1.0. INTRODUCTION.

The essay aims to discuss public interest litigation and whether such action can be
commenced in Zambia. The paper will first start by defining public interest litigation and will
discuss how it can be commenced, the eligibility of the parties and remedies that the litigants
would be entitled to. The paper will then give a conclusion to the residents of Lusaka as to
whether can commence a public interest litigation action against Lusaka Water and Sewerage
Company and other alternatives actions available to them.

1.1. DEFINATION.

Public interest litigation has been defined as something in which the public community at
large has some pecuniary interest or some interest by which their legal rights or liabilities are
affected.1 Litigation on the other hand means a legal action including all proceedings before
the Court of law. Therefore, public interest litigation is enforcement of rights in favour of the
general public, interest by way of Litigation.2

A CASE STUDY OF INDIA.

A good legal system is one that is ready to respond to the novelty of situations of the growing
needs of the society. This means that the litigation procedures should not be a hindrance to a
party seeking justice. India is an example of a country like any other in the common law
jurisdiction which was faced with a lack of social legitimacy due to the common law
procedures of judicial review that were unresponsive to the developing society. The Supreme
Court of India decided to modify the common law procedures of locuss standi. They relaxed
the rules by introducing the doctrine of public interest litigation which was aimed at targeting
the vulnerable groups of the society to have easy access to the Court through simple means
like merely by writing a letter. 3

From the forgoing, it can be seen how India has democratised the access to justice by
embracing new ideas and technological innovations in the Court process. Relaxing the rules
of Locus Standi has enabled public spirited citizen or social action group to approach the
Court on behalf of the oppressed classes. The Courts attention can be drawn even by writing

1
The Black’s Law Dictionary www.legalog.in/2011/02/public interest litigation-definition html>accessed on
1/10/18,
2
Public Interest Litigation: An Expression of Voice for the Silent>http://ssrn.com/abstruct=150271> accessed
on 1/10/18.
3
Ibid.
a letter or sending a telegram. This has been called epistolary jurisdiction. 4 India like many
other countries is an example of a good legal system because it is not rigid and static but has
been able to embrace change and grows with the society. The main goal of the Court should
be to administer justice equitably and fairly. India has done this through public interest
litigation.

PARTIES TO THE PROCEEDINGS.

The Beauty about public interest litigation is that any person can bring an action against a
public body provided that they had sufficient interest in the matter. A person who is bonafide
can bring an action for public interest litigation against a public body in the interest of a
particular community. In the case of Gupta v. Union of India,5 the Supreme Court laid down
new rule stating that any member of the public acting bonafide and having sufficient interest
in the matter can maintain an action for redress against a public wrong or public injury. A
third party can be a Non-Governmental Organisation, civil society groups, including busy
bodies are allowed to file claims of public interest litigation for vulnerable groups in the
society.

An action of public interest litigation can be commenced were there has been a public injury,
or public wrong caused by wrongful or ultra-virus acts or omissions of the State or any public
authority.6 The main objective of the public interest litigation is to secure the public interest
and protection of legal or Constitutional rights of the disadvantages groups of the society. In
the case of State of Himachal Pradesh v. A Parent of Student of a Medical College, the
Supreme Court observed that, public interest litigation is an innovative strategy for the
purpose of providing easy access to justice to the weaker sections of the Indian community.

It can be seen from the forgoing that public interest litigation is a tool that public spirited
individuals and social action groups can use to voice out the grievances of the disadvantaged
persons of the society against public officials and the government. It is a medium that the
Court can use against public officials in order to discourage the exploitation of the rights of
the underprivileged. As a result, public interest litigation helps the Courts to protect the rights
and freedoms of the disadvantaged groups of the society. These groups may include: women,

4
Public Interest Litigation: An Expression of Voice for the Silent>http://ssrn.com/abstruct=150271> accessed
on 1/10/18
5
Gupta v. Union of India, 1981 (Supp) SCC87: AIR 1982 SC 149
6
Diwedo Law of Agency, First Edition, Public Interest Litigation & Our Right, Allahabad, 2003, P. 60
the orphaned, the poor communities, children, people living with HIV, the disabled and many
other vulnerable groups of the society.

One of the main goals of a legal system is to dispense justice equitably. Public interest
litigation has been now resorted to in many jurisdictions because it is a mechanism for
guaranteeing the protect human rights. In India it is being used as a means of creating a new
regime of human rights by expanding the meaning of fundamental right to equality, life and
personal liberty. In this process, the right to speedy trial, free legal aid, dignity, means and
livelihood, education, housing, medical care, clean environment, right against torture, sexual
harassment, solitary confinement, bondage and servitude, exploitation and so on emerge as
human rights.7 Public interest litigation has provided a means for the enforceability of new
reconceptualised rights that were not capable of being enforced in the traditional system.

COURT PROCECESS.

Public litigation actions do not follow the traditional adversarial system of the common law.
In the case Bandhua Mukuti Morcha v. Union of India8 it was stated that public interest
litigation is not in the nature of adversary litigation but provides a means through which the
government and its officers make the human right meaningful. Class actions can be
commenced against public officials which could not be possible under the adversarial system.
In the case of Bandhua Mukti Morch v Union of India, 9 the Court stated that in public interest
litigations, the role of the judiciary is more assertive than traditional actions. A single
individual or small organisation can bring an action against a public body with their lawyers
present. The Courts merely recognise themselves to be independent arbitrators of the
Constitution and the rule of law.

Public litigation actions in India have been described to be dynamic as they embrace matters
that are unconstitutional, or matters resulting from a breach on the part of the government, or
private officials that could not be enforceable under the traditional type of litigation.10
Therefore, it can also be noted that the relaxing of the traditional rules of the Court process
has helped the Courts to dispose off matters expeditiously, thus making the justice system
accessible and cheaper to the vulnerable masses of the society.

7
Public Interest Litigation: An Expression of Voice for the Silent>http://ssrn.com/abstruct=150271> accessed
on 1/10/18
8
Bandhua Mukuti Morcha v. Union of India (1984) (2) SCR 67.
9
Ibid.
10
Public Interest Litigation: An Expression of Voice for the Silent>http://ssrn.com/abstruct=150271> accessed
on 1/10/18
REMEDIES.

Public interest litigation is being used by many jurisdictions to respond to the new problems
that arise in society. In India, public interest litigation has opened the door for new remedies
that are now being used against public officials and the government. In the case of Bandhua
Mukti Morcha v Union of India,11 the Court stated that rights of the people are subordinate to
the interests of those, for whose benefit the action is brought. In order to deliver justice to the
vulnerable communities, the Indian Courts have fashioned new kinds of relief’s under the
court’s writ jurisdiction. For example, the Court can now award interim compensation to the
victims of governmental lawlessness.

Such remedies could not be granted under the Anglo-Saxon model of adjudication where
interim relief were limited to preserving the status quo pending final decision. In public
interest cases the Court can grant any relief against the government or any public official. In
the case Bandhua Mukuti Morcha v. Union of India,12 public interest litigation was described
to be dynamic to embrace matters that are unconstitutional, or matters resulting from a breach
on the part of the government.

From the forgoing, we can see how the Indian Courts are enforcing the rule of law against
public officials. This is a sign of total subordination to the Constitution and the Courts in
India are able to efficiently provide checks and balances to the other organs of the
government by voiding acts of the government that are unconstitutional.

AMERICA.

America has also adopted public litigation as a means of addressing providing justice to the
vulnerable communities. Article III Section 2 of the American Constitution 13 lays down that
judicial power shall extend to all the cases, in law and equity, arising under this constitution,
the laws of the United States and treatises made under their authority to controversies
between citizens of different states and between a state and citizens thereof. In the case of
Environmental Defence Fund v. Environmental Protection Agency, 14a group of scientist filed
a suit against the Suffolk country mosquito control commission alleging adverse

11
Supra note 8
12
Bandhua Mukuti Morcha v. Union of India (1984) (2) SCR 67.
13
The American Constitution, Article 3.
14
Environmental Defence Fund v. Environmental Protection Agency, 167 F.3d 641, 643 (D. C.ir. 1999)
environmental impact on wildlife by the extensive use of DDT. The court granted a one-year
ban on the use of DDT which was later made permanent by the county.

England.

Order 53, Rule 3(5) of the new rules of the Court were introduced in January 1978. These
rules have enabled a party to recover all the remedies of certiorari, mandamus and prohibition
and also a declaration and injunction. In respect of all these remedies it lays down one simple
test of locus standi the applicant must have a sufficient interest in the matter to which the
application relates.15 Therefore, it can be seen that England still relies on the test of Locus
Standi in order for an action to be commenced against the government. However, there is no
restrictions in terms of the remedies that can be actionable against the government.

PUBLIC LITIGATION IN ZAMBIA.

Public interest litigation does not exist in Zambia because it has not been expressly provided
for in any legislative provisions. It is also difficult for one to commence an action of public
interest against a public body because certain remedies cannot be enforced against the State.
16
The State Proceedings Act prohibits the granting of injunctions against the State. In
Zambia National holdings and Another v the Attorney General,17 the appellants land was
acquired by the orders of the president in the “interest of public”. The appellants had
challenged the decision of the decision of the State and sought an injunction restrain the state
from possessing and occupying the land.

The High Court had held in their favour by striking down Section 16 of the State Proceedings
Act because it violated the constitution. On appeal, The Supreme Court restored it back on
the basis that it was not a violation to Article 28 of the Constitution. This was also affirmed in
the case to the Attorney General v. the Law Association of Zambia18were Dr Matibini
interpreted Section 28 (1) of the Constitution as a provision which provides for the
protection of the fundamental human rights but at the same time placed limitations on the
remedies to secure rights and freedoms. The appellant sought an interim injunction against
the president in order to prevent him from announce the date for the elections. It was held that
Article 28 did not provide for the remedy he sought for.

15
Public Interest Litigation: An Expression of Voice for the Silent>http://ssrn.com/abstruct=150271> accessed
on 1/10/18
16
The State Proceedings Act Section 16 of Cap 71, of the Laws of Zambia.
17
Zambia National Holdings and Another v. the Attorney General [1993-1994] Z. R, 115 (S.C)
18
Attorney General v. the Law Association of Zambia [2008] Vol 1 Z. R. 21. (S.C)
Clearly, both these judgments show that the Zambian Courts uphold procedural requirements
over justice. The Constitution of Zambia reflects the morals and values of its people. It is the
supreme law of the land and any written or customary law that is inconsistent with it will be
19
void to the extent of its inconsistency. Supremacy means unconditional subordination by
the different organs of the government to the Constitution. 20 It means upholding the rule of
law, and in doing so, the Courts have a responsibility to interpret the law and to struck down
any laws that are inconsistent with the Constitution.

Public litigation can only work in Zambia if the Courts put the interest of the public first and
ensuring the fairness in the dispensation of justice like the Indian Courts. The Courts should
move away from emphasises on procedural requirements and focus on fairness in the
deliberation of justice. An example is the case of New Plast Industries v. Commissioner of
Lands,21 the Court in this case dismissed the application for judicial review. It can be argued
that even though the Courts correctly interpreted the law, the effect is that the procedural
requirements the Courts emphasised on disadvantaged the applicants. From this decision, it
can correctly be deduced that in Zambia procedural requirements take precedence over
justice.

Therefore, as the law stands in Zambia, the residents of Lusaka cannot commence a public
interest litigation action against Lusaka water and sewerage because Section 16 of the State
Proceedings Act places restrictions on any reliefs against the State in civil proceedings. The
alternative action for them would be by way of judicial review.

REMEDIES FOR THE LUSAKA RESIDENTS.

Lusaka water and Sewerage company is a parastatal company. A parastatal has been defined
as a company or agency, that possesses some political clout and is separate from the
government but whose activities serve the State either directly or indirectly.22 Lusaka water
and sewerage is a company funded under the Companies Act of Zambia.23 It is a private body
performing public functionaries.

Since there is a contractual relationship between the Lusaka water and Sewerage Company
and the residents of Lusaka. Lusaka water and Sewerage breached its obligation to supply
19
The Constitution of Zambia (2016) Article 1 (1)
20
Anyangwe et al, Zambia Law Journal Volume 29, “ The Zambian Constitution and the Principles of
Constitutional Autochthony and the Supremacy”. Lusaka: Unza Press.
21
New Plast Industries v. The Commissioner of Lands and Another (2001) Z. R. 58 (S.C).
22
www.yourdictionary.com. accessed on 09/10/18.
23
The Companies Act of Zambia, CAP 388 of the Laws of Zambia (2017).
water to the residents of Lusaka. Those affected can commence a civil against Lusaka water
and Sewerage Company under Order 6 (2) of the High Court Act24. They can commence a
tort action for damages or they can claim compensation for their losses. The parties need to
show how they have been affected, for example some would need to show how their business
have been affected or how they have been inconvenienced by the loss of water supply in
order to enable the Courts to assess the damages.

CONCLUSION.

In conclusion public interest litigation as earlier noted can only take place in Zambia if the
procedural riles under Order 53 of the rules of the Supreme Court and the State Proceedings
Act are done away with. A good legal system is one that is not rigid but grows with the needs
of the society in order to respond to new problems. Public interest litigation has worked well
in countries like India, because they have done away with common law rules of Locus standi
as provided by Order 53. The major role of the Courts is to dispense justice in an equitable
and fair manner. The only this can happen in Zambia as seen from India is through public
interest litigation. Since public interest litigation is not actionable in Zambia, the alternative
remedies for the Lusaka residents against Lusaka Water and Sewerage Company would be a
claim for damages under the law of tort, or they can claim to be compensated for their losses.

24
High Court Act, CAP 87 of the Laws of Zambia.