ZAMBIAN SOURCES OF LAW

The power to make law is generally assigned to Parliament. However, the term ‘sources of law’ takes
into account more than parliament and parliamentary legislation. The Sources of law in Zambia
include the following listed in the order of importance to the legal system: The Constitution, Acts of
Parliament, and Subsidiary Legislation, Judicial decisions, English Common law, equity and statutes,
and customary law.

The sources of law in Zambia are found in Article 7 of the 2016(amended) Zambian Constitution Act
No. 02 of 2016.

The first of which is THE CONSTITUTION. The Constitution of Zambia is the primary source of law
in Zambia. It is the primary source of law because it is the supreme law of Zambia and if any other
law is inconsistent with it, that other law, to the extent of the inconsistency, is void. Further, it binds
all persons in the Republic of Zambia including all Legislative, Executive and Judicial organs of the
State at all levels.1 That the Constitution is the supreme law of Zambia entails that the existence and
validity of other laws in the country depends on the extent to which such other laws are consistent
with the provisions of the constitution. This relationship between the constitution and other laws
was ably explained in the case of Thomas Mumba vs. The Attorney General.2 In that case, Mr. Justice
DK Chirwa had this to say: “In countries like Zambia where there is a written constitution, the
Constitution is the supreme law, any other laws are made because the Constitution provides for their
being made; and are therefore subject to it. It follows therefore that unless the Constitution is specifically
amended, any Act that is in contravention of the Constitution is null and void”.

The case of Christine Mulundika & 7 Others vs. The People3 is another case which confirms the position
that the validity of all other laws depends on their conformity with the constitution. In that case, the
appellants had challenged the constitutionality of certain provisions of the Public Order Act, Cap. 104
of the Laws of Zambia, especially section 5(4) which required any person wishing to hold a peaceful
assembly to obtain a permit and contravention of which was criminalized by section 7 of the same
Act. The challenge related both to the requirement of a permit and the prosecution based on the
absence of such permit and was grounded on the fundamental freedoms and rights guaranteed by
Articles 20 and 21 of the Constitution. A subsidiary challenge related to the exemption of certain
offices from the need to obtain a permit which is said to be discriminatory contrary to Article 23 of
the Constitution. The Supreme Court held that the then section 5(4) of the Public Order Act, Cap. 104
of the Laws of Zambia contravened Articles 20 and 21 of the constitution and was null and void and
therefore invalid for unconstitutionality. The Court further held that the invalidity and the
constitutional guarantee of the rights of assembly and expression precluded the prosecution of
persons and the criminalisation of gatherings in contravention of section 5(4) of the Act.
“Accordingly,”, stated the court, “a prosecution based on paragraph (a) of section 7 which depended

1 See Article 1(3) and (4) of the Constitution.

2 (1984) ZR, 38.
3 (1995) ZR.
on subsection 4 of section 5 would itself be inconsistent with the constitutional guarantees and
equally invalid”.

The two cases held in consideration hereinabove clearly identify the supremacy of the constitution.
Therefore, any entity, government organ or institution, in the administration of its functions, is bound
to follow strictly the provisions of the constitution to ensure good governance, and therefore, binds
all business entities to the respect of human rights and freedoms outlined in Part III of the
Constitution to the latter, to protect from discrimination, invasion of privacy and violation of the
freedom of conscience of each Zambian individual.

The second source of law is ACTS OF PARLIAMENT. Article 62 of the Zambian Constitution vests
legislative power in parliament which consists of the President and the National Assembly. The
power is exercised through Acts of Parliament. Subject to the provisions of the constitution, the
legislative power of Parliament is exercised by Bills (Proposed laws) passed by the National
Assembly and assented to by the President.4 Article 64(1) allows for a member of parliament to
introduce a bill in the National Assembly, which by virtue of Article 66 require presidential assent to
be passed into law. (See also Acts of Parliament Act5).

Types of Bills:

(a) Government Bill: These are also referred to as Public Bills because they affect the public as a
whole. A Government Bill is presented by His/her Honour the Vice –President or a Cabinet-Minister.
The bill comes with a Memorandum signed by the Attorney General (The Principle Legal Advisor to
the Government)6. The Memorandum gives objectives and reasons why the Bill should be passed.

(b) Private Bill: This type of Bill is usually sponsored by a person or persons with private interests
to advance. The Bill aims at enacting or altering the law that only affects a particular person or body
of persons such as private companies. For example, a Bill entitled “The Moslem Marriage Recognition
Bill” would enable a law to be passed that would recognise Moslem marriages. A Private Bill may be
presented on a petition by the promoter who could be a single person or group of persons. The
promoter of a Private Bill is also responsible for the costs incidental to the passage of the Bill in the
National Assembly.

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

4 See Article 63(1) of the Constitution.

5 Chapter 3 of the Laws of Zambia.
6 See S.12 of the State Proceedings Act Chapter 71 of the Laws of Zambia.
(d) Hybrid Bill: A Hybrid Bill is a Bill which, although general in its intended application, affects
certain private or local interests. The Standing Orders give the Speaker the power to determine
whether a Bill is hybrid or not.

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

Stages of a Bill:

(a) First Reading:

The first reading of the Bill is a formality. A Bill is presented and read for the first time. The
presentation of the Bill is done by the Minister or the Private Member responsible. Only the
title of the Bill is read out. There is no time limit that is provided for between the time that
the Bill is published by the Government Printer and when it should be read for the first time
in the National Assembly except for a constitutional Bill. In the case of a Constitutional Bill, it
should be published in the Government Gazette for not less than thirty (30) days before the
First Reading. After the Bill is read for the first time, the Bill is referred to the appropriate
Committee for consideration. The Committee has the power to summon witnesses to
contribute to the efficacy and objectives of the Bill. Witnesses include Ministers, Permanent
Secretaries and other stakeholders. Witnesses should convince the Committee on the
purposes and appropriateness of the Bill. It is important, therefore, that the witnesses that
appear before the Committee are adequately prepared. The proceedings of the Committees
are open to the public and the media. The Committee produces a report that is taken into
account during the second reading stage of the Bill.
(b) Second Reading:
This is the most important stage in the legislative process of a Bill. At this stage, the principle
behind the Bill is debated in the House in great detail. The Cabinet-Minister or Member
responsible for the Bill discusses the principles and objectives of the Bill and takes into
account the contents of the report of the Committee that considered the Bill. At the end of the
debate, the House decides whether to proceed with the Bill or not. If the majority of the
Members choose to proceed, the speaker orders the Bill to be read a second time. If on the
other hand, the majority decline, then the Bill is withdrawn and it cannot be reintroduced
during the same session. In the case of a Constitutional Bill, when the question is put by the
Speaker that the Bill be read a second time, a vote is immediately conducted and the Bill
requires the support of at least two-thirds of all Members of the House.
(c) Committee Stage:
At this stage, the Bill is ordered to be considered by the Committee of the whole House. The
Committee examines the Bill in detail, clause by clause. If there are any amendments to the
Bill either as a result of the Committee’s Report on the Bill or by the Cabinet-Minister or
Private Member responsible for the Bill, the amendments are presented to the Committee of
the Whole House at this stage for adoption or otherwise. The Deputy Speaker is the
Chairperson of the Committee of the Whole House. At the stage of the Committee of the Whole
House, Members of Parliament are free to speak more than once and are free to introduce
various amendments to the Bill.
 (d) Report Stage:
The Report Stage is when the amendments made at Committee Stage are reported to the
Whole House. At this stage, the House has an opportunity to reflect on the amendments. Only
additional amendments to the Bill not moved at Committee Stage are considered. If a Bill has
not been amended at Committee Stage, the Third Reading is preceded forthwith without the
Report Stage.
(e) Third Reading
At the Third Reading stage of a Bill, the Bill is reviewed in its final form and no debate takes
place. When the question has been put and agreed to, the Bill is passed and, therefore, is
presented to the President for assent. A Constitutional Bill has to be passed at Third Reading
with at least two-thirds majority of all Members of the National Assembly.
(f) Presidential Assent:
Where a Bill is presented to the President for assent, the President shall, within twenty-one
days after receipt of the Bill assent or refer it to the national assembly for reconsideration.
After the amendment or resubmission by parliament without amends on vote of two thirds
majority, the speaker, within seven days resubmit the bill to the president, who within the
aforementioned days is to assent to the bill or it shall become law.

The third source of law is DELEGATED LEGISLATION. Article 67 of the Zambian Constitution gives
Parliament authority to confer on any person or authority power to make rules, regulations, by-laws,
orders etc. with the effect of law. However, this delegated authority should ensure that all rules,
regulations, by-laws or orders so made are in conformity with the parent or main Act enacted by
Parliament. All delegated legislation, which is sometimes known as subsidiary legislation, takes the
form of Statutory Instruments (SIs). Section 2 of the Interpretation and General Provisions Act7 ,
defines a Statutory Instrument as “any proclamation, regulation, order, rule, notice or other
instrument (not being an Act of Parliament) of a legislative, as distinct from an executive, character”.
That Statutory Instruments are a source of law is unquestionable under section 20 of the
Interpretation and General Provisions Act. This is because under subsection 6 of section 20, “any act
done under or by virtue of or in pursuance of a statutory instrument shall be deemed to be done
under or by virtue of or in pursuance of the written law conferring power to make the instrument”.
But it is mandatory that every provision of a Statutory Instrument must be consistent with the
provisions of the parent or main Act. Any provision of a statutory instrument which is inconsistent
with any provision of the parent Act is void to the extent of the inconsistency8 . The Parliamentary
Committee on Delegated Legislation is responsible for ensuring that all Statutory Instruments are in
conformity with the principal statute under which they are made and that they also do not contravene
the provisions of the Constitution.

The Fourth source of law is COMMON LAW, EQUITY AND ENGLISH STATUTES. Common law is the
legal tradition which evolved in England from the 11th century onwards. It is defined as that ‘part of

7 Chapter 2 of the Laws of Zambia.

8 See subsection 4 of section 20 of Cap 2.
the law of England formulated, developed and administered by the common law courts, based
originally on the common customs of the country and unwritten’. Common law is the foundation of
private law, not only for England, Wales and Ireland, but also in forty - nine U.S. states, nine Canadian
provinces and most countries which first received that law as colonies of the British Empire and
which, in many cases, have preserved it as independent States of the British Commonwealth.

On the other hand, equity is a body of rules which seek to advance what is ‘just’ and ‘fair’ in the
circumstances of each case. For this reason, equity is said to denote ‘natural justice’. Equity developed
as a result of defects in the common law. The importance of the doctrine of equity is that whenever
there is a conflict between law and equity, the latter (equity) prevails.9

The extent to which common law, equity and English statutes are a source of law in Zambia is spelt
out in the English law (Extent of Application) Act10 . Section 2 of the Act provides that:

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

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

It is important to note that notwithstanding (despite) section 2 of the English law (Extent of
Application) Act, there are certain British Statutes which are still a source of law in Zambia despite
coming into force after 17th August, 1911. These are specified by the British Acts Extensions Act.11
They include the Conveyancing Act, 1911; the Forgery Act, 1913; the Industrial and Provident
Societies (Amendment) Act, 1913; the Larceny Act, 1916; The Bills of Exchange (Time of Noting) Act,
1917; the Married Women (Maintenance) Act, 1920; the Gaming Act, 1922; the Industrial and
Provident Societies (Amendment) Act, 1928; the Limitation Act, 1939; and the Law Reform
(Enforcement of Contracts) Act, 1954.

Mention must also be made that notwithstanding (despite) the provisions of the English law (Extent
of Application) Act, Cap 11 of the laws of Zambia, all English Statutes that apply to Zambia by virtue
of that Act serve only as ‘reserve’ sources of law in Zambia. This means that we can only resort to
such English statutes if our own Zambian Acts of Parliament are silent on a particular issue/matter.
This position was confirmed by the High Court in the case of The People vs. Shamwana & Others.12 In
that case, the accused were charged with treason. Proving the case of treason was dependent on Act
No. 35 of 1973. Before this Act, the law provided that one could only be convicted of treason if there

9 See Section 13 of the High Court Act Chapter 27 of the Laws of Zambia.
10 Chapter 11 of the Laws of Zambia.
11 Cap 10 of the Laws of Zambia
12 (1985) Z.R. 41 (S.C).
were two witnesses to an overt act or two witnesses who each observed a separate overt act of the
same kind of treason. This was the law in England and Zambia. But Act No. 35 of 1973 changed the
law in Zambia ensuring that there was no requirement as to a specific number of witnesses to prove
the offence of treason. After the Act came into force, the offence of treason could be proved like any
other criminal offence Among the issues that were raised was whether the law applicable to the
offence was by virtue of the English Law (Extent of Application) Act, the English Treason Act of 1795.
The High Court ruled as follows: “The English Law (Extent of Application) Act, Cap 4 is an enabling Act
in that in the absence any legislation in Zambia on any subject, English statutes passed before 17 August
will apply. Where Zambia enacts an Act with similar provisions to an English Act, the Zambian Act is
used not the English statute”. The Court therefore concluded that the Zambian Act No. 35 of 1973 and
not the English Treason Act of 1795 was applicable to the offence with which the accused stood
charged. Accordingly, the accused were convicted.

Also worth noting is the fact that in terms of practice and procedure, the Zambian legal system also
relies heavily on English law. This is evident in the provisions of the Subordinate Courts Act13; the
High Court Act14; and the Supreme Court Act15.

Section 12 of the Subordinates Court Act provides that “the jurisdiction vested in Subordinate Courts
shall be exercised (so far as regards practice and procedure) in the manner provided by this Act and the
Criminal Procedure Code, or by such rules and orders of court as may be made pursuant to this Act and
the Criminal Procedure Code, and, in default thereof, in substantial conformity with the law and practice
for the time being observed in England in the county courts and courts of summary jurisdiction”. Section
10 of the High Court Act, as read with section 2 of the High Court (Amendment) Act No. 16 of 2002,
has a similar provision. It provides that “the jurisdiction vested in the Court shall, as regards practice
and procedure, be exercised in the manner provided by this Act and the Criminal Procedure Code, or by
any other written law, or by such rules, order or directions of the Court as may be made under this Act,
or the said Code, or such written law, and in default thereof in substantial conformity with the law and
practice for the time being observed in England in the High Court of Justice provided that the Civil Court
Practice 1999 (The Green Book) of England or any other civil court practice rules issued after 1999 in
England shall not apply to Zambia unless they relate to matrimonial causes”.

In similar lines, section 8 of the Supreme Court Act, as read with section 2 of the Supreme Court
(Amendment) Act No. 15 of 2002, provides that “the jurisdiction vested in the Court shall, as regards
practice and procedure, be exercised in the manner provided by this Act and rules of court: Provided
that if this Act or rules of court do not make provision for any particular point of practice and
procedure, then the practice and procedure of the Court shall be-

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;

13 Cap 28 of the Laws of Zambia.

14 Cap 27 of the Laws of Zambia.
15 Cap 25 of the Laws of Zambia.
 ii. in relation to civil matters, as nearly as may be in accordance with the law and practice for
the time
being observed in the Court of Appeal in England.” except that the Civil Court Practice 1999 (The
Green Book) of England or any other civil court practice rules issued after 1999 in England shall
not apply to Zambia unless they relate to matrimonial causes”.

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

The fifth source of law in Zambia is JUDICIAL PRECEDENTS. The doctrine of precedent (Something
that has been done before) is one of the characteristic features of not only the English legal system
but also all legal systems founded upon the English common law system like Zambia. Judicial
precedent may be defined as “a judgement or decision of a court of law cited as an authority for
deciding a similar set of facts” or as “a case which serves as an authority for the legal principle embodied
in its decision”. The doctrine of precedent declares that cases must be decided the same way when
their material facts are the same. At first sight this may not appear a source as the duty of the courts
is to apply the law as it exists. Dr C. K. Allen in considering whether judges “make” law considered
“We must use this word 'make' with caution, and I think we shall find that in one sense at least, judges
are not merely resorting to what Bentham called a 'childish fiction' when they disclaim the capacity
to create new law. The creative power of the courts is limited by existing legal material at their
command. They find the material and shape it. The legislature may manufacture new material."

In the province of tort, however, there are two notable of examples of judicial law-making, namely
the law of negligence in Donoghue v Stevenson16 and the rule of strict liability in Rylands v Fletcher17,
whilst in criminal law, the House of Lords in Sheus v Director of Prosecutions (1962) claimed a
residuary law making power.

The Sixth source of law is CUSTOMARY LAW. Customary law is the oldest form of law known to man
worldwide. It consists of customs, practices and beliefs that are accepted by a given society as rules
of conduct. It is not enacted but grows or develops with time. It expresses itself not in a succession of
words, but in a course of conduct. It has no definite authors; there is no person or defined human
agency one can praise or bless for its being good or bad. In Zambia, as in several other countries,
different tribes observe different customs, practices and beliefs. The customs, practices and beliefs
observed by each tribe sometimes act as a source of customary law for members of the tribe.

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

16 [1932] AC 562 (HL).

17 (1868) LR 3 HL 330 (HL).
That customary law is a recognised source of law in Zambia is also evident by the provisions of the
Local Courts Act18 and the Subordinate Courts Act. According to section 12 of the Local Courts Act,
every Local Court has jurisdiction to administer the African customary law applicable to any matter
before it, as long as such a law is not repugnant to natural justice or morality or incompatible with
the provisions of any written law. Further, any offence under African customary law, where such law
is not repugnant to natural justice or morality, may be dealt with by a local court as an offence under
such law notwithstanding that a similar offence may be constituted by the Penal Code or by any other
written law provided that such local court shall not impose any punishment for such offence in excess
of the maximum permitted by the Penal Code or by such other written law for such similar offence.

And section 16 of the Subordinate Courts Act recognises the application of customary law in the
following terms: “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-

(i) no party shall be entitled to claim the benefit of any African customary law, if it shall appear,
either from express contract or from the nature of the transactions out of which any civil cause,
matter or question shall have arisen, that such party agreed or must be taken to have agreed
that his obligations in connection with all such transactions should be regulated exclusively by
some law or laws other than African customary law;

(ii) in cases where no express rule is applicable to any matter in issue, a Subordinate Court shall
be guided by the principles of justice, equity and good conscience.

Application of Customary Law: See Kaniki v Jairus (1967) ZR 71 HC

The seventh Source of Law is INTERNATIONAL LAW. International law International law may be
described as a body of rules that determine how sovereign States conduct themselves towards each
other and towards each other’s subjects.

18 Chapter 29 of the Laws of Zambia.

International law has several areas of specific focus including international human rights law;
international humanitarian law; international trade law; international business law; international
investment law; international economic law etc. But the principles applicable in all these areas are
drawn from either international customary law or bilateral or multilateral agreements.

For this reason, international law is divided into two main categories namely customary international
law and the law of bilateral or multilateral agreements. But there are also sub categories exist. These
include Public international law and private international law. Bilateral and multilateral agreements
are a source of law in Zambia only if they have been domesticated.

Domestication simply means according a bilateral or multilateral agreement the force of law so as to
make it enforceable in the courts of law. This is achieved through the enactment, by Parliament, of
the relevant enabling legislation. It is worth noting that no bilateral agreement can be domesticated
unless it has been ratified or acceded to by the Zambian Government. That Bilateral or multilateral
agreements are a source of law only if they have been domesticated is exemplified by the case of
Zambia Sugar Plc vs Fellow Nanzaluka.19 In that case, Mr.Nanzaluka was employed by Zambia Sugar
Plc in 1992. His employment was terminated without notice in 1996. He was paid three months
salary in lieu of notice. He brought an action in the Industrial Relations Court. The court accepted that
the conditions of service had been complied with but held that the action was contrary to the
International Labour Convention No. 158 of 1982 which forbids termination of an employee’s
contract of employment without valid reasons. On appeal to the Supreme Court, it was held that
international instruments on any law although ratified and assented to by the state cannot be applied
unless they have been domesticated and that since Zambia had not yet domesticated the
International Labour Convention No. 158 of 1982, the convention was inapplicable to Zambia.

The case of Attorney General vs. Roy Clark20 also sheds light on the need for international instruments
to be domesticated before they become applicable to Zambia. In this case, Mr. Roy Clark challenged
his deportation from Zambia. It was contended, inter alia, on behalf of Mr. Clark that the Minister of
Home Affairs should have taken into account Article 13 of the International Covenant on Civil and
Political Rights (1966) before deporting Mr. Clark because Zambia is a signatory to the Covenant. The
High Court accepted this argument. On appeal, this is what the Supreme Court stated: “…. The learned
trial Judge said that when deporting the respondent, the Minister should have taken into
consideration Article 13 of the International Covenant on Civil and Political Rights to which Zambia
is a signatory. Article 13 requires that a potential deportee must be given an opportunity to be heard
unless there are compelling reasons of national security. It was Dr. Matibini's submission that in this
case, it has not been demonstrated that there existed compelling reasons. Dr. Matibini ended his
submissions on this ground by saying the learned trial judge was on firm ground when he held that
it was unlawful to deport the respondent when there are no compelling reasons of national security
and because deportation interfered with his family life. We have considered these submissions. We
agree that in applying and construing our statutes we can take into consideration international
instruments to which Zambia is a signatory. However, these International Instruments are only of
persuasive value unless they are domesticated in our laws. The provisions relating to deportation as

19 Appeal No. 82 of 2001.

20 (2008) ZR, 38.
contained in section 26(2) which we have reproduced above are clear. We cannot import in our
interpretation of section 26(2) glosses and interpolations derived from Article 13(1) aforesaid.
Under section 26(2) long stay in Zambia and raising a family in Zambia by an alien does no legally
immunize a foreigner from deportation. Further, for one to be deported under section 26(2) there
need not necessarily be compelling reasons of national security….”

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

The eighth source of law is MODERN TEXTBOOKS written by eminent legal scholars are often
resorted to for a variety of legal principles in various areas of law. Such as legal process by Margaret
Munalula, inter alia.