LAW 102-LEGAL

PROCESS
Session 11: Components and Hierarchy of the
courts in Zambia Part II
Devotion
• TEXT: Colossians 3:10.
• [Put] on the new self, which is being renewed in knowledge in
the image of its Creator.
• DEVOTION FOCUS. FRESH START EFFECT.
• When Bryony turned thirty, she was sad to still be in a sales job
she’d never liked. She decided it was time to stop
procrastinating and find a new career. For David, New Year’s
Eve had him looking in the mirror vowing this would be the year
he lost weight. And for James, it was watching another month
pass without his angry outbursts decreasing. Next month, he
promised himself, he would try harder.
• If you’ve ever vowed to change at the start of a new month,
new year, or a major birthday, you’re not alone. Researchers
even have a name for it: the fresh start effect. They suggest
that at calendar points like these we’re more prone to assess
our lives and try putting our failures behind us to start over.
Wanting to be better people, we long for a fresh start.
• Faith in Jesus speaks powerfully to this longing, offering a
vision of what our best selves can be (Colossians 3:12–14) and
calling us to leave our past selves behind (vv. 5–9). It offers this
change not by decisions and vows alone, but by divine power.
When we believe in Jesus, we become new people, and God’s
Spirit works in us to make us whole (v. 10; Titus 3:5).
• Receiving salvation in Jesus is the ultimate fresh start.
And it doesn’t need to wait for a special calendar date.
Your new life can start right now.
Objectives
• Identify the different types of courts
• Understand the doctrine of separation of powers
• Understand the process of appointment of Magistrates
and other Judicial officers
• Understand Litigation and Litigation process
OBJECTIVE 1
Identify the different types of courts
The Subordinate Courts
The Subordinate Courts hear the bulk of criminal cases
although they have limited sentencing and jurisdictional
powers both in terms of matters that they may hear and
also in terms of geographical coverage. They also hear
appeals from the local courts. There are different classes
of the Subordinate Courts. These are Class III, Class II and
Class I. All Class III and Class II Magistrates are lay
Magistrates i.e. those who are not legally trained. Appeals
from the Subordinate Courts lie to the High Court.
The Subordinate Courts Act, CAP 28 of
the Laws of Zambia
• This is an Act to provide for the constitution, jurisdiction
and procedure of Subordinate Courts; to provide for
appeals from Subordinate Courts to the High Court; and
to provide for matters incidental to or connected with the
foregoing.
Constitution of Subordinate Courts –
sections 3 - 10
•3 There shall be and are hereby constituted courts
subordinate to the High Court in each District as follows:
• (a) a Subordinate Court of the first class to be presided
over by a principal resident magistrate, a senior resident
magistrate, resident magistrate or a magistrate of the first
class;
• (b) a Subordinate Court of the second class to be
presided over by a magistrate of the second class;
• (c) a Subordinate Court of the third class to be presided
over by a magistrate of the third class.
• 4 Each Subordinate Court shall have the jurisdiction and
powers provided by this Act and any other written law for the
time being in force and shall ordinarily exercise such
jurisdiction only within the limits of the District for which each
such court is constituted.

• 5 The Judicial Service Commission acting in the name of

and on behalf of the President may appoint persons to hold or
act in the office of principal resident magistrate, senior resident
magistrate, resident magistrate or magistrate of any class.
• 6 A Subordinate Court may sit at different places simultaneously
when it is expedient that there should be two or more divisions of that
Court presided over by different magistrates.

• 7 Subject to the operation of any express statutory provision

providing otherwise, and to the provisions of this Act and the Criminal
Procedure Code, all magistrates shall have and may exercise, in all
respects, equal power, authority and jurisdiction; and subject as
aforesaid, any magistrate may exercise all and any part of the
jurisdiction by this Act or otherwise vested in a Subordinate Court,
and, for such purpose, shall be and form a court.
• 8 The trial of any civil cause or matter may, if the presiding
magistrate so decides, be held with the aid of assessors, the
number of whom shall be two or more, as to the presiding
magistrate seems fit. If such trial is to be held with the aid of
assessors, all the provisions relating to assessors, as
contained in the Criminal Procedure Code, shall, so far as the
same are applicable, apply to such trial.
• 9 All Subordinate Courts shall use seals of such nature and
pattern as the Chief Justice may, by statutory order, direct.
• 10 The sittings of Subordinate Courts shall be held in
such buildings within Zambia as the Chief Justice shall,
from time to time, assign as Court Houses for that
purpose, within the limits of its jurisdiction, for the
transaction of legal business, the proceedings shall be as
valid, in every respect, as if the same had been held in
any such Court House.
Jurisdiction and law – sections 11 - 22
• 11 All Subordinate Courts shall be Courts of Record.
• 12 The jurisdiction vested in Subordinate Courts shall
be exercised (so far as regards practice and procedure) in
the manner provided by this Act and the Criminal
Procedure Code, or by such rules and orders of court as
may be made pursuant to this Act and the Criminal
Procedure Code, and, in default thereof, in substantial
conformity with the law and practice for the time being
observed in England in the country courts and courts of
summary jurisdiction.
• 13(1) Notwithstanding the provisions of any other written law
regulating the transfer of proceedings between courts and
subject to any general or special directions of the High Court, it
shall be lawful for any Subordinate Court, in any civil or criminal
proceedings and at any stage of the proceedings before
Judgment, to order such proceedings and at any stage of the
proceedings before judgment, to order such proceedings to be
transferred for trial to any Local Court having power to entertain
the proceedings and exercising jurisdiction within the area of
jurisdiction of such Subordinate Court.
• Before making any such order the Subordinate Court shall
satisfy itself that the making of such order will not be
contrary to the interests of justice or cause undue
inconvenience to the parties, and shall record its reasons
for ordering such transfer. The fact of such transfer shall
be recorded in the court register.
• (2) For the purpose of this section, ‘Local Court’ means
a court recognised under the Local Courts Act.
•
• 14. All British Acts declared by any Act to extend or apply to
Zambia shall be in force so far only as the circumstances of
Zambia permit; and, for the purpose of facilitating the
application of the said British Acts, it shall be lawful for a
Subordinate Court to construe the same with such verbal
alterations, not affecting the substance, as may be necessary
to make the same applicable to the proceedings before the
court; and every magistrate or officer of court, having or
exercising functions of the like kind or analogous to the
functions of a magistrate or officer referred to in any such law,
shall be deemed to be within the meaning of the enactments
thereof relating to such last-mentioned magistrate or officer.
• 15 In every civil cause or matter in a Subordinate Court law
and equity shall be administered concurrently; and a
Subordinate Court, in the exercise of the jurisdiction vested n it
by this Act, shall have power to grant, and shall grant, either
absolutely or on such reasonable terms and conditions as shall
seem just, all such remedies or reliefs whatsoever, interlocutory
or final, as any of the parties thereto may appear to be entitled
to, in respect of any and every legal or equitable claim or
defence properly brought forward by them respectively, or
which shall appear in such cause or matter;
• so that, as far as possible, all matters in controversy
between the said parties respectively may be completely
and finally determined, and all multiplicity of legal
proceedings concerning any of such matters avoided;
and, in all matters in which there is any conflict or
variance between the rules of equity and the rules of the
common law with reference to the said matter, the rules of
equity shall prevail.
• 16 Subject as hereinafter in this section provided,
nothing in this Act shall deprive a Subordinate Court of the
right to observe and to enforce the observance of, or shall
deprive any person of the benefit of, any African
customary law, such African customary law not being
repugnant to justice, equity or good conscience, or
incompatible, either in terms or by necessary implication,
with any written law for the time being in force in Zambia.
• Provided that –
• 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;
• 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.
• 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:
• 17 Every magistrate shall have power to issue Writs of
Summons for the commencement of actions in a
Subordinate Court, to administer oaths, and take solemn
affirmations and declarations, and to make such decrees
and ministerial, in relation to the administration of justice,
as shall, from time to time, be prescribed by any written
law or by rules of court.
• 18 No Writ of Habeas Corpus or Order in the nature
thereof for the production before the court of any person
alleged to be wrongfully imprisoned or detained shall be
issued by any Subordinate Court.
• 19 In the exercise of their criminal jurisdiction,
Subordinate Courts shall have all the powers and
jurisdiction conferred on them by the Criminal Procedure
Code, this Act or any other law for the time being in force.
• 20 (1)In civil causes and matters a Subordinate Court of
the first class
• shall, subject to this Act and in addition to any jurisdiction
which it may have under any other written law, within the
territorial limits of its jurisdiction, have jurisdiction –
• 23 If, in any civil cause or matter before a Subordinate
Court, the title to any land is disputed, or the question of
the ownership thereto arises, the court may adjudicate
thereon, if all parties interested consent; but, if they do not
all consent, the presiding magistrate shall apply to the
High Court to transfer such cause or matter to itself.
• 58(1) Any court exercising appellate jurisdiction under the provisions
of this Act may exercise any of the following powers:
• (a) to grant leave to appeal out of time;
• (b) to take, or cause to be taken, additional evidence for reasons
to be recorded;
• (c) to dismiss the appeal if, in the opinion of the appellate court,
there has been no substantial miscarriage of justice,
• notwithstanding that the point raised in the appeal could
be decided in favour of the appellant;
• (d) to set aside proceedings of the lower court and order the case
to be retried in any court of competent jurisdiction:
• Provided that a Subordinate Court shall not order a retrial
in the High Court;
• (e) to enhance, suspend, reduced or otherwise modify
the effect of the sentence or order of the lower court:
• Provided that the provisions of subsections (1) and (2) of
section forty-five shall apply to any order made under this
paragraph suspending the operation of any sentence of
imprisonment;
• (f) to squash, or annual the verdict, order or sentence
of the lower court, or any part thereof with or without
substitution of another verdict, order or sentence;
• (g) to permit the release on bail of a person who is in
custody by an order made in the case by the lower court
and whose sentence has been suspended.

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

way of rehearing unless the appellate court, in its
discretion, shall see fit to dispense with all, or part, of
such rehearing.
The Local Courts
• The local courts were historically separated from the rest
of the Courts in that they were not Courts of record and
were expected to administer customary law. After
independence, however, they were formally integrated in
the formal court structure although they, to date, continue
to be created under warrant and their presiding officers
continue to function on the basis of short term contracts.
A matter heard by the local Court is heard de novo by the
Subordinate Court on appeal.
Establishment and constitution of Local
Courts
• 4(1) The Minister may, by court warrant under his hand,
recognize or establish such local courts as he shall think fit,
and any such court shall exercise such jurisdiction as may be
conferred by or under the provisions of this Act within such
territorial limits as may be defined by such warrant.
• 5(1) Local courts shall be of such different grades as may be
prescribed, and local courts of each grade shall exercise
jurisdiction only within the limits prescribed for such grade:

• (2) The court warrant of any local court shall specify the
grade to which such court belongs.
• 6(1) A local court shall consist of a presiding justice [now called
Magistrate] either sitting alone or with such number of other members
as may be prescribed by the Minister in the court warrant:
• Provided that a single local court justice shall constitute the court in
the absence of the presiding justice.

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

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

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

to as a local court justice.
• (4) No person shall sit as a local court justice or as an assessor
of a local court in the adjudication of any matter to which he is
a party or in which he has a pecuniary or personal interest:

• Provided that if any doubt arises as to whether a local court

justice or assessor is a party to a matter before a local court or
has any pecuniary or personal interest in such matter, the local
court shall refer the matter to an authorised officer who shall
issue such directions as he may deem fit.

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

Director, the powers conferred upon him by subsection (1).
The jurisdiction of and the law
administered by local courts
•8 Subject to the provisions of this Act, a local court
shall have and may exercise, within the territorial limits set
out in its court warrant, such jurisdiction as may be
prescribed for the grade of court to which it belongs, over
the hearing, trial and determination of any civil cause or
matter in which the defendant is ordinarily resident within
the area of jurisdiction of such court or in which the cause
of action has arisen within such area:
• Provided that civil proceedings relating to real property
shall be taken in the local court within the area of
jurisdiction in which the property is situate. (As amended
by No. 21 of 1976)

•
• Subject to the provisions of this Act, a local court shall
have and may exercise jurisdiction, to such extent as may
be prescribed for the grade of court to which it belongs,
over the hearing, trial and determination of any criminal
charge or matter in which the accused is charged with
having wholly or in part within the area of jurisdiction of
such court, committed, or been accessory to the
commission of an offence.
• 10 No local court shall be precluded from trying an
offence under the Local Government Act by reason of the
fact that such offence was a breach of a by-law or rule
issued or made –
• (a) by a council, members of which are also members of
such local court; or
• (b) by a member of such local court as a member of a
council.
• 11 Subject to any express provision of any other written
law conferring Jurisdiction, no local court shall have
jurisdiction to try any case in which a person in charged
with an offence in consequence of which death is alleged
to have occurred or which is punishable by death.
• 12(1)Subject to the provisions of this Act, a local court
shall administer–
• (a) the African customary law applicable to any matter
before it is so far as such law is not repugnant to natural
justice or morality or incompatible with the provisions of
any written law;
• (b) the provisions of all by-laws and regulations made
under the provisions of the Local Government Act and in
force in the area of jurisdiction of such local court; and
• (c) the provisions of any written law which such local
court is authorized to administer under the provisions of
section thirteen.
• (2) Any offence under African customary law, where
such law is not repugnant to natural justice or morality,
may be dealt with by a local court as an offence under
such law notwithstanding that a similar offence may be
constituted by the Penal Code or by any other written law:
• Provided that such local court shall not impose any
punishment for such offence in excess of the maximum
permitted by the Penal Code or by such other written law
for such similar offence.
• 13 The Minister may, by statutory order, confer upon all
or any local courts jurisdiction to administer all or any of
the provisions of any written law specified in such order,
and may, subject to the limits referred to in subsection (1)
of section five, specify restrictions and limitations on the
impositions of penalties by such local courts on persons
subject to their jurisdiction who offend against such
provisions.
Practice and procedure
• 14 The practice and procedure of local courts shall be
regulated in accordance with such rules as may be made
in that behalf by the Chief Justice under section sixty-
eight.
• 15 No legal practitioner, other than a practitioner who is
a party and acting solely on his own behalf, may appear
or act before a local court on behalf of any party to any
proceedings therein save in respect of a criminal charge
under any of the provisions of –
• (a) by-laws and regulations made under the provisions
of the Local Government Act; or
• (b) any written law which such court is authorized to
administer under section thirteen.
• (2) Subject to the directions of the Director, a local
courts officer may sit as an adviser in any local court in
any proceedings in which a legal practitioner appears
before such court under the provisions of subsection (1).
• (3) Subject to the provisions of subsection (1), a local
court may
• permit the spouse or guardian or a member of the
household of any party before such court, where such
person gives satisfactory proof to the court that he has
authority in that behalf, to appear and act for such party.
OBJECTIVE 2
Understand the doctrine of separation of powers
• In every government, there are three types of interrelated
organs, namely the Executive, the Legislature and the
Judiciary. Democratic governments the world over are
based firmly on the principle of separation of powers. This
principle does not mean that the three organs of
Government should be wholly separated from each other.
On the contrary, they should operate in concert, but with
“checks and balances” that ensure that none of them
encroaches on the legitimate domain of the other.
• The practice in Commonwealth countries is that
separation of powers is seen in the independence of the
Judiciary. The source of this independence, in most
states, is constitutional provisions outlining the
qualifications for Judges, their mode of appointment,
security of tenure, remuneration and provision of
resources.
The autonomy and independence of the
Judiciary
• Autonomy entails the ability to act and make decisions without
being controlled by anyone else. In relation to the judiciary, the
concept of autonomy entails that the judiciary should act and
make decisions without being controlled by anyone be it
members of the Executive or the legislature.
• The autonomy of the judiciary is essential to the fair and
impartial administration of justice and the very concept of the
independence of the judiciary. The reason is simple. There is
no judiciary which can be independent if it is not autonomous.
• Meanwhile, the importance of the concept of independence of
the Judiciary has been internationally recognised, as is shown
by Article 2 of the United Nations Basic Principles of the
Independence of the Judiciary (1985). Article 2 provides that:

• “The judiciary shall decide matters before them impartially, on

the basis of facts and in accordance with the law, without any
restrictions, improper influence, inducements, pressures,
threats or interferences, direct or indirect, from any quarter or
for any reason.”
Zambian constitutional Provisions on the
autonomy and independency of the
judiciary
• The Zambian constitution has provisions on the independence
and autonomy of the judiciary. Article 91(2) provides that “the
Judges, members, magistrates and justices, as the case may
be, of the courts mentioned in clause (1) shall be independent,
impartial and subject only to this Constitution and the law and
shall conduct themselves in accordance with a code of conduct
promulgated by Parliament”. Meanwhile, Article 91(2) provides
that “the Judicature shall be autonomous and shall be
administered in accordance with the provisions of an Act of
Parliament”.
• As contemplated by Article 91(2) of the constitution, the
Judicature Act, Cap. 24, of the laws of Zambia was
enacted in 1994 with its objectives, in the main, as to
provide for the administration of courts and to confer on
the Judicial Service Commission the power to appoint
staff of the Judicature.
OBJECTIVE 3
Understand the process of appointment of Magistrates
and other Judicial officers
• Presently, the Constitution does not provide for the
manner of appointment of Magistrates and other judicial
officers. Neither does it provide for their qualifications: it
only has provisions on the qualification and appointment
of Supreme and High Court judges.
• However, Section 4 (1) of the Judicature Administration
Act, Cap 24 confers on the Judicial Service Commission
power to appoint the Registrar, Deputy Registrar,
Assistant Registrar, Magistrates and other judicial officers.
Sub-section (3) states that these officers shall hold office
on such terms and conditions as the Commission may
determine with the approval of the President.
OBJECTIVE 4
Understand Litigation and Litigation process
Litigation
• Litigation is either civil or criminal. Civil litigation seeks to
redress a wrong committed by one party against the other
while Criminal litigation seeks to have the offender
punished.
• In civil litigation the wronged person is the
plaintiff/complainant/petitioner while the wrong doer is the
defendant/respondent. In criminal litigation the offender is
the accused and the offendee are the people/Republic
Litigation Process
• Civil litigation is commenced by a writ of summons, notice
of motion, originating summons or petition. These are
documents which set out the names of the parties and the
issue. It is a command to the wrong doer to enter an
appearance within a specified period. They also set out
the nature of the claim and remedy sought.
• Criminal litigation in the subordinate court starts with a
charge sheet which bears the particulars of the accused
person, the statement and the particulars of the offence.
In the High Court, information made by the Director of
Public Prosecutions is laid before the court bearing the
particulars of the accused, statement and particulars of
the offence.
Pleadings
• Before trial in a civil matter can commence, parties must
file and exchange pleadings. These comprise the writ or
other action commencing documents, statement of claim,
affidavits in support, memorandum of appearance,
defence and counterclaim, reply and defence to
counterclaim.
Orders for directions
• This is a list of actions to be undertaken by each party
with regard to the filing and exchange of pleadings and
documents by and between the parties. It sets out periods
within which each activity must be done. This culminates
in the setting down of the matter for trial before the trial
Judge. The order for directions is normally filed by the
plaintiff for issuance by the court. The trial court may
however, issue one.