LAW 102 S2 2019-Legal Writing and Methods

Northrise University
LAW102 Legal Writing and methods
Course Material
Revised 2019
Acknowledgement:
Northrise University gratefully acknowledges the contribution of the following people in the development
of this course material:
Hakasenke, Justin- LLB, LLM
Mwansa Chisala Bwalya-LLB, LLM(c)
Chilufya Timothy, K. – LLB, MBA, AFA, Cert. Banking.
Mwanza, Malama- LLB (University of Buckingham), MA (University of Buckingham,)
Nyirongo, Nyawa-LLB, LLM
Zimba, D. MBA (TM)
TABLE OF CONTENTS
1. Course Syllabus ......................................................................................................... 3

2. Course Module .......................................................................................................... 7
2.1. Session 1: Introduction to Legal Writing and Methods.................................... 7
2.2. Session 2: Sources of Law ................................................................................. 9
2.3. Session 3: Case Reading .................................................................................. 13
1.1 Session 4: Statutory Interpretation .................................................................... 16
1.2 Session 5: Essay Writing and Answering Problem Questions ........................... 18
1.3 Session 6: Quiz .................................................................................................. 20
1.4 Session 7: Referencing and Plagiarism ............................................................. 20
1.5 Session 8: MidSemester Exam ........................................................................... 21
1.6 Session 9: Legal Reasoning................................................................................ 21
1.7 Session 10: Negotiation Skills ........................................................................... 23
1.8 Session 11: presentation skills............................................................................ 24
1.9 Session 12: Components and Hierarchy of the courts in Zambia ..................... 26
1.10 Session 13: Introduction to Alternative Methods of Dispute Resolution ....... 46
1.11................................................................................................................................ 48
1.12 Session 14: course review............................................................................... 48
1.13 Session 15: STUDY WEEK ........................................................................... 49
1.14 Session 16: FINAL EXAM ............................................................................ 49
3. Course Articles ........................................................................................................ 50
4. Bibliography ............................................................................................................ 84
LAW102 S2 2019 Legal Writing and Methods Page 2 of 84

1. Course Syllabus
1.1. Course Title: LAW102 Legal Writing and Methods
1.2. Required Text:

 NU Course Standards
 Munalula, Margaret, (2004). Legal Process: Cases and Materials. Lusaka: UNZA Press
 Finch, E. & Fafinski, S. (2013). Legal Skills. Oxford, United Kingdom: Oxford
University Press.
1.3. Instructor Details:
1.3.1. Names: Mr Hakasenke, J.
1.3.2. Availability: THURSDAYS or through email: justin.hakasenke@northrise.net
Biography: Mr. Hakasenke is an Instructor in the School of Law. He holds an LLB and
an LLM. He has vast experience in provision of legal opinions, legal research, legal
drafting and legal analysis owing to his practical experience in the same. He expresses keen
interest in contemporary matters relating to law.
1.4. Course Overview:
Legal writing and methods involves the development of Law student’s ability to write and the
development of skills in advocacy which are imperative requisites for any future lawyer.
1.5. Prerequisite (s): None

1.6. Credits: 3
1.7. Course Objectives:
1.7.1. Equip students with a broad understanding of the operation of the Zambian legal system.
1.7.2. Know the structure of the Zambian legal system and the hierarchy of courts, and have a basic
understanding of how this compares with other selected jurisdictions.
1.7.3. Know the sources of law and have developed an understanding of the sources of legal
principles.
1.7.4. Understand the fundamental legal techniques of reasoning from precedent and interpreting
statutes, including knowledge of fact-finding.
1.7.5. Have built up a portfolio of cases to demonstrate how judges reason.
Be able to apply the relevant law to factual situations
1.7.6. Acquire the ability to undertake and present legal research, to negotiate a position, and to
work co-operatively in groups, and to argue orally and cogently using knowledge acquired.
1.8. Course Policies

1.8.1. Attendance, punctuality and participation
Each student is expected to attend at least 80% of all lectures. All students are expected
to be punctual for lectures. Students are implored to place high value on reading and
understanding modules and all assignments. It is the responsibility of the student to ask
questions where necessary. This can be done in class or via email or phone.
1.8.2. Instructional approach

Lectures will be conducted in “dialogue” form. This means the instructor or/and class
member frame(s) an issue, provide(s) structure for dialogue, and ask(s) provocative
questions; the class then addresses the topic as a group. Dialogue includes full
participation and attentive listening; it is collaborative and not competitive.
1.8.3. Assignments
1.8.3.1. Individual Assignments
All assignments must be written in APA format as documented in the NU Course
Standards. Each assignment must consist of a maximum of five pages.
Question 1: The Law Association of Zambia (LAZ) has membership which includes both associate and
full members. It is trite that many issues relating to the Law Profession are always championed by LAZ.
One of such matters wherein LAZ is interested in is research on and reformation of the many laws that the
country has.
Kindly write a paper of not more than 800 words when contents of both the cover and reference pages are
excluded, wherein you shall state as to whether or not you agree with the foregoing proposition.
Question 2: Zambia follows a Common Law System whereby, from a historical perspective at least, the
doctrine of precedents or stare decisis itself is stanchly followed. However, stare decisis cannot
work in Zambia owing to the Supreme Law of the Land’s creation of Superior Courts.
Kindly opine in not more than 800 words when contents of both the cover and reference pages
are excluded as to whether or not there is anything wrong with the foregoing proposition.
1.8.4. Course Requirements: At least a 50% overall score.
1.9. Lesson Plan
Session Session Dates Title Remarks Possible

Marks
1 13th August, 2019 Introduction to Legal writing and
Methods
2 20th August, 2019 Sources of Law
Focused Teaching
3 27th August, 2019 Case Reading
rd
4 3 September, 2019 Statutory Interpretation
Focused Teaching
5 10th September, 2019 Essay Writing and Answering
Problem Questions
6 17th September,2019
Quiz 20%
7 24th September, 2019 Referencing and Plagiarism
8 Week beginning 30th 30%
MID SEMESTER EXAM
September, 2019
9 5th October, 2018 Legal Reasoning
Focused Teaching
10 12th October, 2018 Negotiation Skills
11 19th October, 2018 Presentation Skills
Focused Teaching
Assignment 1 Due (Assessed 20%
negotiation)
12 26th October 2018 Components and Hierarchy of the
courts in Zambia
13 2nd November, 2018 Introduction to Alternative Methods
of Dispute Resolution
Focused Teaching
14 9th November 2018 Course review
15 16th November, 2018 STUDY WEEK
16 Week ending 1st FINAL EXAM 30%
December, 2018
1.1. Grading
Grading is based on total points received by the student throughout the course. The total possible
points are calculated indicated in the lesson plan below.
Letter Numerical Grade

Grade Grade Points
A+ 90 - 100 4.33
A 80 - 89 4.00

B+ 75 - 79 3.33
B 70 - 74 3.00
C+ 65 - 69 2.67
C 60 - 64 2.00
D+ 55 - 59 1.67
D 50 - 54 1.00
F 0 - 49 0.00

2. Course Module
NOTE: The notes below are not meant to be exhaustive of the topic under discussion. Students are
expected to create comprehensive notes using the text(s) provided and other resources.
2.1. Session 1: Introduction to Legal Writing and Methods
2.1.2. Required Reading:

None
2.1.3. Learning Objectives:

After completing this chapter, the student will be able to demonstrate knowledge of the
following:
a. Understand the importance of legal research

b. Identify the different types of legal research
c. Understand the importance of using correct grammar in legal writing.
d. Understand the role of the Zambia Law Development Commission
SUMMARY
The importance of research

One cannot memorize all the laws and cases out there; therefore, research is a necessary skill to have.
When a lawyer is approached for legal advice or representation, he or she must conduct research in order to
take action. The quality of advice given to client, or the quality of court presentation depends on the quality
of research that was conducted.
Law students are given assignments and problems to solve in order to develop research writing skills.
Students must learn where to find the law so as give correct advice. Law students are expected to read and
write excellent English, in order to develop writing legal writing skills. Therefore, the English and grammar
that is presented by a law student must be of high standard.
Legal research is important because:
 It enables a lawyer to be informed of developments in his or her area of practice
 it enables a student to learn how cases are documented and stored
 it enables a student to learn where to find scholarly articles
 it enables a student to learn citation of :
o Court cases
o Oral materials
o Statutory materials books and periodicals
 It enables one to make contributions to journals e.g. Zambia Law Journal
A lawyer has a duty to conduct adequate research of a matter that he or she is handling. This was discussed
in the Canadian case of Lougheed Enterprises Ltd. v. Armbruster (1992), 63 B.C.L.R. (2nd) 316 (C.A.).
The court held that a lawyer has a duty to be aware of all cases on point decided within the judicial
hierarchy of British Columbia, and to refer the court to any on which the case might turn. The court noted
that “on point” does not mean cases whose resemblance to the case at bar is in the facts. It means cases
which decide the same point of law. You may think you can justify not referring to a binding decision
because it is distinguishable on its facts. However, such a determination is for the court to make: not the
lawyer.

The court further stated that a lawyer cannot discharge his duty by not bothering to determine whether there
is a relevant authority. Ignorance is no excuse. A lawyer is not expected to search out unreported cases,
although if counsel knows of an unreported case on point, he must bring it to the court’s attention.
This ruling on unreported cases is in the context of counsel’s duty to the court.
The importance of conducting legal research was also discussed in Gibb v. Jiwan, [1996] O.J. No. 1370
[Q.L.] (Ont. Gen. Div.) (canadian case).
The case involved a dispute over priority to claims against land registered under the Ontario Land Titles
Act. After deciding the point of law, Mr. Justice Ferguson commented extensively on the failure of counsel
to conduct adequate research, noting the professional obligation of counsel:
• to be competent
• to keep abreast of developments in their own area of practice
• to give their clients advice based on an adequate consideration of the applicable law
• to inform the court of relevant material authorities regardless of whether they support or contradict
the position counsel is advocating.
Sources of information
Paper information sources
Paper information sources include statutes, books, journals, encyclopaedia’s
Advantages
Paper information sources are advantageous because they are portable and easily accessible. One does not
require electrical equipment to read a book or newspaper and it can be carried anywhere and read in a
library, at home, or on public transport.
A second advantage of paper sources is that, because there is considerable effort and expense involved in
producing them, they tend to be more reliable than some electronic sources. Nowadays almost anyone can
produce web-based material for little or no cost and so the content of many websites is trivial or inaccurate.
Books, certainly those produced by reputable publishers, tend to be more trustworthy because they have
been through a process of selection, editing and proof-reading.
Disadvantages
The main disadvantage of many paper information sources lies in the difficulty of updating them.
Publishers will print a certain number of copies of a book and the material will not be updated until a new
edition is brought out, perhaps several years later. Many books are never updated at all.
The other major disadvantage of the paper source is due to the difficulty of indexing the contents of any
book or periodical thoroughly. Electronic sources can have full text indexing where every significant word
in the text is included in a subject index. With print materials even the most skilled of indexers will produce
an index with a limited number of subject keywords.
And lastly, the sheer size of paper information sources presents challenges about how to store them. You
can easily judge this by comparing the space required to store a 30-volume print encyclopaedia with its
equivalent CD or DVD-ROM.
However, we should recognise that paper sources still have an important part to play in any information
task. The trick lies in recognising when it will be quicker and easier to use paper sources rather than their
electronic relations.
Web based research
This type of research is carried out online. It is advantageous in the sense that there is accurate and reliable
information on the Internet. In addition, some information on the Internet is appropriate for academic
research.
Disadvantages
However, not all information is available on the Internet. Most of the information that is available on the
internet is not scholarly and should not be used for an academic assignment. In addition, some information
on the Internet is inaccurate and unreliable.

Types of legal research

Research for litigation purposes
This type of research is conducted when a lawyer is presented with a problem, or a request for legal
advice.it is important to:
 Identify legal issues that arise
 Determine where to find the law
 Use best available reliable and complete source of law
 Also present adverse view of the law and then make a distinction in order to convince the court to
take certain position
Law students learn the skill of conducting research for litigation purposes through problem solving
questions. When a student is conducting research, the first source of law is legislation. Principal legislation
and subsidiary legislation may be looked at. These may be supplemented by parliamentary debates. English
sources such as Halsbury’s laws may be used as secondary sources of legislation. Case law, from the
Zambia Law Reports and English sources such as the All England Law Reports, journals such as the
Zambia Law Journal and reports from the Zambia Law Development Commission may also be looked at.
Once all the law on the subject has been collected it must be analysed and presented. When writing, it is
important to acknowledge all sources through proper citations.
Research for policy/law reform
When research is conducted for policy or law reform purposes, the following must be observed.
Select and formulate the research problem: The problem is identified from the problems that are
encountered by human beings in their relation with nature and society.
Literature review: this involves reading whatever has been published and appears relevant to the research
topic. This is done in order to acquire knowledge about current theories and research and area of study
Hypothesis formulation: a tentative concrete and testable answer to a formulated problem
Research design and sampling techniques: guides research in collecting observing analysing and
interpreting facts. It specifies the most adequate operations that can be performed in order to test specific
hypothesis under given conditions.
Data collection: e.g. interviews, review of old records, participant observation
Data analysis: processing of data in order to obtain results and interpreted findings
Drawing conclusions: this involves summarising the aims of the research, comparing them with the
findings, and drawing conclusions on how and which manner the goal has been achieved
Recommendations for reform: these are made based on the conclusion that is made
Research conducted by Zambia Law Development Commission (ZDLC)
The ZDLC was created pursuant to an act of parliament, the Zambia Law Development Commission Act
No 38 of 1996. Its functions are as follows:
 Revise and reform the law in Zambia
 Codify unwritten laws
 Remove archaic legislation
 Review and consider recommendations for law reform referred to the commission by the Minister
and members of the public
 Hold seminars and conferences on legal issues
 Translate legislation in to local languages
Examples of research conducted by the ZLDC

 Review of Intestate Succession Act
 Law on community service
 The law on rape and allied offences
2.2. Session 2: Sources of Law
2.2.1. Required Reading: Finch and Fanfinski., Legal Skills: Part 1

2.2.2. Munalula, Margaret, (2008), Legal Process: cases and Materials, ch 4
2.2.3. Learning objectives:

following:
a. Explain the sources of law in Zambia

b. Explain the process by which Acts of Parliament come into being
c. Appreciate the role of custom as a source of Law
SUMMARY
Sources of law
The following are the sources of law in Zambia (listed in order of importance)
 The constitution

 Acts of parliament and subsidiary legislation
 Judicial decisions
 English common law, equity and statutes
 Customary law
The constitution of Zambia
The constitution is the most fundamental law of the land. It sets out the structure and powers of
government, and it indicates people’s rights and duties in relation to the state. It helps to promote an orderly
system of governing a country. It explains the structure of the government, how government is formed, and
how laws are made. In addition, it describes who a citizen of a country is, and how he is protected. It also
gives government institutions their powers and functions, and it sets limits on the exercise of these powers.
To this effect, it provides for the creation of the three branches of government, namely,
 The executive: includes the President Ministers and civil servants

 The legislature or parliament
 The judiciary: comprises of local courts, magistrate courts, the high court and the supreme court
A constitution is supposed to be enacted out of the desires and expectations of the people. Thus, all other
laws must comply with it in order for them to be valid.
See: Thomas Mumba v The People (1984) ZR 38
Acts of parliament
Parliament is the branch of government that makes the laws of the land
Laws that are enacted by parliament are known as acts of parliament. Parliament may delegate its powers to
make laws to ministers. This type of law is known as subsidiary legislation. It is contained in subsidiary
legislation which is drafted under the authority of, and in line with, a particular act of parliament. The local
government is enacted to make by laws, which are applicable in their municipalities.
See: Part V of the Constitution
The officers of parliament
The speaker:
 controls and maintains order in parliamentary debates

 Represents parliament when dealing with outside bodies such as the executive
 Protects the rights and privileges of members of parliament when dealing with outside bodies such
as the executive and the judiciary
Deputy speaker:
 acts as speaker when the speaker is absent

 Chairperson of committees of the house.
Deputy Chairperson of committees of the house:
 Assists the deputy speaker when the house is sitting as a committee

 The clerk of the National Assembly: chief advisor to the Speaker and to parliament
 Chief executive of administration of government
Whips:
 elected by respective political parties
Clerks at the table:
 sit in front of the speaker’s chair

 advise members on parliamentary procedure and practice
Sergeant at arms:
 keeps order in parliament as directed by the speaker
How laws are made
The government or any member of parliament who wishes to have a certain law passed by parliament
brings the proposed law to parliament. A proposed law is called a bill. There are 3 types of bills:
Government bill: presented by a government minister
Private members bill: presented by a member of parliament who is not a government minister
Private bill: presented by outside bodies and affects limited sections of the public
Stages through which a bill must pass before it can become law
First reading: the member or minister who is presenting it to parliament introduces it by reading out its
title
Second reading: the presenter of the bill gives details of what it is about, and it is debated in detail
Committee stage: the bill is then considered clause by clause by a committee of a few members, or by the
whole house. This is done to perfect the bill, and to ensure that the ideas that it contains are properly
expressed
Report stage: the committee that considered the bill reports back to parliament
Third reading: the bill is read to the house for a third time, and it must be satisfied that the bill has been
properly handled or dealt with.
Presidential assent: at this stage the bill is presented to the president for signing. When it is signed, it
becomes law.
Current legislation
The statutory laws of Zambia are contained in a set of loose leaf volumes known as the Laws of Zambia.
The Attorney General is empowered to revise the laws of Zambia .Revision of the laws is necessitated by
on-going changes and developments in the legal system. The laws of Zambia were last revised in 1997, and
they are contained in the Laws of Zambia (1995 revised edition), which came in to force in 1997.
Where there is a gap in local legislation, the law and practice that is for the time being observed in England
and in the court of justice shall apply.
See: Kausa V Registrar of Societies (1977) Z.R 195
Judicial decisions
The interpretation of statutes as they are applied by the courts results in the creation of binding judicial
precedents. Zambian precedents take priority over precedents from other parts of the world. Where there is
a lacuna in our laws, English precedents are resorted to.
English common law, equity, and statutes
English law (cases) principles of equity originally applicable in the English chancery courts, as well as
selected English statutes are applicable in Zambia. This law is resorted when there are gaps in the local
legislation and case precedents.
See: the English Law (Extent of Application Act) Chapter 11 of the laws of Zambia
The British Acts Extension Act, Chapter 10 of the Laws of Zambia
Shamwana v The People (1982) ZR122, on the application of chapter 11 of the laws of Zambia
Customary law
Local customary law is applicable to the majority of indigenous Zambians. Customary law is applicable, in
so far as it is not repugnant or contradictory to any written law.
See: Kaniki v Jairus (1967) ZR 71, R v Matengula (1951)5NRLR
International Law
International is divided in to customary international law and bilateral or multilateral agreements.
Bilateral and multilateral agreements
These are only applicable in Zambia when they are ratified or acceded to. In addition, they can only be
enforced by the courts when parliament has passed the enabling legislation.
See: Zambia Sugar PLC V Fellow Nanzaluka SCZ No 38 of 2000
Customary international law
The position of customary international law in Zambia is less clear. However, in England, it is deemed to
be part of the law of the land, and it is applicable by British courts, provided they do not conflict with
statutory laws.
Modern textbooks
These have persuasive influence over the courts.

2.3. Session 3: Case Reading

Fundamentals of Business Law, M.L. Barron p. 1-9 and p 48-53

following:
a. Be able to find cases that have been reported

b. Correct way of reading the case
c. Identify where the case was reported by the details given
SUMMARY
HOW TO READ A REPORTED CASE

There are two types of cases reported, namely criminal cases and civil cases. The difference
between these cases must be understood.
1. The People v Banda (1993)1 ZR 160(H.C)

2. Mwansa v Kamanga (1999) 1WLR 562(S.C)
3. Ex Parte Addleson (1948)2ALLER16
Finding a case.
Each case that goes through the courts is identified by specific reference (citation). This
reference makes it possible for lawyers , magistrates and judges to be able to find the case
more easily. A case reference contains the following:-
i. A case name
ii. The year
iii. The volume
iv. The law reports in which the case was reported
v. The page in the volume on which the case starts and
vi. The court in which the case was decided
CASE NAME
A reference will always start with the name of the case that is the names of parties involved
in a case.
In a criminal case
1. The People v Banda (the parties are State v Accused)
‘The People’ refers to state. The other party is the accused ( in our example Banda).
In criminal cases which were decided before 1964 the letter ‘R’ was used instead of
‘The People’. E.g. R v Mainza Chona (1962) R and N.L.R 368 This is because
prosecutions then were instituted on behalf of the King or Queen of England. ‘R’
refers to Latin Rex(King) or Regina(Queen).
In a civil case
2. Mwansa v Kamanga (Parties: Plaintiff Vs Defendant or Appellant Vs Respondent)
In action proceedings, the proceedings are started by way of writ of summons. The
procedure is used when there is a fundamental difference between parties as far as
the facts of the case are concerned.
3. Ex – Parte Addleson (Parties are: Applicant and/or Respondent)

In application proceedings the proceedings are started by way of “notice”. This
procedure is used when there is no fundamental difference between the parties as

far as the facts of the case are concerned. In other words, they more or less agree.
These proceedings normally relate to one party, namely the applicant.
In re Gault, 387 U.S. 1 (1967)
‘in re’ means in the case of
YEAR AND VOLUME OF CASE REPORT

Case one can be found in the first volume of 1993
Case two can be found in the first volume of 1999
Case three can be found in the second volume of 1948
Series of law reports
The People v Banda (1993)1 Zambia Law Reports 160(H.C)

Mwansa v Kamanga (1999) 1Weekly Law Reports 562(S.C)
Ex Parte Addleson (1948)2All England Law Reports 16.
Pages where case report starts
The People v Banda (1993)1 Zambia Law Reports 160 case starts on page 160
Mwansa v Kamanga (1999) 1Weekly Law Reports 562) starts on page 562
3. Ex Parte Addleson (1948)2All England Law Reports 16 starts on page 16
Court where the case was decided.

The following citations are for court judgments that have not yet been reported
Banda and Phiri v Siliya(2011 HP/EP/11&39) [2012]ZMHC39
‘Banda and Phiri v Siliya’ is the case name

(2011 HP/EP/11&39) is the case number. It means the case was commenced in 2011 in the High Court, EP
denotes the nature of the case; an Election Petition 11&39 denotes the cause number of the case.
‘[2012] ZMHC39’is the media neutral citation. It means the case was decided in 2012 in the Zambian High
Court.
Simeza and others v Mzyeche (APPEAL NO. 87/2011) [2011] ZMSC 3 (25 November 2011); SCZ
JUDGMENT NO. 23 OF 2011
‘Simeza and others v Mzyeche’ is the case name
‘(APPEAL NO. 87/2011)’ is the case number. It was appeal number 87 in 2011
‘[2011] ZMSC 3’ is the media neutral citation. It means the case was decided in 2011 in the Zambian
Supreme Court.
25 November 2011is the date on which judgement was passed
SCZ JUDGMENT NO. 23 OF 2011 is the other citation. It means supreme court judgement number 23 of
2011.
The People v Banda (1993)1 ZR 160(H.C)

This citation is for a case that is reported in the Zambia law reports
‘(H.C)’ means it was reported in the High Court
“Court of first instance” and the court “the court aquo”

The name, the court of first instance is used to indicate the court in which the case was heard for the first
time.
The court aquo (aquo means from where)means the court where the case was first heard before it came to
the present court of appeal.
Structure of a reported decision

Judges names
These appear under the name of the court where the matter is heard. The abbreviation ‘J’ stands for judge.
Thomas Mumba v The People (1984) ZR 39
Chirwa, J
In a judgment that has not yet been reported in the Zambian law reports, the name of the judge will appear
at the bottom of the case.
Date on which case was heard

There is a date under the names of judges. This is the date on which the matter was heard.
S v Makua 1993(1) SA562 (SCA)

3RD November 1992
Note: most Zambian cases do not indicate the date on which the case was heard
Catch phrase also referred to as “fly note”.

These are put in point form and used to get a rough idea or impression of what the case is about.
The People v Banda (1993)1 ZR 160(H.C)

Traffic offences – Driving with an excessive concentration of alcohol in the blood – contravention of Road
Traffic Act – sentence – importance of evidence as to manner of accused’s driving of vehicle and traffic
condition reiterated.
Mwansa v Kamanga (1999) 1WLR 562(S.C)

Negligence – Liability for – motor vehicle collision whether collision due to negligence of respondent –
Respondent pleading sudden, unforeseen and uncontrollable blackout resulting in his inability to control
vehicle.
Ex- Parte Addleson (1948)2ALLER16
Advocate – admission in cape – Requisites – Necessity for applicant to have obtained degree.
Head Note
This is also written by the editor of the law report. This is a summary of the case. It includes all aspects of
the case that editor considers to be important. It usually includes the area of law that the case is concerned
with as well as the “ratio decidendi” of the case.
Summary of heads of arguments

This is a summary of the arguments and authorities which the lawyers presented to the court. This does not
appear in all cases.
Date on which judgment is given

Sometimes a court case is heard on one day and a decision is given on the same day. However it often
happens that the judge may not be able to give judgment on the same day on which the case was heard.
When a judgment is given on a different day to the day on which the case was, the words Cur Adv vult will
be found. This is short for Latin Curia advisari vult meaning the court wishes to consider its decision or
verdict. These words are followed by “Postea” another Latin word for afterwards. Immediately following
will be the date on which the judgment was give.
In Zambia, the date on which judgment was given will appear as follows:
Banda and Phiri v Siliya(2011 HP/EP/11&39) [2012]ZMHC39

Before the Hon. Mr. Justice C. Kajimanga this 13th day of April, 2012
JUDGMENT (HR Cheeseman p:12); M L Barron

Most often the judgment will take the following form:
First the facts are given
Discussion of legal principles involved
Decision is given in light of the relevant legal principles
An order is given
An order regarding costs
Examples of order of the court

Thomas Mumba v The People (1993)1 ZR 160(H.C)
 In the result I would make the following order:
 The conviction of the appellant is confirmed
 The sentence imposed by the magistrate is set aside and substituted
Mwansa v Kamanga (1999) 1WLR 562(S.C)

“The result is that the appeal fails and is dismissed”
Ex – Parte Addleson 1948 (2) SA 16 (E)

The application consequently must be denied
Order as to costs
After a case has been completed, the costs must be paid. The costs are the expenses involved in the case.
The presiding officer will stipulate which party has to pay which costs. Sometimes one party is ordered to
pay both his as well the other party’s expenses.
1.1 Session 4: Statutory Interpretation

Required Reading:
ELSC Ch 6 (p 108-125); TELS p 88-112;
Learning Objectives
After completing this chapter, the student will be able to demonstrate knowledge of the following:
Explain the meaning of Statutory Interpretation

Describe rules for Statutory Interpretation
The Literal Rule
The Golden Rule
The Mischief Rule
Explain the purpose approach to statutory interpretation
Outline the general rules for statutory interpretation
SUMMARY
STATUTE
This means law made by Parliament. An Act of Parliament.

Article 79 sub article 8 of the Zambian Constitution states that all laws made by Parliament shall be styled
Acts and the words of enactment shall be enacted by the Parliament of Zambia.
Statutes are of the following kinds:
Declaratory
When they do not profess to make any amendment or alteration to the existing law, but merely declares or
explains what it is.
Remedial
When they alter the common law
Amending
When they alter the statute law
Consolidating
When they consolidate several previous statutes relating to the same subject matter
Disabling/Restraining
When they restrain the alienation of property
Enabling
When they remove restriction or disability
Penal
When they impose a penalty or forfeiture
The above references to various types of statute enable us to understand the anatomy or structure of an Act
of Parliament in relation to the rules of interpretation.

RULES OF INTERPRETATION
In considering interpretation of statutes, a cardinal point to bear in mind is that most law in Zambia is
derived from legislation from statutes and subsidiary legislation. The legislature is the dominant branch of
government with respect to law making. The legislature is an elected chamber and is therefore closer to the
people than the judiciary which is an appointed institution. Since a statute is enacted by a body that has
constitutional law making powers superior to a court; judicial power is or should be limited to
interpretation of legislation in the cause of deciding cases. In interpreting statutes, the task of judges is not
to rewrite the statute as they would have written it, but to implement the legislative will of parliament and
help to achieve its goals. The quest for a court is how best to recognize and give effect to the legislative
desire of parliament. In other words the role of the court is to ascertain what the statute means and then to
apply it to the facts of the case before it. In some cases it is simple for a court to locate the statute and apply
it to the case without much difficulty. This is particularly true in cases which the application is mere
mechanical or formal justice is to apply. E.g. if it is a crime to exceed 50Km/h on Buteko avenue, then an
accused is guilty if she drives at 70KM/h and not guilty if she was driving at 40Km/h. In other cases the
task of locating the law/statute to apply and what that statute means would be very complicated. In those
cases the court would have to decide whether one or more statutes are applicable to the case. The court will
also have to figure out what any applicable statute actually means.
THE LANGUAGE PROBLEM
The imprecise nature of the language we use to communicate is at the root of the problem in statutory
interpretation. Too many words and phrases mean one thing to one person and another to the other. Words
are not defined to have a fixed meaning. Words express ideas which are often quite difficult to grasp. There
is a general ambiguity in the language we use and particularly so in the language used to write statutes. It is
said that every word has a core meaning and a penumbra meaning. To meet this problem, judges gradually
develop rules of construction to assist the courts. The rules were aimed at eliminating any risk of arbitrary
interpretation. The text of the statute must be examined objectively, as the statute stands by itself and the
intentions of Parliament must be ascertained from the words of the statutes. At other times we are told that
to get the meaning of any enactment, we must look objectively at:
Its antecedents
Its latter history
Its relation to other enactments
These rules are known as the cannon of construction. Construction is the process of ascertaining the
meaning of a written document. It also means judicial interpretation of statute.
LITERAL RULE
This rule simply says, in constructing a statute or indeed any written document, is to see if the words of the
statute are in themselves precise and/or unambiguous, if they are precise, then no more can be necessary
therefore than to expand those words in that natural sense. The words themselves only do, in such a case,
best declare the intention of the law it gives. But if any doubt arises from the terms used by the legislature,
it has always been held a safe means of collecting the intention, to call in aid, the ground and cause of
making the statute, to have recourse to the preamble which according to chief justice Dyer is “a key to open
the minds of the makers of the act, and the mischief they intended to redress”
THE GOLDEN RULE

This rule emphasizes the legislative purpose or doctrine which allows courts to probe for spirit of a statute
and not just its letter. It allows the court to enquire into the courts legislature’s goals in passing the statutes.
These goals must be objectively defined, they must be general in nature. They should not apply to a
particular situation. Once these goals have been defined the statutes should be applied so as to best satisfy
those goals. This rule is to some extent an extension of the literal rule and under it the words of a statute
will as far as possible be construed according to their ordinary plain and natural meaning unless this leads
to an absurd result.
MISCHIEF RULE
This rule directs that the courts should seek to resolve ambiguities by determining the mischief which the
statute was designed to remedy. Under this rule, a court can look to the general scheme or purpose of the
statute to determine its meaning. In Hydon case decided in 1584, it was stated that a court may look to:
What was the common law before the making of the Act
What was the mischief and defect for which the common law did not provide
What remedy Parliament hath resolved, or appointed to cure the disease of the common wealth
The true reason of the remedy
After this review, the court should “make such construction as shall suppress the mischief and advance the
remedy”.
EXTRINSIC AID
In England the courts have adopted a very restrictive view of permissible sources for ascertaining
legislative purpose, they exclude everything except the state of the law as it was when it was passed.
In the US, courts look to sources like legislative debates, committee reports and hearings. They also look at
the expert testimony or evidence concerning the social, political history of a bill.
In Zambia, we are yet to make a stand on this matter.
OTHER STATUTES
Statutes that deal with similar subjects are said to be in PARI MATERIAL with one another, and for the
other. Statutes which are either themselves more explicitly drafted or which have been interpreted by the
courts can be a helpful source of information about the intended meaning of a statute.
OTHER INTERPRETATIONS
Where clarification of ambiguous statutes cannot be got from primary sources (courts of the jurisdiction
and legislature) the courts may seek to gain assistance of less authoritative sources such as administrative
agencies who administer the statutes. At times the courts may look to the interpretations from other
jurisdictions.
EJUSDEM GENERIS RULE – of the same kind.
NOSCITUR A SOCIIS – a thing is known by its companion.
EXPRESIO UNIUS EST EXCLUSIO ALTERIUS – the mention of one thing is the exclusion of
another.
Ejusdem generis rule states that where general words are found following an enumeration of persons or
things also susceptible of being regarded as a specimen of a single genius or category, but not exhaustive
thereof, their construction should be restricted to things of that class or category, unless it is reasonably
clear from the context or general scope and purview of the Act that Parliament intended that they should be
given a broader signification or interpretation.
1.2 Session 5: Essay Writing and Answering Problem Questions
Required Reading:
Finch and Fafinski., Legal Skills Part 2: Pg. 315-343 and 359-383
Learning Objectives
Possess the required knowledge and skills required to produce a successful piece of written work.
Create an effective introduction and conclusion to your essay and structure a cohesive line of argument.
Differentiate between skills needed for problem questions and those for essay questions.
Analyze a problem question in order to identify the legal issues that need to be resolved.
Structure the answer in a logical and organized manner.
SUMMARY

For an essay to be considered good it is not enough to only give thought to the content i.e. the relevant law
and commentary careful thought must also be given to the way the essay is constructed. A good essay must
demonstrate the following:
A fundamental basis of accurate and relevant knowledge about the legal topic that is the subject of the
essay question.
A vast range of appropriate research for the subject matter
Effective use of materials sourced by integrating it into essay and used to strengthen your argument
demonstrating that you understand the material and the role it plays in your work.
It should exemplify the ability to filter out peripheral data and only focusing on the central issue raised by
the question.
The essay should have a flowing line of argument and a clear structure including an introduction and
conclusion.
An appropriate balance between description and analysis.
Should have good written communication skills producing a coherent and eloquent piece of work.
It should be well referenced using the style learnt in a previous session.
ANALYSIS
Analyzing the question and forming a clear view of its
scope and requirements
PREPARATION
Reasearch, reading and planning: effectively , finding the
answer to the question
WRITING
Composing a logical and structured answer to the
question
POLISH
Reviewing the essay for flow, accuracy and ensuring the
presentation is appropriate and the refrencing complete
Figure 1 Stages of essay writing
Answering Problem Questions
A problem question is a set of hypothetical facts that raises at least one question usually more that requires
reference to the Law to be answered. Different skills are required to answer these questions. Some of the
skills involved are:
The ability to sort through the mass of facts and identify those that are pertinent, those that set the scene,
and to oust any potential red herring.

Possessing sufficient knowledge of the area of law in order to identify a potential basis for legal action, to
establish a starting point for research, and to be able to understand the law that is uncovered during the
research process.
Have the necessary research skills to access the relevant statutes and case law.
Writing skills to enable you to structure an answer.
The ability to apply the law to the facts of the question in order to determine the extent of the parties’ legal
liability.
1.3 Session 6: Quiz
1.4 Session 7: Referencing and Plagiarism
Required Reading:
Finch and Fafinski., Part 2: Pg. 315-343 and 359-383
Learning Objectives
To define plagiarism
Be able to reference to avoid inadvertent plagiarism
Understand the risks associated with deliberate plagiarism
SUMMARY
Plagiarism is defined by the Oxford dictionary as ‘the action or practice of taking someone else’s work,
idea, etc., and passing it off as one’s own; literally theft’.
There are times when plagiarism is done inadvertently. The best way of avoiding this occurrence is by
ensuring that every piece of work produced is thoroughly and correctly referenced.
The Northrise University policy on plagiarism is as follows:
1) Plagiarism is a serious offense at NU. Instructors utilize tools that enable them to detect plagiarized
work and report all instances of plagiarism to the Office of the Academic Dean. In other words, in addition
to dealing with the course instructor, students who plagiarize must also deal with the University. Students
found guilty of plagiarism will have the incident recorded on their file and may be expelled from the
university.
2) All parties to plagiarism are considered equally guilty. If you share your coursework with another
student and they plagiarize it, you are considered as guilty as the one who has plagiarized your work, since
you enabled the plagiarism to take place. Under no circumstances should you make your coursework
available to another student unless the instructor gives explicit permission for this to happen.
3). Students found guilty of plagiarism fail the course. Without exception, any students found guilty of
plagiarism fail that particular course. The reason is that they would be missing part of their assessment to
fulfil course requirements. A student with a prior record of plagiarism who is found guilty of the same
offence will be expelled from NU.
As mentioned earlier to avoid plagiarism one must reference when:
Statements of Law they must be attributed to the relevant case or statutory provision
Direct quotations must be attributed to the appropriate source in a book, case, article or other material.
Factual material such as statistics or findings of a research study should be properly referenced according
to their source.
Definitions of legal concepts or any other matter should be attributed to the relevant source in a dictionary,
case law, statute, article, or other material.
Northrise University has adopted the APA Referencing style. Basic guidance and examples on how to
reference according to APA style are listed below and can be found on the Northrise University website:
Basic guidelines for formatting citations in the text

Place the complete citation within parentheses.
Use the words in the first part of the citation exactly as they appear in the References so that the source in
the text can easily be located in the References.
Use the author’s last name and year for the citation: (Smith, 2008).
Place the year in the citation, but do not include the month and day.
Use only the last name of the author, and never include the first name or initials except in a personal
communication.
Place the name of a group author (corporations, organizations, and government agencies) first when no
individual author is listed in the source.
Use the first two or three words of the title of the work when no author is listed: (Writing Executive
Summaries, 2007) or (“Evaluating a Case Study,” 2008). Capitalize all major words of the title.
Use italics for titles of books, periodicals, and reports. Use quotation marks for titles of articles, chapters, or
web pages.
Include the page or paragraph number for a direct quotation: p. or pp. for page numbers, para. for paragraph
numbers.
Place any necessary punctuation after the final parenthesis of the citation unless it is a block quotation.
Never use a URL address in the citation.
Basic guidelines for formatting the References page

Place the references in alphabetical order in one list. (Do not number references or separate them into
categories.)
Use periods to separate each major element in the reference: Name, A. (Year). Article title. Journal Title,
24(4), 13-16.
Include the author’s last name and first and middle initials: Smith, G. Q. (Always use initials instead of
authors’ first/middle names.)
Place the year in parentheses after the author’s name: Smith, G. Q. (2008). If no year is available, put (n.d.)
in parentheses.
Place the title of a book or article first when no author is listed in the source.
Capitalize the following elements of the first title mentioned in the reference: first word, proper nouns, and
the first word after a colon or a dash.
Capitalize all major words of the second title mentioned in the reference (e.g., journal titles, newspaper
titles, book titles)
Use italics for titles of books, journals, newspapers, and movies.
Never use quotation marks or italics for article titles.
Include a retrieval date only for Internet sources that contain content that can change over time, such as
Wikis.
Use the DOI number for electronic sources rather than the name of a database: doi:xxxxxx. If the document
does not contain a DOI number, use the URL of the publisher’s home page: Retrieved from
http://www.xxxxxx. (Do not use periods at the end of a DOI number or URL address.)
Include database retrieval information only for sources with limited circulation.
Never include a source that is not mentioned in the paper.
1.5 Session 8: MidSemester Exam

Session 1-7
1.6 Session 9: Legal Reasoning
Required Reading:
Finch and Fafinski., Part 2: Pg. 267-281
Learning Objectives:
Understand the process involved in logical legal reasoning

Explain how legal reasoning is more than just the mechanical application of facts
Distinguish between natural law, legal positivism and legal realism
Be able to understand the legal reasoning applied by a judge when making a decision
SUMMARY
The process of legal reasoning can be illustrated by the following example:

The facts of the case were as follows: Kangwa knocked on Mumba’s front door. When Mumba answered
the door, Kangwa said ‘I hate you and I want you to die’. He then shot Mumba in the head, killing him
instantly. Kangwa was not insane.
The issue in this case is to ascertain whether Kangwa is criminally liable for the murder of Mumba.
The law defines murder as: where a person of sound mind and discretion unlawfully kills any reasonable
creature in being (i.e. a human being) during peace time with intent to kill or cause grievous bodily harm.
The next step in the process is to apply the law to the facts of the case:
We are told that Kangwa is not insane. Therefore, he was of sound mind at the time of the killing.
Was the killing unlawful? There is nothing to suggest that Kangwa was acting in self-defence, was of
diminished responsibility, had suffered temporary loss of self-control or was killing in pursuit of a suicide
pact. Kangwa killed Mumba by shooting him in the head. The killing is therefore unlawful.
Reasonable creature in being: Mumba was a human being.
There is nothing to suggest that it was during a time of war.
Intention to kill or cause grievous bodily harm is illustrated by Kangwa’s words and actions.
Taking into consideration all the elements one can conclude that Kangwa is criminally liable for the murder
of Mumba.
It is not always as straightforward as this but students must always remember to apply the below formula:
“FILAC”
Facts- Correctly identify the relevant facts, sometimes obvious, sometimes not.
Issues- Identify relevant issues to be researched. These arise from the facts, usually stated in the form of
legal questions that the client needs answered.
Law- Find the relevant law. Use secondary sources – broad overview. Narrow in on primary sources
Analysis/Application of law to facts- Apply the relevant law to the facts to analyze the way a judge would
decide the matter given the same set of facts
Conclude- Communicate results of the research problem – be clear, accurate, concise
LEGAL PHILOSOPHY (JURISPRUDENCE)
In order to appreciate what is behind the veil of legal philosophy, we need to firstly ask the following
questions.
Does law consist of rules only, or is there a law that is higher than the legal rules?
(b) If there is a higher law, what happens if a state’s laws are in conflict with this higher law?
(c) Under what circumstances would it be justified to disobey state’s law if they are in conflict with the
higher law? See Feliya Kachasu v AG
The above questions have been the source of controversy among legal philosophers. This is particularly so
between the proponents of natural law on one hand and those of the positivists on the other.
For natural law proponents, law is a social necessity based on the moral perceptions of the nation and the
individuals of the nation and any law which violates certain moral codes is not valid at all. They say human
law is based on certain universal principles discoverable through reason or revelation which are seen as
being external, immutable and ultimately based on the nature of human beings.

However, natural law philosophers do not agree on all aspects. In the first place they have had different
views on what this “natural law” actually is.
For some it is something like the laws of the physical universe, such as gravity. For others it was part of the
divine law, created by God and found in the Bible.
In the modern period natural law is regarded as something universal to all people that can be known by
human reason. A last point of view is that natural law is simply a set of moral or ethical rules.
The second aspect on which natural law philosophers disagree deals with the question of what happens if
natural law and state law are in conflict. Some natural law proponents argue that in such a case the state
law will be invalid. In this case therefore, natural law determines the validity of human laws. Others on the
other hand, argue that it simply means that it is a bad law. In this regard natural law also determines
whether the law is a just law.
The law of positivism arose as direct result of the advances in the natural sciences in the 19 th century. The
idea was that the law must be a science in the way that, for instance, physics and biology are sciences.
Proponents of legal positivism felt that natural law was not scientific enough because it relied on a system
of rules that could not be verified. Positivism agreed that, even if something like natural law existed, it
could not be used in legal science because it cannot be seen or touched. As a result, positivists see law as
either a command from sovereign to the citizens or as a system of rules that determine human conduct.
Legal science deals with the law as it is. In this scheme what the law ought to be is not of primary
importance. According to positivists, the validity of law is not dependent on some higher law, but on the
internal rules of a specific community.
For a positivist philosopher, law is specifically created and put forward by certain persons in society who
are in a position of power and who then provide the sole source and validity of such law. To positivists
what is law is essentially a question of fact to be answered by empirical reference to and an analysis of
objectives of social phenomenon which can originate, exist and be explicable only within its own terms
even though it may have some identities or linkages with other social factors such as religion, morality and
or ethics. Whether law is good or bad it is law as long as it has passed through enactment.
It seems clear, therefore that the natural law approach is that law and morality is closely related. If a law is
immoral, it is unjust law (a bad law). For positivists, law and morality are distant apart and have nothing to
do with one another. An immoral law is still law if it is made by a competent authority.
1.7 Session 10: Negotiation Skills
Required Reading:
Learning Objectives:
Appreciate the role of negotiation in legal practice and have some insight into skills necessary to conduct
an effective negotiation
Analyze a negotiation scenario and extrapolate information that provides insight into the aims and interests
of the client
Open the negotiation in a professional manner and establish a workable agenda of the issues that need to be
addressed.
SUMMARY

The courts are keen to encourage parties to settle disputes using alternative measures wherever possible.
There are other less formal mechanisms that may be employed such as arbitration, mediation and
conciliation. Negotiation skills are imperative if a client chooses to employ one of these alternative
mechanisms.
There are two main types of negotiation:
TYPES OF NEGOTIATION
Positional Bargaining Intergrative Bargaining
Comptetive and confrontational Also known as interest-based or

approach in which gain is achieved principled negotiation. cooperative and
by imposing loss on the other party. collaborative strategy that aims to
Each party has a pre-determined reach a mutually beneficial outcome
position which they maintain for both parties taking into account
throughout the negotiation, stiving their various interests. Focuses on why
to reach a settlement which reflects the parties want a particular outcome
this position as closely as possible. as well as what it is they want.
Planning and Preparation
Analyze the negotiation scenario to ensure that you have a clear grasp of the issues that require resolving
Research the relevant law and the facts to ensure that you have a thorough grasp of the key information
Take a holistic view of your client’s needs and think of creative ways of reaching these objectives within
the confines of your instructions
Conducting the Negotiation
Make a firm professional start with clear introductions, a summary of the factual situation, and a suggested
agenda. Be flexible to accommodate the needs of the other team.
Listen to the other side as you only have half the story
Acquire information through asking questions. Remember ‘why’ questions give an insight into the aims of
the other side
Try and work around obstacles rather than stopping when confronted try using a range of tactics to avoid or
break deadlock
Try to engage the other side so as to work as a team and form an effective working relationship.
Ensure that you always take an ethical stance, taking care that you do not mislead or misrepresent your
position
Conclude by outlining the proposed agreement to ensure that everyone is clear on its terms
Critical reflection will help you to improve your negotiation skills and enable you to improve upon your
performance
1.8 Session 11: presentation skills


Select a topic with the constraints of your course
Construct an organized and flowing presentation
Understand the importance of practicing the presentation
Reflect upon your performance in order to strengthen future presentations
SUMMARY
There are four main stages in the presentation process.
RESEARCH
Gathering information on the topic of the
presentation and recording it as a set of notes
PREPARATION
Turning the notes into a succession of easy-to-
follow points and preparing visual aids
DELIVERY
Communicating the information to an audience
using a combination of oral and visual delivery
REFLECTION
Critical evaluation of the performance in order to
improve future presentations
RESEARCH
Formulate a topic that takes into account the time frame, availability of material, aim of presentation and
requirements of assessment criteria.
Begin research as early as possible to give time to identify and obtain relevant material.
Strive to modify the research to make it original which will in turn make the presentation more interesting.
PREPARING
Select information carefully to avoid an information overload as this may cause the presentation to run
longer than is meant to.
When having difficulties selecting what information to use, try ranking each point based on relevance to the
presentation topic.
Think carefully about the visual aids to ensure that they enhance the presentation rather than replace or
distract, from the presentation.
Practice! Practice! Practice!
DELIVERY
Adopt a style of delivery that is engaging for the audience. Pay particular attention to timing, pace and
volume of your presentation.
Do not read from a prepared script as this will limit eye contact which is important.
Be prepared to answer questions from the audience. Listen carefully and think about your response.
REFLECTION
You will be required to make presentations all the time as Lawyers so take this opportunity to reflect so as
to become an accomplished presenter.
Be honest with yourself as you reflect.
Be active and precise in seeking feedback on your presentation.
1.9 Session 12: Components and Hierarchy of the courts in Zambia

Summary Notes below
Ndulo, Muna (e.d.) (1984) Law in Zambia Ch. 2
Learning Objectives
Understand the historical development of the Zambian legal system

Understand the process involved to become a Practitioner
Understand the hierarchy of courts in Zambia
Identify the different types of courts
SUMMARY
Historical development of the legal system

Reference: Munalula, Margaret(2004) Legal Process: Cases and Materials pp52-75
Reception of English law

When the European colonialists came to Africa, they brought their laws with them. The English did not
have a code of law that they could use in their colonies and protectorates (such as Zambia).As such, they
applied the common law and English legislation. The imposition of foreign law in the colonies and
protectorates caused a clash with the existing order of law (customary law). Thus, in English speaking
African states, such as Northern Rhodesia (now Zambia), English law applied to the English population,
and customary law applied to the indigenous people.
Customary law was applied to transactions between people from the indigenous population by untrained
judges in the traditional customary law courts. Customary laws could only operate if they were not
inconsistent with local legislation, or contrary to natural justice, equity, and good conscience. English law
applied where customary law was inapplicable. The English law that applied consisted of common law,
equity and statutes that were for the time being in force in England on a particular cut-off date. For
example, in Nigeria statutes that were in force in England up to 1920 were applicable. English decisions
were applied without any cut-off date.
These sources of law were supplemented by local legislation. The received law and local legislation were
applied in courts that were similar to the ones in England. They were presided over by judges who were
drawn from the colonial legal service. Customary law was administered by this court if it was applicable to
a dispute before it. However, customary law courts were prohibited from applying the received law and
local legislation. A decision of a customary court could be appealed or reviewed in a British court. The

mode of introduction of English law in different parts of Africa depended on whether a particular territory
was a settled colony, a conquered or codded colony, or a protectorate.
In settled colonies, the English settlers were presumed to take their English law with them. In conquered
and codded colonies, trusts and protectorates, the law was introduced by express enactment. This was done
by an order in council, or by an act of imperial parliament. English law was also introduced by reception of
English law on a particular topic through a local ordinance e.g. the law of crime. In in some instances,
English statutes were adopted or re-enacted in to local ordinances.
The evolution of the Zambian court system

It is important to understand the history of the Zambian court system, in order to understand it as it exists
today. The Barotseland North Western Rhodesia order in council of 1899 delineated the territorial
boundaries of north western Rhodesia. Among other things, it established a judicial system for the territory.
It provided for the appointment of judges and magistrates, and they applied the received English law.
Customary law was recognised, but it could only be applied in so far as it was not incompatible with the
received law. However, tribal courts were not recognised.
The North Eastern Rhodesia Order in Council of 1900 created a high court with civil and criminal
jurisdiction over all the cases in the territory. Civil cases could be appealed to her majesty in council, and
criminal cases could be appealed to the High Commissioner. In addition, magistrate’s courts were created
and the high court had appellate jurisdiction. Customary law was given limited protection. It could be
applied in so far as it was not repugnant to natural justice, or morality or any order that was made by her
majesty. In civil cases between natives, the high court and magistrate courts were to apply native law. They
had to be assisted by assessors, who advised the courts on native law and customs. However, tribal courts
were not recognised.
Between 1900 and 1911, a number of developments took place. Magisterial districts were created. In 1906,
the north western Rhodesia territory created a high court with two judges.
In 1911 the territories of north eastern and north western Rhodesia were merged to create one territory;
northern Rhodesia. This was done pursuant to the Northern Rhodesia order in council of 1911. This led to
the creation of native courts, pursuant to the Native Courts Ordinance of 1936. They were presided over by
three or four justices that belonged to tribes in the area in which the court was located. In addition, the
magistrate’s court was expanded, and the jurisdiction of the high court was extended to those of the powers
and jurisdiction of the high court in England. In addition, the rules and procedure to be followed in the
administration of customary law were elaborated.
After independence in 1964, some major changes took place in the Zambian Judicial System. A court of
appeal was created for the territory.
Unlike the UK which has a dual legal system namely; Barristers and Solicitors Zambia has a single system.
Solicitors meet and take instructions from clients but do not appear in court. On the other hand Barristers
are employed by Solicitors to argue cases in court. The scenario has however, changed as Solicitors can
now also go to court and argue cases.
In Zambia admission to the bar qualifies one as an advocate to both take instructions from clients and argue
their cases in court.
HIERARCHY OF COURTS IN ZAMBIA
Under Part VI of the Constitution and the Judicature Administration Act, the Judiciary is an autonomous
institution. The Judiciary is headed by the Chief Justice. Article 91 of the Constitution declares that judicial
officers shall be independent, impartial, and subject only to the Constitution and the law. Under the Judicial
Code of Conduct Act of 1999, the ethical conduct of adjudicators is regulated under the supervision of the
Judicial Complaints Authority. Judicial officers are expected to be above family, personal, private,
political, and other interests, and above public clamour or criticism.
The court system is administered by a Chief Administrator appointed by the President under the Judicature
Administration Act. The Chief Administrator’s rank is the equivalent of a permanent secretary in the civil
service. Policies concerning human resources in the Judiciary are set by the Judicial Service Commission,
which employs the staff, appoints local court and subordinate court magistrates, and proposes candidates to

the President for appointment to be High Court judges. The Judicial Service Commission is provided for by
Article 123 of the Constitution; its composition, functions, and procedures are established by the Service
Commissions Act. It is chaired by the Chief Justice and its members include the Attorney General, Chair of
the Public Service Commission, Secretary to the Cabinet, a judge nominated by the Chief Justice, the
Solicitor General, a member of the National Assembly appointed by the Speaker, a representative of the
Law Association of Zambia, the Dean of the University of Zambia Law
School, and a member appointed by the President.
Prior to 1994, the MOJ, at that time the Ministry of Legal Affairs, was responsible for the court
administration functions now performed by the Chief Administrator. Also, prior to 2007, many of the
functions of the Judicial Service Commission to employ and oversee judicial staff were carried out by the
Public Service Commission. The present structure represents a major improvement in the administrative
autonomy of the judiciary.
Local court and subordinate court magistrates are appointed by the Judicial Service Commission to
permanent positions and must retire at the age of 55, after which they may be re-appointed on contract by
the Commission. A proposal to raise the retirement age of magistrates to 65 is under consideration. High
Court judges are appointed by the President on the recommendation of the Judicial Service Commission,
subject to the ratification of the National Assembly. They enjoy security of tenure up to the retirement age
of 65 after which they may be re-appointed by the President on contract. Supreme Court judges are
appointed by the President subject to National Assembly ratification. Once appointed, a judge of the High
Court or the Supreme Court cannot be removed from office until retirement at age 65, nor can his or her
office be abolished. The removal process must comply with constitutional procedure effectuated by a
tribunal.
Financing for the Judiciary comes from funds appropriated by Parliament, as well as court fees. The
Judiciary retains 100 percent of its fees, with 40 percent retained in the districts where they are collected
(stations) and 60 percent remitted to headquarters. Monies raised from court fines may not be retained and
are remitted to the Central Treasury. Salaries of Supreme Court and High Court judges are drawn directly
from the Treasury in accordance with the Constitutional Emoluments Act whereas emoluments of
subordinate and local court magistrates and judicial staff are met through Judiciary appropriations. The
Judiciary makes its own budget within the confines of a ceiling set by the Minister of Finance. Although
the Government retains ultimate responsibility for infrastructure development, the Judiciary budget
includes some infrastructure development and donors may directly support additional capital projects and
programs. The accounts are subject to audit by the Auditor-General and the Judiciary must submit an
annual report to Parliament.
The court structure may be likened to a pyramid with the higher levels of courts exercising supervisory
powers over the lower levels. At the bottom of the pyramid lie 470 local courts, staffed by local court
magistrates and applying customary law. Decisions of the local courts may be appealed to the subordinate
courts, which hear those appeals de novo. There are subordinate courts in 54 districts throughout the
country. Most of the subordinate court magistrates are not members of the bar (lay magistrates).
Increasingly, professional magistrates (lawyers) are found presiding over the subordinate courts located in
major cities. Appeals from the subordinate courts lie to the High Court, which conducts proceedings in all
the provincial capitals. Of equal rank to the High Court is the Industrial Relations Court, a specialized
tribunal that hears labour disputes. At the top of the hierarchy is the Supreme Court, which hears appeals
from the High Court and the Industrial Relations Court. Although based in Lusaka, the Supreme
Court regularly sits also in Ndola and Kabwe.
There are a number of specialized adjudicative institutions with limited jurisdiction that fit into this
hierarchy at various levels or stand alone: The Lands Tribunal is equivalent to the High Court. The Small
Claims Court, still at the pilot stage, is the equivalent of the subordinate court and appeals there from on
points of law only will lie to the High Court. Standing alone are the Municipal Courts, the Revenue
Appeals Tribunal, and the Town and Country Tribunal.
Customary law matters must be commenced in the local courts. The local courts administer customary law
in any matter insofar as such law is not repugnant to natural justice or morality or incompatible with the
provisions of any written law. They may adjudicate customary law offenses equivalent to statutory offenses
and municipal offenses to the same extent. Also, the Local Courts Act permits local courts to try criminal

and municipal cases when so authorized by the magistrate in charge. Local courts are not formally courts of
record, although some of them create summary records of their proceedings.
The subordinate courts are first instance courts of record, following relatively simple procedures. They
handle both civil and criminal cases within their territorial jurisdiction. The Subordinate Courts Act limits
the size of civil claims, the types of offenses, and the penalties that these courts can impose. In addition,
different classes of magistrate handle matters within certain statutory bands. Matters within the subordinate
court’s jurisdiction must be commenced there rather than in the High Court.
The High Court has original and appellate jurisdiction in both civil and criminal matters. Constitutional
matters, civil marriage divorce, and capital offenses such as murder and treason all commence in the High
Court, which has very rigid procedures. The High Court has a commercial division with special judge-
driven procedures to speed up litigation. The Industrial Relations Court has less rigid procedures and
focuses on delivering substantive justice in labour matters. The Supreme Court has appellate jurisdiction
over both civil and criminal appeals from the High Court and the Industrial Relations Court as well as
appeals from the Lands Tribunal. It has original jurisdiction only in the matter of a presidential election
petition. There is no restriction on the right of appeal through the court hierarchy from the local court to the
Supreme Court. However, the costs of litigation rise substantially as a case proceeds up the appellate
ladder.
Pro se appearances by litigants in the higher courts are extremely difficult because of the rigid adherence to
procedure as a prerequisite to the hearing of substantive issues. The appellate court does not hear the matter
de novo or call witnesses, and rarely reviews the lower court’s findings of fact. Rather the appeal focuses
on determining matters of law as presented in the court record. Enforcement of judgments is the
responsibility of the Sheriff, who is appointed by the Judicial Service Commission, and bailiffs also
appointed by the Commission.
The volume of litigation and the workload of the courts are not fully discernable from the available data.
The Registrar’s Office was able to provide information on the number of cases filed and the number of
cases disposed of by the Supreme Court, High Court, Industrial Relations Court, and Subordinate Courts.
However, data were not available on the backlog of cases that will determine to a great extent when the
courts will be able to take up the newly filed cases. No specific information was available about the volume
of work of the local courts. However, one knowledgeable source estimates that the local courts dispose of
90 percent of the adjudications in Zambia. The available data on cases filed and disposed of in 2008 are set
out in Table IV-3 below.
The Constitutional and Statutory provisions of the present court system
The legal basis of Zambia’s present court system is Article 91 of the republican Constitution. It provides as
follows:
91(1) The Judicature of the Republic consists of:
the Supreme Court of Zambia;
the High Court for Zambia;
the Industrial Relations Court;
the Subordinate Courts;
the Local Courts; and
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.
It must also be mentioned that other specialized adjudicating form exists. These include the Lands
Tribunal; the Revenue Appeals Tribunal; the Town and Country Planning Tribunal; and Military Courts (or
Court Marshals)
The Supreme Court of Zambia – Judges and jurisdiction of the Court
Constitutional provisions
92(1) There shall be a Supreme Court of Zambia which shall be

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

(a) the Chief Justice;
(b) the Deputy Chief Justice;
(c) seven Supreme Court Judges or such greater number
as may be prescribed by an Act of Parliament.
(3) The office of Chief Justice, Deputy Chief Justice or of Supreme Court Judge shall not be abolished
while there is a substantive holder thereof.
(4) The Supreme Court shall be a superior court of record, and,

except as otherwise provided by Parliament, shall have all the powers of such a Court.
(5) When the Supreme Court is determining any matter, other

than an interlocutory matter, it shall be composed of an uneven number of Judges not being less than three
except as provided for under Article 41.
(6) The Chief Justice may make rules with respect to the practice and procedure of the Supreme Court
in relation to jurisdiction and powers of the Supreme Court.
93(1) The Chief Justice and the Deputy Chief Justice shall, subject to ratification by the
National Assembly, be appointed by the President.
(2) The Judges of the Supreme Court shall, subject to ratification by the National Assembly, be
appointed by the President.
The Supreme Court of Zambia Act – CAP 25 of the laws of Zambia
This is an Act to provide for the constitution, jurisdiction and procedure of the Supreme Court of Zambia;
to prescribe the powers of the Court; and to provide for matters connected therewith or incidental thereto. It
supplements constitutional provisions on the jurisdiction and other matters related to the Supreme Court.
Constitution and general powers of the Court – sections 3 - 11

3(1) When the Court is determining any matter, other than an interlocutory matter, it shall be composed
of such uneven number of Judges, not being less than three, as the Chief Justice may direct.
(2) The determination of any question before the Court shall be according to the opinion of the
majority of the members of the Court hearing the case.
4. A single Judge of the Court may exercise any power vested in the Court not involving the decision
of an appeal or a final decision in the exercise of its original jurisdiction but –

(a) in criminal matters if any Judge of the Court refuses an application for the exercise of any such
power, the person making the application shall be entitled to have his application determined by the Court;
and
(b) in civil matters any order, direction or decision made or given in pursuance of the powers
conferred by this section may be varied, discharged or reversed by the Court.
5. A Judge of the Court shall not sit on the hearing of an appeal, nor shall he exercise any power
under section four in respect of an appeal-
(a) from any judgment given by himself or any judgment given by any Court of which he was sitting
as a member;
(b) against a conviction or sentence if he was the Judge by or before whom the appellant was
convicted. Judge not to sit on appeal from his own decision
7. The Court shall have jurisdiction to hear and determine appeals in civil and criminal matters as
provided in this Act and such other appellate or original jurisdiction as may be conferred upon it by or
under the Constitution or any other law.
8. The jurisdiction vested in the Court shall, as regards practice and procedure, be exercised in the
manner provided by this Act and rules of Court: Provided that if this Act or rules of Court do not make
provision for any particular point of practice and procedure of the Court shall be –
i. in relation to criminal matters, as nearly as may be in accordance with the law and practice for the
time being observed in the Court of Criminal Appeal in England;
ii. in relation to civil matters, as nearly as may be in accordance with the law and practice for the
time being observed in the Court of Appeal in England.
9. The process of the Court shall run throughout Zambia and any Judgment of the Court shall be
executed and enforced in like manner as if it were a Judgment of the High Court.
10(1) The sittings of the Court shall usually be held at Lusaka or Ndola but may be held at such other
place as the Chief Justice may direct.
(2) The dates of sittings of the Court shall be determined by the Chief Justice
(3) The times of sittings of the Court shall be determined by the Chief Justice or, if he is not a member
of the Court hearing a case, the next senior Judge of the Court hearing the case.
(4) At any sitting, the Court shall, subject to the provisions of this Act, be composed of such members
as the Chief Justice may direct.
11. In all proceedings before the Court the parties may appear in person or be represented and appear
by practitioner.
NOTE: The Supreme Court mainly exercises appellate jurisdiction. However, it has original jurisdiction in
presidential election petitions. Article 41 of the Constitution makes it mandatory that whenever the
Supreme Court is sitting to hear and determine a presidential election petition, the Court has to sit as a ‘full
bench’ i.e. the maximum number of Supreme Court Judges available at any given time.
The High Court for Zambia – Judges and jurisdiction of the court
Constitutional Provisions
94(1) There shall be a High Court for the Republic which shall have,
except as to the proceedings in which the Industrial Relations Court has exclusive jurisdiction under the
Industrial and Labour Relations Act, unlimited and original jurisdiction to hear and determine any civil or
criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this
Constitution or any other law.
(2) The High Court shall be divided into such divisions as may be determined by an Act of
Parliament.

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

Assembly, be appointed by the President on the advice of the
Judicial Service Commission.
(2) The Chairman and the Deputy Chairman of the Industrial
Relations Court shall be appointed by the President on the advice
of the Judicial Service Commission.
(3) The provisions of Articles 98 and 99 shall with the necessary
modifications apply to the Chairman and the Deputy Chairman of
the Industrial Relations Court.
The meaning of “unlimited jurisdiction”
The phrase ‘unlimited jurisdiction’ in Article 94 (1) of the Constitution does not imply that the High Court
can do anything it pleases in the name of having unlimited jurisdiction. In the case of Zambia National
Holdings & UNIP v The Attorney General (1994/1995) ZR, the Supreme Court held that “although
Article 94 of the Constitution gives the High Court unlimited jurisdiction that Court is bound by all the
laws which govern the exercise of such jurisdiction”.
NOTE: Article 95 of the constitution which governs the appointment of puisne judges of the High Court
also governs the appointment of the Chairman and Deputy Chairmen of the Industrial Relations Court. It is
for this reason that puisne judges of the High Court and the Chairman and Deputy Chairmen of the
Industrial Relations Court are regarded as being at the same level.
The High Court Act – CAP 27 of the Laws of Zambia

This is an Act to which provides the law with respect to the jurisdiction and business of the High Court, and
with respect to the officers and offices of the High Court, and otherwise with respect to the administration
of justice and the validation of certain acts.
Constitution of the Court – sections 3 - 5
3 (1) The High Court, as constituted by the Constitution, shall be the

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

Jurisdiction and law – sections 9 - 16

9(1) The Court shall be a Superior Court of Record, and, in addition to any other jurisdiction conferred
by the Constitution and by this or any other written law, shall, within the limits and subject as in this Act
mentioned, possess and exercise all the jurisdiction, powers and authorities vested in the High Court of
Justice in England.
(2) The jurisdiction vested in the Court shall include the judicial hearing and determination of matters
in difference, the administration or control of property or persons, and the power to appoint or control
guardians of infants and their estates, and also keepers of the persons and estates of idiots, lunatics and such
as, being of unsound mind, are unable to govern themselves and their estates.
10 The jurisdiction vested in the Court shall, as regards practice and

procedure, be exercised in the manner provided by this Act and the Criminal Procedure Code, or by any
other written law, or by such rules, order or directions of the Court as may be made under this Act, or the
said Code, or such written law, and in default thereof in substantial conformity with the law and practice
for the time being observed in England in the High Court of Justice.
11 (1) The jurisdiction of the Court in divorce and matrimonial causes and matters shall, subject to this
Act and any rules of Court, be exercised in substantial conformity with the law and practice for the time
being in force in England.
(2) The law and practice for the time being in force for the Probate,
Divorce and Admiralty Divisions of the High Court of Justice in England with respect to the Queen’s
Proctor shall, subject to rules of Court and to any rules made under the provisions of the Colonial and Other
Territories (Divorce Jurisdiction) Acts, 1926 to 1950, of the United Kingdom, apply to the Attorney-
General.
(3) The jurisdiction of the Court in probate causes and matters shall,
subject to this Act and any rules of court, be exercised in substantial conformity with the law and practice
in force in England on the 17th August 1911 (being the commencement of the Northern Rhodesia Order in
Council, 1911).
12 (1) All statutes of the Parliament of the United Kingdom applied to

Zambia shall be in force so far only as the limits of the local jurisdiction and local circumstances permit.
(2) For the purpose of facilitating the application of the statutes referred to in subsection (1), it shall
be lawful for the Court to construe the same with such verbal alterations, not affecting the substance, as
may be necessary to make the same applicable to the proceedings before the Court.
13 In every civil cause or matter which shall come in dependence in the

Court, law and equity shall be administered concurrently, and the Court, in the exercise of the jurisdiction
vested in it, shall have the power to grant, and shall grant, either absolutely or on such reasonable terms and
conditions as shall seem just, all such remedies or reliefs whatsoever, interlocutory or final, to which any of
the parties thereto may appear to be entitled in respect of any and every legal or equitable claim or defence
properly brought forward by them respectively or which shall appear in such cause or matter, so that, as far
as possible, all matters in controversy between the said parties may be completely and finally determined,
and all multiplicity of legal proceedings concerning any of such matters avoided; and in all matters in
which there is any conflict or variance between the rules of equity and the rules of the common law with
reference to the same matter, the rules of equity shall prevail.
17(1) Civil appeals from subordinate courts shall be heard by one Judge except where in any
particular case the Chief Justice shall direct that the appeal shall be heard by two Judges. Appeals in civil
matters
(2) Where an appeal is heard by a bench of two Judges under the provisions of this section and they
are divided in opinion, the appeal shall be dismissed.
vi. Sittings and distribution of business

18 The sitting of the Court shall usually be held in such buildings within Zambia as the Chief Justice
may assign as Court Houses for that purpose, but in case the Court shall sit in any other building or place
within the limits of jurisdiction for the transaction of legal business, the proceedings shall be as valid, in
every respect, as if the same had been held in any such Court House.
19 (1) The Chief Justice may by statutory order under his hand appoint-
(a) the times at which Sessions shall normally be held in Lusaka, Ndola, Kitwe, Livingstone, Mansa,
Solwezi, Kabwe, Mongu, Kasama and Chipata for the trial of persons committed for trial before the Court
by subordinate courts within such Provinces or Districts as may be so appointed;
The Supreme Court and High Court number of Judges
The number of Supreme Court and High Court judges is prescribed by the Supreme Court and High
Court (Number of Judges) Act, CAP of the Laws of Zambia. Currently, the Act provides for 11
Supreme Court Judges and 50 puisne High Court Judges.
Qualifications for appointment as Supreme Court, puisne judge, Chairman and Deputy Chairman of
Industrial Relations Court
The qualifications for appointment as Supreme Court Judge, puisne judge, Chairman or Deputy Chairman
of the Industrial Relations Court are set out in Article 97 of the Constitution. A person may not be
appointed as a Supreme Court Judge unless he/she has been practicing law for a total period of not less than
15 years. In the case of the office of puisne judge, Chairman or Deputy Chairman of the Industrial
Relations Court, the person may not be appointed to such office unless such person has been practicing for
a total period of not less than 10 years. However, a person may be appointed as a Supreme Court Judge,
puisne judge, Chairman or Deputy Chairman of the Industrial Relations Court notwithstanding that they
have practiced law for a total period less than the period required by Article 97(1) in case of each of the
office if the appointing authority is satisfied that, by reason of special circumstances, the requirement of
number of years at the bar be dispensed with.
The Industrial and Labour Relations Court.

The Industrial and Labour Relations Court is established by the Industrial and Labour Relations Act,
Chapter 269 of the Laws of Zambia as amended by Act No. 30 0f 1997. The Act revises the law relating
to trade unions, the Zambia Congress of Trade Unions, employers’ associations, the Zambia Federation of
Employers, recognition agreements and collective agreements, settlement of collective disputes, strikes,
lockouts, essential services and the Tripartite Labour Consultative Council; the Industrial Relations Court;
repeals and replaces the Industrial Relations Act, 1990; and provides for matters connected with or
incidental to the foregoing.
The part of the Act relevant to the Court is part XI. It consists of sections 84 – 97 which provide as follows:
84 The Industrial Relations Court established by section sixty-four of the Industrial Relations Act,
1990, is hereby continued as if established under this Act.
85(1) The Court shall have original jurisdiction in all industrial relations matters.
(2) The court shall have jurisdiction –
(a) to inquire into and make awards and decisions in collective disputes and any other matters under
this Act;
(b) to interpret the terms of awards, collective agreements and recognition agreements;
(c) generally to inquire into and adjudicate upon any matter affecting the collective rights, obligations
and privileges of employees, employers and representative organizations or any matter relating to industrial
relations;
(d) to commit and punish for contempt any person who disobeys or unlawfully refuses to carry out, or
to be bound by, an order made against him by the Court under this Act; and
(e) to perform such acts and carry out such duties as may be prescribed under this Act or any other
written law.
(3) The Court shall not consider a complaint or an application unless the complainant or applicant
presents the complaint or application to the Court-----
(a) within ninety days of exhausting the administrative channels available to the complainant or
applicant; or

(b) where there are administrative channels available to the complainant or applicant, within ninety
days of the occurrence of event which gave rise to the complaint or application
Provided that –
upon application by the complainant or applicant, the Court may extend the period within which the
complaint or application may be presented to Court; and
the Court shall dispose of the matter within one year from the day the complaint or application is presented
to it.
As Amended by section 19 of Act No. 8 of 2008

(4) The Court shall have the jurisdiction to hear and determine any dispute between any employer and
an employee notwithstanding that such dispute is not connected with a collective agreement or other trade
union matter.
(5) The Court shall not be bound by the rules of evidence in civil or criminal proceedings, but the
main object of the Court shall be to do substantial justice between the parties before it.
(6) An award, declaration, decision or judgment of the Court on any matter referred to it for its
decision or on any mater falling within its exclusive jurisdiction shall, subject to section ninety-seven, be
binding on the parties to the matter and on any parties affected.
(7) It shall be within the exclusive jurisdiction of the Court to resolve any ambiguity in any collective
or recognition agreement brought to its notice by any of the parties concerned.
(8) No person shall take part in a lockout or a strike against or in defiance of any award, declaration,
decision or judgement of the Court and any person who contravenes this subsection shall be liable, upon
conviction, to a fine not exceeding two thousand penalty units or to imprisonment for a term not exceeding
twelve months, or to both.
86(1) The Court shall consist of the following members:

(a) a Chairman;
(b) Deputy Chairmen; and
(c) not more than ten members appointed by the Judicial Service Commission.
(2) A person shall not be qualified for appointment as Chairman or Deputy Chairman, unless he
qualifies to be appointed as High Court Judge.
(3) The Chairman and Deputy Chairmen shall be appointed by the President on the recommendation
of the Judicial Service Commission.
(4) The members, other than the Chairman and Deputy Chairmen, shall hold office for a period of five
years but shall be eligible for re-appointment.
(5) The Chairman and Deputy Chairmen shall have the same tenure and security of office as a judge
of the High Court prescribed in the Constitution in the Article relating to tenure of office of judges of the
Supreme and High Court and shall be subject to removal from office for inability to perform the functions
of his office under that Article.
(As Amended by section 20 of Act No. 8 of 2008)
89(1) The Chairman or a Deputy Chairman shall preside over the Court.
(2) The court, when hearing any matter, shall be duly constituted if it consists of three members or
such uneven number as the Chairman may direct:
Provided that the Chairman or a Deputy Chairman may deal with interlocutory matters and deliver a ruling
or make any order in chambers and may deliver any ruling or judgment made by the Court duly constituted.
(3) Subject to subsection (2), the determination of any matter before the Court shall be according to
the opinion of the majority of the members of the Court considering or hearing the matter:
Provided that on a point of law the decision of the Chairman or the Deputy Chairman shall prevail.

(4) A person shall not sit or act as a member of the Court or sit as an assessor with the Court, if he
has any interest direct or indirect, personal or pecuniary, in any matter before the Court.
(5) The sittings of the Court shall be held in such places as the Chairman may direct.
90 (1) The court may, on application, declare who is or should be the holder of any office in a trade
union, the Congress, an association or the Federation.
(2) The Chairman may make rules providing for the procedure to be followed on an application for a
declaration under this section and prescribing any fees which shall be payable on any application.
(3) Without prejudice to the power of the Court to punish for contempt of court, where it has been
declared under subsection (1) that any person is or should be the holder of an office, any other person who
acts or purports to act as the holder of the office contrary to the terms of the declaration, shall be liable
upon conviction, to a fine not exceeding one thousand penalty units or to imprisonment for a term not
exceeding three months, or to both.
91(1) At any hearing before the Court, any party may appear in person or be represented –
(a) by any officer of a trade union or of an association;
(b) by an officer of the Congress or of the Federation; or
(c) by a legal practitioner;
(2) In any proceedings before the Court, the Government may be represented by the Attorney-General
or by any other person authorized by him for that purpose.
94(1) The Court shall deliver judgment within sixty days after the hearing of the case.
(2) Failure to deliver judgment, within the period stipulated in subsection (1) shall amount to inability
by the Chairman or Deputy Chairman to perform the functions of his office and the provisions of the
Constitution in dealing with the inability by a judge to perform his functions under the Constitution shall
apply.
97 Any person aggrieved by any award, declaration, decision or judgment of the Court may appeal to
the Supreme Court on any point of law or any point of mixed law and fact.
The Subordinate Courts
The Subordinate Courts hear the bulk of criminal cases although they have limited sentencing and
jurisdictional powers both in terms of matters that they may hear and also in terms of geographical
coverage. They also hear appeals from the local courts. There are different classes of the Subordinate
Courts. These are Class III, Class II and Class I. All Class III and Class II Magistrates are lay Magistrates
i.e. those who are not legally trained. Appeals from the Subordinate Courts lie to the High Court.
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.
iii. Jurisdiction and law – sections 11 - 22

11 All Subordinate Courts shall be Courts of Record.
12 The jurisdiction vested in Subordinate Courts shall be exercised (so far as regards practice and
procedure) in the manner provided by this Act and the Criminal Procedure Code, or by such rules and
orders of court as may be made pursuant to this Act and the Criminal Procedure Code, and, in default
thereof, in substantial conformity with the law and practice for the time being observed in England in the
country courts and courts of summary jurisdiction.
13(1) Notwithstanding the provisions of any other written law regulating the transfer of proceedings
between courts and subject to any general or special directions of the High Court, it shall be lawful for any
Subordinate Court, in any civil or criminal proceedings and at any stage of the proceedings before
Judgment, to order such proceedings and at any stage of the proceedings before judgment, to order such
proceedings to be transferred for trial to any Local Court having power to entertain 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. Such African customary law shall, save where the circumstances, nature or
justice of the case shall otherwise require, be deemed applicable in civil causes and matters where the
parties thereto are Africans, and particularly, but without derogating from their application in other cases,
in civil causes and matters relating to marriage under African customary law, and to the tenure and transfer
of real and personal property, and to inheritance and testamentary dispositions, and also in civil causes and
matters between Africans and non-Africans, where it shall appear to a Subordinate Court that substantial
injustice would be done to any party by a strict adherence to the rules of any law or laws other than African
customary law:
Provided that –
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.
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 –
(a) in all personal suits, whether arising from contract, or from tort or from both, where the value of
the property, debt or damage claimed, whether as balance of accounts or otherwise is-
(i) where the court is presided over by a principal resident magistrate, not more than five million
Kwacha; [thirty million Kwacha as amended by Act No. 25 of 1998]
(ii) where the court is presided over by a senior resident magistrate, not more than three million
Kwacha; [twenty-five million Kwacha as amended by Act No. 25 of 1998]
(iii) where the court is presided over by a resident magistrate, not more than one million Kwacha;
[twenty million Kwacha as amended by Act No.25 of 1998] and
(iv) where the court is presided over by a magistrate of the first class, not more than six hundred
thousand Kwacha; [ten million Kwacha as amended by Act No. 25 of 1998]
(b) to enforce by attachment any order made by the court;

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

magistrate, six million Kwacha by the year; Repealed by Act No. 25 of 1998 and replaced with a new
section which increases the value of property administered.
(d) do make any order which may be made by a court of summary jurisdiction under the Summary
Jurisdiction (Separation and Maintenance) Acts, 1895 to 1925 and section eleven of the Matrimonial
Causes Act, 1937, of the United Kingdom:
Provided that for the purposes of this section –
paragraph (c) of section five of the Summary Jurisdiction (Married Women) Act, 1895, of the United
Kingdom shall be read as if for the expression “such weekly sum not exceeding one thousand kwacha or
such monthly sum not exceeding four thousand Kwacha” there were substituted the expression “such
weekly sum not exceeding twenty thousand kwacha or monthly sum not exceeding one hundred thousand
kwacha”, and
any reference to the term “married woman” or “wife” in the Summary Jurisdiction (Separation and
Maintenance) Acts, 1895 to 1925, Matrimonial Causes Act, 1937, and Married Women Maintenance Act,
1920 shall be read as a reference to “spouse”;
Provided further, that the allowance payable in respect of the spouse may be increased by fifty per centum
of the amount by which the earnings or other income of the other spouse exceed two hundred thousand
Kwacha per month so that the total allowance shall not in any event exceed one hundred and sixty thousand
Kwacha per month:
Provided that a Subordinate Court of the first class shall not have jurisdiction in or cognizance of any suit
or matter of the nature following, that is to where:
the title to any right, duty or office is in question;
the validity of any will or other testamentary writing or of any bequest or limitation under any will or
settlement is in question;
the legitimacy of any person is in question; or
the validity or dissolution of any person is in question.
23 If, in any civil cause or matter before a Subordinate Court, the title to any land is disputed, or the
question of the ownership thereto arises, the court may adjudicate thereon, if all parties interested consent;
but, if they do not all consent, the presiding magistrate shall apply to the High Court to transfer such cause
or matter to itself.
58(1) Any court exercising appellate jurisdiction under the provisions of this Act may exercise
any of the following powers:
(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.
The Local Courts Act, CAP 29 of the Laws of Zambia
This is an Act to provide for the recognition and establishment of local courts, previously known as native
courts, to amend and consolidate the law relating to the jurisdiction of and procedure to be adopted by local
courts; and to provide for matters incidental thereto.
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).
iii. The jurisdiction of and the law administered by local courts

8 Subject to the provisions of this Act, a local court shall have and may exercise, within the
territorial limits set out in its 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.
Security of tenure and retirement of judges1
Some commentators believe that in order to ensure the independence and impartiality of the Judiciary, the
security of tenure of Judges must be guaranteed by the Constitution. They also believe that the conditions
of service in terms of how the salary, pension, gratuity, any other allowances and conditions of service of
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,
1
These notes are extracted from chapter 4 of the Mung’omba Constitutional Review Commission Report
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 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.
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.”
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 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 a hierarchy of appeals,
ending in the Supreme Court, which is the final court in the land.
Zambian constitutional Provisions on the autonomy and independency of the judiciary

The Zambian constitution has provisions on the independence and autonomy of the judiciary. Article 91(2)
provides that “the Judges, members, magistrates and justices, as the case may be, of the courts mentioned in
clause (1) shall be independent, impartial and subject only to this Constitution and the law and shall
conduct themselves in accordance with a code of conduct promulgated by Parliament”. Meanwhile, Article
91(2) provides that “the Judicature shall be autonomous and shall be administered in accordance with the
provisions of an Act of Parliament”.
As contemplated by Article 91(2) of the constitution, the Judicature Act, Cap. 24, of the laws of Zambia
was enacted in 1994 with its objectives, in the main, as to provide for the administration of courts and to
confer on the Judicial Service Commission the power to appoint staff of the Judicature.
The question that several commentators have been asking themselves is: Have these constitutional and
legislative provisions made the Zambian judiciary autonomous and independent?
According to the Mung’omba CRC, the major weakness of the Judicature Administration Act is that
instead of giving effect to the autonomy of the Judiciary as stipulated in the Constitution, the Act “clearly
and loudly makes the Judiciary subservient to the presidency in matters related to administration in general,
the appointment of certain members of the Judicature and staff, terms and conditions of service, and the
exercise of disciplinary powers”. Also in direct conflict with the constitution and the principles of
autonomy and independence of the judiciary is Section 5 of the Service Commissions Act, Cap. 259,
which subjects the Judicial Service Commission to such general directions as the “President may consider
necessary and requires the Commission to comply”.
It is no wonder that the majority view is that something more needs to be done in addition to these
constitutional and legislative provisions to make the Zambian judiciary truly autonomous and independent.
More importantly is the manner of funding the judiciary and that of appointment, promotion and removal of
judges from their office along with the determination of their conditions of service.
The judiciary itself, in its submissions to the Mung’omba CRC, made it very clear that the cry of the
judiciary was that the judiciary’s allocation from the national budget ought to reflect its independent status
and further that the allocation by Parliament ought to be reasonable in proportion to the allocations given to
the other two arms of the Government. This cry was recently repeated by His Lordship, Chief Justice
Ernest Sakala in his speech at the opening of the Lusaka High Court sessions for 2011. To use his own
words:
“Over the past few years, the trend has been that less than 80 percent of the approved budget is released.
This has no doubt negatively affected our projects and programmes and we have even been unable to fulfil
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” 2.
The present problem, in terms of funding, is that the budget of the Judiciary, like that of any other
Government institution, is subject to superintendence and prescription by the Ministry responsible for
finance before submission of the estimates of revenue and expenditure by the Government to the National
Assembly. This is on the premise that the Ministry is in control of Government revenue and expenditure.
Once approved by Parliament, only a portion is released and this is done through the Ministry in charge of
finance.
Notwithstanding the foregoing, it must be acknowledged that, by and large, the Zambian courts have
maintained their integrity and good conduct. This is despite the fact that they are administered by human
beings and are therefore susceptible to weaknesses. It is for this reason that an important corollary to the
principle of independence and impartiality of the judiciary is that it must not be susceptible to abuse by
judicial personnel. This principle is not a shelter to incompetence, prejudice and abuse by judicial personnel
at any level of the judicial structure. Even when the right of appeal ends in the Supreme Court, the finality
of the process should achieve justice. But finality in the Supreme Court does not mean that this Court is at
liberty to arrive at any decision, simply because such decision cannot be overturned. The citizen is entitled
2
The Post, No. 5191, Tuesday January 4, 2011, page 4.
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.
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.
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.
ORDER 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.
Admission to the bar

One has to obtain a bachelor of laws degree from a recognized university. Then proceed to the Zambia
Institute of Advanced Legal Education (ZIALE). Upon completion they must then file a petition before to
the Chief Justice for admission to the bar. Once the petition is accepted, then the petitioner is entered in the
roll of legal practitioners kept by the Registrar of the High Court. The admission entitles an advocate to
practice in the subordinate courts and high court but can only appear before the Supreme Court after three
years of practice.
The Law Association of Zambia (LAZ)

All advocates are required to affiliate with LAZ which acts as a watchdog and regulatory authority on all
advocates and issues practicing certificates on admission renewable annually. LAZ is also the disciplinary
authority for all advocates. Advocates guilty of gross misconduct may have their names removed from the
roll of practitioners under s 22 of the Legal Practitioners’ Act cap 30 of the Laws of Zambia (see case of
Re: Bernard Mbaalala Munungu, a Practitioner and the Legal Practitioners’ Act) (1993) ZR 48 and
Mbaalala B. Munungu V the Legal Practitioners’ Disciplinary Committee (1992) ZR
State advocates
These are legal practitioners employed by the Government to prosecute criminal cases and to represent the
Government in civil cases. Traditionally, state advocates fell under three sections within the Ministry of
Justice namely; Attorney-General’s Chambers, the Director of Public Prosecutions (DPP) and Legal Aid.
In recent times the DPP has been given some level of administrative autonomy to operate as the Public
Prosecutions Authority while Legal Aid has been constituted into a Board.
The DPP has authority to appoint Public Prosecutors from various Government and quasi Government
bodies who are not advocates to prosecute minor criminal offences before subordinate courts.
1.10 Session 13: Introduction to Alternative Methods of Dispute Resolution

1 Required Reading: Notes below
2.14.2. Learning Objectives

SUMMARY
ALTERNATIVE METHODS OF DISPUTE RESOLUTION (ADRs)
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.
Advantages of adjudication (litigation)

Litigation offers several advantages in relation to the resolution of disputes. The advantages include the
following:
Matters are heard and determined by persons who are impartial, independent and with no interest
whatsoever in the subject matter of the dispute;
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;
Through the doctrine of res judicata, litigation brings disputes to finality;
Through the doctrine of precedent, litigation contributes towards the development and growth of law;
Litigation creates stability in society by preventing aggrieved persons from taking the law in their own
hands.
Disadvantages of adjudication (litigation)
Although it has several advantages, litigation equally has some disadvantages. The disadvantages include
the following;
Litigation is costly i.e. it is not economical when compared to ADR methods;
Litigation is time – consuming i.e. matters take long to be concluded in the courts of law;
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;
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 spiralling 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.
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.
Negotiation, mediation, and conciliation are non-binding and depend on the willingness of the parties to
reach a voluntary agreement. On the other hand, Arbitration may be either binding or non-binding. Binding
arbitration produces a third party decision that parties to the disputes must follow even if they disagree with
the result, much like a judicial decision. Non-binding arbitration produces a third party decision that the
parties may reject.
8.5 Four elements essential for successful ADR
There are four elements essential to the successful use of any ADR method. These are:
existence of an issue in controversy;
voluntary agreement by both parties to participate in the ADR process;
voluntary agreement by both parties on the type of ADR method to be used in lieu of formal litigation;
Participation in the process by officials of both parties who have authority to resolve the issue in
controversy.
8.6 Characteristics of ADR methods

Although the characteristics of negotiated settlement, conciliation, mediation, arbitration, and other forms
of community justice vary, all share a few common elements of distinction from the formal judicial
structure. These elements permit them to address development objectives in a manner different from
judicial systems. They include the following:
Informality
ADR processes are less formal than judicial processes. In most cases, the rules of procedure are flexible,
without formal pleadings, extensive written documentation, or rules of evidence. This informality is
appealing and important for increasing access to dispute resolution for parts of the population who may be
intimidated by or unable to participate in more formal systems. It is also important for reducing the delay
and cost of dispute resolution. Most systems operate without formal representation.
2) Application of Equity
ADR processes are instruments for the application of equity rather than the rule of law. Each case is
decided by a neutral third party, or negotiated between parties to the dispute themselves, based on
principles and terms that seem equitable in the particular case, rather than on uniformly applied legal
standards. ADR systems cannot be expected to establish legal precedent or implement changes in legal and
social norms. Thus, ADR systems tend to achieve efficient settlements at the expense of consistent and
uniform justice.
3) Direct Participation and Communication between parties

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

The benefits of ADR include the following:
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;
Expedited procedures: All ADR procedures are less formal. This prevents unnecessary delays and
expedites the resolution process.
Active participation of the parties: Parties to the dispute actively participate in the ;
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;
Greater Flexibility in the Terms of Settlement: ADR procedures provide an opportunity for parties to
craft settlements that can better meet their combined interests than would an imposed settlement by a third
party. This is because ADR enables parties to avoid the trap of deciding who is right or who is wrong, and
to focus on the development of workable and acceptable solutions. ADR procedures also provide greater
flexibility in the parameters of the issues under discussion and the scope of possible settlements.
Participants can "expand the pie" by developing settlements that address the underlying causes of the
dispute, rather than be constrained by a judicial procedure that is limited to making judgments based on
narrow points of law;
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.
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.
1.11
1.12 Session 14: course review

1.13 Session 15: STUDY WEEK
1.14 Session 16: FINAL EXAM

3. Course Articles
CHAPTER 3
THE ZAMBIAN JUDICIAL SYSTEM:

A REVIEW OF THE JURISDICTIONAL LAW
Roger Purdy
Local courts
The Zambian judicial system comprises approximately 460 courts, arrayed, basically, in a hierarchy
with four primary levels. At the base, stand 415 local courts, presided over by 8 senior presiding justices,
1
and 407 presiding justices, assisted by 428 ordinary justices. Under the Local Courts Act, the judicial
2
service commission appoints the local court justices, a local courts' adviser, and as many local courts
3
officers as it sees fit. The Local Courts' Adviser, officers and other officers authorized by the chief
justice by authority of s 2(1) of chapter 45 of the Laws of Zambia generally act as supervisors of the
local courts.
The local courts are divided into Grade A and Grade B courts, and their jurisdiction is limited according to the
4
grade which the court warrant assigns to them. As to civil jurisdiction, a Grade A court may exercise jurisdiction
5
to determine claims not exceeding K200, a Grade B court may hear claims up to K100 in value. These limits as to
6
civil claims do not appear to apply to inheritance or matrimonial claims under customary law. A local court may
7
not hear matrimonial or inheritance claims not based on customary law. The law provides that a local court may
not exercise jurisdiction over administration or distribution of an intestate deceased's estate and must transfer such 8
a case to the High Court if a party or the administrator general has claimed that customary law should not apply.
The High Court in a case in which these matters arose, explained that this rule only in effect suspended the power9
of the local court, precluding it from exercising jurisdiction until the High Court has ruled on the application. Thus,
this section does not prohibit the High Court from ordering that the estate be handled according to customary law
10
in a local court. To rule otherwise, of course, would allow a party to oust jurisdiction from the local court by
simply filing an application with the High Court. The High Court, or the local court, may however, transfer such a
11
case on its own initiative to the High Court if it deems it is appropriate. Legislative restrictions on the laws which
the local courts may enforce and apply further define and limit the jurisdiction of these courts. Local courts are
primarily authorized to apply and enforce customary law, and by-laws and regulations promulgated under the Local
Government Act. In addition, they may apply and enforce such written laws as are specified by relevant statutory
12
instruments.
As to criminal jurisdiction, local courts may try specified offences under written laws, but not
13
crimes under customary laws, although similar offences may exist under the Penal Code. No local
court may try an offence in consequence of which death is alleged to have occurred, or which may
14
be punished upon conviction with death. As to sentencing in general, a grade A court may not
impose a fine exceeding K100, an imprisonment sentence of more than one year, or corporal
punishment of more

68 LAW IN ZAMBIA
than 12 strokes of the cane. For Grade B courts, the limits are: fines must not exceed K50,
15
imprisonment may be no more than 6 months, and only six strokes of the cane may be given.
16
Foreign written laws, in general, are not enforceable by Zambian local courts, but interpretation of
the provisions allowing enforcement of "African customary law" has allowed application by
Zambian local courts of customary laws of tribes native to foreign countries where the court has
found that a Zambian resident before the court has retained, and continued to live by, such a foreign
17
customary law after migrating to Zambia.
The Local Courts Act also specifies limits on the territorial jurisdiction of a local court. As to most
civil matters, the court may hear a case if the defendant resided within the court's jurisdiction, or if
the cause of action arose within the court's jurisdiction. A court may only hold proceedings
adjudicating rights over real property, however, if the court has territorial jurisdiction over the situs
18
itself. For exercise of criminal jurisdiction the charge must claim the accused committed the offence, or was
19
an accessory to an offence "wholly or in part" within the court's jurisdiction. It seems, according to this
section, that an accessory may be tried only where his own acts, which give rise to the charge of accessory,
were carried out, not necessarily where the principal offence occurred. This, if true, could give rise to the
anomalous and inefficient situation where a principal is tried in one court, but accessories assisting in carrying
out the same crime would have to be tried in a different court. No reported cases considering this problem
have appeared, and the provision conflicts with, and perhaps thus is overridden by, provisions in the Criminal
Procedure Code outlining division of jurisdiction and venue preference and suggesting different results from
20
the clauses of the Local Courts Act.
Recognition of the extensive problem of scarcity of legal training and experience has shaped certain
aspects of the administration of justice in local courts. For example, the Local Courts Act discards
strict adherence to separation of powers at the local level. A member of the bench in a local court
may sit and try an offence arising from a by-law or rule in the making of which he or his colleagues
21
participated. Moreover, serving diverse ends of maintaining efficient, inexpensive, and somewhat
traditional judicial processes, and again perhaps reflecting the scarcity of legal training, the Act
prohibits use of legal representation, except in specified circumstances, especially for defending
22
against criminal charges.
Subordinate Courts
At the next higher level, Zambia has 42 subordinate courts, presided over by 7 senior resident
magistrates, 12 resident magistrates, 22 Class I magistrates, 30 Class II and 25 class III magistrates,
23
appointed by the judicial service commission. The jurisdiction of a subordinate court depends on
its class rating, and the type of magistrate sitting. For example, a subordinate court designated class
I, with a resident magistrate or Class I magistrate sitting, may hear claims in personal suits arising
from tort, contract, or both, where the amount in controversy does not exceed four hundred
24 25
kwacha. If, however, a senior resident magistrate sits, the limit rises to eight hundred kwacha.
The jurisdiction varies between classes, not only in amount, but as to types of action triable as well.
Only a first or second class subordinate court may entertain an application

The Zambian judicial system 69
for an ejectment order; enforcement of attachments is reserved to first and second class courts; and while
all subordinate courts may hear certain actions grounded in marriage and family law, certain other types
26
of cases in those areas are restricted to the higher subordinate courts. Somewhat unexpectedly, the
Criminal Procedure Code also grants to subordinate courts a limited type of civil jurisdiction for
awarding a (non-appealable but apparently reviewable under revisory jurisdiction) judgement for the
27
value of property illegally obtained by a public service employee. This grant has been read narrowly,
however, to allow only the award itself; an order enforcing the award, by attachment, for example,
28
cannot be made under this particular grant of authority.
Provisos elsewhere in the laws make other grants of civil jurisdiction. The Landlord and Tenant (Business
Premises) Act, Number 34 of 1971, for example, provides for subordinate courts to adjudicate in certain
commercial rental cases where the annual rent of the premises does not exceed K3,600. A close reading of this
Act, however, shows that the types of action and orders envisaged are distinguishable from the civil powers granted
in the Subordinate Courts Act regarding personal suits and recovery of land. It has been held, thus, that the K3,600
limit in the Landlord and Tenant (Business Premises) Act does not enhance the jurisdiction granted in the 29
Subordinate Courts Act, regarding the types of suits allowed there, beyond the limits imposed by the latter Act.
The Rent Act, No. 10 of 1972, also gives subordinate courts jurisdiction in certain actions regarding rent payments
(again limited to premises for which the annual rent does not exceed K3,600). The permissive language in Cap. 1,
article 29 permitting transfer of fundamental rights cases to the High Court implies, by its permissiveness, that
such cases may be heard in a subordinate court as well, although it may be that such suits would still be governed
30 31
by the monetary limits in Cap. 45. Subordinate courts may not issue writs of habeas corpus, nor does the
jurisdiction extend to include a suit in which a title to office, validity of a will and related matters, nor validity of
32
a marriage other than a customary law marriage, is in question. Moreover, if title to land is in dispute, a subordinate
33
court may only adjudicate the matter with the consent of all parties. These restrictions, however, may be
34
superseded by orders issued by the chief justice, increasing the jurisdiction of a subordinate court.
Criminal jurisdiction also varies according to the type of magistrate and class of court. The primary
restrictions are stated in terms of sentencing limits. For example, a Class I magistrate may impose
sentences of imprisonment up to five years in length while lower ranking magistrates may impose
35
no more than three years imprisonment. These sections not only limit the sentencing power of the
courts, they restrict as well the types of offence which the court may try. Where a minimum
sentence imposed by statute exceeds the maximum sentencing power of a court, it has been held
36
that the court lacks jurisdiction to try the offence. The Criminal Procedure Code also prescribes
limits beyond which, even though the magistrate has power to sentence an offender, a sentence
37
given must be referred to the High Court for confirmation. Similar provisions appear regarding
38
imposition of fines. These provisions do not affect the jurisdictional power of the court to hear the
offence, they merely affect sentencing and execution of the sentence. The Criminal Procedure Code
provides for the chief justice, by designating particular offences, to exclude them from a
39
subordinate court's jurisdiction, or reserve them for trial only by a senior resident magistrate.
Murder and treason are statutorily

70 LAW IN ZAMBIA
barred from trial before a subordinate court, unless special authority is given by the High Court
40
for such a trial.
Even where the law permits a subordinate court to exercise jurisdiction, the court may decline to
41 42
do so and commit the accused for trial before the High Court, subject to the High Court's approval.
Where it appears, in spite of such a committal, that a subordinate court could suitably dispose of
43
the case, the director of public prosecutions may order that case returned to a subordinate court. A
subordinate court may hold other criminal related proceedings and render appropriate decisions as
well. For example, a subordinate court may, if it deems it appropriate, require a bond, with or
without sureties, for keeping the peace and ensuring good behaviour, and may imprison a person
44
failing to give security as ordered.
A subordinate court is empowered to hold a preliminary enquiry, whether it could ultimately have
45
tried the case or not, before committing the accused to trial before the High Court. In general, these
preliminary inquiries normally obtain evidence for review, and determine if the accused should, in
46
fact, be committed to the High Court for trial, in the light of evidence adduced. In addition,
however, the subordinate court has power to dispose of a case summarily (without committal to the
High Court) if, after the preliminary inquiry, it appears the offence with which the accused should
properly be charged is within the court's jurisdiction, and the magistrate deems it appropriate so to
47
act. The summary adjudication is, according to this law, subject to the provisions of Part VI of the
Criminal Procedure Code, which outlines rights to call witnesses, cross-examine the opposite
48
party's witnesses, etc. Section 232 of the Code, however, seems to imply a different set of rights
in a summary adjudication procedure. According to section 232, if, at the close of evidence the
court proposes to deal with the case summarily, the accused may still cross-examine any
49
prosecution witnesses he has not already examined. The specific inclusion of this particular right
50
would seem, notwithstanding the reference to Part VI's rights, to exclude other related rights. At
the least, it would seem to exclude recalling of a prosecution witness already cross-examined in
part. Thus, if the accused wishes to cross-examine a prosecution witness as to any point in the
preliminary inquiry, he must examine that witness completely as to every point, and reveal any
possible defences arising from that witness's testimony, or risk being barred from raising those
51
points later, should the court choose to adjudicate the matter summarily.
The Subordinate Courts Act says that each court may normally exercise its jurisdiction only in the
52
area for which it is constituted. The High Court Act, notwithstanding that restriction in the
Subordinate Courts Act, allows the High Court to transfer a case to a subordinate court, regardless
of its district, from the High Court or another subordinate court, and for that purpose its transferee
53
court's jurisdiction is considered as extending throughout Zambia. The same section of the High
Court Act, however, also says that such a transfer does not enlarge the civil jurisdiction limits
placed on subordinate courts by Part HI of the Subordinate Courts Act, which speaks of subject
54
matter, and territorial jurisdiction. These restrictions do not seem to apply to transfer of criminal
cases across district lines. As to civil cases, the High Court must have

intended to retain only the subject matter restrictions in Part III of the Subordinate Courts Act; although
the language is not clear, because the retention of the territorial restrictions would defeat the entire
transfer provision. This interpretation, that the reference to Part III only means the subject matter
provisions, is consistent as well with the liberality of Order XIV of the Subordinate Courts (Civil
Jurisdiction) Rules, which allows for trials conducted in the non-preferred venue under certain
55
circumstances.
These rules suggest, generally, that a civil case should be brought where the defendant or one of
the defendants resides or carries on business, or, if the case arises from a contract, where the
contract ought to have been performed. A suit commenced in the wrong district, however, may
continue and be tried unless either the magistrate directs that it cease, or a defendant objects, in
56
which case the High Court may order a transfer.
Presumably, as it contains no exclusory clause to the contrary, section 4 of the Subordinate Courts
Act 57 also applies to criminal jurisdiction in subordinate courts. The Criminal Procedure Code, also
58
controlling exercise of criminal jurisdiction, expresses further preferences for the district in which
trial should be held. In most circumstances, the law prefers a district in which the offence was
wholly or partly committed, in which the consequences of the offence ensued, through which the
accused passed if the offence occurred on a train, or in which the accused is apprehended, is in
59
custody, or answers a summons. Rules regarding transfer of cases between subordinate courts and
enlargement of jurisdiction authorized by the High Court, also imply that these rules are more than
mere venue preference, and amount to normal jurisdictional limits. A magistrate may not transfer
a case to another subordinate court lacking jurisdiction under these rules, and must send an accused
60
found in his district to a court in whose district the offence is alleged to have occurred. The fact
that the High Court is specifically empowered to authorize a court to try a case otherwise outside
61
its territorial limits also suggests that these restrictions amount to normal jurisdictional limits. A
later section of the Code, however, in effect seems to reduce the district limitations to no more than
suggested preferences. Section 352, gives considerable discretion to courts to overlook inept or
erring prosecutors, it is stated that no "finding, sentence or order" can be set aside merely on the
ground that the proceeding took place or the decision was reached in the wrong district, "unless it
62
appears that such error has in fact occasioned a substantial miscarriage of justice".
High Court
The Constitution and the High Court Act provide for the existence of a High Court of Judicature in
63
Zambia. This court has an establishment of 12 puisne judges in addition to the chief justice who
65
sits ex officio** In addition, commissioners may act temporarily with the powers of a puisne judge.
The president, acting in accordance with the advice of the judicial service commission, appoints
66
the puisne judges and any commissioners of the High Court. The Constitution gives the High
Court, except for matters reserved to the Industrial Relations Court, "unlimited jurisdiction to hear
and determine any civil or criminal proceedings under any law, and such jurisdiction and powers
67
as may be conferred on it by this Constitution or any other law". The High Court Act, adds that,
within specified limits, the High Court may also exercise "all the jurisdiction, powers

72 LAW IN ZAMBIA
68
and authorities vested in the High Court of Justice in England". Presumably this means with such
69
modifications as would be required to apply in Zambia.
In addition to these broadly stated powers, various other laws, and provisions in the Constitution specify particular
types of actions the High Court may hear. The High Court Act states that the court has jurisdiction for "judicial
hearing and determination of matters in difference, the administration or control or property or persons ..." and
appointing or controlling guardians or keepers of the persons or estates of infants, idiots, lunatics and others "unable
70
to govern themselves or their estates". The court is also given broad jurisdiction in the areas of probate and
71
marriage law. The High Court may hear claims involving alleged past, present and future violations of civil rights;
72
even if such issues arise before a subordinate court, the matter will likely be transferred to the High Court. The73
court may also determine challenges to national assembly elections, from which determination no appeal lies. The
Criminal Procedure Code provides the High Court with original jurisdiction to grant an award in favour of the
attorney-general for the value of property illegally obtained by a public service employee, although enforcement
74 75
must be ordered under other authority. Numerous other acts refer to the High Courts' original jurisdiction. The
criminal jurisdiction of the High Court is also stated in broad terms. The Criminal Procedure Code says, subject to
other provisions therein, (of which none appears to significantly limit the court's powers to hold trials), the court
76
may try any offence under the Penal Code and any other written law. Normally, a preliminary inquiry in a
77
subordinate court may precede a High Court trial, but the chief justice, by issuing a statutory order, or the director
78
of public prosecutions by issuing a certificate, may bring a class of cases or a particular case before the High Court
for summary adjudication without a preliminary inquiry. Certain offences, generally more serious ones, are triable
79
only in the High Court. Even if a particular case is triable in a subordinate court, that court may commit the accused
80
for trial before the High Court or the High Court may direct that a case before a subordinate court be transferred
81
to the High Court.

The broad jurisdiction thus enjoyed by the High Court could easily lead to overcrowding in that
court, and "forum shopping" by clever litigants—selecting one of the courts which appears more
likely to render a favourable judgement. Possibly to counteract this and ensure more efficient use
of the higher courts resources, the High Court is also given extensive powers allowing it to decline
82 83
jurisdiction and remit a case to a subordinate court, or a local court, with appropriate jurisdiction
to try the matter. The High Court, and subject to other limitations provided by law, Zambian courts
in general, have no jurisdiction to try crimes committed outside Zambia. The case of The People v
8
Roxburgh, * provides an interesting consideration of this problem in the context of a bigamy trial.
The accused contracted a legal marriage inside Zambia, then contracted a second, bigamous,
marriage outside Zambia, there was no crime committed either wholly or partly within Zambia as
contemplated by the law. Rather, the entire crime was contained in the Act of contracting the second
85
marriage, which occurred outside Zambia. But Cap. 160, s. 65 refers ambiguously to territorial
jurisdiction in that it states that any court may make an order in a case brought before it where a
person is charged with an offence committed within Zambia, or treated as such, if the person is
86
found within the court's jurisdiction.

Supreme Court
The Supreme Court of Zambia, created by article 107 of the Constitution and the Supreme Court
87
Act, has an establishment of 5 judges, including the chief justice and the deputy chief justice. The
president may appoint these judges, unlike the lower court judges, without consultation with the
88
judicial service commission.
The Supreme Court of Zambia Act, No. 41 of 1973, provides for grants of appellate and original
jurisdiction to the Supreme Court: "[the] court shall have jurisdiction, to hear and determine appeals
in civil and criminal matters as provided in this Act and such other appellate or original jurisdiction
89
as may be conferred upon it by or under the Constitution or any other law". While this section
allows granting of original jurisdiction, the Supreme Court, replacing the Court of Appeal, acts
under present law primarily as an appeal court—the final court of appeal in Zambia for most
90
matters. Therefore the Supreme Court will be discussed further below in terms of its appellate
jurisdiction.
Appellate Jurisdiction
Local courts and jurisdiction
Even the local courts, at the base of the judicial hierarchy, possess certain supervisory powers; a
local court may hear appeals from the decision of an adjudication committee under the Reserve and
Trust Land (Adjudication and Titles) Act, Cap. 295, section 9. In general, however, the first forms
of appellate and supervisory jurisdiction lie in the hands of "authorized officers" (local courts
91
officers or subordinate court magistrates so designated by the chief justice) and the Local Courts'
Adviser. If no valid appeal has been entered, and no application for leave to appeal out of time has
been made, one of these supervisory officers may normally order records from a court within his
jurisdiction, require production of evidence and hear submissions, then reverse the decision of the
lower court, quash a conviction and order a trial de novo before the same or another local court, re-
hear the case himself in some instances, or refer the case to a subordinate court for sentencing
beyond the local court's powers. Before varying an order to a party's prejudice however, the officer
92
must give that party an opportunity to be heard. Moreover, general transfer powers allows an
authorized officer to transfer a case to a local court of a different venue or to a subordinate court,
after commencement of the case but before judgement (but such a decision itself is subject to
93 94
appeal). A local court may order a transfer, also subject to appeal and to statutory limitations. To
ensure adequate opportunity for supervision, the Local Courts Act requires a local court to comply
with requests by an authorized officer asking the court to submit appropriate reports and records in
95
such form as the officer requires.
As to normal appellate procedure, any party aggrieved by a local court decision, judgement or order
not already reviewed, or if the case has been reviewed by a local court officer or a third class
magistrate, may appeal to a first or second class subordinate court. If the decision has been reviewed
96
by any other authorized officer, the appeal lies instead to the High Court. A party may further
appeal a decision rendered by an appellate court under these provisions. If the appellate decision
was rendered by a subordinate

74 LAW IN ZAMBIA
court, the second appeal lies to the High Court, if the first appeal was to the High Court, the second
97
goes to the Supreme Court.
The Act prohibits an authorized officer from revising a decision if application to appeal the decision
out of time has been made, or if a valid appeal has been entered, unless that appeal has been
98
"withdrawn by reversing, amending or varying in any manner such judgement, order or decision".
This section does not speak of revision of an appeal dismissed by the appellate body. The High
Court in Kudakwashe v The Attorney-General," considered such a situation. There a magistrate had
dismissed an appeal from a custody order made by a local court. Some five weeks later, after
apparently interviewing the appellant in the same case, the magistrate attempted to exercise review
jurisdiction under section 54 of the Local Courts Act, and ordered the appellant to prison for
contempt. The High Court, declared this review and consequent committal order a nullity.
Unfortunately, the clarity of this declaration, and the true status of the lower court's decision, were
cast into some doubt, as the High Court then proceeded to "set aside" the committal order, which
it need not have done if the order was indeed a nullity, and which therefore suggests that the High
Court in fact exercised its revisory power to set aside an erroneous judgement within the
subordinate court's powers.
Due perhaps to the esoteric nature of customary law and judicial proceedings in the Western
Province, no appeal lies from a local court adjudication of customary law rights to land in that
100
province, unless the Saa-Sikalo Kuta (a local court so designated) allows that appeal.
Regarding appeals from a local court decision, the Local Courts Act specifies the standard an appellate
court should use for determining whether or not to modify the decision. It says that no proceeding
warrant, process, order, or decree may be varied or declared void "solely by reason of defect of
procedure or want of form, but every appellate court or person exercising power of revision shall decide
101
all matters without undue regard to technicalities".
Finally, it should be noted that the law states every justice in a local court is subject to orders and
102
directions promulgated by the High Court.
The High Court
The subordinate courts, in general, are subject to the supervision and control of the High Court as to
103
most matters. The basic appeal provisions in the Subordinate Courts Act provides for appeal to the
High Court of any "judgement, order or decision" of a subordinate court whether interlocutory or
final. If the order is ex parte, by consent, or as to costs only, appeal may only be taken with the
104
leave of the subordinate court or the High Court. The "judgement, order or decision" referred to
105
includes a decision of the subordinate court in its appellate jurisdiction.
Normally one judge hears an appeal to the High Court; the chief justice may direct, however, that
106
two judges sit, in which case they must dismiss the appeal unless they each agree to allow it. The
107
High Court may waive procedural requirements as to time, etc. that otherwise might bar an appeal.
A subordinate court may reserve a question of law for determination by the High Court on a case
stated, and the lower

court may render its own judgement subject to the higher court's ruling on the point of law reserved
108
for it. From the wording of Cap. 45, section 30, it would appear that the reservation of a question
under this authority does not affect appeal rights as allowed by the Subordinate Courts Act. This
read literally might suggest that an aggrieved party could appeal to the High Court after a
subordinate court judgement, perhaps even raising the point of law already decided by the High
Court.
Section 10 of the High Court Act regulates the exercise of jurisdiction in the High Court, (not
necessarily the granting of jurisdiction). Section 10 reads in part: "[the] jurisdiction vested in the
court shall, as regards practice and procedure, be exercised in the manner provided by . . . [various
laws etc. are listed here] . . . 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." In the case of Kausa
109
v The Registrar of Societies the court relied on this provision, and various British authorities, to
suggest the right and the manner in which such right should be exercised, by the High Court to
grant an order of certiorari, and review the decision of the Registrar. (The court concluded,
however, that certiorari would not lie in this particular case on other grounds— primarily because
110
the person in question acted without colour of legal authority). This case dealt with supervision,
not of a subordinate court, but of an administrative tribunal. An earlier case, Mulenga v Mumbi, ex
111
parte Mhango the High Court issued a writ of certiorari to call up and quash a subordinate court
order. The applicant in that case, was ordered by the subordinate court to pay K450 compensation
to one of the parties in the case, although he had not been a party in the case himself, and had been
given no opportunity to attend and protect his rights at a hearing. The court, relying primarily on
Halsbury’s Laws of England, ruled for the High Court that certiorari would lie. The court noted
that no alternative remedy was available to the applicant, but added that "where there has been a
denial of natural justice the appellant would be entitled to an order of certiorari even though another
112 11
remedy may be available to him". The High Court has power to issue writs of mandamus. *
Presumably, the jurisdiction for such matters as mandamus and certiorari, not specifically
mentioned in the statutes, derives from section 9 of the High Court Act, (not section 10 which refers
114
to procedure).
Certain laws give the High Court supervisory jurisdiction on other specific areas. For example, a
provision in the Constitution allows a party to bring a question of fundamental rights, originally
115
raised in a subordinate court, to the High Court for adjudication. The transfer powers of the High
Court, to bring a case before it or to move the case from one subordinate court to another, also give
116
the High Court considerable control over the lower courts.
According to a recent case, there are four ways the High Court may come to review a criminal case
111
from a subordinate court. In Mwanza v the People these are as follows:
1. initiation of review by one of the parties, either by right of appeal, or by the "case stated"
method, both in Cap. 160.
2. transmission of the case to the High Court for sentencing.
3. review of the case initiated by the High Court under section 337-8 of the Criminal Procedure
Code.

76 LAW IN ZAMBIA
4. transmission of a sentence for confirmation by the High Court. The means listed in the first category,
appeal and case stated, actually differ in several important respects. Under section 321 of the Criminal
Procedure Code, a person convicted and sentenced in a subordinate court may appeal against the
118
conviction on any ground of fact, law or mixed law and fact. This includes the right to appeal against
119
a conviction rendered under the admission of guilt procedures provided by the Code. Such a person
120
may also appeal against his sentence, unless it is fixed by law. The Code has now also been amended
to allow the director of public prosecutions to appeal to the High Court if he is dissatisfied with what he
121
believes is an erroneous decision in law or in excess of the court's jurisdiction.
The case stated provisions of the Code allow either party before a subordinate court to apply to the
subordinate court, requesting it to prepare and send to the High Court and to the opposing party "a case setting
forth the facts and the grounds" upon which the court made its determination. The challenge here, like that
in section 321 A, must be based on a claim that the court's determination was erroneous in law or in excess
of jurisdiction. The subordinate court may refuse to state the case if it thinks an application is frivolous or
122 123
vexatious, but such a refusal itself may be appealed to the High Court. The subordinate court may not
124
refuse to submit a case if requested to do so by the director of public prosecutions. The constitution of the
125
court, when reviewing a case by either method remains the same. Resort to either appeal or the case stated
126
provisions precludes that party from seeking review by the alternative method.
Thus, it seems that the appeal procedures favour the defendant somewhat more than the case stated approach.
As mentioned, the subordinate court may refuse to state a case in some instances, but this does not apply to
appeals. Moreover, the appeal procedure allows a far broader range of questions (fact, law, or mixed law and
fact) than the case stated approach, which allows only questions of law and jurisdiction. These differences
do not arise for the director of public prosecutions—he may only appeal questions of law or jurisdiction under
section 321 A, and a subordinate court may not refuse his request for a case stated. This gives rise to the
question why section 321A was deemed necessary. The only possible explanation seems to lie in the
127 128
difference in powers of the appellate court and in the effect of the appellate court's decision in each of the
situations. The wording of the statutes, however, do not make such distinctions clear.
The second category, committal for sentencing, refers to those provisions allowing a subordinate
court to commit a person, convicted in the subordinate court, to the High Court for sentencing
129
beyond the lower court's powers. These provisions do not apply to juveniles. A committal xmder
this section does not abrogate appeal rights, and if the accused appeals, the sentencing must await
130
the outcome of the appeal.
The High Court also has jurisdiction and power to "review" a subordinate court decision, under
sections 337 and 338 of the Criminal Procedure Code. These sections ostensibly allow the High
Court to call for and examine records of a criminal proceeding before a subordinate court "for the
purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or
order recorded or passed, and as to the regularity of any proceedings of any such subordinate
131
court". Atthetime of Mr. Justice

Care's opinion, there remained some question regarding the power of the High Court to hear certain
cases in its revisory jurisdiction, as the Supreme Court Act had provided for direct appeals to the
Supreme Court from subordinate court decisions regarding specified offences. It was suggested
that the provision for direct appeals, by-passing the High Court, might also preclude revisory
132
jurisdiction over the same types of cases. This question appears to have been resolved by a
133
subsequent amendment to the Supreme Court Act, so that now no such barrier to revision appears.
Of course, review of non-specified offences is unaffected. Cases may come for review before the
High Court, among other ways, by the High Court calling for the record under section 337. The
134
court's notice may be drawn to a case by such diverse means as a newspaper article, or a record
135
forwarded for sentencing confirmation.
Section 9 of the Criminal Procedure Code requires confirmation by the High Court of certain
subordinate court sentences. Upon receiving the sentence for confirmation, the High Court may
136
exercise all the powers it is given under review provisions in the Code. In addition, related to the
criminal appellate jurisdiction, the High Court may exercise supervisory powers over a subordinate
court's decision and action regarding security for peace keeping—the High Court may cancel bond
137
requirements and release an imprisoned person on bail. The High Court also exercises supervisory
powers over other bodies and tribunals. The certiorari powers extending to quasi-judicial and
138
administrative bodies have already been discussed. Mandamus, it would appear, may also lie to
139
direct actions of public authorities outside the judicial system as such. The High Court may hear
140
appeals from the Local Government Service Commission. Certain local court matters may come
141
before the High Court, as suggested earlier. In addition, matters brought before the legal
practitioners disciplinary committee, may in appropriate circumstances be brought to the High
142
Court for review.
The Supreme Court
143
The basis for jurisdiction in the Supreme Court have been mentioned. Provisions in various laws
spell out specific areas in which the Supreme Court may exercise supervisory or appellate
jurisdiction. The Supreme Court Act states, in broad terms, that "an appeal in any civil matter shall
144
lie" from a decision of the High Court to the Supreme Court, with a few enumerated exceptions.
These exceptions include—orders granting extension of time for appeals, orders giving
unconditional leave to defend an action, an order dissolving or nullifying a marriage if the party
failed to exercise his rights to appeal against the original decree preceding the order. Moreover, no
right of appeal lies, but the High Court or Supreme Court may grant leave to appeal, from a revisory
or appellate judgment of the High Court, from an order as to costs or an order made with the consent
145
of the parties, from an order made in chambers, or from certain interlocutory judgments. The
Constitution specifically bars appeals from High Court decisions regarding national assembly
elections and prohibits an appeal from a High Court decision dismissing a claim involving alleged
146
violations of fundamental rights for being vexatious or frivolous.
Other laws also speak of Supreme Court appellate jurisdiction, in a variety of areas. The court may
147
hear appeals of fundamental rights cases in the High Court. Appeals

78 LAW IN ZAMBIA
from High Court decisions (and certain subordinate court decisions regarding rent and tenancy
148
rights lie to the Supreme Court. Bankruptcy matters adjudicated in the High Court may come to
149 150
the Supreme Court on appeal, as may certain contempt of court cases. The court may also hear
appeals, for example, from decisions of a tribunal adjudicating matters arising under the leadership
151
code.
The powers of the court when hearing a civil appeal are commensurately broad. The court may
order production of documents and exhibits, call and examine witnesses, remit the case to the High
152
Court for re-hearing, or order a new trial. After its hearing it may "confirm, vary, amend or set
153
aside the judgment appealed from or give such judgment as the case may require".
The jurisdiction and powers of the Supreme Court regarding supervision of criminal cases appears at least equally
broad. Any person convicted in the High Court, or convicted in a subordinate court and sentenced in the High
Court after committal under the Criminal Procedure Code, has the right to appeal against any question of fact and
154
any question of law to the Supreme Court. The director of public prosecutions may also appeal against a judgment
155
of the High Court in its original jurisdiction on a point of law. Contrary to the previous law a successful appeal
under the latter provision does affect the finality of the lower court's decision, and could result in the conviction of
156 157
a previously acquitted respondent. Imposition of a fixed sentence may not be appealed. An appeal against
sentence abates on the death of the accused, but an appeal against fine may continue; even where the accused died
before the High Court rendered a decision on first appeal, a representative of the deceased may continue the second
158
appeal against a fine to the Supreme Court. Either the High Court, or the Supreme Court 159 may grant to a party
leave to appeal from an appellate judgment, a revisory judgment, or a judgment on a case stated, or a refusal to
160
extend time to appeal. The court has extensive power on appeals in criminal cases. It can order production of
documents or exhibits, call witnesses, remit matters for further hearing, refer certain questions to a special
commissioner, take advice of an assessor, issue appropriate enforcing warrants, and make decisions regarding bail.
To protect an accused from potential prejudice stemming from newly admitted evidence, the Supreme Court Act
requires the court to allow examination by the accused of any jvitness called before the appellate court, and further
161
prohibits any increase of sentence based on new evidence.

The Court, on appeal against conviction, may dismiss the appeal, quash the conviction and order a new
trial or direct a verdict of acquittal, or substitute a judgement of guilty of any other offence the trial court
might have entered. On appeal from an appellate judgment of the High Court, the Supreme Court may
in addition restore the trial court's conviction. On an appeal, the Court may "increase or reduce the
162
sentence, or make such other order or sentence as the trial court might have imposed or made".
The Supreme Court Act sets out, in some detail, the standards the court should use in considering
an appeal. The Act is for the most part fairly self-explanatory on this point, but for comparison, it
is worth noting that it provides that the court must set aside a conviction, on any of a number of
163
listed grounds, unless it considers "that no miscarriage of justice has actually occurred". This
appears to give the Supreme Court somewhat greater discretion to overturn lower court decisions
than that granted to the High Court, which can overturn a decision on appeal if it has "in fact
occasioned

a substantial miscarriage of justice". Standards for appeal against sentence have been elaborate in
numerous cases. Basically, the court suggests that it (or the High Court) may set aside a sentence
if it finds that the sentence was wrong for any of the following reasons: (i) it was wrong in principle,
or (ii) it was manifestly excessive or so totally inadequate that it induces a state of shock, or (iii)
there are exceptional circumstances which would render it an injustice if the sentence was not
164
reduced.
Conclusion
Consideration of the jurisdiction as outlined here, and the use that has been and can be made of it,
suggests several points of interest. One noticeable aspect of the jurisdictional division and grants is
that something of dual legal and judicial system remains—while higher courts may, and do, apply
customary law, their jurisdiction and the needs of practice allow a greater portion of their time to
be taken up in written law (and common law) while the bulk of customary law is left to the local
courts. The prohibition of legal representation in local courts also seems to tie the local courts
nearer to the "traditional'* customary society and to distinguish proceedings in the local courts from
those in the higher courts. Of course, the shortage and high cost of trained lawyers does to some
extent create a de facto prohibition for many litigants in the higher courts.
This apparent dichotomy is neither new nor accidental. It stems at least in part from the pre-
independence legacy. As it has been observed elsewhere, from its inception, the system of judicial
administration introduced by the British in Northern Rhodesia differentiated between Europeans and
165
Native Africans. Today of course, the distinction is no longer so clearly ethnic. The customary law
sector remains comprised of Africans, but now indigenous Zambians make up the largest part of the
population participating in the non-customary society and legal system as well.
The continued existence of this somewhat blurred dichotomy does suggest certain conclusions about the legal
system and the society in general. To some extent, it reflects, the more important socio-economic and cultural
divisions of the country at large. The situation today reflects some of the same conditions noted in much of
newly independent Africa: a dichotomous society, sharply split between the subsistence economy with its
associated culture and law and the commercial-industrial, private, Westernized sector; a pluralistic legal
order; demands upon the society that implied fundamentally irreconcilable jural postulates—status; contract,
166
etc. The question whether the dual judicial system, and the dual legal system, fosters retention of the
dichotomy and retention of the subsistence economy in the face of development in urban centres, lies beyond
the scope of this discussion. It is sufficient here to note that the split in one reflects the split in the other.
Moreover, until such time as broader social reform (in terms of development in educational,
economic, and other spheres) can be realized, reliance on the pre-existing and largely self-enforcing
customary law, and on procedural forms and a social context adapted to easy local acceptance, may
be the most efficient, perhaps the only effective way of serving the legal needs of a large portion
of the society. Where application of sanctions to coerce compliance seems too costly, where the
social conditions inhibit mass internalization of new law, and where the government is unwilling
or unable to undergo

80 LAW IN ZAMBIA
the costs and burdens of disrupting the stable social base of communities, recognition of existing
substantive norms and adaptation of a judicial system to local needs (i.e. differentiation of local
167
courts and their law) may present the only viable means of administering justice.
Broad powers in the hands of a strong judiciary can provide an effective shield against concentration of
arbitrarily exercised executive power, and can augment law reform. The courts, perhaps, in some
instances are the most effective medium for such action. As it has been said: ". . . [it] is in the courts
and not in the legislature that our citizens primarily feel the keen cutting edge of the law. If they have
respect for the work of the courts, their respect for law will survive the shortcomings of every other
branch of government; but if they lose respect for the work of the courts, their respect for law and order
168
will vanish with it to the great detriment of society".
The jurisdictional legislation in Zambia affords the courts sufficient room for an activist judiciary. Of course,
important restrictions remain, especially in areas of redressing individual grievance against the state. In the
area of fundamental rights, for example, a perusal of the constitutional provisions providing these rights also
will reveal serious exceptions and provisos, qualifying the rights to the point where little remains for
169
challenging executive or legislative action. Moreover, the detention laws, under which many fundamental
rights issues might arise, grant such unfettered discretion to the executive that, again, precious little remains
170
for litigation apart from adherence to procedural requirements. An African jurist has said, "it would seem
that on the whole governments in the newly independent countries hanker after the simplicity of the colonial
arrangement, with the primary aim of the courts being to uphold the power of the state, enforce its laws and
provide stability. The courts' function of protection of the individual from the abuse of power is relatively
171
new and less well appreciated."

Noticeably restrictive as well, is the absence of an expressed or implied jurisdictional grant allowing the
courts to review the constitutionality of legislation. With reliance on a written constitution, it might
seem logical for such powers to follow, or even to be assumed by the courts in the absence of a specific
grant; this has not occurred in Zambia. Without this type of power, especially in a state where the
172
legislature and executive are often closely allied, the impact of judicial assertion is more easily blunted.
Nevertheless, the Zambian courts retain sufficient breadth and depth of jurisdiction and power to
assume an active and creative role, and they have from time to time demonstrated a willingness to
do so. The courts have exercised jurisdiction to at least hear numerous potentially politically
173
explosive cases. At times they have ruled against the executive, although not wholly without
174
repercussion. The courts have also demonstrated a readiness to speak out, even where their power
to act is restricted, and to comment on policy and criticize the government—actively asserting and
protecting their existing domain and power. In a recent case 175 involving an unreturned writ of
habeas corpus, where the applicant had apparently been surrendered to foreign forces, the chief
justice quickly and in no uncertain terms rejected the government's attempt to take the matter out
of the court's jurisdiction. The respondent had apparently refused the return, relying on political
arguments. The chief justice replied:". . . [no] litigant, whether the government or a private litigant,
can be heard to say to this court—

and what is more, in the very proceedings in which the decision was made—that the decision is not
in the best interest of the liberation struggle and that he cannot do something with which he
disagrees, or that high state policies are involved which are extremely sensitive and are not matters
176
falling within the legal ambit". When, after time was extended for return of the writ, and the
applicant still did not appear before the court, the chief justice spoke out again, strongly criticizing
177
the executive for apparent involvement in removing the applicant from the court's jurisdiction.
The courts, in the assertion discussed earlier of power to issue writs of certiorari and mandamus,
have also demonstrated a tendency to extend their jurisdiction and power and not simply to rest
with the already broad reach allotted them. The Supreme Court has, through open criticism of
178
legislative policy, lobbied for further delegation of discretion to the judicial branch. Parliament
179
has assisted, in some instances, in the expansion of judicial power. In a one-party state, and
especially in an executive dominated system, these are healthy signs for a relatively new judicial
system.
The courts, of course, also possess considerable power in their use of the interpretive function, both
as to legislation and as to the common law. There are a number of ways and means a court might
180
use to creatively apply legislation. Creative use of the common law also offers judicial means for
181
reform. Zambian courts have demonstrated that they will deviate, not only from previous British
182 183
precedents, but from their own precedents as well, when they deem it justified. Thus the court
may continue to assert an aggressive reformative role.
As to supervisory jurisdiction, the sweeping grants reflect concern for ensuring adequate means of
reviewing lower court decisions. This, of course, is not unique to Zambia, but the diverse means
available (including such examples as mandatory confirmation of sentencing, mandatory transfer
of certain cases, etc.), the extensive use made of these powers (consider the exercise of certiorari,
the extensive use of revisory jurisdiction, etc.) and the nature of the powers on review, all suggest
a strong concern for the problem of justice in lower courts. A perusal of any random volume of
appellate decisions will reveal embarrassing errors in lower court trials. The acute scarcity of legal
training in Zambia, with resultant high cost of acquiring advocates, precludes many parties from
obtaining adequate representation. Moreover, the same problem often results in a relatively
unexperienced or poorly trained bench. Of course, other factors exacerbate the recruitment
problem; salaries and work conditions seldom attract trained lawyers from the more lucrative
184
private or government positions into the courts.
The broad supervisory and revisory powers in the High Court and the Supreme Court do provide,
often, a means of correcting lower court error. This does not however, provide an ultimate solution,
it can only act as an occasional corrective measure. Not all cases are appealed—without benefit of
counsel many parties may not know of, or may decline to take advantage of avenues of appellate
review. The cases which come to a higher court's attention by other means can only represent a
sampling of the activity of lower courts. Many cases, therefore, never obtain review at all. Indeed,
if all cases were reviewed, the work load on higher courts would become unmanageable. Moreover,
relying heavily on the higher courts for correction provides, at best, qualified justice: by the time
appropriate review is obtained, much of the damage of a lower court error may already be felt and
185
cannot wholly be corrected by reversal in the higher court.

82 LAW IN ZAMBIA
Thus, the existence and use of broad supervisory powers, while useful, cannot replace continued
improvement of the judicial process in the lower courts.
Finally, perhaps a word on the legislation itself may be in order. Inclusion of grants of original and
appellate jurisdiction in separate sections spread throughout the law seems convenient to the
draftsman of one of these sections, and perhaps to the fortunate person knowing just which section
he should read. This drafting style, however must be confusing to most users. Moreover, the fact
that long after repeal of the Court of Appeals Act, and substitution with the Supreme Court Act,
various references to the Court of Appeal remain in diverse acts suggests that this system also
handicaps the amending draftsmen. (This also seems borne out by the apparent conflicts between
various Acts as mentioned earlier). This would seem to suggest the utility of gathering all the
jurisdictional provisions regarding a court into one Act referring to that court, or providing a cross-
referencing system between the main court Acts and each of the other Acts, or both, or at least
creating a comprehensive, usable index for general use.
Notes
1. These, the most recent statistics available, derive from a public lecture delivered by Hon. Chief
Justice Annel M. Silungwe, on "Administration of Justice in Zambia" 22nd November, 1979, at the
University of Zambia.
2. Revised Laws of Zambia (hereafter cited by chapter and section only), Cap. 54, s 6(2); see also
Cap. 54, s 2(2).
3. Cap. 54, s 3(1).
4. Cap. 54, s 68 (subsidiary) Part II, Ss. 3, 4.
5. Compare Cap. 54, s 5 with Cap. 54, s 68 (subsidiary) Rule 4.
6. Cap. 54, s 5(l)(i), see also Cap. 54, s 68 (subsidiary) Rule 4 (a)(1).
7. Cap. 54, s 68 (subsidiary )Rule 4 (a)(i).
8. Cap. 54, s 38 (a)-(b).
9. Munalo v Vengesai, [1974] Z.R. 91.
10. Id. at 95.
11. Cap.54,s38(cHd).
12. Cap. 54, s 12(b). This does not allow local courts to enforce written laws of foreign countries.
Banda v Banda & Another, [1975] Z.R. 123.
13. See Cap. 1, art. 20(8) contra see Cap. 54, s 12(2), s 13.
14. Cap. 54, s 11.
15. Cap. 54, s 68 (subsidiary) s 4.
16. See Banda v Banda & Another, [1975] Z.R. 123.
17. Munalo v Vengesai, [1974] Z.R. 191.
18. Cap. 54, s 8.
19. Cap. 54, s 9.
20. Compare Cap. 54, s 9 with Cap. 160, Ss 69-75. See also footnotes, infra, and accompanying
text.
21. Cap. 54, s 10.

22. Cap. 54, s 15. Of course, this section does allow a legal practitioner to appear if he is a party to
the proceedings. A representative, though not a legal practitioner, may appear on behalf of a
company or other corporate body.
23. Silungwe, C. J., "Administration of Justice in Zambia", supra.
24. Cap. 45, s 20(l)(a).
25. Cap. 45, s 20(2). For a second class subordinate court, the limit is K200 (s 21), for third class
courts—K50 (s 22(a)).
26. Compare Cap. 54, s 20 with Cap. 54, Ss 21,22.
27. Cap. 160, s 171, as amended by Act 34 of 1973. The High Court has, however, exercised its
revisory jurisdiction to alter such a judgment. See Kumoyo v the People,[\91A]Z.K. 50,51.
28. Kumoyo v the People, supra.
29. In re: Atlas Transport Ltd. v Consolidated Farm Fertilizers Ltd., [1977] Z.R. 155.
30. Compare Cap. 1, art. 29 with Cap. 45, Ss 22-23.
31. Cap. 45, s 18.
32. See Cap. 45, s 20 Proviso subsections (i)-(v/), as read with Cap. 45, s 21; and Cap. 45, s 22
v
Proviso subsections (i)-(i )-
33. Cap. 45, s 23.
34. Cap. 45, s 24. First class subordinate courts, moreover, possess jurisdiction in certain extradition
matters under Cap. 161; subordinate courts may hear certain offences and matters under the Prisons
Act: Cap. 134, and suicide matters under Cap. 148. Subordinate courts have jurisdiction to hear
inquests under Cap. 216; juveniles under Cap. 317 (see esp. s 63); adoption under Cap. 218; debtors
in default under Cap. 87, offences under the Preservation of Public Security Act under Cap. 106;
and certain matters under Cap. 480 (see especially section 101).
35. Cap. 160, s 7, as apparently amended by Act No. 6 of 1972. ("Apparently" amended, as Act
No. 6 purports to amend Cap. 7, the old Penal Code, although the contents of the section referred
to are now embodied in Cap. 160, s 7, of the Revised Laws. The amendments included in the
Revised Laws vary; some chapters only including amendments up to 1969, while the Acts
continued to refer to the numbering system under the old laws up until 1972. This leaves a hiatus
of a number of years, depending on the last amendment included in a particular chapter. Thus, the
Criminal Procedure Code, for example, only includes amendments in the Revised Laws up to 1969,
although amendments up until 1972 still refer to the old unrevised laws and numbering). Also under
the Code, a senior resident magistrate may impose imprisonment sentences up to 9 years in length,
and a Resident Magistrate up to 5 years.
36. See, e.g. Mapowa v the People, S.C.Z. Judgment No. 10 of 1979.
37. Cap. 160, s 9 as apparently amended by Act No. 6 of 1972.
38. Cap. 160, s 9(2). See Cap. 160, s 9 generally for further details.
39. Cap. 160, si 1.
40. Cap. 160, s 11(2). The provision in Cap. 160, s 197(1), speaking of trials before a subordinate
court for murder and treason, therefore, must have in contemplation the granting of special
authority under the exception to Cap. 160, s 11(2).
41. See Cap. 160, s 222.

84 LAW IN ZAMBIA
42. See Cap. 50, s. 23(2), which allows the High Court to transfer a case before it to a subordinate
court. This provision notes that such a transfer does not enlarge the civil jurisdiction of a
subordinate court. No mention is made, however, of criminal jurisdictional limits in the lower court.
Either a transfer under this section may only be made in a civil case, (this interpretation may gain
some strength from the fact that criminal jurisdiction is generally controlled by Cap. 160, not Cap.
150), or it is assumed that a transfer of a criminal case under this section would carry with it the
special authority contemplated by Cap. 160, s 11, if necessary.
43. See Cap. 160, s 10.
44. See, generally, Cap. 160, Ss 40-60.
45. See, generally, Cap. 160, Ss 222-232, 10.
46. See, generally, Cap. 160, Ss 223, et. seq.
47. Cap. 160, s 232.
48. Id.
49. Id.
50. "Inclusion unius est exclusion alterius". This maxim, of course, only serves as an aid to
construction. Other principles may suggest alternative outcomes. The fact that the statute allows
for this interpretation, however, suggests a need for amendment.
51. This all-or-nothing cross-examination rule requires the defence to make a very difficult choice.
Worse, it is not inconceivable that this provision in section 232 could be read, under the same implied
exclusion, to bar the defence from calling new witnesses after the court decides to adjudicate summarily.
In view of the relative hardship this approach would impose on the defendant, and the radical departure
from British traditions, it seems unlikely that parliament intended such a result. See also Cap. 1, art.
20(2)(e).
52. Cap. 45, s 4. See also Cap. 45, Ss. 20(1), 22, 21.
53. Cap.50,s22(2M3).
54. Id. see also Cap. 45, Ss. 20(1), 21,22.
55. Cap. 45, s 57 (subsidiary), Subordinate Courts (Civil jurisdiction) Rules, Order XIV.
56. Id.
57. Each court "shall ordinarily exercise such jurisdiction only within the limits of the District for
which each such court is constituted". Cap. 45, s 4.
58. Compare Cap. 45, s 4 with Cap. 45, s 12 and Cap. 160, Ss. 65-80.
59. See generally Cap. 160, Ss. 69-72, and Ss. 73-80, where further rules for venue choice are
elaborated.
60. See Cap. 160, Ss. 66,77-79. Note that requiring the transmission of an apprehended accused to
a court in whose district the offence is alleged to have occurred (Cap. 160, s 66) takes a much
narrower view of venue than does sections 69-80 of the Code.
61. Cap. 160, s 80.
62. Cap. 160, s 352.
63. Cap. 1, art. 109(1). Cap. 50, s 3.

64. See Supreme Court and High Court Number of Judges Act, No. 22 of 1976, as amended by Act
No. 20 of 1977, and Cap. 1, art. 109 (2) (a)-(b).
65. Cap. 1 art. 109(2).
66. Cap. l,art. 110(1H2).
67. Cap. 1, art. 101.
68. Cap. 50, s 9.
69. C/Cap. 50, s 12.
70. Cap. 50, s 9(2).
71. Cap. 50, si 1.
72. Cap. 1, art. 29.
73. Cap. 1, art. 77. This same provision, however, gives parliament nearly complete control ov
CHAPTER 2
THE EVOLUTION OF THE ZAMBIAN COURTS SYSTEM

Earl L. Hoover, John C. Piper and Francis O. Spalding
An understanding of the Zambian courts system as it exists today is dependent, in large measure,
upon an understanding of its history. For perhaps even more than most institutions, Zambia's
courts are a product of their history. Almost every feature of the system today can either be traced
back to an historical origin a generation or more ago; or can be accounted for as a latter-day
attempt to be rid of some offensive aspect of the colonial administration of the courts.
The full history may never be written, for all too little is known of the pre-colonial period whose
unrecorded history becomes more obscure with every adjustment to western ways and every
move toward a developed industrialized society. This brief account begins, with history recorded,
however sketchily, at the coming of the British South Africa Company in the late nineteenth
century.
The courts system under the BSA Company
From its inception, the system of judicial administration introduced by the British in Northern
Rhodesia differentiated between Europeans and native Africans. Section 14 of the Royal Charter
of October 29, 1889,1 entrusting the administration of Rhodesia2 to the British South African
Company (BSA Company), authorized this differentiation, but did not suggest its true
dimensions:
In the administration of justice to the said peoples or inhabitants, careful regard shall always be
had to the customs and laws of the class or tribe or nation to which the parties respectively
belong, especially with regard to the holding, possession, transfer and disposition of lands and
goods, and testate or intestate succession thereto, and marriages, divorces, legitimacy, and other
rights of property and personal rights, but subject to any British laws which may be in force in
any of the territories aforesaid and applicable to the peoples or inhabitants thereof.3
In actual practice, the BSA Company left the judicial administration of Africans4 to Africans.
The British courts, composed of BSA Company officers, were undermanned and ill-equipped
from the outset. Only those serious crimes brought to the attention of the administrators were
likely to find their way into a British court docket.
It is doubtful that more than a very few cases were heard by these early British courts.5 The size
of the territory and the small number of administrators permitted visits to each tribe once, or, at
most, twice a year. It may be supposed that so long as tribal bonds remained strong, the decisions
of the tribal courts would not often be challenged by appeal to the administrators. Nor were the
administrators, preoccupied with other duties, likely to have been particularly interested in
hearing African cases.

This simple judicial structure sufficed for the next ten years. The European population in the
territory remained small,6 and there was little need for further development of
48 LAW IN ZAMBIA
courts capable of administering British justice. Tribal chiefs continued to administer customary
law, with only occasional interference from the BSA Company officials. The British were
primarily occupied in suppressing the Portuguese and Arab slave trade and in bringing warring
tribes under control.7 Thanks to British technological superiority in the art of warfare, Pax
Britanica had been substantially imposed by the end of the century.
The Barotziland—North-Western Rhodesia Order in Council of 1899 established a more
elaborate judicial system in the territory in which it pertained.8 Provision was made for the
appointment of judges and magistrates,9 English law was to apply except where otherwise stated
in the Order,10 and the high commissioner was empowered to issue such proclamations as he
found necessary to maintain order in the territory.11 Article 9 of the Order retained a limited
degree of protection for customary laws
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.
No official recognition was extended to tribal courts.
The North-Eastern Rhodesia Order in Council of 1900, pertaining to the Northern Rhodesian
territory not covered by the Order in Council of 1899,12 established a more elaborate judicial
structure than had the North-Western Order. A High Court was created13 with civil and criminal
jurisdiction over all cases in the territory. Appeal to Her Majesty in Council could be taken in
civil cases involving amounts over £500.14 In criminal cases, the high commissioner was given
the power to "... remit or commute, in whole or in part, any sentence of the High Court, and may
signify remission or commutation by telegraph".15 Magistrates' courts were created,16 the High
Court having appellate jurisdiction.17 Customary law was given approximately the same limited
degree of protection as had been provided in the Order in Council of 1899.18 But specific
provision was made in the Order for retention of customary law in civil cases between African
litigants even in British courts:
In civil cases between natives the High court and the magistrates' courts shall be guided by native
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 Regulation made under this order. In any such case the court may
obtain the assistance of one or two native assessors, to advise the court upon native law and
customs, but the decision of the court shall be given by the judge or magistrate alone. In all other
respects the court shall follow, as far as possible, the procedure in similar cases in England.19
The British courts were also to recognize such native marriages as were valid at customary law.
Under the order the BSA Company was to appoint an administrator for the territory,20 the high
commissioner retaining the power to reject any regulations made by the administrator.21 The
administrator, with the approval of the high commissioner, was empowered to appoint a secretary
of native affairs, commissioners and such lesser officials as he found necessary.22 The high
commissioner retained the general power to inquire into any question relating to Africans and
take such action as he deemed necessary to correct problems he encountered.23
The evolution of the Zambian courts system 49
Like the Barotziland—North-Western Rhodesia Order in Council, the North-Eastern Rhodesia

Order in Council did not extend official recognition to tribal courts— a situation which was to
continue until 1929.24 Nor was any system of appeal provided from tribal courts to the
magistrates' courts or the High Court. Thus, two distinctly different systems of judicial
administration developed—the officially recognized courts administering English law (and,
infrequently, customary law "in civil cases between natives"); and the de facto tribal courts
administering customary law. So long as African litigants were willing to accept the decisions of
tribal courts, contacts and conflicts between the two judicial systems would remain at a minimum.
In the years from 1900 to 1911 a colonial infrastructure was developed in the two territories.
Magisterial districts were established in North-Eastern Rhodesia in 1900, for example,25 a
Barotse Native Police Force was created in 1901 ;26 justices of the peace,27 magistrates,28 and
district commissioners29 were increased in number in 1902; the second of a series of hut taxes
was imposed in 1904,30 the Barotziland—Northwestern Rhodesia Territory acquired a High
Court and two judges appointed by the high commissioner, in 1906.31
In the remaining years to 1911 it became increasingly apparent that the two territories—both
under BSA Company control, both following a quite similar pattern of development—could be
more efficiently administered as a single territory. On May 4, 1911, the Northern Rhodesia Order
in Council of 1911, revoking the North-Eastern and Barotziland—North-Western Orders in
Council and merging the two territories into one jurisdiction, was promulgated; its provisions
were brought into operation by Northern Rhodesia Proclamation Number 1 of 1911, on August
17, 1911. With respect to the courts system, the Northern Rhodesia Order followed closely the
pattern of the North-Eastern Rhodesia Order in Council of 1900. The manner of appointment of
High Court judges32 was the only material variation.
By 191333 the merged judicial system had been in operation long enough to identify other
needed changes. The resulting proclamations and orders introduced several principles of structure
and function of the judicial system which were to be followed to independence and even
thereafter. In the High Court, two substantial changes were made: first, the court was given the
discretion to hear all criminal matters either as the court of first instance or as a court of
review;34 second, in cases between Europeans and Africans, the court was empowered to apply
customary law whenever "... it may appear to the court that substantial injustice would be done to
either party by a strict adherence to the rules of English law".35 Jurisdiction of the magistrates*
courts was expanded to include criminal punishments as severe as a £25 fine, imprisonment for
12 months, or 24 lashes.36 In criminal cases warranting harsher punishments, magistrates were
empowered to convict the accused, but to commit him to the High Court for sentencing.37
Magistrates' jurisdiction in civil cases was increased to £100.38 Native commissioners were given
the power of magistrates in African criminal cases, jurisdiction being limited to a £5 fine, 6
months' imprisonment, or 10 lashes.39 Assistant native commissioners were limited to a £2 fine,
3 months' imprisonment, or 5 lashes.40
While these statutory changes were being made in the officially recognized courts, the tribal
courts continued to administer justice with relatively little interference from the British.41 The de
facto courts were a convenient, economical method by which the
50 LAW IN ZAMBIA
BSA Company could control the native populations without having to support a large
administrative staff.
The economic development of Northern Rhodesia during this period was modest. In 1906 lead
mining began at Broken Hill, in 1908 copper was being produced from Kansanshi Mine,42 and
by 1909 a 506-mile railroad had been completed to the Congo.43 The European population
remained small—1,500 in 1912, 2,900 in 1919.44 By 1921, only 3,000 Europeans lived in
Northern Rhodesia, 86% of them in Livingstone, Broken Hill and Lusaka; approximately 36,000
African males were working for wages, 7% of them in mines.45 The most substantial contacts
between Africans and Europeans grew out of World War I, when as many as one third of the
adult native males were drawn into the war effort.46
Economic conditions, however, were not yet such that natives generally could live independent of
their tribes. The inter-dependence of members of a kin group and the authority of the chief and
his tribal courts remained relatively undiminished. Native litigants were not disposed to
undermine the authority of the tribal courts by appealing to the oflBcially recognized courts. As a
result, the dual court structure appears to have functioned without major difficulty.

Crown
By the early 1920's, the BSA Company officials had become satisfied that Northern Rhodesia
was too costly a territory to administer, and the crown in turn was satisfied that the BSA
Company administration could be improved upon. On February 20, 1924,47 the crown assumed
the responsibility for the administration of the territory. The 1911 Order in Council was revoked,
and a governor was appointed for the territory.48 The High Court,49 magistrates' courts,50 and
native commissioners' courts51 were retained. The laws of England were to be applied so far as
circumstances permitted:
... provided that no Act passed by the parliament of the United Kingdom after the commencement
of the Northern Rhodesia Order in Council, 1911, shall be deemed to apply to the said territory,
unless it shall have been applied thereto since the commencement of said order, or shall hereafter
be applied thereto, by any law or ordinance for the time being in force in the said territory.52
Recognition was not extended to tribal courts, but customary law was to be applied in civil cases
between natives "... so far as that law is applicable and is not repugnant to natural justice or
morality, or to any order made by His Majesty in Council, or to any law or ordinance for the time
being in force".53 Thus, initially, under crown administration, there was no more of a link than
there had been under the BSA company between tribal courts and the official judicial structure.
The system left to the crown by the BSA Company was being actively reconsidered, however.
The question how best to manage native affairs in light of the limited administrative staff
available was the subject of a conference of administrative officials held in 1928. The decision
was to adopt the policy of indirect rule, using existing native institutions, and the Native
Authorities and Native Courts Ordinances of 1929 were drawn accordingly.54

The Native Courts' Ordinance of 1929, for the first time extending official recognition to native
courts, provided that these courts ". . . shall consist of such chief, headman, elder or council of
elders in the area assigned to it as the governor may direct".55 The ordinance did not elaborate on
the jurisdiction of these courts, nor did it establish a system of appeals from the native courts. The
subordinate courts were entrusted, however, with the power to see to the proper administration of
justice in these courts through the exercise of a review and revisory jurisdiction over native court
decisions.56 The designation of native courts proved to be a problem. In areas where tribal
allegiances were weak and no African was considered to be the chief of the entire tribe, the
governor "appointed" a chief. Africans, however, were reluctant to recognize authority
established in this way. Where tribes were numerous and tribal ties strong, it was necessary to
permit the chief of each tribe to establish a native court, thereby creating a superabundance of
courts in some areas, to the dismay of administrative officials.57 Despite these problems, the
system apparently got off to a good start:
There seems to be no doubt that the native authorities have made a good beginning and that
ultimately they will be a complete success. Chiefs who had little power prior to the introduction
of the system are proving themselves capable of dealing with natives of independence and
experience and are controlling them in accordance with native public opinion.58
At the same time that the native courts were being established, the magistrates' courts were being
expanded59 and a penal code60 was being developed for the territory. The High Court Ordinance
of 193361 clarified the High Court's position vis-a-vis the magistrates' courts,62 extended its
powers and jurisdiction to those of the High Court of Justice of England,63 and elaborated on the
rules and procedure to be followed by the court in cases involving customary law.64
Copper and urbanization
During the late 1920's and early 1930's, new pressures, with which the existing judicial structure
was not prepared to cope, were discovered in the area of the present day Copperbelt. The first
mine shafts were sunk in 1927. Labour migrations began immediately—10,946 Africans were
employed in the mines by the end of 1927 and 22,341 by 1929.65 Men from different tribes were,
for the first time, concentrated in one area. Established in accordance with local tribal affiliations
and dependent upon the authority of the chiefs native to the area for their effectiveness, the native
courts adjoining these rapidly expanding populations were faced with insurmountable difficulties.
Litigants were not keen about bringing their cases before native courts on which their own chiefs
did not sit and which applied customary laws different from their own.66 Nor were the native
courts, unfamiliar with the customs of other tribes and inexperienced in dealing with conflict of
laws problems, anxious to hear such cases.67 Statutory machinery for enforcement of native court
decisions was practically nonexistent. The traditional sanctions of customary law—pressure from
one's kinsmen, the necessity of living within the tribal structure for protection from the outside
world, withholding of lands and gifts by the chief68—were unavailing against a litigant who
came from another tribe and looked to the mines for protection and sustenance.69 And "outside"
litigants were more
52 LAW IN ZAMBIA
prone to challenge the decisions of the native courts and hence the authority of the chiefs.70
The main burden of hearing these cases was thus thrust effectively upon the district officers. With
a limited administrative staff, other duties to attend to, and a mounting volume of cases, the
district officers were soon forced to cast about for other means of disposing of the litigation.71 In
some mine centres, an unofficial system of adjudication by tribal elders was attempted. The
normal procedure would be for the tribal elders to hear a case, reach a decision, and then present
the decision to the district officer. If the district officer was satisfied with the decision, and if the
parties assented, the decision became final. If the parties disagreed, the district officer would hear
the case himself. This system proved unsatisfactory for several reasons: the district officer
remained overburdened with problems of litigation; the tribal elders were without power to
enforce their jurisdiction and decisions; and it was sometimes even necessary to bring reluctant
litigants before the tribal elders by force.72
Another attempted solution to the problem was the use of assessors. These men, selected by
chiefs in rural areas and sent to the mine centres as representatives of the chiefs, acted as
arbitrators in the district officers' courts.73 Consent of the parties and approval by the district
officer were required before decisions of the assessors became final.74 Although this system
initially required much time and effort of the district officers, the assessors eventually:
... began to function almost independently of the Boma and operated as a court de facto if not
dejure. The proper establishment of urban courts was thereafter only a matter of time, and the
Conference of District Commissioners of the Western Province agreed in 1938 that immediate
steps should be taken to constitute a court at Mufulira. By the end of the following year fully
constituted courts were functioning at all the other mine centres and at Ndola. In the following
few years the system was extended to such other urban centres as Livingstone, Lusaka and
Broken Hill... .76
Carrying out the decision to create the urban native courts was facilitated by the promulgation of
a new Native Courts Ordinance76 in 1936. Although the ordinance had been drafted for the
purpose of providing a more adequate structure for the rural native courts, its language was
sufficiently broad to make it unnecessary to enact special legislation pertaining to urban native
courts.77 The basic patterns for dealing with such matters as jurisdiction, the handling of death
penalty and witchcraft cases, and revision— patterns some of which are still clearly discernible in
the current Local Courts Act— were first laid down in this ordinance. The jurisdiction and
powers of native courts were to be specified in warrants issued by the governor;78 certain cases,
involving the death penalty, witchcraft, or non-native witnesses, were excluded from native court
jurisdiction;79 provincial and district commissioners were empowered to revise all native court
decisions, with appeal from any revision lying to the provincial commissioner or High Court:80
appeal from a native court decision could be taken first to a native court of appeal, or, if none
existed, to the district commissioner's court, from there to the provincial commissioner's court,
and finally to the High Court.81 Native courts were empowered to try cases involving customary
law "... so far as it is not repugnant to justice or morality or inconsistent with the provisions of
any order of the King in Council or with any other law in force in the territory,82 rules of
provincial and district

commissioners and native authorities,83 and such laws as the governor might direct.84 The
ordinance did not apply to the Barotse Province".85
The court warrants were normally of three types, as follows:86 Class of court Civil claim
jurisdiction Criminal sentencing jurisdiction
A up to £25 1 month's imprisonment, £5 fine, or 6 strokes
B up to £50 3 months' imprisonment, £10 fine, or 10 strokes
C up to £100 6 months' imprisonment, £20 fine, or 10 strokes
The urban courts were most commonly Class C or B courts, while the rural native courts were
generally given Class A warrants. Two principal reasons have been suggested for granting more
extensive jurisdiction to the urban native courts: the greater volume and importance of litigation
in urban areas, and the relative ease with which district officers could review decisions of the
urban courts.87
The urban native courts were usually composed of three or four justices who were members of
the tribes most numerous in their areas. Tribal chiefs selected the justices, subject to approval by
the district officers. Justices were drawn from the rural areas only, on the theory that they would
be more likely to be familiar than urban dwellers with the customary laws of their respective
tribes. A justice was appointed for a term of three years, with a two term maximum permitted
before his replacement by a new man from the rural area.88
Implicit in the decision to have justices selected from rural areas and to limit their term of service
to six years was the assumption that the customary laws of the various tribes should continue to
be applied in the urban as well as in the rural sector. The stated reason for this policy was that "...
a stay in the urban areas was only a transitory experience in the life of the individual African.
After working for a short time there he would return to his village and resume tribal life".89
The policy adopted was open to several criticisms which were in large measure unanswerable.
First, it was unrealistic. Once an African moved from the rural area to town, he did not often
return to rural life.90 One observer reported, "As each year passes, an increasing number of
Africans working in the towns come to regard themselves as more or less permanent urban
dwellers; and their contact with their tribes becomes ever more tenuous".91
Second, the customary law system could not simply be transplanted from a rural, tribal setting to
an urban society undergoing rapid industrialization.92 A customary law tribunal was not
necessarily limited by the facts of the dispute before it in resolving a particular case. All matters
causing friction between the parties could be considered, whether or not such matters constituted
a "cause of action". Acquaintance with the parties, and knowledge of their kinship ties and status
within the tribe—all were crucial to the process of reconciliation. The goal of a tribal court was to
reach a decision which would satisfy not only the parties, but also the kinship group to which
each party belonged.93 Some disputes, especially matters pertaining to marriage, were not
typically brought before the tribal court, but rather were reconciled by the kinship groups
concerned, which were often considered to have a stronger interest in the outcome of the case
than had the individual litigants.94 Urban native courts could not avail themselves with any
frequency or regularity of these methods which were so characteristic of—and important to—
customary law in its original setting.
54 LAW IN ZAMBIA
Third, urban native courts soon found it necessary to adopt rules which had no counterpart in—or
even contradicted—customary law.95 A body of law was being created which was neither
customary nor British.96 Members of the urban courts, however, newly selected from rural areas,
were unfamiliar with urban problems and the laws developed to cope with them.97 In partial
response to this situation, the administrative officers permitted some urban native court justices to
remain on the bench beyond the normal six year period.98
Finally, a policy of adhering to customary law rules inhibited the development of rules and
procedures better suited to meet the needs of urban African populations.99
From an administrative point of view, however, the urban native courts rapidly demonstrated
their effectiveness in meeting the difficulties which had plagued earlier attempts to create a viable
urban system of justice. Litigants were more willing to accept decisions made by representatives
of their chiefs than they had been under the system of tribal elders. Officially recognized
jurisdiction and statutory authority to enforce judgments removed many of the problems
previously associated with the tribal elder and assessor systems. Appeals from these courts were
rarely taken, releasing district officers from the demands which native litigation had made on
their time. And only the clerks who kept the court records required any extensive training.100
The later colonial period
From the establishment of the urban native courts in 1936 to 1960, statutory changes in the
judicial structure of Northern Rhodesia were relatively minor.101 The appointment of native
courts adviser in 1948102 to supervise and review native court decisions, was the most important
administrative change made during the period. Such dissatisfaction with the native courts as
existed centred on the constitution of the urban native courts, and the laws applied by them.
Inasmuch as it was impossible to place a representative of every tribe represented in an urban area
on a given native court, chiefs and litigants not represented complained of tribal favouritism in
the courts.103 And as the number of educated urban Africans increased, they were reported to
complain more frequently about being subject to customary laws no longer accepted by them.104
The High Court Ordinance of I960,105 concerned mainly with modernizing court rules and
procedures, and the Native Courts Ordinance of I960106 extending the limits of native court
jurisdiction, 107 were the final major statutory enactments prior to independence.108
The increasing volume of litigation dealt with by the native courts from 1947 to independence
and the relative rarity of appeals from native court decisions were indicative of the importance of
these courts in the judicial administration of Northern Rhodesia.109 The low incidence of appeals
may suggest as well that litigants were reasonably content with the decisions of these courts.110
Little had been done, however, to conform the rules and procedures followed in native courts
with those of the magistrates' courts and High Court.111 And nothing had been done toward
codification and unification of the various customary laws. From an administrative standpoint,
such changes could only have led to added expense for training and supervising personnel
capable of following set procedures and administering codified
rules.112 It may also be true that such changes were not wanted by a majority of the community
served by the native courts. In any event, at independence, the native courts remained essentially
a separate system, unintegrated with the other elements of the judicial system.113 The native
courts of 1964 were little different from the native courts of 1936.114
The magistrates' courts and High Court during the period to independence continued to
administer the laws and procedures imported from England. The volume of cases in these courts
showed an increase roughly parallel to that in the native courts.115 Such difficulties as these
courts encountered were primarily centred on personnel. Magistrates with long experience in
Northern Rhodesia were often posted to other colonies, while High Court judges were selected
from other colonies, where they had often had little or no experience in deciding civil cases.
Moreover, the demanding duties placed upon High Court judges coupled with the advanced age
of many High Court appointees resulted in a rapid turnover of High Court judges.116
Independence
With the coming of independence on October 24, 1964, there came as well a spate of changes in
what was now the Zambian judicial system.117 The 1964 Annual Report of the Judiciary and the
Magistracy, the first to appear under Zambian imprimatur, echoed these events:
1. The year 1964 saw many and far-reaching changes in the judicial system of the country. With
the introduction of the new constitution in January, there was established for the first time a Court
of Appeal, solely for the territory .... Provision was made in the Constitution for the appointment
of a justice of appeal and the puisne judges of the High Court also became judges of the Court of
Appeal; the number of puisne judges was subsequently increased from four to five.118
2 The new Constitution also provided for the establishment of a judicial service commission
under the chairmanship of the chief justice with important advisory and executive powers over
judicial appointments and designed to ensure that such appointments were made free from
political influence. . . .
3 During 1964 the process of integrating the native courts within the judicial system was begun
and considerable progress made.119
The chief justice, indeed, was said to have attached "the greatest importance to the speedy and
effective integration of the native court system within the judiciary" and to have regarded the
achievement of the objective as "the greatest single step in the advancement of law and order in
the history of the country".120
There were, in fact, far-reaching changes made in the native courts system. With the abolition of
the old ministry of native affairs, the native courts commissioner became an officer of the
ministry of justice; supervision of the native courts was transferred from the provincial
administration to "a new cadre of local courts officers and magistrates of the judiciary",121 the
native courts themselves became for the first time a part of the judiciary and were brought under
the control of the chief justice; new
56 LAW IN ZAMBIA
native court appointments began to be made by the judicial service commission, created under the
new Constitution122 and a commission to study unification of customary law was
established.123 All this was done without the benefit of legislative enactment beyond the new
Constitution, although drafting of a new statute to replace the Native Courts, Ordinance was
begun.124
But there were changes of equal significance in the magistracy. As the 1965 Annual Report said:
During 1964 the judiciary became responsible for the whole of the judicial work performed in
previous years by officers of the provincial administration exercising magisterial powers and in
order to cope with the very considerable increase in the volume of work performed by magistrates
of the judiciary a new cadre of senior resident magistrates class II was created.... In addition a
cadre of 18 magistrates class II-I was also created... ?25
1965 was a year of further progress and change. The 1965 Annual Report noted that:
[The] administrative and establishment problems involved in the integration of the native court
system within the judiciary were largely resolved and substantial progress was made in the
creation of a unified system of justice for the whole country.126
And it announced as well as further policy development:
. .. that the existing native courts, presided over by a bench consisting of a president and one or
two court members should gradually be replaced by subordinate courts of the third class presided
over by trained, but not professionally qualified magistrates. ...127
A step toward this aim—but a step as well to make way for the still-awaited Local Courts Act
which would abolish tribal courts altogether128—was that the chiefs, who had been ex officio
presidents of the native courts, and obliged by the colonial warrants to sit on these courts, were
"persuaded ... to withdraw from their judicial functions. . . ."129
Although the 1965 Annual Report referred to the customary law courts as "local courts",130 they
were still technically "native courts" until the Local Courts' Act was at last put before parliament,
adopted and brought into force in 1966.131
It is possible to suggest, as the 1966 Annual Report did,132 that the Local Courts' Act embodied
sweeping changes—for, as the Report noted, the Act repealed both the Native Courts Ordinance
and the Barotse Native Courts Ordinance;133 it constituted local courts134 and substituted them
for the old native courts,135 it abolished native appeal courts136 and provided for basic appellate
jurisdiction in subordinate courts of the first or second class ;137 it permitted a local court to
exercise the criminal jurisdiction assigned to it regardless whether the parties were Africans;138
it substituted the term "local court justice" for the term "native court member";139 and it
substituted a Local Courts Adviser for the former Native Courts Commissioner.140

There were, in fact, some other changes in the Local Courts Act, at least as fundamental as any of
these, which were not mentioned in the 1966 Annual Report. There was no trace, for example, of
section 13(l)(b) of the Native Courts Ordinance which had denied the native courts jurisdiction of
"any case in which a non-African is required" by any party as a material witness.141 Nor was
jurisdiction limited, as it had been under the Native Courts Ordinance both in civil142 and in
criminal matters,143 on racial lines. And the appointment power was lodged in the judicial
service commission rather than the governor (or latterly the minister of justice).144
But for all the change embodied in the Local Courts Act, a very large part of that enactment is
drawn verbatim, or nearly so, from the Native Courts Ordinance. Every local court was made
subject to a scheme of limitation on jurisdiction which is, with respect to caning, identical to the
comparable provision of the Native Courts Ordinance145 and with respect to other matters—
civil, matrimonial and inheritance claims,146 fines,147 and probation or imprisonment148—
identical in terms except that jurisdictional limits of the local courts are in each case half those
formerly imposed on the native courts. The provision excluding death cases—those in which an
offence is charged "in consequence of which death is alleged to have occurred or which is
punishable with death"149—is identical in both ordinances. Both allow the prosecution under
non-repugnant customary law of offences which are similar to offences under positive law.150
And both place in executive hands the power to confer upon "all or any" of the courts’
jurisdiction to enforce other specified laws.151
The basic scheme of supervisory jurisdiction was relatively little changed by the Local Courts
Act. Provision is made both for appeal on the motion of a party152 and for review at the instance
of a higher official.153 But there were some important changes in detail. As noted,154 the old
native appeal courts were abolished, and appeal from the local courts lodged exclusively in
subordinate courts of the first or second class standing "within whose area of jurisdiction such
local court is situate".155 Revisory jurisdiction was lodged, as before, in "authorized
officers".156 But whereas under the former ordinance an authorized officer acted by way of
revision "in his capacity as the holder of a subordinate court"157—reflecting the fact that all
authorized officers were by that ordinance's definition holders of subordinate courts158—under
the Local Courts Act authorized officers are defined to include the newly-created local courts
officers159 as well as the Local Courts Adviser160 and certain magistrates.161 The scope of the
powers of a revising officer were also altered somewhat largely to take account of the fact that
some revising officers would not be magistrates.162
These changes were, of course, consistent with the enlarged responsibility obviously intended to
be carried by the Local Courts Adviser and his staff of local courts officers.163 These
responsibilities were, in turn, a necessary corollary of the aim of effecting a complete separation
of executive and judicial function; for the shift from part-time to full-time magistrates, whatever
its advantages, obviously reduced the number and accessibility of reviewing officers. But the
changes embodied in the Local Courts Act are probably inconsistent with a literal aim of
integration of the courts system. For the Act in effect introduces another class of officers—the
local courts staff—not a part of the magistracy, into the supervisory structure of the local courts;
and it draws a sharper distinction than before between the magistrate's power as an "authorized
officer" and his ordinary judicial powers. Fortunately, these concerns may have a significance
more theoretical than practical.164
In any event, it is possible to see, in the Local Courts Act and in the courts structure which it
creates, some of the stresses imposed in the attempt to achieve several specific and not always
wholly consistent objectives. It is no less possible to see in the Act the essentially evolutionary
character of change even when radical alteration of some goals is sought. General evolution is
probably inevitable in these circumstances, both to permit resources to be focused in the
relatively few areas where important change is to be made,
58 LAW IN ZAMBIA
and to avoid unnecessary disruption of a large and important social institution during the process
of change.
Far less in a statutory way was it necessary, in post-independence, to equip the magistracy for its
new roles and responsibilities. Indeed, not only the Subordinate Courts Ordinance but also its
important companion in regulating the work of the subordinate courts, the Criminal Procedure
Code,165 both date back in very substantial measure to ordinances first enacted in 1933.166 The
1965 Subordinate Courts Ordinance (Amendment) Act167 did alter the structure of the
magistracy to rid it of courts designated by the name of administrative office-holders (for
example "Court of the District Commissioner"), substituting names such as "Subordinate Court of
the Second Class".168 And it made substantial change—and some confusion—in the territorial
jurisdiction of the magistrates' courts,169 for reasons not entirely apparent. But the statutory
conception of the magistracy, as of the High Court, is otherwise unchanged from the colonial
period.
Notes
1. Royal Charter of Incorporation of the British South Africa Company, October 29, 1889.
2. As originally drawn, the charter granted administrative powers to the BSA Company south of
the Zambezi River. On March 5, 1891, the charter was amended to include the territory north of
the Zambezi.
3. Royal Charter of Incorporation of the British South Africa Company, October 29,1889,514.
4. Statutes defining "African" varied widely throughout the British colonies. See A. Allott, Essays
in African Law, Butterworths, London, 1960, pp 173-178; A Epstein, That Administration of
Justice and the Urban African, London, H.M.S.O., 1953, pp 20-21.
5. Brooke, The Changing Character of Customary Courts, 6 J. AFR. AD. 68 (1954). For the types
of criminal cases involving Africans which these early British courts heard, see H. Gann, The
Birth of a Plural Society, Manchester UP; The Development of Northern Rhodesia under The
British South Africa Company 1894-1914,1958, pp 95-100.
6. It has been estimated that the European population of Northern Rhodesia was under 1,000 in
1900; the African population at that period has been estimated at 770,000. A. Wills, An
Introduction to The History of Central Africa, Appendix IV, Oxford U.P., London, 1967.
7. See R. Hall, Zambia 88, London, Pall Mall, (1965)
8. Section 3 of the Barotziland—North-Western Rhodesia Order in Council, 1899, defined the
territory to which the order pertained.
9. Barotziland—North-Western Order, art. 6. The BSA Company nominated candidates for the
positions, and the high commissioner made the actual appointments.
10. A/, art. 16.
11. jW.art.8.
12. The North-Eastern Rhodesia Order in Council, 1900, art. 4 (hereinafter cited as North-Eastern
Order), delineated the territory.
13. 7rf.art.21.
14. 7rf.art.28.
15. 7rf.art.26.
16. 7rf.art.29.
17. 7rf.art.30.
18. The wording of this article differed somewhat from the comparable provision of the
Barotziland—North-Western Order quoted, supra: "The (high) commissioners, in issuing Queen's
Regulations made by the administrator under this order, 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 due
exercise of Her Majesty's power and jurisdiction". North-Eastern Order art. 17.
19. 7rf. art. 35. There is no comparable provision in the Barotziland—North-Western Order. The
so-called "repugnancy clause," limiting the application of customary law to instances where it
was not "repugnant to natural justice or morality," was common to British colonies. See generally
A. Allott, Essays in African Law, 1960, pp 197-201 A. Allott, New Essays in, African Law,
1970,158-75, Butterworths, London, 1970, pp 158-75.
20. North-Eastern Order art. 7.
21. 7rf.art8.
22. 7rf.art. 38.
23. 7rf. art. 45, which also provided: The (high) commissioner may, if he thinks fit, refer any
question relating to natives for report to any judge of the High Court, and the judge shall
thereupon make such inquiry as he thinks fit, and shall report to the (high) commissioner the
result of such inquiry. The (high) commissioner may act with reference to any such report as he
thinks fit.
24. See p. 83. F. Spalding, E. Hoover and J. Piper, "One Zambia, One Judiciary: The Lower
Courts of Zambia", (1970) 1 &2 Zambia Law Journal, p. 12.
25. Government Notice No. 1, 1900.
26. High Commissioner Proclamation No. 19, 1901.
27. High Commissioner Notice No. 16, 1902.
28. High Commissioner Notice No, 69, 1902.
29. High Commissioner Notice No. 81, 1902.
32. High Court judges, previously appointed by the high commissioner, were now appointed by
the secretary of state. Northern Rhodesia Order in Council, 1911 art. 21. The BSA Company
continued to nominate candidates for the High Court.
33. The changes of consequence to the judicial system made in 1912 were the raising and
constitution of a police force and the establishment of prisons. N. Rhodesia Proc.Nos.
14&17,1912.
34. N. Rhodesia Proc. No. 1,1913. One change in the system of appeal to His Majesty in Council
from the High Court was also made. To appeal as of right in civil cases
60 LAW IN ZAMBIA
exceeding £500 in amount was added High Court discretion to allow appeals in other civil cases.
Order in Council, 1913, art. 2(b).
35. N. Rhodesia Proc. No. 1 of 1913, S5, also reaffirmed the commitment to apply customary law
in cases between Africans.
36. N. Rhodesia Proc. No. 2, 1913, S17(l).
37. N. Rhodesia Proc. No. 2, 1913, S18.
41. Neither tribal courts nor African litigants apparently desired to see the situation change. See
1913 N. Rhodesia Native Affairs Ann. Rep. 8; 1935 N. Rhodesia Native Affaris Ann. Rep. 29.
42. Mitchell, "The Tribes in the Towns", in The Tribes of Northern Rhodesia 109 W. Brelsford
(ed.), Government Printer, Lusaka, 1956.
43. R. Baldwin, Economic Growth and Export Development: A Study of Northern Rhodesia,
1920-1960, University of California Press, Berkeley, 18 (1966).
44. J. Davidson, The Northern Rhodesian Legislative Council 18 (\947)9supra. 18(1966).
45. R. Baldwin, supra, note 43, at pp. 16-19.
46. R. Hall, Zambia 102 (1965), supra.
47. Northern Rhodesia Order in Council, 1924 (hereinafter cited as N. Rhodesia Order, 1924).
48. N. Rhodesia Order, 1924, art. 6.
49. Id. art. 27(1).
50. Id. art. 32.

51. Id. art. 35.
52. Id. art. 27(2). This proviso was a substantial re-enactment of article 21(2) of the Northern
Rhodesia Order in Council of 1911. For some of the difficulties which this proviso created in
later years, see, A. Mitchley, "The Responsibilities of the Judiciary and of the Bar for the
Protection of the Rights of the Individual in Society" 6-7 in (Six Papers on) the Rule of Law (in
Northern Rhodesia) (Lusaka, 1963).
53. N. Rhodesia Order, 1924, S 36. See generally Brown, British Statutes in the Emergent
Nations of Africa: 1844-1962, 24 U. Pitt L. Rev. 503, 556-61 (1963).
54. 2Lorld Hailey, Native Administration in the British African Territories 83 (1950). H.M.S.O.,
London. For another interpretation of these events, see: G. Rusbridger The Civics of Northern
Rhodesia, 103-4 (1953), a book "mainly
intended for use in African schools " Id. at viii. Oxford University Press,
Cape Town.
55. Native Courts Ordinance, No. 33 of 1929 S 3 (2) (N. Rhodesia).
56. Native Courts Ordinance, No. 33 of 1929 S 6 (N. Rhodesia). A subordinate court was defined
as any court, not a native court, subordinate to the High Court.
57. 1934 N. Rhodesia Native Affairs Annual Rep. 2. See pp. 37-38, infra.
58. 1931 N Rhodesia African Affairs Annual Report 5.
59. The Police Magistrates Ordinance, No. 40 of 1930, extended to police magistrates the powers
of magistrates courts. The Subordinate Courts Ordinance, No. 36
of 1933, created courts of the provincial commissioner, resident magistrate, district

commissioner, and district officer. The latter enactment, with amendment, is still the basic law
constituting the subordinate courts. Laws of Zambia chapter 45.
60. Penal Code Ordinance, No. 42 of 1930, now Laws of Zambia Cap. 146.
61. High Court Ordinance, No. 18 of 1933.
62. Id. S 141: No jurisdiction conferred on Subordinate Courts by any ordinance shall in any way
restrict or affect the jurisdiction of the (High) Court, but the judges of the court shall have, in all
causes and matters, civil and criminal, an original jurisdiction concurrent with the jurisdiction of
the subordinate courts.
63. Id. slO.
64. Id. s 17, empowering the court to enforce customary law, also provided that, when no rule of
customary law was applicable, ". . . the court shall be guided by the principles of justice, equity
and good conscience." Section 63 provided for native assessors to aid the court in interpreting
customary law.
65. Mitchell, "The Tribes in the Towns", in The Tribes of Northern Rhodesia 109, W. Brelsford
(ed), 1956, supra.
66. Epstein, Urban Courts Study 6; supra.
67. On conflict of laws see generally, supra, pp. 92-97.
68. Epstein, Urban Courts Study 4; supra.
69. See Moffat, African Courts and Native Customary Law in the Urban Areas of Northern
Rhodesia, 9J. Afr. Ad. 71 (1957).
70. See 1935 N. Rhodesia Native Affairs Annual Report 13.
71. Epstein, Urban Courts Study 5, Government Printer, Lusaka.
72. 7rf.at6.
73. For more on the assessor system, see generally 1935-1938 N. Rhodesia Native Affairs Annual
Report: Epstein, Urban Native Courts on the Northern Rhodesian Copperbelt, 3J. AFR. AD. 117,
(1951); Moffat, supra, note 69.
74. Epsten, Urban Courts Study 8.
75. Id. at 9; see also 1937 N. Rhodesia Native Affairs Ann. Rep. 26: 1938 N. Rhodesia Native
Affairs Annual Report 19:
76. Native Courts Ordinance, No. 10 of 1936.

77. Cf Epstein, Urban Courts Study No. 10, pp. 55-56 infra.
78. Native Courts Ordinance, No. 10 of 1936, s 8. Compare Local Courts Act, s 4.
79. Native Courts Ordinance, No. 10 of 1936, s 11. Compare Local Courts Act, s 11;
80. Native Courts Ordinance, No. 10 of 1936, s 31.
81. Native Courts Ordinance, No. 10 of 1936, s 33. Compare authorities cited in note 80 supra.
82. Native Courts Ordinance, No. 10 of 1936 S 12 (a). See note 19 supra.
83. Native Courts Ordinance, No. 10 of 1936 S 12 (b).
84. MS 13.
85. Id. S 41. The Barotse Native Courts Ordinance, No. 26 of 1936, restricted review in the
Barotse Province to criminal cases. The court structure in the Barotse Province, owing to the
special treaties entered into by the Litunga and the British Government, was unique. The judicial
system, unlike that in the rest of Northern
62 LAW IN ZAMBIA
Rhodesia, was composed of the Paramount's Court, a special court at Senanga, five "first class"
courts, and sixty-two "second class" courts. The Paramount*s Court, having unlimited civil
jurisdiction and criminal jurisdiction up to a £50 fine, 6 months imprisonment and 12 strokes,
usually sat as a court of appeal. 2 Lord Hailey, 1950,101.4 J. AFR. AD. 9 (1952).
86. 2 Lord Hailey, 1950,86.
87. Interview with James C. Chinjavata, Local Courts' Adviser, in Lusaka, March 2, 1970.
88. Epstein, Urban Courts Study 15-19.
89. /</. atll.
90. It is difficult to believe that the British thought otherwise. 1929 N. Rhodesia Native Affairs
Ann. Rep. 6. At least one writer has suggested that it was more convenient to take the view that
natives would return to the villages, for this would not place responsibility for unemployment,
education, or permanent housing on the government or mine owners. A. Hanna, The Story of the
Rhodesia and Nyasaland, Faber & Fabei, London. 1965, p 226.
91. J. Davidson, 3 Studies in Colonial Legislatures 31 (1947). London, Faber & Faber.
92. Cf A. Wills, An Introduction to the History of Central Africa 226-32 1967., supra
93. See, e.g. M. Gluckman, The Ideas in Barotse Jurisprudence 6-18 1965. Cf A. Yale U.P., New
Haven Epstein, Juridical Techniques and Judicial the Process 20-23 No. 23,1954 (The Rhodes-
Livingstone Papers).
94. See African Conference on Local Courts and Customary Law, Record of the proceedings 16-
17 (1963).
95. Epstein, Urban Courts Study 81-93 & 97; 1958 N. Rhodesia Native Affairs Ann. Rep. 46;
Moffat, supra, note 69.
96. Clay, African Advisory Councils in The Northern Rhodesia Copperbelt, 1 J. Afr. Ad. 33, 37-
38 (1949).
97. Epstein, Urban Courts Study 99, supra.
98. /</. at 18.
99. Id. at 96.
100. F. Spalding, E. Hoover, J. Piper, "One Nation One Judiciary: The Lower Courts of Zambia",
supra, p. 181-182.
101. E.g. These were embodied in the High Court (Amendment) Ordinance, No. 15 of 1937;
Subordinate Courts (Amendment) Ordinance, No. 16 of 1937 and various subsequent
amendments to such Ordinances.
102. Epstein, Urban Courts Study 100. The creation of the post was recommended in 1946 by the
secretary of state for the colonies. Dispatch from the Secretary of State for the Colonies, 10th
April 1946, set forth in Judicial Advisers' Conference, Record 5 J. Afr. Ad. (Supp.) 38-40 (Oct.
1953).
103. Epstein, Urban Courts Study 12-13., supra.
104. 1949 N. Rhodesia Native Affairs Ann. Rep. 28; 1958, N. Rhodesia Native Affairs Annual
Report 9.
105. High Court Ordinance, No. 41 of 1960, now Laws of Zambia c. 50 (1963) (hereinafter cited
as High Court HCE).

106. Native Courts Ordinance, No. 14 of 1961, later Laws of Zambia c. 158 (1964) and still later
repealed by the Local Courts Act s 71.
107. Id. at s 6 extended civil jurisdiction to cases involving amounts up to £200, criminal
jurisdiction to a £100 fine 2 years' imprisonment and 12 strokes. The ordinance did not
automatically give native courts these powers, but only authorised the issuance of warrants to
individual native courts up to these limits.
108. Relatively minor amendments included High Court (Amendment) Ordinance, No. 43 of
1961; High Court (Amendment) Ordinance, No. 71 of 1963; High Court (Number of Puisne
Judges) Ordinance, No. 13 of 1964; High Court (Amendment) Ordinance, No. 25 of 1964; and
Native Courts (Amendment) Ordinance, No. 34 of 1964.
109. See Appendix A. in F. Spalding, E. Hoover & J. Piper, "One Nation, One Judiciary : The
Lower Courts of Zambia," supra, p. 289. These facts indicate that native courts, established to
decide customary law cases, were hearing an increasing volume of quasi-criminal cases—
statutory offences having nothing to do with customary law. For a discussion of the point, see
White, The Changing Scope of Urban Native Courts in Northern Rhodesia; 8 J. Afr. Law 29
(1964); Robinson, The Administration of African Customary Law, 1 J. Afr. Ad. 158,160-61
(1949).
110. The statistics alone, of course, may not accurately reflect African attitudes toward native
court decisions. See 1935 N. Rhodesia Native Affairs Ann. Rep. 29; 1937 N. Rhodesia Native
Affairs Annual Report. 57; 1949 N. Rhodesia Native Affairs Ann. Rep. 28.
111. Some attempt had been made by the urban native courts to draw rules to meet the needs of
urban native litigants, but no attempt was made to conform these rules to magistrates' courts'
rules. See 2 Lord Hailey 1950 152. Cf p. 74.
112. See F. Spalding, E. Hoover, & J. Piper "One Nation, One Judiciary: The Lower Courts of
Zambia", supra, pp. 36-52.
113. Indeed, such planning as was being done concerning the native courts seemed to point to an
even more pronounced division between the native courts and the magistrates' courts. In 1963, the
Ministry of Native Affairs stated that its aim was eventually to "withdraw all criminal jurisdiction
from Native Courts". 1963 Conference, see generally pp. 70-79.
114. See Moffat, supra, note 69, at 79; 1963 Conference 84.
115. See Appendix A. Cited in note 109.
116. A. Mitchley, supra, note 52, at 14.
117. See The Legal Organization of a New State: Zambia, Rev. of Contemp. Law No. 1/1965 at
155.
118. Prior to independence, appeal from the High Court had been to extra-territorial appellate
courts—from the late 1930s until the mid-1950s to the Rhodesia and Nyasaland Court of Appeal
and during the period of the federation to the Federal Supreme Court.
The Independence Constitution of Zambia s 102 allowed the president to declare the judicial
committee of the privy council a court of appeal for Zambia— a power which the president never
exercised. This provision has twice been repealed.
64 LAW IN ZAMBIA
119. 1964 Rep. of Zambia Annual Report of the Judiciary and the Magistracy 1.
120. Id. at 4.
121. Id.
122. The judicial service commission is composed of the chief justice as chairman, the chairman
of the public service commission, the attorney-general, the secretary to the cabinet, and a member
appointed by the president. Constitution of Zambia (Amendment) of 1974 s 104.
123. 1964 Republic of Zambia Annual Report of Judiciary and the Magistracy 4.
124. 1964 Republic of Zambia Annual Report of Judiciary and Magistracy 4.

125. Id. On separation of powers, See F. Spalding, E. Hoover, J. Piper, "One Nation, One
Judiciary: The Lower Courts of Zambia," pp. 59-69; 1964 Annual Report p. 2.
126. 1965 Republic of Zambia Annual Report of the Judiciary and the Magistracy 1.
127. Id. The first training course for such magistrates was completed in December of that year, at
National Institute for Public Administration. Id.
128. The language of the report is more politic: "(T)ribal Courts ... will fall away "
1965 Annual Report at 4.
129. Id.
130. Id. at 4-5.
131. See note 1, supra.
132. 1966 Rep. of Zambia Annual Report of the Judiciary and the Magistracy 4-5.
133. Local Courts Act s 71. The repealed ordinances had been Laws of Zambia c 158 (1964) (see
note 106 supra) and Laws of Zambia c 160 (1965) respectively.
134. Local Courts Act s 4.
135. Id. S 72 (l)(a). Section 72(l)(b) also substituted the term "African customary law" for the
several other terms which had been used in other written laws to refer to indigenous customary
law.
136. Permitted by the Native Courts Ordinance s 39(1). In the absence of such appeal courts,
appeal lay to the subordinate courts. It was also provided that provincial commissioners might
direct that particular cases or classes of cases be appealed direct to a subordinate court.
137. Local Courts Act, S. 56.
138. Compare Local Courts Act, s. 9 with Native Courts Ordinance s 11.
139. Compare Local Courts Act, s. 6(1) with Native Courts Ordinance s 7(4)-(5).
140. Compare Local Courts Act, s. 3 & 55 with Native Courts Ordinance s & 38.
141. The basic grant of jurisdiction under these provisions includes authority to administrate
some 27 ordinances in their entirety and to administrate parts of four others e.g. the Penal Code.
142. Native Courts Ordinance s 10.
143. /is 11.
144. Compare Local Courts Act s 6(2) with Native Courts Ordinance S 7(1).
145. Compare Local Courts Act s 5(d) with Native Courts Ordinance S 6(d). See also Local
Courts Act S 43(7)(b) and Native Courts Ordinance S 28(10), both requiring confirmation of
sentences of corporal punishment.
146. Compare Local Courts Act s 5(a) (£100) with Native Courts Ordinance s 6(a) (£200).
147. Compare Local Courts Act s 5(b) (£50) with Native Courts Ordinance s 6(b) (£100).
148. Compare Local Courts Act s 5(c) (one year) with Native Courts Ordinance s 6(c) (two
years). See also Local Courts Rules s 12(2), Stat, Inst. No. 293 of 1966 and Native Court Rules c.
158 (Subsidiary) s 9(2) (1965), both requiring confirmation of sentences of imprisonment.
149. Compare Local Courts Act s 11 with Native Courts Ordinance S 13(l)(a).
150. Compare Local Courts Act s 12(2) with Native Courts Ordinance S 14(2). The Local Courts
Act refer to "African customary law" rather than "native customary law". Cf. Local Courts Act S
72(l)(b). It also speaks of offences constituted "by the Penal Code or by any other written law"
while the Native Courts Ordinances uses the phrase "by the Penal Code or by any other law". See
also note 19 supra.
151. Compare Local Courts Act s 13 with Native Courts Ordinance s 15. The former uses the
phrase "jurisdiction to administer all or any of the provisions of any written law so specified",
while the latter speaks of "jurisdiction to enforce all or any of the provisions of any law
specified". The Local Courts Act also makes the power of the minister expressly subject to the
limitations of its section 5(1).
See also Local Courts (Jurisdiction) Order, Stat. Inst. No. 353 of 1966, the basic grant of
jurisdiction under the Local Courts Act.
152. Compare Local Courts Act s 56 with Native Courts Ordinance s 39. See also Local Courts
Act s 56A and note 85, supra.
153. Compare Local Courts Act s 54 with Native Courts Ordinance s 38.
154. Seep. 23, supra.
155. Local Courts Act s 56(1).
156. Compare Local Courts Act Ss 2(1), 3 & 54 with Native Courts Ordinance Ss 35 & 38.
157. Native Courts Ordinance s 38(3).
158. Id. s 35. Under section 38(1), the commissioner and his deputy (see id. s 4) had free access
to inspect the records, but they were not "authorised officers" in the terms of section 35. Section
38(3) Limited revisory powers to "authorised officers". See also id. S 38(7).
159. Local Courts Act s 2(1).
160. Id. S55.
161. Id. S 2(1), which, designates senior resident magistrates, and resident magistrates as
authorised officers and allows the chief justice to designate other magistrates as authorized
officers. 2 Rep. of Zambia Gov't Gazette 602 (1966) (Notice No. 1632 of 1966).
162. Compare Local Courts Act s 54(3) with Native Courts Ordinance s 38(3).
163. See also Local Courts Act s 15(2) which allows a local courts officer, under the direction of
the adviser, to sit as an adviser in the limited classes of criminal prosecutions set out in section
15(1) wherein legal practitioners are permitted to appear before the local courts.
164. See F. Spalding, E. Hoover & J. Piper, "One Zambia, One Judiciary: The Lower Courts of
Zambia", supra, pp. 72-73.
66 LAW IN ZAMBIA
165. Laws of Zambia c. 7 (1965) (hereinafter cited as Criminal Procedure Code).
166. See note 59, supra.
167. No. 28 of 1965.
168. Subordinate Courts Ordinance s 3, as amended.
169. Id. Ss 3-4 & 6, as amended.

4. Bibliography
Finch, E. & Fafinski, S. (2013). “Legal Skills”. Oxford, United Kingdom: Oxford University Press.
Slapper, G. & Kelly, D. (2013). “ English Legal System”. United Kingdom: Routledge
Munalula, Margaret, (2004). Legal Process: Cases and Materials Lusaka: UNZA Press
www.routledge.com

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LAW102 Legal Writing and methods

1. Course Syllabus ......................................................................................................... 3

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1.2. Required Text:

1.5. Prerequisite (s): None

1.8. Course Policies

1.8.2. Instructional approach

1.8.4. Course Requirements: At least a 50% overall score.

1.9. Lesson Plan

Session Session Dates Title Remarks Possible

Letter Numerical Grade

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2.1. Session 1: Introduction to Legal Writing and Methods

2.1.2. Required Reading:

2.1.3. Learning Objectives:

a. Understand the importance of legal research

The importance of research

 It enables a lawyer to be informed of developments in his or her area of practice

 it enables a student to learn how cases are documented and stored

 it enables a student to learn where to find scholarly articles

 it enables a student to learn citation of :

o Statutory materials books and periodicals

 It enables one to make contributions to journals e.g. Zambia Law Journal

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• to keep abreast of developments in their own area of practice

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Types of legal research

Examples of research conducted by the ZLDC

2.2. Session 2: Sources of Law

2.2.1. Required Reading: Finch and Fanfinski., Legal Skills: Part 1

2.2.3. Learning objectives:

a. Explain the sources of law in Zambia

The constitution of Zambia

 The executive: includes the President Ministers and civil servants

See: Thomas Mumba v The People (1984) ZR 38

See: Part V of the Constitution

The officers of parliament

 controls and maintains order in parliamentary debates

 acts as speaker when the speaker is absent

Deputy Chairperson of committees of the house:

 Assists the deputy speaker when the house is sitting as a committee

 elected by respective political parties

Clerks at the table:

 sit in front of the speaker’s chair

 keeps order in parliament as directed by the speaker

How laws are made

Government bill: presented by a government minister

See: Kausa V Registrar of Societies (1977) Z.R 195

English common law, equity, and statutes

The British Acts Extension Act, Chapter 10 of the Laws of Zambia

See: Kaniki v Jairus (1967) ZR 71, R v Matengula (1951)5NRLR

International is divided in to customary international law and bilateral or multilateral agreements.

Bilateral and multilateral agreements

See: Zambia Sugar PLC V Fellow Nanzaluka SCZ No 38 of 2000

Customary international law

These have persuasive influence over the courts.

2.3. Session 3: Case Reading

2.3.1. Required Reading:

2.3.2. Learning Objectives:

a. Be able to find cases that have been reported

HOW TO READ A REPORTED CASE

1. The People v Banda (1993)1 ZR 160(H.C)