ZCAS UNIVERSITY

PRE LAW ASSINGMENT

INTRODUCTION TO LAW

Name: Mohammed Badat

ID number: CL1917
Due date: 31/03/2019
Lecturer: Mr C Nguluwe

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 Sources of law refers to the body of rules which a judge draws upon in deciding a case. It
can also mean historical origins from which the law has come such as common law and
equity. The six main sources of law in Zambia are the: constitution, legislation, common law,
judicial precedent, customary law and authoritative texts. The constitution is defined as the
most important law of the land that sets the relationship between the people and government.
It is an essential document because the rights and freedoms of citizens are protected.
Government affairs are regulated and its power are established. It prevents the state from
abusing power vested in it.
The constitution can be adopted through the constituent assembly, parliament and
referendum. A constituent assembly is a specific body tasked with the duty of debating and
coming up with a national constitution. The delegates are elected by the general public from
different constituencies. Parliament debates the draft constitution compiled by the
constitution review commission appointed by the president. Parliament debates the draft
constitution by normal procedures of the house and if it is satisfied with it, it is sent back to
the president for presidential assent. This method was used by the Chona, Mvunga and
Mwanakatwe commissions. A referendum is also used to pass the constitution where voters
are made to vote Yes or No on a particular issue in the constitution.
The Zambian constitution recognised the existence of a multi-party democracy system and
ushered in an era known as First Republic (1964-1973).The Chona commission of 1972 led
to the enactment of a new constitution of 1973 which ushered the Second Republic. The 1973
constitution established a one party participatory democracy and banned the existence of all
parties except UNIP.The Mvunga Commission of 1991 recommended the amendment of the
Second Republic constitution which introduced political pluralism ushering in the Third
Republic. The 1996 constitution stated that only a Zambian citizen whose parents were
Zambians by birth could qualify to be a presidential candidate. The 2016 constitution foresaw
the introduction of the constitutional court and the 50 plus 1 clause for those participating in
elections. It also stated clear explanations on the takeover of the presidency by the vice
president in case the president dies.
The constitution begins with the preamble and has 14 parts as follows: Part 1 is on
national sovereignty and also states that Zambia is a unitary, indivisible and multi-party. Part
2 is on citizenship and part 3 is on the bill of rights and freedoms. Part 4 is on the executive.
The Office of the President, Vice President, Ministers, Attorney General and Director of
Public Prosecutions. Part 5 is on the legislature. Part 6 is on the Judiciary. Part 7 is on
Defence and National Security. Part 8 is on local government system. Part 9 is on Directive
Principles of State Policy and the duties of citizen. Part 10 is on Finance. Part 11 is on service
commission and part 12 is on Human Rights Commission. Part 13 is on Chiefs and House of
Chiefs and Part 14 is miscellaneous. The Zambian Constitution is a written one because it is
codified and the laws are written in a systematic order.
Legislation is defined as body of rules which are formally enacted. Subordinate bodies are
allowed to enact rules delegated by parliament which has legislative sovereignty. The process
of passing an act is a long one. The most important step is for Government to decide
legislation to be passed. Legislation passes through parliament and becomes law. It is
contained in statue books available in most libraries. Laws passed by parliament and assented
by the president can also mean legislation. Subsidiary legislation is when Parliament
relegates legislative powers to laws passed by other bodies which are government gazettes
and municipal by laws.

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 A Bill is a proposal for new laws or changing existing laws that are presented before
parliament for debate. An Act of Parliament becomes official once presidential assent is
given to the bill. Bills are introduced by Government, Individual MPs and private individuals.
Public Bills change laws applied to the general population and they are the proposed by
Government ministers. Private members bill are introduced by MPs who are not Government
ministers.
There are five stages a bill should go through before it becomes law: First reading, second
reading, committee stage, report stage and presidential assent. There is no debate that occurs
in the first reading. The bill is read to parliament in the second reading and the first vote to
the bill is made. The bill is then taken away from the house and handed over to the relevant
parliamentary committees to perfect it and the latter reverted back to the house. Finally, the
president signs the bill and once assented, it becomes an act of parliament.
Consistent decisions are cardinal when making a good constitution.Greivance occurs due
to lack of consistency. A court’s decision should be consistent with those of past cases and to
provide certainty for the future. Decisions made in courts are reflected in Common Law of
Judicial Precedent. Judge decisions that are reasoned include Judicial Precedent. Judges in
future cases are considered in relevant case laws and accept prepositions stated.
Eminent authors who publish written works like have persuasive value in Zambian courts
in studying and analysing cases of different hemispheres. These are writings of old authorities
and contemporary writers. Prof Patrick Mvunga has published many articles on constitutional
and land law. Another example is Prof Margret Munalula who has written the book ‘The
Legal Process’ which is used by law students in Universities.
The British introduced the common law of judicial administration in 1889. In the same
year on 29 October, the royal charter was incorporated by the British South African
Company. This was done to administer Zambia to the company and to get authority to
administer justice. The introduction of the English Law in the territory was paved by section
14 of order 46. The Common Law, doctrine of equity and statues were provided in the
application act of the English Law.
The common law remedies are an injunction, specific performance, rectification and
rescission. A court order is made to stop an individual from performing a certain action. A
court order to make both parties come to a contractual agreement is included under specific
performance. Rectification relates to alterations under limited conditions of contractual
documents. An order that returns both parties to an agreement they were in before is a
rescission.
The Judicial System under the common law system has two functions: to define and
dispose of all controversies in accordance with the res Judicata doctrine and a precedent is
established in present and future cases. The reliability of precedence was developed earlier in
common law and is received in countries that follow the common law doctrine. It has never
been reduced into written rules and cannot be found in the constitution.
This doctrine has justifications summarized in four ways; Equality, Predictability,
Economy and Respect. The rules should be applied equally in all cases regardless of status in
society. Precedents should be followed consistently in order to make correct predictions for
future cases. A Criteria should be followed to save new cases with a view of saving time and
money. The adherence to early decisions shows honour and dignity to wisdom and
experience of past Judges.

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 The first law which was existent in Zambia was the law of tribes. It is called customary law
and most of the Zambians conduct activities in accordance with its provisions. It is a blanket
for covering many systems and does not give clear indication of sets of rules. Adjectival law
provides restriction on the application of African Customary Law by local and subordinate
act conditions. The subordinate court has the right to make observations and enforcement of
the accordance by depriving the African Customary Law benefits.
The African Customary Law is not repugnant to justice, equitability or good conscience or
in compatibility by implication. It saves where circumstances or nature of a case are
applicable in civil cases. The case of Kaniki vs. Jairus (1967) ZR 71 had held a custom
known as Akamutwe held amongst many tribes in Zambia. The custom in question required
national compensation and cleansing purpose with a view of paying money to a dead spouses
relative.
Another example of a Customary Law case in Chibwe vs. Chibwe, SCZ Judgement no 38
of 2000. A divorce was made by the husband in local court. Their marriage was based Ushi
Customary law basis which clearly states that the wife is responsible for property sharing.
The law was applied misappropriate and allegations were unproved to support divorce. The
appellant due to her unsatisfation in Judgement appealed to the Subordinate, High and
Supreme Court due to the biased decision supporting the husband.

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 REFERENCES

(1) C Christopher and E Rooth. Civic Education Pupils Book 10.Lusaka: Longman
Zambia Publishers, 2015

(2) C Mwanakatwe and M Milimo.Civic Education Learners Book 10. Lusaka:MK

Publishers, 2015

(3) Dennis, Chileshe. Introduction to Law module. Lusaka:ZCAS University,2013

(4) Magreat, Munalula. Legal Process: Zambian Cases and Materials. Lusaka: UNZA
Publishing Press, 2004

(5) L Matakala, M. Muya, N Mwiya and S.Sanga.Introduction to the Legal Framework

regulating the Zambian Construction industry.Lusaka:National Council for
Construction Press,2014

(6) Smith and Kenan’s. English Law. United Kingdom: Pearson Education Limited, 1963