CIVIC EDUCATION

On today’s pupil’s forum in Civic Education, will look at a topic: Zambia’s Legal System. This topic will focus on Law, Elements of good legal system and sources of Zambian law. This topic is at grade eleven (11) level of the Zambian curriculum. At the end of this discussion, learners will be required to answer questions.

Zambia’s Legal System

The Law

• The Law is a set of rules, which a society develops for itself to control the behaviour of its members to one another.

• It also includes the meting out of punishment to members of society that do not abide by the rules and the awarding of compensation to people who have been wronged.

• Without law, society as we know it would be impossible because freedom without boundaries results in anarchy, which means total confusion. From the time that human beings are born, their lives, safety, health and peace are controlled by law.

Elements of a good legal system

A good legal system is one that serves members of its society fairly without violating their rights. There are six core elements that should be present in a good legal system. A good legal system has to be:

• Simple (Uncomplicated)

A law has to be written in a language that can be easily understood by a large section of society. The form of language and the level of difficulty should suit the needs of the majority of citizens.

• Comprehensive (Inclusive)

It should not leave gaps but attempt to cover all possible areas of dispute, concern or debate. It should anticipate future problems and include them in the laws. It should not be constantly formulating new laws as wrongful acts take place.

• Certain (Definite)

Citizens ought to know clearly what is prohibited by law. A law should not be so ambiguous or vague that it is only fully understood and interpreted by a small number of people in society. It should therefore be documented so that it is possible to refer to it and that it should be clear to everyone who consults it.

• Accessible (Obtainable)

It should be readily available to members of the public. This means that it should also be affordable. If citizens come into conflict with the law, they should be able to afford legal representation. Similarly, a wronged person should be able to readily access legal means of having their problem dealt with. If the legal system is not affordable, then it excludes a large number of people.

• Flexible (Adaptable)

Laws have to keep up with social change and therefore, they should change with time. If a type of dispute which was not there previously comes up, the law should change to take care of any new challenge. If it does not, then it is rejecting change. A good law should not reject change.

• Moral Values (Ethical)

The law should be based on the moral values of society. If laws do not reflect society’s core values, citizens are unlikely to respect and uphold it.

Sources of Law in Zambia

Sources of law are the starting point to refer to in order to find what the law says when one is faced with a legal problem. Zambia has a dual legal system and relies on the English Law and African Customary Law.

i. English Law Sources

• Common Law is one of the Laws that Zambia has adopted. Common Law is the Law that started from customs that were common to all parts of England.

• England applied this Common Law to its colonies such as Zambia and after independence this became part of the sources of law of the Zambian legal system.

ii. Legislation

Legislation or statutes is the largest source of law in Zambia. These are laws enacted by parliament. All powers to make laws are vested in parliament. There are three types of laws made by legislation.

a) The Constitution

• The Constitution is the Supreme Law of the land. Article 1 Paragraph 3 of the 1996 Amended Zambian Constitution states out its supremacy.

• It states, This Constitution is the Supreme Law of Zambia and if any other law is inconsistency of this law, that other law will be declared void.

• This implies that if any law does not conform to the Constitution, then that law becomes invalid b) Acts of Parliament

• Acts of Parliament are laws made through bills passed by the National

Assembly and assented by the President.

• The process begins with the presentation of a bill in the National Assembly and passes through three Reading Stages before being sent to the President to either veto or withhold his or assent.

• If he/she assents, the bill is gazetted and becomes law.

• If the President does not sign, the bill is sent back to the National

Assembly.

• The National Assembly can either debate further or make changes or it can send back to the President in its original form.

• When this happens, the President has 21 days in which to either assent or dissolve Parliament to pave way for fresh elections. c) Delegated or Subsidiary Legislation

• Delegated or subsidiary legislation are laws delegated to the Executive wing of the government to make as provided for in an act of parliament.

• The law recognized that it would not be possible for parliament to make all laws.

• Parliament has allowed government ministers to make laws. For example, the Education Act allows the Minister of Education, through consultations to issue government circulars that become law.

iii. Case Law

• This is the second largest source of law in Zambia.

• It is also known as Law Reports or Judicial Precedent.

• This is when, in disposing of a case, the court refers to how a similar case was decided upon by a superior court.

• In Zambia, superior courts are the Supreme Court, the Constitutional

Court, the High Court and the Industrial Relations Court.

• The High Court and the Industrial Relations Court are at the same level, the difference is in the type of matters they handle.

• The High Court handles criminal and civil cases while the Industrial Relations Court handles employment or labour disputes. The four courts handle appeal cases and are therefore known as appellant courts.

• The Magistrate Courts and the Local Courts are lower courts.

• The decisions of the appellant courts are reported in the Zambia Law Reports.

• Decisions of the appellant courts are binding on subordinate courts.

• For example, if a case handled by the Supreme Court is recorded in the Law Reports, this decision is binding on the High Court and the Industrial Relations Court. The imaginary case below illustrates this point:

Case Laws are important because they:

i. Save time as there is no need for a whole new research. ii. Show respect to the judges who made the previous decisions. iii. Ensure equality, uniformity and stability in the law. If a murder case takes place and a decision is made, when another murder case takes place in similar circumstances the same decision as the first murder case should apply regardless of who committed the offence.

iv. International Treaties

• Zambia is signatory to a number of International Treaties.

• The contents of these treaties are the sources of Law.

• Note that in order for these International treaties to become Law they have to be domesticated through an Act of Parliament in order to officially become Zambian Statutes.

Note: we have two types of legal systems in the world namely; Monist and Dualist. Dualist legal system which recognises International Law as law but does not apply directly on the country not until it is domesticated through an Act of Parliament while Monist Legal system considers International and domestic law as one.

v. Customary Law

• Customary Law is derived from custom, which is the practice of doing things in society.

• These practices differ from the ones in Statutory Instruments because they are not written and not codified.

• Before Zambia was colonised, the indigenous people were using their customs, most of which have been in use from prehistoric times, as their law.

• For a custom to be recognised and enforced by the courts as law, it must be in existence for a long time, sometimes over centuries and it must be freely accepted by most citizens for it to be binding on them.

• Most Zambians are governed by customary law in their personal affairs. • The local courts which administer customary law are located all over the country and they are the ones commonly used by the less privileged and the vulnerable in society.

• They are easily accessible and conducted mainly in local languages, although English is also allowed. As a result, local courts hear 80% of the total cases brought before all the courts in the court system annually. Customary law is also applied in traditional courts, which are presided over by traditional rulers.

• Customary law uses advisors who are called assessors to give advice on particular matters.

• These assessors are not extra Justices but play the role of a consultant. For example, if a court is about to hear a case involving a Lamba customary law, it could invite a Lamba person of suitable character and social status to sit as an assessor for that particular case only.

• The advice of assessors is given in open court so that everyone can hear it and that the persons concerned shall be able to respond or bring evidence on matters after such advice is given.

Exercise

1.Define Law

2.State two (2) elements of good legal system

3.Name three (3) sources of Zambian Law

4.Explain;

(a) Act of Parliament

(b) Case Law

5.State three (3) importance of Case Law

6.The president has ........days in which he/she can either asset or dissolve the Parliament to pave way for the fresh elections.