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Consolidated Constitutional LAW Notes 2020 UNZA

Law (University of Zambia)

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O’Brien Kaaba, LLB, LLM, LLD CONSTITUTIONAL LAW CLASS NOTES, UNZA

THE UNIVERSITY OF ZAMBIA

SCHOOL OF LAW

LPU 2951 CONSTITUTIONAL LAW

CLASS NOTES

COMPILED BY

DR. O’BRIEN KAABA

MAY 2020

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O’Brien Kaaba, LLB, LLM, LLD CONSTITUTIONAL LAW CLASS NOTES, UNZA

INTRODUCTION AND SCOPE OF CONSTITUTIONAL LAW

What is a constitution?

In lay terms, a constitution is a set of rules which govern an organization. Every organization, whether social club,
trade union or nation state, which has defined objectives and departments or offices established to accomplish
those objectives, needs a constitution to define the powers, rights and duties of the organization’s members. This
set of rules, in addition to the regulating the internal working of the organization, will also make provision for the
manner in which the organization relates to outside bodies. It can therefore be said that a constitution looks both
internal and external regulation of the body to which it relates.

In addition to the function of defining powers and duties and relationships with other bodies, a constitution fulfills
two related purposes- those of definition and evaluation. A constitution will define the manner in which the rules
in fact operate and dictate what ought to happen in a given situation (Hilaire Barnett)

Definitions by Other scholars:

KC Wheare defines the constitution of a state as:

“…the whole system of government of a country, the collection of rules which establish and regulate or govern the
government.”

Thomas Paine defines it as:

“A constitution is not the act of a government, but of a people constituting a government, and a government
without a constitution is power without right…A constitution is a thing antecedent to a government; and a
government is only the creature of a constitution.”

Aristotle defines a constitution as: “…an organization of offices in a state, by which the method of their distribution
is fixed, the sovereign authority is determined, and the nature of the end to be pursued by the association and all
its members is prescribed,”

“It is the supreme and fundamental law that sets the state’s basic structure including the exercise of political
power and the relationship between political entities and between the state and the people,” Muna Ndulo

Functions of a Constitution

It can be seen that the constitution performs the following functions:

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 Provides a legal framework for the operation of government;

 It defines the ultimate sources of legal authority and provides for the foundations of the public law
system, that is, the Constitution is the law behind the law (see the preamble (“we the people”); article
1(1) (supremacy of the constitution); and article 5(1) sovereign authority vests in the people));
 It is a source of legitimacy for the state and its activities;
 It indicates the political and legal parameters of the individual’s interaction with the state;
 It operates as a manifesto, a confession of faith.
 It establishes the government, the administration and other organs of state, confers power, imposes
restrictions on the exercise of that power, indicates which bodies should resolve conflicts, and provides
procedures and standards for dispute resolution.

What a Constitution Contains

A Preamble

 Usually included for symbolic and ideological purposes.

 Usually written in grand rhetorical style and glorifying the country’s history, its struggles and its
champions.
 Preamble generally not considered to be binding or enforceable.

A Chart of the State

 Deals with the operational system of the state.

 Concerned with the way public authority is distributed, exercised and controlled.
 Also concerned about the accession to and succession in office of those responsible for its exercise.

Amending Provision

 The amending provision is like a safety valve, which helps the constitution to release pressure which
might threaten its violent destruction.
 It allows the present generation to modify the ground rules which it has inherited from the past without
rejecting the whole system of government.
 The provision usually has inbuilt mechanism to prevent arbitrary amendment or destruction of the
constitution
 See Article 79 of the Zambian Constitution.

Bill of Rights

 Gives legal protection for human rights;

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 Limits state power in relation to its citizens;

 Usually civil political rights, but modern constitutions now contain economic, social and cultural rights.

Financial Provisions

 About how money is to be collected

 How money should be spend
 And controls over entities that handle public funds (oversight)

Scope of constitutional law

Constitutional law is concerned with the role and powers of the institutions within the state and with the
relationship between the citizen and the state. It is a living and dynamic document or organism which at any point
in time must reflect the moral and political values of the people it governs and, therefore, it must be appreciated
within the socio-political context within which it operates.

Classifying Constitutions

There are generally about six classifications of constitutions:

a) Written and unwritten;

b) Rigid and flexible;
c) Supreme and subordinate;
d) Federal and unitary;
e) Separated powers and fused powers; and
f) Republican and monarchical.

Written and unwritten

A written document is one contained within a single document or a series of documents, with or without
amendments, defining the basic rules of the state. The modern origins of written constitutions lie in the American
War of Independence (1775-1783) and the French Revolution (1789).

Unwritten constitutions are usually not set out in a single document but contained in a series of statutes, rules and
conventions. The United Kingdom, Israel and New Zealand are examples of countries without written
constitutions.

Rigid and Flexible Constitutions

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This relates on the issue as to whether or not a constitution can be amended with ease. In constitutions, all or
some provisions may be entrenched, that is, the constitution stipulates stringent procedures to be followed in any
attempt to amend the provision. In Zambia the Bill of Rights and Article 79 are entrenched.

Supreme and subordinate constitutions

A supreme constitution refers to a state in which the legislative powers of the governing body are unlimited; while
a subordinate constitution is one whose powers are limited by some higher authority.

Federal and Unitary Constitutions

The common feature of all federal states (e.g., USA, Nigeria, Canada, Australia, Ethiopia and Malaysia) is the
sharing of power between the center and region- each having an area of exclusive power, other powers being
shared on some defined basis. Equally common of all federal states is the idea that the written constitution is
sovereign over government and legislature and that their respective powers are not only defined by the
constitution but also controlled by the constitution, which is interpreted and upheld by the Supreme Court or a
Constitutional Court. In a unitary government all power vests at the center and regions do not enjoy any (semi-
)autonomy.

Separated powers and fused powers

The essence of the doctrine of separation of powers is that the powers vested in the principal institutions of the
state (legislature, executive and judiciary) should not be concentrated in the hands of any one institution. The
object is to provide checks and balances and prevent the potential of tyranny. The opposite of this is a totalitarian
state where a single figure or single body is vested with the sole power to enact laws, administer the state and
adjudicate disputes.

Republican and monarchical Constitutions

A republic usually has its figurehead a democratically elected president, answerable to the people and to the
constitution. In a monarch, the head of state is unelected and office is usually inherited Swaziland seems to be the
last standing absolute monarchy in Africa. All acts of government are done in the name of the monarch. In
constitutional monarchs (such as the UK), the monarch only enjoys little practical power as this is exercised by an
elected government.

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SOURCES OF CONSTITUTIONAL LAW

Legislation
Acts of Parliament and delegated legislation (i.e. statutory instruments promulgated by ministers and other
authorities upon whom parliament has conferred power to legislate) are an important source of constitutional law.
Even where a formal constitution exists, it cannot be comprehensive enough to cover every aspect of
constitutional law. Often the constitution lays down general rules which have to be elaborated in statutes and
delegated legislation.

Judicial precedents
The decisions of the courts interpreting the constitution and other related legislative enactments. Under the
doctrine of precedent, or stare decisis, these decisions are binding on inferior courts and may, according to the
relative status of the courts in question, bind other superior courts.

Authoritative opinions
Generally, no legal textbook has intrinsic authority as a source of law: the authority of the most eminent text-book
is confined to the extent to which a court considers that it accurately reproduces the law as enacted by the
legislature or decided by earlier courts. Where a statute has not yet been judicially interpreted, or where no court
has pronounced authoritatively on a matter, then the opinions of text-book writers and academic authors may be
of great value to the legal profession, as well as to the court when a case arises for decision.

Formal constitutions (the constitution itself)

Most countries, including Zambia, have a formal written constitution, which is the most important source of
constitutional law, from which all other laws derive their authority.

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BASIC CONCEPTS OF CONSTITUTIONAL LAW

Constitutionalism

The concept of constitutionalism derives from the idea of a written constitution. The current concepts of a written
constitution for a nation-state have roots in the eighteenth century in the context of the French and American
revolutions.1 What is distinct about the idea of a written constitution is that it is considered the fundamental law
that not only establishes the government but regulates the exercise of governmental power by prescribing limits to
such power. Liolos has argued that this entails that the constitution has two elements: the functional and
aspirational.2 The functional elements of the constitution create the organs of the state and the rules that govern
them, while the aspirational elements articulate the nation-state’s principles and values such as social justice,
transparency and accountability which every well-ordered state aims at achieving.

Charles Manga Fombad has argued that the concept of constitutionalism today can be said to encompass the idea
that a government should not only be sufficiently limited in a way that protects its citizens from arbitrary rule but
also that such a government should be able to operate efficiently and, in a way, that it can be effectively compelled
to operate within its constitutional limitations.
Constitutionalism combines the idea of a government limited in its actions and accountable to its citizens for its
actions. Two ideas are therefore fundamental o constitutionalism. First, the existence of certain limitations imposed
on the state particularly in its relations with citizens, based on certain clearly defined set of important values.
Secondly, the existence of a clearly defined mechanism for ensuring that the limitations on the government are
legally enforceable. In the broad sense, constitutionalism has certain irreducible and possibly minimum content of
values with a well-defined process and procedural mechanisms to hold government accountable. The core elements
which any constitution must possess to have any prospect of promoting constitutionalism are:
i. Provisions that recognize and protect fundamental rights and freedoms;
ii. Provisions for the separation of powers
iii. Provisions providing for an independent judiciary;
iv. Provisions dealing with the control of the constitutionality of laws;
v. Provisions controlling amendment of the constitution; and
vi. Provisions providing for institutions that support democracy.

1
Albert HY Chen, ‘The Achievement of Constitutionalism in Asia: Moving Beyond “Constitutions without
Constitutionalism”’ in Albert HY Chen (ed), Constitutionalism in Asia in Early Twenty-First Century (Cambridge
University Press 2014) 4
2
John Liolos, ‘Erecting New Constitutional Cultures: The Problems and Promise of Constitutionalism Post-Arab
Spring’ (2013) 36 Boston College International and Comparative Law Review 2

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“The philosophy behind constitutionalism is the need to design constitutions that are not merely programmatic,
shams or ornamental documents that can be easily manipulated by politicians but rather documents that can
promote respect for the rule of law and democracy.” Fombad

The concept of constitutionalism expresses the idea that arbitrary political power should be curtailed. Although
constitutionalism recognises the necessity for government it insists upon a limitation being placed upon its powers.
In essence it connotes a 'limitation' on government; it is the antithesis of arbitrary rule.
According to Professor De Vos, constitutionalism has the following basic characteristics:
1) Constitutionalism is concerned with the formal and legal distribution of power within a given political
community in which a government is ordinarily established in terms of a written constitution.
2) Constitutionalism provides for the establishment of institutions of governance, such as the legislature, the
executive and the judiciary.
3) Constitutionalism brings about the creation of binding rules or laws for the regulation of the political
community, its institutions of governance and the governed.
4) Constitutionalism plays an important role in determining the nature and basis of relations that exist
between institutions of governance and those they govern.
Implicit in all these points is that constitutionalism prescribes limits on the exercise of state power and provides
mechanisms to ensure that the exercise of power does not exceed the limits set by the constitution.

Rule of law

The most well-known articulation of the rule of law is that of Lord Bingham. Lord Bingham grappled with the
challenge of defining the rule of law by breaking it up into eight ‘sub-rules’. His discussion of these sub-rules has
been one of the most influential modern discussions of the rule of law. The sub-rules are as follows.

1. The law must be accessible and, so far as possible, intelligible, clear and predictable. Why are these
requirements important? Bingham gives three reasons: first, so that we know what we might face a criminal
penalty for; second, so we can claim our rights and understand our obligations; third, because successful
conduct of trade and commerce depends on accessible rules. Predictability is a very important aspect of the rule
of law. In dictatorships, citizens are often left uncertain as to whether or not a particular action will be subject
to criminal punishment – the power of the state is enhanced by the unpredictability. Particular difficulties arise
when laws are made to apply retrospectively (to actions which have already happened).

2. Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise
of discretion.

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3. The laws of the land should apply equally to all, save to the extent that objective differences require
differentiation. n the criminal law children and those without mental capacity are treated differently in terms
of procedures for investigation and trial as well as in sentencing. Children under 8 are treated as doli incapax –
legally incapable of committing a crime.

4. Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for
the purpose for which the powers were conferred, without exceeding the limits of such powers and not
unreasonably. Decision making can be challenged if there is bias or individuals are not given the right to a fair
hearing.

5. The law must afford adequate protection of fundamental rights.

6. Means must be provided for resolving, without prohibitive cost or undue delay, bona fide civil disputes which
the parties themselves are unable to resolve.

7. Adjudicative procedures provided by the state should be fair.

8. The rule of law requires compliance by the state with its obligations in international law as in national law.

AV Dicey, in his book, Introduction to the Study of the Law of the Constitution (1885), suggested the existence of
three distinct elements which together created the rule of law:

1. An absence of arbitrary power on the part of the state: the extent of the state’s power, and the way in
which it exercises such power, is limited and controlled by law. Such control is aimed at preventing the state
from acquiring and using wide discretionary powers, for as Dicey correctly recognized, the problem with
discretion is that it can be exercised in an arbitrary manner.
2. Equality before the law: the fact that no person is above the law, irrespective of rank or class. This was
linked to the fact that functionaries of the state are subject to the same law and legal procedures as private
citizens.
3. Supremacy of ordinary law: the fact that the English constitution was the outcome of ordinary law of the
land and was based on the provision of remedies b the courts rather than on the declaration of the rights
in the form of a written constitution. Dicey was opposed to codification of the constitution.

FA von Hayek, followed Dicey. In his book, The Road to Serfdom (1971), argued that: “Stripped of all technicalities
the Rule of Law means that government in all its actions is bound by rules fixed and announced beforehand.” He
further argued that “The Rule of Law implies limits on the scope of legislation, it restricts it to the kind of general
rules known as formal law; and excludes legislation directly aimed at particular people.”

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This means that law should not be particular in content or application, but should be general in nature, applying to
all and benefitting none in particular.

Joseph Raz attempted to provide a definition of rule of law that accommodates state discretion without
arbitrariness. Raz argues that the basic requirement from which the wider idea of the Rule of Law emerged is the
requirement that the law must be capable of guiding the individual’s behavior. He stated some of the most important
principles that may be derived from this general rule:

1. Law should be prospective rather than retroactive. People cannot be guided by or expected to obey laws
which have not as yet been introduced.
2. Laws should be stable and should not be changed too frequently as this might lead to confusion as to what
was actually covered by the law;
3. There should be clear rules and procedures for making laws;
4. The independence of the judiciary has to be guaranteed to ensure that they are free to decide cases in line
with the law and not in response to any external pressure;
5. The principles of natural justice should be observed, requiring an open and fair hearing to be given to all
parties to proceedings;
6. The courts should have the power to review the way in which the other principles are implemented to
ensure that they are being operated as demanded by the rule of law;
7. The courts should be easily accessible as they remain at the heart of the idea of making discretion subject
to legal control; and
8. The discretion of crime preventing agencies should not be allowed to pervert the law.

(What is the difference between constitutionalism and rule of law?)

Checks and balances

However, the concept of checks and balances presupposes that a specific function is assigned primarily to a given
organ subject to a power of limited interference by another organ to ensure that each organ keeps within the sphere
delimited to it. Thus, the executive might be empowered to veto legislation or to dissolve the legislature, and the
legislature to impeach the chief executive, to approve the appointment of certain other top state functionaries, to
criticize and censor the executive or any member of it or, as a final weapon, to bring down the government.

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The idea of checks and balances presupposes that a specific function is assigned primarily to a given organ, subject
to a power of limited interference by another organ to ensure that each organ keeps within the sphere delimited to
it.
Power may be limited by dividing it, not among different organs of the same government, but among different
territorial unit governments (Nwabueze).

Supremacy of the constitution

According to Ben Nwabueze, a constitution is, or is supposed to be, the product of the exercise of the constituent
power inherent in any people. It is an original, constituent act, from which all other legislative acts derive their
authority.

So, what is the basis of the supremacy of the Zambian constitution considering that it has never been adopted as an
expression of popular will. Nwabueze argues that this is based on logical supremacy. That is, the constitution is
supreme because it is logically prior to the organs of the government. If the government and its organs are created
by the constitution, then logically they have only powers as are granted to them by the instrument from which they
derive their existence.
At a practical level, Nwabueze argues that the manner in which the constitution is adopted and enacted has an effect
on how in practice people venerate the superiority of the Constitution. Nwabueze argues that a parliament which
enacted a constitution is not likely to treat its own creation as being above it. There would naturally be a great
inclination on its part to disregard the constitutional limitations than would be the case if it had been a constituent
act of the people. To the people, the idea of a constitution enacted by parliament being supreme over its creator is
hardly intelligible. To them, the constitution is on exactly the same level as any other law enacted by parliament,
and is entitled to no greater or special protection (Nwabueze).

In the United States of America, Zambia and many other countries having a written constitution the constitution is
supreme. For example, Article 1(1) of the Constitution of Zambia, 1991 proclaims that the constitution is the supreme
law of Zambia if any other law is inconsistent with it that other law shall, to the extent of the inconsistency, be void.
(See the cases of Christine Mulundika and Others v The People (1995) ZR;

Thomas Mumba v The Attorney General(1984) ZR 38

Separation of powers

The doctrine of the separation of powers was developed further by Montesquieu, who was concerned with the
preservation of political liberty. He wrote that-

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Political liberty is to be found only when there is no abuse of power. But constant experience shows us that
every man invested with power is liable to abuse it, and to carry his authority as far as it will go....To prevent
this abuse, it is necessary from the nature of things that one power should be a check on another...When
the legislative and executive powers are united in the same person, or in the same body of magistrates,
there can be no liberty....Again, there is no liberty, if the judiciary power be not separated from the
legislative and executive. Were it joined with the legislature, the life and liberty of the subject would be
exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive
however, the judge might behave with violence and oppression. There would be an end to everything, were
the same man, or the same body, whether of the nobles or of the people, to exercise those three powers,
that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."

The concept of 'separation' may mean at least three different things:

(a) that the same persons should not form part of more than one of the three organs of government, for example,
that Ministers should not sit in Parliament;
(b) that one organ of government should not control or interfere with the work of another, for example, that the
judiciary should be independent of the executive;
(c) that one organ of government should not exercise the functions of another, for example, that ministers should
not have legislative powers.

It needs to be pointed out that in considering each of these aspects of separation, it must be remembered that
complete separation of powers is not possible either in theory or in practice.

Separation of powers has the following four elements:

1. There is the division of governmental power across the three branches, namely the legislative branch
(parliament), the executive branch (president) and the judicial branch (courts). The division is sometimes
referred to as trias politica.
2. The principal of separation of functions, which entails conferring distinct areas of responsibility and
authority on each of the three branches of government and preventing and preventing one branch from
taking responsibility for the tasks allocated to another branch.
3. The principle of separation of personnel entails that each branch of government must have assigned to it
specific persons who are responsible, often exclusively, for the performance or execution of that branch’s
function.
4. The provision of checks and balances entails that one branch can be held accountable by other branches to
check the exercise of power by that branch.

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Democracy

The concept of constitutionalism is linked with the constitution and the concept of democracy. The classic definition
of democracy was given by Abraham Lincoln in the immortal words: "A government of the people by the people for
the people." This definition emphasizes the popular basis of government, i.e. the idea that government rests upon
the consent of the governed, given by means of elections, in which the franchise is universal for both men and
women, and that it exists for their benefit. It must, however, be noted that free elections based upon universal
franchise do not of themselves alone create constitutional government.
Democracy has at least three sub-concepts:
a) Direct democracy: This is a system of governmence that entails direct participation on the part of the citizen,
rather than elected representatives, in the rule and decision making of their political community.
Historically, this is generally regarded as the purest form of democracy that comes closest to achieving the
rule of the people. Examples of provisions relating to direct democracy are provisions entitling individuals
to assemble and associate, as well as the requirements for a referendum (see article 79 of the Constitution).
b) Representative Democracy: This entails a system of government in which the members of a political
community participate indirectly through elected representatives in the governance of their community.
Citizens elected or select representatives to govern on their behalf for a limited period of time until the next
election.
c) Participatory democracy: A weakness of representative democracy is that it can disempower citizens.
Decisions can be made by leaders without taking the citizens’ concerns into account. There is therefore
need to counteract this potentially disempowering aspect of representative democracy. To achieve this,
constitutions often include requirements for citizens to be consulted prior to certain decisions being made.
It is about affording citizens an opportunity to be involve in the decision-making processes that affect their
lives. In a sense, it is a derivative of representative democracy and ensures that even when citizens entrust
leadership to representatives, they are not totally excluded from decision making processes that matter to
them.

Legitimacy of the Constitution

The legitimacy of the constitution is concerned with how to make it command the loyalty, obedience and
confidence of the people. It cannot be disputed that a major cause of the collapse of constitutional government in
many of the new states was the general lack of respect for the constitution among the populace and even among
the politicians themselves. The state itself is an alien, if also a beneficial creation; its existence is characterized by a
certain artificiality in the eyes of the people and it is remote from their lives and thought. (Nwabueze).

What this means is that a constitution should be generally understood by the people and be acceptable to them. A
constitution cannot hope to command loyalty, respect and confidence of the people otherwise (Nwabueze).

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The people must be made to identify themselves with the constitution. Without this sense of identification, of
attachment and involvement, a constitution would always remain a remote, artificial object, with no more real
existence than the paper on which it is written (Nwabueze).

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PARLIAMENTARY SYSTEM OF GOVERNMENT

Overview

 A parliamentary regime in the strict sense is one in which the only democratically legitimate institution is
parliament; in such a regime, the government's authority is completely dependent upon parliamentary
confidence.
 In contrast, in a presidential system an executive with considerable constitutional powers-generally
including full control of the composition of the cabinet and administration-is directly elected by the people
for a fixed term and is independent of parliamentary votes of confidence. He/she is not only the holder of
executive power but also the symbolic head of state and can be removed between elections only by the
drastic step of impeachment.
 In parliamentary systems, the government depends on the ongoing confidence of the assembly.

The Westminster Parliamentary System (As An Example of a Parliamentary System)

The main features of the system are the diffusion of executive power, the partial fusion of the organs of government,
and the responsibility of the executive to the legislature. These features are not necessarily present in each
parliamentary system. Some of these are unique to the Westminster model.

(1) Diffusion of Executive Power

Executive power under the Westminster system is diffused among various persons. The Queen is both the temporal
and spiritual head of State. The supreme executive authority is vested in her and the administration of the State is
conducted in her name. However, in practice the supreme executive authority is wielded by the Cabinet, a
Committee headed by the Prime Minister. The principal convention of the British constitution is that the Queen shall
exercise her formal legal powers only upon and in accordance with the advice of her Ministers, save in a few
exceptional situations.

However, the Queen has the right to:

a) be consulted,
b) the right to encourage,
c) to warn, and also

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d) the right to offer, on her own initiative, suggestions and advice to her Ministers even where she is obliged
in the last resort to accept the formal advice tendered to her. To be more precise, the Queen has the
conventional rights to receive Cabinet papers and minutes, to be adequately informed by the Prime
Minister (with whom she has regular weekly audiences) on matters of national policy, to receive Foreign
Office dispatches and telegrams and other state papers, and to be notified of proposed appointments and
awards to be made in her name so that she can express her views informally.
e) The Queen has the personal prerogative to appoint a Prime Minister. By convention, however, she must
appoint that person who is in the best position to receive the support of the majority in the House of
Commons. Where an election produces an absolute majority in the Commons for one party, the leader of
the party will be invited to become Prime Minister, and if he is already Prime Minister he will continue in
office. According to modern practice, a defeated Prime Minister resigns from office as soon as the result of
the election is known.

Relationship between the Prime Minister and the Cabinet

The Prime Minister and the Cabinet occupy key places at the heart of the political and governmental system. While
the Prime Minister provides the individual leadership of the majority party in the House of Commons, the Cabinet
provides the collective leadership of that party. It is only the Prime Minister and the Cabinet who can direct national
affairs in any systematic way, and make deliberate choices in government between competing political priorities.

Powers of Prime Minister in relation to the Cabinet

The Prime Minister is in a position to exercise a dominant influence over the Cabinet since he has powers which
other ministers do not have, however senior and experienced they may be:

(1) He effectively makes all appointments to ministerial office, whether within or outside the Cabinet. He may ask
ministers to resign, recommend to the Queen to dismiss them, move them to other offices. He settles the order of
precedence in the Cabinet. He may, if he wishes, name one of the Cabinet to be Deputy Prime Minister or Foreign
Secretary.
(2) The Prime Minister controls the machinery of central government in that he decides how the tasks of
government should be allocated to the different departments and whether departments should be created,
amalgamated or abolished.

(3) The PM is able to take interest in different areas of government from time to time and may indeed carry out his
policy through the agency of a minister whom he has appointed. Most Prime Ministers must take a special interest
in foreign affairs, the economy and defence. The Prime Minister may intervene personally in major pressing issues.

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In consultation with individual ministers he may take decisions or authorize them to be taken without waiting for
a cabinet meeting.
(4) The Prime Minister, by presiding at Cabinet Meetings, is able to control
Cabinet discussions and the process of decision-making by settling the order of business, deciding which items are
to be discussed and by taking the sense of the meeting rather than by counting the votes of Ministers.
(5) The Prime Minister has a more regular opportunity to present and defend the government's policies in
Parliament than other ministers. He/she is available for questioning in the Commons on Tuesdays and Thursdays
and he may choose when to intervene in debates. He/she is also in a position to control the government's
communications to the press and to disclose information about government decisions and cabinet business.
(6) Alone among cabinet ministers, he has regular meetings with the sovereign and is responsible for keeping the
sovereign informed of the cabinet's handling of affairs. In particular, he may recommend to the sovereign that a
general election be held; he is not required to discuss this first with the cabinet.

2) The Partial fusion of the Organs of Government

Executive Control of Law-Making.

In UK Parliament comprises the Queen, the House of Lords and the House of Commons. British constitutional
practice requires that holders of ministerial office should be members of either the Commons or the Lords. The
Cabinet largely controls parliament as it commands the time and programme of the House of Commons and pilots
all important legislation. It would be true to say, parliament legislates with the advice and consent of the cabinet.

Public Bills are introduced and piloted by a cabinet minister generally.

Moreover, all money Bills can only be introduced by a Minister in the Commons on behalf of the crown.
The Queen, by constitutional convention, will only assent or dissent to a bill on the advice of the Prime Minister and
his Cabinet. It is patent that the concurrence of the executive in legislation makes it in law an equal partner with the
legislative houses in the law-making process, since the concurrence of Parliament is also equally indispensable.

Separation of Judicial Power.

Under the British constitution judicial power is not recognised as existing independently of, and co-ordinate with,
the legislative sovereignty of parliament. In Britain the courts do not possess the power to question or declare invalid
legislative enactments. Parliament is the highest court in the land with power to make or unmake any law or to
create or abolish any rights, and so on.

The Responsibility of the Executive to the Legislature

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The Prime Minister and his Cabinet are collectively responsible to Parliament, and to the Commons in particular, for
the conduct of national affairs. Parliament controls Cabinet actions by questions, criticism and votes of censure.
Members of Parliament may ask for information by giving notice of questions, or may move for returns for supplying
information on matters of public importance, or get parliamentary committees or royal commissions appointed for
detailed investigation and reports. They criticise and discuss the governance of the country in various ways: by
moving amendments in replying to the Queen's Address or by cut motions on the vote for supply and by proposing
votes of no confidence in the government.

Collective Responsibility of the Cabinet

In modern times collective responsibility embodies a number of related aspects:
1. To Parliament and the nation Ministers must show a united front.
2. Although Ministers are individually responsible to Parliament for the conduct of their departments, if members
of the Commons seek to censure an individual minister for his policies, the government generally will rally to his
defence.
3. So long as a politician serves as a minister, he shares in the collective responsibility of all ministers in the sense
that he may not publicly criticise or dissociate himself from government policy. He is expected to support the
government by his vote in Parliament even if he dissented to the decision during Cabinet meetings.
4. The collective decisions of the Cabinet are communicated by or on behalf of the Prime Minister to the Sovereign.
Dissenting ministers do not have access to the Sovereign to communicate their views to her.
5. Since all ministers are required to support government policy once it has been settled, a government generally
considers it desirable that the process by which policy decisions are made should be kept secret. In principle, secrecy
attaches to Cabinet discussions, Cabinet documents and the proceedings of Cabinet committees, except where the
Cabinet or Prime Minister decides that disclosure shall be made. Similarly, in principle secrecy attaches to
communications between departments. It is obvious that, therefore, that collective responsibility serves a variety of
political purposes. First, as most governments are drawn from members of one party, it serves to reinforce party
unity and to prevent back-bench Members of Parliament from inquiring too far into the processes of government.
Secondly, it helps to maintain government's control over legislation and public expenditure and to contain public
disagreements between departments. Thirdly, it reinforces the traditional secrecy of the decision-making process
within government. Lastly, it helps to maintain the authority of the Prime Minister.

Individual Responsibility
The principle of individual responsibility is that a minister is answerable to
Parliament for the work of his/her department. Praise or blame for decisions must be addressed to the minister, not
to the permanent officials. This is the basis upon which much of the work of Parliament rests. In this regard

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government Bills are introduced into Parliament by ministers, who are responsible for the proposals they carry. In
debates on the work of individual departments, the minister concerned replies to the criticisms raised and seeks
usually to defend the department. A minister is expected to meet an MP’s reasonable requests for information and
may not plead ignorance of a matter within his competence of which previous notice has been given.

In Sum, the main characteristic features of the Westminster Model are:

1) Parliament is the sovereign or supreme law making body. Laws made by parliament cannot be undone by
any body or entity. Parliament has unlimited power (at least theoretically) to make any law it pleases.
2) The executive I drawn from the parliament. The prime minister and cabinet members are also members
of parliament. These, therefore, serve as both members of the executive and members of parliament.
There is no strict separation of powers, at least in terms of personnel (as is the case in the USA, for
example).
3) The courts under this model enjoy no power to decide on the constitutionality of legislation, although this
may review administrative decisions.

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PRESIDENTIAL SYSTEM OF GOVERNMENT

Presidential System
There are many definitions of a presidential system and some are extremely complex. For our purposes, a
presidential system is defined minimally and considered as one where the chief executive of the government or
state is elected directly by the people. It does not matter how nuanced the electoral rules guiding the elections may
be, provided the mandate comes directly from the electorate. The presidential system is the dominant model on
the African continent. With the exception of Lesotho, Swaziland and Morocco which are monarchs, there are just
about five countries which apply the parliamentary model (Botswana, Ethiopia, Libya, Mauritius and South Africa).
The rest of the Countries apply the presidential model where the president is directly elected by the people.

Two seminal articles of Juan J. Linz entitled “Democracy: Presidential or Parliamentary: Does it Make a Difference?” 3
and “The Perils of Presidentialism”4 are probably the most eminent scholarly discussion of the presidential system
(in contrast to the parliamentary system). In these works, Linz offers a comparative analysis between Presidential
system and Parliamentary systems and concludes that the presidential system is unsuited for long term national
stability and democracy. Linz’s analysis and debunking of presidentialism can be clustered as resting under the
following four themes which are discussed further below: full claim to democratic legitimacy; dual legitimacy; rigid
or fixed term of office; and zero sum game of winner-take-all.

1. Full Claim to Democratic Legitimacy

Linz considers that electing a president directly by the people is one of the advantages of the presidential system
as it clothes the president with democratic legitimacy, knowing that his or her mandate is not mediated by
parliament but wells up directly from the people who elected him or her. This sets the president in charge of the
government apparatus and constitutes government (cabinet) which is responsive to him/her and exercises full
control over it. Article 91(2) of the Zambian constitution, for example, states: “The executive authority of the state
vests in the President and, subject to this constitution, shall be exercised directly by the President or through public
officers or other persons appointed by the President.” This means that unlike in the collegiate executive of the Swiss
system, in Zambia there cannot be a concurrent vesting of the executive power in two or more persons of equal
authority.

Linz however notes that it is common place for presidents under this system to be elected, where there are several
candidates, by a slim majority and thus where this happens, the claim to democratic legitimacy upon which they
hold power as representatives of the people is manifestly nonexistent.5 To support this view, Linz cites the example

3
Linz “Democracy: Presidential and Parliamentary: Does it Make a Difference?” 1-88
4
Linz “The Perils of Presidentialism” 50- 69
5
Ibid

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of 1979 Chilean presidential elections where Allende was returned to office with a paltry 36.2 per cent of the popular
vote (whilst his closest opponent Allesandri got 34.9 percent). The fact that the president in such a case has not
been elected by the majority leads to tension in the country and in socially and ideologically divided societies, this
may lead to conflict. Even if some countries require a minimum percentage of votes (usually 50 per cent) for one
to be elected president, Linz considers this as negative as it invariably leads to the top two contenders and their
camps in a bitter battle. For a divided society, this easily leads to instability and is thus a major disadvantage of
the presidential system, as it leads to polarisation.6

Critique: Linz’s view that the presidential system (in contrast to the parliamentary system) leads to minority
presidents and leads to polarisation in society is, respectfully, incorrect. First of all, where a president in a
presidential system is elected by a simple majority, there is always the possibility of electing a minority president.
This was the case during the 2001 Zambian elections where the winner, Levy Mwanawasa, only garnered a paltry
29 percent of the popular vote.7 However, it must be noted that the simple majority is not inherent and a
necessary concomitant of the presidential system. It is possible to engineer a presidential system to ensure that
the president is elected by a qualified majority and to have that majority defused across the country. The new
Kenyan Constitution, for instance, requires that not only should the president be elected by more than half of all
the votes cast in an election but also that she/he should at least garner 25 per cent of the votes cast in each of the
more than half of the counties of Kenya.8 Similarly, the Nigerian Constitution requires that not only should the
winning candidate obtain the appropriate majority, but must also garner not less than one-quarter of the votes cast
in at least two-thirds of all the federal states including the federal capital.9 This potentially ensures that the president
has both majority and national support which reflects the national character.

In any case, minority leaders can be produced by the parliamentary system as well, contrary to the views of Linz.
For example, while the Labour Party during the 2005 UK elections won an overall majority of 55.1 percent of the
seats in the House of Commons, but by popular vote they only got 35.2 per cent of the votes.10 This actually meant
that even if the Labour Party had gained sufficient numbers of Members of Parliament to form government that
government actually rested on very thin public support.

The implication that the presidential system necessarily leads to polarisation, instability and conflict is also
incorrect. The early conflicts that assailed some Anglophone countries in the aftermath of independence are
attributable to the unsuitability of the parliamentary system actually. Nigeria, for example, attained
independence under the Westminster parliamentary style, under which “a cluster of ethnic groups from the north

6
Ibid
7
Anderson Kambela Mazoka and Others v. Levy Patrick Mwanawasa and Others Z.R 138 (s.C) L
SCZ/EP/01/02/03/2002
8
Article 138(4) The Constitution of Kenya 2010
9
See Articles 133 and 134 Constitution of the Federal Republic of Nigeria 1999
10
Electoral Reforms Society “The UK General Election of 5 May 2005: Report and Analysis” 2-6

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had managed to secure a majority of seats and shut all other groups out of power.” 11 This is considered to have
precipitated the military coup d’états of 1966 and the Biafra war of secession in Nigeria.12 Uganda is another
example of a parliamentary system that did not lead to democratic stability. In 1966, after years of power struggles
between the Prime Minister Milton Obote and the titular President Sir Edward Mutesa II ( the King of the Baganda
, Uganda’s largest ethnic group), Obote’s military forces invaded Mutesa’s palace and forced him into exile. Obote
then abrogated the Constitution and turned himself into an executive president.13 This brought about instability,
military coups and war that took Uganda many years to recover from.

2. Dual Legitimacy
The presidential system necessarily creates two spheres of power, both claiming a direct mandate from the
people. These are the president and the legislature, as each is elected directly by the people. Therefore, even if
the president is directly elected and entitled to full democratic legitimacy, the legislature too claims the same
legitimacy as it is also elected by the people. And since the legislature is elected separately, it is possible that it
could be dominated by another party or parties opposed to the president’s party. According to Linz, when the
legislature is dominated by another party opposed to the president, and this party is cohesive, disciplined and
ideologically different, this necessarily creates problems as to who truly represents the people. As Linz asked: “who
has the stronger claim to speak on behalf of the people: the president or the legislative majority that opposes his/her
policies?”14

In Linz’s view, when this happens, “no democratic principle exists to resolve disputes between the executive and the
legislature about which of the two actually represents the will of the people.” 15 He believes that even where
constitutional mechanisms exist to resolve the impasse, the mechanisms are likely to be “too complicated and aridly
legalistic” to be of much use to the electorate. As a result, in such cases the armed forces are always tempted to
interfere as ‘mediators.’

Critique: It is worth noting, as will be show in the next section that Linz also argues that the presidential system is
inclined to producing winner-take-all presidents as the race for running government is a zero - sum game. This is a
clear contradiction in Linz’s thoughts because where an election produces an executive and legislature controlled
by different parties, then clearly this is not a winner-take-all result. As Harowitz has observed, “it is difficult to
complain about inter-branch checks and balances and winner-take-all politics at the same time.”16 Where a party

11
Horowitz “Comparing Democratic Systems” 73- 79
12
ibid
13
Sewanyanga and Awori “Uganda: The Long and Uncertain road to Democracy” 465- 477
14
Linz “The Perils of Presidentialism” 50- 69
15
Ibid
16
Supra note 267, p 73- 79

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does not get the executive but wins the majority of seats in parliament that makes it more likely that there will
be a check on executive power.

In any case, the problem of dual legitimacy is not exclusive to presidentialism but has afflicted parliamentary
systems as well. This has been a common phenomenon in parliamentary systems with bicameral chambers and each
chamber is controlled by a different party.17 It is the duty of framers of a constitution to anticipate the possibility of
dual legitimacy in modern states and provide for mechanisms of avoiding or resolving competing claims.
Parliamentary systems with bicameral chambers such as Canada, Germany, and Japan have constitutional provisions
which give the upper houses more power over lower legislatures but are precluded from exercising a vote of
confidence against government.18

3. Rigid or fixed Term

Linz argues that under the presidential system, presidents are elected for a fixed term in office, after which they
have to seek re-election and in many cases presidential systems have term limits. He considers this as causing
rigidity to politics as the term cannot be modified, shortened or even prolonged. This turns the political process into
“broken discontinuous, rigidly determined periods without possibility for continuous readjustments as political,
social and economic events might require.”19 This, in Linz’s view, creates chaos if midterm an incumbent president
dies or is incapacitated. The successor, if subjected to a new election, may come from a party different from the
predecessor or even if he comes from the same party as the predecessor, he may simply implement his own policies.
Or where the successor was the vice president who was elected as a running mate, such a person is considered to
have been imposed by the president and may not have the support the president had. In fact, the president may
have resorted to him/her because he/she least presented a threat to the president’s hold on power.

Linz also argues that fixed term limits adversely affect how presidents implement policies to which their name is
tied. The limited time they have in power encourages a sense of urgency in implementing policies which may lead
to ill-conceived policy initiatives and hasty implementation. As a president is racing against time to build a legacy
for himself/herself, he/she is likely to spend money unwisely. Linz considers that in the presidential system, it is
difficult to remove an inept president as there is no vote of confidence, leaving only the drastic and difficult process
of impeachment.20

Critique: It is true that fixed terms, without a vote of confidence, in presidential systems can be a serious hindrance
to check or remove an ill-performing president. However, considering that we have defined a presidential system as
one where the president is directly elected by the electorate, which seems to be Linz’s definition as well, then the

17
Ibid
18
Ibid
19
Supra note 259
20
Ibid

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issue of fixed and limited terms is not peculiar to presidential systems. Under the South African Constitution, for
example, where the president is elected by parliament, the Constitution provides for fixed tenure and limited term
in office to two five year terms.21

4. Winner-takes-all
In Linz’s view the most important negative implication of presidentialism is that it turns elections into a zero-sum
game which consequently leads to winner-take-all electoral outcomes. Linz argues that in parliamentary systems,
the winning party may win a majority of seats but the minority would still have representation in parliament,
which could be used as a bargaining chip in coalition building. This is contrary to presidential system which only
produces one winner, however slender their victory was. The feeling of being elected directly by the people gives
the president a “sense of power and mission that might contrast with the limited plurality that elected him.” 22

As a zero-sum game, elections mark off winners and losers for the entire duration of the presidential term. This is
because of the rigidity and fixed term of office of the president whereby there is no possibility of expansion of
alliances, expansion of government support base or holding of new elections in response to major new
developments in society.

Critique: As already noted above, Linz’s argument that presidentialism as opposed to parliamentalism is more
inclined to produce winner-take-all electoral results is incorrect. In the UK, which has a long history of the
parliamentary system, for example, in the last three decades the ruling party often won a decisive majority seats
and obtained full control of government, despite winning far less than 50 per cent of the popular vote.23 During
the 2005 elections, as stated above, the Labour Party only got 32 per cent of the popular vote but managed to get
55.1 per cent of seats in Parliament. In fact, in Africa, many countries that inherited the Westminster parliamentary
model, such as Ghana and Nigeria, had to abandon it because it produced governments that were not inclusive, in
preference for the presidential system. The parliamentary system bequeathed upon Nigeria at independence, with
a titular president to mirror the British monarchy and a Prime Minister in charge of government, simply could not
hold and led to political anarchy. Distinguished Nigerian law scholar, Ben Nwabueze, reflecting on some of these
challenges stated:

Ministers in Nigeria never regarded themselves as the president’s ministers or the government as his own.
If anything, the Prime Minister regarded himself as the President’s superior and often behaved as such
towards him. There were hardly any attitudes of personal allegiance, of reverence or of courtesy towards
him; he lacked the attribute of kingly majesty in the eyes of the ministers. 24

21
See Section 88(2) Constitution of the Republic of South Africa 1996
22
Supra note 259
23
Mainwaring and Shugart “Juan Linz Presidentialism and Democracy: A Critical Appraisal” 449- 471
24
Nwabueze Constitutionalism in the Emergent States 57

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Such experiences indicate that most of the shortcomings that are often associated with the presidential system are
not inherent to it. They exist in other systems as well. What matters is to engineer the electoral system to specific
circumstances of each state.

However, where the presidential system is employed without adequate safeguards for inclusiveness, it is likely
that it will be inclined towards a winner-take-all result and precipitate conflict. This is likely to be the case where
the presidential system uses the simple majority method of electing presidents. It has been argued that the all-or-
nothing structure of the 1993 Nigerian presidential election made it possible for the military to annul the election
results. This is because the losers of the election felt that they had no immediate stake in the political outcome and,
therefore, readily acquiesced in the annulment of the election in the hope of being able to run again. 25 The same
argument is advanced for Jonas Savimbi’s resumption of conflict in Angola following his 1994 election loss to Jose
Edwardo dos Santos. Equally, it was the same with Dennis Sassou Nguesso’s military ousting of his successor, Pascal
Lessouba, following the Congolese presidential elections of 1992, as it was felt that losing a presidential election
meant losing all.26

(Source: O’Brien Kaaba, “The Challenge of Adjudicating Presidential Election Disputes in Africa: Exploring the
Viability of Establishing An African Supranational Elections Tribunal,” LLD Thesis, University of South Africa, 2015)

25
Ndulo “Presidentialism in Southern African States and Constitutional Restraint on Presidential Power”
26
Ibid

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CONSTITUTION MAKING AND MODES OF ADOPTING THE CONSTITUTION

The making of a constitution

Since the constitution is the basic law of the land from which all other laws derive their authority, the manner in
which the constitution is made has a bearing on its duration. In the developed democracies constitutions have
remained stable for decades or even centuries. However, developing countries have been characterized by
constitutional instability. This has been attributed mostly to the fact that such constitutions have lacked legitimacy.

Zambia, like many African countries, has experienced constitutional instability since independence. It has had four
constitutions in the last thirty-nine years, namely, the Independence Constitution 1964; the One-Party Constitution
1973; the 1991 Constitution; the 1996 Constitution ( i.e. the 1991 Constitution was so substantially revised as to
produce a new constitution); and the 2016 amendment.

Since the constitution is the supreme law of the land from which the government derives its power, it should not
change with each change of regime. As it embodies the values and aspirations of the people it should endure over
generations.

Legitimacy of the constitution

The major reason for constitutional instability in Africa is that the constitutions of many states lack legitimacy or
moral authority. The legitimacy of a constitution is concerned with how to make it command the loyalty, obedience
and confidence of the people.

Professor Nwabueze, has noted that:

“It cannot be disputed that a major cause of the collapse of constitutional government in many of the new states
was the general lack of respect for the constitution among the populace and even among the politicians themselves.
The state itself is an alien, if also a beneficial creation; its existence is characterised by a certain artificiality in the
eyes of the people and it is remote from their lives and thought.”

To be legitimate a Constitution should be generally understood by the people and be acceptable to them. It cannot
hope to command the loyalty, respect and confidence of the people if they neither understand nor accept it. In order
to achieve the necessary understanding and acceptance, a constitution needs to be put through a process of
popularisation, with a view to generating public interest in it and an attitude that everybody has a stake in it, that it

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is the common property of all. Needless to point out that the people must be made to identify themselves with the
constitution.
A constitution would, in the absence of this sense of identification, of attachment and involvement, always remain
a remote, artificial object, with no more real existence than the paper on which it is written.
A prerequisite for the legitimacy of the constitution is that people should be involved in the process of its making. It
is only then that a constitution can have reality for, and become the property of, the people whose affairs it is to
govern; only so can it hope to win their confidence, respect and loyalty.

Modes of adopting a constitution

(a) Constitution Review Commissions

Successive Presidents in Zambia have used the device of a Constitutional
Review Commission to change the existing Constitution. Commissions are
appointed under the Inquiries Act. The Commissions have made recommendations to the government on the basis
of which the Government has presented constitutional bills for adoption by Parliament. There have been five such
Commissions since Independence:
 The Chona Commission, which was charged with recommending the manner and form the One Party state
should take (1973).
 The Mvunga Commission, which was tasked to recommend the type of
 Constitution Zambia should enact to usher in the Third Republic (1991).
 The Mwanakatwe Commission which was tasked to come up with a new constitution to replace the 1991
Constitution, which was said to contain a lot of defects.
 The Mung’omba Commission in 2003 tasked to come up with a new constitution; and the. The process led
to the Constitution Conference Act 2007 under which a National Conference was held. The Bill emanating
from that process was defeated in the National Assembly in 2010.
 Silungwe Technical Committee on drafting the National Constitution (TC) in 2011.(Appointed under then
Article 33-Executive Powers). This led to the 2016 Constitutional amendment.
In 2019, parliament passed the National Dialogue Act. Read it. The process resulting from the Act led to the drafting
of the Constitution of Zambia (Amendment) Bill No. 10 of 2019. Read the Bill.

Setting up a Constitutional Review Commission is preferred by Presidents because it enables them to control the
making of the constitution from start to finish. This is because under the Inquiries Act:
 The President can appoint persons of his choice to be commissioners, including the chairperson.
 The President determines the terms of reference for the commission.

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 Under section 5 of the Inquiries Act, the Commission can only make recommendations to the President,
who is not bound by such recommendations.
 In practice once the Commission has made recommendations after considering submissions from the public
(written and oral submissions) it presents a report to the President. The President and his Cabinet then
choose the recommendations they like and reject those they do not like. The government then presents a
constitutional bill before the National Assembly.
Since in the past the National Assembly has been under the firm control of the President as a result of there being
either no opposition MPs (during the one party era) or too few to make a difference (during the Chiluba era),
constitutions have been adopted with ease, often without serious debate. Each constitution adopted has reflected
the interests of the ruling class, and not the people, because in all past constitutional review exercises the
government has rejected progressive recommendations which would have changed the power balance.
In 1996, for example, the Chiluba government rejected at least 70 per cent of the recommendations made by the
Mwanakatwe Commission including the recommendation that the Constitution should be adopted by a Constituent
Assembly followed by a referendum.

Professor Anyangwe has aptly observed that Constitutions made in this way do not endure:
“Generally drafted by a political coterie, in a hurry, upon a calculation of exigencies, without even consultation with
other major stakeholders, many of these so-called constitutions are often a mere collection of rules of convenience
administered by each ephemeral regime. They never really constitute the legal basis of the states themselves. Aware
of the precarity of his own power and the fleeting nature of his own regime, each succeeding head of state never
bothers to produce a durable constitution. Consequently, the basic law of many an African state has become a
precarious document that inevitably perishes with the particular regime which introduced it.”

Parliament, as the final authority in the adoption of the constitution, has not played its role as a guardian of the
peoples interests. Voting on constitutional bills has been conducted on partisan lines. Since ruling party MPs lack
independence from the President and look to the President for appointment to ministerial positions, they have
basically been voting in accordance with the President’s wishes, not the wishes of their constituents.

Read these cases: Derrick Chitala (Suing as Secretary General of ZDC) v Attorney General (1995-1997) ZR 91;
Nkumbula v Attorney General (1972) ZR 111 (HC); and Nkumbula v Attorney General (1972) ZR 204 (CA).

Law Association of Zambia and Chapter One Foundation Limited v Attorney General 2019/CCZ/0013/14

Read also the following articles:

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Pamela Towela Sambo and O’Brien Kaaba, “Law Association of Zambia and Chapter One Foundation limited v
Attorney General,”Saipar Case Review Volume 3 Issue 1, 2020
Ndulo M and Beyani C, Amidst Conversations with the Deaf: The Struggle for a Legitimate and Democratic
Constitution in Zambia ([Link]
[Link] )

Ndulo M, Zambia’s Unfulfilled Struggle for a New Constitution: Comments on the 2016 Constitution
([Link] )

b)Constituent Assembly

The creation of a Constituent Assembly would seem to be a more promising alternative. A Constituent Assembly is
a body of persons that has been specifically elected or selected to create or adopt a new Constitution. The mandate
of the members usually only extends to the making of a new Constitution. Many of the new democracies such as
South Africa, Ethiopia, Uganda and Namibia, have used a Constituent Assembly. The American Constitution, which
is the oldest written constitution, was adopted by a Constituent Assembly (Convention) which met for two years in
Philadelphia.
Advantages of Constituent Assembly (Prof Alfred Chanda):
1. A Constituent assembly could be more representative of the Zambian people than the National Assembly
is. In terms of its composition it would be a larger, more inclusive and broad-based body. The composition
would be inclusive of all the stakeholders. The members would be elected or selected to represent specific
interest groups.
2. Furthermore, in terms of legitimacy, participation at elections of members of the Constituent Assembly is
more likely to be massive than the low voter turnout often seen in parliamentary elections. What this means
is that the Constituent Assembly is more likely to have a stronger popular mandate to perform its appointed
task than the National Assembly will.
3. The Constituent Assembly will work independently and will be free from the control of any person or group
of persons. It will be better placed to advance the national interest than the President and the National
Assembly who may be tempted, as has happened in the past, to put their narrow, personal interests above
those of the nation.
4. Moreover, a Constituent Assembly conceived as a sovereign body will have complete authority to deliberate
upon and enact the Constitution, for it will be sovereign in its own right. It will not depend on any outside
body to authorize its actions, either before or after its work is concluded.
5. It is the desire of the majority of Zambians, as evidenced from press statements issued by the church, NGOs,
chiefs and others, that the next Constitution should be adopted by a Constituent Assembly.

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6. There is need to have a break in Zambia’s legal or constitutional continuity, which stretches back to the
Zambia Independence Act 1964, a British statute. Zambia needs a constitution sanctioned by, and deriving
its legitimacy, directly from the people of Zambia. The ringing phrase ‘we the people of Zambia’ must be
given concrete meaning.
7. Adoption of the Constitution by a Constituent Assembly will impart concrete meaning to the idea of the
Constitution as being derived from the people, which notion transcends the realms of legal fiction into a
political reality.

C)Adoption by Committee of Experts

This method uses a small committee of experts in the process of elaborating and adopting the constitution. Kenya is
a good example of this. The Constitution of Kenya (Amendment) Act, 2008 provided for the legal framework and
established four organs to facilitate the review process for Kenya. The Constitution of Kenya Review Act, 2008
provided for the establishment or recognition of the four organs to be involved in the facilitating the review process
and drafting the new constitution (Committee of Experts; The National Assembly; The Parliamentary Select
Committee; The Referendum- People of Kenya).
1. The Committee of Experts
The Committee of Experts comprised of nine persons, three were non Citizens of Kenya nominated by the National
Assembly and appointed by the president. The Committee of Experts and the other organs were required by the law
to take into account certain guidelines in their work. The guiding principles of the review process are provided for in
Sections 4, 6, 23 and 29 of the Review Act, 2008. This is aimed to serve as a framework that guides the organs
responsible for the review process. The guiding principles set out in the Review Act are as follows:

1. Ensuring that national interests prevail over regional or sectoral interests and that there should be
accountability to the people of Kenya;27
2. The review process should be able to accommodate the diversity of the people and to ensure that the
people of Kenya have the opportunity to actively, freely and meaningfully participate in generating and
debating proposals on a new constitution;28

3. The process must be guided by the principles of stewardship and responsible management, respect for the
principles of human rights, equality, affirmative action, gender equality and democracy.29

27
Section 6(a)(b) The Constitution of Kenya Review Act, 2008 on the guiding principles 7
28
Section 6(c) (d) (ii) iv)
29
Section 5 Constitution of Kenya Review Act, 2008.

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The aforementioned principles were aimed at ensuring that the outcome of the process faithfully reflects the wishes
of the people of Kenya.

Why constitutions have failed to stand the test of time

1. There has been no enduring constitution in Zambia. This is because the various constitutions have lacked
legitimacy, mainly as a result of the method of their adoption.
2. The constitutions have been imposed on the people by the rulers. The Independence Constitution of 1964
was imposed on Zambia by the departing British colonial government. Subsequent constitutions have
reflected the interests of the ruling elite.

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HISTORICAL DEVELOPMENT OF THE ZAMBIAN CONSTITUTION

Constitutional development during colonial rule 1890-1964

Company Rule 1899-1924

 Prior to the imposition of colonial rule in the 1890s Northern Rhodesia did not exist as a single, unified
entity. Various parts of the territory were occupied by various ethnic groups, all having separate,
independent administrations of varying strengths.
 The single most important individual responsible for the colonization of Central Africa was John C. Rhodes,
head of the British South Africa Company (hereinafter referred to as the BSA company), who wanted British
power and influence to spread from the Cape to Cairo.
 He sent his representative, Lochner, to Barotseland to sign a concession with King Lewanika of the Lozi
tribe, which dominated the western part of the territory. On June 27, 1890 the Lochner Concession was
signed. It granted the BSA company absolute rights over vast regions north of the Zambezi. It covered the
"whole territory of the said (Barotse) nation or any future extension thereof, including all subject and
dependent territory."
 The Concession covered a vast area. In the North-West the boundary went as far as the Zambezi-Congo
watershed, and further East it followed the course of the Kafue River.
 In return, the company promised to civilize the people by the provision of schools and industrial
establishments. It also promised an annual royalty of 2,000 pounds.
 In spite of the signing of the Concession in 1890 the BSA company left Barotseland alone for almost a
decade. It was only in 1897 when a British Resident, Major Robert Coryndon, who was a close associate of
Rhodes, was sent to Barotseland. As the terms of the Lochner Concession did not confer any administrative
powers on the company, the British Foreign Office demanded a new concession in which Lewanika would
grant such powers and which would also remove the illegal trading monopoly procured by Lochner.
 A new concession which closely paralleled the wording of the 1890 agreement, was drawn up and signed
on October 17, 1900. It gave the BSA company administrative powers, including the right to judge cases
"between white men and between white men and natives" and to "make grants of land for farming purposes
in any portion of the Batoka and Mashukulumbwe (Ila) country to white men approved by the king,.”
 Between 1904 and 1909 Lewanika gradually ceded complete control of all land outside Barotseland proper,
to the BSA Co., to be disposed of to settlers "as it was from time to time required, on whatever terms the
company considered just, the company retaining money from such disposition of land."

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The Occupation of North-Eastern Rhodesia

 The British penetrated from the East, where the African Lakes Company had been operating since 1879 in
support of the Scottish missionaries around Lake Nyasa.
 Between 1889 and 1911 a series of treaties were signed between African chiefs and Rhodes’
representatives, namely, Harry Johnson, Alfred Sharpe, and Joseph Thomson. In return for trade goods,
illiterate chiefs granted extensive rights to the Charter Company. These treaties were the only legal title
which either the Crown or the BSA Company had obtained to the region of the Upper Kafue, the economic
heartland of the territory.
 The treaties gave the Charter Company the right "to search, prospect, exploit, dig for, and keep all minerals
and metals, to carry on a wide range of business including the manufacture and import of arms and
ammunition of all kinds and to do such thingsas are incidental or conducive to the exercise, attainment, and
protection of all or any of the rights, powers and concessions hereby granted."
 African tribes that refused to sign treaties were defeated on the battlefield. For instance, the Ngoni under
King Mpezeni put up a spirited fight in 1898 but they were overwhelmed by superior firepower. Mpezeni's
headquarters were captured on January, 25, 1898. Mpezeni was captured and imprisoned, and his son was
killed; villages were burnt down, and Ngoni cattle were confiscated.
 In 1897 Major Forbes was appointed as administrator of the North-Eastern Regions, with his Headquarters
in Nyasaland.
Administration of North-Eastern and North-Western Rhodesia

In 1899 the territory was formally divided into two administrative units called
North-Western Rhodesia and North-Eastern Rhodesia. The two territories had been declared protectorates in 1893.

North-Eastern Rhodesia

 Detailed provisions were made for the administration of the territory by the company under the North-
Eastern Rhodesia Order in Council.
 This Order was amended in 1907 and 1909. It was passed by the British government by virtue and in exercise
of the powers conferred under the Foreign Jurisdiction Act, 1890 Legislation made by the Queen in Council
was known as an Order in Council. It superceded any local enactments made in the colonies.
 The company derived its administrative powers from its Charter and the Order in Council. At the head of
the administration was a company appointed Administrator, who was assisted by an Executive Council. This
comprised: the senior judge, ex officio; and not less than three members.

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 The Administrator and his Council were empowered to make, alter and repeal regulations for the
administration of justice, the raising of revenue, and generally for the peace, order and good government.
But to be valid, such regulations had to be approved, at the outset, by the British High Commissioner to
South Africa, who was the supervising authority. The Commissioner could also legislate for the territory
(such legislation was known as Queens Regulations) as could the British government. The High
Commissioner exercised direct control over the military police forces.
 A High Court, with original civil and criminal jurisdiction over all persons and over all matters within the
territory, was created. It applied English Law as modified by local legislation, and enjoyed the same power
as English Courts. The High Court Judges, who were paid by the Company, were nominated by the Company
and appointed by the Colonial Secretary. They held office during good behavior. They could only be
removed by the Colonial Secretary, who also had to approve any changes in their salaries.
 Magistrate Courts, staffed by personnel appointed by the Company, were also created. All appointments
of Magistrates and Assistant Magistrate had to be approved by the Commissioner and confirmed by the
Colonial Office. A magistrate could at any time be removed from office by the Colonial Secretary, or by the
Administrator with the prior approval of the Colonial Secretary.

Protection of African Interests Under the North Eastern Rhodesia

Order in Council

The Order-in-Council contained the following provisions meant to protect the natives.
 In civil cases between natives the courts had to be guided by native law as long as it was not repugnant to
natural justice or morality, or to any legislation.
 All contracts concerning land between Africans and Europeans had to be certified by Magistrates, in order
to be valid.
 The Company was required from time to time to assign land to Africans for their occupation. However, all
mineral rights in such land were vested in the Company. Therefore, the Company could remove natives
from their land if it needed the land for mineral development or for some other public purpose.
 Lastly, no conditions, disabilities or restrictions could, without the previous consent of the Colonial
Secretary, be imposed on natives by regulation, which did not equally apply to non-natives.
Native affairs were administered directly by the Secretary for Native Affairs, Native Commissioners and Assistant
Native Commissioners, all of whom were appointed by the Administrator.

North Western Rhodesia

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 The style of administration as well as the degree and extent of imperial control in North-Western Rhodesia
differed from that of North-Eastern Rhodesia.
 This was because in the former there was already in existence a strong centralized African State ruled by
King Lewanika. Its existence was acknowledged by treaties such as the Lochner Concession, 1890, and
subsequent treaties between the BSA Company and Lewanika. For instance, the Land and Minerals Treaty
of 1900 provided that the BSA. Company was "not to interfere in any matter concerning the King's power
and authority over his subjects."
 Consequently, the Lozi traditional government was left intact, largely free from interference by the
company or by the imperial government.
 North-Western Rhodesia was closely linked to South Africa, and in fact, the British High Commissioner for
South Africa was made the Legislative authority for the territory. He could make proclamations to provide
for the administration of justice, for the raising of revenue, and generally for the peace, order, and good
government, and for the prohibition and punishment of acts tending to disturb the peace.
 As in North-Eastern Rhodesia, the High Commissioner in making proclamations, was to respect any native
laws. Again, as in North-Eastern Rhodesia, the imperial government retained its checking power of
disallowance of any undesirable legislation, through the Colonial Secretary.

Amalgamation of North-Eastern and North-Western Rhodesia, 1911

 On August 17, 1911 North-Eastern Rhodesia and North-Western Rhodesia amalgamated into one country
called Northern Rhodesia, pursuant to the Northern Rhodesia Order-in-Council, 1911.

 Except for a few provisions the 1911 Order was the exact replica of the North-Eastern Rhodesia Order-in-
Council 1900 (as amended). The BSA Company continued to rule the territory through an Administrator,
who was assisted by an Executive Council which comprised the Resident Commissioner, Senior Judge, and
three other members appointed by the Company, with the approval of the Colonial Secretary.

 The Administrator was bound by the advice of the Council upon all matters of importance except in urgent
cases. The High Commissioner for South Africa was not only the supervising authority, but he could also
issue proclamations for the territory. In making proclamations, the High Commissioner had to consult the
Administrator. He also had to respect native laws or customs. The High Commissioner also had direct
control of the military police forces.
 A unified High Court was created with full jurisdiction, civil and criminal, over all persons and over all
matters in Northern Rhodesia. English Law and procedure applied. But Acts of the U.K. Parliament enacted
after the amalgamation did not apply to the territory. Magistrate Courts were also created. The appointing

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authority, manner of appointment, power and privileges of judges and magistrate were a replica of those
in the North-Eastern Rhodesia Order-in-Council, 1900.
 Appeals lay from Magistrates Courts to the High Court and then to the Privy Council.
 The protective provisions relating to natives contained the North-Eastern Rhodesia Order-in-Council, 1900
were reproduced, verbatim in the 1911Order.
 Moreover, Barotseland's special status was preserved. As under the previous Orders in Council the BSA
Company retained the mineral rights in all land assigned to natives and could remove the natives whenever
it required such land.
 The provisions relating to native administration under the North-Eastern Rhodesia Order-in-Council were
reproduced verbatim in the 1911 Order.

 Africans were not represented in government, as the BSA Company operated the government exclusively
for the benefit of White settlers. African rights were, as a result, violated at will notwithstanding the so-
called protective provisions contained in the Order. On no account did the Crown use its reserved powers
to check abuses of human rights by the Company. The most common forms of human rights violations were
hut tax and forced labor. Hut tax was imposed for two reasons: (a) to make Africans contribute to the cost
of administration; and (b) as a means of forcing labor to centers of employment.

Crown Rule 1924-63

 The rising cost of administering the territory forced the BSA Company to cede control of Northern Rhodesia
to the Crown in 1924. This was based on the Devonshire Agreement. The Constitution of Northern Rhodesia
consisted of the Northern Rhodesia Order in Council, 1924, the Northern Rhodesia (Legislative Council)
Order in Council, 1924, and the Royal Instructions.

The Executive
 All executive power was vested in the Governor, who was also Commander-in-Chief of all the military
forces. He was appointed by his Majesty, the King, and served during his Majesty's pleasure. He inherited
all the powers that had previously been vested in the Administrator and the High Commissioner. The
Government's powers were not subject to any effective check. He was only accountable to his Majesty.

 Thus, the Governor had power:-

a) To alienate land
b) To appoint public officers and prescribe their functions, and to discipline such officer
c) To grant pardons

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d) Exclusive power to propose legislation dealing with the budget

e) To appoint Judges and Magistrate
f) To confirm death sentences, etc.
g) To initiate legislation
h) To assent to Bills or Veto them

 The Governor was assisted by an Executive Council, whose role was merely advisory. The Executive Council
comprised the Chief Secretary, the Attorney general, the Treasurer, the Secretary for Native Affairs, the
Principal Medical officer, persons holding office in the public service appointed by the Governor (called
Official members), persons who did not hold office in the public service appointed by the Governor (called
Unofficio Members).
 The Governor presided over meetings of the Executive Council. Although he was required to consult with
the Executive Council in most matters he was not bound by its advice.79 In any case where he acted
contrary to the advice of the Executive Council he was required to fully report the matter to the Crown,
with the grounds and reasons of his actions.

The Legislative Council

 One of the most significant organs created in 1924 was the Legislative Council (hereinafter called the
LegiCo), which comprised the Governor as President, five ex officio members, four Nominated Official
Members, and five Elected Unofficial Members. Both Nominated Official Members and Nominated
Unofficial Members were appointed by the Governor subject to confirmation or disallowance by the
Colonial Secretary. For a long time the number of Official Members was always greater than that of elected
ones.

 In 1929 the number of Elected Unofficials was raised to seven. Parity of Officials and Elected Unofficials was
only reached in 1938. The number of Unofficial Members exceeded that of the Official Members for the
first time in 1945 (8 elected and 5 nominated). In 1948 Officials and Elected Unofficials each had ten seats.
The number of Elected Unofficials was in 1954, raised from ten to twelve while the number of Officials was
reduced from ten to eight.

 The Governor presided over the meetings of the LegiCo. His dominance of the LegiCo was assured by
provisions which empowered him: to appoint (or nominate) the majority of its members; to suspend erring
members; to dissolve or prorogue the Council; to have the casting vote; to assent to Bills or to veto them,
etc. Moreover, only the Governor was authorised to propose any Bill, vote or resolution the object or effect
of which was to impose any tax or dispose of or charge any part of the public revenue.

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 The LegiCo was empowered to enact laws (called ordinances) for the administration of justice, the raising
of revenue and generally for the peace, order and good government of N. Rhodesia.89 Africans were denied
a role in both the Executive Council and the Legislative Council.

The Judiciary
 The High Court, Magistrate's courts, and native Commissioner's courts were created. All judges, Magistrates
and Native Commissioners were appointed by the Governor.
 The provisions pertaining to jurisdiction, procedure, and type of law to be applied in the High Court and
Magistrates Courts, closely paralleled those of the Northern Rhodesia Order-in-Council of 1911. Appeals lay
from Native Commissioner's Courts to Magistrates Courts and from the latter to the High Court and finally
to the Privy Council in London.

Protection of African Interests

 The scheme for the protection of the interests of Natives under the 1911 Northern Rhodesia Order-in-
Council was, save for a few minor modifications, retained in its entirety in the 1924 Order.

 Thus, all ordinances were to respect native laws and customs; in civil cases between natives the courts were
to be guided by native law so long as it was not repugnant to natural justice, or morality or to any other
laws.

 Discrimination against natives was forbidden save with respect to the supply of arms, ammunition and
liquor. As under the 1911 Order, Natives could not be removed from their land except after full inquiry by,
and by order of, the Governor. Furthermore, in order to be valid, land transactions involving natives had to
be certified by Magistrates. The special status of Barotseland was recognised.

 Section 40 provided as follows:

(1)It shall not be lawful for any purpose whatever to alienate from the chief and people of the Barotse, the
territory reserved from prospecting by virtue of the concessions from Lewanika to the BSA C., dated the
17th day of October, 1990, and the 11th day of August, 1909.
(2)All rights reserved to or for the benefit of natives by the aforesaid concessions as approved by the
Secretary of State shall continue to have full force and effect.
 Again, as under the 1911 Order, the Crown retained the power to legislate for the territory and also reserved
the right to disallow any ordinance passed by the Legislative Council. A new provision imposed a duty on

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the Governor to reserve any Bills passed by the Legislative Council which contained differentiating measures
for the signification of His Majesty's pleasure, which meant de facto, the pleasure of the British government.
 Once a Bill was reserved, it did not become operational until His Majesty, the king gave instructions upon
such a Bill through the Colonial Secretary. One of the classes of Bills that required His Majesty's signification
concerned "any Bill ....whereby natives may be subjected or made liable to any conditions, disabilities or
restrictions to which persons of European descent are not also subjected or made liable".
 Another new provision enjoined the Governor to promote religion and education among the natives, and
especially take care to protect them in their persons and in the free enjoyment of their possessions, and by
all lawful means to prevent and restrain all violence and injustice which may in any manner be practiced or
attempted against them.90

Land Rights

 Thousands of Africans were deprived of their land in order to make way for European settlement. The
Government sought to encourage further European immigration by setting aside blocks of land for exclusive
European use. This land, from which Africans were excluded, was located along the line of rail between
Livingstone and Katanga.

 Under the Northern Rhodesia (Crown Lands and Native Reserves) Order-in-Council, 1928-63 land was
demarcated into Crown Land and Native Reserves, the latter being lands set apart for the sole and exclusive
use of the Natives. Crown Land was vested in the Governor on behalf of his Majesty, while Native Reserves
were vested in the Secretary of State (for the Colonies).

 Although Reserves were essentially a permanent habitat of Africans, Europeans could acquire interests in
land therein for a maximum term of five years, if this was considered by the Governor to be in the interests
of the Africans. Moreover, mineral exploitation was permitted in the Reserves. Crownland was alienated to
White Settlers. Africans living in Crown Land were removed and forced to move into Reserves.
 About 60,000 Africans were expelled from crown land. Within a few years the Native Reserves became
overcrowded, and seriously deteriorated.
 The Government was forced in 1947 to provide more land to Africans. Instead of creating new Reserves the
Government created a new category of land called Native Trustland, which differed from Reserves in terms
of the duration of the alienable interest to a non-native. The alienable interest (or right of occupancy) that
could be granted to a non-native in Trustland was 99 years as opposed to five years in Reserves. Land could
be granted to a non-native so long as, in the opinion of the Governor, it was in the interests of the
Community as a whole.95

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 However,Trustland, like Reserves, was vested in the Colonial Secretary "for the use or common benefit,
direct or indirect, of natives.”96 Thus, by 1947 a kind of apartheid in land had been created, with Europeans
having the best land, in unlimited quantities, while Africans were confined to overcrowded and poorly
endowed pit-holes called Reserve and Native Trustland.

Native Courts Ordinance, 1936

 The Native Courts Ordinance established Native Courts, which administered African Customary Law and
which had jurisdiction in minor criminal and civil matters where Africans alone were involved. Lawyers were
barred from these courts as were non-natives.103 District Officers and Provincial Commissioners were
empowered to review Native Court decisions.

Federation of Rhodesia and Nyasaland

Establishment

 The proposals for federation were approved by the House of Commons in March 1953. The British
Government justified the imposition of Federation in economic terms: large market; and large population.,
etc.

 In April 1953 motions were passed in favour of the scheme in the Legislatures of Northern Rhodesia and
Nyasaland. In Southern Rhodesia the proposals were approved by referendum. The Federal Constitution
came into operation in October 1953.
 Africans opposed federation for several reasons:- they feared that their lands would be taken as land
happened in Southern Rhodesia; they assumed that their educational and occupational opportunities
would be restricted by new forms of racial discrimination; and that federation would threaten their political
advance. They viewed the federation simply as a vehicle put forward by the White settlers to achieve
selfgovernment and to entrench their position with the aid of Whites in Southern Rhodesia.

Organs of Government
 The Federation was created by the Federation of Rhodesia and Nyasaland (Constitution) Order in Council,
1953. The Constitution was appended thereto.
Executive Powers
 The Federation was headed by the Governor-General, who was also Commander-in-Chief of the Federation.
He was appointed by Her Majesty, the Queen, and was her representative in the Federation. The executive

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powers of the Federation were vested in her Majesty but were exercised on her behalf by the Governor-
General.

 The Governor-General was assisted by a Prime Minister and other Ministers, all of whom he appointed.
These constituted the Executive Council, which advised the Governor-General in the government of the
[Link] power to appoint, promote, transfer, and dismiss, and to exercise disciplinary control over
Federal Civil Servants was vested in the Governor-General.
 The executive authority of each of the territories continued in accordance with their respective
[Link] Rhodesia and Nyasaland retained their Protectorate status while Southern Rhodesia
remained a self-governing colony.

Legislative Powers
 The Legislative powers of the Federation were vested in the Federal Legislature although Her Majesty
reserved the right to legislate for the Federation.
 The Federal Assembly consisted of the Speaker and 59 members, 44 of whom were elected. Of the 44
elected members 24 were from Southern Rhodesia, from Northern Rhodesia and 6 from Nyasaland. At its
inception the Federal Assembly comprised 35 members only but this was raised to 59 in 1957.
 Africans were vastly outnumbered in the Federal Assembly despite the fact that they constituted the
overwhelming majority of the population. Only twelve seats were allocated to African members. Three
seats were reserved for specially elected European members with special responsibility for African
interests. Of the eight African Members, four were elected in Southern Rhodesia, two each in Northern
Rhodesia and Nyasaland.
 As regards the specially elected members, two each were elected in Northern Rhodesia and Nyasaland. Of
the three Europeans responsible for African interests, one was elected in Southern Rhodesia and one in
Nyasaland.
 The Federal Constitution was designed to maintain White domination in all spheres of government. The
fifteen members who represented African interests had little impact as they were vastly outnumbered by
the White settlers. Worse still, Africans who were elected to the Federal Assembly were elected on a very
restricted franchise, which denied the vote to the vast majority of Africans.
 The Governor-General could assent to Bills or withhold his assent. He could also reserve a Bill for the
signification of Her Majority's pleasure. Her Majesty had the power to annul any legislation passed by the
Federal Legislature by exercising her power of disallowance.

Judicial Powers

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 The Federal Supreme Court was established as the highest court of appeal in the Federation. It consisted of
the Chief Justice as President and Federal Justices, all of whom were appointed by the Governor-General.
The courts in the territories continued exercising their civil and criminal jurisdiction as before.
 Appeals lay from the territorial High Courts to the Federal Supreme Court and from the latter to the Privy
Council in London, whose judges were drawn from the House of Lords.
 Apart from having appellate jurisdiction the Federal Supreme Court had exclusive jurisdiction in certain
matters:- (a) in any dispute between the Federal Government and a Territory or between Territories; (b) to
hear and determine matters relating to the election of Federal Assembly Members; (c) any matter in which
a writ or order of mandamus or an injunction or interdict is sought against an officer or authority of the
federation; and (d) to decide questions as to the interpretation of the Federal Constitution referred by a
lower court.

Protection of African Interests

 The Federal Constitution attempted to allay African fears of European domination by creating a standing
committee of the Federal Assembly called the African Affairs Board.
 The Board, which consisted of three Europeans and three Africans, was expected to look out for African
interests. The Board comprised the two specially appointed European members and the specially elected
European member; and one African member of the Federal Assembly from each of the three territories to
be elected by all the members of the Board. The chairman and vice-chairman were appointed by the
Governor-General from among the Board Members.
 Its primary function was to draw attention to any Bill introduced in the Federal Assembly and any Statutory
Instrument, if that Bill or Statutory Instrument was, in its opinion, a "differentiating measure."
 The expression "differentiating measures" meant: “A Bill or Instrument by which Africans are subjected or
made liable to any conditions, restrictions or disabilities disadvantageous to them to which Europeans are
not also subjected or made liable, or a Bill or Instrument which will in its practical application have such an
effects.”

 All proposed bills had to be submitted to the Board for scrutiny before they were introduced in the Federal
Assembly.

In July 1959 the British Government announced the appointment of an

Advisory Commission (the Monckton Commission) with the following terms of reference:
“In the light of the information provided by the Commission of officials and of any additional information the
Commission may receive, to advise the five Governments, in preparation for the 1960 (Federal) Review, on the

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Constitutional programme and framework best suited to the achievement of the objects contained in the
Constitution of 1953, including the preamble.”

The Commission's Report in October, 1960 marked the beginning of a lengthy period of constitutional negotiations
which eventually concluded with the granting of the Northern Rhodesia Constitution of 1962. It emphasized the
"almost pathological dislike" of the Federation among Africans in Northern Rhodesia and Nyasaland and the belief
held by African nationalists that Federation had been a major obstacle to their constitutional advance. The
Commission's important recommendation for Northern Rhodesia was that “there should be an African majority in
the Executive Council so constituted as to reflect the composition of the Legislative Council.”
It called for an immediate declaration by the BR Government that these steps would be taken in the near future and
suggested that a constitutional conference be held without delay.

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FEATURES OF THE 1991 (CURRENT) CONSTITUTION AS SUBSEQUENTLY AMENDED

THE EXECUTIVE
Executive Authority
 Article 90 states that executive authority derives from the people and shall be exercised in a manner
compatible with the principles of social justice and for the people’s well-being and benefit.
 Article 91(1) establishes the office of the President of the Republic of Zambia, who shall be the head of State
and Government and Commander in Chief of Defence Force. By having the President both head of
government and state, all executive power vests in one person.
 All executive power vests in the president, who may exercise that power directly or through other public
officers or other persons appointed by the president. Check the definition of “public officer” under Article
266.
Functions of the President
The functions of the President are listed under Article 92(2):
(a) Appoint ambassadors, high commissioners, plenipotentiaries, diplomatic representatives, consuls and
heads of international organisations;
(b) Receive and accredit foreign ambassadors, high commissioners, plenipotentiaries, diplomatic
representatives, consuls and heads of international organisations;
(c) Negotiate and sign international agreements and treaties and, subject to the approval of the National
Assembly, ratify or accede to international agreements and treaties;
(d) Establish, merge and dissolve government ministries, subject to the approval of the National Assembly;
(e) Appoint persons as required by this Constitution or any other law to be appointed by the President;
(f) Appoint persons as required to perform special duties for the Executive;
(g) Confer honours;
(h) Sign and promulgate proclamations as specified in this constitution or as prescribed;
(i) Initiate Bills for submission to, and consideration by, the National Assembly; and
(j) Perform other functions specified by this constitution or as prescribed.
Power of Appointment
The Constitution vests enormous power in the president relating to the appointment of public officers. The President
has power to constitute offices for the public service and to abolish those offices (article 174(1)). Article 185(1) vests
the president with power to:
(a) Appoint and confirm public officers;
(b) Exercise disciplinary control over public officers; and

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(c) Terminate the employment of a public officer.

This power, however, is required to be exercised by relevant Service Commissions (Article 185(2)).
More specifically, the president appoints the following:
(a) Ministers and provincial ministers (articles 116, 117)
(b) Secretary to the Cabinet (Article 176(1))
(c) Attorney General (article 177(1))
(d) Solicitor General (article 179(1))
(e) Director of Public Prosecutions (Article 180(1))
(f) Secretary to the treasury (article 183(1))
(g) Permanent secretaries (article 184(1))
(h) Governor of the Central Bank (article 214(1)).
(i) Public Protector (article 243(1))
(j) Auditor General (Artilce 249(1))
(k) Chief Justice, Deputy Chief Justice, president of the constitutional court, deputy president of the
constitutional court and other judges (article 140).
Ratification by the National Assembly

 The Constitution entitles the President to make virtually all important appointments to the public service
and to make all the major decisions relating to the welfare of the state. The exercise of this power in many
instances is indicated as subject to the National Assembly approval or ratification. According to Chanda
(2005) the requirement of ratification by the National Assembly of certain appointment is meant to act as
a check on presidential power. It is designed to ensure that the people appointed by the President have
integrity, proven ability and experience.
 However, the Constitution has inbuilt clauses that in reality negate the significance of the National Assembly
(NA) in this regard. For example, Article 94(1) of the Constitution states that where an executive function is
subject to NA approval, the NA should give its approval within 21 days. If it declines, the President shall
refer the matter to the Constitutional Court for determination (Article 94(2)) and its decision shall be final.
The provision effectively means that the NA’s rejection of an executive decision or action cannot cause a
lapse of that action. Instead, the President has been given a subtle mechanism to always get his way out.
 Similarly, when it comes to ratification of presidential appointments (Article 95) by the NA, the amended
constitution has guaranteed the President almost unchecked power. The Constitution states that where the
NA twice rejects a presidential appointment (or even delays in making a decision) the president shall make
a third appointment, which shall take effect regardless of whether the NA approves or not (Article 95(4)).
 The sum effect of Articles 94 and 95 is that the NA can never effectively check on the executive as the
executive has effectively been given powers to by-pass the NA. The NA is simply required to rubber stamp

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executive decisions and actions. Parliamentary disapproval does not lapse those decisions and actions as
the executive can side-step the NA.

Immunity of the President

There are several reasons why heads of government are given immunity. These include:
 To protect the dignity of the office of the president;
 To ensure that the president has as much freedom as possible in the due execution of the duties of
his/her office;
 To avoid court proceedings from distracting the president in the execution of his/her duties.

Article 98 immunizes the president or those acting in the executive from prosecution from criminal or civil action.
The provision is more extensive than was the case prior to the 2016 amendment:
a) Now includes not just the president but all those who act in the executive office (Article 109). These
include the Vice President and anyone who acts when the president and the vice president are both not
available (Article 98(1)).
b) Article 98(2) is so extensive that if interpreted literally the President cannot institute any action including
personal actions such as divorce
c) Article 98(7) gives the concerned person who held office of president to appear before the National
Assembly when it is considering a motion for the removal of his/her immunity. Where immunity is
removed, the concerned person can only be charged with an offence for which immunity was removed
(Article 98(9)). This effectively reverses the authority of Fredrick Jacob Titus Chiluba v Attorney General
Appeal No. 125 of 2002 in which the Court held that the law did not provide for a concerned former
president to be heard before immunity was removed and that once immunity was removed, there were
no restrictions to what offense one could be charged with.
d) Where a person whose immunity was removed is acquitted, his/her immunity is now automatically
reinstated (Article 98(10)).
Note, however, that in the case of Godfrey Miyanda v Attorney General SCZ Judgment No. 9 of 2009 the Supreme
Court held that nothwistnding the immunity of the president, there is nothing to stop the court from determining
whether the President in the discharge of his duties had acted within the law, and granting any remedies found to
be appropriate against the government.

Cabinet

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Cabinet consists of the President, Vice President, Ministers, and the Attorney-General as an ex-officio member
(article 113). The functions of cabinet are:
(a) Approve and cause to be implemented government policy;
(b) Approve government Bills for introduction to the National Assembly;
(c) Approve and Cause the national budget to be presented to the National Assembly;
(d) Recommend accession and ratification of international agreements and treaties to the National Assembly;
(e) Recommend, for approval of the National Assembly: i)loans to be contracted by the State; and
ii)guarantees on loans contracted by State institutions or other institutions; and
(f) Advise the president on matters relating to the performance of executive functions.
Vacation of Cabinet Office
Article 72(1) requires a member of parliament, except the Speaker and the First Deputy Speaker, to vacate office
upon dissolution of parliament. There was controversy in the 2016 election regarding status of ministers on
dissolution of parliament. The confusion was in part due to article 116(3) of the constitution which does not
include dissolution of parliament among the grounds for dissolution occurrence of vacancy in cabinet.
Nevertheless, the Constitutional Court held that once Parliament is dissolved, ministers had no basis for staying in
office as they are appointed from within parliament. See the case of Stephen Katuka and Law Association of
Zambia v The Attorney General, Ngosa Simbyakula and 63 Others Selected Judgment Number 19 of 2016.

Number of Ministers
Article 116(1) requires number of ministers to be prescribed. Pursuant to this article, section 3 of the Ministers
(Prescribed Number and Responsibilities) Act No. 26 of 2016 states that the number of ministers shall not exceed
30.

Collective Responsibility
Article 114(2) states that cabinet shall take collective responsibility for cabinet decisions. Hilaire Barnett states that
the convention of collective responsibility “emphasizes the unanimity of government and its accountability to
parliament.” According to Barnettt, the rationale for collective responsibility lies in the need for government to
present a united front to parliament and to the public in order to maintain confidence. It has two strands:
a) Once an agreement has been reached in cabinet, all members of cabinet are bound to speak in support of
the decision; and
b) Records of cabinet discussions are absolutely secret.

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THE LEGISLATURE
 Legislative authority derives from the people of Zambia and should be exercised in a manner that protects
the Constitution and promotes the democratic governance of the country (article 61);
 Article 62(1) establishes Parliament, which consists of the President and the National Assembly. The
implications of this is to water down the separation of powers as the Executive is merged with the
legislative branch.

Functions
The functions of the National Assembly are to oversee the performance of executive functions by (article 63(2):
a) Ensuring equity in distribution of national resources amongst the people of Zambia;
b) Appropriating funds for expenditure by state organs, state institutions, provincial administration, local
authorities and other bodies;
c) Scrutinizing public expenditure, including defence, constitutional and special expenditure;
d) Approving public debt before it is contracted; and
e) Approving international agreements and treaties before these are acceded to or ratified.

Composition
The National Assembly consists of (article 68(2):
a) 156 members directly elected on the basis of a simple majority vote under the first-past-the post system;
b) Not more than 8 nominated members;
c) The Vice-President;
d) The Speaker; and
e) The First and Second Deputy Speakers

Dissolution of Parliament
Parliament stands dissolved 90 days before the holding of the next general elections (article 81(3)). An MP, except
the Speaker and First Deputy Speaker, should vacate office upon dissolution of Parliament.

In Stephen Katuka and Law Association of Zambia v The Attorney General, Ngosa Simbyakula and 63 Others Selected
Judgment No. 29 of 2016 the Constitutional Court held that once Parliament is dissolved, there is no basis on which
to hold ministerial office, and, therefore, Cabinet equally stands dissolved on dissolution of parliament.

Powers and Privileges

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An MP has freedom of speech and debate in the National Assembly which shall not be ousted or questioned in a
court or tribunal (article 76(1).

Further, an MP has powers, privileges and immunities as prescribed (article 76(2)).

(for authorities, read cases below, the constitution and the National Assembly (Powers and Privileges) Act, as
amended by the National Assembly (Powers and Privileges) (Amendment) Act No. 13 of 2016)

Read the article: O’Brien Kaaba and Pamela Towela Sambo, “Chishimba Kambwili v Attorney General” Saipar Case
Review, Volume 3 Issue 1.

CASES
Chishimba Kambwili v Attorney General 2019/CC/009

The People v The Speaker of the National Assembly RM Nabulyato Ex Parte Harry Mwaanga Nkumbula (1970) ZR 97

Attorney General and the Movement for Multiparty Democracy v Lewanika and Others (1993-1994) ZR 164

Fred M’Membe, Lucy Sichone and Bright Mwape v Attorney General and the Speaker of the National Assembly SCZ
No. 4 of 1996

Attorney General v the Speaker of the National Assembly and Ludwig Sondashi SCZ No. 6 of 2003

In Re Akashambatwa Mbikusita Lewanika 2002/HN/123

Fred M’membe and Bright Mwape v the Speaker of the National Assembly, the Commissioner of Prisons and the
Attorney General 1996/HCJ/X

Stephen Katuka and Law Association of Zambia v The Attorney General, Ngosa Simbyakula and 63 Others Selected
Judgment No. 29 of 2016

JUDICIARY
The judiciary: judicial power and organisation; appointment and qualification of judicial officers; autonomy of the
judicature; the concept and practice of judicial independence, limitations of judicial power.

Source of Judicial Authority

Article 118(1): “The judicial authority of the Republic derives from the people of Zambia and shall be exercised in a
just manner and such exercise shall promote accountability.”

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Article 119(1): Judicial authority vests in the judiciary and shall be exercised by the courts in a manner consistent
with the constitution and the law.
Article 119(3): Proceedings of court shall be in public, unless as excepted by this constitution, other laws or as
ordered by the courts.

Court Structure
a) Judiciary consists of superior courts and the following courts: subordinate courts; small claims courts;
local courts; and courts as prescribed (article 120(1)).
b) Superior courts are the Supreme Court, Constitutional Court, Court of Appeal, and High Court.
c) All courts are courts of record, except the local court, which shall progressively become a court of record.
Being a court of record means the court takes down details of proceedings as close as possible or
verbatim
d) Supreme court and Constitutional Court rank equivalently (article 121)

Appointment of Judges
a) The president, on the advice of the JSC, appoints the CJ, Deputy CJ, President of the Constitutional Court,
Deputy President of the Constitutional Court, and other judges (article 140).
Qualifications as a Judge
b) Proven integrity (article 141(1))
c) SC: Has been a legal practitioner of at least 15 years;
d) CC: has been legal practitioner of at least 15 years and has specialized training or experience in human
rights or constitutional law
e) CA: for at least 12 years
f) HC: at least 10 years.
Tenure
a) A judge shall retire from office at the age of 70 years (142(1))
b) A judge may retire with full benefits at the age of 65 (article 142(2))
c) CJ and President of CC hold office for not more than 10 years and thereafter revert to ordinary judges
(article 142(3))
d) A judge who wishes to take appointment outside the judiciary shall retire from judicial office (article
142(6))

Removal of Judges

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Grounds for removal

a) Mental or physical disability that makes the judge incapable of performing judicial office (article 143(a)
b) Incompetence;
c) Gross misconduct; or
d) Bankruptcy

Removal Process (article 144)

a) Removal may be initiated by the Judicial Complaints Commission or complaint made to the JCC, based on
grounds in article 143
b) Where JCC find a prima facie case, it submits report to President
c) President within 7 days of receipt of report shall suspend the judge from office and inform the JCC
d) The JCC shall then, within 30 days, hear the matter or constitute a medical board if the complaint relates
to physical r mental health
e) Where the JCS finds the complaint unsubstantiated, it recommends to the president revocation of the
suspension, who shall immediately revoke the suspension
f) If the JCC finds the complaint substantiated, it shall recommend removal of the judge and the president
shall immediately remove the judge
g) Proceedings of the JCC shall be in camera
h) Where the JCC had constituted a medical board, see article 144(8) to(10)).

Read the case of Peter Sinkamba v Hildah Chibomba, Mungeni Mulenga, Ann Sitali,Margaret Munalul and Palan
Mulonda 2016/JCC/84

On the status of magistrates and their removal process, read the cases of:

Benjamin Mwelwa v Attorney General Selected Judgment No. 9 of 2019

Chama Mutambalilo v Attorney General Selected Judgment No. 32 of 2019

Independence of the judiciary

Refers to capacity to hear and determine matters without external pressure or influence.
Three factors matter:

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a) Appointment: appointment of judges lacks transparency. Vacancies not openly advertised. This leaves a
lot of room for patronage. Makes it difficulty to ensure judges are appointed on merit. That’s a danger to
judicial independence
b) Removal: the 2016 amendment has reduced the powers of the president in the removal of judges. Prior to
2016 the president could trigger the removal process (see the case of Attorney General v Nigel Kalonde
Mutuna, Charles Kajimanga and Philip Musonda (Appeal No.088 2012))
c) Conditions of service: The president still sets the conditions of service for judges. Nothing has changed.

Cases
(These cases are mandatory reading)
The Attorney General v Nigel Kalonde Mutuna, Charles Kajimanga and Phillip Musonda (Appeal No. 088 of
2012)(2013) ZR

Godfrey Miyanda v The High Court (1984) ZR 62

Godfrey Miyanda v Mathew Chaila (Judge of the High Court) (1985) ZR 193

Sebastian Saizi Zulu v The People (1991) (SCZ No. 7 of 1991) ZR

Rev. Tegerepay Gusta and Elias v The People (1988) (SCZ No. 29 of 1988) ZR

Elias Kundiona v The People (1993-1994) ZR 59

The Attorney General and Another v The People SCZ Judgment No. 34 of 1999

Benjamin Mwelwa v Attorney General Selected Judgment No. 9 of 2019

Chama Mutambalilo v Attorney General Selected Judgment No. 32 of 2019

ELECTORAL SYSTEM

Introduction

In a democracy, government governs on basis of the consent of the people. The electoral process, therefore,
determines how the people will exercise their right to constitute government and who will hold elective political
office. Through elections the people confer power on the leaders but also hold leaders accountable for their
performance as the people potentially can vote out those who failed to perform to their expectations. In order for

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the people to play this role appropriately, Hilaire Barnett states that the electoral process needs to meet at least
the following four principles:
a) That there is full franchise, subject to limited restrictions;
b) That the value of each vote cast is equal to that of every other vote;
c) That the conduct of election campaigns is regulated to ensure legality and fairness; and
d) That the voting system is such as to produce both a legislative body representative of the electorate and a
government with sufficient democratic support to be able to govern effectively.
The Franchise
A citizen who has attained the age of 18 years of age is entitled to be registered as a voter and to vote in an
election by secret ballot (article 46). The right to vote or franchise is, by virtue of this provision, unlimited. The
provision is unqualified. This provision can be contrasted with the repealed article 75(1) which was qualified and
provided: “Every citizen of Zambia who has attained the age of eighteen years shall, unless he is disqualified by
Parliament from registration as a voter for the purposes of elections to the National Assembly, be entitled to be
registered as such a voter under a law in that behalf, and no other person may be so registered.”

However, the Electoral Process Act No. 35 of 2016 has limitations on who qualifies to vote. Section 9(1)(d)(e)and(f)
as read with section 47 restrict the rights of prisoners to vote. Section 47 categorically states: “A person shall not
be entitled to vote at an election if, at the date of the election, that person is in lawful custody or the person’s
freedom of movement is restricted under any written law.” Considering that the Constitution is supreme, and the
clause in the constitution providing for franchise is unqualified, it means that provisions in the Electoral Process Act
that are inconsistent with the Constitution are a nullity. The Constitutional Court, in the case of Godfrey
Malembeka (Suing as Executive Director of Prisons Care and Counseling Association) v Attorney General and The
Electoral Commission of Zambia 2016/CC/0013 Selected Judgment Number 34 of 2017, held that that provisions
in the Electoral Process Act that prohibit prisoners from voting or registering to vote were unconstitutional.

Section 8 provides for qualifications for one to register as a voter:

8. (1) A person qualifies for registration as a voter if that person—
(a) is a citizen of Zambia;
(b) has attained the age of eighteen years; and
(c) is in possession of a national registration card.

Electoral System
Simple majority system
This is sometimes called “first-past-the-post” (FPP). Its strength lies in its simplicity. The person who gains the
largest number of votes in the election wins the seat, irrespective of the proportion of the votes cast for

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himself/herself or his/her opponents. Mwanawasa, for example, only got 29 percent of votes to win the
presidency. It can, however, be argued that a person who assumes authority in such a manner has no authority
from the majority of the citizens to preside over national affairs and, therefore, lacks legitimacy. The simple
majority system has been criticized for this. Wade (1989) has famously stated: “If it is accepted that a democratic
Parliament ought to represent so far as possible the preferences of the voters, this system is probably the worst
that could be devised.”

The simple majority is still used in Zambia for the following elections:
a) Elections to the National Assembly (Article 47(2);
b) Elections to councils (47(3)
When it comes to the election of the president, the simple majority has been used from 1996 to 2016. The
independence constitution required one to be elected with more than 50 percent. This was repealed by the
Chiluba regime in 1996. The Constitution of Zambia (Amendment) Act No. 2 of 2016 now provides under article
47(1) as follows: “Elections to the office of President shall be conducted directly, under a majoritarian electoral
system, where the winning candidate must receive more than fifty percent of the valid votes cast, and in
accordance with Article 101.”
The president, therefore, is no longer elected on the basis of simple majority but qualified majority or majoritarian
system.

Reforming the Simple Majority system

There have been several calls to reform the simple majority system in Zambia especially in relation to the National
Assembly elections. For example, the Electoral Reforms Technical Committee (ERTC) led by Mwangala Zaloumis
had recommended adopting a mixed electoral system that combines the simple majority and proportional
representation. The Technical Committee on Drafting the Constitution led by former Chief Justice Annel Silungwe
had proposed in its first draft constitution to completely abandon the simple majority in preference for
proportional representation. Clause 75 of the 2012 draft Constitution Provided: “Elections to the National
Assembly shall be conducted under a proportional representation system where a candidate is elected from a
multi-member constituency in an Electoral District, in accordance with Article 135.” These recommendations were
rejected by the government.

Reasons for suggesting reform of the simple majority system include the following:
a) That the composition of the legislature as a whole must reflect the wishes of the electorate;
b) A National Assembly that does not reflect the electoral composition or preferences of voters lacks
legitimacy;

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c) A simple majority National Assembly leaves no room for representation of smaller parties or parties with
support diffused across the country and not localized in one constituency (for example, a smaller party
may get about 5 percent of votes across the country but may not win a single constituency seat);
As already noted, the proposal in Zambia has often been to introduce Proportional Representation (PR), in whole
or in part. Proportional representation takes many forms but in outline this means each party participating in an
election draws a list of candidates nominated by that party. Then the votes of each party’s list are calculated on a
national wide basis (or some other basis) and the parties are then allocated seats in the National Assembly in
direct proportion to the votes received overall.
The following weaknesses of PR have been noted:
a) It would destroy elections on the basis of constituencies as we know them today. There would be no
specific representative for a specific geographical area.
b) Too much patronage would be placed in the hands of political parties. Since parties draw up nomination
lists, and individuals voters do not vote directly for specific individuals, the voter has no direct influence
on who goes to the National Assembly
c) Weak government: a common effect of proportional representation is that governments are often
returned with a small majority of seats. As a result, minority parties with few seats may hold a
disproportionate amount of power, making the government a lot dependent upon such parties in order to
successfully implement its policies. This, therefore, means that the electorate can never be sure that even
if they voted for the successful government, policies will be implemented as pledged as the government is
forced to make compromise deals with smaller or other parties in oder to govern.

Electoral dates
a) A general election shall be held, every five years after the last general election, on the second Thursday of
August (article 56(1)

b) The day of the general election shall be a public holiday (article 56(2))

c) Where a vacancy occurs in the office of MP, council chairperson, mayor or councilor, a by-election shall be
held within 90 days of the vacancy (article 57(1)).

d) However, a by-election shall not be held within 180 days prior to the election (article 57(2)).

Qualifications for Election

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Member of Parliament
The qualifications for one to run as an MP are listed under article 70(1) and a person is eligible to stand if that
person:
a) Is a citizen;
b) Is at least 21 years old;
c) Is a registered voter;
d) Has obtained, as a minimum academic qualification, a grade 12 certificate or its equivalent; and
e) Declares that person’s assets and liabilities, as prescribed.
In the 2016 general election, there was a lot of political debate relating to the issue of possession of a grade 12
certificate (article 70(1)(d). The question was often about the status of a person who may not have a grade 12
certificate but has other more advanced qualifications at tertiary level. The High Court, in Sibongile Zulu v
Attorney General and the Electoral Commission of Zambia 2016/HB/24 , held that a person who did not have a
grade 12 certificate but had higher tertiary qualifications satisfied the requirements of the provision.

Disqualifications for an MP are listed under article 70(2).

Challenging the Election of an MP

Standing
Article 73(1) states: “A person may file an election petition with the High Court to challenge the election of a
Member of Parliament.” Article 266 defines a person as follows: “ “ person ” means an individual, a company or an
association of persons, whether corporate or unincorporated.” It seems such a person is not required to
demonstrate any specific interest. Section 98 of the Electoral Process Act, however, seems to walk away from that.
Considering that the constitution is supreme, the provisions that depart from the constitution are a nullity.

The petition shall be heard within 90 days of its filing (article 73(2). An appeal from the High Court lies to the
Constitutional Court (Article 73(3).

An MP whose election is being petitioned shall hold office pending the determination of the election petition
(Article 73(4)). See the ruling clarifying the law on this matter in the case of Scott v Mwanakatwe Appeal No. 14 of
2016 (The High Court had held that once the petition was determined by the High Court and the election nullified,
then the concerned MP ceased to be a member of the House regardless of the pendency of an appeal. This was
reversed by the Court of appeal).

Grounds for Challenging an MP Election

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The challenging of the election of an MP can only b through an election petition filed in the High Court (section
97(1) Electoral Process Act 2016).
The grounds for petitioning an election are stated under section 97(2) of the Electoral Process Act 2016 as follows:

(2) The election of a candidate as a Member of Parliament, mayor, council chairperson or councillor shall
be void if, on the trial of an election petition, it is proved to the satisfaction of the High Court or a tribunal,
as the case may be, that—
(a) a corrupt practice, illegal practice or other misconduct has been committed in connection with the
election—
(i) by a candidate; or
(ii) with the knowledge and consent or approval of a candidate or of that candidate’s election agent or
polling agent; and the majority of voters in a constituency, district or ward were or may have been
prevented from electing the candidate in that constituency, district or ward whom they preferred;
(b) subject to the provisions of subsection (4), there has been non-compliance with the provisions of this
Act relating to the conduct of elections, and it appears to the High Court or tribunal that the election was
not conducted in accordance with the principles laid down in such provision and that such non-
compliance affected the result of the election; or
(c) the candidate was at the time of the election a person not qualified or a person disqualified for
election.

Reliefs
There are only two reliefs the High Court can provide in a parliamentary election petition. These are stated under
section 99 of the Electoral Process Act 2016 as follows:
Any of the following reliefs may be claimed in an election petition:
(a) a declaration that the election was void; or
(b) a declaration that any candidate was duly elected.

See also section 108 Electoral Process Act 2016.

Electoral Offences
See part VII of the Electoral Process Act.

Effect of corruption

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Since independence the electoral laws have been to the effect that a single act of corruption is sufficient to
invalidate an election as corruption is a dent on the integrity of a candidate, rendering him/her unsuitable for
public office. See the case of Paul John Firmino Lusaka v John Cheelo (1979) ZR 99 (HC). The Electoral Process Act
2016, however, reversed this. Section 97(2) subjects corruption to the materiality test of “the majority of voters in
a constituency, district or ward were or may have been prevented from electing the candidate in that
constituency, district or ward whom they preferred.” Section 97(3) further categorically states that “the High Court
or a tribunal shall not, by reason only of such corrupt practice or illegal practice, declare that election of the
candidate void.”

President
Qualifications for a presidential candidate are listed under article 100(1). A person qualifies for election as
president if that person:
a) Is a citizen by birth or descent (prior to the 2016 amendment the requirement was for both parents to
have been citizens by birth or descent);
b) Has been ordinarily resident in Zambia;
c) Is at least 35 years old;
d) Is a registered voter;
e) Has obtained, as a minimum academic qualification, a grade 12 certificate or its equivalent;
f) Is fluent in the official language;
g) Has paid that person’s taxes or has made arrangements, satisfactorily to the appropriate tax authority, for
the payment of the taxes;
h) Declares that person’s assets and liabilities, as prescribed;
i) Pays the prescribed election fee on, or before, the date fixed for the delivery of nomination papers; and
j) Is supported by at least 100 registered voters from each province;
Disqualifications are listed under article 100(2).

Election of the President and assumption of office

a) The Returning Officer (ECZ chairperson and no longer the CJ) declares the presidential candidate who
received more than 50 percent of the valid votes cast during the election as president-elect (article
101(2);
b) If at the initial ballot no candidate got more than 50 percent, a runoff election is held for the top two
candidates (article 101(3)) within 37 days of the initial ballot;
c) The presidential candidate who receives the majority of votes cast in the second ballot shall be declared
president-elect (article 101(8)).
d) The president-elect shall be sworn into office by the CJ, or Deputy CJ if CJ unavailable.

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e) The president-elect shall be sworn into office on Tuesday following-(a) the seventh day after the date of
the declaration of the presidential election results, if no petition has been filed in accordance with article
103; or b) the seventh day after the date on which the Constitutional Court declares the election to be
valid.

Petitions
The framework governing the resolution of contested presidential elections is convoluted and confusing (articles
101 to 105) as the provisions are not drafted in either logical or chronological manner.

The general position seems to be as follows:

(a) A person may within 7 days of the declaration of results petition the Constitutional Court to nullify
the election of a presidential candidate who took part in the initial ballot on the ground that: The
person was not validly elected; or (b) the provisions of this constitution or other law relating to
presidential elections was not complied with(articles 101(4) and 103(1)).
(b) The Constitutional Court shall hear such a petition within 14 days of the filing of the petition(articles
101(5) and 103(2)). (In the Hakiande Hichilema and Geoffrey Bwalya Mwamba v Edgar Lungu and
Others 2016 the Constitutional Court held that the court had no discretion and was bound by the 14
days threshold and, therefore, purported to dismiss the petition on that pretext).
(c) After hearing the petition, the constitutional court may: (a)declare the election of the presidential
candidate valid; (b) nullify the election of the presidential candidate; or (c) disqualify the presidential
candidate from being a candidate in the second ballot (articles 101(6) and 103(3)). Note that in the
Hichilema case, the Constitutional Court did not do any of these and therefore, the decision seems at
variance with the constitution.
(d) A decision of the constitutional court in a presidential election petition is final (articles 101(7) and
103(4));
(e) Where the election is nullified, another election shall be had within 30 days from the date of the
nullification (article 103(5)).

The Electoral Commission

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Article 216 requires all commissions under the constitution to be, among other things, independent, act with
professionalism, and integrity, nonpartisan and impartial. Article 229(1) establishes the ECZ and article 229(2)
assigns it functions to:
(a) Implement the electoral process;
(b) Conduct elections and referenda;
(c) Register voters;
(d) Settle minor electoral disputes, as prescribed;
(e) Regulate the electoral conduct of voters and candidates;
(f) Accredit observers and election agents, as prescribed;
(g) Delimit electoral boundaries; and
(h) Perform such other functions as prescribed.

Is ECZ independent? One has to look at the appointment, composition and nature of tenure of Commissioners to
get an idea.

The Constitution also prescribes broad qualifications all commissioners should meet. To be appointed a
commissioner, one must be a Zambian citizen, a permanent resident in Zambia, and declare his/her assets and
liabilities. In addition, one must be tax compliant; free from physical and mental disability that would impede the
performance of his/her functions; and not serving a custodial sentence and must not have served such a custodial
sentence of at least three years in the five years immediately preceding the appointment (Article 240 Constitution
of Zambia, 2016). These are, however, general qualifications that lack specific ingredients that would be relevant
to the work of the Commission. It is left to subordinate legislation to prescribe other qualifications that would be
relevant for each Commission.

The Electoral Commission Act 2016 states that the Commission consists of the chairperson, the vice chairperson
and three other members, appointed by the President and subject to ratification by the National Assembly (section
5(1) Electoral Commission Act, 2016). Except for the chairperson and the vice who should have held or qualify to
hold the office of a judge of a superior court, there are no further specific qualifications laid down for
commissioners. The 2016 Act does not make any improvement to the repealed legislation. The president, who is
usually either a candidate in elections or leader of the ruling party sponsoring a candidate, has a free hand in
choosing Commissioners. As Ben Nwabueze has noted, one of the most significant threats to consolidation of
democracy and constitutionalism in Africa is the granting of powers to the executive to make appointment of
critical positions in the nation without clearly defined and objectively verifiable criteria with emphasis on
experience, expertise and qualifications which should limit appointments being made on narrow and short-lived
political interests (Nwabueze, 2008).

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This has always been pointed out as a major weakness of the system by opposition political parties. When
President Rupiah Banda, for example, had to fill two vacancies in the Commission during his tenure (2008-2011),
he was accused of doing so on the basis of ethnicity. In 2009, the then two main opposition parties, the Patriotic
Front (PF) and the United Party for National Development (UPND), for example, strenuously objected to the
appointment of a commissioner who was reportedly a close relative of the president. The opposition political
parties were of the view that the president was packing the commission with allies from his home province. During
a debate in the National Assembly, one Member of Parliament was reported to have openly stated:
Four out of five commissioners are from Eastern Province. I think that’s where the problem is.
Why should we only be talking about people from Eastern Province?[…]. We have a president
from Eastern Province, we have a Chief Justice who is supposed to be a returning officer from
Eastern Province, we have the chairperson of ECZ from Eastern Province (The Post, November 27,
2009).

Similarly, the President in 2017 terminated the contracts of two commissioners (David Matongo and Fredrick
Ng’andu) who were perceived as independent and professional for unexplained reasons (Zambian Observer,
2017).

Commissioners enjoy no security of tenure. They are appointed for a term of seven years and may be re-appointed
for a further term of seven years (section 5(3) Electoral Commission Act, 2016). Their stay in office is precarious as
they serve entirely at the pleasure of the President. Among other grounds for removal, they can be removed from
office by the President for no apparent reason (section 5(5)(f) Electoral Commission Act, 2016). The President has a
blank cheque as regards the removal of Commissioners as he/she is not obligated to assign any reason nor is
he/she or she required to follow any special procedure. This arbitrary power over the removal of Commissioners in
the hands of a person with a partisan interest in elections not only creates a lopsided playing field but is
inconsistent with the whole idea of an independent or autonomous ECZ.

The appointment and removal of commissioners from the ECZ contrasts remarkably, for example, with the
situation under the South African Constitution. Under the South African Constitution, the President appoints
members of the Commission on recommendation by parliament, following their nomination by a parliamentary
committee proportionally composed of all parties represented in parliament. The nominees must be approved by a
majority of parliament (section 193(4)and(5) Constitution of South Africa, 1996). Once appointed, the
commissioners are only removable (by the president) on grounds of misconduct, incapacity or incompetence,
supported with a finding to that effect by a parliamentary committee and a resolution to that effect being

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supported by the majority of parliament (section 194(1) Constitution of South Africa, 1996). The president
therefore can only remove a commissioner from office only upon or after adoption by parliament of the resolution
for that person’s removal (section 194(3)(b) Constitution of South Africa, 1996).

There seems to have been no sincere effort by crafters of the Electoral Commission Act to create a truly
autonomous ECZ that would not operate under the shadow of the incumbent President. Section 12 of the Act
requires all Commissioners and members of staff employed by the Commission to take oath of office before
assuming office in accordance with the Official Oaths Act. The oath reads:
I………………………………………………………….., having been appointed/elected/nominated……………………………do
swear/affirm that I will well and truly serve the Republic and the President of Zambia, that I will preserve,
protect and defend the Constitution of Zambia as by law established; and that I will not directly or
indirectly reveal or transmit any such information or matter as shall be brought under my consideration,
or shall be made to me by reason of my office except as may be required in the discharge of my duties as
such or with the authority of the President (Official Oaths Act, 1990).
Why should Commissioners of a supposedly autonomous ECZ be required to swear allegiance to the President,
who has a partisan interest in the outcome of elections? There is no public interest that is served by requiring
Commissioners to swear allegiance to the President. The Oath taken by Commissioners makes it clear that
Commissioners operate under the tutelage of the President. Section 17(1) further makes the Commission
subservient to the President by requiring it to report to the President. The president is given further powers over
the Commission by requiring him to single handedly approve loans, grants or donations to ECZ as well as any plans
by ECZ to invest unspent funds (section 14(2)(a)and(4) Electoral Commission Act, 2016). Commented [e1]: Note that there was an amendment to the
Electoral Commission Act affecting this part

Further Cases to Read

Sibongile Zulu v Electoral Commission of Zambia and Attorney General 2016/HB/24

Hakainde Hichilema and Another V Edgar Lungu and others 2016/CC/0031 Ruling No.33 of 2016

Hakainde Hichilema and Another v Edgar Lungu and Others 2016/CC/0034

Mailon Mushala and Moses Rindai Chisamba (2008) 1ZR 113

Godfrey Malembeka (Suing as Executive Director of Prisons Care and Counselling Association) v Attorney General and
Electoral Commission of Zambia No 34 of 2017

Nkumbula and Kapwepwe v The Attorney General (1978) ZR 267

Samuel Miyanda v Samuel Handahu 1994/SCZ/6

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Akashambatwa Mbikusita Lewanika, Hicuunga Evaristo Kambaila, Dean Namulya Mung’omba, Ebastian Saizi Zulu
and Jennifer Mwaba v Fredrick Jacob Titus Chiluba (1998) Z. R. 49

Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others (2005) ZR 140

Sebastian Saizi Zulu and Rodger Chongwe v Attorney General and Nikuv Computers Limited SCZ Judgment No. 8/75
of 1996

Josephat Mlewa v Eric Wightman (1995-1997) ZR 171

Batuke Imenda v Alex C Luhila SCZ Appeal No. 5 of 2003

Arnold Keith August and Another v The Electoral Commission and Others Constitutional Court of South Africa Case
CCT8/99

Scott v Mwanakatwe 2016/HP/EP0039

Mwanakatwe v Scott Appeal No. 14 of 2016 (Selected Judgment No. 50 of 2018)

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THE ZAMBIAN BILL OF RIGHTS

The Zambian Constitution Chapter 1 of the Laws of Zambia has provided constitutional protection for civil and
political rights. Economic, social and cultural rights were prior to the 2016 amendment to the Constitution provided
for under the directive principles of state policy. Rights under the directive principles of state policy were not
justiciable. The 2016 amendment excluded that part. Instead, an attempt was made to expand the Bill of Rights, to
include enforceable economic, social and cultural rights. The draft Bill of Rights, which contained these rights was
put to referendum on 11 August 2016, but did not pass the threshold and, therefore rejected.

Possible reasons for failure of the Bill of Rights at the referendum:

 Article 79(3) sets a very high threshold: 50 percent of persons entitled to be registered as voters;
 Referendum only allows for YES or NO vote. No other alternatives. The draft Bill of Rights had many
contentious provisions (such as when life begins) which needed consensus building before going to
referendum. Therefore, if a person was unhappy with one clause, that may have led them to reject the
whole document;
 Timing: Holding the referendum together with general elections entailed that voters most likely took
partisan positions;
 Compound question: The question had two parts and therefore, not sure which question respondents were
answering: “Do you agree to the amendment to the Constitution to enhance the Bill of Rights contained
in Part III of the Constitution of Zambia and to repeal and replace Article 79 of the Constitution of Zambia”
 Voter apathy: Although Zambia has historically been characterized by voter apathy, the 2016 general
election recorded a 56.45% voter turnout. Despite this, the referendum recorded a low turnout of 44.44%
thus rendering it impossible to meet the threshold for a valid constitutional referendum (before even the
votes were counted. Still born).
 Lack of institutional steering of the process: The Electoral Commission of Zambia (ECZ) which is an
independent electoral management body served as the referendum commission. ECZ is required to be
neutral by the provisions of the Constitution. This meant that when questions were asked about provisions
in the draft bill of rights or draft Article 79, ECZ could not support any position or give any justification
as that would have been contrary to its mandate of neutrality. In the 2010 Kenya process, for example, the

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Expert Committee steered the constitution through the referendum and were available to explain or justify
any provisions. In Zambia the TC which drafted the document had been disbanded.
 Lack of insulation: the entire constitution making process was Executive driven; There was no insulating
legal instrument. It is, therefore, possible that some people may have perceived it as a factional process.

Definition and Importance of Bill of Rights

A Bill of Rights is a list of fundamental rights guaranteed by the Constitution. Alfred Chanda (2005) lists three
advantages of having rights enshrined in the constitution:

a. By enshrining rights in the Constitution, which is the supreme law of the land (Article 1(1) of the
Constitution), human rights are elevated as supreme law.
b. It is not easy to amend the Constitution, especially the Bill of Rights because of the stringent requirements
than for ordinary legislation. Article 79 of the Constitution requires every Bill attempting to amend the
Constitution to pass a referendum at which at least 50% of all those entitled to be registered as voters vote
in favour of the amendment.
c. Thirdly, having rights enshrined in the Constitution makes the realization of human rights predictable as the
citizens are well informed of their rights and how to claim them.

Short History of the Zambia Bill of Rights

A Bill of Rights was first introduced in Northern Rhodesia at the introduction of self-government in 1963. Years
preceding this introduction saw rampant and unwarranted abuse of native human rights by white settlers who had,
from the time of the BSA company rule through to the colonial times and the creation of the Federation of Rhodesia
and Nyasaland, dominated the territory.

A number of rights were suppressed because a number of laws prohibited certain activities. At the height of total
dissatisfaction by Africans with the suffering which characterized the Federal era, the British government set up the
Monckton Commission in 1960 to look into means of introducing self-government rule in North Rhodesia. The
Commission went round the territories to gather information from the general public. In its report, the Commission
stated that the findings showed that the Federation was most disliked by natives. The report stated in part:

The dislike of the Federation among Africans in the Northern territories is widespread, sincere, and
long standing. It is almost pathological.

The report identified racial discrimination as one of the reasons why Africans hated the Federation. The
report therefore called for a reform of the constitutions in order for them to have wide support. The

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Commission called for legal and political safeguards to be included in both the Federal and Territorial
Constitutions. Legal safeguards were to consist of a Bill of Rights while the political safeguards were to consist
of representation in the councils of the State. The Commission argued that a Bill of Rights, apart from
promoting “greater security” among all inhabitants of the Federation would:

a. Help allay fears of domination which disturbed the main section of the population, and give them
greater confidence in the future;
b. Provide a criterion or standard upon which institutions, whether political or judicial, could base their
protection of the people’s rights;
c. Guard the liberties of all persons whether they were Federal citizens, British citizens, British
Protected Persons or allies.

The Monckton Commission recommended that the provision relating to the Bill of Rights and the Councils of
State, be specifically entrenched, to prevent the Legislature from abrogating them. The Commission further
proposed a special procedure for the alteration of the entrenched provisions. There was to be:

a. an affirmative vote of not less than three-quarters of all the members of the legislature; and
b. a referendum in which a majority of electors in each of the main racial groups approved the
proposed amendment.

The Monckton Commission urged the British Government to take immediate political steps to implement the
transition to self-government under an African Government. As such in February 1961, the British
government convened a constitutional conference. The colonial secretary Ian Macleod argued for the
introduction of the Bill of Rights in the Northern Rhodesia Constitution. This suggestion was supported by
African chiefs and the five political parties in existence at the time. The Monckton Commission Report, the
bulk of which was accepted by the British government, had an enormous impact in shaping the future
Constitutional development of Northern Rhodesia. The Northern Rhodesia Constitution of 1963, which
incorporated a Bill of Rights, came into effect on 3rd January 1964.

Form of the Guarantee of Rights

The bill of Rights incorporated in the independence Constitution was modeled on the Nigerian Constitution
of 1963 (first adopted in 1959), which in turn was based on the European Convention for the Protection of
Human Rights and Fundamental Freedoms of 1950.

The current Bill of Rights is found in Part III of the Constitution and consists of articles 11 to 32. It begins with
a general declaration of the rights every person in Zambia is entitled to regardless of race, place, origin,
political opinion, colour, creed, or sex. The following rights are guaranteed: life; personal liberty; protection
from slavery and forced labour; protection from torture; or inhumane or degrading punishment, or other like

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treatment; protection from deprivation of property; protection for privacy of home and other property;
protection of the law; freedom of conscience; freedom of expression, assembly and association; freedom of
movement; protection from discrimination on grounds of race, tribe, sex, place of origin, marital status,
political opinion, colour or creed; and protection of young persons from exploitation.

Limitations

The enjoyment of the rights in the Bill of Rights is made subject to a number of limitations such as respect for
the rights and freedoms of others and public interests. In addition to these two general limitations which
apply to all the rights guaranteed, most of the protected rights contain numerous derogation clauses. The
format adopted is that the right is first protected in broad terms. A succeeding article then qualifies it by
outlining circumstances in which that right may be derogated from. In many instances the qualifications to
the right are so numerous and wide-ranging as to negate the right or render it almost meaningless.

Scope of Rights

Some of the guaranteed rights have wider scope than others. For example, Article 14(1) of the Constitution
provides that: “No person shall be held in slavery or servitude.” This Article is defined in language that admits
of no exception. On the other hand, the right to protection from deprivation of property contains not less
than 26 permitted derogations.

Other rights that have wide derogation clauses include freedom of conscience, freedom of expression, equal
protection of the law, freedom of assembly and association, freedom of movement and freedom from
discrimination. The derogation clauses allow the legislature to enact laws that may result in the taking away
of the substance of the rights granted. The only fetter placed on the legislature is that such laws must be
“reasonably required in the interests of defence, public safety, public order, public morality or public health”
and must be “reasonably required for the purpose of protecting the rights or freedom of others”.

In five categories of rights a person challenging the validity of a law that violates a guaranteed right must
show that the law or the act done under it is not reasonably justifiable in a democratic society. Examples of
such rights include: protection of privacy of the home and other property (Article 17); protection of freedom
of conscience (Article 19); protection of freedom of expression (Article 20); protection of freedom of assembly
and association (Article 21); and protection of freedom of movement (Article 22). In such cases the precise
limit of the rights and freedoms is dependent on the construction the Court places upon the phrase
“reasonably justifiable in a democratic society”. Needless to say that such an interpretation will inevitably be
influenced by the social philosophy and the scale of value placed on public interests by the Court.

Enforcement of Guaranteed Rights

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The Bill of Rights is justiciable, that is, a person who feels aggrieved by an action that hinges on the enjoyment
of his/her human rights can petition the High Court for redress.

Article 28 of the Constitution provides…

An instructive case on this point is that of Harry MwaangaNkumbula v Attorney General (1972) ZR in which
the appellant sought to challenge the government’s intention to introduce a One Party State even before the
relevant legislation was drawn up and introduced in Parliament. The Court held that the appellant could not
validly challenge a bill unless the same was already law.

Locus Standi

Under Article 28 of the Constitution, only a person whose rights have been, are being or are likely to be
contravened in relation to him can apply to the High Court for redress. (Note that the Constitutional Court
has no jurisdiction over the Bill of Rights. Appeals from the High Court relating to the Bill of Rights lie with the
Supreme Court). This restriction on locus standi has severely inhibited Constitutional litigation. One cannot,
for example, bring an action to challenge the constitutionality of a law or a governmental action in the public
interest. In contrast, under section 38 of the South African Constitution, for example, any of the following
may bring an action to enforce human rights:

a. Anyone acting in their own interest;

b. Anyone acting on behalf of another person who cannot act in their own name;
c. Anyone acting as a member of, as in the interest of, a group or class of persons;
d. Anyone acting in the public interest; and
e. An association acting in the interest of its members.

Constitution Making and the Substance of the Bill of Rights

Zambia has had five constitutional cycles. At independence in 1964 it inherited a constitution with a Bill of
Rights modelled on the 1963 Nigerian Constitution. Although the Bill of Rights was entrenched, the
entrenchment provision was removed by an amendment in 1969 achieved by the ‘referendum to end all
referenda.’ This made it easy for the government to make a further amendment in 1973 that abolished
multiparty-ism in favour of one-party rule. Then, in 1991, a new Constitution was passed (though the
substance of the constitution changed very little) which reinstated multiparty politics. The 1991 constitution
brought back the entrenchment clause (Article 79) to lock the Bill of Rights and, for the first time, expressly
affirmed the principle of constitutional supremacy. In January 2016, the Zambian Constitution, except for the
Bill of Rights and Article 79, was amended. The draft Bill of rights, which purported to integrate social and
economic rights, was subjected to a referendum on August 11, 2016 but did not pass.

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The Bill of Rights was reproduced, with minor amendments, in the independence Constitution of 1964, the
One-Party Constitution of 1973, and the 1991 Constitution. When the Constitution was amended in 1996 and
2016, the Bill of Rights was left intact. The form and content of most of the provisions have, therefore
remained largely the same despite the significant changes in the political systems that have taken place since
independence. (The National Dialogue Forum is not mandated to consider the Bill of Rights).

General constitutional principles

The Constitution of Zambia is the supreme law of the nation and any other law inconsistent with it is void to the
extent of the inconsistency (Article 1(1)). Article 267(1) requires the entire constitution to be interpreted in
accordance with the Bill of Rights and in a manner that:

a) promotes its purpose, values and principles;

b) permits the development of the law; and

c) contributes to good governance.

Further, Articles 8 and 9 of the 2016 Constitution require courts to have regard to human dignity, equality and non-
discrimination and sustainable development in the interpretation of the laws and policies.

All the rights in the Constitution are subject to the general limitation that “the enjoyment of the said rights and
freedoms by any individual does not prejudice the rights and freedoms of others or public interest”(Article 11).
Subject to these limitations, the underlying Constitutional values relating to the Bill of Rights are non-
discrimination and equality, whereby all individuals in the country are entitled to each of the listed rights
regardless of their ‘race, place of origin, political opinions, colour, creed, sex, or marital status” (Article 11)

Special Tribunal to Report on Legislation

Members of Parliament can arrest a Bill which infringes the Bill of Rights under Article 27. This article provides for
the appointment by the Chief Justice of a special tribunal of two judges (or persons qualified to be judges) to report
on a Bill or a Statutory Instrument which may be inconsistent with the Constitution. Such a tribunal can only be
established if not less than thirty members of the National Assembly make a request in writing for a report on a bill
or statutory Instrument. In the case of a bill such request must be delivered to the Speaker within three days after
the final reading of the bill in the Assembly. A request for a report on a statutory instrument must be delivered to
the authority having the power to make the instrument within fourteen days of the publication of the instrument in
the Gazette.

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Overview of Substantive Rights

Right to Life

The right to life is provided under Article 12 of the Constitution. Read it.

The Constitution provides for the right to life but allows for it to be taken away ‘in execution of sentence of Court in
respect of a criminal offence under the law in force in Zambia’(Article 12(1)). This means that the death penalty can
be imposed on crimes specified under any law in force. It is mandatory on conviction for aggravated robbery using
a firearm (section 294 Penal Code Act Chapter 87 of the Laws of Zambia) treason (section 43 Penal Code Act Chapter
87 of the Laws of Zambia) and murder (except where there are extenuating circumstances)(Section 201 Penal Code).

A case challenging the constitutionality of the death penalty for being inhuman and degrading was dismissed by the
Supreme Court on the ground that the Constitution expressly contemplates the imposition of the death penalty
under article 12(1) (as an exception to the right to life)( See the case of Benjamin Banda and Cephas KufaMiti v The
Attorney General (2007)(unreported)).

The legitimacy of the mandatory death penalty for some crimes in Zambia was challenged before the UN Human
Rights Committee (HRC), the treaty body responsible for monitoring the implementation of human rights obligations
under the International Covenant on Civil and Political Rights 1966 (ICCPR). Zambia is a state party to the ICCPR.
In the case of Lubuto v Zambia Commission No. 390/[Link]. Doc. CCPR/C55/zd/390/Rev/1.(1995) the applicant
was convicted of aggravated robbery using a firearm, which under Zambian law automatically earned him the death
penalty; however, the Committee found the mandatory nature of the death penalty in Zambia to be incompatible
with the ICCPR.

Both the Zambia Police Act and the Prisons Act, which allow their officers to use firearms on persons escaping from
lawful custody, categorically state that the purpose is not to kill but to disable ( section 29 of the Prisons Act Chapter
97 of the Laws of Zambia, and section 24 of the Zambia Police Act Chapter 107 of the Laws of Zambia).

An issue that often arises in the context of the right to life is the issue of abortion. Abortion is regulated by the
Termination of Pregnancy Act1, section 3 of which provides:
3. (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law
relating to abortion when a pregnancy is terminated by a registered medical practitioner if he and two other
registered medical practitioners, one of whom has specialised in the branch of medicine in which the

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patient is specifically required to be examined before a conclusion could be reached that the abortion
should be recommended, are of the opinion, formed in good faith-
(a) that the continuance of the pregnancy would involve-
(i) risk to the life of the pregnant woman; or
(ii) risk of injury to the physical or mental health of the
pregnant woman; or
(iii) risk of injury to the physical or mental health of any existing children of the pregnant woman; greater
than if the pregnancy were terminated; or
(b) that there is a substantial risk that if the child were born it would suffer from such physical or mental
abnormalities as to be seriously handicapped.
(2) In determining whether the continuance of a pregnancy would involve such risk as is mentioned in
paragraph (a) of subsection (1), account may be taken of the pregnant woman's actual or reasonably
foreseeable environment or of her age.
(3) Except as provided by subsection (4), any treatment for the termination of pregnancy must be carried
out in a hospital.
(4) Subsection (3) and so much of subsection (1) as relates to the opinion of two registered medical
practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a
case where he is of the opinion, formed in good faith, that the termination of pregnancy is immediately
necessary to save the life or to prevent grave permanent injury to the physical or mental health of the
pregnant woman.

Personal Liberty

Read Article 13 of the Constitution.

The Article requires that ‘any person who is arrested or detained shall be informed as soon as reasonably practicable,
in a language he understands, of the reasons for his arrest or detention’(Article 13(2)). The provision does not
indicate who is responsible for informing the person arrested or detained, nor does it set strict timelines within
which this is to be done. Presumably the duty to inform lies with the police or person making the arrest. This
provision has not been incorporated in the CPC. However, as seen below, the CPC requires that a person who has
been arrested without warrant must be brought before court within 24 hours of the arrest.

Article 13 protects personal liberty and simply states that a person must be released if not tried within a reasonable
time. The Constitution has no other provisions relating to bail.
Subordinate legislation, however, allows for bail to be granted by police before the case moves to trial. Section 33
of the CPC entitles a police officer in charge of a police station to release an arrested person where, after due inquiry,

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there is insufficient evidence to proceed with the charge. Under the same provision, if a person who has been
arrested for offences which are not serious and not punishable by death and cannot be brought to court within 24
hours of arrest, such person must be released on bail. This bail granted at the police station is usually referred to as
police bond.

No fee is chargeable for bail granted by police (section 19 of the Zambia Police Act Chapter 107 of the Laws of
Zambia,). However, the police may require that the person being admitted to bail must have sureties undertake
that he or she shall appear before court as required( sections 123 and 16 CPC). In The People v Benjamin
SinkwintiChitunguand Others (1992), the High Court held that the police have power to cancel the bail granted by
them if it appears to them that the accused is about to disappear, leave the country, interfere with witnesses or is
likely to commit a similar offence. It stated, however, that the bail granted by police does not cease automatically
when an accused appears before court.

Although there is no constitutional limitation to the right to bail, the law lists certain offences as non-bailable. These
include:

 murder, treason or any other offence carrying a possible or mandatory capital penalty;
 misprision of treason or treason felony;
 aggravated robbery; theft of a motor vehicle as a repeat offender of the same offence; (CPC, s 126 as read
with CPC (Amendment ) Act 1993, s 2 and CPC (Amendment) Act 2005, s 2)
 where a person is charged with an offence under the State Security Act and the Director of Public
Prosecutions (DPP) issues a certificate that the safety or interest of the state would be prejudiced( s 123(4)
CPC); and
 anyone charged with some drug-related offences (s 43 Narcotic Drugs and Psychotropic Substances Act
1993).

The Article further states that ‘any person who is unlawfully arrested or detained by any other person shall be
entitled to compensation thereof from that other person” (Article 13(4)). In the case of Daniel
ChizokaMbandangoma v The Attorney General (1979) ZR 45 (HC), the plaintiff was arrested by police and granted
police bond. The police, however, required him to present himself to them periodically, which he did several times
before being told they had stopped proceedings against him. In an action for compensation for false imprisonment,
the High Court held that police had no power to arrest or detain a person for the purpose of conducting
investigations, and awarded him compensation.

The Article sets no specific length of custody. It simply requires that an arrested or detained person, if not released
on bail, shall be ‘brought without undue delay before a court’(Article 13(3). Under Article 18(1) any person charged
with a criminal offence is entitled to fair hearing ‘within a reasonable time’(Article 18(1)). Section 33 of the CPC

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requires that where a person is arrested without warrant, that person shall be presented before court within 24
hours. However, other statutes allow for longer periods of detention without any requirement to produce the
detained person before court. The Immigration and Deportation Act No. 18 of 2010 empowers an immigration officer
to detain suspected prohibited immigrants for a period not exceeding 14 days while conducting inquiries of that
person( s 38(1)). This is clearly arbitrary power as it does not even require reasonable suspicion at a minimum. As
held in the Mbandangoma case, no one has power to arrest a person in order to help with investigation.

Protection from slavery and forced labour

Read Article 14.

The Article (14(1)) prohibits the holding of another person in slavery or servitude and equally prohibits forced labour.

Article 14(3) lists five exceptions to the prohibition against forced labour.

Protection from inhuman treatment

Article 15 states that “A person shall not be subjected to torture, or to inhuman or degrading punishment or other
like treatment.” The Article has no qualifications or exceptions.

In the past, several Zambian laws, including the CPC, provided for corporal punishment, but its constitutionality was
challenged in the High Court in John Banda v The People HPA/6/[Link] appellant had been convicted of malicious
damage to property and sentenced to one month’s imprisonment, suspended for 12 months, and ten strokes of the
cane. The Court held that the sentence of corporal punishment and its underlying provisions breached article 15 of
the Constitution and were null and void. See also the case of The People v Ian Kainda HLR/01/2000.

Protection from deprivation of property

Read Article 16.

The right to property is not absolute as the provision has 27 exceptions or derogations. The Article has more
derogations than any other. Several statutes have a bearing on the enjoyment of this right. these include: the Land
(compulsory) Acquisitions Act; the Town and Country Planning Act, the Lands and Deeds Registry Act, the Income
Tax Act, the Rates Act, the Public Health Act, etc. The power of eminent domain, that is, the inherent power of the
state to compulsorily acquire private property in the public interest was exercised by the state in the case of Zambia

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National Holdings Limited and United National Independence Party v the Attorney-General. Other cases relevant to
this right are summarized below (Do not depend on these extracts. Read the cases in full):

Zambia National Holdings Limited and United National Independence Party v. The Attorney-General (1993 - 1994) ZR
115 (SC)

The appellants petitioned the High Court challenging a decision by the respondent to acquire compulsorily
under the newly amended Land (Compulsory) Acquisition Act, the appellant's land being stand No 10934
Lusaka, also known as the new UNIP Headquarters. The issues raised challenged the Constitutionality and
legality of the compulsory acquisition and the refusal of the Court below to grant an interlocutory injunction
restraining the respondents from taking possession, occupation or entering upon the said land.
….
Article 16(1) clearly states the general rule, that is, the acquisition must be under a law
which must provide for adequate compensation. Sub-article (2), on the other hand, goes on to give
exceptions to, and not categories of, the general rule. It deals with situations were an involuntary loss of
property could take place even without adequate or any compensation. We see no need for a strained and
exotic construction of this straightforward article in the manner attempted, and properly rejected, at the
trial.”

In our considered opinion, even assuming that Statutory Instrument 110 of 1992 had not been passed, ss
(1) of s 6 which we have quoted affords a complete answer to Mr. Sakala's arguments. It obliges that existing
laws be read so as to be conformable to the Constitution so that the word 'adequate', to qualify the
compensation and the reference of disputes to the Court rather than to the National Assembly, would have
had to be imported into cap 296. This Act was not unconstitutional for any of the reasons advanced by the
appellants.”

Patel v. The Attorney-General (1968) ZR 99 (HC)

This is A reference to the High Court pursuant to section 28 (3) of the Constitution of Zambia….

The circumstances in which this reference was made are as follows. On the 11th May, 1968, the applicant,
Mr. JasbhaiUmedthai Patel, was served with a summons charging him with (1) doing an act preparatory to
the making of a payment outside Zambia, contrary to regulation 9 of the Exchange Control Regulations,
1965, and section 6 of the Exchange Control Act (Cap. 276) and, in the alternative, (2) attempting to export
currency, contrary to regulation 17 (1) of the aforementioned Regulations and section 6 of the
aforementioned Act and section 352 of the Penal Code (Cap. 6). The particulars to both charges consisted

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of the allegation that, on diverse dates between 3rd and 10th May, 1968, at Ndola, he placed or caused to
be placed in the post sixty - five airmail envelopes for transmission outside Zambia, addressed to 55 Oakfield
Road, London N.4, each containing eight ten - kwacha notes, making a total of K5,200, it being alleged that,
in relation to charge (1), this was an act preparatory to the making of a payment outside Zambia, and, in
relation to charge (2), that this was an attempt illegally to export a total of K5,200 legal tender in Zambia.
After a number of adjournments, the matter was heard on 28th June, 1968, at the Ndola Magistrates Court,
before Mr W. Bruce - Lyle, the Senior Resident Magistrate. The question was, therefore, referred to the
High Court for determination. Accordingly a reference was signed on 8th August, 1968, by Mr Cave, on
behalf of the applicant, and Mr Heron, on behalf of the respondent, in the following terms:

WHEREAS in proceedings in the Subordinate Court of the First Class for the Ndola District holden
at Ndola in the case of the above - mentioned criminal prosecution, a question arose as to the
contravention of one or more of the provisions of Chapter 3 of the Constitution of Zambia
NOW THEREFORE William Bruce - Lyle the person presiding in the said Court, not being of the
opinion that the raising of the said question was merely frivolous or vexatious did refer the
following questions to the High Court:
1. Did the opening, examination and seizure of the postal article constitute a contravention of the
applicant's right to privacy of property as guaranteed by section 19 of the Constitution.
2. Did the opening, examination and seizure of the postal article constitute a contravention of the
applicant's freedom of expression as guaranteed by section 22 of the Constitution. On the opening
of the proceedings before me, Mr. Cave submitted a third question, as follows:
3. Did the opening, examination and seizure of the postal articles constitute a contravention of the
applicant's right to protection from deprivation of property as guaranteed by section 18 of the
Constitution.
….

Although we have not yet reached the stage where any property of the applicant's has been compulsorily
acquired, I am satisfied on the evidence that property belonging to the applicant has been taken possession
of and that this was done without his consent. It was therefore, taken possession of compulsorily. Unless,
therefore, it can be shown, and, as I have held, shown by the State, that this taking possession was done in
the excepted circumstance, prima facie there has been a breach of the applicant's right under section 18
….
The nexus between this and exchange control is, to my mind, so clear that I do not think one could
reasonably argue to the contrary. I am satisfied, therefore, that the taking of possession, so far as it affects
section 18, was expedient for a scheme of exchange control which was designed in order to secure the
development of the nation's financial resources for a purpose beneficial to the community.

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….
I have already said that I consider that exchange control comes within the excepted derogation in paragraph
(a) (ii) of subsection (1) and that the exchange control legislation under which the taking of possession was
effected was expedient for that purpose.

Protection for privacy of home and other property

Read Article 17.

Article 17 provides that no person, unless consenting thereto, “shall be subject to the search of his person or his
property or the entry of others on his premises” (Article 17(1)). The provision, however, allows for several
derogations or exceptions so broadly framed as to render it almost meaningless. These include acts done in the
interest of defence, public safety, public order, public morality, public health, town and country planning, protection
of the rights and freedoms of others, inspection of premises by those entitled by law, and for purposes of enforcing
a judgment order of court (Article 17(2)(a)(b)(c)and(d)). As shall be seen below, the courts have upheld arrests based
on illegally obtained evidence in contravention of this constitutional provision.

The Zambia Police Act(as amended by Act No. 14 of 1999) allows a police officer of at least the rank of sub-inspector
to carry out any search of premises for purposes of investigating a crime, provided the suspicion is based on
reasonable grounds (section 15). Such search requires a warrant issued by a magistrate, except where an officer
suspects a crime is being committed in his proximity or the matter is urgent.

In Liswanisov The People (1976) ZR 272 however, the Supreme Court upheld the validity of an arrest and conviction
that was based on an illegal police search.

Section 11 of the state Security Act, relating to public security, gives the president powers to order any person by
warrant who owns or controls any apparatus within the country used for the sending or receipt of telegrams to
produce originals and transcripts of all telegrams of any specified class or description (section 17(1)).

The Constitution does not have a specific provision on the suppression of evidence collected in violation of
constitutionally protected rights. However, arising from the provision on the supremacy of the Constitution in terms
of which any other law in violation of its provisions is null and void, it should be obvious that any evidence collected
in violation of the Constitution should not stand. The courts have taken a self-contradictory position that effectively
undermines the supremacy of the Constitution. While they have readily suppressed evidence obtained as a result of
confession induced by torture, they have equally readily admitted evidence produced as a result of illegal searches
violating the right to privacy. In the view of the courts, such evidence is admissible as long as it is relevant to the
matters and that it is not the duty of the court to be concerned with the methods by which evidence is obtained

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( Read these cases in full: Liswaniso v The People (1976) ZR 277 (SC); and LiswanisoSitali and Others v Mopani Copper
Mines PLC (2004) ZR 176 (SC)).

Protection of law and fair trial

Read Article 18.

Trial by independent and impartial court: The Constitution entitles every defendant to trial by “an independent and
impartial court established by law” (Article 18(1)). In John Ezekial Mumba v The People (2006) ZR 93 the Supreme
Court quashed the conviction of the accused because a military officer who took part in investigating the case also
sat as a member of the court-martial that convicted him, thus calling that court’s impartiality into question.

Presumption of innocence: Article 18(2)(a) of the Constitution indicates that every person who has been charged
with a criminal offence ‘shall be presumed innocent until he is proved or has pleaded guilty’. The presumption of
innocence entails that a defendant ‘shall not be subject to unnecessary pre-trial deprivation of freedom’(Chanda,
211). This provision, read together with article 13(3) which entitles a person to conditional or unconditional release,
seems to suggest that it overrides any statutory provisions prohibiting bail for certain offences. The Supreme Court
acknowledged in ChetankumarShantkal Parekh 1995/SCZ/11/a that Article 13(3) overrides any prohibitions on bail
in lesser laws, but took the view that its application only kicks in when trial is unreasonably delayed through no fault
of the accused. It follows that there is nothing unconstitutional about statutory prohibitions of bail going by this
interpretation.

Trial in absentia: The Constitution entitles every accused person to be present at his or her own trial. Except with
one’s consent, “the trial shall not take place in his absence unless he so conducts himself as to render the
continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the
trial to proceed in his absence”(Article 18(2)). This is reflected in section 191 of the CPC, which requires that an
inquiry or trial shall be conducted in the presence of an accused, or if the accused’s presence has been dispensed
with, in the presence of his or her advocates, if any (CPC, s 191). The provision does not indicate circumstances in
which an accused person’s presence can be dispensed with. However, sections 202 and 203 of the CPC authorize a
court to continue a trial in the absence of an accused (except if charged with a felony) following an adjournment,
which may be unconstitutional. The court, though, may set aside a conviction reached in absentia upon being
satisfied that the cause of the absence was reasonable( s 203(2) CPC). The CPC also allows the accused to choose
not to be present at trial, which is in line with constitutional prescripts.

When it comes to the passing of judgment, the CPC requires that if the accused person is in custody, he or she “shall
be brought up, or if not in custody, be required by the court to attend, to hear judgment delivered ...”( s168(2) CPC).

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However, no judgment shall be deemed to be invalid simply because the accused was absent from court when it
was delivered.

Time and Facilities for preparation of defence: The Constitution provides any person charged with a criminal offence
with the right to be given adequate time and facilities for the preparation of a defence (Article 18(2)(c)). This right is
applicable both to pre-trial detention and during detention pending an appeal or during an appeal itself. Since it is a
right intended to allow an accused to prepare his or her defence, it falls off once a person has exhausted or waived
his or her right to appeal. The High Court has taken a very narrow interpretation of the provision. In the Chiluba,
Kabwe and Chungu v The People (2005) HPR/01/05 case (where the applicants sought disclosure of adverse
information in the possession of the prosecution), it took the view that an opportunity to cross-examine witnesses
in court, to look at documents produced in court, to produce documents in defence and to summon witnesses
satisfied the right to adequate facilities to prepare one’s defence. This approach means a defendant tried by the
Subordinate Court (where trial is largely by ambush) cannot ask for disclosure of adverse evidence in the possession
of the prosecution.

Right to legal representation: The Constitution states that every person charged with a criminal offence “shall unless
legal aid is granted to him in accordance with the law enacted by parliament for such purpose be permitted to defend
himself before Court in person, or at his own expense, by a legal representative of his choice”(Article 18(2)(d). The
Constitution, therefore, does not make the provision of legal aid mandatory but leaves its provision to be regulated
by an Act of parliament. Furthermore, the Constitution states that a detained person (hence not every person on
trial) must be given adequate facilities to consult with a legal representative (Article 26(1)(d)) and has the right to
be represented by a legal representative before the courts (Article 26(1)(e)). What is clear is that people are entitled
to defend themselves at their own expense by hiring a legal representative of their choice.

In Savenda Management Services Limited v Stanbic Bank Zambia Limited and Gregory Chifire, the Supreme Court
recently confirmed this position by stating that “whilst it is in the interest of any litigant to be represented by counsel
when he or she appears before Court, there is no Constitutional right to legal representation.”30

In the case of Isa Yona Sibale v The People SCZ Judgment No. 4 of 2009, the Supreme Court held that: “By not being
allowed to call a witness and engage a lawyer, we find that the appellant was not afforded a fair hearing, as required
by Article 18 (1) of the Constitution.”

30
Selected Judgment No. 48 of 2018, para 63. See also George Lipepo and Others v The People SCZ No. 20 of 2014
and Nkanza v The People SCZ Appeal No. 145/2015.

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In the case of Mayonde v The People(1976) ZR 129 (HC) the High Court held that once an accused seeks time to
engage an advocate the provisions of Article 20(2) [which is now article 18] of the Constitution indicate that he must
be granted all reasonable adjournments.

The Legal Aid Act regulates the granting of legal aid to indigent litigants. It largely construes legal aid as legal
representation before a court. Defendants appearing before Subordinate Courts may apply to the magistrate for
legal aid. If the magistrate considers that the person has insufficient means to hire a private practitioner and that it
is desirable in the interests of justice, he or she issues such a person with a legal aid certificate. The Legal Aid Board
is then required to provide the person with a legal representative (s 8 of the Legal Aid Act Chapter 34 of the Laws of
Zambia). The High Court, however, is mandated to grant legal aid to any accused person appearing before it where
the “court considers that there are insufficient reasons why the accused should not be granted legal aid” ( s 9(2) of
the Legal Aid Act Chapter 34 of the Laws of Zambia).

The construction of who is considered as a legal representative was given by the Court in Patel v Attorney General
(1969) ZR 97. The Court stated that a legal representative needed to meet two criteria: first, one must be a lawyer
who is entitled to appear before the Court; and secondly, he or she must be a person not disabled under any law in
Zambia from appearing before and actually exercising his or her right of audience. This means only lawyers admitted
to the bar and not debarred for disciplinary reasons can represent another person as legal representatives. Invariably
this leaves out paralegals and all those who have academic legal training but have not been called to the bar. Section
5 of the Legal Aid Act, however, allows legal assistants (ie, persons who have law degrees but not yet admitted to
the bar) who are under the Legal Aid Board to appear for legally aided persons in Subordinate Courts and in chambers
for superior courts.

This problem is compounded by the narrow protectionist views of courts about legal practitioners. For example, in
the case of Musa Ahmed Adam Yusuf v Mahtani Group of Companies and Others, 31 the High Court held:

The requirement for a legal practitioner to state the name and place of his business confirms the fact that
a legal practitioner can only practice through a firm name and not in his personal capacity. Indeed, practice
in Zambia will show that this is what actually happens. Therefore, since he provides legal services under the
umbrella of his firm, it is only in the firm name that the plaintiff can institute an action for payment of his
fees. He cannot claim the fees in his personal capacity as he has no locus standi or sufficient stake in the
funds to enable him do so.

31
2011/HPC/0081.

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The import of this holding is that only lawyers either serving as in-house counsel or those practicing in law firms are
entitled to litigate on behalf of their clients. Lawyers cannot, therefore, provide pro bono services through civil
society organizations.

Right to an interpreter: Article 18(2)(f) of the Constitution entitles an accused person to be permitted to have the
assistance without payment of an interpreter if he or she cannot understand the language used at trial. The CPC
recognises the accused’s right to have evidence interpreted if it is not in a language he or she understands (s 195
CPC. See also ss 223(4)(c) and 245(5)(c) in relation to certain depositions given by co-accused in High Court
proceedings). Furthermore, an accused can request that the judgment be translated into his or her own language,
at no cost and without delay. However, the limitation is that this will be done only “when practicable”( s 170 CPC)

Protection against retroactive criminal law: Under the Constitution, a person ‘shall not be held to be guilty of a
criminal offence on account of any act or omission that did not at the time it took place, constitute such an
offence’(Article 18(4). A person hence cannot be prosecuted for an offence created retroactively.

Right to remain silent and privilege against self-incrimination: Article 18(7) of the Constitution states that ‘a person
who is tried for a criminal offence shall not be compelled to give evidence at trial’. The effect is that the investigation
and prosecution cannot have recourse to the accused person and force him or her to answer questions. As such, the
provision includes the right to refuse to answer questions asked by police and prosecutors and also not to give
evidence on oath or to make an unsworn statement which should not be subjected to cross-examination.
In the case of Thomas Mumba v the PeopleHNR/438/1984the appellant was charged under the Corrupt Practices
Act, section 53(1) of which stated: ‘An accused person charged with an offence under part IV shall not, in his
defence be allowed to make an unsworn statement, but may give evidence on oath or affirmation from the
witness box.’ The High Court found the provision in breach of article 18(7) of the Constitution, since it had the effect
of compelling the accused to give evidence only on oath and thus be liable to cross-examination.

See also the case of MacDonald Chipenzi, Richard Sakala and Simon Mwanza v The People HPR/03/2014: “As I
earlier stated in this judgment, Section 67 [of the PC] offends against the Constitutional guarantee of presumption
of innocence as well as that which places the burden of proof of guilt upon the State. It requires an accused person
to prove lack of knowledge of the falsity of his statement, report or rumour and to show that he took reasonable
measures to verify the truthfulness of his statement, rumour or report. The general rule is that in a criminal trial,
the onus of proof remains on the State throughout and does not shift to the defence.”

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Compellability of Accused/Defendant: Article 18(7) of the Constitution enshrines the right of an accused not to be
compelled to give evidence at his or her own trial. Section 157 of the CPC further states that an accused (and his
wife) is a competent but not compellable witness.

Speedy trial: The Constitution recognises the right to be tried within a reasonable time(Article 18(9)). There are no
prescribed timelines in subordinate laws within which cases should be concluded. In practice many cases take several
years to conclude, thus violating the rights of concerned people to speedy trial. In BenardLubuto v Zambia (2001)
AHKR 37 (HRC 1995) the Human Rights Committee held that the period of eight years it took to conclude the
applicant’s case was incompatible with the right to fair and speedy trial.

Public trial: The Constitution requires that both trial and “the announcement of the decision of the court ... shall be
held in public”(Article 18(10)). However, this is subject to several exceptions, under which the court or any other
authority may hold proceedings excluding the public. These include where public attendance would prejudice the
interests of justice; in the interest of defence; public safety; public morality; welfare of persons under the age of 18
years; or the protection of the private lives of persons concerned(Article 18(11)).

Freedom of conscience, thought and religion

Read Article 19.

Article 19 allows individuals to embrace or not embrace any belief in divinity and to profess a religion of their choice.
It also allows the establishment of religious institutions including churches and schools, where they can offer
religious education. However, such institutions must comply with the relevant laws such as the Societies Act (for the
registration of societies such as churches)and the Education Act (for Schools). In order for the High Court to grant
redress under Article 28 of the Constitution, the applicant must satisfy the court that he or she has been, or is being,
or is likely to be hindered in the enjoyment of his fundamental rights and freedoms without his or her consent. There
may be a breach of a person's right to freedom of conscience if there is even a slight degree of hindrance in his or
her enjoyment of freedom of conscience or religious thought. Although a subjective test may be used in determining
whether one holds a religious opinion, an objective test must be used in determining whether a ceremony or
observance is religious in nature.

In the Kachasu case (excerpts below), an eleven year old girl challenged her suspension from school for refusing to
sing the National Anthem and to salute the National Flag, the High Court observed that a person is hindered in the
enjoyment of his freedom of conscience by being put under coercion to sing the national anthem against her
religious beliefs, and by being suspended from any Government or aided school because of her refusal, on religious

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grounds, to sing the national anthem or salute the national flag. However, the Court held that on the basis of an
objective test, the singing of the national anthem and the saluting of the national flag are not religious ceremonies
or observances. Read the case in full.

Kachasu v Attorney-General (1967) ZR 145 (HC)

To summarise my findings in relation to the relief claimed and the grounds therefor submitted in the
originating notice of motion, I find that:
(1) Regulations 25 and 31 (1) (d) of the Education (Primary and Secondary Schools) Regulations, 1966, are
valid and within the rule - making powers conferred by section 12 of the Education 30 Act, 1966; further,
that they do not conflict with any other provision of the Education Act, 1966, nor are they in conflict with
section 21 of the Constitution.
(2) The applicant has suffered hindrance in the enjoyment of her freedom of conscience in that she has
been coerced to sing the national anthem at Buyantanshi School contrary to her religious conscience; and
that she has been suspended from school and denied readmission thereto in consequence of her refusing
to sing the national anthem or salute the national flag.
(3) Such hindrance, however, does not constitute a contravention of her right to the enjoyment of freedom
of conscience, secured to her by section 21 of the Constitution, inasmuch as that hindrance is reasonably
justifiable in a democratic society and was authorised by laws which were both reasonably required in the
interests of defence and for the purpose of protecting the rights and freedoms of other persons, and
themselves reasonably justifiable in a democratic society. It follows that the applicant has not established
that any of the provisions of sections 13 to 26 (inclusive) of the Constitution have been, are being, or are
likely to be, contravened in relation to her, and that she is not entitled to any redress under section 28 of
the Constitution. There must be judgment for the Attorney-General with costs.

Read also the case of Kelvin Hang’andu in full. Do not rely on extracts given below.

Kelvin Hang’andu v Law Association of Zambia SCZ Judgment No. 36 of 2014:

This is an appeal from a judgment of the High Court delivered on 31st December, 2012 following a petition,
for the protection of fundamental rights, filed by the Appellant on 7th September, 2010. The main facts of
this matter are simple and substantially not in dispute.
….

His case is that he is an Advocate of the High Court of Zambia, and a member of the Law Association of
Zambia, the Respondent in this Appeal. That he has been a member of the Respondent since 15th November,

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1996, when he was admitted to the Bar. That on 24th May, 2003, he was baptized into the Christian faith of
the Seventh Day Adventists (SDA).That among the fundamental doctrinal beliefs of the SDA is the
immutable biblical command, enshrined in Exodus, Chapter 20, verse 8-11 of the Bible, that the seventh
day of the week is the Sabbath of the Lord, and must be sacredly observed between Friday sunset, and
Saturday sunset, through public worship and complete abstention from any form of menial work and
regular activity, such as participation in the Annual General Meetings and other meetings (hereinafter
collectively referred to as “the meetings”) customarily conducted by the Respondent on Saturdays.
….

The critical question for our decision, in our view, is whether or not the holding of the Respondent’s
meetings on the Sabbath hinders the Appellant’s enjoyment of freedom of conscience enshrined in Article
19(1) of the Constitution.

…..

We hold the considered opinion, and entirely agree with the learned trial Judge, that the term that needed
to be defined, in order to arrive at a clear understanding of Article 19(1) of the Constitution, was ‘hindered’
and not ‘freedom of conscience’. The drafters of our Constitution have already defined ‘freedom of
conscience’ in Article 19(1) itself. The Appellant has not advanced any solid grounds upon which we can be
persuaded to abandon the interpretation of ‘freedom of conscience’ contained in Article 19(1), in
preference to definitions derived by American Courts on the basis of their own Constitutional provisions.

Accordingly, we hold that the learned trial Judge properly directed himself when he defined ‘hindered’ on
the basis of definitions derived from English dictionaries.

Having ascertained the meaning of ‘hindered’, we must now consider whether or not the learned trial Judge
was on firm ground when he dismissed the Appellant’s claim that the Respondent had breached his
freedom of conscience. We hold that the trial Court was indeed on terra firma. Even accepting the
Appellant’s very poignant argument that freedom of religious conscience can still be indirectly – not
necessarily purposely – impeded or even effectually destroyed where the adherents of one religious faith
are confronted to abandon their religious convictions respecting a day of rest via a measure whose natural
or proximate or indirect result is to disadvantage members of a particular faith alone, we still hold the view
that, in this case, the Respondent has not infringed the Appellant’s freedom of conscience.

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The foregoing holding is resolutely founded on the fact that there is no evidence on the record of appeal to
establish that the Respondent has done anything to hinder the Appellant in the enjoyment of his freedom
of conscience. A careful scrutiny of the record of appeal establishes that the Appellant does not dispute the
fact that the Respondent started holding its meetings on the Sabbath way before he became its member.
While the Respondent was constituted in 1973, pursuant to the Law Association of Zambia Act, Cap 31, the
Appellant only became, its member on 15th November, 1996, following his admission to the Bar. According
to the Appellant’s own evidence, he participated in the Respondent’s meetings from 15th November, 1996
until 24th May, 2003, when he converted to Adventism. Following his conversion, he has faithfully observed
the Sabbath. The Appellant did not adduce any evidence whatsoever to prove that the Respondent has in
any way coerced him to choose attending its meetings at the expense of observing the [Link] also did
not tender any evidence to establish that the Respondent has imposed or threatened to impose any
sanction against him for having been missing its meetings since 24thMay, 2003. What is effortlessly
discernable from the Appellant’s evidence and submissions is that since he voluntarily converted from
Catholicism to Adventism, he has been devotedly observing the Sabbath. There is no evidence to establish
that he has been forced by the Respondent, even subtly, to abandon his observance of the Sabbath. So the
conduct of the Respondent cannot be said to have had the effect of impeding the Appellant in the
observance of the Sabbath. What the Appellant has been failing to do is to attend the Respondent’s
meetings which are held on the Sabbath. So in reality, in our view, since his conversion from Catholicism
to Adventism, the Appellant has enjoyed his freedom of conscience without any hindrance from the
Respondent.
….
In our view, what is manifest, from the evidence on the record of appeal, is that what the Appellant has not
been enjoying is his freedom to participate in the meetings of the Respondent and vie for elective offices
in the Respondent. Unfortunately for the Appellant, these freedoms are not recognized and protected by
our Constitution.

For the foregoing reasons, and on the authority of decisions in Sherbert v. Verner(5) and the Kachasu(14)
case, it is our considered opinion that the Appellant’s claim that the Respondent has violated his freedom
of conscience, is unsustainable.

Accordingly, we hold that the Respondent has neither directly nor indirectly hindered the Appellant in the
enjoyment of his freedom of conscience. Ground one must accordingly fail.

Freedom of expression

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Read Article 20 of the Constitution.

Article 20(1) largely mirrors Article 19 of the ICCPR as well as Article 10 of the European Convention for the Protection
Human Rights and Fundamental Freedoms, 1950. Freedom of expression includes the right to hold opinions without
interference, the right to receive ideas and information without interference, freedom to impart and communicate
ideas and information without interference and freedom from interference with one's correspondence.
In providing for freedom of expression so broadly, the Constitution has recognised the important role freedom of
expression plays in the democratic process. Similarly, by prohibiting the legislature from passing laws that may
derogate from the freedom of the press, the Constitution underscores the indispensable role the press plays in the
realisation of freedom of expression.

In the case of Re Munhumeso & Others (1994) ILRC 284, the Zimbabwean Supreme Court outlined the broad
functions of freedom of expression as follows:
“Freedom of expression, one of the most precious of all the guaranteed freedoms, has four broad special
purposes to serve:
(i) It helps an individual to obtain self-fulfillment;
(ii) It assists in the discovery of truth;
(iii) It strengthens the capacity of an individual to participate in decision making; and
(iv) It provides a mechanism by which it would be possible to establish a reasonable balance between stability
and social change.”

Restrictions on Freedom of Expression:

According to Article 20(3), in order for a restriction on freedom of expression or the press to be valid, it must meet
the following criteria.

 First, it must be provided for by law.

 Second, it must reasonably be required in any of the interests enumerated in clauses (a) to (c). These
"interests", especially those in clause (a), are expressed in very broad and vague terms. There is no
definition of `public safety', `public order' or `defence'. Almost any restriction can be justified on any of
these grounds. A timid judge will uphold all restrictions imposed by the State by giving a broad
interpretation to this clause. This has happened in a number of cases in Zambia. Furthermore, the restriction
need only be "reasonably required" to protect the listed interests as opposed to being "necessary" as under
Article 10 of the European Human Rights Convention, Article 19 of the International Covenant on Civil and
Political Rights and the Universal Declaration of Human Rights. The Zambian standard is less stringent than
that in international instruments as all that has to be shown is that the restriction is merely "reasonable"
or "desirable". It is not necessary to demonstrate a "pressing social need" or to give relevant and sufficient

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reasons for the restriction. The Zambian Supreme Court in the Christine Mulundikacase stated the following
principles as relevant to limiting the enjoyment of a right: that there must be adequate guidelines so that
the exercise of a discretion by the competent authorities should have the scope indicated and the manner
of its exercise set out in the affected law with sufficient clarity; there must be effective controls on the
exercise of the power to restrict the right in question and there must be a procedure to allow the aggrieved
person to challenge the decision. Such a procedure must be reasonable, fair and just; fundamental
constitutional rights should not be denied to a citizen by any law which permits arbitrariness and is couched
in wide and broad terms; and the principles of fairness are principles in their own right and ought to be
allowed to pervade all open and just societies.
 Third, the restriction must be reasonably justifiable in a democratic society. What constitutes a democratic
society is not defined by the Constitution. This will depend on the social philosophy of the judge hearing
the case and the scale of value he places on public interests.
The Supreme Court in the case of Christine Mulundikaidentified a number of features of a democratic society, which
it described as minimum attributes in any democracy: the availability of a Government which reflects the will of the
majority of the people expressed at periodic and genuine elections; the power of the state should reside in the
people and where this is exercised on their behalf, the mandatory is accountable; apart from the free and informed
consent and maximum participation of the governed, it is also common to expect that the people have and actually
enjoy basic rights and freedoms and these are available to the majority as well as to any minority; the freedoms of
expression and assembly are [Link] Supreme Court noted in this casethat the requirement of prior permission
to gather and to speak, which permission can be denied sometimes for good and at other times for bad cause not
contemplated by the Constitutional derogation, directly affects the guaranteed freedoms of speech and assembly.
A derogation which is so broad as to cover restrictions both within and without the limits of constitutionality cannot
be upheld.

Statutory Restrictions on Freedom of Expression

Apart from restrictions contained in the Bill of Rights, Alfred Chanda (2005) lists the following laws as placing several
restrictions on the enjoyment of freedom of expression. Most of these laws were passed by the colonial government
to contain rising African nationalism. Such repressive laws, however, were not repealed after independence but in
some cases were even enhanced. The return to multiparty democracy in 1991, the amendments to the constitution
in 1996 and 2016 did not lead to any slight change.

1) Sedition

Section 57(1) of the Penal Code prohibits sedition. Any person who does any of the following is guilty of an offence
and is liable for a first offence to imprisonment for seven years -

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(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act
with a seditious intention;
(b) utters any seditious words;
(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious publication;
(d) imports any seditious publication, unless he has no reason to believe that it is seditious.
Section 60(1) defines a seditious intention as an intention -
(a) to advocate the desirability of overthrowing the government by unlawful means...; or
(b) to bring into hatred or contempt or to excite disaffection against the
government ...; or

(c) to excite the people of Zambia to attempt to procure the alteration, otherwise than by lawful means, of
any other matter in Zambia...; or

(d) to bring into hatred or contempt or to excite disaffection against the administration of justice in Zambia;
or
(e) to raise discontent or disaffection among the people of Zambia; or
(f) to promote feelings of ill-will or hostility between different parts of the community; or
(g) to promote feelings of ill-will or hostility between different classes of the population in Zambia; or
(h) to advocate the desirability of any part of Zambia becoming an independent state or otherwise seceding
from the Republic; or
(i) to incite resistance, either active or passive, or disobedience to any law or the administration thereof.
The proviso to this section says that an intention shall not be taken to be seditious if it is an intention -
(i) to show that the government have been misled or mistaken in any of their measures; or
(ii) to point out errors or defects in the government or constitution or in legislation or in the administration
of justice, with a view to the reformation of such errors or defects; or
(iii) to persuade the people of Zambia to attempt to procure by lawful means the alteration of any matter
in Zambia; or
(iv) to point out, with a view to their removal, any matters which are producing or have a tendency to
produce feelings of ill-will or hostility between different classes of the population of Zambia.

These sections are a serious impediment on press freedom and freedom of speech generally. Many of the activities
prohibited in this section (s 60(1)) are taken for granted in a democratic society. It is usually the role of civil society
organizations and opposition political parties to raise matters of public importance the government may not be
paying attention to and thereby creating public disaffection. Not only does the section prohibit peaceful opposition
but does not make truth a defence to a charge brought under it.

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2) Power to ban Publications

Section 53(1) of the Penal Code grants the President absolute discretion to prohibit any publication or series of
publications published within or outside Zambia, that he considers to be contrary to the public interest. What
constitutes the public interest is within his/her sole discretion. Any person who imports, publishes, sells, offers for
sale, distributes, or reproduces any prohibited publication is liable to imprisonment for up to three years.

An attempt to challenge the President's power under this section failed in Edward Jack Shamwana v. Attorney-
General(see extracts below).In this case, two political detainees, Edward Shamwana and Valentine Musakanya, sent
a petition to the National Assembly, requesting the Assembly to review the state of emergency, which had been in
existence since independence. In March 1981, President Kaunda banned the said petition. Shamwana sought an
order from the High Court declaring that the President's decision to ban the petition was wrongful, unlawful and
unconstitutional. He contended that a petition to the National Assembly could not be prejudicial to the public
interest and that by proscribing the document the President was negating his oath of office to uphold the
Constitution. Justice Florence Mumba held that the President had acted within powers conferred on him by section
53 of the Penal Code and that the President's opinion was not open to question and that his decision following upon
such an opinion could not be impugned. The Supreme Court dismissed the appeal on similar grounds (reproduced
below). The courts in this case took the easy way out. There is no such thing as unchallengeable discretionary power.
The courts have power to check abuse of discretionary power where the said power is exercised unreasonably, or in
bad faith or where the person concerned takes into account irrelevant considerations or fails to take into account
relevant considerations, or acts under dictation.

Section 53 is clearly incompatible with democracy, as the existence of a free press is entirely dependent on the
goodwill of the President. As long as we have timid judges who are reluctant to review the President's actions this
power will continue to be abused.

For example, in 1996 the President banned edition 401 of the Post Newspaper because it prematurely disclosed a
plan by the government to organize a referendum over the Constitution. It is submitted that section 53 is
unconstitutional as the powers given to the President are overbroad and cannot be reasonably justified in a
democratic society.

3) Publication of False News

Section 67(1) of the Penal Code stipulates that any person who publishes, whether orally or in writing or otherwise,
any statement, rumour or report which is likely to cause fear and alarm to the public or to disturb the public peace,
knowing or having to believe that such statement, rumour or report is false, is guilty of an offence and is liable to

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imprisonment for up to three years. This provision has a chilling effect on the freedom of the press as journalists
publish stories at their own risk. (See the Chipenzi case above on the status of this provision)

4) Defamation
Defamation is the publication of a statement that reflects on a person's reputation and tends to lower him in the
estimation of right thinking members of society generally or tends to make them shun or avoid him. The defamatory
meaning of the communication may be apparent on its face or it may arise from extrinsic circumstances, which the
plaintiff is then required to prove. Defamation is made up of two torts, i.e., libel and slander.

Libel is a defamatory statement or representation in permanent form, e.g. a picture, statue, waxwork effigy, or any
writing, print, mark or sign expressed to view. Broadcasting, both radio and TV, and theatrical performances are, by
statute, treated as publications in permanent form. On the other hand, slander is a defamatory statement or
representation conveyed by spoken words. It is important to distinguish libel from slander for two reasons. First,
because libel is a crime as well as a tort. Slander per se is not criminal albeit spoken words may be punishable by
common law or statute as being treasonable, seditious, blasphemous, tending to breaches of the peace, etc. Second,
libel is actionable per se, that is, without proof of special damage (actual damage). This means that no damages are
recoverable merely for loss of reputation by reason of the slander and that the plaintiff must prove loss of money or
of some temporal or material advantage estimable in money. It is not enough for the plaintiff merely to lose the
society of his
friends.

The Law of defamation is important as it is aims at protecting the reputations of other persons. Both the Constitution
of Zambia, in Article 20(3)(b), and international and regional instruments, recognise the need to protect reputations.
Freedom of expression is not a license for destroying the reputations of other persons.

However, a rigorous implementation of defamation law may have a chilling effect on freedom of expression. It may
also undermine good governance, transparency and accountability, as the press, for example, may not publish
certain information for fear of legal suits. Similarly, members of the public may be reluctant to provide information
to the press or the authorities for the same reason. Defamation law may thus hinder public debate of national issues.
The challenge in a democracy is, therefore, to strike an optimum balance between the legitimate interests of
individuals not to have their reputations besmirched and the interest of the public to have access to relevant
information and to have unhindered debate of public issues. This is especially important with regard to public figures.

5) Criminal Defamation

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The offence of criminal libel is created under Chapter XVIII of the Penal Code. Section 191 provides that any person
who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other
sounds, unlawfully publishes any defamatory matter concerning another person, with intent to defame that other
person, is guilty of “libel”. Publication of defamatory matter is unlawful unless: the matter is true and it was for the
public benefit that it should be published; and it is privileged on one of the grounds mentioned in the chapter.
Since the law on civil defamation is sufficient to protect the right to reputation, there is no reason why the offence
of criminal defamation should be maintained in a democratic country. In practice, prosecutions for criminal libel
have been instituted against those who have allegedly defamed politicians of the ruling party as well as members of
their families, the President’s wife and children and senior government officials.

6) Defamation of the President

Section 69 of the Penal Code seeks to protect the President's reputation and the dignity of his office by providing
that any person who, with intent to bring the President into hatred, ridicule or contempt, publishes any defamatory
or insulting matter, whether by writing, print, word of mouth or in any other manner, is guilty of an offence and is
liable on conviction to imprisonment for up to three years. In the cases of The People v. Bright Mwape & Fred
M’membe1087, Fred M’membe& Bright Mwape v. The People, and Fred M’membe, Masauso Phiri & Goliath
Munkonge v. The People (see extracts below) both the High Court and the Supreme Court upheld the
constitutionality of section 69 on the ground that it is reasonably required in the interests of public order and is
reasonably justified in a democratic state In the view of courts, the Constitution elevates the President above
everyone else and he can, therefore, not be compared to an ordinary person. For example, the President is
immunized from both civil and criminal proceedings while in office. According to the court, given the fact the
President enjoys a special status, it is legitimate and justifiable to seek to protect his reputation, as section 69 does.
Moreover, allowing people to defame the President might lead to a breakdown of law and order
as supporters of the President may physically attack those defaming the President.

These arguments are specious and speculative. They miss the point that the President is a servant of the people and
not their master and whether or not he has a good reputation depends on his conduct while in office. A good
reputation must be earned and not legislated. Furthermore, no one is forced to run for the office of President. Those
who choose to do so must be thick-skinned and must be prepared to lose a large part of their privacy. Why should
the law give the President liberty to defame his opponents at will by immunizing him from legal suits while making
it criminal for his opponents to defame him? The civil law of defamation is sufficient to protect the President’s
reputation. If fact, almost all genuine democracies do not have such discriminatory laws.

7) Obscenity

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The law on obscenity is meant to protect society’s morals. Section 177(1) of the Penal Code provides that any person
involved in any of the following activities is guilty of a misdemeanour and is liable to imprisonment for five years or
to a fine.
a. makes, produces or has in is possession any one or more obscene writings, drawings, prints, paintings,
printed matter, pictures, postages, emblems, photocopies, cinematograph films or any other object tending
to corrupt the morals; or
b. imports, conveys or exports or causes to be imported conveyed or exported, any such matters or things
or in any manner whatsoever puts any of them in circulation; or
c. carries or takes part in any business, whether public or private, concerned with any such matters or
things, or deals in any such matters or things in any manner whatsoever, or distributes any of them, or
exhibits any of them publicly or makes a business of lending any of them; or
d. advertises or makes known by any means whatsoever with a view to assisting the circulation of, or traffic
in, any such matters or things that a person is engaged in any of the acts referred to in this section, or
advertises or makes known how, or from whom, any such matters or things can be procured either directly
or indirectly; or any show or performance tending to corrupt morals.

On convicting any person of an offence against this section, a court may order the confiscation of any matter or thing
made, possessed or used for the purpose of such offence. A court is empowered, on the application of a public
prosecutor, to order the destruction of any obscene matter or thing to which the section relates regardless of
whether or not the defendant has been convicted in respect of such obscene matter or thing.

Below are case summaries relating to freedom of speech:

Arthur Lubinda Wina, Frederick Titus Jacob Chiluba, Vernon Johnson Mwaanga, AkashambatwaMbikusitaLewanika,
Levy Patrick Mwanawasa, Ephraim Chibwe and Andrew Kashita v The Attorneygeneral (1990 - 1992) ZR 95 (HC)

The President of Zambia had, at a news conference, issued a directive that certain Government owned
newspapers were not to provide coverage to or accept advertisements from the Movement for Multi-Party
Democracy. The petitioners applied for on order quashing and setting aside the directive as it violated their
rights in terms of articles 22 and 25 of the Constitution of Zambia.

The next question for determination is the status of what the papers were told not to be doing. Was that a
directive or not? The answer to this is that those who listened to that press conference, and I was one of
them, would no doubt say that was a directive, simple and clear. I accordingly find and hold that it was a
directive….

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The next issue arising from this finding is: did the directive discriminate between the petitioners and their
members on the one hand and these who held views similar to those held by the President on the other
hand? The answer again is in the affirmative. The nature of the directive is such that it cannot command
any other interpretation even from those really hostile to the petitioners. That discrimination was against
the petitioners and their followers and in favour of the UNIP leaders and their members.

Was that discrimination legal or, put in other words, was the directive within the provisions of the
Constitution: art 22 and 25? Before I answer this question I would like to examine one or two aspects which
arose in this case. The first one is whether or not the office of the President is a constitutional creation. The
answer is that it is such a creation, by art 37 of the Constitution.
….

That directive was discriminatory of the petitioners and their cadres. The reasons for the discrimination was
that they had held different political views from those of the President and his members. The newspapers
which were given the directive are owned by the Government. In the light of these findings, the directive
would be unconstitutional unless it falls within one of the permitted derogations. The first such derogation
is consent of the victims of the discrimination. In this case none of the petitioners consented to his being
excluded from the enjoyment of the freedom of expression. The directive in question was not a written law
as it was not enacted by Parliament in order to attract the considerations of art 22(2)(a), (b) and (c). But the
directive fell within the 'in the performance of the functions of any public office' part of art 25(2) of the
Constitution. Clause 6 of this art (25) provides that: 'Clause 2 shall not apply to anything which is expressly
or by necessary implication authorised to be done by any such provision of law as is referred to in clause
(4) or (5).'
….

The next question is: did this directive constitute a hindrance of the petitioners from their enjoyment of
their freedom of expression. My very considered answer is that it did. It did because in order for them or
indeed anybody else to fully enjoy this freedom they must be able to receive and publish information. The
receipt part is what I would call an inlet of information to the person. The publication is the outlet of
information from that person to another person or other persons. If either of these, inlet or outlet, is
blocked without the consent of the individual in question and without any legal justification for the
blockade, then that is a denial of the constitutional freedom of expression. This is especially so where the
blockade is effected by means of a piece of legislation or by any person in the performance of the functions
of any public office or public authority. Since the petitioners were not allowed to publish their views on
matters political through the Government newspapers, and by necessary implication even through radio an

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try, they were denied the enjoyment of their freedom of expression. Thus they were hindered from
exercising their said right. I have found and held that the directive in question, and thus the hindrance
already explained, was unconstitutional and therefore
illegal. As President of the Republic of Zambia, His Excellency the President whose GRUND NORM is the
Constitution of Zambia, is not allowed by the law to make pronouncements which are contrary to any
provision of the Constitution. Unless the Constitution is amended, everybody from the President down to
the commonest of the common man is obliged to follow to its letter what it says. And this is so whether it
is in a one party or a multi-party political arrangement. Since the directive in question was unconstitutional
it is hereby quashed.

Edward Jack Shamwana v. The Attorney-General (1988 - 1989) ZR 44 (SC)

The appellant appealed against a judgment of the High Court dismissing his application that the President's
order proscribing his petition to the National Assembly was unconstitutional. The President, when he
decides to prohibit publication, should publish such order in the Gazette 'and in such local newspaper as he
may consider necessary'. The appellant argued that such choice of newspaper was left to the President but
that publication was mandatory and not directory. The appellant had presented a petition to his Member
of Parliament setting out grievances. After the Speaker and all members of Parliament had received copies,
the President declared the petition a prohibited publication. The respondent argued that in terms of a
petition being before Parliament and therefore being part of the proceedings in Parliament that could not
be prescribed, the petition under Standing Orders must be signed by the member of Parliament in charge
of the petition and be deposited with the Clerk of the National Assembly for one clear day and thereafter
be endorsed by the Speaker. The appellant argued his petition was properly before Parliament.

It must now be decided whether the President's failure to publish the banning order in a local newspaper
is fatal to the validity of the order. The appellant's viewpoint was that such failure was fatal as the
requirement was mandatory. But Mr. Goel argued in the alternative that the requirement was directory
and that, as such, non-compliance was not fatal to the banning order.
….

In this case, the general object to be secured by the requirement is to communicate the banning order to
the general public. In our opinion, publication of the banning order to the general public is mandatory. As
the general object of the requirement was here fulfilled through publication of the banning order in the
Gazette, we do not think that the omission to publish it in a local newspaper can be said to be fatal to its
validity. In other words, whilst the publication of the banning order to the general public is mandatory, we
would regard the requirement to publish in a local newspaper as directory.

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The nub of this ground hinges on the appellant's belief that the petition was before Parliament and that, as
such, freedom of debate could not be censured by a Presidential opinion no matter how honestly held that
opinion might be. As we have already held, the petition was not before Parliament and so the banning order
cannot be said to have interfered with the freedom of debate in Parliament. It is Parliament that has
conferred (under section 53(1) of the Penal Code) an absolute discretion on the President to ban a
publication, which, in his opinion, is contrary to public interest.

M'membe and Mwape v. The People (1995 - 1997) ZR 118 (SC)

The appellants had been charged in a magistrate's court with contraventions of s 69 of the Penal Codein that they
had allegedly defamed the President. They requested the magistrate to refer the matter to the High Court in order
to determine the constitutionality of s 69 of cap 146. The High Court heard argument on the issues whether s 69
contravened arts 20 and 23 of the Constitution and ruled that they did not. On appeal it was submitted on behalf of
the appellants that the criminal provision offended against the right to freedom of expression in art 20 and was
discriminatory and thus in breach of s 23 of the Constitution.

Speaking for myself, the judge below was right to reject arguments which sought to consign the President
into the general rank and file of the citizenry. He was not in error when he considered that s 69 was
reasonably required, in effect to forestall a possible unpeaceful reaction from the citizens and supporters
and to protect the reputation of the first citizen. I do not consider that there can be any who would seriously
dispute that side by side with the freedom of speech is the equally very 'important public interest in the
maintenance of the public character of public men for the proper conduct of public affairs which requires
that they be protected from destructive attacks upon their honour and character'. See my judgment in SATA
v Post Newspapers Ltd and Another (1992/HP/1395 and 1804 and 1993/HP/821 - unreported). When the
public person is also the Head of State, the public interest is even more self-evident. The truth of the matter
is that there is nothing in art 20 which immunises defamation. In my considered opinion, a law meets the
test of being reasonably required if it has as its aim at least one of the interests or purposes listed in art
20(3). It is also reasonably required upon the test of proportionality when, as the Court of Appeal of
Tanzania put it, 'Secondly, the limitation imposed by such law must be no more than reasonably necessary
to achieve the legitimate object. This is what is also known as the principle of proportionality.' - See Pumbun
v Attorney- General (1993) 2 LRC 317.
….

The election of any person to the office of President, I would have thought to be self-evident, has legal and
constitutional consequences, quite apart from any other result. The Constitution itself ordains that he

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become Head of State and of Government; that the executive power of the state vest in him and that he be
endowed with the various matters, powers and functions described in the Constitution. I do not see how it
can be argued that the President should stand before the law equally with the rest of us when, for example
art 43 grants him immunity from civil or criminal suit while he occupies that high office. If the Constitution
itself makes the President not equal to everyone else, how can the accused's arguments be maintainable?
The second ground of appeal must fail of its own inanition.

Michael Chilufya Sata v Post Newspapers Limited and Printpak Zambia Limited 1993/HP/1395 and 1804 and
1993/HP/821 (High Court)

The plaintiff was at all material times a politician and public official holding a Ministerial appointment. The
defendants published in their newspaper "The Post" (and formerly "The Weekly Post")various articles and a cartoon.
The plaintiff sued for libel and the defendants
pleaded fair comment. Their rolled-up plea asserted that the allegation contained in the articles complained of
consisting of fact were true and those consisting of comments were fair comments on matters of public interest. In
respect of some of the matters complained of, there was a denial that they could bear the defamatory imputations
assigned to them by the plaintiff in his pleadings. There were three separate actions which were consolidated into
one.
….

Before analysing the issues raised in the pleadings and the evidence, it is necessary to give precedence to a
proposition put forward by Mr. Sikota and Mr. Lungu which was to the following effect, as I summarise it:
Because Article 20 of our Constitution of 1991 specifically recognises, among others, the principle of the
freedom of the press, it is now time, to modify the common law principles of the law of defamation in their
application to plaintiffs who are public officials as to their right of action, the burden and standard of proof,
and the latitude the press should be permitted to subject public officials to criticism and scrutiny. It was
argued that because of the similarity between the provision in our Constitution and that of the USA, we
should choose to follow the line taken by the American courts rather than the one followed by the courts
in England. In this regard, it was submitted that I should apply the landmark case of New York Times v L.B.
Sullivan and Ralph D. Abernathy, et. al., v L.B. Sullivan1146; in which the Supreme Court of the United States
laid down some principles grounded in the First and Fourteenth Amendments to fetter libel actions by
public officials to the benefit of free speech and press freedom.
….

The question arises: Should the rationale and principles relating to impersonal criticism be extended to
public officials in the wholesale manner suggested by the submissions in this case? In the opinion of the

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court in Sullivan which was delivered by Mr. Justice Brennan, stress was laid on the fact that the alleged
libelous publication caused injury to official reputation. The court weighed the public interest of the public
receiving information against possible injury to official reputation of public figures and took the view that
the chances of injury to their private or personal character were usually very small when the discussion was
on official conduct. The judges were ever so careful to draw the distinction between injury to official
reputation arising from official conduct and injury to the personal character of an official. The protection of
the constitution was not extended to injury to private character or the private conduct of a public official.
….

Our Constitution in Article 20 recognises both the freedom of the press and the right to reputation. A
balance has to be struck and I do not consider that a good old balance can be struck by shifting the burden
or standard of proof; nor by straining to discover a new qualified privilege; nor by immunizing falsehoods
to any greater extent than the Defamation Act already provides.

Let me make it clear that I fully endorse the view that some recognition ought to be given to the
constitutional provisions in Article 20 and I accept that impersonal criticism of public conduct leading to
injury to official reputation should generally not attract liability if there is no actual malice and even if,
pursuant to S.7 of the Defamation Act, CAP.70, the truth of all facts alleged is not established if the
imputation complained of is competent on the remainder of the facts actually proved. However, I would
reject the proposition in Sullivan to the extent that it sought to legalise character assassination of public
officials or to shift the burden of proof so that knowledge of falsity or recklessness should be proved by the
plaintiff and to a degree of convincing clarity.
….

In contrast, our own Constitution is less vague, though I agree with the general principle of not simply
allowing the existing law of defamation to operate without due regard to the need to lend greater meaning
and effect to the Article 20 provisions. The dilemma is that our Constitution attaches equal importance to
freedom of the press and the right to reputation, without distinction whether such reputation belongs to a
private or public individual. I have agonised and given very careful consideration to the competing
propositions that it is for the interests of society that the public conduct of public men should be criticised
without any other limit than that the writer should have an honest belief that what he writes is true; and
the equally important public interest in the maintenance of the public character of public men for the
proper conduct of public affairs which requires that they be protected from destructive attacks upon their
honour and character if made without any foundation. I have come to the conclusion that there is no
need to formulate a new set of principles to impose new fetters on the right of a public official to recover
damages. However, in order to counter the inhibiting or chilling effect of litigation, I am prepared to draw

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a firm distinction between an attack on the official public conduct of a public official and imputations
that go beyond this and attack the private character of such official which attack would be universally
un-sanctioned.I am also prepared, when considering the defence of fair comment on a matter of public
interest arising from the conduct of a public official, to be more generous and expansive in its application.
Of course, it would be unwise for me to attempt an exhaustive description of what would be a generous
application of the defence but it seems to me that where an allegation complained of can properly be
regarded as comment on the conduct of a public official in the performance of his official duties or on
conduct reflecting upon his fitness and suitability to hold such office, freedom of speech and press can
best be served in Zambia by the courts insisting upon a higher breaking point, or a greater margin of
tolerance than in the case of a private attack before an obvious comment based on facts which are
substantially true can be regarded as unfair. Although considerably stretched at the seams, the existing
defence would remain intact and the public official still able to recover damages for comment that is
rendered unfair by any outrageous or aggravating features in the case.
….

In sum, it is my considered opinion that the constitutional protection of reputation and free speech or press
can best be balanced in Zambia, when the plaintiff is a public official who has been attacked in that
character, by a more generous application of the existing defences. The chilling effect of litigation would
thereby be mitigated to some extent, just as it would be considerably eased by the courts constantly seeking
to promote free speech and press by keeping a careful eye on the size of awards which perhaps are the true
chilling factor especially if they involve any exemplary or punitive element.

Shamwana v Mwanawasa (1993-1994) ZR 149 (HC)

The plaintiff issued a writ of summons claiming damages for malicious slander and an injunction restraining the
defendant from referring to the plaintiff as treason ex-convict or as convict in the light of an absolute or presidential
pardon. By an ex parte summons, the plaintiff applied for an interim injunction.

At the end of the day, having weighed the mischief sought to be restrained and the principles and
authorities, and having considered the affidavits to the extent that they were not objectionable for being
argumentative and non-factual and also having taken all the submissions into account, I am not satisfied
that this is an appropriate case in which I should exercise the discretionary jurisdiction of the Court to
restrain the defendant by interlocutory injunction pending trial. I have also not lost sight of the principle
that adequacy of monetary compensation is nearly always a ground for not granting such interlocutory
relief. Of course, I do not propose to dwell on the arguments related to the plaintiff's right to seek election
to political office nor the defendant's right to campaign freely for or against any person. Such arguments

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were, in my considered opinion, otiose and surplus to the requirements of this application since the issue
was simply whether it was necessary and appropriate to grant an interlocutory injunction to prevent
irreparable or serious mischief.

Ludwig Sondashi v Multi Media Zambia 1996/SCZ/88

In 1987 the appellant was a UNIP Provincial Central Committee member for Northwestern Province. On
18th January 1987, the Sunday Times of Zambia published an article headed "Tribal Wrangle Rocks Solwezi"
in which it was reported that the appellant said, at a Civil Servants Union of Zambia meeting that nurses in
the province who did not learn to speak local languages would not be recommended for promotion. The
allegations were investigated by Mr. Elijah Mudenda, then Chairman of the Appointments and Disciplinary
Subcommittee of the Central Committee of UNIP and found to be false. In 1992, he was a Minister of Labour
and Social Security and Zambia National Provident Fund fell under him. On 20th March 1992, the Zambia
Daily Mail published an article "NPF Workers Strike. It's a Showdown - Sondashi."

The strike was about the appointment of Mrs. Dorothy Mulwila by the appellant as Director of the Zambia
National Provident Fund. In that article, the appellant is alleged to have told Union members of the Zambia
Union of Financial Institutions and Allied Workers that if he did not appoint people from his province who
would appoint them. At the trial, the appellant testified that when he saw the article he telephoned the
Editor and told him that he never uttered the words attributed to him and demanded a retraction. No
retraction came and the matter ended there. Against this background, the respondent in its weekly issue
of the National Mirror for the week January 18th - 24th, 1993 invited the general public to make general
comments and rate the Ministers.

....

Then in its weekly issue for the week 8th - 14th February 1993 the respondent published the offending
article in which appeared also comments affecting other Ministers. The article stated: "Mr. Sondashi is also
branded an established tribalist, typical dictator, fairly nice minister, a Minister who welcomes new ideas
but needs to work closely with people and he has betrayed the entire labour force because of too much
pruning, retrenchments and sacking of people."

The appellant then commenced an action against Multi-Media Zambia, the proprietors of the National
Mirror, for damages for libel. The learned trial judge considered the defence of fair comment put up by the
respondent and upheld it and dismissed the claim.
…

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The appellant appealed to the Supreme Court.

….

We have carefully considered the evidence on record and the arguments on both sides and the authorities
cited in support of these arguments. We are satisfied that the words complained of were a publication of
the opinion poll expressed by the general public. We are also satisfied that the public opinion was based on
the newspaper articles which were produced in court. We are further satisfied that at the time of the
opinion poll the general public were not aware that the allegations against the appellant had been proved
false or that the appellant had denied them. We are also satisfied that the respondent did not verify the
opinions expressed by the public. The obvious question is were the comments not honest and was the
publication of those comments inspired by malice. The answer to the first part of the question is obviously
no because the general public believed that the facts upon which they expressed their opinions were true
as they were not aware that the appellant had either denied those allegations or had been cleared.

As regards the second part of the question the fact that the respondent did not verify the opinions is not
per se evidence of malice. And as Lord Bramwell said in Abrath1162 "a man may be the publisher of libel
without a particle of malice or improper motive". The court must therefore consider the offending article
in its entirety and the occasion on which it is made to construe malice. The article in this case is a
reproduction of the public opinion about the appellant and it has two facets, the positive and negative
things about the appellant. In resolving this issue this is what the learned trial judge said, at page 12 of the
record: "To the extent that the article complained of also contained positive comment about the plaintiff
from some other readers, I find that the article was well balanced and there was no malice. More so that
the article was not confined to the plaintiff alone but all the Ministers serving at the time."

We would agree with the learned trial judge that the way the article was published negatives any improper
motive or malice on the part of the respondent. Had the respondent only published the negative aspect of
the public opinion then the position would have been otherwise. We would therefore, for the foregoing
reasons, refuse the appeal with costs to be taxed in default of agreement.

The Queen v. Chona (High Court, 1962)

The accused was the National Secretary of the United National Independence Party, and in that capacity issued, in
November 1961, a document describing the evils of Colonial rule, which was addressed to all district secretaries,
constituency secretaries and international representatives of the party for “distribution and publication.” The
document was signed by the accused. He was charged with publishing a seditious publication contrary to s.53D(1)(c)
of the Penal Code.

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In my view, looking at the words themselves, the only meaning which any reasonable person can have
intended to convey when he wrote the press statement is that colonialism is a bad thing and must be
destroyed; that the mock justice administered by the courts and the manner in which the courts rubber-
stamped oppression is but an example of the evils of colonialism….
….

Reading the article as a whole, I do not believe the accused when he said that this statement, addressed to
“Freedom Fighters” was a publication which intended to point out errors or defects in the administration
of justice with a view to remedying such errors or defects. The statement was written for the purpose of
ensuring an enthusiastic and widespread reaction by members of the party so that they would take action
to bring pressure upon the Government of the United Kingdom and thus achieve their ends….

I therefore find that when this article was written and when on or about November 20th, 1961, it was
published to divisional secretaries, the constituency secretaries and to the international representatives of
UNIP and to the press, it was a seditious publication because it intended to bring into hatred or contempt
and to excite disaffection against the administration of justice in the Territory, and it did not fall within the
exemptions set out in the latter part of s. 53G(1) of the Penal Code. The intention of the publication was
not to put right errors and defects, but to excite hatred and contempt and disaffection against the
administration of justice for the purpose of propagating the policy of UNIP.
….

As I read the Penal Code, the offence is not “with a seditious intention publishing written or printed matter”,
it is “publishing written or printed matter, which matter has a seditious intention.” In other words if a
person publishes a document which is a seditious publication because it has a seditious intention, then he
does so at his peril.
….

There the legislature specifically adopted, as a criterion, the intention with which the libel was published.
The criterion which the legislature adopted in the sections dealing with the publication of a seditious
document, was not the intention of the publisher but the intention contained in the document, which can
only be estimated by the effect which it must have upon the reasonable reader in the circumstances of its
publication.

The People v Paul Kasonkomona HPA/53/2014

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Paul Kasonkomona, an activist for the rights of LGBT people, was on the 7 th April 2013 a guest on a TV programme
hosted by Muvi Television, having been invited to give his perspective on the rights of sexual minorities. 32He was
promptly arrested by police just after the TV programme ended and subsequently charged with the offence of idle
and disorderly conduct contrary to section 178(g) of the Penal Code on the ground that he did solicit for immoral
purposes for homosexual rights to be respected in Zambia.

The Subordinate Court, however, demonstrated that there is in fact a relationship between the provisions as that
was the fulcrum around which the case was in fact resolved. The magistrate considered that two elements of the
crime were satisfied, that is, that the accused, by taking part in a TV programme, was engaging the public, and that
the topic the accused was discussing was immoral to the extent that same sex is prohibited under the law. The
magistrate, however, concluded that however immoral a topic could be, merely discussing it was a different thing
altogether; that the accused was simply “advocating for the rights of those already practicing it [homosexuality] to
be protected.” The magistrate further opined that what the accused did was analogous to someone advocating for
laws on defilement (child rape) and capital punishment to be amended, which would obviously not be considered
as importuning for an immoral purpose. The magistrate considered that what the defendant did was simply
exercising his freedom of expression guaranteed under Article 20 of the Constitution and acquitted him.

The state appealed to the High Court, but Judge Mulongoti in the High Court agreed with the decision of the
Subordinate Court, that the defendant “was exercising his right to freedom of expression as found by the
magistrate” and therefore, his participation in a debate “advocating for gay rights did not amount to soliciting for
immoral purposes.”33

MacDonald Chipenzi, Richard Sakala and Simon Mwanza v The People HPR/03/2014

The three Applicants were jointly charged before the Subordinate Court at Lusaka with one count of publication of
false information with intent to cause fear and alarm to the public, contrary to Section 67 (1) of the Penal Code,
Chapter 87 of the Laws of Zambia.

The particulars of the offence were that the trio, on the 10lh day of December 2013, at Lusaka, in the Lusaka District
of the Lusaka Province of the Republic of Zambia jointly and whilst acting together did publish a false article in the
DAILY NATION Tabloid Volume 3, issue number 632 dated 10th December 2013, stating that “THE SECRET POLICE
RECRUITMENT HAS BEEN CONDEMNED AT AS A CONDUIT OF FUSING FOREIGN TRAINED MILITIA INTO THE MAIN
STREAM POLICE SERVICE” a statement or report likely to cause fear and alarm to the public or disturb public peace.
The High Court held:

32
The People v Pual Kasonkomona CR. 9/04/13
33
The People v Paul Kasonkomona HPA/53/2014, pages 10/12

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“Looked at from the era of its enactment, therefore, I am of the view that the intention in Section 67 was to suppress
native dissenting views which could have the effect of formenting insurrection against the colonial rulers. In the
absence of a constitutionally guaranteed right it may have been good law at the time, at least to the ruling elite
though not to the freedom agitations. It may, therefore, have served a purpose at the time.”

“As I earlier stated in this judgment, Section 67 offends against the Constitutional guarantee of presumption of
innocence as well as that which places the burden of proof of guilt upon the State. It requires an accused person to
prove lack of knowledge of the falsity of his statement, report or rumour and to show that he took reasonable
measures to verify the truthfulness of his statement, rumour or report. The general rule is that in a criminal trial, the
onus of proof remains on the State throughout and does not shift to the defence.”

“In conclusion, I find and hold that Section 67 does not fit under Article 20 (3) of the Constitution. It goes beyond
what is permissible under that clause. I, therefore, find that Section 67 does not pass the test of being “reasonably
justifiable in a democratic society.”
“It contravenes Article 20 of the Constitution and is null and void, and therefore invalid for unconstitutionality. It
follows also that the invalidity and the constitutional guarantee of freedom of expression preclude the prosecution
of persons and the criminalization of alleged false statements under Section 67.”

Freedom of assembly and association

Read Article 21.

Freedom of assembly and association is an essential element in a democratic government. Justice C. Chitoshi aptly
stated this in the case of William Steven Banda v. The Attorney-General :
The very idea of a government, republican in form implies a right on the part of citizens to meet peaceably
for consultation in respect of public affairs. The purpose of public meetings is the education of the public
and formation of opinion on religious, political, economic and social problems. Hence the right of assembly
is intimately connected with the right of freedom of speech and expression guaranteed by Article 20.

Derogations from Freedom of Assembly and Association: The constitution in Article 21(2) permits the State to pass
legislation which may restrict the guaranteed rights on various grounds similar to those applicable to freedom of
expression. The standards such restrictive laws must conform to have already been explained above in the section
on freedom of expression. Several pieces of legislation place limitations on the exercise of freedom of assembly and
association.

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Alfred Chanda (2005) lists the following:

1) The Public Order Act

Public assemblies are regulated by the Public Order Actwhich has been on the statute books since 1955. The Public
order Act has been used principally to stifle protests against the government. The Act underwent a major
Amendment in 1996 in response in the Supreme Courts’s decision in Christine Mulundika and 7 Others v. The People.
In this case the applicant and seven others, including the former Republican President, Dr. Kenneth Kaunda, were
charged in a Magistrate’s court with unlawful Assembly contrary to section 5 of the Public Order Act.

Section 5 required anyone who wished to hold a public meeting, procession or demonstration to apply to the police
for a permit. The police were entitled to reject the application, or if they decided to allow the said event, they could
impose conditions. Among these conditions were: the persons who may or may not be permitted to address such
assembly or public meeting; the matters which may not be discussed at such assembly or public meeting, etc. Section
7 made it an offence to contravene section 5, which was punishable by imprisonment of up to six months or a fine
not exceeding one thousand five hundred penalty units, or to both. The applicants argued that sections 5 and 7 of
the Public Order Act were unconstitutional as they infringed the guarantees of freedom of expression and assembly
in the Constitution. The Magistrate’s Court stayed the criminal proceedings until the constitutional issue was dealt
with by the High Court. The High Court, fearing that it might create a vacuum, declined to declare the two sections
unconstitutional. The Supreme Court struck down sections 5 and 7 of the Public Order Act for being unconstitutional
as they infringed upon the freedoms of expression and assembly guaranteed by Articles 20 and 21 of the
Constitution, respectively.

The Court held that section 5(4) was not reasonably justifiable in a democratic society for a number of reasons: the
uncontrolled nature of the discretionary power vested in the regulating authority; the fact that the regulating
authority was not obliged, when imposing a ban, to take into account whether disorder or breach of the peace could
be averted by attaching conditions upon the conduct of the procession or meeting such as relating to time, duration
and route; although the rights to freedom of expression and assembly are primary and the limitations thereon
secondary, section 5(4) reversed the order, in effect denying such rights unless the public meeting or procession was
unlikely to cause or lead to a breach of the peace or public disorder;
the criminalization of a procession or meeting held without a permit irrespective of the likelihood of occurrence of
any threat to public safety or public order; and the lack of adequate safeguards against arbitrary decisions.

2) The Societies Act

The formation and operation of societies and associations is regulated by the Societies Act. The Act requires every
society, unless specifically exempted from registration, to be registered. The Registrar of Societies may under section
8 of the Act refuse to register:

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“..any society where it appears to him that such society has among its objects, or is likely to pursue or to be used
for, any unlawful purpose or for any purpose prejudicial to or incompatible with the peace, welfare or good order in
Zambia, or that the interests of the peace, welfare or good order in Zambia would otherwise be likely to suffer
prejudice by reason of the registration of such a society.”

This provision gives a wide discretion to the Registrar to deny registration to any society that the government does
not like. But in doing so he must act fairly. In Labson Zimba v. The Attorney-General the applicant applied for the
registration as a society of the Mutendere Branch of Jerusalem Church . The Registrar refused the application on the
ground that the interest of peace, welfare or good order in Zambia would be likely to suffer prejudice. On appeal the
Minister upheld the said refusal. The applicant applied for an order of certiorari to remove into the High Court for
the purpose of quashing the decision of the Registrar, and the Minister on two grounds. First, that he was not
afforded an opportunity to be heard when the application and appeal were considered; nor was he notified of any
information available to the Registrar and Minister that would have had a bearing on the application so that he
would have had an opportunity of meeting it. And secondly that the reason for the refusal was without merit, as
there was no evidence to show that any of the grounds set out in section 8 applied. Justice Hadden held that provided
the Registrar properly refused the application on grounds contained in section 8, such refusal would not be a
violation of the applicant's constitutional rights. He held further that the Registrar was under a statutory duty to
have regard to certain criteria; he had to determine whether the interest of peace, welfare or good order in Zambia
would be likely to suffer prejudice. There was a duty on the Registrar to act fairly and this required him, in
considering the statutory grounds upon which he could refuse registration, to give the applicant a sufficient
indication of any relevant objection raised against him to enable him to meet such objection without necessarily
disclosing his source of information. As the applicant was not provided with this information or opportunity Justice
Hadden quashed both the decision of the Registrar to refuse registration and the subsequent decision of the Minister
to sustain the refusal.

Section 13 of the Act provides that:

13. (1) The Minister may, in his discretion, cancel at any time the registration of any society effected under
the provisions of section seven if he is satisfied that it is expedient so to do on the ground that-
(a) the society concerned has, in his opinion, among its objects, or is, in his opinion, likely to pursue, or to
be used for, any unlawful purpose or any purpose prejudicial to or
incompatible with the peace, welfare or good order in Zambia; or
(b) the interests of peace, welfare or good order in Zambia would, in his opinion, be likely to suffer prejudice
by reason of the continued registration of such society.
(2) The Registrar may, in his discretion, cancel at any time the registration of any society effected under the
provisions of section seven if he is satisfied that it is expedient so to do on the ground that-

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(a) the terms of the constitution or rules of such society are, in his opinion, in any respect repugnant to or
inconsistent with the provisions of any law for the
time being in force in Zambia; or
(b) the society concerned has, in contravention of the provisions of section seventeen, altered its objects
or pursues objects other than its declared objects; or
(c) the society concerned has failed to comply with an order made under the provisions of section nineteen
or twenty within the time stated in such order; or
(d) he has reason to believe that any such society has ceased to exist as a society; or
(e) the society has changed its name and the new name it
has adopted-

(i) is identical with that of any other existing society; or

(ii) so nearly resembles the name of such other society as, in the opinion of the Registrar, is likely to deceive
the public or the members of either society; or
(iii) is, in the opinion of the Registrar, repugnant to or inconsistent with the provisions of any law for the
time being in force in Zambia or is otherwise undesirable.
(3) Prior to cancelling any registration under the provisions of this section, the Registrar shall notify his
intention to the society concerned and shall give such society an opportunity to submit reasons why the
registration should not be cancelled.
(4) A society which has had its registration cancelled under the provisions of paragraph (c) of subsection (2)
shall not be entitled to apply for re-registration until the order concerned has been complied with.
It may be noted that while the Registrar is required to give the affected society a hearing before cancelling its
registration the Minister is not obliged to do so. The Minister is given unfettered power, which may be abused. This
is exemplified by the case of SACCORD. In this case the Minister of Home Affairs in 2004 deregistered an NGO, the
Southern African Centre for Constructive Resolution of Disputes (SACCORD), and refused to give reasons for his
action. He also had not given the applicant a hearing before taking his decision. This ban was nullified by
the High Court in the case of Lee Habasonda (suing on behalf of SACCORD) v. The Minister of Home Affairs and the
Attorney General. The Court held that section 13(1)(a) of the Societies Actwas unconstitutional because it gave the
Minister unfettered and uncontrolled subjective discretion. It contravened Articles 20 and 21 of the Constitution as
it reduced the freedoms of expression and association to the level of a mere licence which could be granted or
denied on the
subjective satisfaction of the Minister.

Another problematic provision of the Societies Act is section 23(1) which provides that the Minister may, “..in his
absolute discretion, where he considers it to be essential in the public interest, by order, declare to be unlawful any
statutory society which, in his opinion-

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(a) is being used for any purpose prejudicial to or incompatible with, the maintenance of peace, order and good
government; or
(b) is being used for any purpose at variance with its declared objects.”

The effect of such an order is to immediately cancel the registration or rescind the exemption of the society in
question. The wording of this provision makes it hard to challenge the Minister's action in court. The Kaunda regime
availed itself of this provision to ban opposition political parties during the first Republic. For example, the United
Party led by the late NaluminoMundia, was banned in 1968; the United Progressive Party (UPP) led by the late Simon
Kapwepwe was banned in February 1972. A successor to the UPP, the United Peoples Party, led by Alfred Musonda
Chambeshi, was banned within weeks of its formation in 1972. Another opposition party, the African National
Congress (ANC) led by the late Harry Nkumbula, had its branches in Mumbwa and Livingstone banned. The
prohibition of these parties was accompanied by mass arrests and detentions without trial of the leaders. President
Kaunda justified the prohibitions on the ground that the parties were a threat to peace and stability. The government
also used the Societies Act to ban religious sects such as the Lumpa Church of Alice Lenshina and the Sacred Heart
of Makumbi.

Below is a summary of cases relevant to the freedom of assembly and association:

Christine Mulundika and 7 Others v The People (1996) 2 ZR 175

The appellants, who included former Republican President, Dr. Kenneth Kaunda, were arrested and charged with
unlawful assembly for attending a meeting without a police permit, contrary to the Public Order Act. In the
Magistrate’s court they challenged the constitutionality of sections 5
and 7 of the Public Order Act. The Magistrate stayed the criminal proceedings and referred the the constitutional
question to the High Court. The High Court declined to hold the said sections unconstitutional for fear of creating a
vacuum. The appellants appealed to the Supreme Court.
The requirement of prior permission is an obvious hindrance to two very important freedoms under the
constitution since the right to organise and participate in a public gathering is inherent in the freedom to
express and to receive ideas and information without interference and to communicate ideas and
information without inference. The fact or possibility that permission to assemble and to speak may be
refused - so that the constitutional freedoms are denied altogether - on improper or arbitrary grounds or
even on unknown grounds, renders the subsection objectionable for a variety of reasons.
………

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Quite apart from the possibility of unconstitutionally denying the fundamental rights, the absence of
adequate and objective guidelines in subsection 4 leaves it seriously flawed.
……….

The implication is that the permit must be refused unless the regulating officer is able to satisfy himself or
herself to the contrary. It is difficult to imagine a clearer recipe for possible arbitrariness and abuse. The
constitutional arrangements for democracy can hardly survive if the free flow of ideas and information can
be torpedoed by a misguided regulating officer.

The other aspect is whether there are any effective controls on the exercise of the power to grant or refuse
a permit under the subsection being discussed. There are in fact none so that the regulating officer is not
required to give reasons for refusal and there is no procedure provided to act as a safeguard for an
aggrieved unsuccessful applicant which is reasonable, fair and just. Fundamental constitutional rights
should not be denied to a citizen by any law which permits arbitrariness and is couched in wide and broad
terms.
….

Unfortunately, experience teaches and it is sadly not hypthetical that in this country, the requirement for a
permit to gather and speak has been used since 1953 to muzzle critics and opponents as well as alleged
troublemakers. It has also been used to deny permission on grounds that had nothing to do with securing
public order and safety. For example, there was much litigation in our courts during the recent transition
to plural politics engendered by denials of permits on spurious grounds.
….

Though therefore the police can no longer deny a permit because the requirement for one is about to be
pronounced against, they will be entitled -- indeed they are under a duty in terms of the remainder of the
Public Order Act -- to regulate public meetings, assemblies and processions strictly for the purpose of
preserving public peace and order. The police and any other regulating authority can only perform this
other very necessary function of giving directions and imposing conditions if they are notified, in advance,
of any gathering proposed to be held. Such notification would necessarily differ in form and content from
an application for permission under the subsection challenged in these proceedings. While, therefore, we
would urge that the whole Public Order Act should be reviewed and modernize in its entirety to enable the
police to carry out their duties effectively without contravening any provision in our constitution, we are
satisfied that, meanwhile, it would not be unlawful for the Inspector-General of Police, as the appropriate
authority under the Act, to devise some simple and practical method of receiving notifications. Quite
clearly, all those organising meetings and processions have a corresponding obligation to enable the police
to carry out the regulatory function by giving notice. We repeat our convictions that, contrary to the

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submission by learned the citizens of this country their freedom to assemble and speak. The requirement
of a prior permit is a left over from the days of Her Majesty's Governors and the British themselves do not
require permission to assemble and speak.
…

In sum and for the reasons which we have given, we hold that subsection 4 of section 5 of the Public Order
Act, CAP 104, contravenes Articles 20 and 21 of the constitution and is null and void, and therefore invalid
for unconstitutionality. It follows also that the invalidity and the constitutional guarantee of the rights of
assembly and expression preclude the prosecution of persons and the criminalization of gatherings in
contravention of the subsection pronounced against. Accordingly, a prosecution based on paragraph (a) of
Section 7 which depends on subsection 4 of section 5 would itself be inconsistent with the constitutional
guarantees and equally invalid. The appeal is allowed.

Resident Doctors Association of Zambia and 51 others v. The Attorney-General ,Appeal no. 39/2002, SCZ No. 12/2003

On 20th April, 2000, the 2nd Petitioner gave a written notification to the Commanding Officer of Lusaka,
that the Petitioners would hold a public procession on 27th April, 2000, in order to raise public awareness
on the pathetic situation prevailing in public hospitals and the poor conditions of service for doctors. The
commanding officer, one Mr. Mayonda, informed them on 26th April, 2000 that he would not grant them
permission to demonstrate because he had information that there was a group of people who did not agree
with the Petitioners’ demonstration and was ready to disrupt it. He also indicated that the police did not
have enough manpower to police the situation. He then endorsed on the application the words: “the
application is rejected on grounds that the demonstration will cause a breach of peace”. He did not suggest
any alternative date on which the demonstration could be conducted. When the Petitioners asked for an
alternative date on which to conduct their match, Mr. Mayonda told them that the matter was closed.
Notwithstanding this refusal, the Petitioners sourced 50 Marshals and conducted the Match on 27th April,
2000. Clad in their doctors’ gowns, they started off from Kabwe round about through Cairo Road, using the
outer lane. They observed the procedures required during processions, and there was uninterrupted flow
of traffic. The Petitioners carried placards which conveyed various messages. No member of the public
attacked them during the procession but instead others joined the match. They were intercepted by the
Police between Freedom House and Findeco House and told to disperse. The Petitioners refused to do so
and told the Police that they were a peaceful group, conducting a peaceful demonstration and requested
the Police Officers to escort them up to Ndeke House where the procession was to end. The Police refused
to escort them and insisted that the Petitioners should disperse. The Petitioners continued with their
procession and joined Independence Avenue where again they were intercepted by the Police. The Police
confronted the 2nd Petitionser, Dr. Jonathan Tembo, and told him that he would personally be held

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responsible since he was a signatory to the application for permission to match. The Petitioners again
ignored the Police Order to abandon the match and they continued until they reached the Freedom Statute
at about 11:00 hours. The Police then arrested the 2nd Petitioner and took him to Lusaka Police Station
where he was detained. Despite the arrest of the 2nd Petitioner, the rest of the Petitioners continued with
the procession and before they reached the first traffic lights, the 7th Petitioner, Dr. Mary Shapi, was
bundled into a Police car and whisked away to Lusaka Central Police station where she was detained in the
cells.
….

While it cannot be denied that all manner of speech and assembly are acceptable, there is need for the
Court, when interpreting provisions conferring fundamental rights, to adopt an interpretation which does
not negate the rights. Most jurisdictions have adopted a generous and purposive construction of human
rights instruments, so as to confer on a person the full measure in the enjoyment of the rights.
…

We agree entirely, with these decisions. The Police, in this case, flagrantly violated the Public Order Act and
consequently infringed the Petitioners’ rights as enshrined in Articles 20 and 21 of the Constitution.

The Petitioners complied with the law and duly notified the Police within the time allowed by law. The
regulating officer had a duty to inform the Petitioners in writing at least five days before the event, if they
were unable to police the march and propose alternative days. The Petitioners’ right to assemble and march
therefore accrued at this stage. The regulating officer’s endorsement of a purported rejection of the march,
a day before the event for reasons that the demonstration would cause a breach of the peace, was not a
valid exercise of power under the
Act. Section 5(7), which prohibits the holding of the event after the have indicated in writing their inability
to police the event can only be invoked when there has been a valid notification to that effect. The learned
trial Judge therefore fell into error to have invoked this clause and find that the Petitioners were in breach
of the law. In our view, the learned trial Judge completely negated the Petitioner’s rights of expression and
assembly when he held that the Petitioners had breached the Provisions of the Act.
As we stated in the case of Mulundika and 7 Others vs The People1113 “… invalidity and constitutional
guarantee of the rights of assembly and expression preclude the prosecution of persons and the
criminalisation of gathering in contravention of the subsection pronounced against”. We therefore allow
the first ground of appeal and find the learned trial Judge misdirected himself in law and fact to have held
that the Petitioners ere in breach of the Public Order Act when they proceeded with march on 27th April,
2000.

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Law Association of Zambia, Zambia Episcopal Conference, Christian Council of Zambia, Evangelical fellowship of
Zambia and Nongovernmental Organisations Co-coordinating Committee v. The Attorney-General, The Inspector
General of Police and the Commanding Officer at Lusaka Central Police 2001/HP0 382

This was an application for an interim mandatory injunction by the applicants for an order that the second
and third respondents “either by themselves, their agents or otherwise howsoever be restrained from
preventing, stopping and or/hindering the applicants from going ahead with their planned procession or
march from Freedom Statue to Kafue Roundabout and from holding their planned public rally at the said
Kafue Roundabout, both events which commence at 10:00 hours and at 17:00 hours.”
….

The State has failed to appear and defend the allegations in the affidavit sworn by Mr. Mundia that in fact
the 3rd Respondent has threatened to crush the participants of the intended event. This is most
unfortunate. I find that the Police have acted in bad faith and contrary to the spirit of the Public Order Act,
which if adhered to by both themselves and conveners will not bring any unnecessary litigation like in the
instant case. The applicants have a good arguable case and indeed they will suffer irreparable injury since
this matter touches on fundamental rights enshrined in the Constitution. The Police in this case have not
followed the very Act which guides their role in these matters. If indeed they have information that the
situation is volatile this is the more reason that they should police the meeting and ensure that there is law
and order during the intended meeting. Because the Police have clearly acted in bad faith they are estopped
from refusing to police the meeting. Their action is mala fide and the way they have acted shows that they
intended to frustrate the applicants in the exercise of their constitutional rights.

I therefore grant the application as prayed in order that the intended meeting by the applicants take place
as planned and the Police must police the meeting to ensure law and order.

Labson Zimba v. The Attorney-General (1979) Z.R. 83

The applicant applied for the registration as a society of the Mutendele Branch of Jerusalem Church. The registrar
refused the application on the ground that the interest of the peace, welfare or good order in Zambia would be likely
to suffer prejudice. The said refusal was upheld on
appeal to the minister. The applicant applied for an order of certiorari to remove into the High Court for the purpose
of quashing the decision of the Registrar. He submitted that he was not afforded an opportunity to be heard when
the application and appeal were considered and secondly that the reason for the refusal was without merit.

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As in the case of R v Gaming Board for Great Britain, ex parte Benaim, the registrar was under a statutory
duty to have regard to certain criteria; he had to determine whether the interests of peace, welfare or good
order in Zambia would be likely to suffer prejudice. There was a duty on the registrar to act fairly and this
required him, in considering the statutory grounds upon which he could refuse registration, to give the
applicant a sufficient indication of any relevant objection raised against him to enable him to meet such
objection without, of, course, necessarily disclosing his source of information. As the applicant was not
provided with this information or opportunity, the refusal to register by the registrar and the subsequent
decision on appeal must be set aside.

The order of the court is that the procedures regarding the application to the registrar and those on appeal
be removed into the High Court for Zambia to be quashed forthwith. Application granted.

The Attorney-General and the Labour Commissioner v. Zulu, C. Kamukwamba, Mundia, Muyangwa and Others (1995-
1997) ZR 33(Supreme Court)

Respondents applied for registration of a union. The Labour Commissioner rejected the application on grounds that
the Zambia National Union of Teachers existed and represented secondary school teachers. Respondents applied to
the High Court for a declaration that their constitutional rights had been infringed. The Commissioner ruled in favour
of the Respondents. The Attorney-General appealed, advancing four grounds of appeal.

MrKinariwala argued grounds one and two together. He submitted on grounds one and two that s 9(8)(c)
of I the Industrial and Labour Relations Act provides: 'Nobody registering as a trade union shall be registered
if it purports to represent a class or classes of employees already registered by an existing trade union or
are eligible for membership of an existing trade union unless the union intended to be registered represents
a specific trade or profession or category or eligible employees who are qualified to form a trade union.' He
submitted that the intention of Legislature behind s 9(8)(c) of the Act is not to allow more than one trade
union in an industry unless the second trade union is intended to represent a specific trade or profession
or category of employees who are qualified to form a trade union.
….

This law has in my view made a provision for registration of trade unions. Section 9(8)(c) of the Industrial
and Labour Relations Act of 1993 is not in any way in conflict with art 21(2)(c) of the Constitution. The
section is not ultra vires art 21 of the Constitution. The learned trial commissioner erred in construing s I
9(8)(c) of the Industrial and Labour Relations Act of 1993 as being in conflict with art 21 of the Constitution.
I fully agree with the argument by the appellant that the section is not in conflict with the provisions of the
Constitution.

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….

In this case in order to avoid absurdity and an unjust situation, the Court read in some missing words. In the
instant case there is no question of implying any meaning or adding any words. The strict and literal
interpretation simply means nobody can register as a union if there is one in existence unless the union
intended represents a different class or category of employees. The intention of the Legislature is generally
to restrict mushrooming of unions. I do not see any unreasonable situation arising in applying strict
interpretation of the section. The section permits to register another union if they satisfy conditions laid
down by the section. In the present case, there is a union in existence; both groups of teachers are eligible
to become members. The respondent's complaint is that they are not adequately represented. The
evidence in the Court below showed that secondary school teachers were eligible for membership of the
existing trade union ie Zambia National Union of Teachers. I take judicial notice of the existing structure in
the field of H education. There are in existence basic schools which run from Grade 1 up to Grade 9.

Grades 8 and 9 are junior secondary schools. The teaching staff at these schools covers all grades from
Grade 1 to Grade 9. I take further judicial notice that the Government is the sole employer of the teachers
for the primary, basic I and secondary schools. If two unions came into existence the Government will be
faced, when negotiating conditions of service for schools, with two unions. The two unions will be
negotiating with the Government for conditions of their teachers covering the same schools. In my view
this was not intended by the legislation. I do not think that the teachers in the secondary schools are a
different class from the teachers in primary and basic schools. I am unable to agree with Mr. Simeza's
argument or contention that secondary school teachers belong to a different class. The two groups of
teachers belong to one teaching profession and there is an existing a union to which both groups or classes
are eligible for membership. For the foregoing reasons I would allow this appeal.

Freedom of movement

Read Article 22.

Freedom of movement has a wide scope. It includes the right to move about freely in Zambia, the right to settle or
live in any part of Zambia and the right to leave and return to Zambia. With regard to the right to leave and return
to Zambia, the Supreme Court in Cuthbert M. Nyirongo v. The Attorney-General (see extracts below) held that a
Zambian has a right to a passport since it is a prerequisite for the exercise of the said right. Only grave security
considerations can justify refusal to issue a passport or confiscation of a passport by the State. Like other rights,
freedom of movement is subject to restrictions that are reasonably required in the public interest and are reasonably
justifiable in a democratic society. For example, a person may be placed in custody pending trial or deportation.

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Moreover, a court of law may, upon trying a person for a criminal offence, sentence such a person to a term of
imprisonment. Laws that are relevant here include the Protected Places Act, the Public Health Act, the Immigration
and Deportation Act, etc. The Law of Tort and the Penal Code also have a bearing on the exercise of freedom of
movement. The State is also empowered to impose restrictions on foreigners. A foreigner does not have a right to
enter the country. The State may require that only foreigners issued with visas or those exempted from doing so,
may enter the country. Similarly, the state may impose restrictions on the movements of foreigners within the
country, particularly refugees. Thus, the Refugee Control Act 1970, inter alia, regulates the movement of refugees in
Zambia. Moreover, during a state of emergency a person’s freedom of movement may be curtailed by being
restricted or detained without trial in the name of preserving national security.

Below are case summaries of cases relevant to freedom of movement:

Cuthbert Mambwe Nyirongo v. The Attorney-General 1991/SCZ/10

The appellant was found guilty of possessing Cannabis and fined. Before the appellant was arrested in connection
with that offence the Drug Enforcement Commission took possession of some of the appellant's belongings including
his passport. After the appellant was convicted he applied for the return of his passport but to no avail. He sued the
Attorney-General in the High Court for the return of the passport. The High Court, dismissing his application, held
that it was not a right but a privilege to possess a passport, that the issuing authority had a discretion to grant or
refuse a passport, that the passport was the property of the government, and that the appellant was a self-confessed
criminal who had abused the privilege granted to him by engaging himself in drug trafficking which was an
international crime. The appellant appealed to the Supreme Court.

We therefore hold that a Zambian citizen has a right to the issue of a passport subject always to the
restrictions referred to in Article 24(3)(a) of the old Zambian Constitution, which Article has now been
replaced by Article 22 of the present Constitution.
….
There is therefore no law applicable to the circumstances of this case which enables the appellant to be
deprived of his right to the issue or possession of a passport. This appeal is allowed and we make a
declaration that the appellant is entitled to the return of his passport or a replacement thereof if his
passport has been physically cancelled.

Edith ZewelaniNawakwi (female) v The Attorney-General (1990 -1992) ZR 112 (HC)

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Talking about passports, I think it is an opportunity to say here that the holding of a passport by a Zambian
is not a privilege. It is not a privilege because he/she has a right of movement enshrined in the Constitution:
art 24 of the Constitution. In order to travel outside the country a Zambian citizen needs a valid Zambian
passport or travel document. Just as they don't get permission from the authorities to travel from one part
of the country to another, so do they not need to get permission to travel outside the country. Since they
cannot travel outside the country without passports, they are entitled to have them, unless legal restrictions
attaching to the freedom of movement imposed by the Constitution validly apply.

Non discrimination

Read Article 23.

This article covers both de jure and de facto discrimination based on race, tribe, sex, place of origin, marital status,
political opinions, colour or creed. As is evident, Article 23 does not prohibit discrimination on the grounds of religion,
language, social origin, property, non-political opinions, birth or other status, disability, pregnancy, age, culture and
belief. It does not even have an express equality clause as is the case with many other constitutions . Moreover, it
applies only to persons acting by virtue of any written law or in performance of the functions of any public office or
any public authority. This means it does not have a horizontal application, that is to say, it does not prohibit
discrimination perpetrated by private persons or entities. Furthermore, the anti-discrimination clause sanctions
discrimination under customary law or personal law. But it is well-known that most of the discrimination against
women occurs in the area of personal law and customary law given the fact that Zambian society is patriarchal. The
cases of Sarah Longwe v. Intercontinental Hotel and Elizaberth Mwanza v. Holiday Inn illustrate the kind of difficulties
women face as a result of this clause. The effect of the exemption is to undermine the rights of women because it is
precisely under personal law and customary law that women suffer the most discrimination.
Although disability is not mentioned specifically as a ground for discrimination, in the case of Brotherton v Electoral
Commission of Zambia 2011/HP/0818, the High Court found that by not providing disabled people with facilities for
easy access to polling stations, persons with disabilities were discriminated against. This is notwithstanding that
disability was not specifically listed as a ground of discrimination in the Constitution.

Below are relevant case summaries:

Edith ZewelaniNawakwi (female) v The Attorney-General (1990 -1992) ZR 112 (HC)

The applicant, an unmarried mother, applied for declarations that the names of her two children should be included
on her passport without the need to obtain the consent of the putative father. The court found as a fact, inter alia,

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that on a previous application the applicant obtained the particulars of her children entered on her passport by firstly
swearing an affidavit stating she was the mother of a particular child born out of wedlock. When subsequently she
applied for the renewal of the passport she was told by the passport office of the need to swear an affidavit in similar
terms to the affidavit sworn initially. She refused to do so because, she said, the procedure was discriminatory,
wasted time and incurred unnecessary cost and she applied to the Court for the declaration. The applicant argued
that the need to swear the affidavit as a single mother offended various articles of the Constitution. The respondent
put the point in cross-examination that because the applicant had been issued with a passport she applied for she
had no cause of action which related to her children.

In my considered view it is not at all justified, from whatever angle the issue is looked at, for a father to
treat himself or to be treated by the institutions of society to be more entitled to the affairs of his children
than the mother of that child or those children. The mother is as much an authority over the affairs of her
children as the father is. There would of course be some cases where one of the parents may lose,
temporarily or forever, his/her share of that entitlement. Such a situation may arise where a parent
abandons a child or children or becomes so mentally sick that the best interests of the child or children
would dictate his/her exclusion from him/her or them. Each such case would of course depend on its own
facts.

The realities of these times have brought about another dimension to this problem of children parentage.
This case now before this Court is one in point. Here the petitioner is both the father and mother of the two
children. She is an unmarried mother. She is bringing up her two children without a husband. Now is it fair
for this society to have to require of her to have been or to be married in order for certain things to be
possible to be done for her children? The answer, in my considered view, is in the negative! It is in the
negative because firstly the reality of her situation and of many others like her is that she has illegitimate
children; and secondly because discrimination based on gender only has to be eliminated from our society.
Men and women are partners and not only partners but equal partners in most human endeavours. They
must thus be treated equally.

Going back to the facts of this case, Zambia has to accord every mother of a child, single or married, the
same powers that the father enjoys. Anything less would not be justified. The fear that the mothers may be
stealing children if they are allowed to include their young children in their passports is a very unreasonable
argument because in all honesty they are entitled to have those children where they want them to go. One
cannot steal what belongs to oneself. It should be a matter between the father and the mother of a child
to resolve as to whether to allow a child to go to country A and not to B. If they cannot agree then one or

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both of them should be free to apply to court for a solution. Such a situation would not arise in the case of
a single parent.

Thus when all is said and considered I find and hold that (1) the petitioner has been unfairly discriminated
against on the ground of sex; (2) the petitioner's children's particulars be indorsed in her present passport
without a requirement for her to furnish fresh affidavit or other fresh documents in respect of them; (3) a
single-parent family headed by a male or female is a recognised family unit in the Zambian society; (4) a
passport is part of the freedom of movement and as such it is a right for every Zambian to have one or be
indorsed in one unless there is a valid legal excuse barring such possession or endorsement; and (5) a
mother of a child does not need to get the consent of the father to have her children included in her
passport or for him/her or them to be eligible for obtaining passports or travel documents. Either parent
has the inalienable right to be a recommender, in whatever form the recommendation is required to be
made, for the child or children. This applies to birth certificates and passports in this country as they do to
other things. I also award the costs of this action to the petitioner. Application granted.

PhllisBubala Kasempa v. The Attorney General 1994/HP/4916

The facts of the case are not in dispute and they are that the Petitioner who is a single woman was recruited
in the Zambia Air Force as a Corporal on 1st June, 1989. Under the terms of her contract she would have
served for seven years with an option to serve for a further thirteen years. The petitioner served for four
years up to 31st December 1993 when she was discharged from the Force because she became pregnant
outside wedlock. Her becoming pregnant outside wedlock was said to have contravened clause 8(b) of the
Zambia Air Force Administrative Instruction No. 35 and she was discharged under Regulation 9 (3) of the
Defence Force (Regular Force) (Enlistment and Service) Regulation, Third Schedule Serial No. (XVIII).

Administrative Instrument No. 35 is neither an act of Parliament nor a Statutory Instrument and cannot be
said to be a rule of law by any stretch of the imagination. It is nothing more than an administrative circular
and is not covered by the proviso contained in Article 23 (5) of the Constitution.
Clause 8 (b) of the Administrative Instrument which was used by the Respondent to discharge the
Petitioner from the Zambia Air Force is quite clearly discriminatory and falls foul of Article 23 of
Constitution. I will grant the Petitioner a declaration that the provisions of Administrative Instruction No.
35 are null and void for being in conflict with the Constitution of the Republic of Zambia.

Stanley Kingaipe and Charles Chookole v Attorney General 2009/HL/86

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Having regard to the authorities cited herein, I find that the petitioners’ to protection from inhuman and
degrading treatment under Article 15, the right to privacy under Article 17 were violated. I must hasten to
note that after the petitioners were put on ARVs they responded positively to the treatment and this is
going by their own evidence- but this does not take away the fact that their fundamental rights to privacy
and protection from inhuman treatment were infringed.

….

I must say that, listening to the petitioners on this point, they were not convincing though they tried to
insist that they were discharged because of their HIV status. Indeed having regard to the facts of the whole
case, I find that there is no evidence to show that the petitioners were discharged because they were HIV
positive. The relief sought by the petitioners must fail for lack of merit and evidence.

….

For avoidance of doubt, my judgment is that and I declare that the respondent’s decision to carry out
mandatory HIV tests on the petitioners without their informed consent was a violation of their right to
protection from inhuman and degrading treatment and the right to privacy. The damages are as stated
herein.

Protection of young persons

Read Article 24. The Article protects young persons from exploitation. It prohibits employing young persons “in any
occupation or employment which would prejudice his health or education or interfere with his physical, mental or
moral development” (Article 24(1). Article 24(2) protects young persons against “physical or mental ill-treatment,
all forms of neglect, cruelty or exploitation” and Article 24(3) prohibits trafficking of young persons. For purposes of
this Article, a young person is defined as “any person under the age of fifteen years.”(Article 24(4)). Note however
the confusion caused by the 2016 amendment to the constitution where in Article 266 a young person is defined as
“a person who has attained the age of nineteen years, but is below the age of thirty-five years.” Considering that the
Bill of Rights was not affected by the 2016 amendment, the definition of a young person in Article 24(4) must prevail.

Weaknesses of the Zambian Bill of Rights

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There are several weaknesses inherent in the Zambian Bill of Rights. First, very few unprogressive provisions in other
statutes, such as the CPC, offend human rights provisions in the Constitution. This, however, is not due to the fact
that subordinate laws have excellent human rights standards but that the Constitution has several broadly defined
exceptions that almost every other law easily meets. Furthermore, various human rights provisions in the
Constitution are expressed in language lacking in specificity and are hence liable to interpretations that may water
them down.

Secondly, due to the drafting style the Bill of Rights has inherent weaknesses in how the rights are provided for, that
is, primarily as constraints on state power and much less so as personal entitlements. Most of the rights in the Bill
of Rights, including personal liberty and the right to privacy, are not given as positive affirmations or entitlements
but as a residue of constraining state power. The right to privacy is simply provided for by prohibiting searches on
one’s person or property, while the right to liberty is described in terms of constraints on unlawful arrest and
detention. This, coupled with several broadly crafted exceptions, makes it difficult to know the actual content of a
certain right.

Thirdly, the Constitution does not provide for many rights that are now associated with the criminal justice system
or which are usually found in international normative frameworks and relatively new African constitutions such as
those of Kenya and South Africa. The right to bail, for example, is taken for granted in many jurisdictions, but is not
provided for in the Constitution.

In addition to these weaknesses, Alfred Chanda (2005) lists the following weaknesses in the bill of Rights:

1) Lack of Gender Neutrality

First, the Bill of Rights is not expressed in gender neutral language. It uses the masculine terms `he' or `him' or `his'
in describing the person who is entitled to rights.

2) Language
Second, the Bill of Rights is framed in highly technical language which makes it difficult for the ordinary person to
understand it. In contrast, the Bills of Rights of South Africa, Kenya, Malawi, Namibia, among others, are written in
simple user-friendly language which any ordinary literate person can understand. A Bill of Rights should not be the
preserve of lawyers.

3) Lack of domestication of international instruments

Fourth, although Zambia has ratified all the major international human rights treaties, such as the International
Covenant on Civil and Political Rights, 1966, the International Covenant on Economic, Social and Cultural Rights,
1966, the Convention on the Elimination of All Forms of

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Discrimination Against Women 1979, the Convention on the Rights of the Child 1989, the African Charter on Human
and People's Rights, 1981 and scores of others these have not been incorporated in the domestic legal system and
cannot, therefore, be directly enforced in Zambian courts.

4) No controls on presidential power to declare an emergency

Fifth, there are few controls on the President's power to declare a state of emergency and the safeguards provided
to those detained without trial are inadequate.

5) Weak Institutional structure

The institutional structure for the protection and enforcement of fundamental rights and freedoms under the
present constitution is very weak. The system entirely depends on a litigant bringing action in court to challenge a
governmental action. Because of poverty and ignorance few people can do this. Moreover, the lack of specialization
on the bench has led to mediocre decisions being handed down in constitutional cases.

6) Wide Derogation clauses

The Bill of Rights contains wide derogation clauses which have the effect of negating the essential content of the
rights protected. Most of the rights can be restricted on the grounds of defence, public safety, public order, public
morality and public health. In addition to these
general restrictions almost all the rights (except for protection from torture, or to inhuman or degrading treatment)
have further restrictions. The right to property, for example, has twenty-six (26) additional restrictions. The only test
that these restrictions must meet is that: first they must be reasonably required in one of the specified interests;
and secondly, they must be reasonably justifiable in a democratic society. These phrases do not easily lend
themselves to definition. As a result the courts' power to protect individual rights has been severely circumscribed.
The timidity of the judiciary in politically sensitive cases has aggravated the situation. In the majority of cases when
civil liberty cases have presented any real choice within the constitutional language courts have invariably sustained
the government action impugned. In Kachasu v Attorney-General an 11 year old girl, a member of the Watch Tower
Sect, was suspended from school for refusing to sing the national anthem and to salute the national flag. Despite
finding that the petitioner had been hindered in the exercise of her freedom of conscience, the court, nevertheless,
upheld the law under which she had been suspended on the ground that it was reasonably required "in the interests
of defence, public safety, and public order." In Patel v. Attorney-General, where the petitioner's property was
searched without warrant and seized the court upheld the government action on the ground that the impugned
regulations and action were adequately covered by the derogation clauses.

In The People v. Bright Mwape and Fred Mmembe, the two petitioners were charged with defamation of the
President contrary to section 69 of the Penal Code. They challenged the constitutionality of this section on the

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ground that it conflicted with the constitutional guarantees of freedom of expression (and the press) (Art. 20) and
freedom from discrimination (Art.23). Although Justice Chitengi agreed that the petitioners had proved that their
rights under the constitution were hindered he sustained the impugned law on the ground that it was reasonably
required in the interests of defence, public safety and public order. The Supreme Court upheld the High Court
decision. In Christine Mulundika and Seven Others v. The People , the former President, who was on trial for allegedly
addressing an illegal assembly, challenged the constitutionality of section 5(4) of the Public Order Act (Chanda (2005,
chapter 15).

Enforcement of Social and Economic Rights

The constitution does no expressly provide for social and economic rights such as health, work, education, shelter
and food. It has long been thought that these cannot be enforced in Zambia. However, in the recent case of
George Peter Mwanza and Melvin Beene v Attorney General Selected Judgment Number 33 of 2019, the Supreme
Court recognized the right to food and nutrition through the articulation of the right to life. The Court considered
that the right to life should be interpreted broadly to include other rights that make life meaningful. This judgment
opens the possibility of enforcement of social and economic rights, provided they can be related to rights provided
for in the Bill of Rights.

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NATIONAL SECURITY VERSUS HUMAN RIGHTS

State of Public emergency
A state of emergency is “an exceptional situation of crisis or public danger, actual or imminent, which affects the
whole population or the whole population of the area to which the declaration applies and constitutes a threat to
organized life of the community of which the state is composed” (SR Chowddhury, 1989)
Emergencies are of several types: war; secession, insurrection, mass riots, great natural catastrophes.
Declaration of Emergency
The constitution provides for two types of emergency:
(a)Full state of emergency: Article 30(1) of the Constitution states that the President may, in consultation with
Cabinet, at any time, by Proclamation published in the Gazette declare that a State of public emergency exists.
(b) Threatened Emergency: under Article 31 the President may at any time by Proclamation published in the
Gazette declare that a situation exists which, if allowed to continue may lead to a state of public emergency.
Under both situations:
 The declaration ceases to have effect on the expiration of seven days from the date of the declaration,
unless before the expiration it has been approved by the National Assembly by a majority of all members;
 Declaration cab be revoked by the President at any time before it is approved by the NA;
 Once approved by the National Assembly, the declaration stays in effect for a period of three months
starting from the date of approval
Judicial Review of Emergency Powers
The Judiciability of emergency powers arose in the case of Dean Namulya Mung’omba v Attorney General
1997/HP/2617. The applicant was detained under emergency regulations following the 1997 coup attempt. He
applied for Habeas Corpus, arguing in part that the situation at the time did not justify the declaration of a state of
emergency. The court held that it had no jurisdiction to inquire into the reasons for the declaration of a state of
emergency. The court went on to state:
“I find that the President is not obliged to furnish any reasons for making a declaration and such inquiry would in
my view be ultra vires the powers of the Court because the only condition that the President is required to fulfill is
to meet and consult his cabinet before declaring that a state of emergency exists.”
“it is a matter for executive discretion and nothing else; if the President is satisfied he may detain. This court is not
seized of the full facts, has no knowledge of what evidence there is to support those facts and is not in a position
to judge or even to recommend (certainly not to substitute its discretion for that of the President).”

Without judicial review or oversight of the exercise of these powers, human rights are at risk.

Similarities and Differences Between State of Emergency and Threatened Emergency

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An emergency declaration may trigger into effect one of the two statutes: a declaration under Article 30 triggers
into effect the Emergency Powers Act Cap 108, while a declaration under Article 31triggers into effect the
Preservation of Public Security Act Cap 112.
To understand the similarities and differences between these two statutes, carefully read sections 3 of the two
statutes.
In terms of similarities, both statutes empower the president to make regulations for the preservation of public
security. The regulations may provide for the following:
 Detention and restrictions of persons without trial;
 Prohibition, restriction and control of assemblies;
 The regulation, control and maintenance of supplies and services;
 The prohibition and dissemination of matter, for the regulation and control of the production, publishing,
sale, supply, distribution and possession of publications;
 The taking of possession or control of any property or undertaking and the acquisition of any property
other than land; and
 Authorize the entering and search of premises.
Differences include the following (read sections 3 to 6 of each Act):
 Under the Emergency Powers Act, not only can the President make regulations for the detention or
restriction of persons, but he can also make regulations to provide for the deportation and exclusion from
Zambia;
 The scope of property which the president may acquire on behalf of the Republic under the Emergency
Powers Act is wider. He/she can acquire any property or undertaking other than land under the
Emergency Powers Act, but only “movable property” under the Preservation of Public Security Act.
 Under the Emergency Powers Act the President may make regulations to provide for the amendment of
any enactment, for suspending the operation of any enactment, and for applying any enactment with or
without modifications. However, under the Preservation of Public Security Act the President may only
make regulations to provide for the suspension of the operation of any written law other than the
constitution.
 As regard the duration of regulations the Emergency Powers Act provides that only emergency
regulations that have been affirmed by a resolution of the National Assembly shall take effect during an
emergency. But regulations made under the Preservation of Public Security Act are valid even if they have
not been tabled before the National Assembly.

Cases
Dean Namulya Mung’omba v Attorney General 1997/HP/2617

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Edward Jack Shamwana v Attorney General (1981) ZR 261(SC)

Edward Jack Shamwana v Attorney General (1981) ZR 270 (HC)
In Re Robinson Puta (1973) ZR 133
Joyce Banda v Attorney General (1978) ZR 233
Eleftheriadis v Attorney General (1975) ZR 69
Sithole v Attoreny General (1977) 55
In Re Buitendag (1974) ZR 156
In Re Kapwepwe and Kaenga (1972) ZR 248
Kaira v Attorney General (1980) ZR 65
Chisata and Lombe v Attorney General (1981) ZR 35
Mutale v Attorney General (1976) ZR 139
Mudenda v Attorney General (1979) ZR 245
Attorney General v Musakanya (1981) SCZ Appeal No. 4 of 1981
Valentine Shula Musakanya v Attorney General (1981) ZR 214
In Re Walamba and Sampa (1981)
In Re Chiluba (1981)
Mutanda Yona v Attorney General (1980) ZR 165
Munalula and Others v Attorney General (1979) ZR 154
Sharma v Attorney General (1978) ZR 163
Attorney General v Chipango (1971) ZR 1
In Re Seegers (1976) ZR 117
Mungabangaba v Attorney General (1981) ZR 183
Attorney General v Musonda and Others (1974) ZR 220
Mwaba v Attorney General (1974) ZR 177
Chimba v Attorney General (1972) ZR 165

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CONSTITUTIONAL INTERPRETATION

What is constitutional interpretation?

Constitutional interpretation or construction is the process by which meanings are assigned to words in a
constitution to enable legal decisions to be made that are justified by it.
In Constitutional interpretation, we must note that constitutional terms are not empirical objects, so must as ideas,
that is, mental models that do not for the most part have the advantage of some formal scientific form of being
representable in mathematical or computer formalism that we can examine externally. In particular, they are ideas
that existed in the minds of persons long dead or are very old to impact our current society, so we must develop
mental models of their mental models “theories of mind” based on things they read and wrote.

The Constitution and its Interpretation

How the constitution should be interpreted is dependent on the concept of what a constitution is. The question of
how the constitution should be interpreted is inextricably interwoven with what it is.

The constitution denotes two ideas. The first one is the establishment and regulation of government. The second is
that of “securing the liberties of the people.” Black has argued that only the first idea is essential to the existence
of a constitution because despotism is not inconsistent with the existence of a constitution. This because a
constitution can be manipulated to be an instrument for consolidation of power, abuse of human rights and/or
looting of public resources. It is this negative deployment of constitutions that led to the coining of terms or phrases
such as “constitution without constitutionalism,” “façade constitutions,” “sham constitutions,” or “abusive
constitutions.”

In a democratic state, however, the constitution is a charter of liberty intended to secure the liberties of the people
and to discipline government in relation to the rights of the people. The constitution spells out the collective values
that bind the people as well as their aspirations. In this regard, a constitution not only establishes government and
imposes constraints preventing it from encroaching upon the rights of the people, the constitution also imposes
duties on the government to foster constitutional values or at least act in a manner consistent with them. The
government, under a democratic constitution is, therefore, duty bound to pursue ends considered collectively
legitimate.
A government in a democratic constitution is, therefore, ordained to pursue ends dictated by underlying
constitutional values. In a sense, the constitution is every country’s “moral sail” that gives the assurance that all the
people are equal citizens entitled to respect for their rights.

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This intrinsic nature of the constitution dictates how it should be interpreted or given meaning in the daily life of the
nation. Former Chief Justice of South Africa, Pius Langa, has stated that because a democratic constitution enshrines
transformative values, it should be interpreted in a manner that can be justified on the basis of the rights and duties
it enshrines. The constitution thus by its very nature disavows an interpretation approach that is formalistic and
literal. Values cannot be construed literally. It demands an approach that contribute to the realization of its
underlying ideas and values. The Chief Justice of India. Dipak Misra, has held that this requires the courts, in
interpreting the constitution, to “strive to breathe life into the constitution and not render the document a collection
of dead letters.”

Various Approaches to Constitutional Interpretation

(1) Originalist Approach:

Originalism is a family of theories central to all of which is the proposition that the constitution has a fixed and
knowable meaning which was established at the time of its drafting. The theories include; the ‘original intent’ theory
which holds that interpretation of written constitution is (should be) consistent with what was meant by those who
drafted and ratified it. The ‘original meaning’ theory which is closely related to textualism is the view that
interpretation of the written constitution or law should be based on what reasonable persons living at the time of
its adoption would have declared the ordinary meaning of the text to be.
Weakness: impossible to establish original intent. Moreover, people who within same context may have varying
understanding of the same thing.

(2) Literal approach (The textualist and strict construction approach):

This suggests that decisions should be based on the actual words written in the law if the meaning of the words is
unambiguous. Since a law is a command, then it must mean what it means to the law giver and if the meaning of the
words used in it have changed since it was issued then the textual analysis must be of the words as understood by
the law giver which for a constitution would be the understanding of the ratifying convention.
A central argument for the subscribers of textualism and strict construction is that less strict interpretations of the
constitution can become a method of legislative activism by judges which they feel is an abuse of judicial power. This
concern might be phrased as ‘making the law to say what you think it should say rather than submitting to what it
does say.’ This would be a form of judicial usurping the legislative power.

This is the approach preferred by the Zambian courts. In the case of Samuel Miyanda v Raymond Handahu (1994)
ZR 39, it was stated:

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"It is not what the legislature meant to say or what their supposed intentions were with which the court would be
concerned; the court's duty is to find out the expressed intention of the legislature. When the language is plain and
there is nothing to suggest that any words are used in technical sense or that the context requires a departure from
the fundamental rule, there would
be no occasion to depart from the ordinary and literal meaning and it would be inadmissible to read into the terms
anything else on grounds such as of policy, expediency, justice or political exigency, motive of the framers, and the
like."

See also the case of Milford Maambo and Others v The People (2017) by the Constitutional Court.
For weaknesses of this see O’Brien Kaaba, “Milford Maambo and Other” SAIPAR Case Review Vol 1, No. 2 2018

(3) Contextualist approach:

This is also concerned with the text itself, but instead of subjective intent, it seeks to examine the broad context in
which the provision at issue was promulgated, arguing that in some important aspects, respect, the provision can
only be understood relative to its context.
This context can be through examining why the provision is located where it is in the whole document and also
focussing on the broad long history to determine the broadest possible intent.
and to British institutions as they were when the instrument was framed and adopted.”
Weakness: Opponents of contextualism often argue that pure contextualism outlook prohibits the constitution from
adapting to different culture, technology and social developments.

(4) Purposive approach:

Government of the Republic of Namibia and Another v Cultura 2000 and Another 1994(1) SA 407:
A constitution is an organic document. Although it is enacted in the form of a statute it is sui generis. It must
be broadly, liberally and purposively interpreted so as to avoid the austerity of tabulated legislation and so
as to enable it to continue to play a creative and dynamic role in the expression and achievement of the
ideals and aspirations of the nation, in the articulation of the values bonding its people and disciplining its
government.34

In the HH petition and in Milford Maambo, the CC said the purposive approach only resorted to when the literal
approach would lead to an absurdity.

34
Government of the Republic of Namibia and Another v Cultura 2000 and Another 1994(1) SA 407.

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Constitutional Interpretation In Zambia

Constitutional interpretation in Zambia has heavily been influenced by the common law rules of statutory
interpretation. The foundation for this was laid early in the life of the country in several cases. One such case is that
of Shadreck Mwiinga35 in which it was stated that “In a country in which the basic law is the common law of England,
statutory law is necessarily to be interpreted according to the common law principles of statutory interpretation in
the absence of statutory provision to the contrary.” Since then, the courts have been applying the common la rules
of interpretation uncritically, even to the constitution. The approach has been to interpret the constitution literally
unless that results into an absurdity. Only then could the court depart from the literal approach. This approach was
stated forcefully in the Samuel Miyanda36 case:
It is not what the legislature meant to say or what their supposed intentions were with which the court
would be concerned; the court's duty is to find out the expressed intention of the legislature. When the
language is plain and there is nothing to suggest that any words are used in technical sense or that the
context requires a departure from the fundamental rule, there would
be no occasion to depart from the ordinary and literal meaning and it would be inadmissible to read into
the terms anything else on grounds such as of policy, expediency, justice or political exigency, motive of the
framers, and the like.

The courts never rationalized why this is justified approach to constitutional interpretation. Apart from being a
common law heritage, there has been no analysis by courts grounding the literal rule as the best approach to
constitutional adjudication.

Shortcomings of the Literal Rule

(1) First, the literal rule usually posits that judges do not make law but simply find or discover the intention of
the legislature or law giver and give effect to it. The problem with that approach is that a democratic
constitution is a collective effort, an expression of the constituent sovereignty of the people. It cannot be
attributed to a single identifiable legislator whose intention can easily be fathomed. This makes it
impossible for the court to find a reliable “intention” of the law giver that would give a correct
understanding of the constitution. The intention of the legislature is simply a fiction. 37 It is for this reason
that Willis urges caution when courts purport to have deciphered the intention of the legislature: “…you

35
Shadreck Mwinga v The Queen (1963-1964) Z and NRLR 81
36
Samuel Miyanda v Raymond Handahu (1994) ZR 39
37
Lourens du Plessis (1999). “The Evolution of Constitutionalism and the Emergence of a Constitutional
Jurisprudence in South Africa: An Evaluation of the South African Constitutional Court’s Approach to Constitutional
Interpretation.” Saskatchewan Law Review 62: 302

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should then conclude that the court’s reference to ‘the intention of the legislature’ is a polite notice that it
is about to speculate as to what it thinks is the social policy behind the Act.” 38
It might be argued that reliance on historical records or the drafting history could help resolve this issue. This is, for
example, the approach the Constitutional Court took in the Milford Maambo case to arrive at the conclusion that
the drafting history of the impugned provision exonerated the Director of Public Prosecutions from judicial oversight
in performance of his/her duties, particularly the power to discontinue proceedings through entering a nolle
prosequi.

This approach does not resolve the short-comings of the literal rule. It is of limited value. This is because the
recording of history is not an all-embracing process. History is made up of an endless or infinite number of
experiences of which only a small number can be recorded.39

This entails that the recording of events is a selective process that does not reflect the global experience. History is
therefore a selection of events, usually by those with the most influence over the process or events being recorded.
As de Vos argued, “a particular version of history is nothing more than an interpretation by a specific person with a
specific point of view as a specific historical juncture of selected past events.”40 Consequently, historical records
cannot be read literally. History should be read with a critical mind, taking into account the fact that any history is
“a choice that excludes and includes- even when one might not realize it.”41 A Constitution, therefore, should not be
interpreted simply to reflect its drafting history but to reflect the collective values and ideals of the people.
Interpretation should be forward and not backwards looking. Arthur Chaskalson, the former President of the South
African Constitutional Court, once stated that a constitution should be interpreted as the product of a “multiplicity
of persons” and therefore “caution is called for in respect of the comments of individual actors in the process, no
matter how prominent a role they might have played.”42

(2)The second conceptual problem of the literal rule relates to who should decide when the ordinary or plain
meaning is unclear. This is because human understanding of words is driven by a complex interplay of a person’s
culture, beliefs, prejudices, social background, presuppositions, personal experience, and other similar traits. 43 As

38
John Willis (1938). “Statutory Interpretation in a Nutshell.” The Canadian Bar Review XVI: 4
39
Pierre de Vos (2001). “A Bridge Too far? History as Context in the Interpretation of the South African
Constitution.” South African Journal on Human Rights 17, 1: 17
40
Ibid
41
ibid
42
The State v Makwanyane and Mchunu Case No. CCT/3/94, para 18.
43
Lourens du Plessis (1999). “The Evolution of Constitutionalism and the Emergence of a Constitutional
Jurisprudence in South Africa: An Evaluation of the South African Constitutional Court’s Approach to Constitutional
Interpretation.” Saskatchewan Law Review 62: 303

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such it cannot be assumed that the general language can have single objective meaning. Laurens du Plessis has
argued that clarity “is not a function of language but of a shared of a text couched in a language.” 44

(3)Third, and related to the second, is that language only has meaning in a specific context. Holding that words have
ordinary or plain meaning is an over simplification. Further, once words are used in legislation, regardless of where
they originate, acquire a legal meaning.45 Therefore, once incorporated in legislation, words no longer just have
ordinary meaning but obtain a legal meaning in the context of the broad framework in which they are integrated. In
that case, words are no longer an end in themselves but are a means towards understanding the underlying idea of
the legal text in which they are incorporated.

(4)Fourth and finally, provisions in the constitution are generally couched in broad value-laden terms. This is partly
in order to ensure the text is adaptable to changing realities, circumstances and developments. What, for example,
constitutes the right to life, privacy or personal liberty, cannot be captured in a mechanical or literal sense as these
are broad moral and philosophical concepts that cannot be exhausted by specific instances that they are known to
be currently associated with.

The Best Approach to Constitutional Interpretation

Interpretation does not mean describing a phenomenon, as the Constitutional Court decisions seem to suggest.
Interpretation entails “getting under the skin” of the constitution in order to determine its point or purpose.46
Constitutional interpretation is about looking for the best that the constitution means in securing the interests of
the people and the establishment and disciplining of government.47 It is not a mere description of words or
provisions.

This approach sees provisions in the constitution not as ends in themselves, but as having an instrumental value,
that is, the constitution is an instrument for the realization of the values underpinning it. This approach is probably
best illustrated by Ronald Dworkin’s parable of an inverted community. 48 In this community members follow a set
of rules known as “rules of courtesy” relating to a wide range of social occasions. The people believe that courtesy
requires that peasants should take off their hats to nobility. This has been the accepted practice for many years and
attained the character of a taboo, that is, the rules are simply obeyed and have not been varied.

44
Ibid, 304
45
Lourens du Plessis (1998). “The Jurisprudence of Interpretation and the Exigencies of a New Constitutional order
in South Africa.” Acta Juridica 8: 11. See also John Mark Keyes and Carol Diamond (2016). “Constitutional
Inconsistency and Legislation- Interpretation, Remedies and the Ambiguous Role of Ambiguity.” University of
Ottawa Working Paper Series No. WP2016-23: 8
46
Stephen Guest et al (2004). Jurisprudence and Legal Theory. London: University of London Press; 176
47
Sotirios Barber and James Fleming (2007). Constitutional interpretation: The Basic Question. Oxford: Oxford
University Press; 189
48
Ronald Dworkin (1986). Law’s Empire. Cambridge: Cambridge University Press; 49

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However, after some time, slowly the members of the community develop a new attitude towards the rules of
courtesy. First there is an assumption by the people that the practice of courtesy does not just exist literally but has
value, that is, it serves some purpose or value. This implies that the value behind the practice of courtesy can be
expressed or stated independent of merely describing the practice of courtesy. The second assumption that develops
is that the rules of courtesy are not exclusively or necessarily what they have always been taken to be but are instead
there to simply serve the purpose of showing courtesy.

Dworkin argues that once this new attitude takes hold, then the practice of courtesy is no longer going to be carried
on mechanically as people will from now onwards reflect on the institution of courtesy and see it in its best light
and may even restate or alter the practice in view of the new meaning.49 Thus, the people no longer defer to a
practice uncritically; the people may, in light of the new assumptions, for example, determine that courtesy does
not require removal of hats to nobility but is better expressed by other means. Using this parable, Dworkin argues
that interpretation “folds back into the practice, altering its shape, and the new shape encourages further
interpretations….”50

To Dworkin, this exemplifies how constitutional interpretation works. A constitution should not be interpreted
literally but should be interpreted to be the best it can be in terms of realizing its underlying values. As Dworkin puts
it, “constitutional interpretation is a matter of imposing purpose on an object or practice in order to make it the best
possible example of the form or genre to which it is taken to belong.”51 In interpreting the constitution, judges should
make the constitution the best it can be in fostering equal political status of the citizens and limited government.

Another way of understanding this approach is to consider a mental exercise proposed by Dworkin:

Suppose I tell my children simply that I expect them not to treat others unfairly. I no doubt have in mind
examples of the conduct I mean to discourage, but I would not accept that my “meaning” was limited to
those examples, for two reasons. First I would expect my children to apply my instructions to situations I
had not and could not have thought about. Second, I stand ready to admit that some particular act I had
thought was fair when I spoke was in fact unfair, or vice versa, if one of my children is able to convince me
of the later; in that I should want to say that my instructions covered the case he cited, not that I had
changed my instructions. I might say that I meant the family to be guided by the concept of fairness, not by
any specific conception of fairness I might have had in mind.52

49
Ibid, 47
50
Ibid, 48
51
Ibid, 52. See also Kenneth Elnar Himma (1996). “Freedom’s Law: The Moral Reading od the American
Constitution By Ronald Dworkin.” Auslegung 23, 2: 191
52
As cited in Sotirios Barber and James Fleming (2007). Constitutional Interpretation: The Basic Question. Oxford:
Oxford University Press; 28

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The use of the terms concept and conceptions by Dworkin in this mental exercise is significant. Concepts, like values,
endure, while conceptions manifesting underlying concepts may change over time. Interpretation, therefore,
involves giving expression to concepts (which endure) through the medium of concepts that are appropriate to the
times and reflect the best available realization of the concepts.

In the context of this mental exercise, this means that a person who is loyal to some authority would interpret it in
a manner that safeguards its goodness. Similarly, a constitution should be interpreted in a manner that makes for a
good constitution, that is, one that preserves the rights of the people and disciplines government.

WHAT THE CONSTITUTION SAY ABOUT HOW IT SHOULD BE INTERPRETED

Article 1 of the Constitution declares the Constitution supreme. Therefore, any law or practice contradicting it is, to
the extent of the inconsistency, invalid. Article 267(1) of the Constitution provides in mandatory terms, how the
constitution shall be interpreted, stating that:

This Constitution shall be interpreted in accordance with the Bill of Rights and in a manner that-

(a) Promotes its purpose, values and principles;

(b) Permits the development of the law; and
(c) Contributes to good governance.

Further, Article 8 of the Constitution provides for national values, which include democracy and constitutionalism,
social justice, good governance and integrity. Article 9 makes it mandatory for a court to apply these values in
interpreting the Constitution and other laws. It must be noted that these provisions were borrowed from the 2010
Kenyan Constitution, word for word. The significance of these provisions, as the then Kenyan Chief Justice Willy
Mutunga stated, is that “the Constitution is complete with its mode of its interpretation.”53 The constitution being
self-contained with tools for its interpretation, and these provisions being mandatory, there was no legal basis for
the Constitutional Court’s reversion to the common law in order to circumvent the theory of interpretation required
by the very constitution.

Reading
(Legislation)

Constitution of Zambia Chapter One of the Laws of Zambia

53
In the Matter of the Principles of Gender Representation in the National Assembly and Senate Advisory Opinion
No. 2 of 2012.

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Interpretation and General Provisions Act Chapter Two of the Laws of Zambia

Acts of Parliament Act Chapter Three of the Laws of Zambia

(Case law)

Shadreck Mwiinga v The Queen (1963-1964) NRLR 81

Attorney General and Movement for Multiparty Democracy v Lewanika and Others

Eith Tshabalala v Attorney General SJ No. 2 of 1994

Samuel Miyanda v Raymond Handahu 1994/SCZ/6

Milford Maambo, Ziwa Malilo Ziwa and Chanda Chabala v The People 2016/CC/R001 Selected Judgment No. 31 of
2017

African Christian Democratic Party v Electoral Commission (2006) ZACC 1 3SA 305 (CC)

The State v Makwanyane and M Mchunu (3) SA391 (CC)

The State v Mhlungu 1995 3SA 867 (CC)

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