2) The Judges of the Supreme Court shall be

(a) the Chief Justice;
(b) the Deputy Chief Justice;
(c) seven Supreme Court Judges or such greater number
as may be prescribed by an Act of Parliament.

(3) The office of Chief Justice, Deputy Chief Justice or of Supreme Court
Judge shall not be abolished while there is a substantive holder
thereof.

(4) The Supreme Court shall be a superior court of record, and, except as
otherwise provided by Parliament, shall have all the powers of such a
Court.

(5) When the Supreme Court is determining any matter, other than an
interlocutory matter, it shall be composed of an uneven number of
Judges not being less than three except as provided for under Article
41.

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(6) The Chief Justice may make rules with respect to the practice and
procedure of the Supreme Court in relation to jurisdiction and powers
of the Supreme Court.

93(1) The Chief Justice and the Deputy Chief Justice shall, subject to
ratification by the National Assembly, be appointed by the
President.
(2) The Judges of the Supreme Court shall, subject to ratification by the
National Assembly, be appointed by the President.

ii. The Supreme Court of Zambia Act – CAP 25 of the laws of Zambia

This is an Act to provide for the constitution, jurisdiction and procedure of the
Supreme Court of Zambia; to prescribe the powers of the Court; and to provide for
matters connected therewith or incidental thereto. It supplements constitutional
provisions on the jurisdiction and other matters related to the Supreme Court.

iii. Constitution and general powers of the Court – sections 3 - 11

3(1) When the Court is determining any matter, other than an interlocutory matter,
it shall be composed of such uneven number of Judges, not being less than
three, as the Chief Justice may direct.

(2) The determination of any question before the Court shall be according to the
opinion of the majority of the members of the Court hearing the case.

4. A single Judge of the Court may exercise any power vested in the Court not
involving the decision of an appeal or a final decision in the exercise of its
original jurisdiction but –
(a) in criminal matters if any Judge of the Court refuses an application
for the exercise of any such power, the person making the
application shall be entitled to have his application determined by
the Court; and

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(b) in civil matters any order, direction or decision made or given in

pursuance of the powers conferred by this section may be varied,
discharged or reversed by the Court.

5. A Judge of the Court shall not sit on the hearing of an appeal, nor shall he
exercise any power under section four in respect of an appeal-
(a) from any judgment given by himself or any judgment given by
any Court of which he was sitting as a member;
(b) against a conviction or sentence if he was the Judge by or before
whom the appellant was convicted. Judge not to sit on appeal
from his own decision

7. The Court shall have jurisdiction to hear and determine appeals in civil and
criminal matters as provided in this Act and such other appellate or original
jurisdiction as may be conferred upon it by or under the Constitution or any
other law.

8. The jurisdiction vested in the Court shall, as regards practice and procedure,
be exercised in the manner provided by this Act and rules of Court: Provided
that if this Act or rules of Court do not make provision for any particular point
of practice and procedure of the Court shall be –

i. in relation to criminal matters, as nearly as may be in accordance with the

law and practice for the time being observed in the Court of
Criminal Appeal in England; ii. in relation to civil matters, as nearly as
may be in accordance with the law and practice for the time being observed
in the Court of Appeal in England.

9. The process of the Court shall run throughout Zambia and any Judgment of
the Court shall be executed and enforced in like manner as if it were a
Judgment of the High Court.

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10(1) The sittings of the Court shall usually be held at Lusaka or Ndola but may be
held at such other place as the Chief Justice may direct.

(2) The dates of sittings of the Court shall be determined by the Chief Justice

(3) The times of sittings of the Court shall be determined by the Chief Justice or,
if he is not a member of the Court hearing a case, the next senior Judge of
the Court hearing the case.

(4) At any sitting, the Court shall, subject to the provisions of this Act, be
composed of such members as the Chief Justice may direct.

11. In all proceedings before the Court the parties may appear in person or be
represented and appear by practitioner.

NOTE: The Supreme Court mainly exercises appellate jurisdiction. However, it has
original jurisdiction in presidential election petitions. Article 41 of the
Constitution makes it mandatory that whenever the Supreme Court is
sitting to hear and determine a presidential election petition, the Court
has to sit as a ‘full bench’ i.e. the maximum number of Supreme Court
Judges available at any given time.

The High Court for Zambia – Judges and jurisdiction of the court

i. Constitutional Provisions

94(1) There shall be a High Court for the Republic which shall have, except as to
the proceedings in which the Industrial Relations Court has exclusive
jurisdiction under the Industrial and Labour Relations Act, unlimited
and original jurisdiction to hear and determine any civil or criminal
proceedings under any law and such jurisdiction and powers as may
be conferred on it by this Constitution or any other law.

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(2) The High Court shall be divided into such divisions as may be determined by
an Act of Parliament.
(3) The Chief Justice shall be an ex-officio Judge of the High Court.
(4) The other Judges of the High Court shall be such number of puisne judges as
may be prescribed by an Act of Parliament.
(5) The office of a puisne judge shall not be abolished while there is a
substantive holder thereof.
(6) The High Court shall be a superior court of record and, except as otherwise
provided by Parliament, shall have the powers of such a court.
(7) The High Court shall have jurisdiction to supervise any civil or criminal
proceedings before any subordinate court or any court- martial and may
make such orders, issue such writs and give such directions as it may consider
appropriate for the purpose of ensuring that justice is duly administered by
any such court.
(8) The Chief Justice may make rules with respect to the practice and procedure
of the High Court in relation to the jurisdiction and power conferred on it by
clause (7).

95 (1) The puisne judges shall, subject to ratification by the National

Assembly, be appointed by the President on the advice of the
Judicial Service Commission.
(2) The Chairman and the Deputy Chairman of the Industrial
Relations Court shall be appointed by the President on the advice
of the Judicial Service Commission.
(3) The provisions of Articles 98 and 99 shall with the necessary
modifications apply to the Chairman and the Deputy Chairman of
the Industrial Relations Court.

ii. The meaning of “unlimited jurisdiction”

The phrase ‘unlimited jurisdiction’ in Article 94 (1) of the Constitution does not
imply that the High Court can do anything it pleases in the name of having unlimited

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jurisdiction. In the case of Zambia National Holdings & UNIP v The Attorney
General (1994/1995) ZR, the Supreme Court held that “although Article 94 of the
Constitution gives the High Court unlimited jurisdiction that Court is bound by all
the laws which govern the exercise of such jurisdiction”.

NOTE: Article 95 of the constitution which governs the appointment of puisne

judges of the High Court also governs the appointment of the
Chairman and Deputy Chairmen of the Industrial Relations Court. It is
for this reason that puisne judges of the High Court and the Chairman
and Deputy Chairmen of the Industrial Relations Court are regarded as
being at the same level.

iii. The High Court Act – CAP 27 of the Laws of Zambia

This is an Act to which provides the law with respect to the jurisdiction and business
of the High Court, and with respect to the officers and offices of the High Court, and
otherwise with respect to the administration of justice and the validation of certain
acts.

iv. Constitution of the Court – sections 3 - 5

3 (1) The High Court, as constituted by the Constitution, shall be the

High Court of Judicature for Zambia.
(2) The Court shall be deemed to be duly constituted during, and
notwithstanding, any vacancy in the office of the Chief Justice or of any
Puisne Judge.
4 Subject to any express statutory provision to the contrary, all the Judges
shall have and may exercise, in all respects, equal power, authority and
jurisdiction, and, subject as aforesaid, any Judge may exercise all or
any part of the jurisdiction by this Act or otherwise vested in the Court,
and, for such purpose, shall be and form a Court.
5(1) The trial of any civil cause or matter may, if the presiding Judge so
decides be held with the aid of assessors, the number of whom shall
be two or more as to such Judge seems fit.

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(2) Where a trial is held with the aid of assessors under this section, all the
provisions of the Criminal Procedure Code relating to assessors shall,
so far as the same are applicable and subject to any rules of court,
apply to such trial.

v. Jurisdiction and law – sections 9 - 16

9(1) The Court shall be a Superior Court of Record, and, in addition to any
other jurisdiction conferred by the Constitution and by this or any
other written law, shall, within the limits and subject as in this Act
mentioned, possess and exercise all the jurisdiction, powers and
authorities vested in the High Court of Justice in England.

(2) The jurisdiction vested in the Court shall include the judicial hearing and
determination of matters in difference, the administration or control
of property or persons, and the power to appoint or control guardians
of infants and their estates, and also keepers of the persons and
estates of idiots, lunatics and such as, being of unsound mind, are
unable to govern themselves and their estates.

10 The jurisdiction vested in the Court shall, as regards practice and

procedure, be exercised in the manner provided by this Act and the
Criminal Procedure Code, or by any other written law, or by such rules,
order or directions of the Court as may be made under this Act, or the
said Code, or such written law, and in default thereof in substantial
conformity with the law and practice for the time being observed in
England in the High Court of Justice.

11 (1) The jurisdiction of the Court in divorce and matrimonial causes and
matters shall, subject to this Act and any rules of Court, be exercised
in substantial conformity with the law and practice for the time being
in force in England.

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(2) The law and practice for the time being in force for the Probate,
Divorce and Admiralty Divisions of the High Court of Justice in
England with respect to the Queen’s Proctor shall, subject to
rules of Court and to any rules made under the provisions of the
Colonial and Other Territories (Divorce Jurisdiction) Acts, 1926 to
1950, of the United Kingdom, apply to the Attorney-General.

(3) The jurisdiction of the Court in probate causes and matters shall,
subject to this Act and any rules of court, be exercised in
substantial conformity with the law and practice in force in
England on the 17th August 1911 (being the commencement of
the Northern Rhodesia Order in Council, 1911).

12 (1) All statutes of the Parliament of the United Kingdom applied to

Zambia shall be in force so far only as the limits of the local jurisdiction
and local circumstances permit.

(2) For the purpose of facilitating the application of the statutes referred to
in subsection (1), it shall be lawful for the Court to construe the same
with such verbal alterations, not affecting the substance, as may be
necessary to make the same applicable to the proceedings before the
Court.

13 In every civil cause or matter which shall come in dependence in the

Court, law and equity shall be administered concurrently, and the
Court, in the exercise of the jurisdiction vested in it, shall have the
power to grant, and shall grant, either absolutely or on such
reasonable terms and conditions as shall seem just, all such remedies
or reliefs whatsoever, interlocutory or final, to which any of the parties
thereto may appear to be entitled in respect of any and every legal or
equitable claim or defence properly brought forward by them
respectively or which shall appear in such cause or matter, so that, as
far as possible, all matters in controversy between the said parties may

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be completely and finally determined, and all multiplicity of legal

proceedings concerning any of such matters avoided; and in all
matters in which there is any conflict or variance between the rules of
equity and the rules of the common law with reference to the same
matter, the rules of equity shall prevail.

17(1) Civil appeals from subordinate courts shall be heard by one Judge except
where in any particular case the Chief Justice shall direct that the
appeal shall be heard by two Judges. Appeals in civil matters

(2) Where an appeal is heard by a bench of two Judges under the provisions
of this section and they are divided in opinion, the appeal shall be
dismissed.

vi. Sittings and distribution of business

18 The sitting of the Court shall usually be held in such buildings within
Zambia as the Chief Justice may assign as Court Houses for that
purpose, but in case the Court shall sit in any other building or place
within the limits of jurisdiction for the transaction of legal business,
the proceedings shall be as valid, in every respect, as if the same had
been held in any such Court House.

19 (1) The Chief Justice may by statutory order under his hand appoint-
(a) the times at which Sessions shall normally be held in
Lusaka, Ndola, Kitwe, Livingstone, Mansa, Solwezi, Kabwe,
Mongu, Kasama and Chipata for the trial of persons committed
for trial before the Court by subordinate courts within such
Provinces or Districts as may be so appointed;

The Supreme Court and High Court number of Judges

The number of Supreme Court and High Court judges is prescribed by the Supreme
Court and High Court (Number of Judges) Act, CAP of the Laws of Zambia.

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Currently, the Act provides for 11 Supreme Court Judges and 50 puisne High Court
Judges.

Qualifications for appointment as Supreme Court, puisne judge, Chairman and

Deputy Chairman of Industrial Relations Court

The qualifications for appointment as Supreme Court Judge, puisne judge,

Chairman or Deputy Chairman of the Industrial Relations Court are set out in Article
97 of the Constitution. A person may not be appointed as a Supreme Court Judge
unless he/she has been practicing law for a total period of not less than 15 years.
In the case of the office of puisne judge, Chairman or Deputy Chairman of the
Industrial Relations Court, the person may not be appointed to such office unless
such person has been practicing for a total period of not less than 10 years.
However, a person may be appointed as a Supreme Court Judge, puisne judge,
Chairman or Deputy Chairman of the Industrial Relations Court notwithstanding
that they have practiced law for a total period less than the period required by
Article 97(1) in case of each of the office if the appointing authority is satisfied that,
by reason of special circumstances, the requirement of number of years at the bar
be dispensed with.

The Industrial and Labour Relations Court.

The Industrial and Labour Relations Court is established by the Industrial and
Labour Relations Act, Chapter 269 of the Laws of Zambia. The Act revises the law
relating to trade unions, the Zambia Congress of Trade Unions, employers’
associations, the Zambia Federation of Employers, recognition agreements and
collective agreements, settlement of collective disputes, strikes, lockouts, essential
services and the Tripartite Labour Consultative Council; the Industrial Relations
Court; repeals and replaces the Industrial Relations Act, 1990; and provides for
matters connected with or incidental to the foregoing.

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The part of the Act relevant to the Court is part XI. It consists of sections 84 – 97
which provide as follows:

84 The Industrial Relations Court established by section sixty-four of the

Industrial Relations Act, 1990, is hereby continued as if established
under this Act.

85(1) The Court shall have original jurisdiction in all industrial relations
matters.
(2) The court shall have jurisdiction –
(a) to inquire into and make awards and decisions in
collective disputes and any other matters under this Act;
(b) to interpret the terms of awards, collective agreements
and recognition agreements;
(c) generally to inquire into and adjudicate upon any matter
affecting the collective rights, obligations and privileges
of employees, employers and representative
organizations or any matter relating to industrial
relations;
(d) to commit and punish for contempt any person who
disobeys or unlawfully refuses to carry out, or to be
bound by, an order made against him by the Court under
this Act; and
(e) to perform such acts and carry out such duties as may be
prescribed under this Act or any other written law. (3) The
Court shall not consider a complaint or an application
unless the complainant or applicant presents the
complaint or application to the Court-----
(a) within ninety days of exhausting the administrative
channels available to the complainant or applicant; or
(b) where there are administrative channels available to the
complainant or applicant, within ninety days of the

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occurrence of event which gave rise to the complaint or

application
Provided that –
(i) upon application by the
complainant or applicant,
the Court may extend the
period within which the
complaint or application
may be
presented to Court; and
(ii) the Court shall dispose of
the matter within one
year from the day the
complaint or application
is presented to it.
As Amended by section 19 of
Act No. 8 of 2008
(4) The Court shall have the jurisdiction to hear and determine any
dispute between any employer and an employee
notwithstanding that such dispute is not connected with a
collective agreement or other trade union matter.

(5) The Court shall not be bound by the rules of evidence in civil or
criminal proceedings, but the main object of the Court shall be
to do substantial justice between the parties before it.

(6) An award, declaration, decision or judgment of the Court on any

matter referred to it for its decision or on any mater falling
within its exclusive jurisdiction shall, subject to section
ninetyseven, be binding on the parties to the matter and on any
parties affected.

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(7) It shall be within the exclusive jurisdiction of the Court to resolve

any ambiguity in any collective or recognition agreement
brought to its notice by any of the parties concerned.

(8) No person shall take part in a lockout or a strike against or in

defiance of any award, declaration, decision or judgement of
the Court and any person who contravenes this subsection shall
be liable, upon conviction, to a fine not exceeding two thousand
penalty units or to imprisonment for a term not exceeding
twelve months, or to both.

86(1) The Court shall consist of the following members:

(a) a Chairman;
(b) Deputy Chairmen; and
(c) not more than ten members appointed by the Judicial
Service Commission.

(2) A person shall not be qualified for appointment as Chairman or

Deputy Chairman, unless he qualifies to be appointed as High
Court Judge.

(3) The Chairman and Deputy Chairmen shall be appointed by the

President on the recommendation of the Judicial Service
Commission.

(4) The members, other than the Chairman and Deputy Chairmen,
shall hold office for a period of five years but shall be eligible for
re-appointment.

(5) The Chairman and Deputy Chairmen shall have the same tenure
and security of office as a judge of the High Court prescribed in
the Constitution in the Article relating to tenure of office of

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judges of the Supreme and High Court and shall be subject to

removal from office for inability to perform the functions of his
office under that Article.
(As Amended by section 20 of
Act No. 8 of 2008)

89(1) The Chairman or a Deputy Chairman shall preside over the

Court.

(2) The court, when hearing any matter, shall be duly constituted if
it consists of three members or such uneven number as the
Chairman may direct:
Provided that the Chairman or a Deputy Chairman may
deal with interlocutory matters and deliver a ruling or
make any order in chambers and may deliver any ruling
or judgement made by the Court duly constituted.

(3) Subject to subsection (2), the determination of any matter

before the Court shall be according to the opinion of the
majority of the members of the Court considering or hearing the
matter:
Provided that on a point of law the decision of the
Chairman or the Deputy Chairman shall prevail.

(4) A person shall not sit or act as a member of the Court or sit as
an assessor with the Court, if he has any interest direct or
indirect, personal or pecuniary, in any matter before the Court.

(5) The sittings of the Court shall be held in such places as the
Chairman may direct.

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90 (1) The court may, on application, declare who is or should be the

holder of any office in a trade union, the Congress, an
association or the Federation.

(2) The Chairman may make rules providing for the procedure to be
followed on an application for a declaration under this section
and prescribing any fees which shall be payable on any
application.

(3) Without prejudice to the power of the Court to punish for

contempt of court, where it has been declared under subsection
(1) that any person is or should be the holder of an office, any
other person who acts or purports to act as the holder of the
office contrary to the terms of the declaration, shall be liable
upon conviction, to a fine not exceeding one thousand penalty
units or to imprisonment for a term not exceeding three
months, or to both.

91(1) At any hearing before the Court, any party may appear in person
or be represented –
(a) by any officer of a trade union or of an
association;
(b) by an officer of the Congress or of the Federation; or
(c) by a legal practitioner;

(2) In any proceedings before the Court, the Government may be

represented by the Attorney-General or by any other person
authorized by him for that purpose.

94(1) The Court shall deliver judgment within sixty days after the
hearing of the case.

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(2) Failure to deliver judgment, within the period stipulated in subsection (1)
shall amount to inability by the Chairman or Deputy Chairman to
perform the functions of his office and the provisions of
the Constitution in dealing with the inability by a judge to perform his
functions under the Constitution shall apply.

97 Any person aggrieved by any award, declaration, decision or judgment of

the Court may appeal to the Supreme Court on any point of law or any
point of mixed law and fact.

The Subordinate Courts

The Subordinate Courts hear the bulk of criminal cases although they have limited
sentencing and jurisdictional powers both in terms of matters that they may hear
and also in terms of geographical coverage. They also hear appeals from the local
courts. There are different classes of the Subordinate Courts. These are Class III,
Class II and Class I. All Class III and Class II Magistrates are lay Magistrates i.e. those
who are not legally trained. Appeals from the Subordinate Courts lie to the High
Court.

i. The Subordinate Courts Act, CAP 28 of the Laws of Zambia

This is an Act to provide for the constitution, jurisdiction and procedure of

Subordinate Courts; to provide for appeals from Subordinate Courts to the High
Court; and to provide for matters incidental to or connected with the foregoing.

ii. Constitution of Subordinate Courts – sections 3 - 10

3 There shall be and are hereby constituted courts subordinate to
the High Court in each District as follows:
(a) a Subordinate Court of the first class to be presided
over by a principal resident magistrate, a senior
resident magistrate, resident magistrate or a
magistrate of the first class;

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(b) a Subordinate Court of the second class to be

presided over by a magistrate of the second class;
(c) a Subordinate Court of the third class to be
presided over by a magistrate of the third class.

4 Each Subordinate Court shall have the jurisdiction and powers

provided by this Act and any other written law for the time
being in force and shall ordinarily exercise such jurisdiction only
within the limits of the District for which each such court is
constituted.

5 The Judicial Service Commission acting in the name of and on

behalf of the President may appoint persons to hold or act in
the office of principal resident magistrate, senior resident
magistrate, resident magistrate or magistrate of any class.

6 A Subordinate Court may sit at different places simultaneously

when it is expedient that there should be two or more divisions
of that Court presided over by different magistrates.

7 Subject to the operation of any express statutory provision

providing otherwise, and to the provisions of this Act and the
Criminal Procedure Code, all magistrates shall have and may
exercise, in all respects, equal power, authority and jurisdiction;
and subject as aforesaid, any magistrate may exercise all and
any part of the jurisdiction by this Act or otherwise vested in a
Subordinate Court, and, for such purpose, shall be and form a
court.

8 The trial of any civil cause or matter may, if the presiding

magistrate so decides, be held with the aid of assessors, the
number of whom shall be two or more, as to the presiding

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magistrate seems fit. If such trial is to be held with the aid of

assessors, all the provisions relating to assessors, as contained
in the Criminal Procedure Code, shall, so far as the same are
applicable, apply to such trial.
9 All Subordinate Courts shall use seals of such nature and pattern
as the Chief Justice may, by statutory order, direct.

10 The sittings of Subordinate Courts shall be held in such buildings

within Zambia as the Chief Justice shall, from time to time,
assign as Court Houses for that purpose, within the limits of its
jurisdiction, for the transaction of legal business, the
proceedings shall be as valid, in every respect, as if the same had
been held in any such Court House.

iii. Jurisdiction and law – sections 11 - 22

11 All Subordinate Courts shall be Courts of Record.
12 The jurisdiction vested in Subordinate Courts shall be exercised
(so far as regards practice and procedure) in the manner
provided by this Act and the Criminal Procedure Code, or by
such rules and orders of court as may be made pursuant to this
Act and the Criminal Procedure Code, and, in default thereof, in
substantial conformity with the law and practice for the time
being observed in England in the country courts and courts of
summary jurisdiction.

13(1) Notwithstanding the provisions of any other written law

regulating the transfer of proceedings between courts and
subject to any general or special directions of the High Court, it
shall be lawful for any Subordinate Court, in any civil or criminal
proceedings and at any stage of the proceedings before
Judgment, to order such proceedings and at any stage of the
proceedings before judgment, to order such proceedings to be
transferred for trial to any Local Court having power to entertain

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the proceedings and exercising jurisdiction within the area of

jurisdiction of such Subordinate
Court. Before making any such order the Subordinate Court
shall satisfy itself that the making of such order will not be
contrary to the interests of justice or cause undue
inconvenience to the parties, and shall record its reasons for
ordering such transfer. The fact of such transfer shall be
recorded in the court register.
(2) For the purpose of this section, ‘Local Court’ means a court
recognised under the Local Courts Act.
14 All British Acts declared by any Act to extend or apply to Zambia
shall be in force so far only as the circumstances of Zambia
permit; and, for the purpose of facilitating the application of the
said British Acts, it shall be lawful for a Subordinate Court to
construe the same with such verbal alterations, not affecting
the substance, as may be necessary to make the same
applicable to the proceedings before the court; and every
magistrate or officer of court, having or exercising functions of
the like kind or analogous to the functions of a magistrate or
officer referred to in any such law, shall be deemed to be within
the meaning of the enactments thereof relating to such last-
mentioned magistrate or officer.

15 In every civil cause or matter in a Subordinate Court law and

equity shall be administered concurrently; and a Subordinate
Court, in the exercise of the jurisdiction vested n it by this Act,
shall have power to grant, and shall grant, either absolutely or
on such reasonable terms and conditions as shall seem just, all
such remedies or reliefs whatsoever, interlocutory or final, as
any of the parties thereto may appear to be entitled to, in
respect of any and every legal or equitable claim or defence
properly brought forward by them respectively, or which shall
appear in such cause or matter; so that, as far as possible, all

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matters in controversy between the said parties respectively

may be completely and finally determined, and all multiplicity
of legal proceedings concerning any of such matters avoided;
and, in all matters in which there is any conflict or variance
between the rules of equity and the rules of the common law
with reference to the said matter, the rules of equity shall
prevail.

16 Subject as hereinafter in this section provided, nothing in this

Act shall deprive a Subordinate Court of the right to observe and
to enforce the observance of, or shall deprive any person of the
benefit of, any African customary law, such African customary
law not being repugnant to justice, equity or good conscience,
or incompatible, either in terms or by necessary implication,
with any written law for the time being in force in Zambia. Such
African customary law shall, save where the circumstances,
nature or justice of the case shall otherwise require, be deemed
applicable in civil causes and matters where the parties thereto
are Africans, and particularly, but without derogating from their
application in other cases, in civil causes and matters relating to
marriage under African customary law, and to the tenure and
transfer of real and personal property, and to inheritance and
testamentary dispositions, and also in civil causes and matters
between Africans and non-Africans, where it shall appear to a
Subordinate Court that substantial injustice would be done to
any party by a strict adherence to the rules of any law or laws
other than African customary law:
Provided that –
(i) no party shall be entitled to claim the benefit
of any African customary law, if it shall
appear, either from express contract or from
the nature of the transactions out of which

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any civil cause, matter or question shall have

arisen, that such party agreed or
must be taken to have agreed that his
obligations in connection with all such
transactions should be regulated exclusively
by some law or laws other than African
customary law;
(ii) in cases where no express rule is applicable
to any matter in issue, a Subordinate Court
shall be guided by the principles of justice,
equity and good conscience.

17 Every magistrate shall have power to issue Writs of Summons

for the commencement of actions in a Subordinate Court, to
administer oaths, and take solemn affirmations and
declarations, and to make such decrees and ministerial, in
relation to the administration of justice, as shall, from time to
time, be prescribed by any written law or by rules of court.

18 No Writ of Habeas Corpus or Order in the nature thereof for the

production before the court of any person alleged to be
wrongfully imprisoned or detained shall be issued by any
Subordinate Court.

19 In the exercise of their criminal jurisdiction, Subordinate Courts

shall have all the powers and jurisdiction conferred on them by
the Criminal Procedure Code, this Act or any other law for the
time being in force.
20 (1) In civil causes and matters a Subordinate Court of the first
class shall, subject to this Act and in addition to any jurisdiction
which it may have under any other written law, within the
territorial limits of its jurisdiction, have jurisdiction –

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(a) in all personal suits, whether arising from contract, or

from tort or from both, where the
value of the property, debt or damage claimed,
whether as balance of accounts or otherwise is- (i)
where the court is presided over by a
principal resident magistrate, not more than five
million Kwacha; [thirty million Kwacha as
amended by Act No. 25 of 1998]
(ii) where the court is presided over by a
senior resident magistrate, not more
than three million Kwacha;
[twentyfive million Kwacha as
amended by Act No. 25 of 1998]
(iii) where the court is presided over by a
resident magistrate, not more than
one million Kwacha; [twenty million
Kwacha as amended by Act No.25 of
1998] and
(iv) where the court is presided over by a
magistrate of the first class, not more
than six hundred thousand Kwacha;
[ten million Kwacha as amended by
Act No. 25 of 1998]

(b) to enforce by attachment any order made by the

court;
(c) to hear and determine any action for the recovery
of land where either the value of the land in
question or the rent payable in respect thereof
does not exceed the sum of five million Kwacha
by the year, or, in the case of a Subordinate Court
presided over by a principal resident magistrate
or a senior resident magistrate, six million

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Kwacha by the year; Repealed by Act No. 25 of

1998 and replaced with a new section which
increases the value of property administered.
(d) do make any order which may be made by a court
of summary jurisdiction under the Summary
Jurisdiction (Separation and Maintenance) Acts,
1895 to 1925 and section eleven of the
Matrimonial Causes Act, 1937, of the United
Kingdom:
Provided that for the purposes of this section –
(i) paragraph (c) of section five of the
Summary Jurisdiction (Married
Women) Act, 1895, of the United
Kingdom shall be read as if for the
expression “such weekly sum not
exceeding one thousand kwacha or
such monthly sum not exceeding four
thousand Kwacha” there were
substituted the expression “such
weekly sum not exceeding twenty
thousand kwacha or monthly sum not
exceeding one hundred thousand
kwacha”, and
(ii) any reference to the term “married
woman” or “wife” in the Summary
Jurisdiction (Separation and
Maintenance) Acts, 1895 to 1925,
Matrimonial Causes Act, 1937, and
Married Women Maintenance Act,
1920 shall be read as a reference to
“spouse”;

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Provided further, that the allowance payable in

respect of the spouse may be increased by fifty per
centum of the amount by which the earnings or
other income of the other spouse exceed two
hundred thousand Kwacha per month so that the
total allowance shall not in any event exceed one
hundred and sixty thousand Kwacha per month:

Provided that a Subordinate Court of the first class

shall not have jurisdiction in or cognizance of any
suit or matter of the nature following, that is to
where:
(i) the title to any right, duty or office is
in question;
(ii) the validity of any will or other
testamentary writing or of any
bequest or limitation under any will or
settlement is in question;
(iii) the legitimacy of any person is in
question; or
(iv) the validity or dissolution of any
person is in question.

23 If, in any civil cause or matter before a Subordinate Court, the title
to any land is disputed, or the question of the ownership thereto
arises, the court may adjudicate thereon, if all parties interested
consent; but, if they do not all consent, the presiding magistrate
shall apply to the High Court to transfer such cause or matter to
itself.

58(1) Any court exercising appellate jurisdiction under the

provisions of this Act may exercise any of the following
powers:

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(a) to grant leave to appeal out of time;

(b) to take, or cause to be taken, additional
evidence for reasons to be recorded;
(c) to dismiss the appeal if, in the opinion of the
appellate court, there has been no
substantial miscarriage of justice,
notwithstanding that the point raised in the
appeal could be decided in favour of the
appellant;
(d) to set aside proceedings of the lower court
and order the case to be retried in any court
of competent jurisdiction:
Provided that a Subordinate
Court shall not order a retrial in
the High Court;
(e) to enhance, suspend, reduced or otherwise
modify the effect of the sentence or order of
the lower court:
Provided that the provisions of
subsections (1) and (2) of
section forty-five shall apply to
any order made under this
paragraph suspending the
operation of any sentence of
imprisonment;
(f) to squash, or annual the verdict, order or
sentence of the lower court, or any part
thereof with or without substitution of
another verdict, order or sentence;
(g) to permit the release on bail of a person who
is in custody by an order made in the case by
the lower court and whose sentence has
been suspended.

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(2) An appeal from a local court shall be dealt with by way of

rehearing unless the appellate court, in its discretion,
shall see fit to dispense with all, or part, of such rehearing.

The Local Courts

The local courts were historically separated from the rest of the Courts in that they
were not Courts of record and were expected to administer customary law. After
independence, however, they were formally integrated in the formal court
structure although they, to date, continue to be created under warrant and their
presiding officers continue to function on the basis of short term contracts. A
matter heard by the local Court is heard de novo by the Subordinate Court on
appeal.

i. The Local Courts Act, CAP 29 of the Laws of Zambia

This is an Act to provide for the recognition and establishment of local courts,
previously known as native courts, to amend and consolidate the law relating to
the jurisdiction of and procedure to be adopted by local courts; and to provide for
matters incidental thereto.

ii. Establishment and constitution of Local Courts

4(1) The Minister may, by court warrant under his hand, recognize
or establish such local courts as he shall think fit, and any such
court shall exercise such jurisdiction as may be conferred by or
under the provisions of this Act within such territorial limits as
may be defined by such warrant.
5(1) Local courts shall be of such different grades as may be
prescribed, and local courts of each grade shall exercise
jurisdiction only within the limits prescribed for such grade:

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(2) The court warrant of any local court shall specify the grade to which
such court belongs.

6(1) A local court shall consist of a presiding justice [now called

Magistrate] either sitting alone or with such number of other
members as may be prescribed by the Minister in the court
warrant:
Provided that a single local court justice shall constitute
the court in the absence of the presiding justice.

(2) The president and other members of a local court shall be

appointed by the Commission for a period of three years and
shall be eligible for reappointment.

(3) A person sitting as a member of a local court shall be referred

to as a local court justice.

(4) No person shall sit as a local court justice or as an assessor of a

local court in the adjudication of any matter to which he is a
party or in which he has a pecuniary or personal interest:
Provided that if any doubt arises as to whether a local court
justice or assessor is a party to a matter before a local court or
has any pecuniary or personal interest in such matter, the local
court shall refer the matter to an authorised officer who shall
issue such directions as he may deem fit.

(5) The Minister may, by statutory notice, delegate, to the Director,

the powers conferred upon him by subsection (1).
iii. The jurisdiction of and the law administered by
local courts
8 Subject to the provisions of this Act, a local court shall have and
may exercise, within the territorial limits set out in its

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court warrant, such jurisdiction as may be prescribed for the

grade of court to which it belongs, over the hearing, trial and
determination of any civil cause or matter in which the
defendant is ordinarily resident within the area of jurisdiction of
such court or in which the cause of action has arisen within such
area:
Provided that civil proceedings relating to real
property shall be taken in the local court within the
area of jurisdiction in which the property is situate.
(As amended by No. 21 of 1976)

9 Subject to the provisions of this Act, a local court shall have and
may exercise jurisdiction, to such extent as may be prescribed
for the grade of court to which it belongs, over the hearing, trial
and determination of any criminal charge or matter in which
the accused is charged with having wholly or in part within the
area of jurisdiction of such court, committed, or been accessory
to the commission of an offence.

10 No local court shall be precluded from trying an offence under

the Local Government Act by reason of the fact that such
offence was a breach of a by-law or rule issued or made –
(a) by a council, members of which are also members
of such local court; or
(b) by a member of such local court as a member of a
council.

11 Subject to any express provision of any other written law

conferring Jurisdiction, no local court shall have jurisdiction to
try any case in which a person in charged with an offence in
consequence of which death is alleged to have occurred or
which is punishable by death.

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12(1) Subject to the provisions of this Act, a local court shall

administer–
(a) the African customary law applicable to any
matter before it is so far as such law is not
repugnant to natural justice or morality or
incompatible with the provisions of any
written law;
(b) the provisions of all by-laws and regulations
made under the provisions of the Local
Government Act and in force in the area of
jurisdiction of such local court; and
(c) the provisions of any written law which such
local court is authorized to administer under
the provisions of section thirteen.

(2) Any offence under African customary law, where such law is not
repugnant to natural justice or morality, may be dealt with by a
local court as an offence under such law notwithstanding that a
similar offence may be constituted by the Penal Code or by any
other written law:
Provided that such local court shall not impose any
punishment for such offence in excess of the
maximum permitted by the Penal Code or by such
other written law for such similar offence.

13 The Minister may, by statutory order, confer upon all or any local
courts jurisdiction to administer all or any of the provisions of
any written law specified in such order, and may, subject to the
limits referred to in subsection (1) of section five, specify
restrictions and limitations on the impositions of penalties by
such local courts on persons subject to their jurisdiction who
offend against such provisions.

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iv. Practice and procedure

14 The practice and procedure of local courts shall be regulated in
accordance with such rules as may be made in that behalf by the
Chief Justice under section sixty-eight.

15 No legal practitioner, other than a practitioner who is a party

and acting solely on his own behalf, may appear or act before a
local court on behalf of any party to any proceedings therein
save in respect of a criminal charge under any of the provisions
of –
(a) by-laws and regulations made under the
provisions of the Local Government Act; or
(b) any written law which such court is authorized to
administer under section thirteen.

(2) Subject to the directions of the Director, a local courts officer may sit
as an adviser in any local court in any proceedings in which a legal
practitioner appears before such court under the provisions of
subsection (1).
(3) Subject to the provisions of subsection (1), a local court may permit
the spouse or guardian or a member of the household of any party
before such court, where such person gives satisfactory proof to the
court that he has authority in that behalf, to appear and act for such
party.

Security of tenure and retirement of judges19

Some commentators believe that in order to ensure the independence and

impartiality of the Judiciary, the security of tenure of Judges must be guaranteed
by the Constitution. They also believe that the conditions of service in terms of how
the salary, pension, gratuity, any other allowances and conditions of service of

19
These notes are extracted from chapter 4 of the Mung’omba Constitutional Review Commission Report

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holders of judicial office are determined are inseparable from the security of
tenure, the independence of the Judiciary and the impartiality of judicial officers.

It was therefore understandable for the judiciary to propose to the Mung’omba

CRC that the Judicial Service Commission or other independent body should
determine the salary, pension, gratuity, any other allowances and conditions of
service of holders of judicial office. The Judiciary added that emoluments of judicial
officers should not be reduced during their tenure of office and that these should
be a charge on the General Revenues of The Republic.

Presently, the Constitution does not make any provision with respect to
emoluments, pensions and other conditions of service for Judges. These are dealt
with by the Judges (Conditions of Service) Act, Cap. 277. Section 3 of the Act states
that there shall be paid to a Judge such emoluments as the President may, by
statutory instrument, prescribe. Further, the Act, inter alia, empowers the
President to prescribe conditions of service for Judges. In the Mung’omba CRC’s
view, this state of affairs compromises the independence and impartiality of the
Judges at least in the minds of the people.

Against this background, the CRC recommended that the Constitution should
provide that: (a) the emoluments, pensions and other conditions of service of
Judges shall be reviewed and recommended in the first instance by the Judicial
Service Commission, and submitted to an independent National Fiscal and
Emoluments Commission, which shall make its recommendations to the National
Assembly for approval. Upon approval, these shall be prescribed by an Act of
Parliament; (b) the emoluments of Judges shall not be reduced without their
consent during their tenure of office; and (c) the emoluments, gratuity, pensions
and other dues under the conditions of service shall be a charge on the
Consolidated Fund of the Republic.

In the current Constitution, the security of tenure of judges is provided for by Article
98 of the Constitution. Under the provisions of Article 98 (3) of the Constitution,
the President is the authority that considers the question of removal from office of

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a Judge of the Supreme Court or High Court. If the President deems it necessary,
he/she appoints a tribunal according to whose advice he/she must act. The
President may suspend a Judge pending investigations of a tribunal. This provision
has been the same since the 1964 Constitution. The grounds for removal of a judge
from office have also remained the same since 1964.

The Mung’omba CRC was of the view that the current provision is in conflict with
the principle of independence, impartiality and security of tenure of the Judiciary.
According to the CRC, the perceived impact of this is even greater when viewed
against the fact that the President also enjoys substantial power of appointment of
Judges. It was for this reason that the CRC felt that it is necessary to infuse checks
and balances into the procedure. In this regard, the CRC recommended, among
others, that the Judicial Complaints Authority shall initiate the process of the
removal of a Judge by referring the matter to the President, where the Authority
finds that the complaint has merit. The President shall then refer the matter to the
National Assembly, which shall appoint a tribunal, receive the report of the tribunal
and determine the matter.

In terms of the retirement age, the current constitutional provisions provide that a
judge shall vacate office upon attaining the age of 65 years. However, a judge who
has attained 65 years may be reappointed on contract for a period of seven
(07) years at the discretion of the President.

Against this background, the Law Association of Zambia, in its submissions to the
Mung’omba CRC, proposed that the retirement age for Judges should be raised
from 65 to 70 because currently almost all Judges are given seven-year contracts,
rendering the 65 years retirement age a fallacy (1). The Association further
submitted that the practice of awarding contracts to judges after they attain their
retirement age has potential to compromise judges. It was further proposed that a
Judge may opt for early retirement after attaining the age of 65 years, but before
turning 70 years.

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After considering these submissions, the Mung’omba CRC recommended that the
Constitution should provide that: (a) Judges should be retired at the age of 75 and
that a Judge should have the option of early retirement after attaining the age of
65; and (b) for the avoidance of any doubt, a person who has retired as a Judge
should not be eligible for reappointment as a Judge.

The Doctrine of separation of powers

In every government, there are three types of interrelated organs, namely the
Executive, the Legislature and the Judiciary. Democratic governments the world
over are based firmly on the principle of separation of powers. This principle does
not mean that the three organs of Government should be wholly separated from
each other. On the contrary, they should operate in concert, but with “checks and
balances” that ensure that none of them encroaches on the legitimate domain of
the other.

The practice in Commonwealth countries is that separation of powers is seen in the

independence of the Judiciary. The source of this independence, in most states, is
constitutional provisions outlining the qualifications for Judges, their mode of
appointment, security of tenure, remuneration and provision of resources.

The autonomy and independence of the Judiciary

Autonomy entails the ability to act and make decisions without being controlled by
anyone else. In relation to the judiciary, the concept of autonomy entails that the
judiciary should act and make decisions without being controlled by anyone be it
members of the Executive or the legislature.

The autonomy of the judiciary is essential to the fair and impartial administration
of justice and the very concept of the independence of the judiciary. The reason is
simple. There is no judiciary which can be independent if it is not autonomous.
Meanwhile, the importance of the concept of independence of the Judiciary has
been internationally recognised, as is shown by Article 2 of the United Nations Basic
Principles of the Independence of the Judiciary (1985). Article 2 provides that:

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“The judiciary shall decide matters before them impartially, on the basis of facts and
in accordance with the law, without any restrictions, improper influence,
inducements, pressures, threats or interferences, direct or indirect, from any
quarter or for any reason.”

Modern constitutions of some countries specifically vest judicial power in the

courts and emphasise that the Judiciary shall be independent and subject only to
the Constitution and the law. For example, Article 127 of the Constitution of Ghana
states in part that:

“(1) In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial
and administrative functions, including financial administration, is subject only to
this Constitution and shall not be subject to the control or direction of any person
or authority.

(2) Neither the President nor Parliament nor any person acting under the authority
of the President or Parliament nor any other person whatsoever shall interfere with
judges or judicial officers or other persons exercising judicial power, in the exercise
of their judicial functions; and all organs and agencies of the State shall accord to
the courts such as the courts may reasonably require to protect the independence,
dignity and effectiveness of the courts, subject to this Constitution.”

The Constitutions of Uganda and South Africa have provisions with the same or
similar effect.

The predominant role of the Judiciary in any State is to interpret the laws of the
land fairly, and to dispense justice impartially, without fear or favour, between
individuals or the individual and the State. In this way, the Judiciary makes a
meaningful contribution to the maintenance of law and order and consequently
the maintenance of peace within a State, and enhances checks and balances in any
democratic state.

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However, the Judiciary cannot effectively play its role if it does not enjoy an
entrenched independent status: its independence is essential in the impartial
administration of justice and adherence to the rule of law, and for the separation
of powers.

As the judicial organ of the Government, the Judiciary should inspire confidence in
the people it serves. It should not only be independent, but also be seen to be
independent and not subject to control by the other two arms of the Government.
This independence can be attained through the manner of appointment and
removal of Judges as well as the manner in which the judiciary is funded.

It follows that in discussing the concepts of autonomy and independence of the

judiciary, the questions that must be asked include the following: Is it enough to
have constitutional provisions guaranteeing the autonomy and independency of
the judiciary? Can there be meaningful autonomy and independency of the
judiciary if the judges are appointed, paid, promoted and removed from office by
persons or institutions directly or indirectly controlled by the Executive? Can the
judiciary realize its autonomy and independency if its budget is determined by the
Executive?

In relation to the Zambian judiciary, this means that we should be asking ourselves
the following questions: Who determines the funding of the judiciary? Who really
appoints our judges, magistrates and other judicial officers? Who really determines
the salary and other conditions of service for our judges, magistrates and other
judicial officers? Who really promotes and removes judges, magistrates and other
judicial officers from their office?
Only honest answers to these questions can help us ascertain the extent to which
our judiciary is autonomous and independent.

The emphasis placed on the principle of independence and impartiality of the

judiciary entails that although the Judiciary derives its judicial authority from the
Constitution, the judicial service should enjoy freedom from interference by the
other organs. Checks and balances are assumed to be inherent in the very character

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of the institution of courts and evidenced in the instruments and processes that
define their functions.

The rationale for this principle is that Judges should not feel inhibited in arriving at
just and fair judgments. In so doing, the Judiciary contributes effectively to
upholding the rule of law. However, the rule of law is not the rule of Judges for
were it to be so, then it would be justice according to Judges, but not justice
according to the law. To ensure the tenets of justice, our judicial system allows for
a hierarchy of appeals, ending in the Supreme Court, which is the final court in the
land.

Zambian constitutional Provisions on the autonomy and independency of the

judiciary

The Zambian constitution has provisions on the independence and autonomy of the
judiciary. Article 91(2) provides that “the Judges, members, magistrates and
justices, as the case may be, of the courts mentioned in clause (1) shall be
independent, impartial and subject only to this Constitution and the law and shall
conduct themselves in accordance with a code of conduct promulgated by
Parliament”. Meanwhile, Article 91(2) provides that “the Judicature shall be
autonomous and shall be administered in accordance with the provisions of an
Act of Parliament”.

As contemplated by Article 91(2) of the constitution, the Judicature Act, Cap. 24,
of the laws of Zambia was enacted in 1994 with its objectives, in the main, as to
provide for the administration of courts and to confer on the Judicial Service
Commission the power to appoint staff of the Judicature.

The question that several commentators have been asking themselves is: Have
these constitutional and legislative provisions made the Zambian judiciary
autonomous and independent?

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According to the Mung’omba CRC, the major weakness of the Judicature

Administration Act is that instead of giving effect to the autonomy of the Judiciary
as stipulated in the Constitution, the Act “clearly and loudly makes the Judiciary
subservient to the presidency in matters related to administration in general, the
appointment of certain members of the Judicature and staff, terms and conditions
of service, and the exercise of disciplinary powers”. Also in direct conflict with the
constitution and the principles of autonomy and independence of the judiciary is
Section 5 of the Service Commissions Act, Cap. 259, which subjects the Judicial
Service Commission to such general directions as the “President may consider
necessary and requires the Commission to comply”.

It is no wonder that the majority view is that something more needs to be done in
addition to these constitutional and legislative provisions to make the Zambian
judiciary truly autonomous and independent. More importantly is the manner of
funding the judiciary and that of appointment, promotion and removal of judges
from their office along with the determination of their conditions of service.

The judiciary itself, in its submissions to the Mung’omba CRC, made it very clear
that the cry of the judiciary was that the judiciary’s allocation from the national
budget ought to reflect its independent status and further that the allocation by
Parliament ought to be reasonable in proportion to the allocations given to the
other two arms of the Government. This cry was recently repeated by His Lordship,
Chief Justice Ernest Sakala in his speech at the opening of the Lusaka High Court
sessions for 2011. To use his own words:
“Over the past few years, the trend has been that less than 80 percent of the
approved budget released. This has no doubt negatively affected our projects
and programmes and we have even been unable to fulfill the obligations
relating to conditions of service of our support staff in terms of paying
terminal and other benefits. It is also defeating the very concept of an
autonomous judiciary”20.

20
The Post, No. 5191, Tuesday January 4, 2011, page 4.

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The present problem, in terms of funding, is that the budget of the Judiciary, like
that of any other Government institution, is subject to superintendence and
prescription by the Ministry responsible for finance before submission of the
estimates of revenue and expenditure by the Government to the National
Assembly. This is on the premise that the Ministry is in control of Government
revenue and expenditure. Once approved by Parliament, only a portion is released
and this is done through the Ministry in charge of finance.

Notwithstanding the foregoing, it must be acknowledged that, by and large, the

Zambian courts have maintained their integrity and good conduct. This is despite
the fact that they are administered by human beings and are therefore susceptible
to weaknesses. It is for this reason that an important corollary to the principle of
independence and impartiality of the judiciary is that it must not be susceptible to
abuse by judicial personnel. This principle is not a shelter to incompetence,
prejudice and abuse by judicial personnel at any level of the judicial structure. Even
when the right of appeal ends in the Supreme Court, the finality of the process
should achieve justice. But finality in the Supreme Court does not mean that this
Court is at liberty to arrive at any decision, simply because such decision cannot be
overturned. The citizen is entitled to a fair hearing and an impartial well-reasoned
judgment, even at this final level. All these sentiments must be assured, guaranteed
and protected by the Constitution.

It is in light of the above considerations that the Mung’omba CRC was of the view
that the Constitution should enhance the independence and impartiality of the
Judiciary in unequivocal terms and further that the independence and impartiality
of the judiciary should also reflect that the Judiciary is accountable to the people in
the manner in which it administers justice. This, the CRC felt, is important in the
promotion of justice and the rule of law. In this regard, the CRC recommended,
among others, that the Constitution should explicitly provide that:

• in the exercise of its judicial power, the Judiciary, in both its judicial and
administrative functions (including financial administration) should be

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subject only to the Constitution and shall not be subject to the control or
direction of any person or authority;
• no member of the Executive or Legislature or any other person should
interfere with the Judges or judicial officers or other persons exercising
judicial power, in the exercise of their judicial functions, and all organs of the
State should accord such assistance as courts may require to protect their
independence, dignity and effectiveness, subject to the Constitution;
• the Judiciary should prepare its own budget estimates, whose determination
should be subject to negotiations with the Ministry responsible for finance,
and that this process should take into account the principles of
accountability, transparency and equitable sharing of resources;
• the Judiciary should be adequately funded and its allocations should be
released directly to the Judiciary; and
• the approved budget allocation should be a charge on the Consolidated Fund
of the Republic, whose establishment was recommended in Chapter 21 of
the Report.

Appointment of Magistrates and other Judicial Officers

Presently, the Constitution does not provide for the manner of appointment of
Magistrates and other judicial officers. Neither does it provide for their
qualifications: it only has provisions on the qualification and appointment of
Supreme and High Court judges.

However, Section 4 (1) of the Judicature Administration Act, Cap 24 confers on the
Judicial Service Commission power to appoint the Registrar, Deputy Registrar,
Assistant Registrar, Magistrates and other judicial officers. Sub-section (3) states
that these officers shall hold office on such terms and conditions as the Commission
may determine with the approval of the President.

It is the absence of constitutional provisions on the qualifications and appointment

of Magistrates and other Judicial officers that prompted the Judiciary to propose to

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the Mung’omba CRC that Article 95 of the Constitution should be amended to make
provision for Magistrates and other judicial officers to be appointed by the Judicial
Service Commission, and that they should hold office until the age of 55, unless
appointed as High Court Judges, with the proviso that Local Court Justices should
hold office until the age of 75 unless removed in accordance with Article 98 (1).

The Commission considered the submission from the Judiciary with respect to the
appointment of magistrates and other judicial officers and came to the conclusion
that in order to protect the independence, impartiality, integrity, dignity and
transparency of the Judiciary, the Constitution should make clear provision with
respect to the appointment, and terms and conditions of service of other judicial
officers.

In its consideration of the subject, the Commission examined related provisions in

other constitutions. In particular, the Commission examined the Constitution of
Uganda that provides that the Judicial Service Commission may appoint judicial
officers other than those specified in the Constitution. Further, the Constitution
confers on the Commission the function of reviewing and making
recommendations on the terms and conditions of service of Judges and other
judicial officers.

The Commission also examined the Constitution of Ghana which not only makes
provision with respect to power of appointment of other judicial officers, but also
states that the terms and conditions of service of these officers shall be prescribed
by regulations made by the Judicial Council, acting in consultation with the Public
Service Commission and with the approval of the President.

With respect to the retirement age, the Mung’omba CRC concurred in principle
with the view of the Judiciary that Magistrates and other judicial officers should
retire at the normal retirement age in the Public Service. The CRC also agreed that
an exception to this should be made in the case of Local Court Justices, whose
retirement age should be 75 years. This is because these officers are regarded as a
reservoir of customary law.

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The Commission was also of the view that the capacity of Subordinate Courts and
Local Courts should be strengthened. In this regard, the Commission observed that
these courts handle most of the criminal and civil cases, but they do not have
adequate competence and capacity. According to the CRC, there was need to
improve the conditions of service for staff in these courts in order to attract
competent and properly qualified personnel. The CRC also felt that it was essential
that Local Court Justices should be experts in the traditions and customs of the
specific communities in which they serve and that they should be recruited from
the local community, with the approval of the area Chief.

UNIT 8

8.0 ALTERNATIVE METHODS OF DISPUTE RESOLUTION

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8.1 Introduction

There are several methods of resolving disputes recognised worldwide.

Adjudication, also known as litigation, is by far the most common method of
dispute resolution: over 90 percent of legal disputes worldwide are resolved
through litigation.

Adjudication is a process by which a court resolves a dispute. It involves parties

taking their legal dispute to a court of law for determination by an independent and
impartial judicial officer. The mandate of courts to adjudicate on disputes is
inherent in the very constitutional set up of countries whereby the responsibility of
interpreting the law is vested in the judicial organ of the state.

8.2 Advantages of adjudication (litigation)

Litigation offers several advantages in relation to the resolution of disputes. The

advantages include the following:

i. Matters are heard and determined by persons who are impartial,

independent and with no interest whatsoever in the subject matter of the
dispute;
ii. Parties to matters heard and determined through litigation are given reasons
for the decision of the court and can appeal up to the highest court if not
satisfied with the reasons given by lower courts;
iii. Through the doctrine of res judicata, litigation brings disputes to finality; iv.
Through the doctrine of precedent, litigation contributes towards the
development and growth of law;
v. Litigation creates stability in society by preventing aggrieved persons from
taking the law in their own hands.

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8.3 Disadvantages of adjudication (litigation)

Although it has several advantages, litigation equally has some disadvantages. The
disadvantages include the following;

i. Litigation is costly i.e. it is not economical when compared to ADR methods;

ii. Litigation is time – consuming i.e. matters take long to be concluded in the
courts of law;
iii. Litigation does not allow parties to make a decision mutually beneficial to
them since they have no option but to follow what the court has decided;
iv. In jurisdictions where the doctrine of precedent applies, litigation may lead
to injustice because lower courts do not question the decisions of higher
courts.
It is against the background of these disadvantages that there has been growing
interests among advocates worldwide in the use of ADR methods to resolve their
client’s disputes more economically and efficiently. In the face of bottlenecks and
backlogs in court systems, coupled with spiraling legal costs and fees, courts and
other members of the legal community have been part of the movement seeking
means other than litigation for resolving disputes.

8.4 Alternative Dispute Resolution (ADR) – What is it?

The term "alternative dispute resolution" or "ADR" is often used to describe a wide
variety of dispute resolution mechanisms that are short of, or alternative to, full-
scale court processes. It is an effort to arrive at mutually acceptable decisions and
an alternative to adversarial processes such as litigation or administrative
processes that result in "win/lose" outcomes.

The term ADR can refer to everything from facilitated settlement negotiations in
which disputants are encouraged to negotiate directly with each other prior to
some other legal process, to arbitration systems or minitrials that look and feel very
much like a courtroom process. Processes designed to manage community tension
or facilitate community development issues can also be included within the rubric
of ADR. ADR systems may be generally categorized as negotiation,
conciliation/mediation, or arbitration systems.

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Negotiation systems create a structure to encourage and facilitate direct

negotiation between parties to a dispute, without the intervention of a third party.
Mediation and conciliation systems are very similar in that they interject a third
party between parties to the dispute, either to mediate a specific dispute or to
reconcile their relationship. Mediators and conciliators may simply facilitate
communication, or may help direct and structure a settlement, but they do not
have the authority to decide or rule on a settlement. Arbitration systems authorize
a third party to decide how a dispute should be resolved.

Negotiation, mediation, and conciliation are non-binding and depend on the

willingness of the parties to reach a voluntary agreement. On the other hand,
Arbitration may be either binding or non-binding. Binding arbitration produces a
third party decision that parties to the disputes must follow even if they disagree
with the result, much like a judicial decision. Non-binding arbitration produces a
third party decision that the parties may reject.

8.5 Four elements essential for successful ADR

There are four elements essential to the successful use of any ADR method. These
are:
• existence of an issue in controversy;
• voluntary agreement by both parties to participate in the ADR process;
• voluntary agreement by both parties on the type of ADR method to be used
in lieu of formal litigation;
• participation in the process by officials of both parties who have authority to
resolve the issue in controversy.

8.6 Characteristics of ADR methods

Although the characteristics of negotiated settlement, conciliation, mediation,

arbitration, and other forms of community justice vary, all share a few common
elements of distinction from the formal judicial structure. These elements permit

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them to address development objectives in a manner different from judicial

systems. They include the following:

1) Informality
ADR processes are less formal than judicial processes. In most cases, the rules of
procedure are flexible, without formal pleadings, extensive written documentation,
or rules of evidence. This informality is appealing and important for increasing
access to dispute resolution for parts of the population who may be intimidated by
or unable to participate in more formal systems. It is also important for reducing
the delay and cost of dispute resolution. Most systems operate without formal
representation.

2) Application of Equity
ADR processes are instruments for the application of equity rather than the rule of
law. Each case is decided by a neutral third party, or negotiated between parties to
the dispute themselves, based on principles and terms that seem equitable in the
particular case, rather than on uniformly applied legal standards. ADR systems
cannot be expected to establish legal precedent or implement changes in legal and
social norms. Thus, ADR systems tend to achieve efficient settlements at the
expense of consistent and uniform justice.

3) Direct Participation and Communication between parties

ADR systems involve more direct participation by parties to the dispute in the
process and in designing settlements, more direct dialogue and opportunity for
reconciliation between them, potentially higher levels of confidentiality since
public records are not typically kept, more flexibility in designing creative
settlements, less power to subpoena information, and less direct power of
enforcement.

8.6 Benefits of using ADR

The benefits of ADR include the following:

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(a) Voluntary nature of processes: All ADR methods are voluntary in nature i.e.
No one is coerced into using ADR procedures. Parties choose to use ADR
procedures because they believe that ADR holds the potential for better
settlements than those obtained through litigation;
(b) Expedited procedures: All ADR procedures are less formal. This prevents
unnecessary delays and expedites the resolution process.;
(c) Active participation of the parties: Parties to the dispute actively participate
in the ;
(d) Confidential nature of Processes: Parties can participate in ADR procedures,
explore potential settlement options, and still protect their right to present
their best case in court at a later date without fear that data divulged in the
procedure will be used against them;
(e) Greater Flexibility in the Terms of Settlement: ADR procedures provide an
opportunity for parties to craft settlements that can better meet their
combined interests than would an imposed settlement by a third party. This
is because ADR enables parties to avoid the trap of deciding who is right or
who is wrong, and to focus on the development of workable and acceptable
solutions. ADR procedures also provide greater flexibility in the parameters
of the issues under discussion and the scope of possible settlements.
Participants can "expand the pie" by developing settlements that address the
underlying causes of the dispute, rather than be constrained by a judicial
procedure that is limited to making judgments based on narrow points of
law;
(f) Savings in Time: With the significant delays in obtaining court dates, ADR
procedures offer expeditious opportunities to resolve disputes without
having to spend years in litigation. In many cases, where time is money and
where delayed settlements are extremely costly, a resolution developed
through the use of an ADR procedure may be the best alternative for a timely
resolution.
(g) Cost Savings: ADR procedures are generally less expensive than litigation.
Expenses can be lowered by limiting the costs of discovery, speeding up the
time between filing and settlement, and avoiding delay costs. These frontend
expenses are often the most costly components of legal costs. These savings

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are in turn passed on to the taxpayer. Relieving the burden on the courts
caused by unnecessary or inappropriate lawsuits can help save valuable
public resources.
8.7 Some ADR methods

(a) Negotiation
A negotiation is a formal discussion between parties who are trying to resolve their
dispute without the involvement of a third party. The discussion may be initiated
by any of the parties to the dispute and may take place at such venue and time as
may be agreed by all the affected parties.

Direct, face-to-face negotiation between the parties, without the use of a third
party, involves the exchange of offers and counteroffers and a mutual discussion of
the strengths and weaknesses of each party’s position. This method is usually most
effective if both parties have an incentive to reach an agreed settlement.

In order for any negotiation to succeed, the parties must:

• identify issues upon which they differ;
• disclose their respective needs and interests;
• identify possible settlement options;
• negotiate terms and conditions of agreement.
The aim is that each party should be in a better position than if they had not
negotiated.

(b) Conciliation

To conciliate is to make somebody less angry or to make somebody friendlier with

a view to “pacifying” the situation. The process of conciliation involves a conciliator
whose role is to calm parties to the dispute so that they can discuss or solve their
problems in a calm and successful manner. The conciliator does not make any
decision for the parties.

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(c) Mediation

Mediation is helpful when the parties are not making progress negotiating between
themselves. It is simply negotiation with the assistance of a neutral third party. The
neutral third party is called the mediator who should be impartial and acceptable
to both parties. His role is to assist or guide the parties in reaching agreement on a
mutually acceptable solution by creating a "safe" environment for the parties to
share information, address underlying problems, and vent emotions.

Although the mediator makes recommendations about the process, the parties
themselves make the important decisions about the problem-solving process and
the outcome. A successful mediation can give the parties the confidence in
themselves, each other, and consensual processes, to negotiate without a third
party in the future.

The main characteristic features of mediation include the following:

i. The aim of mediation is to reach at a decision that is ‘mutually beneficial’ to

all the parties to the dispute. It is not a ‘winner takes all situation’;
ii. Mediation is ‘consensual’ in nature: parties can only go to mediation if they
have all agreed that the dispute be referred to mediation;
iii. In mediation proceedings, parties themselves make the decision, not the
mediator;
iv. The mediator is appointed by the parties to the dispute and his/her role is
not to make the decision for the parties but to assist parties reach at a
decision;
v. A decision arising out of mediation proceedings is not binding and parties are
at liberty to abandon the proceedings at any stage before the decision is
made. vi. The venue, time and language for mediation proceedings are all
agreed by the parties themselves;
vii. Mediation proceedings are confidential in nature and may only be
disclosed with the express permission of all the parties concerned.
viii. Mediation proceedings are informal in nature when compared to
litigation.

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Court Annexed Mediation

Court annexed mediation has all the characteristics of the mediation just discussed
above. The only main difference between the two, as will be seen in due course, is
that court annexed mediation is invoked by an order of the court while ordinary
mediation is invoked by agreement between parties to the dispute.

Court annexed mediation was introduced to the Zambian Courts by the Washington
Superior Court through the assistance of USAID. The Zambian Court Annexed
Mediation system is therefore modeled along the lines of the Washington DC
Superior Court Mediation System.

It is important to state here that Court Annexed Mediation is not the only type of
mediation that exists or is practiced in Zambia. We have mediations that have no
connection whatsoever to the courts.

The statute that ushered Court annexed mediation in Zambia is the High Court
(Amendment) Rules21. The rules came into force in 1997. Subsequently, a group of
mediators was trained for purposes of taking conduct of some of the matters that
were before the High Court.

Referral of matter to mediation

Court annexed mediation is invoked by a Judge by way of referring the matter to

mediation. The Judge’s authority to refer the matter to mediation is found in Rule
4 of the High Court (Amendment) Rules, SI No. 71 of 1997. The Rule provides as
follows:

21
Statutory Instrument No. 71 of 1997

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“Except for cases involving constitutional issues or the liberty of an individual

or an injunction or where the trial judge considers the case to be unsuitable
for referral, every action may, upon being set down for trial, be referred by
the trial judge for mediation and where the mediation fails the trial judge
shall summon the parties to fix a hearing date. The referral order shall be in
form 28A in the First Schedule, set out in the Appendix to these Rules”.

From the rule reproduced above, it is clear that it is the judge and not the parties
who makes the decision whether or not to refer the matter to mediation. In this
sense, it might be argued that court annexed mediation is not voluntary since
parties may not have a choice but to oblige to the court’s order referring the matter
to mediation. To the country, however, court annexed mediation is voluntary in the
sense that although parties are obliged to attempt mediation once the judge has
referred the matter to mediation, they are not compelled to settle: they are merely
compelled to attend the mediation because the referral order is an order of the
Court. Kelvin hang’ndu

Any matter referred to mediation, if not settled within sixty (60) days of the referral
to the mediator, is taken back to the trial judge.

(d) Arbitration

The essence of arbitration is that a third party renders an opinion about how the
dispute should be settled. The arbitration award (i.e. the decision of the arbitrator)
can be binding or non-binding, depending on the contract or other agreement of
the parties.

In binding arbitration, the parties select an arbitrator or panel of arbitrators who

help design the arbitration process, conduct a hearing, evaluate the evidence and
make an award. The award is then binding on the parties and may be entered and
enforced as a judgment by the court. There is very limited opportunity to appeal an
arbitration award.

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Non-binding arbitration is identical to binding arbitration except that the parties

are not bound by the result and either party still has the option to proceed to court
if they do not accept the arbitration award.

i. Agreement to arbitrate
Parties may only go to arbitration if they have voluntarily agreed that their dispute
will be resolved through arbitration. The parties’ voluntary agreement for their
dispute to be resolved is called an ‘agreement to arbitrate’. An agreement to
arbitrate may take the form of a clause in the contract or a separate agreement.

ii. Arbitration hearing

Typically, an arbitration hearing proceeds in the same way as a trial before a judge
except that in the case of an arbitration hearing, the proceedings are not conducted
in the courtroom and the strict rules of evidence and procedure are not followed.

The following are the characteristic features of proceedings relating to binding

arbitration:

• There is formal presentation of each party’s case, much like a trial, though
not necessarily done in a courtroom. The Arbitrator controls the parties’ case
presentation and the reliability of the evidence presented;
• During the presentation of the case, strict rules of evidence and procedure
may not be followed;
• Each party’s evidence is presented by way of documents, depositions,
affidavits or oral testimony of witnesses, with full cross-examination.
• The Arbitration panel consists of one to three arbitrators;
• Unlike mediation proceedings during which private conversations between
the parties and between a party and the mediator are not uncommon,
private conversations between parties and the arbitrators are forbidden;
• The arbitration panel has full responsibility for rendering justice on the facts
and law and its award is binding and enforceable in the same as a judgement
of the court.

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Evidently, therefore, an arbitration hearing is a modified form of trial which does

not use a traditional judge. Consequently, the cost and time savings in arbitration
are usually not as significant as the savings provided by other forms of ADR.

It must be noted that Arbitrators are usually selected on the basis of their expertise
in the area of dispute. For example, an arbitration panel for a construction contract
dispute might include an engineer, a contractor and an attorney.

iii. Arbitral award

The decision of the Arbitrator or panel of arbitrators is called an ‘award’. The award
must be in writing and signed by the arbitrator or arbitrators where they are more
than one. Every award is supposed to contain the reasons advanced for the decision
of the arbitrator or panel of arbitrators.

iv. Arbitration in Zambia

In Zambia, Arbitration is governed by the Arbitration Act No. 19 of 2000. In terms
of section 6 of the Act, the following matters are not subject to arbitration:

i. An agreement that is contrary to public policy; ii. A dispute which in terms of

any law may not be determined by arbitration;

iii. A criminal matter or proceeding except if permitted by law or the Court

grants leave for arbitration to take place; iv. A matrimonial cause;

v. A matter incidental to a matrimonial cause unless the Court grants leave for
arbitration to take place;

vi. A matter involving the determination of paternity, maternity or parentage

of a person; or

vii. A matter involving the interests of a minor or other person under legal
incapacity unless such minor or person is represented by a competent
person.

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In terms of section 10 of the Act, a Court before which legal proceedings are
brought in relation to a matter that is subject of an arbitration agreement is obliged
to stay the proceedings and refer the matter to arbitration if either party to the
proceedings so requests. The rationale behind the provision is that if parties have
voluntarily agreed to submit to arbitration, then they should only be allowed to
come to court if they have attempted and failed to resolve their dispute through
arbitration.
And in terms of section 20(1) of the Act, an award made by an arbitrator or
arbitration tribunal pursuant to an arbitration agreement is, subject to the right of
either party to challenge the award by way of any process specified under the Act,
final and binding on both parties and on any person claiming through or under
them.

8.5 Similarities between mediation and arbitration

Similarities between mediation and arbitration include the following:

i. Both mediation and arbitration are alternative dispute resolution (ADR)

methods;
ii. Both mediation and arbitration are considerably cheaper and take less time
to conclude compared to litigation;
iii. In both mediation and arbitration, parties themselves choose who shall be
‘mediator’ or ‘arbitrator(s)’; iv. In both mediation and arbitration, parties
have a say regarding the venue for and the language to be used during the
proceedings;
v. Both mediation and arbitration proceedings are considerably informal
compared to litigation proceedings.
8.6 Differences between mediation and arbitration

Differences between mediation and arbitration include the following:

i. In mediation proceedings, the role of the mediator is to facilitate decision

making by the parties. The parties themselves, and not the mediator, make
the decision. In arbitration proceedings, on the other hand, the arbitrator
(and not the parties) makes the decision;

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ii. In mediation proceedings, either party is at liberty to abandon the

proceedings at any stage including just before the mediation settlement is
signed. On the other hand, parties to arbitration proceedings are bound to
continue with the proceedings until the arbitrator announces his or her
award;
iii. A mediation settlement is not binding on the parties to the mediation
proceedings while an arbitral award is binding to parties to the arbitral
proceedings;
iv. A mediator need not be a professional lawyer, though they usually are. On
the other hand, an arbitrator is usually a professional lawyer or judge.
8.7 Administrative Tribunals

Administrative tribunals are authorities outside the ordinary court system, which
interpret and apply the laws when acts of public administration are questioned in
formal suits by the courts or by other established methods. In other words, they
are agencies created by specific enactments to adjudicate upon disputes that may
arise in the course of implementation of the provisions of relevant enactments.
Administrative tribunals resolve, in the main,
• disputes between a private citizen and a central government department,
such as claims to social security benefits;
• disputes which require the application of specialised knowledge or expertise,
such as the assessment of compensation following the compulsory
acquisition of land;
• other disputes which by their nature or quantity are considered unsuitable
for ordinary courts, such as fixing a fair rent or rates for premises.

They are not a court nor are they an executive body. Rather they are a mixture of
both. They are judicial in the sense that the tribunals have to decide facts and apply
them impartially, without considering executive policy. They are administrative
because the reasons for preferring them to the ordinary courts of law are
administrative reasons.

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They are established by the executive in accordance with statutory provisions. They
are required to act judicially and perform quasi-judicial functions. The proceedings
are deemed to be judicial proceedings and in certain procedural matters they have
powers of a civil court.

Administrative tribunals are not bound by the elaborate rules of evidence or

procedures governing the ordinary courts. They are independent bodies and are
only required to follow the procedure prescribed by the relevant law and observe
the principles of 'Natural Justice'. They do not follow the technicalities of rules of
procedure and evidence. For this reason, they are sometimes more appropriately
defined as specially constituted authorities established by law to settle the disputes
between the citizen and administration.

8.7.1 Reasons for creation of tribunals

There are many reasons for the growth of administrative tribunals. Some of these
are:
• Administrative tribunals are a by-product of the Welfare State. In the 18th
and 19th centuries when 'laissez faire' theory held sway, the law courts
emerged as the custodians of the rights and liberties of the individual
citizens. Sometimes they protected the rights of all citizens at the cost of
state authority. With the emergence of Welfare State, social interest began
to be given precedence over the individual rights. With the development of
collective control over the conditions of employment, manner of living and
the elementary necessities of the people, there has arisen the need for a
technique of adjudication better fitted to respond to the social requirements
of the time than the elaborate and costly system of decision making provided
by the courts of law. In brief, 'judicialisation of administration' proved a
potential instrument for enforcing social policy and legislation.
• Secondly, as a result of rapid growth and expansion of industry, trade and
commerce, ordinary law courts are not in a position to cope up with the
work-load. The result is that there are enormous delays in deciding court
cases. Therefore, a number of administrative tribunals have been established

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which can do the work more rapidly, more cheaply and more efficiently than
the ordinary courts.
• Thirdly, ordinary courts of law, on account of their elaborate procedures,
legalistic forms and attitudes can hardly render justice to the parties
concerned, in technical cases. Ordinary judges, brought up in the traditions
of law and jurisprudence, are not capable enough to understand technical
problems, which crop up in the wake of modem complex economic and social
processes. Only administrators having expert knowledge can tackle such
problems judiciously. To meet this requirement, a number of administrative
tribunals have come into existence.
• Fourthly, a good number of situations are such that they require quick and
firm action. Otherwise the interests of-the people may be jeopardized. For
instance, ensuring of safety measures in local mines, prevention of illegal
transactions in foreign exchange and unfair business practices necessitate
prompt action. Such cases, if are to be dealt with in the ordinary courts of
law, would cause immense loss to the state exchequer and undermine
national interest. However, the administrative courts presided over by the
experts would ensure prompt and fair action.

8.7.2 Advantages and disadvantages of administrative tribunals

(a) Advantages

In the words of W.A. Robson, the advantages of administrative tribunals are

“cheapness and speed with which they usually work, the technical knowledge
and experience which they make available for the discharge of judicial functions
in special fields, the assistance which they lend to the efficient conduct of public
administration, and the ability they possess to lay down new standards and to
promote a policy of social improvement". These may be elaborated as follows:

• In administrative tribunals, cases are heard and determined quickly

and speedily as compared to cases in ordinary courts;

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• The administration of justice in administrative tribunals is less

expensive(i.e. relatively cheap) compared to ordinary courts;
• More accessible than ordinary courts
• Staffed by experts with specialised knowledge
• Characterised by an informal atmosphere and procedures
• Administrative tribunals gives the much needed relief to ordinary
courts already overburdened by ordinary suits

(b) Disadvantages

• Administrative tribunals are not always independent of Government

especially that the effectiveness of their operations depends on how
much funding they receive from Government through their parent
ministry;
• There is no general right of appeal against the decision of the tribunal:
it all depends on the particular statute creating the tribunal;
• Administrative tribunals are not bound to follow any of their own
precedent although they are bound to follow precedents from
ordinary courts. This, to some extent, makes it impossible to predict
the course of future decisions.

8.8 Types of Administrative tribunals in Zambia

8.8.1 Lands Tribunal Lands
Tribunal
Lands Act No. 29 of 1995, 20 of 1996 – Chapter 184
The Land Tribunal is established by Part IV of the Lands Act, Cap 184 of the laws of
Zambia. The provisions of Part IV of the Lands Act are as follows:

Part IV
The Lands Tribunal
20(1) There is hereby established a Lands Tribunal.

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(2) The Tribunal shall consist of the following members who shall be
appointed by the Minister:
(a) a Chairman who shall be qualified to be a judge of the High Court;
(b) a Deputy Chairman who shall be qualified to be appointed as
a judge of the High Court;
(c) an advocate from the Attorney-General’s Chambers;
(d) a registered town planner;
(e) a registered land surveyor;
(f) a registered valuation surveyor; and
(g) not more than three persons from the public and private sectors.
(3) The members referred to in paragraph (a) and (b) of subsection (2)
shall be appointed after consultation with the Judicial Service
Commission.
(4) The members of the Tribunal shall be appointed on such terms and
conditions as may be specified in their letters of appointment.
21 The Tribunal may appoint persons who have ability and experience in
land, agriculture, commerce or other relevant professional
qualifications as assessors for purposes of assisting it in the determination of any
matter under this Act. 22 The Tribunal shall have jurisdiction to –
(a) inquire into and make awards and decisions in any dispute
relating to land under this Act;
(b) to inquire into, and make awards and decisions relating to any
dispute of compensation to be paid under this Act;

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(c) generally to inquire and adjudicate upon any matter affecting

the land rights and obligations, under this Act, of any person or
the Government; and
(d) to perform such acts and carry out such duties as may be
prescribed under this Act or any other written law.
23(1) The Chairman or the Deputy Chairman shall preside over the sittings
of the Tribunal.
(2) The Tribunal, when hearing any matter, shall be duly constituted if n it
consists of five members which number shall include either the
Chairman or the Deputy Chairman.
(3) The determination of any matter before the Tribunal shall be
according to the opinion of the majority of the members considering
the matter.
(4) A member of the Tribunal or an assessor shall not sit at a hearing of
the Tribunal if he has any interest direct or indirect, personal or
pecuniary, in any matter before the Tribunal.
(5) The Tribunal shall not be bound by the rules of evidence applied in civil
proceedings.
24 The Chief Justice may, be statutory instrument, make rules – (a)
regulating the procedure of the Tribunal; and
(b) prescribing the procedure for the summoning and appearance of
witnesses and the production of any document or other
evidence before the Tribunal.
25 A person appearing as a party before the Tribunal may appear in person or
through a legal practitioner at his own expense.

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26 If the Tribunal is satisfied that any application to the Tribunal is frivolous or

vexatious, it may order the applicant to pay his costs, that of the other party
and that of the Government in connection with the proceedings.
27 The expenses and costs of the Tribunal shall be paid out of funds
appropriated by Parliament for the performance of the Tribunal’s functions
under this Act.
28 The Ministry responsible for legal affairs shall provide the necessary
secretarial and accounting assistance to the Tribunal to enable the Tribunal
to perform its functions under this Act.
29 Any person aggrieved by any award, declaration or decision of the Tribunal
may within thirty days appeal to the Supreme Court.

8.8.2 Revenue Appeals Tribunal

It is established pursuant to the Revenue Appeals Tribunal – Act No. 11 of

1998. Before 1998, three distinct Appeals Courts existed in relation to tax
issues. There was an income tax Appeals Court, tariff Appeal Court and a
Value Added Tax Appeal Court. At that time there were different
departments collecting revenue. With the merging of the departments
under Zambia Revenue Authority (ZRA) it was decided to rationalize the
appeal structure.

The rationalization of the appeal structure brought in existence the Revenue

Appeals Tribunal. Both tax payers and ZRA can appeal to the Tribunal after
exhausting the internal appeal mechanisms. The appeal must be lodged
within thirty days. The procedure is much simpler than that in the courts and

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although the Tribunal is chaired by a senior lawyer, accountants usually

appear on behalf of their clients.

Sittings of the Tribunal are held in camera to ensure the privacy of the
parties. Matters are set for hearing within 6 weeks and disposed off in three
months.

Rulings of the Tribunal are published in the Government Gazette. Appeals

from the Tribunal go to the High Court.
NOTE: Other than the Lands Tribunal and the Revenue Appeals Tribunal, there also
exists the Town and Country Planning Tribunal and the Rating Tribunal

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