THE UNIVERSITY OF ZAMBIA

INSTITUTE OF DISTANCE LEARNING

BACHELOR OF LAWS

MODULE

L 210: LEGAL PROCESS

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Copyright © 2013. UNZA Institute of Distance Learning

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Inquiries concerning reproduction or rights and requests for additional training materials should
be addressed to:

The Director

Institute of Distance Education

The University of Zambia

P.O. Box 32379

Lusaka

Zambia

Tel: 0211 290719

Fax: 0211 253952

Email: director-ide@unza.zm

Website: www.unza.zm

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Contents
Acknowledgement

………………………………………………………………………………6

Objectives.................................................................................................................................................... 9

Assessment.................................................................................................................................................. 9

Continuous Assessment:..............................................................................................................................9

Prescribed Readings.................................................................................................................................. 10

Recommended Readings...................................................................................................................... 10

Time frame................................................................................................................................................ 10

Study Skills................................................................................................................................................. 11

Need help?.......................................................................................................................................... 11

UNIT ONE.................................................................................................................................................. 13

What Is ‘Law’?......................................................................................................................13

The Definition of Law and Theories of Law…………………………………………………………………………………………….14

Classifications of Law……………………………………………………………………………………………………………………..16

Purposes and Attributes of A Good Legal System…………………………………………………………………………………20

Law and Society……………………………………………………………………………………………………………………………………20

Law and Justice…………………………………………………………………………………………………………………………………….21

Rights and duties…………………………………………………………………………………………………………………………………..21

UNIT TWO……………………………………………………………………………………………………………………………………………23

What is a ‘legal system’?.........................................................................................................................23

The Civil law…………………………………………………………………………………………………………………………………………24

Customary Law……………………………………………………………………………………………………………………………………28

The Islamic legal system……………………………………………………………………………………………………………………..30

Activities……………………………………………………………………………………………………………………………………………..31
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UNIT 3………………………………………………………………………………………………………………………………………………...32

The reception of English law in Zambia…………………………………………………………………………………………………32

The evolution of the Zambian Court System………………………………………………………………………………………..38

Stare decisis in Zambia’s courts……………………………………………………………………………………………………………41

Conflicts between received English law and the customary law………………………………………………………….45

ACTIVITY………………………………………………………………………………………………………………………………………………46

UNIT 4………………………………………………………………………………………………………………………………………………….47

Constitution of Zambia…………………………………………………………………………………………………………………………47

Acts of Parliament……………………………………………………………………………………………………………………………….50

Common law, Equity and English statutes……………………………………………………………………………………………55

Judicial precedent………………………………………………………………………………………….……………………………………59

Customary law……………………………………………………………………………………………………………………………………..60

International law…………………………………………………………………………………………………………………………………..62

Modern text books……………………………………………………………………………………………………………………………….65

ACTIVITY………………………………………………………………………………………………………………………………………………..65

UNIT 5……..…………………………………………………………………………………………………………………………………………...66

Why the need for Statutory Interpretation?.............................................................................................66

Rules of statutory interpretation………………………………………………………..………………………………………………..68

Presumptions…………………………………………………………………………………………………………………………………………82

Finding Parliament’s intention……………………………………………………………………………………………………………….87

Activity…………………………………………………………………………..……………………………………………………………………..93

UNIT 6…………………………………………………………………………………………………………………………………………………..94

The wider and narrower view of precedent………………………………………………………………………………………….94

Types of precedent……………………………………..……………………………………………………………………………………….96

Terminology in relation to the handling of precedent………………………..……………………………………………….96

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The ratio decidendi of a case………………………………………………………………………………………………………………99

The concept of obiter dictum…………………………………………………………………………………………………………101

The concept of res judicata……………………………………………………………………………………………………………102

Advantages and disadvantages of precedent……………………………………………………………………………….102

Is it open to the Supreme Court to depart from its previous decisions?.........................................103

UNIT 7…………………………………………………………………………………………………………………………………………..108

The Structure of the Court System in Zambia…………………………………………………………………………………108

The Supreme Court of Zambia – Judges and jurisdiction of the Court…………………………………………….109

The High Court for Zambia – Judges and jurisdiction of the court…………………………………………………..114

The Lands Tribunal – Judges and jurisdiction of the court………………………………………………………………117

The Industrial Relations Court – Judges and jurisdiction of the court………………………………………………117

The Subordinate Courts – Magistrates and jurisdiction of the court……………………………………………….118

The Local Courts – Judges and jurisdiction of the court…………………………………………………………………..119

Security of tenure and retirement of judges……………………………………………………………………………………120

The Doctrine of separation of powers……………………………………………………………………………………………..122

UNIT 8……………………………………………………………………………………………………………………………………………..129

The Adversarial System of Justice……………………………………………………………………………………………………129

Advantages of adjudication (litigation)…………………………………………………………………………………………..130

Disadvantages of adjudication (litigation)……………………………………………………………………………………….130

Alternative Dispute Resolution (ADR) – What is it?..........................................................................131

Four elements essential for successful ADR………………………………………………………………………………….132

Characteristics of ADR methods……………………………………………………………………………………………………132

Benefits of using ADR……………………………………………………………………………………………………………………133

Some ADR methods………………………………………………………………………………………………………………………134

Administrative Tribunals……………………………………………………………………………………………………………….142

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UNIT 9………………………………………………………………………………………………………………………………………….146

What are Professional Ethics?.........................................................................................................146

Conduct of Lawyers in and out of Court………………………………………………………………………………………..147

Court Room Regalia………………………………………………………………………………………………………………………149

Principles that Govern Professional Conduct…………………………………………………………………………………150

Activity…………………………………………………………………………………………………………………………………………..151

Summary………………………………………………………………………………………………………………………………………..152

ACKNOWLEDGEMENT
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The University of Zambia (UNZA), Institute of Distance Education (IDE), wishes to thank Mr.
Mwape Michael Moono esq. for writing this Module, L210: Legal Process.

MODULE STRUCTURE

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 I. Introduction
II. The Aim of the Module
III. Module Objectives [Learning outcomes]
IV. Assessment
V. Prescribed and Recommended Readings
VI. Time frame
VII. Study skills [Learning tips]
VIII. Need help [Studying at a distance]

The module is divided into nine units. Each unit addresses some of the learning outcomes. You
will be asked to complete various tasks so that you can demonstrate your competence in
achieving the learning outcomes.

INTRODUCTION

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Welcome to the Module on Legal Process (L210). By this time you would have a decision to
become a lawyer. That is a BIG decision. Take some time and ask yourself why you decided to
study law. Ask yourself this question three times and see if you get the same answer each time.
You will very likely get more than one answer. That simply goes to show how dynamic this
profession is. You can be a court-room advocate, be a professor of Law, become a magistrate
or Judge, or even become a head of state such as Barack Obama of the U.S and the late Levy
Mwanawasa (R.I.P).

But it is a challenging profession, this one. You will need to be diligent. Tardy people do not
succeed in this profession.

The study of Law means a complete shift in your way of thinking. A transformation more drastic
than any you have had to undergo so far in your life (even if you’re already 60 years old). You
will think like a lawyer in all circles of your life. You will start to apply logic and analysis like never
before.

To start you on your way in this remarkable journey, you will begin with Legal Process L210.

We wish you all the very best on this grand journey!

Aim

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This course aims to provide a general introduction to the nature and process of law, with
particular reference to the history, present condition and possible future needs of the legal
system in Zambia.

Objectives

By the end of the module, you should be able to:

I. Demonstrate an understanding of the Zambian legal system within the context of

world legal systems
II. Demonstrate an understanding of the concept and process of law, legal reasoning
and issues of legal authority.
III. Be able to analyze cases and statutes
IV. Be able to write legal essays with ease and to the acceptable standards

Assessment

Your work in this module will be assessed in the following three ways:

 One test worth 20%

 One assignment worth 10%.
 A written examination set by the University of Zambia at the end of the module (worth 70
per cent of the final mark). In summary, you will be assessed as follows-

Continuous Assessment:
30%

1 test – 20% each

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1 assignment – 10%

Final Examination: 70%

Prescribed Readings

1. M.M Munalula, Legal Process: Zambian Cases, Legislation and Commentaries,

UNZAPRESS, Lusaka, 2004.
2. L. Church, Introduction to Law in Zambia
3. G. Williams, Learning the Law, 11th ed. 1982

Recommended Readings

1. Burke, J Osborn’s Concise Law Dictionary, 6th ed. Sweet and Maxwell, London, 1976

Apart from this module, you are expected to read widely around all the topics covered in the
modules. You may find the references provided at the end of the module useful, but you could
also explore other sources of information, particularly the Internet which has a lot of websites
with invaluable information.

Time frame
You are expected to spend at least 60 hours of study time on this module. In addition, there
shall be arranged contacts with lecturers from the University from time to time during the course.
You are requested to spend your time judiciously so that you reap maximum benefit from the
course.

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Study Skills
You may not have studied by distance education before. Here are some simple tips for you to
follow which will help you do better in your learning and keep you focused-

1. Set goals such as: I will succeed in this course. At the beginning of the module, break
the lessons into manageable chunks. You might not have time to do a full lesson in one
night, so plan how much you can do, then stick to it until you are done.
2. Establish a regular study/learning schedule
3. Determine what time is best for you to study
4. Have a dedicated study place with all the supplies you might need
5. Tell people what you are doing because only then are you more likely to stick to a
course.
6. Ask someone to proofread your work before you submit it.
7. Reward yourself with whatever work for you, along the way.
8. If you do not understand something ask your local learning centre or your tutor, who will
be able to help you.
9. Search for the meaning of principles and concepts instead of just memorizing

Need help?

In case you have difficulties during the duration of the course, please get in touch with the
Director, Institute of Distance Education, or the resident lecturer in your province.

All enquiries in connection with the payment of fees should be directed to the Director, Institute
of Distance Education:

The Director,
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Institute of Distance Education,

University of Zambia,

P. O. Box 32379,

10101 Lusaka

Coordinator, Learner Support Services (Land Cell): +260 978772248

Senior Administrative Officer

(Programme Development & Production) +260 977639993

IDE Land Line: +260 211 290719

IDE Fax: +260 211 290719

IDE E-mail: director-ide@unza.zm

http://www.unza.zm

UNIT ONE

INTRODUCTION TO LAW
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 1.0 INTRODUCTION

Dear Student, WELCOME to the Law. You have enrolled for the Bachelor of Laws Degree
programme, but what exactly is ‘law’? Libraries have been written on this subject, yet it is still
one of the persistent questions that has not been answered conclusively in legal research. In this
unit, you will be introduced to the concept of law; and some of the debates that surround it.

1.1 OBJECTIVES

By the end of this Unit, you should be able to:

 Define the concept of law;

 Explain at least three theories of law; and
 Identify the different classifications of law.

1.2 WHAT IS ‘LAW’?

Reflection

Is law:

 a set of rules of conduct which are enforced by the courts?

 a set of commands of him or them that have coercive power?
 a set of rules of conduct imposed and enforced by the sovereign?
 a body of principles applied by the State as it administers justice?
 a system adopted and sanctioned by the State for resolution of disputes?
 a technique for regulating social power?
 the embodiment of social, moral and sometimes theological theories?
1.3 The Definition of Law and Theories of Law

There are various definitions of law; and there are all sorts of criteria that are used to define the
concept of law. In this unit, we will look at several definitions; some of the schools of thought in
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which they fall; and the meaning of the term ‘law’. The definitions we will look at range from
those that apply one or other ‘theory of law’ (e.g. the ones given by Professors Austin, Hart,
Dworkin and Bentham) to those whose evaluation is purely in terms of the ‘meaning of law’ (e.g.
those of Professors Gluckman, Bohannan and Pospisil).

(1) The Positivist School of Thought

According to Margaret Munalula, law is a set of rules recognised as commanding or forbidding

certain actions which are intended to regulate the conduct of all persons within a particular State
and are enforceable by the courts of that State.

John Austin defines law as ‘a rule laid down for the guidance of an intelligent being by an
intelligent being having power over him’. 1 According to him, a law is a ‘command’ that is issued
by a ‘sovereign’ body and is ‘backed up by a threat’. 2 So there is a law making body, and as a
rule, that body is superior to the subjects of law. The people do not play a role in the creation of
law, save for the fact that they may have elected the body that creates law. Austin is the pioneer
of the command theory of law.

Thomas Hobbes formulates his thoughts as follows: ‘When long use obtaineth the authority of
law, it is not the length of time that maketh the authority, but the will of the sovereign’. 3


1 J. Austin Lectures on Jurisprudence or the Philosophy of Positive Law ed. R. Campbell 5th ed. vol. 1
(London: John Murray 1885) 316-317.

2 The third element of Austin’s definition is that law is ‘habitually obeyed’ by the people. Hart has
taken great pleasure in levelling many criticisms against Austin’s command theory. (See Hart 49-
70.) Regarding this third element, Hart points that people do not necessarily ‘habitually obey’ law;
nor do they follow law just because it is a command. According to Hart, it is possible for one’s
conduct to be in line with the law, even when one is not necessarily following its provisions. (See
50.) Also, people consciously choose to follow law, it is not just a habit. ‘They do it as a rule’, a rule
which has an internal aspect, and that is that everyone in the relevant community looks upon such
a rule as a general standard to be followed by all. (See 54-55.) Thus Hart concludes that Austin’s
theory does not apply to all areas of law. Indeed, it does not apply to any type of customary law.
People follow the provisions of customary law not because they fear sanctions from a sovereign
body, or simply out of habit. They reason it out, and then choose to follow the law. They do it
because they want to, as they benefit from its protection and provision. See the fourth definition
of law provided in section 4.3 below.

3 T. Hobbes Leviathan ed. Molesworth vol. VIII, Chap. XXVI (1651) 252.
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Thus Munalula, Hobbes and Austin belong to the school of thought that argues that it is a
sovereign body (such as Parliament) which creates law. This is the positivist school of thought.

(2) The Realist School of Thought

You should note that the next set of definitions of law that we will look at in this unit are those
held by many legal realists. For them, ‘law is what the Judge says it to be’. Scholars who belong
to this school of thought include Salmond, Gray and the famous Justice Oliver Wendell Holmes.

Salmond asserts that law is ‘the body of principles recognised and applied by the State in the
administration of justice’. In other words, law is that which is applied by State Courts and
enforced by bodies such as the police.

Gray specifically says that the ‘law of a State or any organised body of men is composed of the
rules which the Courts – i.e. the judicial organs of that body – lay down for the determination of
legal rights and duties’.

And without mincing his words, Justice Oliver Wendell Holmes declares:

What constitutes the law? You will find some text writers telling you that it is
something different from what is decided by the Courts ... that it is a system of
reason, that it is a deduction from principles of ethics or admitted axioms or what
not, which may or may not coincide with the decisions. ... But ... I am much of
[another] mind. The prophecies of what the Courts will do in fact, and nothing
more pretentious, are what I mean by the law.

However, you must be aware that these are not the only theories of law that exist. Jurisprudence
is the course that deals with theories of law in detail.

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1.4 CLASSIFICATIONS OF LAW

1.4.1 Civil and Criminal law

(a) Possible meanings of ‘Civil Law’

 Law governing civil wrongs rather than criminal wrongs;
 Law of a State as opposed to other types of law such as
international law; and
 Roman law; the corpus Juris civilis.

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

Civil Law Criminal Law

 Proceedings are called ‘civil  Proceedings are called ‘criminal

proceedings’ proceedings’

 Party suing is called ‘Plaintiff’ or  Party prosecuting is called ‘prosecutor’

‘Claimant’ or ‘Petitioner’ while party while party being prosecuted is called
sued is called Defendant or Respondent ‘accused’ or defendant

 Civil law is concerned with proof of  Criminal law is concerned with proof
‘liability’ of ‘guilt’

 Focus is ‘compensating’ the victim  Focus is punishing the offender

 Standard of proof is ‘balance of

 Standard of proof is ‘beyond reasonable
probability’
doubt’

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

1.4.2 Public law and Private law

 Public law regulates the organization of the State, the relation between
the different organs of the State and the relation between the State and
its subjects.

Examples of public law include constitutional law and Administrative

law.

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

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

Examples include contract law; property law; tort law; commercial

law; family law e.t.c

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

1.4.3 Common law and equity

(a) Possible meanings of ‘Common law’

 The part of law which is contained in the decisions of the Courts rather
than having been enacted by Parliament; or

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  The part of the law of England formulated, developed and
administered by the old common law Courts, based on the common
customs of the country and unwritten.

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

(b) Meaning of ‘equity’

 In the layman’s language, equity means natural justice. In legal
systems which are based on the English legal system, equity refers
to ‘the body of rules originally administered by the Court of
chancery in England’.

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

trusts while equitable remedies include specific performance and
injunctions.

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

1.4.4 International law and municipal/domestic law

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

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

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

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

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

1.4.5 Substantive law and Procedural law

 Substantive law sets out the actual rights and duties of legal
subjects while procedural law spells out the procedure for
enforcing the substantive rights and duties. In other words,
substantive law sets out the actual rules relating to human conduct
while procedural law deals with the legal remedies by means of
which the rules are ere enforced.

Procedural law is also sometimes called ‘adjectival law’.

1.5 Purposes And Attributes Of A Good Legal System

 Certain
 Simple
 Comprehensive
 Understandable
 Accessible
 Flexible
 Inexpensive
 Speedy adjudication
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  Written
 Thorough procedures
 Fair and equal treatment.

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

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

1.6 Law and Society

 A complex relationship exists between law and society which every

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

 Suffice, at this stage, to point out that every society, however primitive,
has one or more systems of rules intended to regulate different aspects of
human behaviour in that society.

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

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

Do changes in society influence the development of law?

What is the role of lawyers in society?

1.7 Law and Justice

 Like the relationship between law and society, the relationship between law
and justice is a complex one and will be explored in detail in the course
‘Jurisprudence’.
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  Suffice to state that the concept of justice denotes ‘fairness’ and law is
intended to bring about a ‘just’ or ‘fair’ society. Therein lies the relationship
between law and justice. But it is not as simple as that!

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

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

1.8 Rights and duties

 A right has been defined as ‘an interest recognised and protected by law,
respect for which is a duty and disregard of which is a wrong [Salmond].

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

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

 At this stage of the LLB studies, it is sufficient for the student to note that
where there is a right, there is always a corresponding duty for someone to
respect that right.

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

‘Jurisprudence’.

 Activity
 Is law capable of being defined in a single sentence?

 Can one give a universally acceptable definition of law?

 What different aspects of law does each scholar above emphasise?
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 Should law be defined according to a school of thought?
 What is your opinion on defining law purely according to the meaning of the term?
 




UNIT 2

WORLD LEGAL SYSTEMS

2.1 Introduction

In this unit, we will introduce you to World Legal Systems. We will explore some of the
different types of legal systems that exist and compare their characteristics.

2.2 Objectives

By the end of the unit, you should be able to:

1. Describe the different types of legal systems that exist.

2. Distinguish between their different characteristics.
3. Identify which characteristics are ideal.

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2.3 What is a ‘legal system’?

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

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

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

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

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

The English Common law

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

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

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

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

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

The following excerpt will be useful to you in understanding common law systems and
their characteristics:

T h e common law family is usually defined by reference to the following

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

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

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

What does it mean to talk of law being both written yet unwritten? It
is crucial to keep emphasising the nature of the common law
tradition. In his Commentaries on the Laws of England (1765−69),
Blackstone was careful to describe the common law as ‘unwritten
law’ in contrast with the written law of statutes or codes. He was
familiar with the common law as a form of oral tradition derived
from general customs, principles and rules handed down from
generation to generation by the court lawyers and judges who
participated in a common life by eating and drinking in one of the
Inns of Courts to which all had to belong. Eventually this oral
24
 tradition was reflected in the reports of the decisions of the
important court and the ‘knowledge’ was then stored in a ‘written’
form, namely the law or case Reports. You should note, however,
that there was no organised system of court reporting until the late
nineteenth century and prior to that all reports were private
initiatives (made by barristers who were in the courts and circulated
privately for a fee to supplement the barrister’s income).

Moreover, the relationship of the Law Reports and the common law
is not straightforward. For it was traditionally held that the words
of the Law Reports themselves were not the common law, but
that the decisions of the courts as reflected in the Law Reports
provide authorities for what the common law can be argued to
be. In other words, and this is the ‘mysterious’ bit, the common law
is always something more than what is written down! What is
written down are pragmatic instances of judges articulating what
they take the law to be. So when one is looking for the law in a
case one reads the words, but the law is always something more
than the words that one reads! It is always accepted that the law is
open to development and better articulation.

In addition, modern common law legal systems have substantial

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

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

is no division between public and private law);

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

principles are derived from the texts of many single judgments;

 a litigation system in which the trial is the distinct and separate

climax to the litigation process;

 courtroom practice which may be subject to rigid and technical

rules;

 the fact that the parties to the dispute essentially control

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

25
  the fact that the judiciary possesses an inherent power to
adjudicate separately from the executive or political process. While
the judiciary may be paid by the state, they exercise a separate
power free from political interference; and

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

through litigation falls largely on the parties.

Characteristics of civil law systems

The civil law family is usually defined by reference to:

 a concern to determine legal disputes according to predetermined

legal principles established to maintain social order;

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

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

 the separation of public law (concerning relations between the

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

 the adoption of a deductive form of legal reasoning whereby pre-

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

 in litigation, the fact that no rigid separation exists between the

stages of the trial and pre-trial in court cases. Legal proceedings
are viewed as a continuous series of meetings, hearings and
written communications during which evidence is introduced,
witnesses heard and motions made;

 rules relating to courtroom practice which are intended to be

minimal and uncomplicated;

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

written submissions rather than oral argument. The judiciary in
theory and practice play a more organisational and inquisitive role.
The greater directorial role of the judiciary allows less room for the

26
 parties to direct their own case. In this sense the system is more
hierarchical than participatory;

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

separate and inherent power to adjudicate; and

 the fact that a greater proportion of the effort and expense of

dispute determination through litigation falls on the state.

It is the combination of these elements within each of the two families of common
law and civil law and their respective court procedures and practices which
permit the shorthand descriptors of ‘adversarial’ and ‘inquisitorial’ to be used. In
the classical adversarial form of trial:
… the judge sits to hear and determine the issues raised by the parties,
not to conduct an investigation or examination on behalf of society at large
… So firmly is all this established in our law that the judge is not allowed
in a civil dispute to call a witness whom he thinks might throw some light
on the facts. He must rest content with the witnesses called by the parties.
(See Jones v National Coal Board [1957] 2 QB 55, 63−64 per Denning
LJ.)

2.5 Customary Law

 Customary law is the oldest form of law known to man worldwide. It

consists of customs, practices and beliefs that are accepted by a given
society as obligatory rules of conduct. It is not enacted but grows or
develops with time. It expresses itself not in a succession of words, but
in a course of conduct. It has no definite authors; there is no person or
defined human agency one can praise or bless for its being good or bad.4

 It has been defined as:

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

come to have the force of law;

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

the force of law;

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

upon them;
4
L Fuller, 1968
27
  organic or living laws of the indigenous people, which regulate their
lives and transactions;

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

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

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

2.5.1 Fundamental features of customary Law

 There are six fundamental features of customary law that you must note. These
are:

1. It must be in existence at the material time

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

Days;

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

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

6. It must enjoy acceptability as a custom; and

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

2.5.2 Requisites for applicability of customary law

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

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

28
  Thus a custom, if it is to be a customary law, must be reasonable and obligatory,
convenient, and neither arbitrary, discretionary, objectionable nor unjust, and of
continuous usage from time immemorial.

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

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

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

(c) It is contrary to public policy; or

(d) It is injurious to public interest.

2.5.3 Proof of customary law

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

1. Expert evidence and opinion e.g. evidence of traditional leaders

(chiefs) who possess special knowledge of the subject matter;

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

sufficiently acquainted with the custom;

3. Assessors: Persons with local knowledge and duly appointed

assessors may assist with their knowledge;

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

people may be used in evidence; or

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

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

2.5.4 Problems of customary law

 There are two major problems of customary law that you must be aware of.
These are:

29
 1. It is not codified. For this reason it is uncertain and vague; and only in
the minds of those who administer it or those who are subjects to it
especially the custodian of traditions and customs; and

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

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

2.6 The Islamic legal system

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

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

2.6.1 Sources of Islamic law

 The main sources of Islamic Law are:

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

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

2.7 Activities

Explain whether a rule of customary law repugnant to natural justice, equity and
good conscience merely because it is inconsistent with or contrary to the English
Law?

30
 UNIT 3

HISTORICAL DEVELOPMENT OF THE ZAMBIAN LEGAL SYSTEM

3. 1 Introduction

In this unit, we will introduce you to the Zambian legal system. We will discuss its
historical development and the introduction of English Law into the Zambian legal
system.

3.2 The reception of English law in Zambia

3.2.1 The nature of the Zambian legal system

 Zambia has a dual legal system made up of the tribe specific

customary laws and the ‘received law’. English law is the received
law and is based on the English Common law and system. But just
what is English law and how was it received in Zambia?

3.2.2 The meaning of the term ‘English law’

 When described as ‘received law’ in former British colonies and

protectorates, the term ‘English law’ refers to “the common law,

31
 the doctrines of equity and the statutes of general application
which were in force in England on a particular cut –off date”. In
the case of Zambia, the cut – off date is 17th August, 1911. The
English Law (Extent of Application) Act, CAP 11, whose long title
is “An Act to declare the extent to which the Law of England
applies in the Republic” provides, in section 2, as follows:
Subject to the provisions of the Constitution of Zambia and to
any other written law-
(a) the common law;
(b) the doctrines of equity;
(c) the statutes which were in force in England on the
17th August, 1911 (being the commencement of
the Northern Rhodesia Order in Council, 1911);
and
(d) any statutes of later date than that mentioned in
paragraph (c) in force in England, now applied to
the Republic, or which hereafter shall be applied
thereto by any Act or otherwise;
shall be in force in the Republic.

A similar provision existed in the Gold Coast (later Ghana) Courts Ordinance, Cap
4 . Section 83 provided as follows: “Subject to the terms of this or any other
Ordinance, the common law, the doctrines of equity, and the statutes of general
application which were in force in England on the 24th day of July, 1874, shall be in
force within the Jurisdiction of the Courts”. Nigeria, Kenya and Gambia have
similar provisions.

3.2.3 The various modes of reception of English law in Africa

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

32
Unlike the French, Belgians, Italians and the Dutch, the English did not have a
ready – made Code to carry to their territories in Africa. Rather, they brought their
common law, as supplemented by their own and territorial legislation. The modes
of introducing English law in the newly acquired British territories varied
depending on the manner in which a particular territory was acquired. But in the
main, they were five namely:

a) Introduction by English settlers: Wherever they go, English settlers are

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

b) Introduction by the imperial government by Order in Council or Act of the

imperial parliament: Under this mode, English law was introduced not by
settlers but by an express enactment. Thus, it was the enactment (i.e.
legislation) that provided for the introduction and observance of English
law. The enactment was either made by the Crown by Order – in – Council
or by the colonial legislature by means of local legislation (through
ordinances, proclamations, Acts e.t.c).

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

were found in the British Settlements Act, 1887 for settlements and in the
Foreign Jurisdiction Act, 1890 for protectorates and trust territories. On the
other hand, the powers of the Colonial legislature to introduce English law
through local enactment were granted to such legislature by the Crown. In
the latter case, the authority for the application of English law is to be found
in such enactments as the English Law (Extent of Application) Act, CAP 11,
in the case of Zambia; and the Courts Ordinance, Cap 4 in the case of
Ghana; and the Law of England (Application) Ordinance, Cap 3 (1955
revision) in the case of Gambia.
33
 c) General reception of all English law on a particular topic (e.g. the law of
crime, the law of real property) by local ordinance;

d) Adoption of specific English enactments: e.g. under the British Acts

Extension Act, Cap 10 of the laws of Zambia, the following English
enactments were adopted as applying in Zambia i.e. the Conveyancing Act,
1911; the Forgery Act, 1913;the Industrial and Provident Societies
(Amendment) Act, 1913; the Larceny Act, 1916; The Bills of Exchange (Time
of Noting) Act, 1917; the Married Women (Maintenance) Act, 1920; the
Gaming Act, 1922; the Industrial and Provident Societies (Amendment) Act,
1928; the Limitation Act, 1939; and the Law Reform (Enforcement of
Contracts) Act, 1954.

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

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

Companies Act, Cap 338 of the laws of Zambia is based on the 1948 British
Companies Act while the Matrimonial Causes Act No. 20 of 2007 is based
on the 1973 British Matrimonial Causes Act.

3.2.4 The mode of reception of English law in Zambia

When the different modes of reception of English law discussed above are
considered, one comes to the conclusion that English law was introduced in
Zambia largely by means of mode (b) i.e. introduction by the imperial government
by Order in Council or Act of the imperial parliament. In this regard, the English
law (Extent of Application) Act, Cap 11 of the laws of Zambia is worth noting.
34
However, one cannot discount the contribution of modes (c), (d) and (e) in which
case the British Acts Extension Act, Cap 10 of the laws of Zambia is worth noting.

You should also note that in terms of practice and procedure, the Zambian law still
resorts to English law even now. This is evident in the provisions of some Zambian
Acts of Parliament e.g. section 12 of the Subordinates Court Act which provides
that

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

Meanwhile, section 14 of the same Act makes it very clear that “All British Acts
declared by any Act to extend or apply to Zambia shall be in force so far only as
the circumstances of Zambia permit; and, for the purpose of facilitating the
application of the said British Acts, it shall be lawful for a Subordinate Court to
construe the same with such verbal alterations, not affecting the substance, as
may be necessary to make the same applicable to the proceedings before the
court; and every magistrate or officer of court, having or exercising functions of
the like kind or analogous to the functions of a magistrate or officer referred to in
any such law, shall be deemed to be within the meaning of the enactments
thereof relating to such last-mentioned magistrate or officer”.

The High Court and Supreme Court Acts have similar provisions. Section 10 of the
High Court Act provides that “the jurisdiction vested in the Court shall, as regards
practice and procedure, be exercised in the manner provided by this Act and the
Criminal Procedure Code, or by any other written law, or by such rules, order or
directions of the Court as may be made under this Act, or the said Code, or such

35
written law, and in default thereof in substantial conformity with the law and
practice for the time being observed in England in the High Court of Justice”.
Interestingly, section 11 (1)of the same Act goes a step further by importing the
English law on probate. It provides that “the jurisdiction of the Court in divorce
and matrimonial causes and matters shall, subject to this Act and any rules of
court, be exercised in substantial conformity with the law and practice for the
time being in force in England”. Subsection (2) of section 11 further declares that
“the law and practice for the time being in force for the Probate, Divorce and
Admiralty Divisions of the High Court of Justice in England with respect to the
Queen's Proctor shall, subject to rules of court and to any rules made under the
provisions of the Colonial and Other Territories (Divorce Jurisdiction) Acts, 1926 to
1950, of the United Kingdom, apply to the Attorney-General”.

Meanwhile, section 8 of the Supreme Court Act, Cap 25 provides that the
jurisdiction vested in the Court shall, as regards practice and procedure, be
exercised in the manner provided by this Act and rules of court, provided that if
the Act or rules of court do not make provision for any particular point of practice
and procedure, then the practice and procedure of the Court shall be-

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

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

3.2.5 The quantum of the English law received

Where there is a specific adoption of English law on a particular topic, only so

much of the English law as is specifically adopted will apply. The procedure for
bringing about such a specific adoption is the enactment of a local piece of
legislation which merely adopts a named English statute as part of the law of the
‘receiving’ country, with minor amendments (method (d) above). Today, however,
the tendency is to draft a local ordinance, which although perhaps reflecting many
36
of the features of an English model, yet permits a greater degree of adaptation of
English law to local needs (method (e) above).

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

3.3 The evolution of the Zambian Court System

3.3.1 The1899 to 1911 Courts System

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

At the time the British colonists acquired North-Western Rhodesia in 1899 and
North – Eastern Rhodesia in 1900, some form of judicial system in the name of
tribal courts was already in existence administering customary law. However, this
tribal judicial system was not an elaborate judicial system. It was not until the
coming into effect of the Barotseland North-Western Rhodesia Order in Council
of 1899 that an elaborate judicial system was first established in the North-
Western part of today’s Zambia. In the Order in Council, provision was made for
the appointment of judges and magistrates thereby paving way for the
establishment of the High Court and Subordinate Courts for the territory. The
Order in Council also expressly stated that except where otherwise stated in the
Order, English law was to apply in the territory. And although Article 9 of the
Order in Council provided some form of protection of customary laws, no official
37
recognition was extended to the tribal courts themselves. The Article provided as
follows:

The High Commissioner in issuing such proclamations

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

T h e North-Eastern Rhodesia Order in Council of 1900 relating to the part of

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

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

Council of 1899 and the North-Eastern Rhodesia Order in Council of 1900 is that
both did not officially recognise tribal courts nor was any system of appeal
provided from tribal courts to Magistrate Courts or the High Court. But both
provided some protection of customary law “so far as that law is not repugnant to
natural justice or morality or to any order made by her Majesty in Council or to
any regulations” made under the Order.

Thus, between 1899 and 1911, two distinctly different systems of judicial
administration developed, the officially recognised courts administering English
law (and infrequently, customary law ‘in civil cases between natives’) and the de
facto tribal courts administering customary law.

38
3.3.2 The1911 to 1964 Courts System

On 4th May, 1911, the Northern Rhodesia Order in Council of 1911, revoking the
Barotseland North-Western and North-Eastern Orders in Council and merging the
two territories into one jurisdiction, was promulgated. Its provisions on the Court
system closely followed the pattern of the North-Eastern Rhodesia Order in
Council of 1900.

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

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

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

3.3.3 The Zambian Court system from 1973 to date

In 1973, the Court of Appeal was abolished and replaced by the Supreme Court of
Zambia. Another major change was the establishment, in early 1990s, of the
Industrial Relations Court which, until then, had been operating as an Industrial
39
Relations Tribunal. Another notable change came through the enactment, in 1992,
of the Small Claims Court, Cap 47 of the laws of Zambia. It is pursuant to this Act
that the Small Claims Courts, currently on pilot in Lusaka and Ndola, have been
created.

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

1. The Supreme Court;

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

3. The Subordinate Courts;

4. The Local Courts; and

5. The Small Claims Courts.

3.3.4 The future Zambian Court system

The current draft constitution has proposed the establishment of a Court of

Appeal and a Constitutional Court. If established, the Court of Appeal will be at
the level between the Supreme Court and the High Court while the Constitutional
Court will be at the same level as the Supreme Court. The Constitutional Court will
actually be a Division of the Supreme Court.

3.4 Stare decisis in Zambia’s courts

3.4.1 What is the meaning of ‘stare decisis’?

‘Stare decisis’ is a principle of English Law by which previous judicial decisions
(precedents) are binding and must be followed.
Like Courts of several countries whose legal systems are based on the English
common law system, the Zambian Courts follow the principle of stare decisis. The
principle has been part of Zambia’s judicial system since the introduction of

40
English law during the colonial days. However, the post-independence approach to
the principle is not the same as the pre-independence approach.

3.4.2 The pre – independence approach

Before independence, there was a rigid approach to the doctrine of stare decisis
in the then Northern Rhodesian courts. The courts were bound by decisions of
higher English Courts, especially the House of Lords and the Privy Council (at least
with respect to cases appealed to it from Northern Rhodesia). English decisions
construing statutes “imported” in the territory were followed religiously even if
“strange results” were produced. Thus, according to one commentator, “stare
decisis was pursued with even more rigour than in England itself”. All this was
because there was automatic application of English substantive and procedural
law to the near complete exclusion of any inputs based on local needs.
Even in cases dealing with uniquely local concepts e.g. witchcraft, the Courts
insisted on referring to the then current laws and standards of England. In nearly
all the more ordinary decisions that have been published, the needs and public
policies of Northern Rhodesia were completely ignored in favour of any English
case or rule found to be closest in point.
You should note that very few Northern Rhodesian decided civil cases appeared in
published reports and the explanation advanced for this was that “most of the
Judgments and decisions turned upon the construction of English law of contracts,
torts etc and that very few of such cases threw any light on the law peculiar to
Northern Rhodesia.” The only major exception to the pattern of reflexive reliance
on the correctness of English rules and decisions tended to occur in cases dealing
with the law of sedition and civil liberties (in which the Courts were harsher than
41
in England) and in cases where the level of education and ‘development’ of
individuals were at issue (in which the Courts displayed an embarrassing
paternalism).
Thus, before independence, the dogma of ‘stare decisis’ was routinely used, often
on a mechanical basis. What is important to note, though, is that while this
mechanical approach to the principle of stare decisis may have suited the needs of
a rather poorly trained and inadequately staffed judicial system, it contributed
very little to the development of rules of law suited to the conditions of the
country or to the development of a method of analysis sufficiently flexible and
creative to enable the law to move forward.

3.4.3 The post-independence approach

With the coming of independence in 1964, it was impossible for the Courts to
continue to reflect complete dependence on a foreign jurisprudence as the
primary source of Zambian law. The tide of national identity was running strong
and the bonds of political and economic subservience were formally severed. This
meant that the law too should move ahead both in order to serve the image of
sovereignty and, much more importantly, to stimulate or at least to participate, in
the growth and culture of the new republic.
The new thinking meant that the Zambian Courts could no longer take a
mechanical approach to the principle of stare decisis. It also meant that it was
time for Zambian Courts to view law as an instrument of social change and that as
the Zambian Society and policies changed, so too must the law be adjusted.
Under such conditions, it was inevitable that the method of the law would turn
away from automatic recourse to past precedents, especially precedent from
42
outside the country, towards consideration of the practical needs of society as
perceived by the law-makers.
It is therefore not surprising that the decisions of Zambian Courts made after
independence reveal that the former rigid adherence to the doctrine of stare
decisis has been relaxed and that the new approach is based on considerations of
public policy and less on pure, policy-neutral legal authority. The Supreme Court
has since explicitly stated that it is not bound by past decisions: “The United
States Supreme Court, the Supreme Court of the Republic of Ireland, the ultimate
Courts of Canada, Australia, South Africa and most European Countries, hold
themselves free, if they think it right to do so, to refuse to follow a previous
decision. Recently, the House of Lords in England has abandoned its rigid
adherence to the rule of stare decisis. I have no doubt that this Court as the
ultimate Court of appeal for Zambia is not absolutely bound by its previous
decisions.”
Mention must be made that the capacity of Zambian Courts to break from the
past precedents also extends to precedents from jurisdictions other than Zambia.
Further, cases from the Northern Rhodesia Courts are not binding on Zambia’s
Courts today. Nor are English cases and cases from other common law
jurisdiction.
Be sure to note that a similar flexibility has been exercised with regard to the
interpretation of statutes copied from or modeled on English legislation. The
Zambian Courts now firmly declare that statutes can be construed only in their
own context, regardless of what the position of various foreign authorities may
be.

43
Despite the foregoing, it can be safely stated that the doctrine of stare decisis is
still a very powerful notion in Zambian Courts today and continues to exercise a
lot of influence in the law. Even in decisions in which the Courts have expressed
their unwillingness to be bound by the past, especially English decisions, they
have more often than not regarded themselves as persuaded by such precedent
“in the highest degree”.

3.5 Conflicts between received English law and the customary law
3.5.1 What conflicts arose between the received English law
and customary law and how were they resolved?
Conflicts between customary law and received English law were of course
inevitable. One such conflict would arise when a white settler and an African
were involved in the same law suit. In such a case, English law was held to be
applicable as customary law was only applicable where the parties involved in the
law suit were exclusively Africans.
A second problem arose when customary law was clearly the applicable law but
was substantively abhorrent to the European Judge or magistrate. In such
instances, the judge or magistrate had 3 options at his disposal:
1) The first option was to merely disregard the advice of the assessors as to
what the law was or what the facts were. Reason? The court was, and is
still not bound to follow the opinion of assessors.
2) The second option was to find a direct conflict between the customary law
and the received English law. Recall that Section 12 of the Local Courts Act,
44
 C A P 2 9 provides that customary law that is incompatible with the
provisions of any written law “shall not be applicable. Section 16 o f the
subordinate Courts Act, CAP 28 has a similar provision.
3) The third option was for the Judge to use the “repugnancy” standard to
reject the application of customary law. This is because under the received
English law, customary law was not applicable if it was regarded as
“repugnant to natural justice, equity and good conscience”. See Section 16
of Cap 28; and Section 12 of Cap 29.

3.5.2 Whose standard was applicable in deciding whether or

not a given customary law was “repugnant to natural
justice, equity and good conscience?”

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

3.6 ACTIVITY

Explain to what extent can the received English law, or the cases on which it rests
(since it is derived in part from judge-made law, the common law and equity) be
consulted or applied even where there is an express local enactment?

45
 UNIT 4

SOURCES OF LAW IN ZAMBIA

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

In Zambia, the major sources of law are the Constitution; Acts of

Parliament; Delegated legislation; Judicial precedent; Customary law;
Common law, Equity and English statutes; international law; and modern
textbooks.

4.1 Constitution of Zambia

The Constitution of Zambia is the primary source of law in Zambia. It is the

primary source of law because it is the supreme law of Zambia and if any
other law is inconsistent with it, that other law, to the extent of the
inconsistency, is void. You must always remember this. Further, it binds all
persons in the Republic of Zambia including all Legislative, Executive and
Judicial organs of the State at all levels.5

That the Constitution is the supreme law of Zambia entails that the
existence and validity of other laws in the country depends on the extent to
which such other laws are consistent with the provisions of the
constitution. This relationship between the constitution and other laws was
ably explained in the case of Thomas Mumba vs. The Attorney General6 In
that case, Mr. Justice DK Chirwa had this to say:

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

Constitution is the supreme law, any other laws are made because

5
See Article 1(3) and (4) of the Constitution
6
(1984) ZR, 38
46
 the Constitution provides for their being made; and are therefore
subject to it. It follows therefore that unless the Constitution is
specifically amended, any Act that is in contravention of the
Constitution is null and void”.

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

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

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

behalf of the Attorney General that section 53 (1) of the Corrupt Practices Act was
not in conflict with the Constitution in that the section did not compel an accused
person to give evidence and that as such the accused person’s right to remain
silent was still maintained. The State further submitted that all the section in
question said was that if the accused person elected to say something he had to
do so on oath. After considering arguments from both counsel, the learned Judge
had this to say:

47
 “In countries like Zambia where there is a written constitution, the
Constitution is the supreme law, any other laws are made because the
Constitution provides for their being made; and are therefore subject to it. It
follows therefore that unless the Constitution is specifically amended, any
Act that is in contravention of the Constitution is null and void.

There is no doubt that the provisions of Section 53 (1) of the Corrupt

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

The case of Christine Mulundika & 7 Others vs. The People7 is another case which
confirms the position that the validity of all other laws depends on their
conformity with the constitution. In that case, the appellants had challenged the
constitutionality of certain provisions of the Public Order Act, Cap. 104 of the Laws
of Zambia, especially section 5(4) which required any person wishing to hold a
peaceful assembly to obtain a permit and contravention of which was criminalised
by section 7 of the same Act. The challenge related both to the requirement of a
permit and the prosecution based on the absence of such permit and was
grounded on the fundamental freedoms and rights guaranteed by Articles 20 and
7
(1995) ZR,
48
21 of the Constitution. A subsidiary challenge related to the exemption of certain
offices from the need to obtain a permit which is said to be discriminatory
contrary to Article 23 of the Constitution.

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

4.2 Acts of Parliament

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

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

exercised by Bills passed by the National Assembly and assented to by the
President.8

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

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

Types of Bills

8
See Article 78(1) of the Constitution.
49
 (a) Government Bill

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

(b) Private Bill

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

A Private Bill may be presented on a petition of the promoter who could be a

single person or group of persons. The promoter of a Private Bill is also
responsible for the costs incidental to the passage of the Bill in the National
Assembly.

(c) Private Members’ Bill

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

(d) Hybrid Bill

A Hybrid Bill is a Bill which, although general in its intended application, affects
certain private or local interests. The Standing Orders give the Speaker the power
to determine whether a Bill is hybrid or not.

50
In Zambia, the most common type of Bills that are introduced in the National
Assembly are Government Bills and Private Members’ Bills.

Stages of a Bill

(a) First Reading

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

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

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

(b) Second Reading

This is the most important stage in the legislative process of a Bill. At this stage,
the principle behind the Bill is debated in the House in great detail. The Cabinet
Minister or Member responsible for the Bill discusses the principles and objectives
51
of the Bill and takes into account the contents of the report of the Committee that
considered the Bill. At the end of the debate, the House decides whether to
proceed with the Bill or not. If the majority of the Members choose to proceed,
the speaker orders the Bill to be read a second time. If on the other hand, the
majority decline, then the Bill is withdrawn and it cannot be reintroduced during
the same session.

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

(c) Committee Stage

At this stage, a Bill is ordered to be considered by the Committee of the whole

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

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

(d) Report Stage

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

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

52
 (e) Third Reading

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

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

majority of all Members of the National Assembly.

(f) Presidential Assent

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

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

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

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

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

53
General Provisions Act9, defines a Statutory Instrument as “any proclamation,
regulation, order, rule, notice or other instrument (not being an Act of Parliament)
of a legislative, as distinct from an executive, character”.

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

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

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

consistent with the provisions of the parent or main Act. Any provision of a
statutory instrument which is inconsistent with any provision of the parent Act is
void to the extent of the inconsistency10.

The Parliamentary Committee on Delegated Legislation is responsible for ensuring

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

4.3 Common law, Equity and English statutes

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

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

9
Cap 2 of the Laws of Zambia. See also Article 139(1) of the Constitution
10
See subsection 4 of section 20 of Cap 2.
54
On the other hand, equity is a body of rules which seek to advance what is ‘just’
and ‘fair’ in the circumstances of each case. For this reason, equity is said to
denote ‘natural justice’. Equity developed as a result of defects in the common
law.11 The importance of the doctrine of equity is that whenever there is a conflict
between law and equity, the latter prevails.

The extent to which common law, equity and English statutes are a source of law
in Zambia is spelt out in the English law (Extent of Application) Act12. Section 2 of
the Act provides that

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

other written law-

(a) the common law;

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

It is important to note that notwithstanding section 2 of the English law (Extent of

Application) Act, there are certain British Statutes which are still a source of law in
Zambia despite coming into force after 17th August, 1911. These are specified by
the British Acts Extensions Act.13 They include the Conveyancing Act, 1911; the
Forgery Act, 1913; the Industrial and Provident Societies (Amendment) Act, 1913;
the Larceny Act, 1916; The Bills of Exchange (Time of Noting) Act, 1917; the
Married Women (Maintenance) Act, 1920; the Gaming Act, 1922; the Industrial

11
The defects are discussed in UNIT 3
12
Cap 11 of the Laws of Zambia
13
Cap 10 of the Laws of Zambia
55
and Provident Societies (Amendment) Act, 1928; the Limitation Act, 1939; and the
Law Reform (Enforcement of Contracts) Act, 1954.

Mention must also be made that notwithstanding the provisions of the English
law (Extent of Application) Act, Cap 11 of the laws of Zambia, all English Statutes
that apply to Zambia by virtue of that Act serve only as ‘reserve’ sources of law in
Zambia. This means that we can only resort to such English statutes if our own
Zambian Acts of Parliament are silent on a particular issue. This position was
confirmed by the High Court in the case of The People vs. Shamwana & Others14
In that case, the accused were charged with treason. Proving the case was
dependent on Act No. 35 of 1973. Prior to this Act, the law provided that one
could not be convicted of treason unless there were two witnesses to an overt act
or two witnesses who each observed a separate overt act of the same kind of
treason. This was the law in England and Zambia. But Act No. 35 of 1973 changed
the law in Zambia ensuring that there was no requirement as to a specific number
of witnesses to prove the offence of treason. After the Act came into force, the
offence of treason could be proved like any other criminal offence

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

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

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

14
(1982) ZR, 122
56
Also worth noting is the fact that in terms of practice and procedure, the Zambian
legal system also relies heavily on English law. This is evident in the provisions of
the Subordinate Courts Act15; the High Court Act16; and the Supreme Court Act17.

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

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

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

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

15
Cap 28 of the Laws of Zambia
16
Cap 27 of the Laws of Zambia
17
Cap 25 of the Laws of Zambia
57
 i. in relation to criminal matters, as nearly as may
be in accordance with the law and practice for the
time being observed in the Court of Criminal
Appeal in England;
ii. in relation to civil matters, as nearly as may be in
accordance with the law and practice for the time
being observed in the Court of Appeal in England.”

except that the Civil Court Practice 1999 (The Green Book) of
England or any other civil court practice rules issued after 1999
in England shall not apply to Zambia unless they relate to
matrimonial causes”.

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

4.4 Judicial precedent18

You will need to note that the doctrine of precedent is one of the characteristic
features of not only the English legal system but also all legal systems founded
upon the English common law system like Zambia.

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

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

18
For more on the use, types, advantages and disadvantages of judicial Precedent see UNIT 6
58
4.5 Customary law19

Customary law is the oldest form of law known to man worldwide. It consists of
customs, practices and beliefs that are accepted by a given society as obligatory
rules of conduct. It is not enacted but grows or develops with time. It expresses
itself not in a succession of words, but in a course of conduct. It has no definite
authors; there is no person or defined human agency one can praise or bless for
its being good or bad.20

As you may be aware, in Zambia, as in several other countries, different tribes

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

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

That customary law is a recognised source of law in Zambia is also evident by the
provisions of the Local Courts Act21 and the Subordinate Courts Act.

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

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

customary law in the following terms:
19
For more on the principles governing the application of customary law, see UNIT 2
20
L Fuller, 1968
21
Cap 29 of the Laws of Zambia
59
“Subject as hereinafter in this section provided, nothing in this Act shall
deprive a Subordinate Court of the right to observe and to enforce the
observance of, or shall deprive any person of the benefit of, any African
customary law, such African customary law not being repugnant to justice,
equity or good conscience, or incompatible, either in terms or by necessary
implication, with any written law for the time being in force in Zambia. Such
African customary law shall, save where the circumstances, nature or justice
of the case shall otherwise require, be deemed applicable in civil causes and
matters where the parties thereto are Africans, and particularly, but
without derogating from their application in other cases, in civil causes and
matters relating to marriage under African customary law, and to the
tenure and transfer of real and personal property, and to inheritance and
testamentary dispositions, and also in civil causes and matters between
Africans and non-Africans, where it shall appear to a Subordinate Court that
substantial injustice would be done to any party by a strict adherence to the
rules of any law or laws other than African customary law: Application
of African customary law

Provided that-

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

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

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

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

60
4.6 International law

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

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

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

been ratified or acceded to by the Zambian Government.

That Bilateral or multilateral agreements are a source of law only if they have
been domesticated is exemplified by the case of Zambia Sugar Plc vs Fellow

61
Nanzaluka.22 In that case, Mr Nanzaluka was employed by Zambia Sugar Plc in
1992. His employment was terminated without notice in 1996. He was paid three
months salary in lieu of notice. He brought an action in the Industrial Relations
Court. The court accepted that the conditions of service had been complied with
but held that the action was contrary to the International Labour Convention No.
158 of 1982 which forbids termination of an employee’s contract of employment
without valid reasons. On appeal to the Supreme Court, it was held that
international instruments on any law although ratified and assented to by the
state cannot be applied unless they have been domesticated and that since
Zambia had not yet domesticated the International Labour Convention No. 158 of
1982, the convention was inapplicable to Zambia.

The case of Attorney General vs. Roy Clark23 also sheds light on the need for
international instruments to be domesticated before they become applicable to
Zambia. In this case, Mr. Roy Clark challenged his deportation from Zambia. It was
contended, inter alia, on behalf of Mr. Clark that the Minister of Home Affairs
should have taken into account Article 13 of the International Covenant on Civil
and Political Rights before deporting Mr. Clark because Zambia is a signatory to
the Covenant. The High Court accepted this argument. On appeal, this is what the
Supreme Court stated:
“….The learned trial Judge said that when deporting the respondent, the
Minister should have taken into consideration Article 13 of the International
Covenant on Civil and Political Rights to which Zambia is a signatory. Article
13 requires that a potential deportee must be given an opportunity to be
heard unless there are compelling reasons of national security. It was Dr.
Matibini's submission that in this case, it has not been demonstrated that
there existed compelling reasons. Dr. Matibini ended his submissions on this
ground by saying the learned trial judge was on firm ground when he held
that it was unlawful to deport the respondent when there is no compelling
reasons of national security and because deportation interfered with his
family life.

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

construing our statutes we can take into consideration international

22
Appeal No. 82 of 2001
23
(2008) ZR, 38
62
 instruments to which Zambia is a signatory. However, these International
Instruments are only of persuasive value unless they are domesticated in
our laws. The provisions relating to deportation as contained in section
26(2) which we have reproduced above are clear. We cannot import in our
interpretation of section 26(2) glosses and interpolations derived from
Article 13(1) aforesaid. Under section 26(2) long stay in Zambia and raising
a family in Zambia by an alien does no legally immunize a foreigner from
deportation. Further, for one to be deported under section 26(2) there need
not necessarily be compelling reasons of national security….”24[Own
emphasis]

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

4.7 Modern text books

Modern textbooks written by eminent legal scholars are often resorted to for a
variety of legal principles in various areas of law. You will encounter some of these
texts during your tenure in law school, such as “Chitty on Contracts”, “Clerk and
Lindsell on Torts”.

4.8 ACTIVITY
i) Distinguish between persuasive sources of law and binding sources of
law in Zambia and give examples.
ii) Explain the difference between “Acceded”, “Ratified” and
“Domesticated”.

24
(2008) ZR, 38 at 61
63
 UNIT 5

STATUTORY INTERPRETATION

5.0 Introduction
In this Unit, we will discuss how the courts interpret Statutes. You will be introduced to
various rules of statutory interpretation.

5.1 Objectives
By the end of this Unit, you should be able to:
i) explain how each of the rules of statutory interpretation is applied
ii) explain whether the rules rank in a particular order
iii) explain what the effect is of not applying the correct rule

5.2 Why the need for Statutory Interpretation?

64
 There are several reasons giving rise to the need for statutory
interpretation. These include:
1. The impossibility of asking individual MPs on what they meant of
any word that you do not understand in the statute - In our day to
day conversations, it is not uncommon, if someone says something
that you do not understand, for you to ask that person to explain what
he/she meant. Such an opportunity is impossible with written
documents, not less so with statutes.

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

be made to ask him/her what he/she meant of any statement that you
do not understand in the document. That is assuming the author is
alive and can be contacted through some means. But it is not possible
to ask individual Members of Parliament (MPs) of what they meant of
any statement included in the Act of Parliament because, firstly, they
are too many to be approached individually. Secondly, the words
contained in an Act of Parliament pass through the legal machinery of
law-making and individual MPs cannot be put into the witness box to
supplement or interpret what has been formally enacted. Therefore, in
practice, the meaning of the words contained in the Act of Parliament is
not necessarily the meaning intended by any actual person in
particular, but the meaning that is conventionally attached to such
words.
2. Draft persons sometimes refrain from using words which they
consider to be implied in what they have written - The problem with
this approach is that if different users of the statute are not familiar with
the implied meaning, the possibility of them coming up with different
meanings of the same provision arises.
3. Draft persons may use words or phrases which have a core
meaning (which everybody knows and agrees) and a peripheral

65
 (also known as ‘penumbra’) meaning which is not known by
everyone. For example, the word “vehicle” is generally taken to mean
some kind of a “motor” vehicle. But the same word may also cover an
“ox-cat”.

4. Statutes sometimes contain ambiguous words deliberately

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

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

5.3 Rules of statutory interpretation.

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

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

The classic statement of the literal rule of statutory interpretation is

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

66
 “if the words of the statute are in themselves precise
and unambiguous, then no more can be necessary
than to expound those words in their natural and
ordinary sense. The words themselves alone do, in
such a case, best declare the intention of the law
giver.”

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

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

case, an Act of Parliament required Members of Parliament, before
voting in the House, to take oath in a form which concluded with the
declaration that it was taken “on the true faith of a Christian”.
Taking a literal interpretation approach to the provision, the Court
held that the oath taken by Jewish Parliamentarians was not “on
the true faith of a Christian” and consequently excluded Jewish
Parliamentarians from voting. This was notwithstanding the fact
that the history of the enactment shared that the intention was to
test the loyalty, not the religious creed, of the MPs.

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

commonly cited case on the literal rule of interpretation. In that
case, it was a statutory offence to impersonate “any person entitled
to vote” at an election. The defendant, who had impersonated
someone who had been entitled to vote but who had died before
the date of the election, was convicted of the offence. Although the
67
defendant was, on appeal, acquitted on the ground that dead
persons were not ‘entitled to vote’, the fact that the lower court had
convicted the defendant is enough reason to get worried. Clearly,
the impersonation was not of a person entitled to vote because a
dead person cannot be entitled to vote: he does exist and cannot
therefore have any rights, not less so the right to vote.

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

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

In his judgment, Mr. Justice Bweupe had this to say: “The question
that arises in my view is: What is then meant by the phrase
‘specifying in detail’?” After some analysis on the issue, he
continued thus: “It seems to me, therefore, that in the construction
of the statute words should be taken in their literal meaning which
is not necessarily the dictionary sense but the sense in which the
words are used in common parlance. What then is the popular
sense of the phrase ‘specifying in detail’? The popular sense of the
phrase in my view is therefore that the detaining authority must
furnish sufficient information which should enable the detainee to
68
 direct his mind to it when making his representations”. In the
learned judge’s view, the statement given to the applicant in this
case did not contain sufficient information. Consequently, the judge
ordered the release of the applicant.

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

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

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

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

Court of Queen’s Bench decided that under the Trade Descriptions
Act, 1968, a buyer of goods, in this case a car dealer, could be
guilty of the offence of falsely describing goods when he told a
private seller that his car was almost worthless, bought it, repaired
it and sold it at a considerable profit. Lord Widgery, CJ said that
although he had never thought of the Act as applying to buyers of
goods, it was necessary in the public interest that it should, at least
69
 in the case of expert buyers, and that in his view such decision “is
not in any sense illogical and is not likely to run counter to any
intention which Parliament may have had”.

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

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

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

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

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

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

requires that a statute must be interpreted in the light of the general
policy behind its enactment. The rule is based on the fact that the
words we use, while having a central core meaning that is relatively
fixed, may also have a fringe of uncertainty when applied to a given set
of facts. For example, the word “building” is generally understood to
mean a building structure built on land. But a Judge may not find it
easy to decide whether a temporary Wooden Hurt or a telephone kiosk
is a building. Similarly, the word “vehicle is generally understood to
refer to “motor vehicle”. But an ‘ox-cart’ may also be called a vehicle. It
71
 is in circumstances when there is uncertainty as to the meaning of the
word that the fringe rule of interpretation requires that the word be
interpreted in the light of the general policy behind the statute.

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

illustrates the application of this rule. In that case, the respondent was
a Tanzanian national employed in the Zambian civil service. After his
request to buy his house as a sitting tenant was rejected, he brought
an action before the Lands Tribunal which ordered that the house be
sold to him within a specified period. On appeal, a number of issues
were raised including the interpretation of the preamble. Madam
Justice Chibesakunda, delivering the Judgment of the Supreme Court
stated thus:
“The Tribunal did not consider the meaning of the preamble.
The Tribunal ignored the spirit of empowering Zambians to
acquire their own houses. The Tribunal thought that so long
as you are a civil servant and a sitting tenant and so long as
you qualify under section 3 of the Lands Act, you are home
and dry. On strict interpretation of the Cabinet Circular and
Interpretation of the Local Government and Housing and the
University of Zambia circulars on the sale of houses, the
intention of Government becomes very clear. The intention
was to empower Zambians who were sitting tenants to
purchase pool houses. The Tribunal misdirected itself and
erred in ignoring the preamble”.

4. The mischief rule of Interpretation: This rule, also often known as

the rule in Heydon’s case, states that where a statute has been passed
to remedy a weakness in the law, the interpretation which will correct
that weakness (mischief) is the one to be adopted. Under this rule, it is

72
 believed that for the sure and true interpretation of all statues, four
things are to be discerned and considered. These are:

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

Cases abound in which the mischief rule was applied. One such case is
Hutton v Esther Urban District Council (1973) 2 ALL ER 1123. In that
case, the council proposed to construct a sewer to drain surface water
from houses and roads and also to take flood water from a river. The most
economical line of the sewer would take straight through the claimant’s
bungalow, which would have to be demolished but might be rebuilt after
the sewer had been constructed. The Public Health Act, 1936 empowered
the council to construct a public sewer “in, on, or over any land”. The
claimant argued that the expression “land” did not include buildings and
therefore, the council had no power to demolish his bungalow. However,
section 3 of the Interpretation Act of 1889 (applicable at the time) provided
that unless a contrary intention appears, the expression ‘land’ includes
buildings. Applying the mischief rule, the Court of Appeal held that the
Interpretation Act was applicable and “land” therefore, included buildings.
In consequence, the council had power to demolish the claimant’s
bungalow.

73
The Zambian case on the mischief rule is The People v Shamwana and
Others. In that case, the accused were charged with treason. Proving the
case was dependent on Act No. 35 of 1973. Prior to this Act, the law
provided that one could not be convicted of treason unless there were two
witnesses to an overt act or two witnesses who each observed a separate
overt act of the same kind of treason. This was the law in England and
Zambia. But Act No. 35 of 1973 changed the law in Zambia ensuring that
there was no requirement as to a specific number of witnesses to prove
the offence of treason. After the Act came into force, the offence of treason
could be proved like any other criminal offence.

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

“What is the effect of Act No.35 of 1973? I seek guidance from
Lindley, M.R, said in the case of Re Mayfair Property Company
(1898) 2 Ch. 28 at p. 35. ‘In order properly to interpret any statute it
is necessary now as it was when Lord Coke reported Heydon’s
case to consider how the law stood when the statute to be
construed was passed, what the mischief was which the old law did
not provide and the remedy provided by the statute to cure that
mischief’.

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

LJ put it this way at 120: ‘In interpreting an Act of Parliament you
are entitled, and in many cases bound to look to the state of the
law at the date of the passing of the Act – not only the common law,
but the law as it then stood under the previous statutes in order
properly to interpret the statute in question. These may be
considered to form part of the surrounding circumstances under
which the Legislature passed it and in the case of a statute just as
in the case of every other document you are entitled to look at the
surrounding circumstances at the date of its coming into existence,
74
 though the extent to which you are allowed to use them in the
construction of the document is a wholly different question”.

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

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

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

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

The close relation between the mischief rule and the purposive approach
came to light in the case of Gardiner vs Sevenoaks EDC (1950) 66, TLR,
1091. In that case, the local authority served a notice under the celluloid
and cinematograph film Act 1922 on the occupier of a cave where film was
stored, requiring him to comply with certain safety regulations. The cave
was described in the notice as “premises”. Gardiner, who was the
75
 occupier, appealed against the notice on the ground that a cave could not
be considered ‘premises’ for the purposes of the Act. The Court held that
whilst it was not possible to lay down that every cave would be premises’
for all purposes, the Act was a safety Act and was designed to protect
persons in the neighborhood and those working in the place of storage.
Therefore, under the “mischief rule”, this cave was ‘premises’ for the
purposes of the Act.

4(a) So what, then, is the distinction between the mischief rule and the
purpose approach?
 Both the mischief rule and the purposeful approach aim to give effect to
the general purpose and intention behind the legislation. However,
1. mischief rule applies only where there is a gap in the common
law whereas purposive approach applies whether the area
covered by the enactment was previously within the domain of
common law or statute law;
2. Purposive approach is merely one aspect of the modern
emphasis on the importance of the context and, therefore, can
be regarded as having evolved from literalism. On the other
hand, mischief rule predates literalism; and
3. mischief rule was originally intended to restrict the scope of the
Court’s inquiry to the four corners of the Act itself whereas
purposive approach as currently practiced clearly allows
reference to various materials, and may even allow reference to
Hansard (Parliamentary Debates).

5. The Golden rule of Interpretation: This rule states that a statute must
be construed in such a way as to produce a reasonable and sensible
result, even if this involves departing from the literal meaning of the
words. The rule allows the court to prefer a sensible meaning to an
absurd meaning where both are linguistically possible. Under this rule,
76
 it does not matter that the absurd meaning is the more natural and
obvious meaning of the words. In short, this rule requires that statutes
must be construed in such a way as to avoid absurdity.

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

The Respondents were members of the MMD. On 31st October, they stood
for elections on the MMD ticket. They won elections and took their seats in
the National Assembly. On 12th August, 1993, they announced their
resignation from the MMD prompting the MMD National Secretary to write
to the Speaker of the National Assembly informing him that the
respondents were no longer members of the MMD. Following the receipt
of the notification from the MMD National Secretary, the Speaker, on 27th
August, 1993, wrote the respondents informing them that in terms of
Article 71(2) (c) of the Constitution of the Republic of Zambia, the
respondents ceased to be MPs with effect from 13 th August, 1993, the date
when the MMD National Secretary wrote the Speaker. The Respondents
then petitioned the Attorney General contending that although they had
resigned from the MMD on whose ticket they won the elections, they were
still MPs and asked the Court to declare the Speaker’s decision in relation
to their seats as null and void.
Using the literal rule of interpretation, the learned High Court judge
construed Article 71 (2) (c) of the Constitution as enacting that if an MP
leaves the party on whose ticket he or she was elected to the National
Assembly but does not join any political party, that person retains the seat
in Parliament as an independent MP. It is against this interpretation that
77
the Attorney General appealed. The gist of the appeal was that the
learned trial judge had misdirected herself by applying the literal rule of
statutory interpretation to Article 71 (2) (c) instead of the purposive rule of
interpretation. After discussing Counsel’s arguments at great length, the
Supreme Court observed thus:
“In the instant case, we have studied the judgment of the court
below and we find it sound and correct by applying the literal
interpretation. However, it is clear from the Shariz and Nothman
cases that the present trend is to move away from the rule of literal
interpretation to ‘purposive approach’ in order to promote the
general legislative purpose underlying the provision. Had the
learned trial judge adopted the purposive approach she would
undoubtedly have come to a different conclusion. It follows,
therefore, that whenever the strict interpretation of statute gives
rise to an unreasonable and unjust situation, it is our view that
judges can and should use their good common sense to remedy it,
that is by reading words in if necessary, so as to do what
parliament would have done had they had the situation in mind.
We, therefore, propose to remedy the situation in this case by
reading in the necessary words so as to make the Constitutional
provision fair and undiscriminatory. Consequently, the necessary
words to be read in are ‘vice versa’. Hence Article 71(2) (c) should
now read (leaving out those sub – clauses of application):
71(2) A member of the National Assembly shall vacate his
seat in the National Assembly: (c) in the case of an elected
member, if he becomes a member of a political party other
than the party, of which he was an authorised candidate
when he was elected to the National Assembly or, if having
been an independent candidate, he joins a political party or
vice versa.

78
 See also Mumbuna Wamuneo Mwisiya v The Council of the University
of Zambia (1981) ZR 247.

NOTE: You are advised to note that in the Lewanika case referred to above;
several other rules of statutory interpretation were discussed. It is
therefore important that you read the case.

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

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

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

79
 7. Expression unius exclusio alterius: This rule simply means that the
mention of one thing excludes others. Thus, under this rule, where
specific words are used and are not followed by general words, the Act
applies only to the instances mentioned. For example, where a statute
contains an express statement that certain statutes are repealed, there
is a presumption that other relevant statutes not mentioned are not
repealed.

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

Times, 26 November, 1982. In that case, an Immigration Appeals
Tribunal had, in interpreting the Immigration Act, 1971, ruled that a woman
who was born in Hong Kong of a Chinese mother and putative English
father was not entitled to a certificate of partiality (a certificate allowing
immigration). There was an appeal to the Court of Appeal where the sole
question was whether the word ‘parent’ used in the 1971 Act included the
father of an illegitimate child. The father in this case was unknown. It was
held that since the definition section in the 1971 Act specifically mentioned
the mother alone in the context of an illegitimate child, the rule expression
unis est exclusion alterius served to exclude the father of an illegitimate
child for these purposes as a ‘parent’. According to the Court of Appeal,
the Act required partiality to be decided on the basis of the mother alone
and consequently, the daughter of a Chinese mother was not a partial.

5.4 Presumptions

5.4.1 Rationale

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

a negative or restrictive character. They are the background of legal principles
against which all Acts of Parliament are viewed and in light of which Parliament is
assumed to have legislated without being expected to express them.
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  The following extract aptly explains the rationale behind presumptions:

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

duty of judges goes beyond the automatic enforcement of the dictates of
Parliament. The judges’ function is also to do justice in accordance with
certain settled principles of law in a free society; and they are entitled to
assume that Parliament does not intend to subvert these principles,
unless there is a clear statement that it does. For this reason, the courts
apply the rule that when Parliament has conferred a judicial or quasi-
judicial power upon a person, that power must be exercised in accordance
with the rules of natural justice. When Parliament creates a new crime,
this is presumed to be subject to certain defences at common law such as
self-defence and duress, and also (very frequently) to the requirement of
the state of the mind (intention, knowledge or recklessness). These are
judge-made principles required by our ideas of justice and grafted on the
statute by ‘implication’ although there may be no words in the statute to
suggest them”.

5.4.2 Definition

 A presumption is a fact assumed to be true under the law. According to Osborn’s

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

5.4.3 Types of Presumptions

 Types of presumptions include the following:

81
i. Rebuttable presumptions of law – These are inferences which the law
requires to be drawn from given facts and which are conclusive until
disproved by evidence to the contrary. Examples include the presumption
of innocence of an accused person; the presumption of death of a person
who has not been heard of for 7 years; the presumption of legitimacy for
children born in wedlock; and the presumption of marriage.
ii. Irrebuttable presumptions of law – These are absolute inferences
established by law. Evidence is not admissible to contradict them: they are
rules of law. Irrebuttable presumptions of law are also sometimes known
as ‘conclusive presumptions’. Examples include the rule that a person
below the age of 8 (in Zambia) is not criminally liable for his or her actions
and omissions.
iii. Presumptions of fact – These are inferences which may be drawn from a
given set of facts but not conclusively.

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

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

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

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

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

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

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

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

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

of procedure and matters of substance in the application of the presumption
against retrospectivity. The distinction is that the presumption is not applicable
when matters of procedure are involved: it is only applicable when matters of
substance are involved. In Zambia, this position has been confirmed by the

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 High Court in two unreported cases relating to the amendment of the Local
Government Act prohibiting execution of court judgments on the property of
local authorities. However, the Supreme Court is yet to pronounce itself on
the matter as no opportunity has occurred for it to do so.

The position is different in the United Kingdom (UK). It would appear that the
distinction between matters of procedure and matters of substance has since
disappeared. The new approach for the application of the presumption
appears to be that the issue should not be whether the matters involved are
procedural or substantial but rather whether the retrospective application of
the law would be unfair in the circumstances of each individual case. Read
Yew Bon Tew v Kenderaan Bas Mara (1982) 3 ALL ER, 833; Re A
Solicitor’s Clerk (1957) 3 ALL ER, 617; Secretary of State for Social
Services v Tunnicliffe (1991) 2 ALL ER, 712; and L’Office Cherifien des
Phosphates and another v Yamashita Steamship Co. Ltd: The Boucraa
(1994) 1 ALL ER, 20.

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

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

When such a problem arises, the courts will normally presume that
Parliament expected mens rea to be a precondition of guilt and accordingly
they will refuse to convict in its absence. However, this is a rebuttable

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 presumption meaning that if evidence is adduced to prove the contrary, the
accused may be convicted.

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

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

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

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

5.5 Finding Parliament’s intention

5.5.1 Introduction

 Looking at UNIT 5 of this module, one gets the impression that the process of
statutory interpretation is all about ‘finding Parliament’s intention’. This
impression is also supported by the words of Lord Simon in Ealing London
Borough Council v Race Relations Board (1972) 1 ALL ER, 105, in which he
stated that “it is the duty of a court to interpret an Act of Parliament as to give
effect to its intention”. The question that arises is: Is the process of statutory
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 interpretation aimed at giving effect to the intention of Parliament as expressed in
a particular Act of Parliament?

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

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

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

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

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5.5.2 Intrinsic and Extrinsic Aids to Statutory Interpretation

It is useful to note that both intrinsic and extrinsic aids to statutory interpretation
are ‘materials’ which the court may consult in ascertaining the meaning of the
word or words used in a statute.

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

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

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

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

And Lord Simon in Black-Clawson International Ltd v Papiewerke

Waldho-Aschaffenburg AG (1975) 1 ALL ER, 810 took the view that
where a long title provides ‘the plainest of all guides to the general
objectives of a statute’, there can be no justification for restricting its
use to cases of ambiguity.
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ii. Short title - The leading case is Re Boaler (1915) 1 KB, 21 in
which it was noted that a short title is part of the Act and as such
the court can and should consider it. However, a short title is, by its
very definition, a short title and therefore, as Scrutton LJ put it,
‘accuracy may be sacrificed to brevity’.

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

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

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

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

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

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

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

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

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

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

The main categories of extrinsic materials normally discussed by

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

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

T h e Interpretation and General Provisions Act, Cap 2 of the Laws of

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

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

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

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5.6 Activity

1) Explain whether there is a difference between applying rules of staturtory

interpretation and finding Parliament’s Intention.
2) Distinguish between the application of extrinsic and intrinsic aids to Statutory
interpretation.

UNIT 6

JUDICIAL PRECEDENT

6.0 Introduction

In this Unit, we will explore the doctrine of precedent as one of the characteristic
features of not only the English legal system but also all legal systems founded
upon the English common law like Zambia.

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 Judicial precedent may be defined as “a judgement or decision of a court of law
cited as an authority for deciding a similar set of facts” or as “a case which serves
as an authority for the legal principle embodied in its decision”. The doctrine of
precedent declares that cases must be decided the same way when their
material facts are the same.
6.1 Objectives
By the end of this Unit, you should be able to:
1) Explain what Judicial Precedent is;
2) Understand its application in the Zambian legal system;
3) Distinguish between Persuasive and Binding Precedent;
4) Understand the operation of the doctrine of Res Judicata.

6.2 The wider and narrower view of precedent

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

6.3.1 Original precedent

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

6.3.2 Binding precedent

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

6.3.3 Persuasive precedent

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

6.4 Terminology in relation to the handling of precedent

You should note that different terms are used to describe the position courts take
with regard to the applicability of previous decisions. A previous decision may be
distinguished, overruled, reversed or disapproved.

6.4.1 Distinguishing
The court may refuse to follow a previous decision on the ground that the
material facts in the previous decision are not the same as the material facts in
the case before court. Whenever the court comes to such conclusion, the case
on which the court is required to pronounce itself is said to be distinguishable
from the previous decision.
Distinguishing a case on its facts, or on the point of law involved, is a device
used by judges usually in order to avoid the consequences of an earlier
inconvenient decision which is, in practice, binding on them. Thus, distinguishing
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 an earlier case from a later case is simply a way of saying that the earlier case is
irrelevant to the later case and cannot, therefore, be followed as precedent. Put
differently, the practical implication of distinguishing an earlier case from a later
case is that the earlier case is rendered inapplicable to the later case. It does not,
however, imply criticism of the correctness of the earlier case. Neither does it
imply that the earlier case cannot be followed in future cases founded on similar
facts.
6.4.2 Overruling
Overruling simply means declaring a previous decision as having been wrongly
decided. This happens when a higher court reaches the conclusion that a
decision made in an earlier case by a lower court was based on the wrong
application of the law or that the ratio decidendi of such decision is no longer
desirable. An example of a decision overruled on the ground that it was based on
the wrong application of the law is Anderton v Ryan (1985) 2 ALL ER 335 which
was overruled by the House of Lords in R v Shivpuri (1986) 2 ALL ER 334 in
relation to the Criminal Attempts Act, 1981 while Miliangos v George Frank Ltd
(1975) 3 ALL ER 801 is an example of a decision that overruled previous
authorities on the ground that the it was a decision which was no longer
desirable.[ The previous authorities had decided that judgments could not be
given in a foreign currency].
In Zambia, the power to overrule a previous decision lies only with the Supreme
Court. The Supreme Court can overrule previous decisions of the High Court as
well as overrule its own previous decisions. But the High Court cannot overrule
its own previous decisions although it may disapprove such decisions.
The practical implication of overruling a previous decision is that such decision
loses all its authority and ceases to be precedent forthwith in relation to all future
cases.
6.4.3 Reversing
Reversing is the overturning on appeal, by a higher court hearing the appeal, of
the decision of the lower court. The appellate court, on reversing the decision of
a lower court, substitutes its own decision. For example, where a party to a case
decided by the High Court is dissatisfied with the decision of the High Court and
appeals to the Supreme Court and the Supreme Court allows the appeal by
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 reaching at a different decision from that of the High Court, the decision of the
High Court stands reversed.
In practice, a decision that has been reversed has no authority as precedent and
cannot, therefore, be followed in any future case founded on similar facts. Neither
is it binding on the parties to it.

6.4.4 Dissenting
Dissenting is a regular English word that you must already know. To ‘dissent’ is to
‘disagree’ or to hold a ‘different’ opinion. The term dissenting is used in relation to
any judgement of a judge or judges who reach a different decision from the
majority of the judges hearing a case. This happens when a case is heard by a
panel of three (03) or any other odd number of judges and the minority of judges
on the panel disagree with the conclusion reached by the majority of the judges
on the panel. In such circumstances, the decision of the minority judges on the
panel is known as a ‘dissenting’ judgment while that of the majority of judges on
the panel is known as the ‘majority’ judgment. The ‘majority’ judgement is the one
that is binding and that may be followed in future as precedent, not the
‘dissenting’ or ‘minority’ judgement.
It is important for you to note that ‘dissenting’ judgments are presently not a
feature of the Zambian legal system, at least in practice. This is because
although our judges are, in theory, entitled to reach different conclusions in any
case that is being heard by a panel of judges, we do not see any dissenting
judgments being delivered. This state of affairs might be attributed to the lack of
resources, human and time, to accommodate the luxury of a judge sitting to put
his/her disagreements with colleagues in a separate judgment.

The doctrine of precedent in Zambia

Zambia, as explained earlier in this Module, is a dual legal system comprising the
‘received’ English law and the local customary law. The doctrine of precedent is
part of the common law tradition inherited from the ‘received’ English law. In
order to facilitate access to previous judicial decisions in Zambia, the Council of
Law Reporting publishes the Zambia Law Reports which are available for sale to
lawyers and interested members of the public.
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 When an issue arises on which there are no Zambian previous decisions, English
previous decisions relevant to the issue may be used. However, English cases
are not binding on Zambian courts: they are merely persuasive. So are the
decisions from other common law jurisdictions.

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

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

6.5 The ratio decidendi of a case

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

of a case. The ratio decidendi of a case is simply the reason or ground for a
decision. Although ratio decidendi is also defined as “the material facts of a case
plus the decision thereon”, there is no universal agreement on this definition.
A general formula for determining the ratio decidendi of a case has been
suggested in the following ways:

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

What facts are legally material? That depends on the particular

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

It is clear from the foregoing extract that the importance of the materiality of the
facts cannot be discounted when it comes to ascertaining the ratio decidendi of a
particular case. But who decides which facts are material – the earlier judge or
the later one? To fully appreciate the answer to this question, one needs to
recognise that the concept of ratio decidendi is capable of being used in two
distinct ways: descriptively and prescriptively.
In its descriptive sense, the phrase ratio decidendi is used to describe the way in
which the earlier judge reached the decision. In this context, a later judge must
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 acknowledge the materiality of the facts which the earlier judge treated as being
material.
On the other hand, the phrase ratio decidendi when used in its prescriptive sense
refers to the statement of law derived from the earlier case which that case
prescribes as being the law for later courts to follow. The distinction between the
two has been aptly explained by one commentator in the following terms:
“Should we not….try scrupulously to respect the distinction
between that use of the term ratio decidendi which describes the
process of reasoning by which a decision was reached (the
‘descriptive’ ratio decidendi), and that which identifies and delimits
the reasoning which a later court is bound to follow (the
‘prescriptive’ or binding ratio decidendi)? [See Ian McLeod’s Legal
method, p 150]
You must also note that it is not uncommon for a judge to base his or her
decision on more than one line of reasoning. In other words, a judge might
advance more than one reason for his or her decision. In such circumstances,
there are as many ratios as the reasons advanced by the judge and all of them
are binding on a later judge: the later judge cannot pick and choose between or
among the reasons.

6.6 The concept of obiter dictum

A n obiter dictum is a ‘saying by the way’. It is an observation by a judge on a
legal question suggested by a case before him, but not arising in such a manner
as to require a decision on it. Thus, the concept of obiter dictum embraces all
those parts of a judgement which are capable of law but which do not fall within
the definition of ratio decidendi. Unlike the ratio decidendi of a case, the obiter
dictum is not binding.
It is important to note that although obiter dictum is not binding, it does not follow
that it is worthless in terms of the doctrine of precedent: dicta may, in practice, be
so persuasive that a judge may feel compelled to follow it. In this regard, a
distinction must be made between gratis dicta and judicial dicta. The former are
mere throwaways (sayings which are given away, as it were, free) and so of very
little, if any, value or persuasive force. They are considered as not having been

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 given much thought by the judge before saying them. Judicial dicta, on the other
hand, are preceded not only by a great deal of careful thought, but also by
extensive argument on the point in question. It is this careful thought and
extensive argument that makes judicial dicta so strongly persuasive as to be
practically indistinguishable from ratio decidendi.

6.7 The concept of res judicata

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

6.8 Advantages and disadvantages of precedent

6.8.1 Advantages
(a) Precedent ensures certainty and, therefore, predictability in the law. This is
because by looking at a existing precedents, it is possible to forecast what
a decision will be and plan accordingly;
(b) Precedent ensures uniformity in the law. Treating similar cases in the
same way gives the system a sense of justice and makes the system
acceptable to the public.
(c) The doctrine of judicial precedent is flexible in the sense that there are a
number of ways in which its application can be avoided. This enables the
system to change and adapt to new situations.
(d) Judicial precedent is practical in nature. Unlike legislation, it is based on
real facts.
(e) Judicial precedent is detailed in the sense that there is a wealth of cases
to refer to.
6.8.2 Disadvantages

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 (a) Rigidity. Although precedent is flexible, it can, at the same time, be rigid. If
a previous decision made by a higher court is cited before a lower court in
a later case, the lower court has no option but to apply such previous
decision regardless of its merits because a lower court has no power to
question the merits of a previous decision made by a higher court. This, in
practice, may result in injustice to parties involved in the later case.
(b) There is far too much case law which is also sometimes very complex;
(c) Difficulties can arise in deciding what the ratio decidendi of a case is,
particularly in cases where there are several reasons advanced for the
decision.
(d) There may be a considerable wait for case to come to court for a point to
be decided.

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

 In Paton v Attorney General and Others, (1968) Z.R.185, Doyle, J.A., as he

then was, had this to say, at p. 190:
“Mr. Ryan, for the defendant cross-appellant, first argued that
Thixton’s case was wrongly decided. He submitted that this court
was not bound by its previous decisions. The United States Supreme
Court, the Supreme Court of the Republic of Ireland, the ultimate
courts of Cananda, Australia, South Africa and most European
countries hold themselves free, if they think it right to do so, to refuse
to follow a previous decision. Recently, the House of Lords in England
has abandoned its rigid adherence to the rule of stare decisis. I have
no doubt that this court as the ultimate Court of Appeal for Zambia is
not absolutely bound by its previous decisions. It can, however, only
be for very compelling reasons that the court would refuse to follow a
decision of the court and only where the court clearly considered that
the previous decision was wrong. The relaxation of the rule is not its
abandonment and ordinarily the rule of stare decisis should be
followed. Abandonment of the rule would make the law an abyss of
uncertainty. Mr. Ryan urged that it was open to this court to refuse
to follow a previous decision which was not unanimous. That, in my
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 view, is not a compelling reason. Thixton’s case was fully argued and
it has certainly not been shown that it was clearly wrong. Indeed I, as
the dissenting Judge in that case, recognised and recognise that the
result which flowed from the majority decision was more in accord
with natural justice than that which flowed from the view of the law
which I felt compelled to take. This point therefore fails.”

 The Supreme Court expressed similar sentiments in Kasote v The People

(1977) Z.R. 75:
“The Supreme Court being the final court in Zambia adopts the
practice of the House of Lords in England concerning previous
decisions of its own and will decide first whether in its view the
previous case was wrongly decided and secondly if so whether there
is a sufficiently good reason to decline to follow it. We have already
pointed out that Chibozu was wrongly decided and the next question
for us to consider is whether there is sufficiently strong reason for us
to decline to follow the decision in that case, it is our considered view
that justice was not served in Chibozu because the symbolic scales of
justice mean that just as an accused person should not be convicted
unless there is sufficient and cogent evidence proving his guilt beyond
reasonable doubt, the State also should not be made to lose a case
unless the evidence it adduces cannot, in law, support a conviction;
that way the scales are balanced. On this basis we come to the
conclusion that sufficiently strong reason does exit to warrant the
overruling of Chibozu on the basis that it is a non sequitur. We
therefore hold that Chibozu is no longer good law to the extent
considered in this judgment and it is therefore overruled.”

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

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

6.9.1 The per incuriam doctrine

A decision that was made per incuriam is simply one that was made
“through lack of care”. In R v Simpson (2003) 3 ALL ER, 531, the Court of
Appeal, through Lord Woolf, explained the basis of the per incuriam
doctrine in the following ways:
“the basis of the per incuriam doctrine is that a decision given in the
absence of relevant information cannot safely be relied upon. This
applies whenever it is at least probable that if the information had
been known, the decision would have been affected by it”.

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

6.9.2 The changed circumstance doctrine

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

ACTIVITY
1) Identify the limitations in the application of the Res Judicata doctrine
2) Identify instances when the Supreme Court may be bound by its own
decision
3) Distinguish between binding and persuasive precedent

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 UNIT 7

ZAMBIA’S COURT SYSTEM AND THEIR JURISDICTION

7.0 Introduction

In this Unit we will introduce you to the Court system in Zambia. We will also
explore their jurisdiction and discuss their hierarchy also.

7.1 The Structure of the Court System in Zambia

The legal basis of Zambia’s present court system is Article 91 of the republican
Constitution. It provides as follows:
91(1) The Judicature of the Republic consists of:
(a) the Supreme Court of Zambia;
(b) the High Court for Zambia;
(c) the Industrial Relations Court;
(d) the Subordinate Courts;
(e) the Local Courts; and

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

(3) The Judicature shall be autonomous and shall be

administered in accordance with the provisions of an Act
of Parliament.

It is worth noting that pursuant to Article 91(1) (e) above, we have the Small
Claims Courts Act, Cap 47 of the laws of Zambia which establishes the Small
Claims Courts. The Small Claims Courts are still being run on a pilot basis in Lusaka
and Ndola.
The jurisdiction, tenure of office, structure and establishment of the different
Courts is, in the case of higher courts, contained in the constitution and, in the
case of lower courts, contained in specific Acts of Parliament.
In addition to the formal Court structure mentioned above, chiefs are permitted
to hold their own hearings in what may loosely be termed as ‘traditional courts’
but these are not formally recognised as Courts. A matter heard by the chief’s
Court must be heard de novo if it is taken to the Local Court.

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It must also be mentioned that other specialized adjudicating fora exists. These
include the Lands Tribunal; the Revenue Appeals Tribunal; the Town and Country
Planning Tribunal; and Military Courts (or Court Marshals).

7.2 The Supreme Court of Zambia – Judges and jurisdiction of the Court
This court was established in 1973 as the final court of appeal for Zambia replacing the Court of
Appeal. In theory however, the Court of Appeal for Zambia was not the final court of appeal
since the 1964 constitution empowered the President by Order to designate the judicial
commission of the Privy Council as the final Court of Appeal for Zambia. You should note that
such an order was never made and therefore, in practice the Court of Appeal was the final court.
This practical position was discussed in the case of PATON v. A/G (1968) Z.R when Chief
Justice Doyle stated “I have no doubt that this court as the ultimate Court of Appeal for Zambia
is not absolutely bound by its previous decisions.” The Supreme Court in practice follows
decision of its predecessor but they are not legally bound to do so. There must be “a sufficiently
strong reason to decline to follow it.” Read DAVIES JOCKIE KASOTE v. D.P. P. (1977) Z.R

COMPOSITION

It is composed of Supreme Court judges headed by the Chief Justice, deputised by the Deputy
Chief Justice and 11 other judges. When determining substantive matters, the bench is always
composed of an uneven number not less than three. In interlocutory matters, a single judge can
determine the issue. Appeals lie to benches of more judges. All substantive matters are
resolved by majority opinion of the judges present. Those not in agreement with the majority
are entitled to deliver dissenting judgements. See KAWIMBE v. A/G (1974) Z.R 244, 250

APPOINTMENT OF SUPREME COURT JUDGES

Judges of the Supreme Court are appointed by the President using documents called “ Letters
Patent”. This is upon recommendation by the Judicial Service Commission. The persons to be
appointed must possess the minimum qualification as by law established. Before appointment,
the President must be satisfied that the person so recommended are “worthy, capable and
suitable”. The President has made very few direct appointments to the Supreme Court. Most of
the judges start their careers from lower courts. Any recommendation is subject to ratification
by the National Assembly.

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REMOVAL

The procedure for removal is provided by law therefore, ensuring the security of tenure. The law
prohibits abolition of the offices when there is a substantive holder therefore. This to a great
extent promotes independence of the judiciary. A judicial office can fall vacant in the following
instances:-

(a) Resignation by the office holder

(b) Retirement
(c) Removal because of inability to perform arising from infirmity of the body or mind or
from any other cause or can be removed for gross misconduct.
(d) Compulsory retirement

However, when it relates to removal for misconduct, a tribunal must be constituted to carry out
investigations. The judge being investigated has the same rights and privileges as those extended
to accused persons in criminal trials. These provisions relating to removal serve to ensure
security of tenure and the independence of the judiciary in Zambia. However, “in a developing
country like ours, the whole question of the independence of the judiciary must go deeper than
the constitutional guarantees. As to tenure and salary, it must involve the entire attitude of
government and society to free institutions”. See Willa Mung’omba, Hansard No. 33 of 4 th
July to 30th August, 1973.

Professor S. A. de Smith had the same sentiments in 1953 when he stated inter alia that “in any
country, the independence of the judiciary is preserved more securely by constitutional practice
than by rules of strict law. The good sense of Ministers, Legislators and the Judges themselves,
professional tradition and the force of public opinion are surer safe guards than any formal
guarantees….” Modern Law Journal, 1953. In practice all members of the bench be they
judges, members, magistrates or justices as the case may be “shall be independent, impartial and
subject only to the constitution and the law and shall conduct themselves in accordance with a
code of promulgated by Parliament.”

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

(a) Civil Appeals

The Supreme Court exercises both original and appellate jurisdiction. In civil appeals, the
court has power to confirm, vary, amend or set aside the judgement of a lower court or it may

107
 give such other judgement as justice may require. Further, it may if it thinks it necessary and
expedient in the interest of justice:-
(i) Order the production of any document or exhibit or other things connected to the
proceedings if such production appears necessary for the determination of the case
(ii) Order any person who would have been a competent and compellable witness at the
trial to attend and be examined whether or not he/she was called at trial.
(iii) Receive the evidence if tendered of any witness including a party who is competent
but not compellable.
(iv) Remit the case to the High Court for further hearing with such instructions as regards
the taking of further evidence as appears to it necessary.
(v) It also has power to order a trial.

The principles relating to civil appeals were stated in the case of KENMUIR v. HATTING
(1974) Z.R 162. These are that:

(a) An appeal should take the form of rehearing of the record.

(b) Where questions of the credibility of witnesses are involved, the court will not
interfere with the findings of fact made by the trial judge who had the advantage of
seeing and hearing the witness unless it is clearly shown that the trial judge erred.
(c) The court will be reluctant to order a retrial where it appears from the record that
there was sufficient evidence before the trial court.

Therefore as was established in the case of DIAMOND v. STANDARD CHARTERED

BANK OF SOUTH AFRICA & 4 OTHERS (1965) Z.R 61, 66 The court will focus attention
on “whether the judgement or order of the court below was wrong in principle or application
of the relevant law, whether its findings of primary facts were supported by the evidence and
by a proper approach to the evidence and whether its conclusions from the primary facts
were correct.”

(b) Criminal Appeals

There are two types of appeals in the Supreme Court as regards criminal matters. An
appellant may appeal as of right or may appeal with leave of the Supreme Court.

(i) Appeal as of right

Any person who is tried, convicted and sentenced by the High Court or one who is
tried and convicted by a subordinate court and sentenced by the High Court can
appeal “as of right” to the Supreme Court against such conviction and sentence or
merely against the sentence if he/she considers the sentence to be severe. An appeal
against the severity of the sentence will lies against sentences not fixed by law. High
Court judges are obliged to inform persons whom they have convicted of their right to
appeal.

(ii) Appeal with Leave

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Where a case has been heard by the High Court in the exercise of its appellate or
revisory jurisdiction, a person can only appeal with leave from the High Court or if it
is refused with leave from the Supreme Court itself. In the latter case, a person whose
application for leave has been denied by the High Court may appeal against such
refusal to the Supreme Court.

In determining appeals against convictions, the Supreme Court must allow the appeal
if it considers that the conviction is unsafe or unsatisfactory taking into account all the
circumstances of the case. A conviction is said to be unsafe or unsatisfactory if there
was insufficient evidence before the trial court or if the main ingredients of a
particular offence were not proven. See the case of PHIRI & ANOTHER v. THE
PEOPLE (1973) Z.R 47. A conviction is also said to be unsafe if it was wrong in law.
See the case of MWAMBONA v. THE PEOPLE (1973) Z.R 28. It may also be
unsafe if there was a material irregularity in the course of the trial. See DPP v.
MANDA (1974) Z.R 206

The Supreme Court can dismiss an appeal if it considers it to be frivolous and

vexatious or without merit. It may also dismiss if it considers that no miscarriage of
justice occurred in the trial court.

When an appeal is allowed, the court may either quash the conviction and direct a
verdict and judgment of acquittal to be entered; or if the interests of justice so require,
it can order a new trial before the High Court or Subordinate Court of competent
jurisdiction. Retrials will not be ordered if the court considers that such an order
would be to give the prosecution a second bite at the cherry on the merits of the case
or if it would be to give them an opportunity to scout for evidence to strengthen their
case. See ZULU v. THE PEOPLE (1973) Z.R.

The court will also not order a retrial in minor cases or when prejudice,
embarrassment or hardship would be occasioned to the accused or the witnesses. In
the case of NACHITUMBI v. THE PEOPLE (1975) Z.R 292. Silungwe C. J. stated
“as was rightly pointed out in the case of ZULU v. THE PEOPLE, this court’s power
to order a new trial is a discretionary one. In exercising its discretion, the court must
take into consideration not only the interests of the appellant concerned but also those
of the public. If a real possibility exists that to order a new trial is to facilitate a
possible conviction of an innocent person, then it cannot be said that it is in the
interest of justice to make such an order. Forinstance if a new trial would be fraught
with the danger of giving an opportunity to a prosecution witness especially a vital
prosecution witness to manufacture evidence against the appellant concerned and
where the possibility of testing that evidence otherwise than by cross examination
would be remote or non-existent. The court will in those circumstances be minded
not to order a new trial because to do otherwise would not be in the furtherance of the
interests of justice.”

On the other hand, if an appeal is against the severity of the sentence, the court can
either increase or reduce the sentence or alter the nature of the sentence. In
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 determining what course to take, the court will ask itself important questions. In
ALUBISHO v. THE PEOPLE (1976) Z.R 11, the Supreme court held that when
dealing with appeals against sentence, the court will ask itself the following the
questions:-

(i) Is the sentence wrong in principle?

(ii) Is it manifestly excessive or so totally inadequate that it induces a sense of
shock?
(iii) Are there any exceptional circumstances which render it an injustice if the
sentence was not reduced?

Only when one of these questions are answered in the affirmative will the court interfere. The
court will not alter the sentence imposed merely because it considers that it might itself have
imposed a different sentence;

See: CHINYAMA v. THE PEOPLE (1975) Z.R 140

MUYANGWA v. THE PEOPLE (1976) Z.R 320
NKOLE v. THE PEOPLE (1975) Z.R 293

7.3 The High Court for Zambia – Judges and jurisdiction of the court
The High Court is created by Article 94 of the constitution and is vested with unlimited original
jurisdiction to hear and determine any civil or criminal proceedings under any law. Such
jurisdiction may be conferred by the constitution or any other law. Additionally, you should note
that the High Court has powers to supervise proceedings in all subordinate courts. The High
Court is further vested with appellate jurisdiction. In terms of composition, the High Court is
composed of the Chief Justice as an ex-officio member and a number of Puisne judges to be
determined by an Act of Parliament. During High Court sittings, the bench is made up of a
single judge. All the judges exercise equal powers, authority and jurisdiction. A judge may sit
with two or more assessors if he wishes. See Section 5 High Court Act. The assessor’s functions
are:-

(i) To advise the court on the guilt or innocence of the accused. Each assessor must
express his opinion orally in open court and there is no requirement that assessors unlike
jurors should return a unanimous verdict.
(ii) Assessors may be called to assist the court in the ascertainment and evaluation of
local customs and customary law. In effect, assessors serve as expert witnesses.

Judges sitting with assessors are not obliged to follow the advice of the assessors. In practice,
assessors are rarely used by the court.

Appointment of Judges

Puisne Judges are appointed by the President on the advice of the judicial service commission.
All recommendations are ratified by Parliament before formal appointment (Article 95). They
110
are appointed By Letters Patent. The judicial service commission has been introduced as a way
of insulating judicial appointments from political pressure and thereby safeguarding the
independence of the judiciary. In terms of history, in 1974, the office of High Court
Commissioner was established. This was to allow the President to appoint lawyers both in
government and private practice. There were three main reasons for the establishment of this
office.

i) To increase the number of judges whenever the business before the High Court was
heavy.
ii) To facilitate employment of members of the legal profession who possessed
specialised legal qualifications to deal with matters pending before the High Court
which Puisne judges were not exactly familiar with.
iii) To provide a scheme through which potential judges can be exposed to judicial tasks
before they are considered for appointment.

Jurisdiction of the Court

The High Court is a superior court of record vested with extensive original and supervisory
jurisdiction. The High Court of Zambia has the same jurisdiction as the High Court of Justice in
England (Section 9 High Court Act). Unless exclusive original jurisdiction is by law or directive
from the Chief Justice reserved for the High Court, all criminal matters will, as a rule, be
commenced in the Subordinate Courts. At present, the High Court enjoys exclusive original
jurisdiction in murder, aggravated robbery, treason, bigamy, infanticide to mention but a few.
Inquests are conducted by the subordinate courts. In addition to its original jurisdiction, the High
Court also enjoys appellate jurisdiction in both civil and criminal matters determined by all
classes of subordinate courts either in the exercise of their original jurisdiction or appellate
jurisdiction. Appeals to the High Court may lie on points of law or fact. They may also be
against the severity of the sentence. The High Court may set aside a conviction in a criminal
matter if it considers that irrelevant or insufficient evidence was brought before the subordinate
court or if the lower court applied a wrong principle of law or tried a matter beyond its
jurisdiction.

See: MWEEMBA v. THE PEOPLE (1972) Z.R 110

THE PEOPLE v. MAMBWE (1975) Z.R 118
SIMALWANI v. THE PEOPLE (1973) Z.R 196

Also, you should note that an appeal against the severity of the sentence will only succeed if the
appellant can show that:-

(a) The subordinate court exceeded its sentencing powers

(b) Has imposed a combination of sentences unauthorised by law or
(c) If the sentence imposed is excessive having regard to all the circumstances of the
case.

See: THE PEOPLE v. KALUNGA (1973) Z.R 286

MWILA v. THE PEOPLE (1973) Z.R 51
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 KUMOYO v. THE PEOPLE (1974) Z.R 50

In terms of its supervisory jurisdiction, the High Court has powers under the High Court Act
itself, Subordinate Courts Act and the Criminal Procedure Code to call for and review the record
of any proceedings determined by any Subordinate Court and if it considers it necessary, to
revise any judgment or order contained in any such record. Secondly, the High Court may either
on its own motion or on application from an interested party transfer any proceedings pending
before any Subordinate Court to another Subordinate Court of competent jurisdiction or to itself
for trial and determination.

The High Court also has powers to review administrative or executive decisions by way of
judicial review. This is exercised whenever it is alleged that an administrative officer or tribunal
has acted in an illegal manner in the performance of his duties. See FELIYA KACHASU v. A/G
(1967) Z.R where the court stated that “I have no doubt that I have power to make a declaratory
judgment. The question that arises is only whether this is an appropriate case in which to make
it.” The power to review may be excluded or merely restricted by an Act of Parliament.
See: KANG’OMBE v. A/G (1972) Z.R 178
LUSAKA CITY COUNCIL v. MUMBA & OTHERS (1974) Z.R 53

This power has also been used where the rules of natural justice have not been observed by the
administrative officer. This jurisdiction of the High Court has gained prominence over the years.
The prerogative orders of certiorari and mandamus have been granted in suitable cases.

The phrase ‘unlimited jurisdiction’ in Article 94 (1) of the Constitution does not
imply that the High Court can do anything it pleases in the name of having
unlimited jurisdiction. In the case of Zambia National Holdings & UNIP v The
Attorney General (1994/1995) ZR, the Supreme Court held that “although Article
94 of the Constitution gives the High Court unlimited jurisdiction that Court is
bound by all the laws which govern the exercise of such jurisdiction”.

Article 95 of the constitution which governs the appointment of puisne judges of the High Court also
governs the appointment of the Chairman and Deputy Chairmen of the Industrial Relations Court. It is
for this reason that puisne judges of the High Court and the Chairman and Deputy Chairmen of the
Industrial Relations Court are regarded as being at the same level.

The jurisdiction vested in the Court shall include the judicial hearing and
determination of matters in difference, the administration or control of property
or persons, and the power to appoint or control guardians of infants and their
112
estates, and also keepers of the persons and estates of idiots, lunatics and such as,
being of unsound mind, are unable to govern themselves and their estates.

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

7.4 The Lands Tribunal – Judges and jurisdiction of the court

The Lands Tribunal is created by section 20 of the Lands Act Cap 184 of the Laws of Zambia.

COMPOSITION

It consists of Members who are appointed by the Minister. These are:

(a) A Chairperson who shall be qualified to be a judge of the High Court

(b) A deputy Chairperson who shall be qualified to be appointed as a judge of the High
court.
(c) An Advocate from the Attorney General’s Chambers
(d) A registered town planner
(e) A registered land surveyor
(f) A registered valuation surveyor; and
(g) Not more than three persons from the public and private sectors.

Appointment of the chairperson and deputy is after consultation. The terms and conditions of
service are as specified in their letters of appointment.

JURISDICTION

The Tribunal has jurisdiction to inquire into and make awards in matters relating;

(a) To land under the Lands Act

(b) To compensation to be paid
(c) Matters affecting land rights and obligations
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 (d) Other functions as designated

PROCEEDINGS

The Chairperson or the deputy presides over sittings of the Tribunal. A quorum is formed when
at least five members are present. Determination of all matters is on the majority opinion. It is
crucial for you to note that the Tribunal is not bound by the rules of evidence applied in civil
proceedings. All appeals from decisions of the Lands Tribunal lie to the Supreme Court.

7.5 The Industrial Relations Court – Judges and jurisdiction of the court

This court is established under section 84 of the Industrial and Labour Relations Act Chapter 269
of the law of Zambia. The court has original jurisdiction in all industrial relations matters. The
court has powers to inquire into and make awards and decisions in collective disputes, interpret
the terms of awards, collective agreements and recognition agreements, to adjudicate upon any
matter affecting collective rights, obligations and privileges of employees, employers and
representative organisations. The court can also commit and punish for contempt any person
who disobeys its Orders.

COMPOSITION

The court consists of a Chairperson, deputy Chairperson and not more than ten members as the
minister may appoint. Both the Chairperson and the deputy must be persons qualified to be
appointed High Court Judges before they can be appointed. They are appointed by the President
on the recommendation of the Judicial Service Commission. Members other than the
Chairperson and the deputy shall hold office for a period of five years and are eligible for re-
appointment. On the other hand, the Chairperson and deputy shall enjoy the same tenure and
security of office as a judge of the High Court. As such, removal from office shall be conducted
according to the rules and regulations laid down in the constitution. Failure to deliver judgement
within the stipulated period amounts to inability to perform and the Chairperson or the deputy
whatever the case may be shall be, removed from office for such inability.

The Chairperson shall, by statutory instrument, make rules regulating the procedure of the court.
All appeals against any award, declaration, decision or judgement of the court lie to the Supreme
Court. These may be on any point of law or fact or of any point of mixed law and fact.

7.6 The Subordinate Courts – Magistrates and jurisdiction of the court

These courts are established by chapter 28 of the laws of Zambia. See section 3. They are in
three classes being class 1 to 3. These three classes sit on a daily basis in many districts around
the country.

APPOINTMENT
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The power to appoint, discipline and remove magistrates from office is vested in the Judicial
Service Commission who act in the name and on behalf of the President. The Commission
determines the number of magistrates required from time to time. Magistrates may be recruited
from NIPA upon completion of a two year diploma course. This course is conducted on request
from the J. S. C. Others recruited are UNZA law graduates. It must be noted that graduates are
appointment at the level of resident magistrates while those from NIPA start at class three. These
may rise in rank to magistrates class one but may not be appointment to the High Court bench
unless during their service, they undergo higher education at University level. Graduates work
their way up to the top benches.

Magistrates may be removed from office for misconduct or they may be retired in the public
interest. These removals are not arbitrary; the affected magistrates is given an opportunity to
make representations on his/her behalf to the J. S. C. through the Registrar of the High Court.
Misconduct in relation to magistrates carries the same connotation as that for judges. A quasi-
judicial enquiry is held before any removal can be effected. Proof of the allegations must be
beyond reasonable doubt. It must be noted that if a decision to remove is made, the J. S. C. is not
obliged to give reasons for such removal. Further, it is not clear whether the affected magistrate
can appeal against the decision. The J. S. C. may take any of the following actions upon proof of
the allegations:-

a) Dismiss the person

b) Demote
c) Reduce salary
d) Defer salary increment
e) Severe reprimand

JURISDICTION

Magistrate Courts are courts of record with both original and appellate jurisdiction. In local
court appeals, these courts have powers to confirm, vary, amend or quash any decision or order
from a local court. Whenever in doubt, a magistrate can state a case for consideration by the
High Court. It is important to note here that although magistrates have both civil and criminal
jurisdiction, the extent of the powers depends on the class of the presiding magistrate.

HIERARCHY FOR MAGISTRATES

Chief Resident Magistrates

Principal Resident Magistrates

Senior Resident Magistrate

Resident Magistrate

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 Magistrate Class 1- 3

7.7 The Local Courts – Judges and jurisdiction of the court

These are at the bottom of judiciary hierarchy in Zambia. They are found in all communities
around the country and are charged with the responsibility of applying customary law. They are
important courts to many a people because:-

i) They are much more accessible to most people than other courts. There is a local
court in every community whereas subordinate courts are located at district
administrative centres and the High Court at provincial level or major cities along the
line of rail.
ii) Local courts use the local language of the area making it easy for litigants to present
their cases.
iii) Procedures in the local courts are simple and not encumbered by written rules as in
other courts.
iv) Lawyers are specifically not allowed to represent clients in these courts. And this has
the advantage of lowering the cost of litigation and other technical complications.
v) Local courts dispose of a huge number of cases very fast and hence justice is quick.

SUPREME COURT

INDUSTRIAL RELATIONS HIGH COURT LANDS TRIBUNAL

COURT
SUBORDINATE COURTS
(Magistrates Courts)

LOCAL COURT

7.8 Security of tenure and retirement of judges25

Having discussed the entire Court structure already in this Unit, we will now
discuss the security of tenure and retirement of judges. Some commentators
believe that in order to ensure the independence and impartiality of the Judiciary,
25
These notes are extracted from chapter 4 of the Mung’omba Constitutional Review Commission Report
116
the security of tenure of Judges must be guaranteed by the Constitution. They
also believe that the conditions of service in terms of how the salary, pension,
gratuity, any other allowances and conditions of service of holders of judicial
office are determined are inseparable from the security of tenure, the
independence of the Judiciary and the impartiality of judicial officers.

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

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

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

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

In the current Constitution, the security of tenure of judges is provided for by

Article 98 of the Constitution. Under the provisions of Article 98 (3) of the
Constitution, the President is the authority that considers the question of removal
from office of a Judge of the Supreme Court or High Court. If the President deems
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it necessary, he/she appoints a tribunal according to whose advice he/she must
act. The President may suspend a Judge pending investigations of a tribunal. This
provision has been the same since the 1964 Constitution. The grounds for removal
of a judge from office have also remained the same since 1964.

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

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

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

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

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7.90 The Doctrine of separation of powers

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

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

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

7.9.1 The autonomy and independence of the Judiciary

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

The autonomy of the judiciary is essential to the fair and impartial administration
of justice and the very concept of the independence of the judiciary. The reason is
simple. There is no judiciary which can be independent if it is not autonomous.

Meanwhile, the importance of the concept of independence of the Judiciary has

been internationally recognised, as is shown by Article 2 of the United Nations
Basic Principles of the Independence of the Judiciary (1985). Article 2 provides
that:

“The judiciary shall decide matters before them impartially, on the basis of facts
and in accordance with the law, without any restrictions, improper influence,

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inducements, pressures, threats or interferences, direct or indirect, from any
quarter or for any reason.”

Modern constitutions of some countries specifically vest judicial power in the

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

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

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

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

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

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

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

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

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

In relation to the Zambian judiciary, this means that we should be asking ourselves
the following questions: Who determines the funding of the judiciary? Who really
appoints our judges, magistrates and other judicial officers? Who really
determines the salary and other conditions of service for our judges, magistrates
and other judicial officers? Who really promotes and removes judges, magistrates
and other judicial officers from their office?

Only honest answers to these questions can help us ascertain the extent to which
our judiciary is autonomous and independent.

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

judiciary entails that although the Judiciary derives its judicial authority from the
Constitution, the judicial service should enjoy freedom from interference by the
other organs. Checks and balances are assumed to be inherent in the very
character of the institution of courts and evidenced in the instruments and
processes that define their functions.

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

7.9.2 Zambian Constitutional Provisions on the Autonomy and Independence of

the Judiciary

The Zambian constitution has provisions on the independence and autonomy of

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

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

The question that several commentators have been asking themselves is: Have
these constitutional and legislative provisions made the Zambian judiciary
autonomous and independent?

According to the Mung’omba CRC, the major weakness of the Judicature

Administration Act is that instead of giving effect to the autonomy of the Judiciary
as stipulated in the Constitution, the Act “clearly and loudly makes the Judiciary
subservient to the presidency in matters related to administration in general, the
appointment of certain members of the Judicature and staff, terms and conditions
of service, and the exercise of disciplinary powers”. Also in direct conflict with the
constitution and the principles of autonomy and independence of the judiciary is
Section 5 of the Service Commissions Act, Cap. 259, which subjects the Judicial
Service Commission to such general directions as the “President may consider
necessary and requires the Commission to comply”.

It is no wonder that the majority view is that something more needs to be done in
addition to these constitutional and legislative provisions to make the Zambian

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judiciary truly autonomous and independent. More importantly is the manner of
funding the judiciary and that of appointment, promotion and removal of judges
from their office along with the determination of their conditions of service.

The judiciary itself, in its submissions to the Mung’omba CRC, made it very clear
that the cry of the judiciary was that the judiciary’s allocation from the national
budget ought to reflect its independent status and further that the allocation by
Parliament ought to be reasonable in proportion to the allocations given to the
other two arms of the Government. This cry was recently repeated by His
Lordship, Chief Justice Ernest Sakala in his speech at the opening of the Lusaka
High Court sessions for 2011. To use his own words:
“Over the past few years, the trend has been that less than 80 percent of
the approved budget released. This has no doubt negatively affected our
projects and programmes and we have even been unable to fulfill the
obligations relating to conditions of service of our support staff in terms of
paying terminal and other benefits. It is also defeating the very concept of
an autonomous judiciary”26.

The present problem, in terms of funding, is that the budget of the Judiciary, like
that of any other Government institution, is subject to superintendence and
prescription by the Ministry responsible for finance before submission of the
estimates of revenue and expenditure by the Government to the National
Assembly. This is on the premise that the Ministry is in control of Government
revenue and expenditure. Once approved by Parliament, only a portion is released
and this is done through the Ministry in charge of finance.

Notwithstanding the foregoing, it must be acknowledged that, by and large, the

Zambian courts have maintained their integrity and good conduct. This is despite
the fact that they are administered by human beings and are therefore susceptible
to weaknesses. It is for this reason that an important corollary to the principle of
independence and impartiality of the judiciary is that it must not be susceptible to
abuse by judicial personnel. This principle is not a shelter to incompetence,
prejudice and abuse by judicial personnel at any level of the judicial structure.
Even when the right of appeal ends in the Supreme Court, the finality of the
process should achieve justice. But finality in the Supreme Court does not mean
that this Court is at liberty to arrive at any decision, simply because such decision
26
The Post, No. 5191, Tuesday January 4, 2011, page 4.
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cannot be overturned. The citizen is entitled to a fair hearing and an impartial
well-reasoned judgment, even at this final level. All these sentiments must be
assured, guaranteed and protected by the Constitution.

It is in light of the above considerations that the Mung’omba CRC was of the view
that the Constitution should enhance the independence and impartiality of the
Judiciary in unequivocal terms and further that the independence and impartiality
of the judiciary should also reflect that the Judiciary is accountable to the people
in the manner in which it administers justice. This, the CRC felt, is important in the
promotion of justice and the rule of law. In this regard, the CRC recommended,
among others, that the Constitution should explicitly provide that:

 in the exercise of its judicial power, the Judiciary, in both its judicial and
administrative functions (including financial administration) should be
subject only to the Constitution and shall not be subject to the control or
direction of any person or authority;
 no member of the Executive or Legislature or any other person should
interfere with the Judges or judicial officers or other persons exercising
judicial power, in the exercise of their judicial functions, and all organs of
the State should accord such assistance as courts may require to protect
their independence, dignity and effectiveness, subject to the Constitution;
 the Judiciary should prepare its own budget estimates, whose
determination should be subject to negotiations with the Ministry
responsible for finance, and that this process should take into account the
principles of accountability, transparency and equitable sharing of
resources;
 the Judiciary should be adequately funded and its allocations should be
released directly to the Judiciary; and
 the approved budget allocation should be a charge on the Consolidated
Fund of the Republic, whose establishment was recommended in Chapter
21 of the Report.

ACTIVITY

1) Distinguish between appellate jurisdiction and supervisory jurisdiction of the High Court
2) Draw a diagram showing the hierarchy of the Courts in Zambia.

UNIT 8
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 ALTERNATIVE METHODS OF DISPUTE RESOLUTION

8.0 Introduction

There are several methods of resolving disputes recognised worldwide.

Adjudication, also known as litigation, is by far the most common method of
dispute resolution: over 90 percent of legal disputes worldwide are resolved
through litigation.

Adjudication is a process by which a court resolves a dispute. It involves parties

taking their legal dispute to a court of law for determination by an independent
and impartial judicial officer. The mandate of courts to adjudicate on disputes is
inherent in the very constitutional set up of countries whereby the responsibility
of interpreting the law is vested in the judicial organ of the state.

8.1 The Adversarial System of Justice

The adversary system of justice is one of the important pillars of the Zambian legal system
regulating practice and procedure. The burden of proof rests upon the state or prosecution to
prove the guilt of an accused person before a court that is competent, independent and impartial.
An accused person is free to testify on his own behalf but cannot be compelled to do so by law.
The Supreme Court has often warned, however that judges are human beings and remaining
silent in the face of strong evidence is not without consequence.

The role of the judge in this system is to make sure that the parties have a fair day in court and
that witnesses are not unduly harassed or intimated by overzealous counsel. In the case of
JONES v. NATIONAL COAL BOARD [1957] 2QB, The Court of Appeal in England allowed an
appeal because the trial Judge had intervened on not less than 147 occasions while counsel was
in the process of cross examining a witness. It was the court’s view that “the trial judge had
abandoned his role as ampire and had assumed the robe and wig of the advocate and had in the
process entered the arena of battle and that his vision had been clouded by the dust from the
battle.” In juvenile matters the court may try to help a juvenile who is not legally aided, but even
then the court cannot be seen to take sides.

In the case of CHAMA v. THE PEOPLE [1974] Z.R, the High Court of Zambia held that it’s not
the responsibility of a magistrate to go out of his way to seek evidence against an accused person
so as to strengthen the case against him. The High Court was concerned by the fact that the trial
magistrate had after the formal sitting proceeded alone to ZCBC shop in Chingola to verify
whether or not at a certain time, the shop had stocked merchandise similar to that which was
found in the possession of the accused person. The High Court took note of the fact that by
proceeding in this manner, the accused person had been prejudiced in the sense that he was
thereby denied an opportunity to cross-examine the shop personnel who had been talked to by
the magistrate in his absence.
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A judge may put to the witnesses before him/her supplementary questions to help him/her arrive
at an objective decision. All examination is principally conducted by the prosecution and
defence counsel. Therefore, all judges are called upon to exercise restraint and impartiality. An
eminent jurist Lord Hewart once stated that “the business of a judge is to hold his tongue until
the last possible moment and to try to be as wise as he is paid to look.”

8.2 Advantages of adjudication (litigation)

Litigation offers several advantages in relation to the resolution of disputes. The

advantages include the following:

i. Matters are heard and determined by persons who are impartial,

independent and with no interest whatsoever in the subject matter of
the dispute;
ii. Parties to matters heard and determined through litigation are given
reasons for the decision of the court and can appeal up to the highest
court if not satisfied with the reasons given by lower courts;
iii. Through the doctrine of res judicata, litigation brings disputes to finality;
iv. Through the doctrine of precedent, litigation contributes towards the
development and growth of law;
v. Litigation creates stability in society by preventing aggrieved persons
from taking the law in their own hands.

8.3 Disadvantages of adjudication (litigation)

Although it has several advantages, litigation equally has some disadvantages. The
disadvantages include the following;

i. Litigation is costly i.e. it is not economical when compared to ADR

methods;
ii. Litigation is time – consuming i.e. matters take long to be concluded in
the courts of law;
iii. Litigation does not allow parties to make a decision mutually beneficial
to them since they have no option but to follow what the court has
decided;

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 iv. In jurisdictions where the doctrine of precedent applies, litigation may
lead to injustice because lower courts do not question the decisions of
higher courts.

It is against the background of these disadvantages that there has been growing
interests among advocates worldwide in the use of ADR methods to resolve their
client’s disputes more economically and efficiently. In the face of bottlenecks and
backlogs in court systems, coupled with spiraling legal costs and fees, courts and
other members of the legal community have been part of the movement seeking
means other than litigation for resolving disputes.

8.4 Alternative Dispute Resolution (ADR) – What is it?

The term "alternative dispute resolution" or "ADR" is often used to describe a

wide variety of dispute resolution mechanisms that are short of, or alternative to,
full-scale court processes. It is an effort to arrive at mutually acceptable decisions
and an alternative to adversarial processes such as litigation or administrative
processes that result in "win/lose" outcomes.

The term ADR can refer to everything from facilitated settlement negotiations in
which disputants are encouraged to negotiate directly with each other prior to
some other legal process, to arbitration systems or minitrials that look and feel
very much like a courtroom process. Processes designed to manage community
tension or facilitate community development issues can also be included within
the rubric of ADR. ADR systems may be generally categorized as negotiation,
conciliation/mediation, or arbitration systems.

Negotiation systems create a structure to encourage and facilitate direct

negotiation between parties to a dispute, without the intervention of a third
party. Mediation and conciliation systems are very similar in that they interject a
third party between parties to the dispute, either to mediate a specific dispute or
to reconcile their relationship. Mediators and conciliators may simply facilitate
communication, or may help direct and structure a settlement, but they do not
have the authority to decide or rule on a settlement. Arbitration systems
authorize a third party to decide how a dispute should be resolved.

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Negotiation, mediation, and conciliation are non-binding and depend on the
willingness of the parties to reach a voluntary agreement. On the other hand,
Arbitration may be either binding or non-binding. Binding arbitration produces a
third party decision that parties to the disputes must follow even if they disagree
with the result, much like a judicial decision. Non-binding arbitration produces a
third party decision that the parties may reject.

8.5 Four elements essential for successful ADR

There are four elements essential to the successful use of any ADR method that
you need to be aware of. These are:
 existence of an issue in controversy;
 voluntary agreement by both parties to participate in the ADR process;
 voluntary agreement by both parties on the type of ADR method to be
used in lieu of formal litigation;
 participation in the process by officials of both parties who have authority
to resolve the issue in controversy.

8.6 Characteristics of ADR methods

Although the characteristics of negotiated settlement, conciliation, mediation,

arbitration, and other forms of community justice vary, all share a few common
elements of distinction from the formal judicial structure. These elements permit
them to address development objectives in a manner different from judicial
systems. They include the following:

1) Informality
ADR processes are less formal than judicial processes. In most cases, the rules of
procedure are flexible, without formal pleadings, extensive written
documentation, or rules of evidence. This informality is appealing and important
for increasing access to dispute resolution for parts of the population who may be
intimidated by or unable to participate in more formal systems. It is also
important for reducing the delay and cost of dispute resolution. Most systems
operate without formal representation.

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2) Application of Equity
ADR processes are instruments for the application of equity rather than the rule of
law. Each case is decided by a neutral third party, or negotiated between parties
to the dispute themselves, based on principles and terms that seem equitable in
the particular case, rather than on uniformly applied legal standards. ADR systems
cannot be expected to establish legal precedent or implement changes in legal
and social norms. Thus, ADR systems tend to achieve efficient settlements at the
expense of consistent and uniform justice.

3) Direct Participation and Communication between parties

ADR systems involve more direct participation by parties to the dispute in the
process and in designing settlements, more direct dialogue and opportunity for
reconciliation between them, potentially higher levels of confidentiality since
public records are not typically kept, more flexibility in designing creative
settlements, less power to subpoena information, and less direct power of
enforcement.

8.7 Benefits of using ADR

The benefits of ADR include the following:

(a) Voluntary nature of processes: All ADR methods are voluntary in nature
i.e. No one is coerced into using ADR procedures. Parties choose to use ADR
procedures because they believe that ADR holds the potential for better
settlements than those obtained through litigation;
(b) Expedited procedures: All ADR procedures are less formal. This prevents
unnecessary delays and expedites the resolution process.;
(c) Active participation of the parties: Parties to the dispute actively
participate in the ;
(d) Confidential nature of Processes: Parties can participate in ADR
procedures, explore potential settlement options, and still protect their
right to present their best case in court at a later date without fear that data
divulged in the procedure will be used against them;
(e) Greater Flexibility in the Terms of Settlement: ADR procedures provide an
opportunity for parties to craft settlements that can better meet their

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 combined interests than would an imposed settlement by a third party. This
is because ADR enables parties to avoid the trap of deciding who is right or
who is wrong, and to focus on the development of workable and acceptable
solutions. ADR procedures also provide greater flexibility in the parameters
of the issues under discussion and the scope of possible settlements.
Participants can "expand the pie" by developing settlements that address
the underlying causes of the dispute, rather than be constrained by a
judicial procedure that is limited to making judgments based on narrow
points of law;
(f) Savings in Time: With the significant delays in obtaining court dates, ADR
procedures offer expeditious opportunities to resolve disputes without
having to spend years in litigation. In many cases, where time is money and
where delayed settlements are extremely costly, a resolution developed
through the use of an ADR procedure may be the best alternative for a
timely resolution.
(g) Cost Savings: ADR procedures are generally less expensive than litigation.
Expenses can be lowered by limiting the costs of discovery, speeding up the
time between filing and settlement, and avoiding delay costs. These front-
end expenses are often the most costly components of legal costs. These
savings are in turn passed on to the taxpayer. Relieving the burden on the
courts caused by unnecessary or inappropriate lawsuits can help save
valuable public resources.

8.8 Some ADR methods

(a) Negotiation

A negotiation is a formal discussion between parties who are trying to resolve

their dispute without the involvement of a third party. The discussion may be
initiated by any of the parties to the dispute and may take place at such venue and
time as may be agreed by all the affected parties.

Direct, face-to-face negotiation between the parties, without the use of a third
party, involves the exchange of offers and counteroffers and a mutual discussion
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of the strengths and weaknesses of each party’s position. This method is usually
most effective if both parties have an incentive to reach an agreed settlement.

In order for any negotiation to succeed, the parties must:

 identify issues upon which they differ;

 disclose their respective needs and interests;
 identify possible settlement options;
 negotiate terms and conditions of agreement.
The aim is that each party should be in a better position than if they had not
negotiated.

(b) Conciliation

To conciliate is to make somebody less angry or to make somebody friendlier with

a view to “pacifying” the situation. The process of conciliation involves a
conciliator whose role is to calm parties to the dispute so that they can discuss or
solve their problems in a calm and successful manner. The conciliator does not
make any decision for the parties.

(c) Mediation

Mediation is helpful when the parties are not making progress negotiating
between themselves. It is simply negotiation with the assistance of a neutral third
party. The neutral third party is called the mediator who should be impartial and
acceptable to both parties. His role is to assist or guide the parties in reaching
agreement on a mutually acceptable solution by creating a "safe" environment for
the parties to share information, address underlying problems, and vent
emotions.

Although the mediator makes recommendations about the process, the parties
themselves make the important decisions about the problem-solving process and
the outcome. A successful mediation can give the parties the confidence in

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themselves, each other, and consensual processes, to negotiate without a third
party in the future.

The main characteristic features of mediation include the following:

i. The aim of mediation is to reach at a decision that is ‘mutually

beneficial’ to
all the parties to the dispute. It is not a ‘winner takes all situation’;
ii. Mediation is ‘consensual’ in nature: parties can only go to mediation if
they have all agreed that the dispute be referred to mediation;
iii. In mediation proceedings, parties themselves make the decision, not the
mediator;
iv. The mediator is appointed by the parties to the dispute and his/her role
is not to make the decision for the parties but to assist parties reach at a
decision;
v. A decision arising out of mediation proceedings is not binding and
parties are at liberty to abandon the proceedings at any stage before the
decision is made.
vi. The venue, time and language for mediation proceedings are all agreed
by the parties themselves;
vii. Mediation proceedings are confidential in nature and may only be
disclosed with the express permission of all the parties concerned.
viii. Mediation proceedings are informal in nature when compared to
litigation.

Court Annexed Mediation

Court annexed mediation has all the characteristics of the mediation just
discussed above. The only main difference between the two, as will be seen in due
course, is that court annexed mediation is invoked by an order of the court while
ordinary mediation is invoked by agreement between parties to the dispute.

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Court annexed mediation was introduced to the Zambian Courts by the
Washington Superior Court through the assistance of USAID. The Zambian Court
Annexed Mediation system is therefore modeled along the lines of the
Washington DC Superior Court Mediation System.

It is important to state here that Court Annexed Mediation is not the only type of
mediation that exists or is practiced in Zambia. We have mediations that have no
connection whatsoever to the courts.

The statute that ushered Court annexed mediation in Zambia is the High Court
(Amendment) Rules27. The rules came into force in 1997. Subsequently, a group of
mediators was trained for purposes of taking conduct of some of the matters that
were before the High Court.

Referral of matter to mediation

Court annexed mediation is invoked by a Judge by way of referring the matter to

mediation. The Judge’s authority to refer the matter to mediation is found in Rule
4 of the High Court (Amendment) Rules, SI No. 71 of 1997. The Rule provides as
follows:

“Except for cases involving constitutional issues or the liberty of an

individual or an injunction or where the trial judge considers the case to be
unsuitable for referral, every action may, upon being set down for trial, be
referred by the trial judge for mediation and where the mediation fails the
trial judge shall summon the parties to fix a hearing date. The referral order
shall be in form 28A in the First Schedule, set out in the Appendix to these
Rules”.

From the rule reproduced above, it is clear that it is the judge and not the parties
who makes the decision whether or not to refer the matter to mediation. In this
sense, it might be argued that court annexed mediation is not voluntary since
parties may not have a choice but to oblige to the court’s order referring the
matter to mediation. To the country, however, court annexed mediation is

27
Statutory Instrument No. 71 of 1997
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voluntary in the sense that although parties are obliged to attempt mediation
once the judge has referred the matter to mediation, they are not compelled to
settle: they are merely compelled to attend the mediation because the referral
order is an order of the Court.

Any matter referred to mediation, if not settled within sixty (60) days of the
referral to the mediator, is taken back to the trial judge.

(d) Arbitration

The essence of arbitration is that a third party renders an opinion about how the
dispute should be settled. The arbitration award (i.e. the decision of the
arbitrator) can be binding or non-binding, depending on the contract or other
agreement of the parties.

In binding arbitration, the parties select an arbitrator or panel of arbitrators who

help design the arbitration process, conduct a hearing, evaluate the evidence and
make an award. The award is then binding on the parties and may be entered and
enforced as a judgment by the court. There is very limited opportunity to appeal
an arbitration award.

Non-binding arbitration is identical to binding arbitration except that the parties

are not bound by the result and either party still has the option to proceed to
court if they do not accept the arbitration award.

i. Agreement to arbitrate
Parties may only go to arbitration if they have voluntarily agreed that their dispute
will be resolved through arbitration. The parties’ voluntary agreement for their
dispute to be resolved is called an ‘agreement to arbitrate’. An agreement to
arbitrate may take the form of a clause in the contract or a separate agreement.

ii. Arbitration hearing

Typically, an arbitration hearing proceeds in the same way as a trial before a judge
except that in the case of an arbitration hearing, the proceedings are not
conducted in the courtroom and the strict rules of evidence and procedure are
not followed.

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The following are the characteristic features of proceedings relating to binding
arbitration:

 There is formal presentation of each party’s case, much like a trial, though
not necessarily done in a courtroom. The Arbitrator controls the parties’
case presentation and the reliability of the evidence presented;
 During the presentation of the case, strict rules of evidence and procedure
may not be followed;
 Each party’s evidence is presented by way of documents, depositions,
affidavits or oral testimony of witnesses, with full cross-examination.
 The Arbitration panel consists of one to three arbitrators;
 Unlike mediation proceedings during which private conversations between
the parties and between a party and the mediator are not uncommon,
private conversations between parties and the arbitrators are forbidden;
 The arbitration panel has full responsibility for rendering justice on the facts
and law and its award is binding and enforceable in the same as a
judgement of the court.

Evidently, therefore, an arbitration hearing is a modified form of trial which does

not use a traditional judge. Consequently, the cost and time savings in arbitration
are usually not as significant as the savings provided by other forms of ADR.

It must be noted that Arbitrators are usually selected on the basis of their
expertise in the area of dispute. For example, an arbitration panel for a
construction contract dispute might include an engineer, a contractor and an
attorney.

iii. Arbitral award

The decision of the Arbitrator or panel of arbitrators is called an ‘award’. The
award must be in writing and signed by the arbitrator or arbitrators where they
are more than one. Every award is supposed to contain the reasons advanced for
the decision of the arbitrator or panel of arbitrators.

iv. Arbitration in Zambia

In Zambia, Arbitration is governed by the Arbitration Act No. 19 of 2000. In terms
of section 6 of the Act, the following matters are not subject to arbitration:
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 i. An agreement that is contrary to public policy;

ii. A dispute which in terms of any law may not be determined by

arbitration;

iii. A criminal matter or proceeding except if permitted by law or the Court

grants leave for arbitration to take place;

iv. A matrimonial cause;

v. A matter incidental to a matrimonial cause unless the Court grants leave

for arbitration to take place;

vi. A matter involving the determination of paternity, maternity or

parentage of a person; or

vii. A matter involving the interests of a minor or other person under legal
incapacity unless such minor or person is represented by a competent
person.

In terms of section 10 of the Act, a Court before which legal proceedings are
brought in relation to a matter that is subject of an arbitration agreement is
obliged to stay the proceedings and refer the matter to arbitration if either party
to the proceedings so requests. The rationale behind the provision is that if parties
have voluntarily agreed to submit to arbitration, then they should only be allowed
to come to court if they have attempted and failed to resolve their dispute
through arbitration.

And in terms of section 20(1) of the Act, an award made by an arbitrator or

arbitration tribunal pursuant to an arbitration agreement is, subject to the right of
either party to challenge the award by way of any process specified under the Act,
final and binding on both parties and on any person claiming through or under
them.

Similarities between mediation and arbitration

Similarities between mediation and arbitration include the following:

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 i. Both mediation and arbitration are alternative dispute resolution (ADR)
methods;
ii. Both mediation and arbitration are considerably cheaper and take less
time to conclude compared to litigation;
iii. In both mediation and arbitration, parties themselves choose who shall
be ‘mediator’ or ‘arbitrator(s)’;
iv. In both mediation and arbitration, parties have a say regarding the
venue for and the language to be used during the proceedings;
v. Both mediation and arbitration proceedings are considerably informal
compared to litigation proceedings.

Differences between mediation and arbitration

Differences between mediation and arbitration include the following:

i. In mediation proceedings, the role of the mediator is to facilitate

decision making by the parties. The parties themselves, and not the
mediator, make the decision. In arbitration proceedings, on the other
hand, the arbitrator (and not the parties) makes the decision;
ii. In mediation proceedings, either party is at liberty to abandon the
proceedings at any stage including just before the mediation settlement
is signed. On the other hand, parties to arbitration proceedings are
bound to continue with the proceedings until the arbitrator announces
his or her award;
iii. A mediation settlement is not binding on the parties to the mediation
proceedings while an arbitral award is binding to parties to the arbitral
proceedings;
iv. A mediator need not be a professional lawyer, though they usually are.
On the other hand, an arbitrator is usually a professional lawyer or
judge.

8.9 Administrative Tribunals

Administrative tribunals are authorities outside the ordinary court system, which
interpret and apply the laws when acts of public administration are questioned in
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formal suits by the courts or by other established methods. In other words, they
are agencies created by specific enactments to adjudicate upon disputes that may
arise in the course of implementation of the provisions of relevant enactments.
Administrative tribunals resolve, in the main,
 disputes between a private citizen and a central government department,
such as claims to social security benefits;
 disputes which require the application of specialised knowledge or
expertise, such as the assessment of compensation following the
compulsory acquisition of land;
 other disputes which by their nature or quantity are considered unsuitable
for ordinary courts, such as fixing a fair rent or rates for premises.

They are not a court nor are they an executive body. Rather they are a mixture of
both. They are judicial in the sense that the tribunals have to decide facts and
apply them impartially, without considering executive policy. They are
administrative because the reasons for preferring them to the ordinary courts of
law are administrative reasons.

They are established by the executive in accordance with statutory provisions.

They are required to act judicially and perform quasi-judicial functions. The
proceedings are deemed to be judicial proceedings and in certain procedural
matters they have powers of a civil court.

Administrative tribunals are not bound by the elaborate rules of evidence or

procedures governing the ordinary courts. They are independent bodies and are
only required to follow the procedure prescribed by the relevant law and observe
the principles of 'Natural Justice'. They do not follow the technicalities of rules of
procedure and evidence. For this reason, they are sometimes more appropriately
defined as specially constituted authorities established by law to settle the
disputes between the citizen and administration.

8.9.1 Reasons for creation of tribunals

There are many reasons for the growth of administrative tribunals. Some of these
are:
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  Administrative tribunals are a by-product of the Welfare State. In the 18th
and 19th centuries when 'laissez faire' theory held sway, the law courts
emerged as the custodians of the rights and liberties of the individual
citizens. Sometimes they protected the rights of all citizens at the cost of
state authority. With the emergence of Welfare State, social interest began
to be given precedence over the individual rights. With the development of
collective control over the conditions of employment, manner of living and
the elementary necessities of the people, there has arisen the need for a
technique of adjudication better fitted to respond to the social
requirements of the time than the elaborate and costly system of decision
making provided by the courts of law. In brief, 'judicialisation of
administration' proved a potential instrument for enforcing social policy and
legislation.
 Secondly, as a result of rapid growth and expansion of industry, trade and
commerce, ordinary law courts are not in a position to cope up with the
work-load. The result is that there are enormous delays in deciding court
cases. Therefore, a number of administrative tribunals have been
established which can do the work more rapidly, more cheaply and more
efficiently than the ordinary courts.
 Thirdly, ordinary courts of law, on account of their elaborate procedures,
legalistic forms and attitudes can hardly render justice to the parties
concerned, in technical cases. Ordinary judges, brought up in the traditions
of law and jurisprudence, are not capable enough to understand technical
problems, which crop up in the wake of modem complex economic and
social processes. Only administrators having expert knowledge can tackle
such problems judiciously. To meet this requirement, a number of
administrative tribunals have come into existence.
 Fourthly, a good number of situations are such that they require quick and
firm action. Otherwise the interests of-the people may be jeopardized. For
instance, ensuring of safety measures in local mines, prevention of illegal
transactions in foreign exchange and unfair business practices necessitate
prompt action. Such cases, if are to be dealt with in the ordinary courts of
law, would cause immense loss to the state exchequer and undermine
national interest. However, the administrative courts presided over by the
experts would ensure prompt and fair action.

8.9.2 Advantages and disadvantages of administrative tribunals

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 (a) Advantages

In the words of W.A. Robson, the advantages of administrative tribunals are

“cheapness and speed with which they usually work, the technical knowledge
and experience which they make available for the discharge of judicial
functions in special fields, the assistance which they lend to the efficient
conduct of public administration, and the ability they possess to lay down new
standards and to promote a policy of social improvement". These may be
elaborated as follows:

 In administrative tribunals, cases are heard and determined quickly

and speedily as compared to cases in ordinary courts;
 The administration of justice in administrative tribunals is less
expensive(i.e. relatively cheap) compared to ordinary courts;
 More accessible than ordinary courts
 Staffed by experts with specialised knowledge
 Characterised by an informal atmosphere and procedures
 Administrative tribunals gives the much needed relief to ordinary
courts already overburdened by ordinary suits

(b) Disadvantages

 Administrative tribunals are not always independent of Government

especially that the effectiveness of their operations depends on how
much funding they receive from Government through their parent
ministry;
 There is no general right of appeal against the decision of the
tribunal: it all depends on the particular statute creating the tribunal;
 Administrative tribunals are not bound to follow any of their own
precedent although they are bound to follow precedents from
ordinary courts. This, to some extent, makes it impossible to predict
the course of future decisions.
ACTIVITY

1) Distinguish between Mediation, Arbitration, and Negotiation

2) Distinguish the role of Counsel and the role of a Judge in a court
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 UNIT 9

PROFESSIONAL ETHICS AND CONDUCT

9. 1 Introduction

In this unit, we will introduce you to Professional Ethics and Conduct including Court
room ethics. We will explore some of the key concepts that guide the conduct of
Lawyers in their professional practice of law and also in their court room conduct and
dress.

9.2 Objectives

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By the end of the unit, you should be able to:

4 Explain what lawyers’ Professional Ethics are.

5 Demonstrate the relationship between Professional Ethics and lawyers’ conduct.
6 Practice Professional Ethics of the legal profession.

9.3 What are Professional Ethics?

Ethics is a code or behaviour or conduct relating to a particular profession, which is

considered as being correct conduct e.g. the ethics of the medical profession which
forbids a doctor from having an affair with a patient. You will discover that similarly with
lawyers, especially in divorce cases where the client is emotionally vulnerable, a lawyer
must not have intimate relations with a client.

Legal ethics are thus defined as the minimum standards of appropriate conduct with the
legal profession, involving the duties that its members have one to another, to their
clients and to the courts. You should note that lawyers also practice etiquette in their
profession which relates to the formal rules of correct and polite behaviour among
members of the legal profession and also polite behaviour before a court of law, before
which a lawyer practices and earns his living.

Every profession wants to guard its own integrity and standards and so there are
usually rules as to who is permitted to enter such professions, in the case of lawyers, to
be admitted to the Bar. This is part of the control environment put in place to safeguard
the reputation of the profession. Professionals, as a group, will tend to enforce a code of
ethical practice.

A lawyer is expected to be sympathetic and patient to his client. For instance, when
taking instructions, a lawyer must listen patiently to learn what the client is saying. He
must ascertain the material facts and in simple language make sure that the client
understands his advice. A lawyer should establish with his client a relationship of mutual
confidence through his understanding of the law. The approach to a case should be
orderly and logical and a lawyer should be prepared to examine the weaknesses of his
client’s case and be prepared to meet those weaknesses. As a lawyer, you must learn
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as much as possible about your client’s background so that you can advise him
appropriately.

9.4 Conduct of Lawyers in and out of Court

You must note that during your Moot Court presentation you will be expected to abide
by all the rules and prescribed conduct. A legal practitioner must conduct himself in the
most exemplary manner in that he must set an example. The Rules of Professional
conduct are a set of rules or regulations, formal and informal that governs all members
of the legal profession in both their professional and private lives. Therefore, the
purpose of these rules is to provide a Bar of sound and safe practice for advocates to
protect the public whose money and affairs are entrusted to advocates and to maintain
the integrity and very high reputation of the profession. You must therefore clearly
appreciate that any breach of these rules of conduct can, and in some cases will lead to
disciplinary proceedings taken against the advocate by the disciplinary committee of the
Law Association of Zambia which has the power to enforce the rules. The ultimate
sanction is to be stuck off the Roll (Register of names of lawyers) of legal practitioners
on the recommendation of the disciplinary committee.

According to Section 85 of the Legal Practitioners Act Chapter 30 of the Laws of

Zambia, an advocate is an officer of the court. As an officer he has an equal
responsibility as any judge or magistrate to dispense justice and not to win cases at all
costs. Once a client comes to you, desist from telling him that you will win his case
whatever the facts. Making such a commitment may lead you to committing unethical
acts.

As we have already stated above, an advocate has a duty to his client, a duty to the
court and a duty to advance the course of justice. He is under a duty not to suppress
evidence and to tell the truth even if he loses your client. However please note that an
advocate’s paramount duty is to the court. If you are a prosecuting counsel you must
not press for a conviction but leave it to the court to do justice. If you know of a credible
witness who can testify then you must call that witness. You must also make available
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all relevant authorities i.e. statutes, decisions etc. you may be aware of, even if they
hinder your client’s case. As an officer of the court, you must always be polite.

As Counsel, you must prepare very well and be punctual. You have to wait for the court
not vice versa. Because of your duty to the course of justice, you must be a master of
your case, you must know the facts and understand the legal principles etc. If you are
relying upon some legal authority, you must have that authority with you in court in case
it has to be referred to by the court. Never inconvenience the court by forgetting such
authorities. Use proper language in court but use words in common use i.e. study the
use of words and speak well, audibly and eloquently. Lawyers must have clear,
thoughtful and logical minds. Do not ask the bench a direct question but suggest e.g. if
you wish the court to rise for a few minutes to allow you to go and consult a statute or
your client you say: “I wonder if Your Lordship(s) would be kind enough to rise for ten
minutes as I wish to consult my client … or go to the library to collect a statute.” As a
lawyer you must be courteous and know how to make such requests. If the judge
objects, you may want to plead with him but do so politely and do not offend him. A
lawyer’s place is in court and conflict with the bench makes his life very difficult and you
cannot transfer cases to another judge or magistrate on the grounds that you have
disagreed with a particular judge before in court. Do not cross the bench, this is the
least expected of a lawyer. Indeed, if the conflict is excessive and lowers the
authority/dignity of the court then the judge can hold the lawyer in contempt (although
judges are very restrained in doing so). Always be polite. Once the bench has made a
decision you may say “Much obliged My Lord” i.e. be thankful even if the decision is
against you. Again, don’t direct the court but suggest to it e.g. “My Lord, may I refer the
court to the bundle of pleadings …..”

As we saw from Section 85 of Cap 30 above a lawyer is an officer of the court, i.e. the
lawyer has a duty to the court but also to his client. There is a potential conflict of
interest here. How do you reconcile the two? There is a contractual duty to your client
but a paramount duty to the court to assist it to advance the course of justice. At the end

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of the day you must remember that the highest duty is to the court even if this means
losing your client and his fees.

9.5 Court Room Regalia

The dressing of Judges in court is different from that of the lawyers. The Judges wear
robes and these robes are of two types being:

(i) red robes and wig - for criminal cases; and

ii) black robes with a waistcoat underneath and a wig – for civil matters.

For lawyers, the Chief Justice issued a Practice Direction on 18th August 1977 to guide
the manner and style of court dress for lawyers. This Practice Direction is still in force
today. In the Supreme Court and the High Court female advocates must wear a black
gown; white, blue-striped or red-striped long sleeved collarless blouse; a stiff white wing
collar and white bands; black, navy blue or dark grey skirt with a matching coat when
desired. Male advocates must wear a black gown; dark or dark-striped long trousers
and jacket; a white, blue-striped or red-striped collarless shirt; a stiff white wing collar
and white bands. It is mandatory for lawyers who are State Counsel (S.C) to wear wigs
in court. In the Subordinate Court female advocates must wear any neat costume of
decent and reasonable length. Male advocates must wear a suit or jacket and long
trousers worn with a shirt and tie or a safari suit with cravat, so long as the attire is neat.

You should note with particular importance that in the Moot Court sessions conducted
by the School of Law for third year students, the students are required to abide by the
dress code prescribed in the above-mentioned Practice Direction with the exception of
wearing a robe. The student presenters’ dressing is in fact one of the examinable
aspects that the Moot Court Judges look out for.

9.6 Principles that Govern Professional Conduct

Professional conduct is governed by several cardinal principles:

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Firstly, an advocate should not do anything in the course of practicing as an advocate or
permit another person to do anything on his or her behalf that will compromise or impair,
or is likely to compromise or impair, any of the following:
(a) The advocate’s independence or integrity
(b) A person’s freedom to instruct a lawyer of his or her choice
(c) The advocate’s duty to act in the best interests of the client
(d) The good repute of the advocate or of the advocate’s profession
(e) The advocate’s proper standard of work
(f) The advocate’s duty to the court.

Secondly, an advocate is an officer of the court and should conduct himself

appropriately - the authority for this is section 85 of Cap 30. An advocate, practicing or
not, remains an officer of the court unless suspended or debarred. Certain standards of
behaviour are required of an advocate as an officer of the court and as a member of the
legal profession, in both his professional and private life. It is cardinal for you to always
bear in mind that disciplinary sanctions may be imposed on him if his conduct tends to
bring the profession into ridicule.

Thirdly, as regards taking instructions:

(a) It is fundamental to the relationship that exists between an advocate and his client
that an advocate should be able to give impartial and frank advice to his client free
from any external or adverse pressure or threats or interests which would destroy
or weaken the advocate’s professional independence or the judicial relationship
with the client. As an advocate you should not shock the client with an exorbitant
fee note after work is done without telling him how work will be costed. The
advocate must discuss fees with the client at the initial meeting when taking
instructions.
(b) An advocate must avoid being placed in a position where his interests or the
interests of a 3rd party to whom the advocate may owe a duty, conflict with the
client’s interest. If there is a conflict, the advocate should not proceed to take
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 instructions but refer the client to another advocate who does not have such a
conflict.
(c) An advocate must not allow the client’s interest to override the advocate’s
professional judgment. He must not compromise. He must not act for a client who
insists that the advocate works for him in a way that is contrary to law or a rule or
principle of professional conduct.

9.7 Activity

1. Write down from memory the main points you have learnt about Lawyers’
Professional Ethics and Conduct. After you have written down your summary,
check the actual content of the unit to see how you have fared.
2. Write down what you would wear if you were appearing as Counsel before the
Supreme Court of Zambia and state how you would address the male and female
Judges.
3. Write down what you would wear if you were appearing as Student Counsel
before the Unza Moot Court.

9.8 Summary

This Unit focused on introducing you to Professional Ethics and Conduct including Court
room ethics. We explored some of the key concepts that guide the conduct of Lawyers
in their professional practice of law and also in their court room conduct and dressing as
a way of preparing you for your Moot Court presentation.

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