1.1.1.1 Importance of Law

1. Ensures equality and freedom of citizens of a nation;
2. Ensures peace and order;
3. Helps in protection against harm to persons and property;
4. Ensures that persons committing crimes do not go unpunished;
5. Is the foundation for good governance;
6. Used for the development of society.

1.1.3.1 Attributes of an Effective Legal system

An effective legal system is one which recognises the legal rights of the individual and can grant relief for any wrongs suffered.

In common law, an effective legal system is one in which the courts function efficiently and where individuals can turn to when their rights are infringed. Attributes of an effective Legal System include:

1.1.3.2 Duality of the Zambian Legal System

The duality of the Zambian legal system arises from the fact that the legal system is based on statutory law as well as tribe specific customary law.^[3] The statutory law is based on the English Common law system while customary law is based on various norms and cultures of different tribes in the country. The peculiar feature of the dual legal system is that it creates two standards of justice applied side by side with regard to the same population.^[4]

Zambia has a dual legal system. The country has two legal paradigms that together form its legal system.⁵ On one hand there is a system of Indigenous Customary Law of the various ethnic groups in the country and on the other there is Received English System which is as a result of colonisation. The latter is based on the English common law system and is applied in the higher courts of law while the former is mainly applied in the Local Courts and Traditional Courts.⁶ Article 7 of the Constitution of Zambia provides as follows

1. It is possible for a country to apply two different types of laws at the same time.
2. What do we call this type of legal system? Give examples
3. What type of cases are these? Which type(s) of law may apply for each case?
   1. Mulenga is found stealing maize from his neighbor’s field at night.
   2. Mary had borrowed K2 Million with a promise to pay back but has not paid up to now
   3. Paul’s 14-year-old daughter is impregnated by Banda who has paid lobola
   4. A taxi driver parks a car on a sloppy ground. The car later rolls back and hits a 50-year-old woman breaking her leg.

Answer the following questions:

1. Discuss the advantages and disadvantages of the dual legal system in Zambia
2. Explain how a legal system tends to be inexpensive in its application of justice by ensuring:
   1. Thorough procedures
   2. Fair and equal treatment
   3. Speedy adjudication

(a) The Judiciary

The Judiciary of Zambia is the key institution involved in civil justice. The Judiciary is established pursuant to Article 118 of the Constitution of the Republic of Zambia.

Discuss the limitations of jurisdiction in the following courts:

1. Local Courts
2. High Court
3. Court of Appeal
4. Subordinate courts level 2

(a) Zambia Police Service

Zambia Police Service (ZPS) which is part of the Ministry of Home Affairs is established as an institution in the Zambian Constitution and regulated by the Zambia Police Act as amended by Act no. 14 of 1999. The ZPS is headed by the Inspector General who is deputised by two Commissioners and supported by several Deputy Commissioners of Police.

According to the Constitution the role of the ZPS is to prevent, detect and investigate crime. The general responsibilities of the police in Zambia include:

1. Maintaining law and order;
2. Protecting life and property;
3. Investigating complaints;
4. Detecting and preventing crime;
5. Co-operating with the local authorities and other security organs as well as with the citizens;
6. Receiving complaints of crime;
7. Identifying and arresting offenders and ensure they are brought to court;
8. Transporting accused persons from police custody to court for their first appearance.⁸

(b) National Prosecution Authority

The National Prosecution Authority (NPA) is an autonomous body established by the National Prosecution Authority Act No. 34 of 2010. It is headed by the Director of Public Prosecutions (DPP), who is appointed by the President subject to ratification by Parliament. The office of the DPP is creature of the Constitution.⁹

The NPA is in charge of prosecuting people charged with criminal offences. The following are some of the functions of the NPA:

1. To appoint state advocates and prosecutors and promote appropriate standards of practice by state advocates and prosecutors in criminal prosecution;
2. To process all dockets, prepare charges and prosecute criminal cases and appeals in courts of law;
3. To implement an effective prosecution mechanism so as to maintain the rule of law and contribute to fair and equitable criminal justice and the effective protection of citizens against crime;
4. To cooperate with the police, the courts, the legal profession and other government agencies or institutions so as to ensure the fairness and effectiveness of prosecutions.¹⁰

The DPP is responsible for instituting and undertaking all prosecutions in Zambia. The same Constitution gives power to the DPP to exercise the following powers:

1. To prosecute any person before any court, other than a court martial, in respect of any offence alleged to have been committed by that person;
2. To take over and discontinue any criminal proceedings that have been instituted or undertaken by any other person or authority;
3. To discontinue at any stage before judgment is delivered such criminal proceedings as may have been instituted or undertaken by NPA or any person or authority.¹¹

The Constitution guarantees the independence of the DPP from external interference.¹² Both the Constitution and the Criminal Procedure Code empower the DPP to delegate his/her functions. In this regard the DPP has delegated his/her powers to public prosecutors who include:

1. State advocates;
2. Prosecutors appointed by the DPP;
3. Prosecutors from:
   • The Zambia Revenue Authority;
   • The Anti-Corruption Commission; and
   • The Drug Enforcement Commission.

The role of Public Prosecutors is to ensure that all reported criminal offences are brought before the courts of law and are properly prosecuted. This can be achieved by providing an independent, effective, efficient and fair prosecution service.

(c) Other Law Enforcement Agencies

The NPA does not work in isolation because it only has limited jurisdiction. For instance NPA does not have investigative powers. Law enforcement agencies such as the Zambia Police Service, the Drug Enforcement Commission, Immigration Department and Anti-Corruption Commission have the mandate to investigate crimes. In turn the NPA may provide legal advice to law enforcement agencies during investigations of complex cases. This means that it is important for NPA to work in partnership with the courts, police and other law enforcement agencies, and correctional facilities to ensure efficient delivery of Justice.

(d) The Judiciary

The judiciary is one of the three arms of government. It is established under Part VIII of the Constitution of Zambia and is vested with judicial powers. The Judiciary consists of:

1. The Supreme Court;
2. The Constitutional Court;
3. The Court of Appeal;
4. The High Court and specialised courts;
5. The Small Claims Courts;
6. The Subordinate Courts; and
7. The Local Courts.

The Judiciary is an independent institution. The day-to-day affairs of the Judiciary are in the hands of the Chief Administrator, who is answerable to the Chief Justice. The independence of the Judiciary is expressly guaranteed by the Constitution and the Judicial Code of Conduct Act. Apart from the courts there are tribunals exercising quasi judicial functions such as the Lands Tribunal, the Revenue Appeals Tribunal, the Town and Country Planning Tribunal, etc. which specialise in specific cases. See Unit 2 (2.1 Court Hierarchy and Jurisdiction in Zambia) for further details on the Judiciary.

(e) Zambia Correctional Service

Zambia Correctional Service is a department under the Ministry of Home Affairs. The Correctional Service is established under Part VIII, Articles 106 and 107 of the Constitution of Zambia and legislated by the Prisons Act (Cap 97 of the Laws of Zambia) of 1965 and is charged with the following aims:

1. To provide custody for prisoners;
2. To provide correctional services to inmates. Hence, prisons are now called Correctional Facilities;
3. To manage prisons generally; and
4. Reintegration of offenders into society.

The legal framework regulating the Zambia Correctional Service is established by the Constitution, the Prisons Act, the Prisons (Amendment) Act, No. 16 of 2004, the Prison Standing Orders (1968), the Prison Rules (1966), and the Prison Service Principle Guidelines which set out in detail the service’s goal and the overall mission of the Ministry of Home Affairs, under which the prison service falls.¹³

The main constitutional functions of ZCS are elaborated under article 193 (4) of the Constitution, supported by Prisons Act, No. 56 of 1965. Some of the functions of the Zambia Correctional Service include the following:

1. Manage, regulate and ensure the security of correctional facilities; and
2. Punishment of wrongdoers - ensuring that the convicted individual pays some sort of price for their crime;
3. Rehabilitation – is the encouragement of prisoners to abstain from criminal behavior by providing them with social, educational and vocational facilities to such an extent as to enable them to conform to social and economic patterns of life outside prison. This is achieved through discipline, treatment, education and teaching of skills. Rehabilitation aims to restore the individual to a prior state by undertaking special programmes that focus on the needs of the inmates so that they are able to reunite with society;
4. Parole – is a conditional release of a prisoner from detention to serve the remainder of her/his sentence, subject to prescribed conditions, in the community where s/he comes from;
5. Perform other functions as prescribed.¹⁴

(a) Civil Law

Civil law defines rights and obligations of one person to another (or groups of individuals) in their dealings with each other, also referred to as ‘private’ rights. Rights and obligations in civil law arise in areas such as torts, contracts, property ownership and other (see below).

Civil law deals with violation of private rights, not a wrong against the whole community. Hence the State does not come in (as is the case in criminal law).

Examples of civil matters include but not limited to:

1. Debt
2. Divorce
3. Defamation of character
4. Adultery
5. Breach of contract
6. Land Disputes
7. Landlord/tenant disputes
8. Claim for costs
9. Child custody proceedings
10. Damages
11. Insults
12. Elopement

The most common remedies in civil matters include:

1. Reconciliation: healing of past injustices or rebuilding of broken relationships between parties;
2. Restitution: getting something back again or a sum of money paid in compensation for loss or injury;
3. Damages: monetary compensation claimed by a plaintiff for loss or injuries suffered.

(b) Criminal Law

Criminal law defines the omission or commission of crime or conduct prohibited by the State in so far as such conduct threatens or harms public safety and welfare. Criminal law establishes punishment to be imposed for the commission of such acts. Examples of criminal cases include murder, theft rape assault etc.^[16]

Table 2: Differences between Civil and Criminal Law

Answer the following questions:

1. It is possible for a country to apply two different types of laws at the same time. What do we call this type of legal system? Give examples
2. What type of cases are these? Which type(s) of law may apply for each case?
   1. Mulenga is found stealing maize from his neighbour’s filed at night.
   2. Mary had borrowed K2 million with a promise to pay back but has not paid up to now.
   3. Paul’s 14 years old daughter is impregnated by Banda who has already paid lobola.

(a) Public Law

Public law is a theory of law that governs the relationship between legal persons and the government.¹⁵ It has three subdivisions namely Constitutional, administrative and criminal law.

Constitutional law covers three different organs of the state: Executive, legislative, and judiciary.^[18]

Administrative law regulates the exercise of public power by public officers.

Criminal law involves state imposed sanctions for individuals or companies in order to achieve justice and social order.

(b) Private Law

Private law is also known as civil law. It involves relationships between individuals, or private relationships between citizens and companies. Examples of private law are Law of Contract, Torts.

In summary, Public law governs the individual, citizen or corporation, and the state, while private law applies to individuals.

1. Explain what you understand by the terms “Private Law” and “Public Law”
2. Give key differences between the concepts of private and public law
3. Cite a classic example to illustrate one of the advantages of private and public law to the citizenry
4. Explain how private and public law may apply to a man who have battered his wife causing bodily harm

(a) What is Domestic Law?

Domestic Law is generally defined to mean the internal law of a nation. It is also referred to as Municipal Law or National Law and comprises the law governing the behaviour and conduct of individuals and organizations within a country. Domestic Law includes local laws and rules, such as those that govern towns, cities, districts or provinces within a country.¹⁷

The distinct feature of Domestic Law is its method of enforcement. It is typically enforced through the three main mechanisms of a state, namely the legislature, executive and the judiciary. The legislature enacts the law while the judiciary ensures compliance by imposing sanctions or punishment for non-compliance.

(b) What is International Law?

International Law refers to a body of rules that govern the relations between nations. While Domestic Law governs the behaviour of individuals within a state, International Law governs the behaviour and conduct of states. The key feature of International Law is that it is a body of law that is recognised and accepted by nations as binding on their relations with other nations. Unlike Domestic Law, it is not enacted by a legislative body. Instead, International Law is composed of treaties, agreements,^[22] conventions, accords, protocols, judicial decisions, and customs.

In contrast to Domestic Law, the enforcement of International Law is generally based on the consent and acceptance of states.

Answer the following questions:

1. Identify a treaty that Zambia signed with any other nation
2. Explain the advantages and disadvantages of the treaty to Zambia
3. Using practical examples discuss how international law can be helpful in regulating the conduct of nations
4. Cite one instance when you benefited from the domestic law and another when domestic law worked against you.
5. From your experience share your opinion about domestic and international law

(a) Substantive Law

Substantive law is a set of written laws and statutes that govern the rights and duties of citizens within its jurisdiction. Elements of substantive law exist under civil law and criminal law.^[23]

Under civil law, substantive law governs how people in a state interact with each other and behave within their society. Under criminal law, substantive law defines different types of crimes, along with the penalties set for every crime.

(b) Procedural Law

Procedural law, on the other hand, is a set of rules used to govern the flow of legal cases. A body of law that strictly conforms to due process, procedural law also regulates the steps in processing a case.

It outlines the technical aspects of legal cases, along with legal practices and the procedures in civil, criminal, or administrative proceedings.

1.3.6.1 Constitution

The Constitution of Zambia is the supreme law of Zambia. If any other law is inconsistent with it, that other law, to the extent of the inconsistency, is void.¹⁸ This means 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. In Thomas Mumba vs. The Attorney General¹⁹ the Supreme Court of Zambia concluded that “unless the Constitution is specifically amended, any Act that is in contravention of the Constitution is null and void”.

1.3.6.2 Statutes / Acts of Parliament

Legislative power of the Republic of Zambia is entrusted in Parliament which consists of the President and National Assembly. The power is exercised through enactments of Acts of Parliament.

(a) What is Delegated Legislation?

Delegated legislation is law made by a body other than Parliament given authority by parliament itself to make such law. Often an Act contains only a broad framework of its purpose and more complex content is added through delegated legislation. There are two main types of delegated legislation:

1. By-Laws – made by local authorities, they need to be approved by the Government.
2. Statutory Instruments – made by Government Ministers, they affect the whole country.

(b) What is a Statutory Instrument?

Acts of Parliament often confer powers on Ministers to make more detailed orders, rules or regulations by means of statutory instruments. The scope of these powers varies greatly, from the technical (e.g. to vary the dates on which different provisions of an Act will come into force, to change the levels of fines or penalties for offences or to make consequential and transitional provisions) to much wider powers such as filling out the broad provisions in Acts.

Often, Acts only contain a broad framework and SIs are used to provide the necessary detail that would be considered too complex to include in the body of an Act. Secondary legislation can also be used to amend, update or enforce existing primary legislation.

1.3.6.3 Regulations, notices and by-laws

Regulations passed by administrative departments of the government are also a source of law. Regulations can be used define two things; a process of monitoring and enforcing legislations and a written instrument containing rules that have law on them.

Notice is the legal concept describing a requirement that a party be aware of legal process affecting their rights, obligations or duties. At common law, notice is the fundamental principle in service of process. In this case, the service of process puts the defendant “on notice” of the allegations contained within the complaint, or other such pleading.

Regulations and Notices all form part of Statutory Instruments as defined by the Interpretation and General Provisions Act Chapter 11 of the Laws of Zambia under Section 3.

1. Differentiate between statutory and delegated legislation
2. Give examples of products of (i) statutory legislation and (ii) delegated legislation
3. Explain the sources of delegated legislation in the Zambian legislative system
4. Explain why delegated legislation is necessary in a country
5. Explain the following concepts, with examples:
   1. Statutory instrument
   2. By-laws
   3. Regulations
   4. Notices

Note: Zambian precedents take priority over precedents from other parts of the world, which are only of persuasive value.

Note: remember that Parliament cannot change a court’s decision if it is not happy with it. The only alternative it has is to amend the law.

1.5.1.1 Literal rule

This rule explains what the law is rather than explaining what the law means. When interpreting a statute, courts generally apply the literal rule first before applying any other rules of interpretation. In literal rule, the words in a statute are given their plain, ordinary, and literal meaning. While applying the literal rule, the law is read word by word and without diverting from its true meaning

1.5.1.2 Golden rule

This rule is a modification of the literal rule. It states that if the literal rule produces an absurdity, then the court should look for another meaning of the words to avoid an absurd result. The rule was closely defined by Lord Wensleydale in the case of Grey v Pearson²⁴ who stated:

The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency, but no farther.

1.5.1.3 Mischief rule

Mischief rule is a principle used for the interpretation of a statute. This principle is used by the courts to determine the intention of the legislators. This principle aims at finding out the mischief that parliament intended to remedy by the enactment of the Act.

1.5.1.4 Fringe meaning rule

This approach has emerged in more recent times. Here the court is not just looking to see what the gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve.

1. What is meant by “statutory interpretation”?
2. Identify and explain the rules followed in statutory interpretation

1.6.1.1 What is the Doctrine of Precedent?

The doctrine of precedent is the approach of the court in the context of previous court decisions. It originates from the Latin maxim _‘stare decisis et_ non quieta movere’ which means: ‘stand by what has been decided and do not unsettle the established’.

1.6.1.2 Types of Precedent

(a) Original precedent

Original precedent means a precedent that creates and applies a new legal rule. An original precedent is made when there is no previous judicial decision on a point of law.

(b) Binding precedent

Binding precedent is a precedent that must be applied or followed by a court when a lower court is considering a case similar to a case previously decided by a higher court in its jurisdiction.

(c) Persuasive precedent

Persuasive precedent is a precedent that is not binding on a court but may be relevant and used when considering a case only to persuade the court.

1.6.1.3 Advantages and Disadvantages of Precedent

In theory, the proper application of past decisions should provide clarity and stability to court decisions. However, there are also many objections to the strict use of judicial precedent and potential disadvantages to reliance on past decisions over other factors.

(a) Advantages of judicial precedent

The following are some of the advantages of judicial precedent in a legal system:

b. Disadvantages of judicial precedents

The disadvantages of judicial precedents are as follows:

c. Concepts related to Judicial Precedent

Using examples from any subject in any of the heads of law that you are familiar with, discuss the extent to which application of judicial precedents skews justice towards past judgements and the impact any on development of jurisprudence.

Exercise

1. Differentiate among original, binding and persuasive precedents by completing the table below:

2. What do you understand by the following concepts as applied in the legal system:
   1. Ratio decidendi
   2. Orbiter dictum
   3. Res judicata
3. Discuss the advantages and disadvantages of precedents and summarise in the table bellow:

1. Using suitable examples, explain how law and morality are similar and different.
2. Explain the dual legal system used in Zambia. What are advantages and disadvantages of such a system in Zambia?
3. Use examples to explain the differences between civil and criminal laws
4. Identify the attributes of an effective legal system
5. Discuss the roles of the following institutions in the enforcement of law and justice;
   1. Local court
   2. Supreme court
   3. Constitutional court
   4. High court
   5. Supreme court
   6. Court of appeal
6. Compare the following laws:
   1. private and public laws
   2. substantive and procedural laws
   3. international and domestic laws

7. Identify institutions involved in criminal justice. For each, explain how it helps bringing about criminal justice in Zambia
8. Discuss the rules of statutory interpretation
9. Explain judicial precedents and how they are applied in judicial systems
10. What are the advantages and disadvantages of judicial precedents?

The table below shows a summation of the Composition and Jurisdiction of the Court. Study it carefully.

Table 1: Composition and jurisdiction of the Constitutional Court.

• Headed by the President of the Constitutional Court;
• The Deputy President of the Constitutional Court; and
• Eleven other judges or more.
• 3 judges sit to hear a particular case, but 1 judge sits to hear
matters which arise between commencement and passing of
final judgement;
• Full bench shall be constituted by
an uneven number of not less
than five judges.

• Has original and final jurisdiction to hear:
o A matter relating to the interpretation of the Constitution;
o A matter relating to a violation or contravention of the Constitution;
o A matter relating to the President, Vice-President or an election of a President;
o Appeals relating to election of Members of Parliament and councilors; and
o Whether or not a matter falls within the jurisdiction of the Constitutional Court.
• Any question relating to the Constitution arising from High Court proceedings;
• Any complaint about an act of Parliament or statutory instrument; an action, measure or decision or omission, by a person or an authority which contravenes the Constitution;
• Can sit as circuit courts in districts.

|

Note

It is important for you to remember that with the 2016 failed referendum, enforcement of violation of human rights as enshrined in the Bill of Rights, under Part III of the Constitution, is still within the jurisdiction of the High Court in accordance with Article 28 of the Constitution of Zambia.

The Constitutional Court shall be constituted by an uneven number of not less than three judges except when dealing with a specific issue in a matter such as application for an injunction, where only one judge can sit.

2.2.9.1 Classification of Subordinate Courts

Section 3 of the Subordinate Courts Act establishes the Subordinate Courts which are divided into three classes: Class I, Class II and Class III. All these courts are subordinate to the High Court. Each class of magistrate courts is presided over by different ranks of magistrates as follows:

Table 6: Shows who presides over Class I, Class II and Class III Courts in Zambia.

Subordinate Court magistrates are appointed by the Judicial Service Commission acting in the name and on behalf of the president.³³

The jurisdiction of magistrates is limited (unlike the authority of the High Court). All magistrates have jurisdiction in the geographical districts where they are constituted and depending on the class to which they belong by reason of their qualifications.

For example in criminal matters, Magistrates will only have authority to hear matters in which offences were committed in the geographical area in which the court is established. The sentence that can be imposed by the Magistrate will also be dependant on the class and qualification of the Magistrate.

Table 7: Shows sentencing powers of Magistrates

Maximum Sentence (no. of

years of imprisonment)

| | CLASS I | Chief Resident Magistrate | 9 years | | | Principal Resident Magistrate | 7 years | | | Senior Resident Magistrate | 5 years | | CLASS II & CLASS III | Magistrate of the Class II & III | 3 years |

In civil matters equally Subordinate Courts are restricted in the claims that can be initiated before them depending on the quantum being claimed etc. Study the Table below which shows the quantum’s that can be handled by Magistrate Courts by their classes:

Table 8: Shows the Quantum jurisdiction of Magistrates

Table 1.2g quantum jurisdiction of Magistrates :

Maximum Sentence (no. of

years of imprisonment)

| | CLASS I | Chief Resident Magistrate | 100, 000.00 | | | Principal resident Magistrate | 90, 000.00 | | | Senior Resident Magistrate | 70, 000.00 | | | Resident Magistrate | 50000.00 | | | Magistrate of the Class I | 30000.00 | | CLASS II | Magistrate of the Class II | 25000.00 |

You must remember that matters in which the claims exceed the K 100,000.00 have to be referred to the High Court.

Remember also that, Subordinate Courts do not have jurisdiction in certain matters such as contestation of a Will or its provisions (in relation to Testate Succession), similarly for marital causes arising from civil (statutory) marriages.

Subordinate courts can hear all criminal matters except for capital offences such as murder, aggravated robbery, manslaughter, treason.

2.2.9.2 Appellate Jurisdiction:

Subordinate courts (class II and above) are courts of appeal for matters arising from the Local Courts by virtue of Section 56 of the Local Courts Act;

The powers of the local courts of search, seizure and detention can be appealed to and reviewed by the subordinate courts.

b) Other information:

1. Subordinate courts have supervision over the detention of suspects under Section 34 of the Criminal Procedure Code, by examining the Arrest and Prisoner’s Property (APP) Book to be maintained by the Police;
2. There are also possibilities under Sections 53-56 of the Local Courts Act for cases to be transferred or referred from the local courts to the subordinate courts, whereby a subordinate court shall hear the case de novo;
3. Appeals from subordinate courts go to the high court and the subordinate courts are bound by the decisions of the Supreme Court, Court of Appeal and High Court.

2.2.11.1 Types of Local Courts and Composition

Local courts are divided into Grade A and Grade B courts. However, the two courts operate at the same level hence, decisions made by Grade B courts cannot be appealed to Grade A courts. Local Courts are not courts of record but are expected to gradually become courts of record⁴³.

Their composition differs depending on the grade of the court as follows:

Table 10: Shows the composition of Local Courts

Table 1.2i Composition of Local Courts

2.2.11.2 Jurisdiction of Local Courts

Both Grade A and B Local Courts have jurisdiction to hear criminal and civil matters and get their power to act from the Local Courts Act (Chapter 29 of the Laws of Zambia), specifically from sections 8 and 9.

The jurisdiction of local courts is limited and differs according to the grade of the court assigned to them by court warrant. In terms of jurisdiction to handle matters the courts are limited to the geographical area set out in the court warrant.

The court handles matters in which the defendant(s) ordinarily reside or in which the the cause of action has arisen.

In land matters the court only handles cases were the located is situated in the area in which the court is.

Section 12 of the Local Courts Act

12 (1) Subject to the provisions of this Act, a local court shall administer:

• the African Customary law applicable to any matter before it in so far as such law is not repugnant to natural justice or morality or incompatible with the provisions of any written law;
• 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
• the provisions of any written law which such local court is authorised to administer under the provisions of section 13.

Table 11: Jurisdiction of Local Court Magistrates

Table 1.2j Jurisdiction of Local Court Magistrate

The Statutory Instrument uses fee units for civil claims and penalty units for criminal cases. At the time of writing this manual, the value of a fee unit or penalty unit was equivalent to 30 ngwee (ZMW 0.30).

You must note that any claim whose minimum amount requested is greater than that stated by Statutory Instrument No. 41 of July 2015, should either be reduced or referred to the subordinate courts or other competent courts.

2.2.11.3 Additional information on the Criminal Jurisdiction of Local Courts

Local courts have the power to hear a wide variety of criminal matters either under:

1. African Customary Law; or
2. Under one of the statutes that the Minister has said Local Courts can deal with (in terms of Section 13).

Section 12 (2) of the Local Courts Act allows Local Courts to try offences that are regarded as crimes under customary law – provided that such law does not conflict with a written law and that it is not repugnant to natural justice or morality.

However, when a Local Court convicts someone of a crime that is a crime both under customary law and the Penal Code or any other written law, the maximum penalty that the court can impose is the maximum penalty as set out in the Penal Code or such written law.

The courts also have authority to punish convict for contempt of court under Section 47 of the Local Courts Act, which carries a maximum penalty of one-year imprisonment for the most serious contempt offences (threatening, intimidating or intentionally insulting a member of the court), or a maximum of three months for all other contempt offences.

You must also note the distinction between civil and criminal matters does not have an exact parallel in customary law. This is seen in how certain matters are dealt with by local courts, where the courts tend to deal with criminal offences as civil matters (for example, a defilement case being handled as ‘virginity damage’).

Under Section 11 of the Act no local court shall have jurisdiction to try any case in which a person is charged with an offence in consequence of which death is alleged to have occurred or which is punishable by death.

2.2.11.4 Additional Information on The Civil Jurisdiction of Local Courts

You may recall that the local courts are given power to deal with civil matters in

Section 12 and 13 of the Local Courts Act and the bulk of the matters they deal with are under African Customary Law; They can deal with any such matter under customary as long as the custom that is applied ‘is not repugnant to natural justice or morality’ or is not ‘incompatible with the provisions of any written law’;

They can also deal with any civil matters covered by other written laws if such jurisdiction has been given to the local courts under Section 13. Good examples of such laws are the Intestate Succession Act and the Witchcraft Act.

Local courts can deal with divorce cases and inheritance cases no matter how much money is involved. So, if the amount of money to be divided up on divorce is greater than that listed above (ZMW 5,000.10 for Grade A Local Courts, and ZMW 4,166.70 for Grade B Local Courts), they can still deal with the matter.

2.2.12.1 Types of Orders that may be Made by The Court

Section 35 of the Local Courts Act, empowers the court to make the following orders in civil matters:

1. Compensation (for example for suffering, pain);
2. Performance of a contract;
3. Restitution (return) of any property;
4. Spouse maintenance at divorce for a period of up to three years or until remarriage;
5. Child maintenance up to 18 years or above if the child is still in school or college;
6. Any other order ‘which the justice of the case may require’. This is the example of damages that may be ordered by the court on adultery or ‘virginity damage’ cases;
7. In relation to intestate succession matters, grant letters of administration or revoke the appointment made.

Both Grades A and B can appoint Administrators in intestate succession matters regardless of the value of the estate, but testate matters can only be dealt with by high court.

1. Review and Appeals

Review is not a statutory right of the people and is considered a discretionary right of a court as it can reject the request for a review. From the Local Courts, requests for review can be taken to any Local Courts Supervisors at no cost i.e.Local Courts Officer (LCO) at district level, Provincial Local Courts Officer, or a senior officer at the Directorate of Local Courts;

An appeal is a plea by the aggrieved party to a higher court to rehear the same matter or case and give another decision. It is a constitutional right of individuals to seek redress where they feel their matter was not properly dealt with or the judgment given is not fair.

Appeals from local courts against any judgement or order go to the Subordinate Courts.

2.2.13.1 Position of traditional courts in relation to the Zambian legal system

Section 11 (1) of the Chiefs Act empowers chiefs to perform some legal responsibility for administrative and executive functions (including law enforcement). However, village headmen are scarcely recognised in law, and where they are, they have no law enforcement or adjudicative functions.

According to the Constitution and other pieces of legislation, chiefs and village headmen are not part of the formal court structure established by law. They are cultural and social institutions.

It is important for you to note further that the current Constitution¹² recognises and encourages the promotion of traditional dispute resolution mechanisms, that:

1. Do not violate the Bill of Rights,
2. Are consistent with other provisions of this Constitution or other written law; and
3. Are not repugnant to justice and morality.

2.2.13.2 Structure of Traditional Courts

Traditional courts structure varies from chiefdom to chiefdom and even within the same chiefdom. However, even if some variations exist, the generally accepted structure of traditional courts in the areas visited starts with the village headman’s court (occasionally village headwomen’s court), then one can appeal to a sub-court (senior headperson’s court / zonal court) where a number of headmen sit.

If the sub-court fails to resolve the issue, the matter is referred to a traditional court at the chief’s palace. Where one is still unsatisfied with the outcome at that level, s/he is allowed to appeal to the chief who makes a final decision at the traditional courts level.

In principle, one is free to take her/his case to a local court at any time.

2.2.13.3 Composition of Traditional Courts

The composition of traditional courts varies from chiefdom to chiefdom and even from traditional court to traditional court depending on the level at which a particular court is operating at. The generally accepted composition includes the following:

Table 12: Illustrates the composition of Traditional Courts

In addition, when a traditional court hears a matter, even ordinary community members present can ask questions during a traditional court session.

2.2.13.4 Matters Handled by Traditional Courts Under Customary Law

In their work, traditional courts have limited jurisdiction. The most frequent types of cases handled by traditional courts include:

1. Land and property matters: disputes on customary land, property sharing in relation to inheritance;
2. Reconciliation between husband and wife, divorce, custody of children;
3. Claim for bride price (lobola);
4. Virginity damage;
5. Conduct-related disputes: assaults, thefts, insults, defamation arising from allegations of witchcraft.

2.2.13.5 Principle of Voluntariness

Traditional leaders often see themselves as arbitrators rather than mediators or conciliators, meaning that they decide the case after hearing parties. In practice, traditional leaders sit in so-called ‘courts’ even when one of the parties has not consented to the hearing.

However, Section 50 (1) of the Local Courts Act makes it an offence for any person who “pretends to exercise judicial functions as a Local Court Magistrate.” In addition, traditional African arbitration is only valid where consent of the parties is obtained.

This is specifically stated in the Local Courts Act, Section 50(1), referring to “African customary arbitration or settlement” but specifically “with the consent of the parties thereto”.

It has come to your knowledge that a traditional court in the community where your legal desk is located is said to be insulting women and does not allow them to talk. Recently a youth was forcefully dragged to the same court and given ten strokes for refusing to appear before it. Each party who appears before the traditional court has to pay ZMW 20 as hearing fee. Besides, the same traditional court does not allow community members to take their cases to either the local court or police station.

1. Is there anything wrong about this situation?
2. What can paralegals do?

Answer the following questions:

1. Courts have three different types of jurisdiction. Discuss each of them giving examples.
2. What is the difference between appeal and review? Give examples.
3. It is said that the Lands Tribunal operates at the same level with High Court. What kind of cases are heard by the Lands Tribunal?
4. What are the differences between a Local Court and a traditional court? What is it that a Local Court can do in terms of powers and attributions, which a traditional court cannot do?
5. Lenard has worked for 5 years without pay and when he complained to his boss, he was dismissed from work. He comes to you to ask for help because he does not know which court to go to. Discuss
6. Banda lost his case on land dispute at a Grade B Local Court but wants to appeal. Which court should he go to?
   1. Grade A Local Court
   2. Traditional court
   3. Lands Tribunal
   4. Subordinate Court
7. Write down a list of Zambian courts according to their hierarchy starting with the one on the top.

3.1.1.1 Five Key Components of Access to Justice

Let us now look at the key components of access to justice:

1. Normative legal framework

Normative legal framework refers to set legal standards that ensure justice for people in Zambia. The Constitution of the Republic of Zambia itself sets standards that ensure justice by prohibiting arbitrary arrests, guaranteeing the right to a fair trial etc.

International and regional human rights instruments also establish principles and minimum rules for the administration of justice and offer fairly detailed guidance to states on human rights and justice. At International level they comprise the Universal Declaration of Human Rights and specific covenants, conventions, rules, guidelines and standards promulgated by the international community under the auspices of the United Nations. The International Covenant on Civil and Political Rights enshrines the principles of equality before the law and the presumption of innocence and includes guarantees of freedom from arbitrary arrest and detention and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. At regional level, they include the African Charter on Human and Peoples Rights (Banjul Charter) and its respective Protocols.

2. Legal awareness

This is also a key component of access to justice because without awareness users cannot access justice. The focus here is to develop capacities and effective dissemination of information that would help disadvantaged people understand the following: (a) their right to seek redress through the justice system; (b) the various officials and institutions entrusted to protect their access to justice; and (c) the steps involved in starting legal procedures.

3. Access to appropriate forum

Users require easy access to an appropriate judicial forum which includes both the formal and informal justice system like the court structure we looked at in the previous unit and traditional courts in remote areas. Appropriate forum also includes access to legal representation.

4. Effective administration of justice and enforcement of remedies

Access to justice must guarantee administration of justice in terms of the due process of law, right to a fair hearing and evidence which has not been withheld, distorted or falsified.

Remedies such as damages, rescission of contract, re-habilitation and restitution must be easily enforceable against accused persons in order to restore victims to their original position. This is key especially given that it is the ultimate objective of justice as you may recall from our definition of access to justice above.

5. Transparency and oversight of the operation of the justice system

Justice ought to be administered openly and not in secret. Transparency of the justice system is therefore a key component and it demands that proceedings are made open to members of the public to see and hear trials as they happen in real time, televising trials as they happen, videotaping proceedings for later viewing, publishing the content and documents of court files, providing transcripts of statements, making past decisions available for review in an easy-to-access format, publishing decisions, and giving reporters full access to files and participants so they can report what happens. The idea is what happens in the court should also be understood to the public.¹

1. From your own experience, discuss the economical and structural factors necessary to promote access to justice to all citizens in Zambia.
2. To what extent do you agree with the notions that improved legal awareness and access to appropriate forum has the potential to increase access to justice.
3. “Access to justice in Zambia is good for all citizens”. Evaluate this statement and come up with your own stand as a group.

3.1.1.2 Barriers to Access to Justice

In this topic we shall look at the barriers to access to justice and the possible ways of overcoming them. Many economic, structural, and institutional factors hinder access to justice, including the complexity and cost of legal processes, time, geographical and physical constraints.

1. Lack of legal awareness, education and information about the availability of legal remedies and protections

Most people fail to seek remedies because they do not know what their rights and entitlements are under the law. This is especially so for the most vulnerable in society.

To overcome the above, information on remedies for injustice must be provided to the public. Strategies to promote legal awareness should be undertaken by both government and non-government actors.

2. Inability to pay associated fees

Inability to pay associated fees is a key barrier to access to justice. Most citizens in Zambia are unable to afford three square meals a day and as such payment of associated fees may be a challenge when they are faced with legal issues. Many are not able to act on their claims because they are not able to meet filing fees and other associated fees.

3. Geographical isolation

Remoteness and accessibility to legal services can prevent one from accessing justice. This factor, like many other disadvantages, should be viewed in relative terms depending on how remote an area is or how accessible legal services are in the area.^[3]

The problem is also compounded by the lack of affordable public transport or the inability to pay for it.

4. Structural discrimination

This is a form of institutional discrimination against individuals of a given protected characteristic such as race or gender which has the effect of restricting their opportunities.

1. Gender discrimination

Women and girls face discrimination with regard to family law, property and inheritance rights and employment. Women also frequently face difficulties accessing justice institutions. The fact that women are not adequately represented in institutions prevents them from reporting gender related crimes. Furthermore, they are more likely than men to have limited access to resources because of higher levels of poverty. Women also face institutional barriers to access justice.

International instruments have been created to address the disproportionate discrimination faced by women and girls. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is good example.

2. Persons with disability

Persons with disabilities often find themselves marginalized by society and by our justice systems. We can improve access to justice by training better advocates.

Advocates not only must be knowledgeable concerning relevant laws and regulations, but also must be able to interact effectively on a personal, professional level with persons who have disabilities. We also want to make certain that persons with disabilities have the opportunity to learn to advocate for themselves and for other persons with disabilities.

Technologies are available that can help us accomplish these goals. We can improve access to justice by removing physical and architectural barriers. interact effectively on a personal, professional level with persons who have disabilities

3. Racial and ethnic discrimination

Members of racial, ethnic, and other minorities or vulnerable groups often face harassment, arbitrary detention, and abusive treatment by the law enforcement apparatus and disparate treatment by prosecutors and the courts.

The solution is to train and orient law enforcement and justice institution officers in avoiding racial and ethnic discrimination when discharging their duties. Emphasis has to be placed on equal treatment of individuals as espoused in local laws and international human rights instruments so as to ensure foreigners are not denied justice.

4. High opportunity cost

The most obvious economic or financial barriers to access to justice involve the high cost of lawyers and the high costs imposed by courts as a condition of filing lawsuits. These costs obviously consist of paying a person’s own lawyer. But in some countries a party who loses a lawsuit must also pay the costs of the opponent’s lawyers and experts, which can dramatically increase costs and raise barriers even higher.^[4]

Through established legal aid providers and private lawyers willing to provide free services(pro bono), paralegals, many vulnerable groups would be able to access free legal services.

3.1.1.3 Link Between Access to Justice and Legal Aid.

Equal access to justice for the rich and poor alike is a prerequisite for the rule of law. As you have learnt above that the justice system through judicial administration is costly. Thus, an adequate legal aid system is key in ensuring access to justice and establishing Rule of law.

In a democratic country like Zambia every person incapable of seeking justice due to financial insolvency, destitution, helplessness etc. has entitled to legal aid services. People who are not conscious of their legal rights, court administration system and the causes leading to delay in disposal of cases, suffer a lot when they are engaged in a case or suit as a party.

1. Reflect on the concept of rule of law and think of the key factors necessary for the rule of law to be achieved. Write down your thoughts.
2. Share your thoughts with your facilitator and write down your findings.

3.2.2.1 Legal Aid Board (LAB) Offices at National, Provincial and District Levels

Now that we have defined legal aid and the models of its delivery we shall look at the Offices of the Legal Aid Board.

The Legal Aid Board currently has a total of 12 stations country wide, reaching out to all provinces in Zambia with at least one Legal Aid Board station per province.

Over the last years, the Board has largely focused on providing legal aid in criminal and civil cases at the High Court and Subordinate Courts.

Legal aid is mainly provided by legal practitioners in full-time employment at the Legal Aid Board, assisted by legal aid assistants that are law graduates attached to the Legal Aid Board with limited right of audience as per the provisions.

3.2.2.2 CSOs Offices

You may be aware that apart from the Legal Aid Board CSOs also provide legal aid to indigent persons and vulnerable groups in Zambia. Services are mainly provided by paralegals and range from legal education in communities and correctional facilities, to legal information, advice and mediation in individual cases. Depending on their level of qualification and experience, paralegals also provide legal assistance. Some paralegals work with backing from legal practitioners, whereas others are supervised by their affiliate CSOs.

Some CSOs and paralegals have specialised in the provision of legal aid in the criminal justice system, operating at Subordinate Courts, correctional facilities and police stations. Others focus on communities working on family law and property matters, land matters, gender-based violence and women and children’s rights.

The current number of active paralegals is estimated to be between 750 and 900 country wide.

3.2.2.3 Legal Service Units (LSUs) at Court Level

Legal Service Units have been introduced to improve access to justice for indigent and vulnerable persons in criminal and civil cases. There are currently, six legal desks (called ‘Legal Services Units’) active at Subordinate Court level, in Lusaka, Livingstone, Choma, Ndola, Kitwe and Chingola.

The LSU model takes the form of a permanent legal desk based at court premises. One of the innovative features of the LSU is the composition of its professional staff coming from both civil society and the state, combining paralegals, a number of legal aid assistants (law graduates attached to the LAB) and a supervising lawyer.

3.2.2.4 Correctional Facility and Police Station Legal Desk

Legal desks at correctional facilities and police stations play a significant role in providing inmates and accused persons access to legal services. The legal desks have been moved to where people who need them most are, making it easier for them to access help easily.

3.2.2.5 Judicare System

Judicare means a legal aid service delivery model where legal practitioners in private practice are engaged by the LAB, subject to payment of prescribed fees, to provide legal assistance and legal representation services to eligible persons under legal aid.⁵

3.2.2.6 Pro bono Legal Aid

The use of the term ‘pro bono’ comes from the Latin phrase ‘pro bono publico’, which means for the public good. It generally means the provision of legal services by legal practitioners in private, at no cost for the institution requiring the practitioner’s intervention and services.

For the past 25 years, pro bono legal works has been ad hoc and individualised, dispensed informally as charity; increasingly it has become coordinated and structured, particularly within large law firms. The key rationale for pro bono is that private lawyers act out of a professional ethical duty to improve access to justice.

In Zambia private law firms have continued to undertake cases on a pro bono basis where a client is deemed to be unable to pay for a case, as evaluated by the firm.

3.2.2.7 University Law Clinics

University Law Clinics are a partnership between students, academics and solicitors and barristers in practice locally aimed at providing a public service for local people who cannot afford to pay for legal services and enhancing the education of Law students through direct experience of legal practice.

3.2.3.1 The Legal Aid Board

Legal aid is mainly provided by legal practitioners in full-time employment at the Legal Aid Board, further assisted by legal aid assistants that are law graduates attached to the Legal Aid Board and granted limited right of audience as per the provisions of the Legal Aid (Amendment) Act.

The Legal Aid Policy recognises the duty and responsibility of the State to provide legal aid. The Legal Aid (Amendment) Act No. 19 of 2005 establishes the Legal Aid Board as a public institution mandated with the provision of legal aid.

The Policy provides for a strengthened legal aid institutional framework with the mandate and functions of the Legal Aid Board being expanded to include not only the provision and administration of legal aid, but also the coordination, regulation and monitoring of the legal aid system.

The Legal Aid Policy provides for the further decentralisation and rolling out of the Legal Aid Board to more districts. It also puts emphasis on the effective mobilisation and coordination of all legal aid service providers in order to maximise the effectiveness and impact of the legal aid system.

3.2.3.2 Accredited CSOs

CSOs accredited to the LAB and paralegals have specialised in the provision of legal aid in the criminal justice system, operating at Subordinate Court, correctional facility and police station levels. Others focus on communities working primarily on family law and property matters, land matters, gender-based violence and women and children’s rights.

The Legal Aid Policy officially recognises civil society organisations as legal aid service providers, subject to their accreditation at the Legal Aid Board.

3.2.3.3 Accredited University Schools of Law Clinic

As you learnt earlier University law schools with legal aid clinics have partnered with students, academics and solicitors and barristers in practice locally aimed at providing a public service for local people who need legal advice and representation but cannot afford to pay for it.

The Legal Aid Policy officially recognises university law clinics as legal aid service providers, subject to their accreditation at the Legal Aid Board. An accredited university law clinic is defined as a law clinic affiliated to a school of law of a university or to another higher educational institution providing legal education, and that has been authorised to provide legal aid by the LAB, in accordance with prescribed rules.

3.2.3.4 Legal Practitioners Providing Legal Aid Services Under the Judicare System or on A Pro Bono Basis.

In Zambia, private law firms take on cases on a pro bono basis where a client is unable to pay legal fees. Efforts by the LAZ to establish a functioning pro bono framework have so far been unsuccessful and only a very limited number of legal practitioners take on pro bono work.

The Legal Aid Policy promotes the establishment of a comprehensive pro bono framework for an increased number of legal practitioners to provide legal aid services on a pro bono basis. This will ensure legal practitioners take on pro bono cases and complement legal aid work carried out by the LAB, civil society organisations and university law clinics

1. Discuss the legal aid services available in Zambia.
2. The health sanitary worker’s son was involved in a fight at a beer drinking place in the village and caused the other person serious harm including broken bones. He has been arrested and will appear in court soon. If the mother of the boy approached you for legal advice:

(a) How would you categorise the kind of crime the boy committed?

(b) Which of the categories of legal aids would you recommend the mother of the boy to pursue if she tells you she has no money for legal fees?

(c) Give a summary of the advice you would give to the mother of the boy in Police custody

3. Explain the importance of the LAB in provision of legal aid to the Zambian citizens

3.2.4.1 Paralegals and Legal Assistants

The Legal Aid Policy creates a framework for non-lawyers to deliver legal aid services in Zambia.⁶ This includes paralegals and legal assistants (law degree holders) with a requirement that they register at the Legal Aid Board for purposes of providing legal aid.

According to the Policy, a paralegal means a person who (a) has successfully completed a training course in paralegal studies level 3, 2 or 1 at university or other higher educational institution at another organisation as accredited by the Technical Education, Vocation and Entrepreneurship Training Authority (TEVETA); and (b) is duly registered at the LAB for purposes of providing legal aid at an accredited CSO, the LAB or another public institution in accordance with the Legal Aid Act.⁷

According to the TEVETA training scheme:

1. Level 3 paralegals at skills award level provide primary legal aid services limited to basic legal education, legal information, mediation, orientation and referrals;
2. Level 2 paralegals at trade test level 2 provide the full spectrum of primary legal aid services (ranging from legal education, legal information to mediation and negotiation, and legal advice);
3. Level 1 paralegals at certificate level provide the full spectrum of primary legal aid services and legal assistance.

Different universities, higher educational institutions and civil society organisations have accredited as training providers with TEVETA and offer paralegal training courses (since 2019)

“Legal Assistant” means a person who (a) holds a Bachelor of Laws Degree (LLB) or equivalent as prescribed by the Zambia Institute of Advanced Legal Education (ZIALE) Council; and (b) is duly registered at the LAB for purposes of providing legal aid at an accredited CSO, a legal practitioner in private practice or a public institution other than the LAB in accordance with the Legal Aid Act.⁸

3.2.4.2 Legal Aid Board (LAB) Eligibility Criteria and Application Procedures

Now that you know the role played by different officers in dispensing legal aid let us look at the eligibility criteria for granting legal aid. There are two main tests that are considered when granting legal aid one is the “Means Test” while the other is a justice consideration.

1. ‘Means test’ assesses whether an applicant for legal aid has insufficient means to pay for legal services. The level of means which qualifies an applicant as having insufficient means in relation to the granting of legal aid is prescribed by the LAB.
2. ‘Interests of justice’ is the principle applied by the LAB with the means test when making a decision to grant legal aid in any case or matter. It refers to the seriousness of the offence, the complexity of the matter, the capability of the accused, the level of vulnerability of the person, strategic litigation on a matter of public interest, risk that the trial will not be fair unless the person is provided with ⁹

The Legal Aid Policy defines an eligible person as “an individual to whom legal aid may be granted on the basis of the means test and interests of justice principle, in accordance with prescribed rules under the Legal Aid Act”.¹⁰

The policy further also names individuals considered to be vulnerable and are eligible to be granted legal aid. Among the categories mentioned are persons with disabilities, remanded persons or otherwise deprived of liberty, minors, victims of sexual, domestic or gender-based violence, persons living with HIV or other severe chronic diseases, refugees, internally displaced persons, asylum-seekers, members of economically and socially disadvantaged groups, and others as prescribed by the LAB.

3.2.4.3 Application Procedure, Fees and Exemptions.

We shall now look at the procedure followed when applying for legal aid. A person wishing to be granted legal aid by LAB ought to make a formal application by completing an application form which is contained in the Act. The form requires the applicant to state their names, their wages or monthly income, assets he owns and their value. The person is also expected to inform the Director whether or not they have applied for legal aid before to the court and if they had been refused the same.

Both the High Court and Subordinates Courts may grant Defence Certificates to persons arraigned before them they are of the view that the persons charged and before it ought to be considered for legal aid by the Director.

The fees payable at LAB at the time of writing this Module were at K500.00 for criminal matters and K450.00 civil matters(Please note that these fees are subject to review and may be adjusted). These monies are expected to be paid once the Board takes on a matter.

3.2.4.4 Roles and Responsibilities of LAB and other key Institutions and Stakeholders

1. The roles and responsibilities of the LAB are found encapsulated under Part IA 3 of the Legal Aid Act which deals with the functions of the Board. The most important role relates to the administration of the Legal Aid Fund and the facilitating of legal representation to persons who have been granted legal aid under the Act.¹¹
2. PART VI, 20A (1) Furthermore, Director is responsible for registering all legal practitioners who desires to be registered for purposes of providing legal representation under the Act. This section although strictly speaking refers to practitioners has also been used to accredit CSOs and university law clinics desiring to provide legal aid.

The above are and have been the major roles and responsivities of the LAB. With the adoption of the Legal Aid Policy the Board’s role in terms of accrediting practitioners who desire to provide legal aid has been widened.

The LAB is now to play a much wider role in aspects of coordination, regulation and monitoring of the legal aid system, which are required to set up an efficient and effective delivery scheme of legal aid services in the country. The Legal Aid Policy has given LAB the overall responsibility and mandate to provide, administer, coordinate, regulate and monitor the whole legal aid scheme in the country.¹²

Based on this expanded mandate, the Legal Aid Policy proposes that the LAB exercises core functions as prescribed under the Legal Aid Act with the following additional core functions:

1. Accredit civil society organisations and university law clinics desiring to provide legal aid, in accordance with accreditation procedures and criteria as prescribed by the LAB;
2. Regulate the provision of legal aid services by legal aid assistants, legal assistants and paralegals;
3. Establish and maintain a long-term financial resources mobilisation mechanism;
4. Oversee the provision of legal aid; and
5. Undertake research on aspects of legal aid.¹³

3.2.4.5 Roles and Responsibilities of other key Institutions and Stakeholders:

There are several other key stakeholders and institutions which although they are not responsible for providing legal aid, they still non the less play an important role in the provision of legal aid. Such institutions include the following:

1. Zambia Police Service (ZPS),
2. Zambia Correctional Service (ZCS),
3. National Prosecution Authority,
4. Judiciary and other law enforcement institutions,
5. District Administration,
6. Local Authorities.

The above institutions have a responsibility to inform persons of their right to legal aid and ensure access to the Directory of LAB Offices and Accredited Legal Desks.

Further to the duty to inform persons of their right to legal aid, as you have learnt above,, institutions with paralegal legal desk such as the Zambia Police Service and the Zambia Correctional Services equally have to ensure that the legal desks operate freely without interference thereby allowing easy access to information on legal aid. As for the judiciary which has a Legal Service Unit placed at its premises it should also allow the Unit to operate freely.

Ministry of General Education, District Administration, Local Authorities, Ministry of Chiefs and Traditional Affairs, Ministry of National Guidance and Religious Affairs, Ministry of Community Development and Social Services and media houses also play a role by carrying out legal education and disseminating legal information thereby assisting Legal Aid Service Providers.

3.2.4.6 Duties of Legal Officers to Inform People on their Right to Legal Aid

All legal officers such as judges, magistrates, correctional facility and police officers, prosecutors and other law enforcement officers have a responsibility to provide information on legal aid to the public.

Legal officers should also assist people in contacting the LAB or Legal Services Units (LSUs) while those who are in a position to grant it such as Magistrates, Judges and Practitioners should grant it. This would increase access to legal aid services in the country.

The Legal Aid Policy establishes a duty for state institutions to inform persons on their right to legal aid and the availability of legal aid services. It further requires institutions to assist unrepresented detained persons in contacting the Legal Aid Board in order to apply for legal aid.

1. Information on the rights of a person suspected of or charged with a criminal offence in a criminal justice process and on the availability of legal aid services shall be provided to suspects or accused persons in an official form prior to any questioning or at the time of deprivation of liberty;
2. Police and correctional facility officers shall facilitate and assist an unrepresented detained person, who appears to have insufficient means to pay for legal services, to contact the LAB or an LSU and apply for legal aid.

This should ensure that legal aid becomes readily accessible at all stages of the justice system enabling individuals to claim their rights.

Mr Kankoyo was arrested for causing injury by dangerous driving. He does not believe he was guilty of the offence. He was given bail and was talking of seeking legal aid but he is just a poor villager who does not have money for such services.

1. Explain the concept of legal aid.
2. Identify different models of legal aid services available in Zambia.
3. Which legal aid service would you advise Mr Kankoyo to contact for help?
4. Explain the difficulties rural communities may be facing in accessing legal aid services.
5. Suggest strategies for improving legal aid services delivery for people living in remote areas in Zambia.

1. Explain why access to justice is a necessity to every Zambian citizen.

2. Discuss factors that lead to reduced access to justice among citizens.

3. Discuss the main components of access to justice in Zambia.

4. Using suitable examples, explain how the following could pose as barriers to justice:

1. Lack of awareness, education and information;

2. Inability to pay associated legal fees;

3. Geographical isolation;

4. Structural discrimination;

5. High opportunity costs.

5. Explain the relationship between access to justice and legal aid

6. Discuss the legal aid models available in Zambia and how legal aid can be accessed.

7. Explain the roles and responsibilities of the LAB as outlined in CAP 34 of the Laws of Zambia

8. Discuss the roles legal officers need to play in informing citizens of their right to legal aid.

Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, legislature, and the judiciary, as well as the basic rights of citizens. It sets fundamental principles by which government exercises its authority. In some instances, specific powers are granted to the government, such as the power to tax and spend for the welfare of the population while in other instances limitations are set on what government can do, such as prohibiting the arrest of an individual without sufficient cause.

4.1.1.1 Supremacy and Purpose of the Constitution

1. What is a Constitution?

Before discussing the supremacy and purpose of a constitution, let us define a constitution. The term constitution is defined by the Oxford Dictionary of Law as the rules and practices that determine the composition and functions of the organs of central and local government in a state and regulate the relationship between the individual and the state.

Although the above definition mainly has countries with a federal structure of governance such as the United States of America it can still be applied to countries like Zambia. A constitution is therefore simply a body of rules by which the powers of sovereignty are habitually exercised.

A constitution may be written or unwritten. Where the Constitution is unwritten such as in the case of England, there will still be laws or authoritative documents, practices or customs which declare the important principles upon which a country is governed.

2. Supremacy of the Constitution

You may recall that when discussing sources of law in Zambia, we said that the Constitution is the supreme law of the Land and any law that is inconsistent with it is void to the extent of its inconsistency. Article 1(1) of The Constitution of Zambia (Amendment) Act No.2 of 2016 thus provides:

“This Constitution is the supreme law of the Republic of Zambia and any other written law, customary law and customary practice that is inconsistent with its provisions is void to the extent of the inconsistency.”¹

The Constitution is supreme over all other laws because it represents the sovereign will of the people and as such no other law can be more supreme than that given by the people to themselves. As the Mung’omba Constitutional Review Commission correctly observed on the unique nature of the constitution:

“A constitution is not an ordinary piece of legislation. It is the people’s sovereign and inalienable right to determine the form of governance for their country by giving to themselves a constitution of their own making”²

Furthermore a Constitution is supreme law because all other laws are driven from it. For this reason, the Constitution is occasionally referred to as the “grand norm” of any nation. The laws of any nation are provided for generally within its constitution.

4.2.2.1 Checks and Balances

The principle of checks and balances is that each branch of government has power to limit or check the other two organs, which creates a balance between the three separate branches of the state. This principle induces one branch to prevent either of the other branches from becoming supreme, thereby securing political liberty.

Most governmental powers are shared among the various branches in a system of checks and balances, whereby each branch has ways to respond to, and if necessary, block the actions of the others.

4.2.2.2 Parliamentary Supremacy

Parliamentary supremacy (also called parliamentary sovereignty or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including the executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law (in some cases, even a constitution) or by precedent.

A good example of a country whose constitutional law holds parliament to be supreme is the Unite Kingdom. In Zambia parliament is not supreme as you will learn below. Parliament’s actions are subject to being checked by the other organs of government.

4.2.2.3 The Electoral System

An electoral system is a set of rules that determine how elections and referendums are conducted and how their results are determined. Political electoral systems are organized by governments.

There are several electoral systems in the world. We shall however focus only on the three major ones namely, First Past the Post, Majoritarian and the Proportional representation system.

4.2.2.4 First-Past-the Post System

In this system, the candidate who wins the most votes in a district or constituency is considered to have been elected. This system is still applied when electing members of parliament and the local authority leaders. As regards the election of the president however it was done away with in 2016 following the Amendment to the Constitution.

4.2.2.5 Majoritarian System (50 % plus one)

In this system candidates who receive a majority of the votes are elected, although in some cases only a plurality is required in the last round of counting if no candidate can achieve a majority. This form of system has been introduced in the Zambia set up for the first time in 2016 at the Presidential level. A Presidential candidate is there expected to scope 50% plus one of the votes cast. If no candidate is able to attain 50% plus one of the votes then a run off usually for the top two candidates is conducted to determine the winner.

4.2.2.6 Proportional Representation

This system is also known as a Party List System because the electorate votes for representatives on party lines rather than the individual. The party determines who should be elected to a country’s legislative chamber. The party’s presence in the legislative chamber is dependent on the percentage of votes it obtains from an election. The system allows for every political party that participated in elections to be included in the legislative chamber. The issue of dominance by one political party does not arise under this system as it also allows for smaller parties participating in elections to have a say in the governance of a country through its representatives in the legislative chamber.

4.2.2.7 The Concept of Rule of Law

You may have heard people talking about the Rule of Law. What then is the Rule of Law? The term is used to describe a principle that all people and institutions are subject to and accountable to law that is fairly applied and enforced; the principle of government by law.

The term “Rule of Law” is derived from a French phrase ‘La Principe de Legality’ (the principle of legality) which refers to a government based on principles of law and not of men. In a broader sense Rule of Law means that Law is supreme and is above every individual. No individual, rich, poor, rulers or ruled etc are above law and they should obey it. In a narrower sense the rule of law implies that government authority may only be exercised in accordance with the written laws, which were adopted through an established procedure. The principle of Rule of Law is intended to be a safeguard against arbitrary actions of the government authorities.

4.2.2.8 The Doctrines of Separation of Powers

You recall when discussing principles of constitutional law we looked at distribution of powers and said that the Zambian Constitution creates three different types of authority namely legislative, executive and judicial authority.

The placing of government authority into different arms of government with each arm performing exercising one of those powers rather than concentrating it in one arm is what is known as separation of powers. Let us now look at the concept in detail and consider its application within Zambia’s Constitutional order.

The term “Separation of Powers” was coined by 18th century philosopher Montesquieu. It divides the government into separate branches, the Legislature, Executive and the Judiciary, each of which has separate and independent powers. By having multiple branches of government, this system helps to ensure that no one branch is more powerful than another.

Officials of each branch are selected by different procedures and serve different terms of office; each branch may choose to block actions of the other branches through the system of checks and balances. The framers of the Constitution designed this system to ensure that no one branch would accumulate too much power and that issues of public policy and welfare would be given comprehensive consideration before any action was taken.

4.2.2.9 The Executive

Cabinet established under Article 113 of the Constitution makes up the Executive. It is composed of the President, Vice President Ministers and the Attorney General as an ex-officio. It is headed by the President. The Executive is responsible for making policy decisions and carrying out the laws passed by the legislative branch. Each minister governs a department with civil servants carrying out the administration.

Ministers cannot make their own laws, but they can draft new bills or propose to change old law and ask parliament to pass them. Ministers need to ensure that the policies of the government are followed. Parliament can also ask ministers to explain why they are carrying out the policies in a particular way. In this manner, the Executive is accountable to the Legislature.

This wing of government is also part of the legislative system in the sense that the president on his own has the power to make binding laws in the form of directives involving his prerogative powers. The government ministers are part of the legislative system because they make laws in form of statutory instruments. They and the civil servants also assist in the enforcement of the laws, such as in issuing and revoking of Trading and other kinds of licences.

4.2.2.10 The Legislature

This is one of the three principal government organs. The legislature is created under Article 62(1) of the Constitution as Parliament which is comprised of the President and the National Assembly. Parliament makes statutes, regulations and rules which the police, the courts and the executive officials interpret and enforce.

It is the highest law-making body, but not supreme over the other two wings of government. Members of Parliament are elected by the people during national and general elections.

4.2.2.11 The Judiciary

The Judiciary is made up of the judges, magistrates and other support staff or personnel. It interprets the law and makes decisions in court cases, based on the laws. These decisions then help to explain what the law means in actual circumstances. The Judiciary must be independent of the Executive and the Legislature. In this way, it can make decisions that are fair, even if this goes against what the Legislature and Executive want.

In summary, here are the key roles of the three arms of government:

Table 1: Key roles off the three arms of government

• 150 elected members of national assembly and 8 nominated by president
• Passes, amends, and repeals laws Adopts the budget

• Sole authority and responsibility for the Daily administration of the State
• Enforces the law
• Develops legislative proposals

| | |

5.1.1.1 Human Rights

The concept or idea of human rights started from the need to protect the individual against the abuse of power by the State.

At first, attention was therefore focused on those rights which force governments to refrain from certain actions which violate human rights. Human rights in this category are generally referred to as ‘fundamental freedoms’. As human rights are viewed as a precondition for leading a dignified human existence, they serve as a guide and standard for legislation.

Read and answer question based on what you have studied above.

Think of five (5) ways the State can use its power to abuse an individual.

For each of the ways the State uses its power to abuse an individual, show how they impact on a citizen’s ability to lead a dignified human existence.

You have two exercises under this activity, attempt both of them.

Exercise I

What does it mean to be human?

Read the extracted statements below from the Universal Declaration of Human Rights (UDHR) and the questions that follow. The UDHR document sets the standard for how human beings should behave towards one another so that everyone’s human dignity is respected.

…recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of the freedom, justice, and peace in the world…

Preamble - Universal Declaration of Human Rights

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 1 - Universal Declaration of Human Rights

Brainstorm and write down what qualities define a human. E.g. intelligence, kindness etc.

Looking at your list, what do you think is needed in order to protect, enhance and fully develop these qualities of a human being? E.g. friendship, education etc.

Task

Write in your own words what “human rights” mean to you. Try to write this in one sentence. Do not give examples of the different types of human rights. These will be dealt with later.

Human rights can be defined as follows:

1. Entitlements from birth: human rights are the rights and freedoms which everyone has from the moment they are born: they are inborn basic values without which people cannot live in dignity;
2. They are the fundamental rights and freedoms every individual is entitled to regardless of her/his race, sex, origin, colour, age, disability, religion, conscience, creed, belief, culture, political opinions, language, tribe, pregnancy, health, or marital, ethic, social or economic status.⁵³ Every human being is entitled to have rights and to have those rights equally.
3. Natural rights: human rights are also called natural rights simply because they are related to human beings. Human rights don’t have to be earned.

There are two questions based on what you have studied above, answer both of them

1. Human rights belong to all people regardless of their sex, race, colour, language, national origin, age, class, religion, or political beliefs. They are universal, inalienable, indivisible, and interdependent.

2. What is meant by universality? By inalienable? By indivisible? Look up these terms in a dictionary or in A Human Rights Glossary, and explain their meaning in your own words.

In Zambia, as in many other countries, these rights have been listed in a Bill of Rights that is found in Part III of the Constitution. However, these rights do not replace the laws of the country. Therefore, people must still respect the laws of their country as well. The Bill of Rights will be discussed in detail later.

5.2.1.1 Inherent

Human rights are inherent because they are not granted by any person or authority. Human rights do not have to be bought, earned or inherited; they belong to people simply because you are human. Human rights are inherent to each individual;

5.2.1.2 Inalienable

This means that your human rights cannot be taken away from you, surrendered, or transferred (although they can sometimes be limited). They cannot be lost by having been grabbed, or by one‘s failure to exercise or claim for them. In other words, no one has the right to deprive another person of them for any reason. People still have human rights even when the laws of their countries do not recognise them, or when they violate them; for example, when slavery is practiced, slaves still have rights even though these rights are being violated. Human rights are inalienable because:

1. They cannot be rightfully taken away from a free individual; and
2. They cannot be given away or be forfeited.

5.2.1.3 Universality

Universality means human rights are universal in application and apply to every human being in every human society irrespective of one’s race, sex, origin, colour, age, disability, religion, conscience, creed, belief, culture, political opinions, language, tribe, pregnancy, health, or marital, ethic, social or economic status. They do not differ with geography, history, culture, ideology, political, economic system or stage of societal development. That is, everyone is entitled to their human rights, no matter where they live. Human rights are enforceable without national border. Therefore, governments and communities must recognise and uphold them. We are all born free and equal in dignity and rights — human rights are universal.

5.2.1.4 Interdependency and Interrelated

Human Rights are interdependent because the fulfilment or exercise of one cannot be obtained without the realisation of the other(s). Therefore, human rights cannot be separated from each other neither can they be put in a hierarchy of importance. This also means that by interfering with one of a person’s rights, you interfere with many other rights. For example, when someone hits their husband or wife, they violate that person’s right to be free from violence and their right to dignity and other rights. This shows that human rights are interdependent because they depend on each other. For example, your right to life is meaningless if the government refuses to protect your right to food, health care, water and shelter.

The two categories of rights are different in that: Limited rights are those that even an ordinary person can interfere with for example if you steal or assault someone, any citizen can arrest you. Despite the fact that the constitution confers rights on you, they are not all absolute. One of the reasons for limitation of some rights is that, while we are entitled to certain rights, other people are also entitled to the same rights and their rights also need to be protected. Hence, human rights can only be exercised to an extent where they do not infringe on other people’s rights. For example, I may have a right to freedom of expression, but other people have rights to their dignity and privacy and so I cannot just say whatever I want about them.

Note It!

Here is an example for you to look at.

Freedom of expression is not absolute and can be limited when it conflicts with other rights. International law declares freedom of expression to be the rule. Limitations are the exception, permitted only to protect:

1. The rights or reputations of others;
2. National security;
3. Public order;
4. Public health;

5.2.5.1 Specific Limitations

A specific limitation is where some actions are allowed and are not regarded as violating the right concerned.

5.2.5.2 General Limitations

A general limitation is where an Article allows the right to be limited in some circumstances, although these are not spelt out.

This is not specific in that it does not spell out every situation when it will be fair to limit someone’s rights. But if a person can show that, while you are exercising your right to freedom of movement, you are infringing on their right to privacy, it will be acceptable to limit your right to freedom of movement.

5.2.5.3 Conditions in which one Human Right Takes Precedence Over Another

The UN asserts that human rights are, inter alia, universal and inalienable, interdependent and indivisible. This means that human rights are conditions for treating human beings with the respect and concern they deserve. It also means that: individuals possess human rights regardless of whatever characteristics may differentiate them from one another or regardless of where they happen to live or reside.

A conflict of human rights is when there is a clash between same or different human right/s, which is/are held by the same or different rights-holder/s. Situations or conditions where or when one or more rights may crash and take precedence over the other or others and these may include but are not limited to:

1. Rights vs. duties.
2. Individual vs. group rights.
3. Rights of the mother vs. those of the children when it comes to voluntary counselling and testing during antenatal.
4. Freedom of worship vs. legislated right to education – what would happen where some parents want the Ministry of Education to modify the new sex education curriculum so that it does teach children sexual organs of a human being as this is against their religious beliefs but others feel there is nothing wrong.
5. State of emergency - When protection of the state or political system takes precedence over the individual, the rights of most citizens are not served.

Read the statement below and answer the question that follow.

Kelvin was involved in a terrible road accident and for ten years now, he has been hopelessly bed ridden from severe injuries and says he is constantly in pain day and night. Since January 2018 he has been begging his doctor to help him die in a relatively painless way as he has no more hope of surviving.

1. As family members you have been asked by the doctor to decide the way forward. What would be the right thing to do?

2. List three more situations where one right takes precedence over the other.

Now that you comprehend the characteristics of Human Rights and understand that Human Rights can be absolute and limited, you will now learn that they are grouped according to characteristics. Rights are divided in various categories which can be regrouped into two major categories as shown below:

5.2.6.1 Civil and Political Rights – First Generation

Civil and political rights are contained in the United Nations International Covenant on Civil and Political Rights (ICCPR) and are sometimes called first generation rights. These are:

1. The rights that are aimed at the protection of the citizens against arbitrary actions of the State;
2. The rights citizens have to participate in the political life of their community and society, for example, by voting for a government. Articles 2 to 21 of the Universal Declaration of Human Rights (UDHR) considered below, represents civil and political rights;
3. Devised to ensure freedom from any restriction of individual liberty.

Table 1:Comparison between pollical and Civil rights

1. Vote;
2. Say what you believe in;
3. Have access to information.

1. Liberty;
2. Equality;
3. Practice religion or not, as you choose;
4. Attend meetings and gatherings freely; and
5. Join political parties, trade unions or other organisations.
6. Not to be assaulted or tortured;
7. Not to be detained without trial;
8. Not to be killed; and
9. A fair trial.

|

Civil and political rights are guaranteed. This means that if the government interferes, fails to provide or to protect these rights one can sue the government in court and apply that they be recognised and the applicant be.

The provisions of the ICCPR include, the rights to life, personal liberty and security, recognition of inherent dignity of the person, prohibition of torture and cruel, inhuman or degrading treatment, freedom of expression, association and assembly, the right to be presumed innocent until found guilty, equality before the law, protection of aliens against arbitrary expulsion, procedural guarantees in civil and criminal matters, and the collective right to self-determination.

Zambia agreed to the United Nations International Covenant on Civil and Political Rights (ICCPR) in 1984. This means that Zambia has the responsibility to abide by its provisions. How well has Zambia abided by these provisions?

5.2.6.2 Economic, Social and Cultural Rights – Second Generation

Economic, social and cultural rights are contained in the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR) and are human rights concerning the basic social and economic conditions needed to live a life of dignity and freedom, relating to work and workers’ rights, social security, health, education, food, water, housing, healthy environment and culture. Social and economic rights give people the opportunity to participate in the social, economic and cultural life of the community.

Articles 22 to 27 of the UDHR are examples of social and economic rights. These are aimed at ensuring social justice, freedom from want and participation in the social, economic and cultural aspect of life. These rights concern how people live and work together, the basic necessities of life such as food, shelter and health care, and their cultural practices.

Examples of economic rights are:

1. The right to work;
2. The right to housing;
3. The right to an adequate standard of living; and
4. The right to a pension if you are old or disabled.

The following are examples of social rights:

1. Freedom from discrimination on the grounds of race, sex, religion or other;
2. The right to marry and have a family;
3. The right to privacy;
4. The right to recreation;
5. The right to education; and
6. The right to health care.

Socio-economic rights provide protection for the dignity, freedom and well-being of individuals by guaranteeing state-supported entitlements to education, public health care, housing, a living wage, decent working conditions and other social goods.

Article 2(1) of the International Covenant on Economic, Social and Cultural Rights sets out State parties’ key obligations with regard to the implementation of the rights in the Covenant. According to that provision, States are under a duty to take steps to the maximum of their available resources, to achieve the full realisation of Covenant rights progressively.

Zambia ratified the ICESCR In 1984.

1. Do you think Zambia has taken steps to the maximum of its available resources to achieve the full realisation of the Covenant rights for its citizens?

2. What obstacles, if any, have hindered this?

5.2.6.3 Minority Group Rights – Third Generation

In this category, you will be able to identify those rights which cannot be exercised only by an individual, but only collectively, such as the right:

1. Of people to self-determination;
2. To peace;
3. To development;
4. To humanitarian assistance;
5. To clean and safe environment; and
6. Of sexual, ethnic, religious, linguistic minorities.

Minority rights are those human rights that offer specific protection to members of a non-dominant group, such as racial, ethnic, national, religious or linguistic minority groups. Minority group rights are also referred to as third generation. These are people or solidarity rights.

These are also referred to as collective rights as indicated in Article 28 of the UDHR which provides that:

“Everyone is entitled to a social and international order in which the rights and freedoms set forth in this declaration can be fully realised”. This includes for example,the right to peace, the right to a healthy environment or the right to development.

5.2.7.1 Introduction to International Human Rights Law

In this unit, you will study the genesis and growth of International Human Rights Law. You will understand the concept of Sovereignty of States in the context of international law and be able to explain the relationship of domestic law and international law with practical examples.

The history of human rights covers thousands of years and draws upon religious, cultural, philosophical and legal developments throughout the recorded history. It seems that the concept of human rights is as old as the civilization. This is evident from the fact that almost at all stages of mankind there have been a human rights document in one form or the other in existence. Several ancient documents and later religious and philosophies included a variety of concepts that may be considered to be human rights. Notable among such documents are the Edicts of Ashoka issued by Ashoka the Great of India between 272-231 BC and the Constitution of Medina of 622.

AD, drafted by Muhammad to mark a formal agreement between all of the significant tribes and families of Yathrib (later known as Medina). However, the idea for the protection of human rights grew after the tragic experiences of the two World Wars. Prior to the world war, there was not much codification done either at the national or the international levels for the protection and implementation of human rights.

5.2.7.2 Concept of Human Rights

Human rights are the rights a person has simply because he or she is a human being. Human rights are held by all persons equally, universally, and forever. “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

An early philosopher Immanuel Kant said that human beings have an intrinsic value absent in inanimate objects. To violate a human right would therefore be a failure to recognize the worth of human life. Human right is a concept that has been constantly evolving throughout human history. They have been intricately tied to the laws, customs and religions throughout the ages. Most societies have had traditions similar to the “golden rule” of “Do unto others as you would have them do unto you.” The Hindu Vedas, the Babylonian Code of Hammurabi, the Bible, the Quran (Koran), and the Analects of Confucius are five of the oldest written sources which address questions of people’s duties, rights, and responsibilities.

Different countries ensure these rights in different way. In India they are contained in the Constitution as fundamental rights, i.e. they are guaranteed statutorily. In the UK they are available through precedence, various elements having been laid down by the courts through case law. In addition, international law and conventions also provide certain safeguards.

Human rights refer to the “basic rights and freedoms to which all humans are entitled.” Examples of rights and freedoms which have come to be commonly thought of as human rights include civil and political rights, such as the right to life and liberty, freedom of expression, and equality before the law; and social, cultural and economic rights, including the right to participate in culture, the right to food, the right to work, and the right to education. “A human right is a universal moral right, something which all men, everywhere, at all times ought to have, something of which no one may be deprived without a grave affront to justice, something which is owing to every human simply because he is human.” Human rights are inalienable: you cannot lose these rights any more than you can cease being a human being. Human rights are indivisible: you cannot be denied a right because it is “less important” or “non-essential.” Human rights are interdependent: all human rights are part of a complementary framework. For example, your ability to participate in your government is directly affected by your right to express yourself, to get an education, and even to obtain the necessities of life.

Another definition for human rights is those basic standards without which people cannot live in dignity. To violate someone’s human rights is to treat that person as though he or she was not a human being. To advocate human rights is to demand that the human dignity of all people be respected.

5.2.7.3 Sovereignty in the Context of International Law

Perhaps the outstanding characteristic of a state is its independence, or sovereignty. This was defined in the Draft Declaration on the Rights and Duties of States prepared in 1949 by the International Law Commission as the capacity of a state to provide for its own well-being and development free from the domination of other states, providing it does not impair or violate their legitimate rights. By independence, one is referring to a legal concept and it is no deviation from independence to be subject to the rules of international law. Any political or economic dependence that may in reality exist does not affect the legal independence of the state, unless that state is formally compelled to submit to the demands of a superior state, in which case dependent status is concerned.

The notion of independence in international law implies a number of rights and duties: for example, the right of a state to exercise jurisdiction over its territory and permanent population, or the right to engage upon an act of self-defence in certain situations. It implies also the duty not to intervene in the internal affairs of other sovereign states. This duty not to intervene in matters within the domestic jurisdiction of any state was included in the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States adopted in October 1970 by the United Nations General Assembly. It was emphasised that: [n]o state or group of states has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other state.

Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the state or against its political, economic and cultural elements, are in violation of international law. The prohibition also covers any assistance or aid to subversive elements aiming at the violent overthrow of the government of a state. In particular, the use of force to deprive peoples of their national identity amounts to a violation of this principle of non-intervention. The principles surrounding sovereignty, such as non-intervention, are essential in the maintenance of a reasonably stable system of competing states. Setting limits on the powers of states vis- `a-vis other states contribute to some extent to a degree of stability within the legal order.

5.2.7.4 Equality of States

One other crucial principle is the legal equality of states, that is equality of legal rights and duties. States, irrespective of size or power, have the same juridical capacities and functions, and are likewise entitled to one vote in the United Nations General Assembly. The doctrine of the legal equality of states is an umbrella category for it includes within its scope the recognised rights and obligations which fall upon all states. This was recognised in the 1970 Declaration on Principles of International Law. This provides that:

All states enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature. In particular, sovereign equality includes the following elements:

1. States are juridically equal;
2. Each state enjoys the rights inherent in full sovereignty;
3. Each state has the duty to respect the personality of other states;
4. The territorial integrity and political independence of the state are inviolable;
5. Each state has the right to freely choose and develop its political, social, economic and cultural systems;
6. Each state has the duty to comply fully and in good faith with its international obligations and to live in peace with other states.

The notion of equality before the law is accepted by states in the sense of equality of legal personality and capacity.

5.2.7.5 Relationship Between Domestic Law and International Law

Interdependence and the close-knit character of contemporary international commercial and political society ensures that virtually any action of a state could well have profound repercussions upon the system as a whole and the decisions under consideration by other states. This has led to an increasing interpenetration of international law and domestic law across a number of fields, such as human rights, environmental and international investment law, where at the least the same topic is subject to regulation at both the domestic and the international level.

With the rise and extension of international law, questions begin to arise paralleling the role played by the state within the international system and concerned with the relationship between the internal legal order of a particular country and the rules and principles governing the international community as a whole. Municipal law governs the domestic aspects of government and deals with issues between individuals, and between individuals and the administrative apparatus, while international law focuses primarily upon the relations between states. That is now, however, an overly simplistic assertion. There are many instances where problems can emerge and lead to difficulties between the two systems. In a case before a municipal court a rule of international law may be brought forward as a defence to a charge.

5.3.1.1 Monist Systems

In monist systems like the Netherlands, China and other countries, treaties can normally be ratified only after they are approved by the legislature, but the treaties then become legally binding in domestic law if they are self-executing.

France is another example of a monist system. Under French law, ratified treaties are considered to be superior to domestic legislation. However ratification must often be approved by the French Parliament, especially in cases where the treaty “modifies provisions which are matters for statute”. In such cases, incorporation is often either redundant or very little is required.

5.3.1.2 Dualist Systems

The dualist position is exemplified by the United Kingdom, where treaty-making is considered to be the exclusive competence of “Her Majesty’s Government” (the executive). All treaties must be incorporated if they are to have any effect on domestic legislation. To do otherwise would violate the doctrine of the sovereignty of Parliament, which reserves legislative primacy to the British parliament. However, treaties may have interpretative value, and judges consider that Parliament, in the absence of clear contrary intention, did not intend for an Act to conflict with a ratified treaty.

The position of the United States is intermediate to the two extremes described above. The Supremacy Clause (VI.2) of the United States Constitution states that “all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land.” However, the term “treaty” has a more restricted sense in American law than in international law. Of the more than 16,000 international agreements entered into by the United States between 1946 and 1999, only 912 were ratified by the required two thirds of the US Senate of the Treaty Clause of the Constitution.

Case Study

This was reaffirmed by Lord Bingham in A (FC) and Others (FC) v. Secretary of State for the Home Department, noting that ‘a treaty, even if ratified by the United Kingdom, has no binding force in the domestic law of this country unless it is given effect by statute or expresses principles of customary international law’

In the Supreme Court case of Sammy Kambilima Ngati, Mumba Chishimba Edward and Davy Musonda Chanda v The People (SCZ Judgement No. 14 of 2003) the three appellants were tried and convicted in Zambia for offences which were all committed in the Democratic Republic of Congo along the Pedicle Road. The convictions were for two counts of murder and one count of aggravated robbery. The 1^st and 2^nd appellants were Congolese nationals . The question of jurisdiction of the Zambian courts arose at the hearing of the appeal in the Supreme Court for Zambia.

The first ground of appeal was the lack of jurisdiction of the Zambian criminal courts over the 1^st and 2^nd appellants on the allegation that they were non-Zambians and the crimes were alleged to have been wholly committed in Congo DR.

In its Judgement, the Supreme Court firstly stated that the objection to jurisdiction should have been raised at the start of the trial in the court below so that the learned judge could have made an inquiry into the claim by the 1^st and 2^nd appellants. That there was no evidence on record to prove that the two appellants are non-Zambian.

Secondly, the Supreme Court agreed that Criminal Law is of territorial effect at Common Law unless modified by statute. In agreeing with this general statement of the law, the Supreme Court however, took into consideration the obiter dictum of Lord Griffiths in the Privy Council decision in the case of Somchai Liangsiriprasert v Government of the United States of America (1991) 1 AC 225) at page 251 where he states:

“Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and Common Law must face this new reality.”

The Supreme Court in its judgement ascertained that there was no Treaty or Agreement between Zambia and Congo over the use of the Pedicle Road and that what was obtaining was Comity between the two countries resulting in the Zambian government maintaining the road. It was because of this arrangement that AMC Contractors, a Zambina firm, were awarded a contract by the Zambian National Roads Board to work on the road. The two deceased worked for AMC Contractors and were killed as they were checking on the progress of works on the Pedicle Road; the other was a victim of aggravated robbery along the same road.

The Supreme Court stated as follows:

“The two deceased persons were Zambian and the victim of the aggravated robbery charge is a Zambian. It is with these sets of factors in the background that we feel the dictum of Lord Griffiths is useful…

The appellants are Zambians and although the offence was committed out of Zambia, the Penal Code applies to the appellants by virtue of Section 6(1) of the Penal Code. The defence based on lack of jurisdiction of the Zambian criminal courts cannot succeed in this matter and it is dismissed.”

1. Would the decision of the Supreme Court have been different if it had been established in the trial court that the 1^st and 2^nd appellant were Congolese?
2. Give reasons for your answer.

5.3.2.1 Universal Declaration of Human Rights (UDHR)

The Universal Declaration of Human Rights (UDHR) is the first comprehensive and universal instrument in the history of mankind. It represents the highest aspirations of humankind. It was expressed in terms that are non-political and set out the treatment that everyone in the world would be able to expect as a member of the human family. The instrument drew together for the first-time ideas shared by many political, cultural and religious traditions.

The UDHR sets out in its 30 Articles the basic rules and freedoms for all peoples, covering civil, political, economic, social and cultural rights. Yet, in itself, the UDHR has no legal force. It is a set of moral rules and the UDHR was not regarded as law but as an acceptable standard on which states are supposed to aspire to achieve. The power and impact of these moral rules, and their applicability, may be judged by their widespread acceptance and incorporation into domestic jurisdiction. Below is a simplified version of the list of rights that are incorporated under the UDHR:

¹See ‘The Core International Human Rights Instruments and their monitoring bodies’, The Office of the United Nations High Commissioner for Human Rights (OHCHR).

5.3.2.2 Universal Declaration of Human Rights (UDHR)

Article 1 Right to Equality

Article 2 Freedom from Discrimination

Article 3 Right to Life, Liberty, Personal Security

Article 4 Freedom from Slavery

Article 5 Freedom from Torture, Degrading Treatment

Article 6 Right to Recognition as a Person before the Law

Article 7 Right to Equality before Law

Article 8 Right to Remedy by Competent Tribunal

Article 9 Freedom from Arbitrary Arrest, Exile

Article 10 Right to Fair Public Hearing

Article 11 Right to be considered Innocent until proven Guilty

Article 12 Freedom from Interference with Privacy, Family, Home and Correspondence Article 13 Right to Free Movement in and out of the Country

Article 14 Right to Asylum in other Countries from Persecution

Article 15 Right to a Nationality and Freedom to Change it Article 16 Right to Marriage and Family Article 17 Right to own Property

Article 18 Freedom of Belief and Religion

Article 19 Freedom of Opinion and Information

Article 20 Right of Peaceful Assembly and Association

Article 21 Right to Participate in Government and in Free Elections

Article 22 Right to Social Security

Article 23 Right to Desirable Work and to join Trade

Article 24 Unions Right to Rest and Leisure

Article 25 Right to Adequate Living Standard

Article 26 Right to Education

Article 27 Right to Participate in Cultural Life of Community

Article 28 Right to Social Order assuring Human Rights

Article 29 Community Duties essential to Free and Full Development Article 30 Freedom from State or Personal Interference in the above Rights

The idea and contents of the UDHR have been further expanded and expressed in a way that is owned by a specific region. Africa, Europe and the Americas each have a human rights charter for their region. Regional human rights instruments supplement and complement the international human rights structure, by protecting and promoting human rights in specific areas of the world. Regional human rights instruments help to localise international human rights rules and standards, reflecting the particular human rights concerns of the region.

5.3.2.3 African Charter on Human and Peoples’ Rights (1981)

The African Charter on Human and Peoples’ Rights of 1981, also known as the ‘Banjul Charter’, is the principal human rights instrument that promotes and protects human rights and basic freedoms on the African continent. The Charter came into effect on 21 October 1986, deals with individual human rights and the collective rights of peoples. As with international instruments, countries in Africa are asked to sign and ratify the African Charter to say that they will protect the rights set out in them.

5.3.2.4 Other Relevant International Human Rights Instruments

In addition to the UDHR, the United Nations has passed many other legally binding international instruments to protect human rights such as:

1. International Covenant on Civil and Political Rights (ICCPR);
2. International Covenant on Economic, Social and Cultural Rights (ICESCR);
3. Convention on the Elimination of all forms of Discrimination against Women (CEDAW – 1979);
4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT – 1984);
5. Convention on the Rights of the Child (CRC – 1989);
6. Convention on the Rights of Persons with Disabilities(CRPD – 2006).

5.3.2.5 Link between the UDHR and the Bill of Rights in the Constitution of Zambia

The UDHR has a lot in common with the Zambian Bill of Rights. Both spell out human rights that need to be respected by the State. The Zambian Bill of Rights and the UDHR are both important documents dedicated to the safety, security, and overall well-being of two very different groups of people.

The UDHR sets out 30 articles which constitute a “Bill of Rights” for all the inhabitants of the all the nations in the entire world and was the base for crafting national Bills pf Rights in most countries. However, the UDHR is less useful as it does not provide means for enforcement.

The Zambian Bill of Rights has only 14 articles which only cover civil and political rights (Article 11 up to article 24), whereas the UDHR covers both civil and political rights and Economic, Social and Cultural rights.

The key difference in the documents rests not in the words, but in the audiences to which they speak to and the contents of the list of types of rights.

1. Describe what is meant by ‘human rights’.
2. Human rights are universal, inalienable and inherent’: Discuss this statement.
3. Outline the categories of human rights.
4. Write short notes on examples of cases or facts of violation of human rights.

The International Covenant on Civil and Political Rights (ICCPR) is an international human rights treaty adopted by the United Nations (UN) in 1966. … ICCPR commits the states signed up to it to protect and respect the civil and political rights of individuals.

5.4.4.1 Women’s rights in the Zambian Bill of Rights

The Bill of Rights, as contained in the Zambian Constitution, emphasises that human rights are the basis of our democracy and that our social, political, economic and cultural policies should be guided by the Constitution. The rights and freedoms set out in the Bill of Rights are a birth right (inherent) of each person.Article 11: everyone in Zambia has all of the rights and freedoms listed in the Bill of Rights.

Article 11: Article II is a general declaration of the rights every person in Zambia is entitled to regardless of race, place of origin, political opinion, colour, creed, belief, religion, sex or marital status and this include women.

5.4.4.2 Article 23: Protection from Discrimination

5.4.5.1 State Obligations

Article 2 stipulates a number of undertakings on the part of the States Parties. It requires States Parties to embark on a policy of eliminating discrimination against women by:

1. Embodying the principle of the equality of men and women in their national constitutions and other laws and to ensure its practical realisation;
2. Adopting laws and relevant sanctions prohibiting all discrimination against women;
3. Establishing legal protection of the rights of women on an equal basis with men and to ensure their effective protection through competent national institutions;
4. Refraining from engaging in any act or practice that perpetuates discrimination against women and to take appropriate measures to eliminate discrimination against women by any person or organisation;
5. Modifying or abolishing existing laws, regulations, customs and practices which constitute discriminations against women and to repeal all national penal provisions that constitute discrimination against women.
6. Under Article 3, States Parties shall take all appropriate measures in the political, social, economic, and cultural fields to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.
7. In Article 4, States Parties are allowed to introduce temporary special measures to accelerate equality between men and women. This is also called affirmative action and it is meant to address factors that may inhibit women’s equal enjoyment of human rights and fundamental freedoms.
8. Article 5(a) calls upon States Parties to take measures to modify cultural and customary practices that promote inferiority or superiority of either men or women or on stereotyped roles for men and women. Article 5(b) requires joint and equal responsibility of both men and women in the upbringing of children. It is expected that the interest of the children shall be the primary consideration in all cases.
9. Part II (Articles 7-9) of the CEDAW deals with the elimination of discrimination against women in the exercise of political rights. In this regard, women shall have equal rights:

1. To vote and be eligible for election;

2. To participate in the formulation and implementation of government policies;

3. To participate in NGOs concerned with the public and political life of their country;

4. Equal opportunity to represent government at international level;

5. To acquire, change or retain nationality, including equal rights with men with respect to the nationality of their children.

Part III (Articles 10-14) of the CEDAW calls for the elimination of discrimination of women in the enjoyment of economic, social and cultural rights. These include:

1. Equal access in educational, career and vocational opportunities;
2. Equality in employment, including, among others, free choice of employment, equal remuneration, social security, to protection of health and to safety in working conditions;
3. equality in health care and equal access to health care services, including family planning;
4. equality in other areas of economic and social life.

Rural women are given special emphasis in Article 14. Here, States Parties must take into account the particular problems faced by rural women and the significant role they play in the economic survival of their families. States Parties must put in place measures to eliminate discrimination against women in the rural areas and to ensure their participation in rural development at all levels; to have access to health care facilities, and to benefit directly from social security programmes. Other measures include access to training and education opportunities, including functional literacy, and to benefit from community and extension services in order to increase their technical proficiency. Article 14 also guarantees to women, among others, the right to participate in all community activities and to have access to agricultural credit and loans, marketing facilities, appropriate technology and to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, as well as transport and communications.

Part IV (Articles 15 and 16) guarantees equal rights for women before the law and a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, women should have equal rights in concluding contracts and to administer property. Women also must be treated equally in all stages of procedure in courts and tribunals. Article 16 gives women equal rights in marriage and family relations, including the right to freely choose a spouse and to enter into marriage freely and with full consent; and equal rights and responsibilities during marriage and at its dissolution. Parents must also have equal rights and responsibilities with regard to guardianship, trusteeship and adoption and the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property.

Answer all the questions below based on what you have studied on discrimination.

1. Identify ways in which women are being discriminated in your community.
2. Identify ways men and women can be treated equally in Zambia.
3. Tabulate ways in which women oppress men and vice versa.
4. In light of the Bill of Rights, explain how some traditional customs promote discrimination and oppression of women in Zambia.

5.5.3.1 Who is a Child?

For purposes of the Convention, a child means every human being below the age of 18 years unless, under the law applicable to the child, majority is attained earlier. The latter part of the definition indicates that States have the latitude to provide for lower age limits although this has raised controversy with child rights activists. Some writers have stated that the need was felt for some flexibility, considering that the age of 18 years was not necessarily consonant with the age of majority in various countries, and that the application of the rights recognised in the CRC to a person who is no longer a minor could be incompatible with his or her legal status. It was therefore decided to qualify the upper age limit of 18 years by the earlier attainment of majority under the law applicable to the child.

Similar provisions in other instruments also provide for the upper limit of 18 years. Article 2 of the African Charter on the Rights and Welfare of the Child, adopted at Addis Ababa on 11 July 1990, says for the purposes of the Charter, a child means every human being below the age of 18 years. Article 1(1) of the European Convention on the Exercise of Children’s Rights, adopted at Strasbourg on 25 January 1996, provides that the Convention shall apply to children who have not reached the age of 18 years. These two instruments do not seem to have adopted the flexibility of the CRC in defining the term “child”.

The ICCPR and the ICESCR do not have a definition for “child” in the provisions that they specifically dedicate to children. However, in its General Comment on Article 24 of the ICCPR, the Human Rights Committee, noting that the Covenant does not indicate the age at which a child attains majority, stated to the effect that the age of majority is to be determined by each State Party in the light of the relevant social and cultural conditions.

5.5.3.2 Summary of Convention on the Rights of the Child (CRC)

The Universal Declaration of Human Rights provides in Article 25(2) that motherhood and childhood are entitled to special care and assistance. Both the ICCPR (Article 24) and the ICESCR (Article 10) provide that children are entitled to special measures of protection. Children are vulnerable because they grow towards independence only with the help of adults. Children’s dependence and their developmental state make them particularly vulnerable as they are more sensitive than adults to the conditions under which they live: poverty, poor housing, environmental pollution, crime and other vices. In terms of decision making, children generally have no vote and no active part in the political process. They depend on adults to make crucial decisions on their behalf. The special vulnerability of children means that they deserve special protection. Some adults exploit children in various ways because they are too young to protect themselves, both physically and mentally.

According to the General Guidelines Regarding the Form and Contents of Periodic Reports to be submitted by States Parties under Article 44 paragraph 1(b) of the Convention, the CRC revolves around four general principles:

1. Non-discrimination;
2. Best interests of the child;
3. Right to life, survival and development; and
4. Respect for the views of the child.

The Second World Conference on Human Rights held in Vienna in 1993 also reaffirmed the CRC general principles when it proclaimed that in all actions concerning children, non-discrimination and the best interests of the child should be primary considerations and the views of the child given due weight.

5.5.3.3 Non-discrimination

In terms of Article 2 of the CRC, all children should enjoy their rights without discrimination based on any ground. The principle of non-discrimination is a basic norm of human rights and virtually every human rights instrument expressly prohibits discrimination based on any ground.

5.5.3.4 The Best Interests Principle

Central to the implementation of the CRC is ‘the best interests of the child’ principle. Article 3(1) provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”.

Within the CRC the ‘best interests of the child’ principle appears in relation to separation of the child from the family setting (Article 9); with reference to parental responsibility for the upbringing and development of the child (Article 18); in relation to adoption (Article 21); and, in the context of the justice system (Articles 37 and 40).

The ‘best interests of the child’ principle is also found in other human rights documents. Compare the following provisions:

5.5.3.5 The Right to Life, Survival and Development

As already noted above, children are very vulnerable and are affected the worst by a lot of things. In this regard, the implementation of the CRC must put at the forefront the survival and proper development of the child. Article 6 of the CRC requires States Parties to recognise that every child has the inherent right to life and that they shall ensure to the maximum extent possible the survival and development of the child.

5.5.3.6 Respect for the Views of the Child

Article 12 of the CRC provides for the child’s freedom of opinion and expression. It says that States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. The child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

5.5.4.1 Children’s Rights in the Bill of Rights:

1. Article 11: everyone in Zambia has all of the rights and freedoms listed in the Bill of Rights (to the exception of political rights for children).
2. Article 11: Article II is a general declaration of the rights every person in Zambia is entitled to regardless of race, place of origin, political opinion, colour, creed, belief, religion, sex or marital status and this include children. The Bill of Rights also gives children rights and freedoms like any other Zambian.
3. Article 24: provides protection for ‘young persons’ from all forms of trafficking, harmful employment, physical or mental ill-treatment, neglect, cruelty or exploitation.
4. Article 23: The Article provides for protection from discrimination on grounds of race, ethnicity, sex, place of origin, marital status, political opinion, colour, creed or belief. Under this Article, no one is allowed to discriminate another person or group of people, whether privately or when carrying out public duties. This article equally protects children from any form of discrimination.

A non parent man keeping a

child against his/her will

Child crushing stones to help

family raise funds

  |                                    |                  |                  |

Child sent to buy beer from

bars for the uncle

    |                                    |                  |                  |

5.6.1.1 Definition of Equality

Equality refers to and includes the full and equal enjoyment, by both sexes, of rights, opportunities, responsibilities and freedoms, and where both sexes are equally treated in accordance with the constitution and the EEA.

5.6.1.2 Distinction Between Formal and Substantive Equality

Substantive equality recognises that policies and practices put in place to suit the majority of clients may appear to be non-discriminatory but may not address the specific needs of certain groups of people. In effect they may be indirectly discriminatory, creating systemic discrimination

Formal Equality of Opportunity is the view that formal rules should not exclude individuals from achieving certain goals by making reference to personal characteristics that are arbitrary, such as race, socio-economic class, gender, religion and sexuality.

5.6.1.3 The Right to Equality in the Bill of Rights.

The concept of equality and non-discrimination are central to international human rights law. The Universal Declaration of Human Rights (UDHR) elaborates the UN Charter’s equal rights prescriptions; the principle of equality pervades the declaration. Of the thirty articles, some are in one way or another explicitly concerned with equality, and the rest implicitly refer to it by emphasizing the all-inclusive scope of the UDHR, as in the following Articles (emphasis added):

Article 1. All human beings are born free and equal in dignity and rights.

Article 2. Everyone is entitled to all the rights and freedoms set forth in the Universal Declaration without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 4. No one shall be held in slavery or servitude.

Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law.

Under Part III of Cap 1 of the Laws of Zambia the following provisions endorse the concept of the right to equality;

Article 11 of the Constitution provides as follows: [Fundamental rights and freedoms]

It is recognised and declared that every person in Zambia has been and shall continue to be entitled to the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed, sex or marital status, but subject to the limitations contained in this Part, to each and all of the following, namely:

1. Life, liberty, security of the person and the protection of the law;
2. Freedom of conscience, expression, assembly, movement and association;
3. Protection of young persons from exploitation;
4. Protection for the privacy of his home and other property and from deprivation of property without compensation; and

The provisions of this Part shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

5.6.3.1 Meaning of Discrimination in Practical Terms

Discrimination is generally defined as any distinction, exclusion, restriction or preference (whether intentional or not)² but based on grounds relating to race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on the equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.³

Therefore, the term discrimination implies any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms.⁴ The terms ‘distinction,’ ‘exclusion,’ ‘restriction,’ and ‘preference’ are all used to describe differential treatment.

You have an exercise and case study based on discrimination. Read and answer both.

Exercise

Describe a time when you or someone you know was discriminated against.

Case Study

Jane and Julie have the same qualifications and work in the same department. Now the two want to stay in one flat with two apartments so that they live close to each other. A nice flat is found in a prime area; however, the landlord says he can only rent an apartment to Julie and not Jane because she is HIV positive and looks sick already.

In good faith the landlord advises Jane to take one apartment at another flat of his which is close to her workplace and is cheaper than the one she wanted to share with her friend.

The following morning, management at their work place, announced that a newly developed employment policy requires that those promoted to managerial positions are men and women who really deserve promotion, they must be hard working and must have a good track record of reporting early for work and be at work at least 17 days per month.

Julie picks up a quarrel with the manager and complains that she is disturbed because of the way her friend Jane has been treated and that their boss only wants to promote men using the new policy.

What is your opinion of what is happening here?

There are various forms of discrimination against people living with HIV and AIDS or people affected by AIDS and these forms include but are not limited to:

1. Desertion by spouses, other family members or friends and even employers;
2. Refusal by medical personnel to offer treatment to PWHA;
3. Restriction on the number of times a PWHA should come to a health centre or hospital or restricting amount of medicines, or giving them expired medicines;
4. Failure by employers to be flexible, remove, eliminate or improve any complications that unfairly limits or restricts PLWHA from enjoying equal opportunities or failing to take steps to accommodate the needs of such persons;
5. Refusal to employ or admit into school, or forcing PLWHA to discontinue with their education or employment;
6. Deciding for on behalf of PLWHA as to whether they should marry or not, have children or not or even sell their properties;
7. Exclusion of PLWHA from communal programmes;
8. Denial of access to land, housing, credits, loans and insurance services;
9. Depriving PLWHA of the right to be voted for or be appointed to managerial or public office.

Remember that:

Management styles and workplace policies that treat all staff in the same way may lead to indirect discrimination against people living with HIV. Take for instance, strict shift patterns without any flexibility to adjust can lead to discrimination against people living with HIV and AIDS, considering that an employee living with HIV and AIDS may take more frequent rest breaks depending on her/his health condition;

Although Part III of the Constitution does not specifically mention a person’s health status (or HIV/AIDS status) as one of the prohibited grounds for discrimination, courts have set precedents through cases that included health status among the prohibited grounds for discrimination.

5.6.3.2 Importance of Human Rights for People Living with HIV and AIDS?

1. People living with HIV and AIDS as well as their families, including other already stigmatised populations such as women, sex workers, homosexuals, transgender people and people who use drugs experience stigma and discrimination;
2. Apart from being violation of human rights in itself, discrimination of people living with HIV leads to the violation of other human rights such as access to healthcare and the right to employment.⁵

5.6.3.3 Grounds for the Discrimination of Other Groups of People?

People are discriminated on a variety of grounds which include stereotypes, culture, language, race and ethnicity

Stereotypes: A stereotype is an over-generalized belief about a particular category of people, and this becomes a good ground for discrimination for others

Culture and language: Some people may discriminate others on the grounds of culture and language

Race and ethnicity: Discrimination may occur also based on race and ethnicity

5.6.3.4 Types of Discrimination

There are three types of discrimination and these are:

1. Direct

Probably the simplest and most common form, this kind is an unfair treatment of another person because of specific protected characteristics, or perceived characteristic, or their association with someone with that protected characteristic.

2. Indirect

This refers to laws and policies that apply to everyone in an organisation or institution but put a person or other categories of persons in a disadvantaged position. As a result of some particular characteristics that they have, the law hits them harder than others. If the policymakers can prove that they considered their characteristics and ended up with the policy with the least effect, it can be disqualified as discrimination

3. Systemic

Systemic discrimination refers to patterns of behaviour, policies or practices that are part of the structures of an organization or institution, and which create or perpetuate disadvantage for some categories of persons

5.7.2.1 The Courts of Law

The guaranteed rights under the Bill of Rights can be enforced through the courts of law. The Bill of Rights is justiciable meaning that a person who feels aggrieved by an action that hinges on the enjoyment of her/his human rights can petition the High Court for redress in accordance with Article 28 of the Constitution. The article allows any person who alleges that her/his rights as contained in Articles 11 to 26 has been or are likely to be violated.

5.7.2.2 Public Protector

The functions of the Public Protector is to investigate an action or decision taken or omitted to be taken by a state institution in performance of an administrative function. An action or decision taken or omitted to be taken must be either unfair, unreasonable or illegal or not compliant with the rules of natural justice. Thus, the primary function of the Public Protector is to oversee fairness and legality in public administration. The office of the Public Protector exists in order to protect the rights of individuals who believe themselves to be the victim of unjust acts on the part of the public administration. The Public Protector is often expected to act an impartial mediator between an aggrieved individual and the government.

5.7.2.3 Human Rights Commission

Was established to ensure that the laws and regulations with regards to protection of human rights are effectively applied. The Human Rights Commission is an independent organ. The Human Rights Commission is concerned with the protection of individuals against all forms of discrimination and with the protection of civil and political rights. The Human Rights Commission has the power to receive and investigate complaints from individuals, groups alleging human rights abuses committed in violation of existing national law. In order to undertake its function properly, the Human Rights Commission will usually be capable of obtaining evidence relating to the matter under investigation.

5.7.2.4 Police Public Complaints Commission

Receives and investigates complaints against police actions and makes recommendations to the appropriate institution or authority for action. The Police Public Complaints Commission can therefore investigate cases where human rights have allegedly been violated.

5.7.2.5 Judicial Complaints Commission

Receives and hears complaints lodged against a judge or a judicial officer and makes recommendations to the appropriate institution or authority for. This means that the Judicial Complaints Commission can also consider human rights matters.

5.7.2.6 Gender Equity and Equality Commission(GEEC)

GEEC PART III, Art 9

The Commission is responsible for—

1. Ensuring, in liaison with the Ministry responsible for gender, that gender equality and equity is attained and mainstreamed in public and private affairs and structures; monitoring, investigating, researching, educating, lobbying, advising and reporting on issues concerning gender equity and equality;

1.  Recommending, to appropriate authorities, any measures that need to be taken to ensure gender equity and equality; and

2. Taking steps, in liaison with appropriate authorities, to secure redress for complaints relating to gender equity and equality.

2. Notwithstanding the generality of subsection (1), the Commission shall –promote gender mainstreaming in the systems of governance; (b) develop, undertake or manage information and educational programmes in order to promote public understanding of gender equity and equality; and (c) perform such other functions as provided under this Act.

5.7.2.7 Legal Aid Board

Provides legal aid in civil and criminal matters for people who cannot afford to pay for legal services. This includes legal assistance and representation in all courts of law.

5.7.3.1 Civil Society Organisations (CSOs)

CSOs play a vital role in the promotion and protection of individual human rights in Zambia. This is done through outreach and campaigns on specific issues. For example, the CSOs have in the past embarked on a campaign for the abolition of the death penalty and replacing it with the sentence of life imprisonment without parole. The CSOs have also played a fundamental role in advocating for improved prison conditions, gender equality and land rights. Therefore, they play an essential role in promoting and protecting individual rights. Apart from advocacy for individual human rights, a number of CSOs are involved in dispute resolution. They also play a key role in the training of paralegals and in the creation of mobile legal clinic in an effort of addressing the scarcity of legal practitioners and ensuring people have access to justice.

5.7.3.2 The Legal Profession

The Legal Profession plays a complementary role providing legal aid through legal practitioners in private practice taking up cases either at no cost for the client (‘pro bono legal aid’) or engaged by the Legal Aid Board against a prescribed fee to provide legal assistance and representation (‘Judicare system’).

6.1.1.1 HIV Infection and Transmission

HIV can mainly be transmitted through the following modes:

1. Sexual transmission: occurs through contact with infected sexual fluids during sexual activities (rectal, genital or oral mucous membranes). This happens during sex without a condom, including vaginal, oral and anal sex or even when sharing sex toys.
2. Blood transmission: HIV can be transmitted to a child during pregnancy, childbirth and through breast feeding.
3. Perinatal transmission: common among people who inject drugs, sharing and reusing syringes contaminated with HIV-infected blood or even during blood transmission.

6.1.1.2 Symptoms of HIV Infection

Symptoms of HIV infection are not immediate but may take months or years before they begin to manifest in the infected person. This is because they come as a result of secondary infections by bacteria, viruses, fungi and/or other parasites. The HIV just weakens the body’s immune system allowing these microorganisms to easily infect the body.

However, people living with HIV can live healthy and productive lives with antiretroviral therapy.³

6.1.1.3 Post Exposure Prophylaxis

PEP, or post-exposure prophylaxis, is a short course of HIV medicines taken very soon after a possible exposure to HIV to prevent the virus from taking hold in the body It is very important to take HIV tests regularly so that you can commence treatment as soon as necessary to reduce the viral load in blood.

6.1.1.4 Antiretroviral (ARV) Drugs

A variety of antiretroviral drugs are available that help reduce the blood viral load. Once a person has tested positive to HIV then their viral load is checked and depending on the outcome of the assessment they may be put on antiretroviral drugs

Antiretroviral drugs are given free of charge at government health facilities. These drugs play a key role in the health of a person infected with HIV as they help in suppressing the viral load.

6.1.1.5 Infection Rates Overview

Since 2010, new HIV infections have decreased by 27% and AIDS-related deaths have decreased by 11% owing to a number of initiative in the health sector in Zambia.

The testing, treatment and education response to the pandemic adopted in the health sector in Zambia has reaped dividends. The National AIDS Strategic Framework 2017–2021 adopted test and treat and furthermore, Zambia has embarked on decentralizing the AIDS response and Lusaka has signed the Paris Declaration, along with 50 other local authorities.

Comprehensive sexuality education is fully integrated in school curriculums and strategies to reach out to adolescents are in place. HIV services for key populations, including pre-exposure prophylaxis, are being scaled up, along with efforts to improve the legal environment.

Testing for HIV/AIDS is voluntary in Zambia although the government recently made it mandatory for all patients to be tested before accessing medical care in government health facilities.

1. Differentiate between HIV and AIDS.
2. Explain why not all persons infected with HIV are not suffering from AIDS.
3. Explain how the HIV is transmitted from one person to another.
4. Discuss the importance of antiretroviral drugs to a person infected with HIV.
5. Why is it not advisable for persons infected with HIV to miss taking the drug at prescribed times, even once?

Note it

People living with HIV/AIDS should have the same basic rights and responsibilities as those which apply to other citizens of the country.

6.2.4.1 Non-discrimination, Equal Protection and Equality Before the Law

Equality and non-discrimination are positive and negative statements of the same principle. Hence, justifiable differential treatment of different groups in the interest of true equality is not discrimination. It is different from the discrimination which is based upon ‘unwanted,’ ‘unreasonable,’ or ‘unpleasant’ distinctions which are never justified.⁵

Discrimination is generally defined as any distinction, exclusion, restriction or preference (whether intentional or not)⁶ but based on grounds relating to race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on the equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.⁷

Therefore, the term discrimination implies any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms.⁸

The terms ‘distinction,’ ‘exclusion,’ ‘restriction,’ and ‘preference’ are all used to describe differential treatment.

There are various forms of discrimination against people living with HIV and AIDS or people affected by AIDS and these forms include but are not limited to:

1. Desertion by spouses, other family members or friends and even employers;
2. Refusal by medical personnel to offer treatment to PWHA;
3. Restriction on the number of times a PWHA should come to a health centre or hospital or restricting amount of medicines, or giving them expired medicines;
4. Failure by employers to be flexible, remove, eliminate or improve any complications that unfairly limits or restricts PLWHA from enjoying equal opportunities or failing to take steps to accommodate the needs of such persons;
5. Refusal to employ or admit into school, or forcing PLWHA to discontinue with their education or employment;
6. Deciding for on behalf of PLWHA as to whether they should marry or not, have children or not or even sell their properties;
7. Exclusion of PLWHA from communal programmes;
8. Denial of access to land, housing, credits, loans and insurance services;
9. Depriving PLWHA of the right to be voted for or be appointed to managerial or public office.

Jane and Jullie have the same qualifications and work in the same department. Now the two want to stay in one flat with two apartments so that they live close to each other. A nice flat is found in a prime area; however the landlord says he can only rent an apartment to Jullie and not Jane because he is HIV positive and looks sick already. In good faith the landlord advises Jane to take one apartment at another flat of his which is close to her workplace and is cheaper than the one she wanted to share with her friend.

6.2.4.2 Right to Life and Health

The right to life is guaranteed by Article 11 and 12 of the Zambian Constitution. The right to health is a fundamental part of human rights and of a life of dignity. The right to health means:

1. The full enjoyment of the highest possible standard of health
2. To be able to enjoy a state of complete physical, mental and social well-being, which is not just the absence of disease.

Although the right to health in Zambia is to be realised progressively, actions to guarantee non-discrimination and steps taken towards its realization are of immediate effect. The right to life and health for people living with HIV and AIDS can only be enjoyed when they:

1. Access health services without fear of discrimination — affordable and high-quality services that are based on the needs of the individual;
2. Access HIV prevention, treatment, care and support;
3. Access treatment to keep them alive and healthy but also to enable them to avoid transmitting HIV to their sexual partners and to their infants. HIV prevention is not only restricted to physical transmission but comprises all activities that help to prevent transmission such as ; HIV information; Sexuality and life skills education; Services for sexually transmitted infections; Provision of male and female condoms; Access to male circumcision; Prevention of mother-to-child transmission; and Services and modalities to reduce the harms related to drug use.

The Anti-Gender-Based Violence Act has criminalised various forms of sexual abuse which includes sexual contact by a person aware of being infected with HIV or any other sexually transmitted infection with another person without that other person being given prior information of the infection⁹. This entails that:

1. There is a legal obligation for people who are HIV positive to inform or tell their sexual partner about their HIV status.
2. People who are HIV positive must also ensure that their sex practices are as safe as possible (e.g. by using condoms). Disclosing HIV infection to sex partners is part of one’s duty to protect others from potential exposure to the virus.

6.2.4.3 Right to Privacy

The right to privacy is guaranteed by Article 11 of the Zambian Constitution. The right to privacy is important particularly for persons with HIV. This means that they have the right to keep their HIV status to themselves and they cannot be forced to disclose it, or to have an HIV test. Furthermore, one’s HIV status should not be told to others without consent. This is all because:

1. People with HIV and AIDS have the right to confidentiality and privacy about their health and HIV status;
2. Health care professionals are ethically and legally required not to tell anyone about their patients’ HIV status;
3. A person’s HIV status may not be disclosed to anybody without that person’s fully informed consent.
4. Even after death, the HIV status of the deceased person may not be disclosed to anybody without the consent of his or her family or partner – except when required by law.

The question of consent is of cardinal importance as seen in the case of Akashambatwa Mbikusita-Lewanika v Frederick Chiluba¹⁰ where the High Court declined to order the respondent to be subjected to a DNA test without his consent to determine his disputed paternity. Mandatory testing violates the following rights as guaranteed in the Constitution:

1. Article 11(a), namely, the right to liberty, security of the person and to protection of the law;
2. Article 13, namely, the right to personal liberty;
3. Article 15, namely, the right to protection from inhuman and degrading treatment; and
4. Article 17, namely, the right to privacy.

Even extracting a blood sample from any person without his or her consent infringed individual rights.

In the case of Stanley Kangaipe and Charles Chookole v Attorney-General,¹¹ a number of important human rights issues were pronounced by High Court in 2010 relating to mandatory testing and these include:

1. Mandatory HIV testing without informed consent, is a blatant violation of someone’s rights to privacy and to protection from inhuman and degrading treatment;
2. An employee’s contract may only be terminated if s/he is incapable of performing her/his duties (for example, is absent for prolonged periods of time) and has been given a fair hearing.

6.2.4.4 Right to Freedom of Movement

Going by the provisions of the Zambian constitution, freedom of movement includes the right of everyone including persons living with HIV to freely choose his or her place of residence, as well as the rights of citizens to enter and leave their own country as such restrictions would be discriminatory. This means that:

1. People living with HIV or AIDS have the same rights to liberty and autonomy, and freedom of movement as others ;
2. HIV-infected people should not be segregated, restricted, isolated in correctional facilities, places of learning, hospitals just because of their HIV-positive status;
3. States cannot prevent their nationals from travelling to other countries, including conducting any testing of foreign nationals at the border.

6.2.4.5 Right to Liberty and Security of the Person

This right, found in article 9 of the International Covenant on Civil and Political Rights and Article 11 of the Zambian Constitution guarantees among other rights, the right to liberty and security of the person. This means that the right to liberty and security should not be arbitrarily interfered with merely on the basis of a person’s HIV status, for example:

1. Compulsory HIV testing can constitute a deprivation of liberty and a violation of the right to security of person;
2. Placing an HIV-positive individual in quarantine or isolation. Respect for the right to physical integrity requires that testing be voluntary and undertaken with the informed consent of the person.

This entails that:

1. People living with HIV or AIDS are entitled to maintain personal autonomy (i.e. the right to make their own decisions) about any matter that affects marriage and child-bearing. Therefore, premarital testing as a precondition for marriage, or forced abortions or sterilisation of women living with HIV are prohibited. However, this does not stop them from undergoing counselling about the consequences of their decisions;
2. No person may be tested for HIV without his or her free and informed consent (except where the law demands such i.e. in cases of rape or defilement);
3. In all cases the informed consent of the individual is legally required. Informed consent means that the person has been made aware of, and understands, the implications of the test.

6.2.4.6 Right to Work

The right to work is enshrined in article 23 of the Universal Declaration of Human Rights and articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights. This means every person has the right to access employment without any precondition except the necessary occupational conditions. A violation to this right occurs whenever an applicant or employee is required to undergo mandatory testing for HIV and is dismissed or refused employment on the grounds of being found HIV positive.

For example, although the Defence Force Act in Zambia Act makes mandatory testing for HIV a pre-condition for recruitment, the exclusion from the army of any candidate purely on the basis of his or her HIV status is still illegal because the recruits are unfairly discriminated against.

The right to work further guarantees the right to safe and healthy working conditions. Where a possibility of HIV transmission exists, e.g., in the health sector, employers should take measures to minimise these risks.

6.2.4.7 Equal Right to Education

This right, set out in article 26 of the Universal Declaration of Human Rights and article 112 of the Zambian Constitution, guarantees that those living with HIV are not discriminatorily denied access to education on the basis of their HIV status. The right to education:

1. Provides that individuals have the right to receive HIV related education;
2. Imposes to duty bearers to promote understanding, respect, tolerance and non-discrimination in relation to people living with HIV and AIDS.

Importance of Human Rights for people living with HIV and AIDS.

Human rights are important for any person but this is more especially so for people with HIV/AIDS for the following reasons:

1. People living with HIV and AIDS as well as their families, including other already stigmatised populations such as women, sex workers, homosexuals, transgender people and people who use drugs experience stigma and discrimination;
2. Apart from being violation of human rights in itself, discrimination of people living with HIV leads to the violation of other human rights such as access to healthcare and the right to employment.¹²

1. Discuss the legal implication of consent and confidentiality in HIV testing and counselling in Zambia.
2. Describe the global, regional and national HIV and AIDS frameworks and how each one contributes to reducing HIV transmission.
3. Discuss the rights of people living with HIV and AIDS.
4. Explain why people living with HIV and AIDS deserve these rights.
5. Explain the importance of the right to health for persons living with HIV/AIDS.

Summary ——-

Legal issues arising from HIV testing, counselling and treatment includes issues of consent, confidentiality, negligent HIV transmission, Post Exposure Prophylaxis (PEP) and antiretroviral drugs.

Legal framework on HIV and AIDS and rights of people living with HIV and AIDS is at international, regional and national levels.

1. International legal framework on HIV and AIDS.

The goal of the Legal Framework on HIV and AIDS to:

1. Support communities and countries to reduce risk and vulnerability to infection;

2. Save lives and alleviate human suffering; and

3. Lessen the epidemic’s overall impact on development.

4. Regional legal framework on HIV and AIDS, a SADC model focusing on removing barriers key populations face in accessing HIV and sexual reproductive health (SRH) services in order to reduce the HIV and AIDS prevalence in the region.

5. National legal framework on HIV and AIDS which focuses on mandatory HIV testing and early intervention.

Rights of people living with HIV and AIDS include the following:

1. Non-discrimination, equal protection and equality before the law;
2. Right to life and health;
3. Right to privacy;
4. Right to freedom of movement;
5. Right to liberty and security of the person;
6. Right to work; and
7. Equal right to education.

Every country has laws that regulate migrants within its territory and this is what is referred to as immigration law. In Zambia immigration law is mainly embodied in a statute known as the Immigration and Deportation Act No. 18 of 2010, hereinafter called “The IDA”, which was passed to regulate the entry into and the remaining within Zambia of immigrants and visitors as well as to provide for the removal from Zambia of criminals and other specified persons; and further to make provision for matters incidental to thereto.

Article 112 (f) of the 1991 Zambian Constitution, amended in 1996, includes disability with supportive anti-discrimination clause Article 23 (3) which prohibits discrimination against any person or persons. The country’s Constitution is under review, and the draft Constitution of Zambia Bill, 200 of 2010 has inclusion of disability in several articles articulating specific disability issues in article 45.

8.1.4.1 United Nations Convention on the Rights of Persons with Disabilities (CRPD)

The international legal framework on disability rights is anchored primarily on the Convention on the Rights of Persons with Disabilities hereinafter called, the “CRPD” adopted by the United Nations adopted on 13 December, 2006, and the Optional Protocol to the Convention on the Rights of Persons with Disabilities. The Convention entered into force in 2008. Zambia became a party to the Convention on 1 February 2010.

The purpose of the Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity. You will recall that this what we said was the purpose of Disability rights law above.

The Convention is very extensive and places all the relevant human rights in the context of the special circumstances of persons with disabilities. Below are the general principles of the Convention.

Purpose: Its purpose is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity[⁹

1. Equality and Non-discrimination

This principle requires states to acknowledge equality of all before the law and the entitlement to equal protection before the law without discrimination. Furthermore, states must prohibit discrimination against persons with disabilities on all grounds.

2. Participation and Inclusion in society

This principle requires states to ensure that persons with disabilities fully and effectively participate and are included in society’s activities at whatever level.

3. Respect and Acceptance

Here States are expected to respect the differences that PWDs have and accept them as part of human diversity in society.

4. Equality of opportunity

PWDs must be afforded same opportunities in society. Measures which are necessary to accelerate or achieve de facto equality of persons with disabilities are not considered discriminatory. PWDs already suffer situational inequality because of their disabilities.

5. Accessibility

PWDs must access their physical environment, public transport, communication and other key facilities that are important for enjoyment of other guaranteed rights. For example, a PWD cannot fully enjoy his freedom of movement without access to public transport. In the case of Sela Brotherton (suing in her capacity as National Secretary of the Zambia Federation of Disability Organisation) v Electoral Commission of Zambia (2008/HP/ 0818), it was held that even though disability is not one of the expressly prohibited discrimination grounds, public officers are generally estopped from administering public resources in a discriminatory manner. Therefore, the respondent was found to have discriminated against the applicants by failing to provide appropriate support services to allow persons with disabilities to participate in the electoral process^[12]

6. Equality between men and women

The CRPD advocates for equality between men and women In addition, the Convention specifically recognises that women and girls with disabilities are subject to multiple discrimination and requires States parties to “take measures to ensure the full and equal enjoyment by them of all human rights and fundamental freedoms” and “ensure the full development, advancement and empowerment of women, for the purpose of guaranteeing them the exercise and enjoyment of the human rights” set out in the Convention.¹⁰

Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

Tip

You must refer to the general principles discussed under the CRPD above when discussing the general principles of Optional Protocol as they are the same.

8.2.2.1 Constitution of Zambia

You recall In Unit 4, that The Constitution of Zambia guarantees human rights to all persons as contained in the Bill of Rights (part III). PWDs are therefore guaranteed of all rights in the Constitution. Refer to the Bill of Rights in Unit 4, Section 4.5.3.

8.2.2.2 The Persons with Disabilities Act

In July 2012 Zambia enacted the PWD Act to promote the participation of persons with disabilities with equal opportunities in the in the civil, political, economic, social and cultural spheres; provide for mainstreaming of disability issues as an integral part of national. The Act also repealed and replaced the Persons with Disabilities Act among other things.

1. Salient features of the Act

The following are some of the key provisions of the PWD Act :

1. Purpose of the Act

The preamble of the Act contains several objectives that it intends to achieve ranging from continuation and regulation of institutions dealing with PWDs to repealing the previous Act on PWDs which was passed in 1996. However its core purpose is to promote and protect the rights of persons with disabilities.

2. Protection against Discrimination

The PWD Act prohibits discrimination, abuse and use of derogatory terms against PWDs. Discrimination in the Act is defined as follows:

“…any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field, and includes all forms of discrimination, such as denial of reasonable accommodation, and the term”discrimination on the basis of disability" shall be construed accordingly.”¹²

3. Right to Family Life and Social Activities

You recall that one of the ways society reacts to PWDs is by forcing them to get treatment and this in turn results in them being institutionalised. The PWDs Act attempts to curb this vice by bestowing upon a PWD the right to choose their place of residence to live with their family and participate in social, political, economic, creative or recreational activities.¹³

4. General application of Duties and Responsibilities

One of the key features of the PWD Act is that it does not restrict duties and responsibilities towards PWDs to the State alone. The obligations under the Act are mostly of general application. The Act uses the terms “every person” when dealing with duties and responsibilities. A good example is the duty imposed on every person to uphold the rights of persons with disabilities, to respect and safeguard the dignity of persons with disabilities.¹⁴

5. Legal Protection and Participation in Legal proceedings

The PWDs Act guarantees PWDs enjoyment of legal capacity on an equal basis with others in all aspects. The judiciary is given the responsibility of taking steps to ensure PWDs have equal and effective protection and equal benefit of the law without discrimination.

Where a person with disability is a party in any legal proceedings, the adjudicating body should take into account the condition of the person with disability and provide procedural and other appropriate facilities to enable the person with disability access justice and participate effectively in the proceedings.¹⁵

6. Law enforcement agencies duty towards PWDs

Law enforcement agencies should take into consideration the disability of a person on arrest, detention, trial or confinement of the person with disability and make reasonable accommodation for that person accordingly, including at investigative and other preliminary stages of the matter.¹⁶

8.2.2.3 Mental Health Act

In 2017, a petition in the case of Mwewa and Others v The Attorney 2017/HP/204 was filed in the High Court to challenge the constitutionally of some provisions of the Mental Disorder Act which was the main legislation dealing with mental health. Among the reasons why the Act was being brought into question was because of the use of some terminologies such as idiot imbecile etc. when referring to PWDs.

The High Court found that the terms used in the Act where indeed unconstitutional. In 2019 the Country passed the Mental Health Act No 6 of 2019 which repealed and replaced the Mental Disorder Act.

The Mental Health Act unlike its predecessor is more aligned with the current global trends on the treatment of persons with mental disabilities. To begin with, usage of derogatory terms in the Act has been avoided even starting from the Title of the Act itself. The name “Disorder” has been dropped and replaced with “Health”.

The Act has also made provision for rights of persons with mental disabilities under part II. Among the rights and protections that Act has bestowed on persons with mental disability are the following:

1. Enjoyment of legal capacity: Persons with mental disabilities are now able to enjoy capacity unlike previously. The Act allows for appointment of a Supporter who can help the mental patient to enjoy the legal capacity. The appointment may be done in advance by the patient or on his behalf by the court.
2. A person, shall respect, safeguard the dignity, and uphold the rights of a mental patient.
3. A person shall not discriminate against a mental patient.
4. A person shall not exploit or subject a mental patient to abusive, violent or degrading treatment including gender based aspects.
5. A person shall not call a mental patient by a derogatory name on account of a disability of that mental patient.

8.2.2.4 National Disability Policy

Women and men with disabilities can and want to be productive members of society. In both developed and developing countries, promoting more inclusive societies and employment opportunities for people with disabilities requires improved access to basic education, vocational training relevant to labour market needs and jobs suited to their skills, interests and abilities, with adaptations as needed.

Many societies are also recognizing the need to dismantle other barriers - making the physical environment more accessible, providing information in a variety of formats, and challenging attitudes and mistaken assumptions about people with disabilities.

The 2015 National Policy on Persons with Disabilities is intended to domesticate the UN Convention on the Rights of Persons with Disabilities. It is based on partnerships, coordination, full and effective participation and inclusion in society. Accountability and transparency, respect for dignity and independence, equality and non-discrimination and traditional values among others.

Some of the functions of the Policy are to prevent disability, develop skills for daily living, promote human rights, education and skills training and accessibility.

8.3.3.1 International

The CRPD is a legally binding human rights treaty with an explicit social development dimension that recognizes the human rights and fundamental freedoms of all persons with disabilities.

In CRPD, recognises the difficult conditions faced by persons with disabilities, who are subject to multiple or aggravated forms of discrimination such race, colour, sex, language, religion, political etc.

As you may have observed by now, Non-discrimination and Equality of persons with disabilities are prominent in the CRPD as they feature both in the general principles¹⁷ and an obligatory parts of the CRPD¹⁸.

The obligation to eliminate all forms of disability-based discrimination, including multiple and intersecting forms of discrimination, underlies all provisions of the Convention, including the right to education, work and employment, participation in political and public life, liberty of movement and nationality, living independently, being included in the community, access to justice, equal recognition before the law, social protection, the right to liberty and the right to health.

In tackling non-discrimination proceeds on the notion that women, girls and children with disabilities are often subjected to multiple discrimination and this is the approach that state parties are expected to adopt in dealing with discrimination against such groups.^192]

Furthermore, the CRPD recognises the importance of international cooperation and its promotion for the realization of the purposes and objectives of the Convention are recognized. States parties commit to undertake “appropriate and effective measures between and among themselves, in partnership with relevant international and regional organizations and civil society, particularly organizations of persons with disabilities for the realisation of the objectives of the Convention.

Effective measures involve ensuring that international cooperation, including international development programmes, is inclusive of and accessible to persons with disabilities (32.1 (a)) and facilitating and supporting capacity-building, including through the exchange and sharing of information, experiences, training programmes and best practices (32.1 (b)).

The CRPD further requires that States parties should closely consult with and actively involve persons with disabilities, through their representative organizations, in the development and implementation of legislation and policies to implement the Convention, and in other decision-making processes concerning issues relevant to persons with disabilities.²⁰

The equal treatment of and absence of discrimination against persons with disabilities also falls under the mandate of other international human rights treaties, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child which you learnt under Unit 1.5 above.

The commitment of the international community to advancing the human rights of persons with disabilities has been strengthened with the adoption of the 2030 Agenda for Sustainable Development.

The 17 Sustainable Development Goals explicitly include persons with disabilities in five Goals and seven targets. Goal 10, to “Reduce inequality within and among countries”, commits Member States to reducing inequalities for all people, including persons with disabilities. Targets addressing multiple and intersecting forms of discrimination include 10.2, “empower and promote the social, economic and political inclusion of all, irrespective of age, sex, disability, race, ethnicity, origin, religion or economic or other status” and 10.3, “Ensure equal opportunity and reduce inequalities of outcome, including by eliminating discriminatory laws, policies and practices and promoting appropriate legislation, policies and action”.

You can see from the above set targets in the 2030 Agenda for Sustainable Development that issues relating to rights and treatment of persons with disabilities are being given global attention and will continue to do so even in the long term.

8.3.3.2 National

The national standards on implementation of the non-discrimination of PWDs are not materially different from the international standards given that Zambia is a state party to and domesticated the CRPD which is a reference point for international standards.

Most of the standards set by the CRPD have been reproduced in the PWDs Act. The following are some of the additional standards that you need to remember from the PWDs Act:

1. The PWDs Act prohibits discrimination against PWDs on the basis of disability.
2. A person shall not exploit or subject a person with disability to be abusive, violent or degrading treatment including gender-based aspects.
3. A person shall not call a person with disability any derogatory name because of the disability of that person.
4. The PWDs Act generally applies Duties and Responsibilities on non-discrimination.

In this activity, you will need to gain access to these documents: The Convention on the Rights of Persons with Disabilities of 2006 and _The Persons with Disabilities Act No 6 of 2012_ in order to do the tasks below:

1. Explain the extent to which the Persons with Disabilities Act 2012 has provide legal basis for easing difficult conditions faced by persons with disabilities.

2. If you were given the opportunity to review the Persons with Disability of 2006, discuss adjustments you would make to strengthen the Act.
3. Discuss the importance of international cooperation in promoting rights of persons with disabilities

When dealing with the international and domestic framework of disability law you learnt that part of the purpose of both the CRPD and PWDs Act is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to promote respect for their inherent dignity.

8.4.1.1 Participation of Persons with Disabilities in Political and Public life and Access to Services such Education, Health

This right, found in article 25 of the International Covenant on Civil and the Constitution of Zambia is essential for ensuring the participation of everyone through freedoms of association and assembly.

Participation in political and public life is a human right as well as an important step in the process of enjoying other human rights. It encompasses the right to vote and the right to be elected.

The Zambian Government like other countries have a duty to protect the rights to life, physical integrity, to individual liberty and security, to privacy and to procedural fairness in law.²²

One way of making this right a reality for persons with disabilities is to ensuring that voting procedures, facilities and materials (in braille) are appropriate, accessible and easy to understand and use

8.4.1.2 Remember:

1. Not all distinctions, and not all unfavourable treatment, amount to unlawful “discrimination.” Persons with disabilities also have an obligation to respect the rights, health and physical integrity of others, and to take appropriate steps to ensure this when necessary;
2. Discrimination is the failure to give a person with a disability the equal opportunity to use or enjoy the public accommodation’s goods, services, or facilities. For instance, a day care centre or a school that categorically refuses to admit children with any kind of disabilities;
3. Section 17 of the Employment Code Act No 3 of 2019 requires that every employee shall be medically examined by a Medical Officer before s/he enters into a contract of service of at least six months duration. However, the purpose of the examination is to ascertain the fitness of the employee to undertake the work, which s/he is required to do. Also, as mentioned previously in the manual, the Act does not require that potential employees be tested for HIV/AIDS. In other terms the HIV status of the person is not relevant and doctors should not conduct HIV tests as part of medical examinations for employment, without telling the person involved and receiving their consent.
4. Medical examination is carried out for the purpose of deciding whether a person is fit enough to do a particular job at the time they are employed.
5. Not all people with disabilities will need accommodations to perform their jobs and many others may only need a few or simple accommodations.

Administrative law is that branch of the law which determines the organization, powers, and duties of administrative authorities, the legal requirements governing their operation, and the remedies available to those adversely affected by administrative action. The main goal of administrative law is to protect the interests of the public as it interacts with government; for instance, when a person applies for Social Security.

9.2.4.1 Applicable Administrative Procedures

Under the Public Protector Act No. 15 of 2016, section 13 makes provision for instances when the Public Protector may investigate a complaint as follows:

The Public Protector may investigate an allegation of maladministration— on the Public Protector’s own initiative; or on receipt of a complaint made by:

1. A complainant acting in the complainant’s own interest;
2. An association acting in the interest of its members;
3. A person acting on behalf of a complainant;
4. A person acting on behalf, and in the interest, of a group or class of persons; or
5. An anonymous person.

9.2.4.2 The Concept of Judicial Review:

Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws and governmental actions that are incompatible with a higher authority: an executive decision may be invalidated for being unlawful or a statute may be invalidated for violating the terms of a constitution. Judicial review is one of the checks and balances in the separation of powers: the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority.

9.2.4.3 Ultra Vires Rule

Ultra Vires is a Latin phrase meaning “beyond the powers”. If an act requires legal authority and it is done with such authority, it is characterised in law as Intra Vires (“within the powers”). If it is done without such authority, it is ultra vires. Acts that are intra vires may equivalently be termed “valid” and those that are ultra vires “invalid”.

The doctrine of ultra-vires first time originated in the classic case of Ashbury Railway Carriage and Iron Co. Ltd. v. Riche, (1878) L.R. 7 H.L. 653, which was decided by the House of Lords. In this case the company and M/s. Riche entered into a contract where the company agreed to finance construction of a railway line. Later on, directors repudiated the contract on the ground of its being ultra-vires of the memorandum of the company. Riche filed a suit demanding damages from the company. According to Riche, the words “general contracts” in the objects clause of the company meant any kind of contract. Thus, according to Riche, the company had all the powers and authority to enter and perform such kind of contracts. Later, the majority of the shareholders of the company ratified the contract. However, directors of the company still refused to perform the contract as according to them the act was ultra-vires and the shareholders of the company cannot ratify any ultra-vires act.

When the matter went to the House of Lords, it was held that the contract was ultra-vires the memorandum of the company, and, thus, null and void. Term “general contracts” was interpreted in connection with preceding words mechanical engineers, and it was held that here this term only meant any such contracts as related to mechanical engineers and not to include every kind of contract. They also stated that even if every shareholder of the company would have ratified this act, then also it had been null and void as it was ultra-vires the memorandum of the company. Memorandum of the company cannot be amended retrospectively, and any ultra-vires act cannot be ratified.

This doctrine assures the creditors and the shareholders of the company that the funds of the company will be utilized only for the purpose specified in the memorandum of the company. In this manner, investors of the company can get assured that their money will not be utilized for a purpose which is not specified at the time of investment. If the assets of the company are wrongfully applied, then it may result into the insolvency of the company, which in turn means that creditors of the company will not be paid. This doctrine helps to prevent such kind of situation. This doctrine draws a clear line beyond which directors of the company are not authorized to act. It puts a check on the activities of the directors and prevents them from departing from the objective of the company.

9.2.4.4 Principles of Natural Justice

The Principles of Natural Justice have come out from the need of man to protect himself from the excesses of organized power man has always appealed to someone beyond his own creation. Such someone is the God and His laws, divine law or natural law, to which all temporal laws and actions must confirm.

1. Natural Law is of the ‘higher law of nature’ or ‘natural law’.
2. Natural Law does not mean the law of the nature or jungle where lion eats the lamb and tiger eats the antelope but a law in which the lion and lamb lie down together, and the tiger frisks the antelope.
3. Natural Law is another name for common-sense justice.
4. Natural Laws are not codified and is based on natural ideals and values which are universal.

In the absence of any other law, the Principles of Natural Justice are followed.

The earliest form of natural law can be seen in Roman philosophical expressions (Jus Naturale). It is used interchangeably with Divine Law, jus gentium and the common law of nations.

The Principles of Natural Justice are considered the basic Human Rights because they attempt to bring justice to the parties naturally.

Two core points in the concept of principles of natural justice.

1. Nemo in propria causa judex, esse debet - No one should be made a judge in his own case, or the rule against bias.
2. Audi alteram partem - Hear the other party, or the rule of fair hearing, or the rule that no one should be condemned unheard.

These two are the basic pillars of the Principles of Natural Justice.

1. Explain the following concepts and principals:

(i)The concept of judicial review;

2. The principles of natural justice;

(iii)Applicable administrative procedures.

2. With examples, explain the concept of exercise of discretional powers by public bodies.

9.2.5.1 Differences between Interlocutory and Final Remedies

A “final” judgment or order is one that finally disposes of a case, leaving nothing more to be done by the Court in respect thereto, e.g., an adjudication on the merits which, on the basis of the evidence presented at the trial, declares categorically what the rights and obligations of the parties are and which party is in the right; or a judgment or order that dismisses an action on the ground, for instance, of res judicata or prescription. Once rendered, the task of the Court is ended, as far as deciding the controversy or determining the rights and liabilities of the litigants is concerned. Nothing more remains to be done by the Court except to await the parties’ next move (which among others, may consist of the filing of a motion for new trial or reconsideration, or the taking of an appeal) and ultimately, of course, to cause the execution of the judgment once it becomes “final” or, to use the established and more distinctive term, “final and executory.”

Conversely, an order that does not finally dispose of the case, and does not end the Court’s task of adjudicating the parties’ contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is “interlocutory” e.g., an order denying a motion to dismiss or granting a motion for extension of time to file a pleading, or authorizing amendment thereof, or granting or denying applications for postponement, or production or inspection of documents or things, etc. Unlike a “final” judgment or order, which is appealable, as above pointed out, an “interlocutory” order may not be questioned on appeal except only as part of an appeal that may eventually be taken from the final judgment rendered in the case.

9.2.5.2 Types of Remedies:

1. Certiorari

A writ of certiorari is a form of judicial review whereby a court is asked to consider a legal decision of an administrative tribunal, judicial office or organization (eg. government) and to decide if the decision has been regular and complete, if there has been an error of law, if the tribunal had the power to make the decision complained of or whether the tribunal exceeded its powers in issuing the decision complained of.

For example, a certiorari may be used to wipe out a decision of an administrative tribunal which was made in violation of the rules of natural justice, such as a failure to give the person affected by the decision an opportunity to be heard.

2. Damages

Damages refers to the sum of money the law imposes for a breach of some duty or violation of some right. Generally, there are two types of damages: compensatory and punitive. (The term “damages” typically includes both categories, but the term, “actual damages” is synonymous with compensatory damages, and excludes punitive damages.)

Compensatory damages, like the name suggests, are intended to compensate the injured party for loss or injury. Punitive damages are awarded to punish a wrongdoer. There are other modifying terms placed in front of the word damages like “liquidated damages,” (contractually established damages) and “nominal damages” (where the court awards a nominal amount such as one dollar). For certain types of injuries statutes provide that successful parties should receive some multiple of their “actual damages” – e.g., treble damages.

There are general principles governing what types of damages are awarded. It is generally recognized, for instance, that punitive damages are not available for breaches of contract except when it is proven that the breach was wanton, willful and deliberate.

In contract law, if a court determines that damages will not properly compensate the injured party, the court may choose to award specific performance.

3. Prohibition

A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. In practice, the court directs the clerk to issue the writ, and directs the sheriff to serve it on the subordinate, and the clerk prepares the writ and gives it to the sheriff, who serves it. This writ is often issued by a superior court to the lower court asking it not to proceed with a case which does not fall under its jurisdiction.

4. Mandamus

Mandamus (Latin “we command”) is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing), and which is in the nature of public duty, and in certain cases one of a statutory duty. It cannot be issued to compel an authority to do something against statutory provision. For example, it cannot be used to force a lower court to reject or authorize applications that have been made, but if the court refuses to rule one way or the other then a mandamus can be used to order the court to rule on the applications.

Mandamus may be a command to do an administrative action or not to take a particular action, and it is supplemented by legal rights.

5. Declaration

A declaration is a written statement submitted to a court in which the writer swears that the contents are true. That is, the writer acknowledges that if he is lying, he may be prosecuted for perjury. Declarations are normally used in place of live testimony when the court is asked to rule on a motion.

A typical declaration sets forth the factual assertions of the person signing it (called the declarant) and ends with a statement worded like this one: ‘I declare under penalty of perjury that the foregoing is true and correct and would be my testimony if I were in a court of law.’ The date and place of signing are usually included. Some jurisdictions allow declarations to be used in the place of affidavits.

6. Injunctions

An injunction is called prohibitory if it forbids the doing of an act and mandatory if it orders that an act be done. Disobedience to the order is punishable by contempt of court. Injunctions may be perpetual or temporary. A temporary injunction is normally in effect only until the hearing of the action is held, or for some lesser period; it is intended to preserve the status quo or prevent irreparable harm before the case can be fully heard.

9.2.5.3 Types of Injunctions

1. Ex Parte Injunctions

Ex parte injunctions are appropriate only when the threatened harm is so immediate and so severe that even giving the other party notice of the application for the injunction and an opportunity to be heard in opposition is not practical. Ex parte literally means one-sided. A party seeking the entry of an ex parte order (without the involvement of or even notification to the other party most directly affected) has an exceedingly heavy burden in convincing a judge the emergency warrants such extreme action. By definition, there will not be even minimal due process afforded to the affected party; therefore, the courts’ rules require certain safeguards to protect it. For example, in state court in Pennsylvania, an interim order granted on an ex parte basis may not remain in effect for more than five days without the commencement of a hearing. Furthermore, the party seeking such an injunction also has the obligation to post a monetary bond which the judge deems sufficient to compensate the affected party if it is later determined that the ex parte injunction should not have been granted.

During an ex parte injunction hearing, there is frequently no actual hearing. Although a judge is free to insist upon a full evidentiary presentation, he or she usually permits these applications to be presented in chambers. The presentation of such an application represents one of the only instances in our legal system where one party’s attorney has the opportunity to sit down with the judge and render an entirely one-sided version of the matter before the court. Although the lawyer is acting as an advocate for his client, he or she must be scrupulously honest and avoid exaggerating the circumstances. Engaging in any form of overreach throughout this one-sided process can have disastrous effects on both counsel and client, once the adversely-affected party is represented and has an opportunity to tell its side of the story. For obvious reasons, judges react very poorly to being sandbagged.

There is no requirement that a party seeking injunctive relief make a request for ex parte relief. Instead, because judges are very reluctant to grant such requests, and given the heavy burden involved in all actions for injunctions, it’s wise for a client not to risk its credibility before the court by asking for ex parte injunctive relief unless it is truly necessary. Counsel will advise requesting ex parte relief only where circumstances are very favourable.

2. Preliminary Injunctions

A preliminary injunction represents the most common form of injunctive relief requested. A preliminary injunction differs from an ex parte injunction in that the affected party is given notice that the application has been filed and has an opportunity to appear and be heard at a formal hearing where both parties may present evidence. Unlike ex parte injunction practice, a preliminary injunction almost always involves an evidentiary presentation in open court. Although not a full-blown trial, these hearings are critically important and set the stage for any litigation to come. In many cases, these hearings – and the judge’s reaction to them – constitute the entirety of the litigation.

More often than not, preliminary injunction hearings are conducted without the benefit of a significant amount of time to prepare and without the benefit of discovery, through which documents and testimony from the other side and its witnesses can be obtained prior to the hearing. Therefore, unless the party seeking the injunction is certain it fully understands the case and is completely prepared to present its case at hearing, it is a good idea to attempt to secure a court order to allow for limited discovery in preparation for the hearing to be conducted on an expedited basis, sometimes the very day before the hearing.

At the hearing, the party seeking the injunction has the burden of convincing the judge of a number of things. (Injunction requests are presented to a judge sitting without a jury. Therefore, the more counsel knows about the judge, including his or her political and ideological leanings, the better). Among the elements which must be proven by the party seeking the injunction are: (1) it has no adequate remedy other than an injunction (such as money damages); (2) truly irreparable harm will occur in the absence of an injunction; (3) it is more likely than not that the moving party will prevail on the underlying merits when the matter ultimately goes to trial; (4) the benefit to the party seeking the injunction outweighs the burden of the party opposed to the injunction; and (5) the moving party’s right to the relief sought is clear.

Read the summary of the case of Folayinka Fobisaiye Oladipo Esan v Attorney General (Appeal No. 96/. 2014) [2016] ZMSC 255 and answer the questions below.

The Appellant was chief executive officer of Lafarge Zambia. He was issued with a Zambian employment permit on 14 February 2012 which was valid for two years. On 3 December 2012, the Appellant was detained by immigration officers at Kenneth Kaunda International Airport. He was not given any reasons for his detention other than that the officers were under instructions to detain him. That same night, as the Appellant was being driven to Ndola to be put on a scheduled flight to Nairobi, he was furnished with a document revoking his permit.

Upon arrival in Ndola, it was found that the flight the Appellant was supposed to board had been rescheduled to depart later, and it was decided that the Appellant be put on a South African Airways flight to South Africa. As such, the Appellant was taken to wait at a lodge for the flight which was scheduled to leave at 13:00 hours the next day. When they went back to the airport, the Appellant was handed a Notice of Prohibited Immigrant to leave Zambia. This notice was stamped 5 December 2012 and stated that the Appellant had become a prohibited immigrant under section 35 (1) and (2) of the Immigration and Deportation Act No 18 of 2010 and the immigration authorities had been directed by the Minister of Home Affairs to order him to leave the country within 24 hours of receipt of the notice.

According to the notice, the Appellant was a prohibited immigrant because he belonged to persons named in Class D of the Second Schedule to the Immigration and Deportation Act No 18 of 2010. These were persons whose permit to remain in Zambia has expired or been revoked. The Appellant was also said to be a prohibited immigrant because the Minister of Home Affairs had in writing declared his presence in Zambia to be inimical to the public interest.

After the Appellant’s expulsion from Zambia, the Appellant through his lawyers, appealed to the Minister of Home Affairs for temporary exemption from the Class D category under the Immigration and Deportation Act No 18 of 2010. This was done to enable the Appellant return to work while a long term settlement was being sought. However, this application was rejected. The Appellant thus issued process in the High Court for Zambia seeking judicial review. He sought an order of certiorari, to move into the High Court, for purposes of quashing, the decision of the Director General of Immigration to revoke his work permit and deport him on the ground that the decision was procedurally improper and irrational. On the ground of procedural impropriety, the Appellant contended that the purported revocation of his permit and his subsequent deportation from Zambia were illegal and void ab initio as the sine qua non in section 10 of the Immigration and Deportation Act No 18 of 2010 was not satisfied. The Appellant alleged that he was neither accorded an opportunity to be heard nor was he given any reasons for the revocation of his work permit as provided for under section 10 (1) of the Immigration and Deportation Act No 18 of 2010. On the ground of irrationality, the Appellant contended that the decision of the Director General, purporting to revoke his permit and deport him, was premised on improper motives and bad faith, as no proper investigations were conducted.

In a ruling dated 19 February 2014, the High Court dismissed the Appellant’s application for an order of certiorari to quash the decision of the Director General of Immigration, revoking his employment permit and deporting him from Zambia. As a result, the Appellant appealed this ruling to the Supreme Court.

Held:

1. Where legislation seems to grant absolute discretion by leaving little or no room to question the legitimacy of an exercise of public power, courts ought to be conscious of emerging trends towards a more open and transparent government that promotes the rule of law, human rights and curbs arbitrariness. The Court should go behind the orders and delve into the circumstances in which the power was exercised especially where there is prima facie evidence of arbitrariness or perverse actions, to ensure that it was exercised lawfully and within the confines of the law.

2. Under section 34 (1) of the Act, the Director General of Immigration has the power, after giving a notice in writing, to revoke any permit issued under the Act, if the holder among others, is likely to be a danger to peace and good order in Zambia. Such a notice must specify the grounds on which the permit is revoked. The court below therefore properly found that the revocation of the Appellant’s work permit was void and of no effect as it was not preceded by the requisite notice and no reasons were advanced for the action.

3. A case is defined by its pleadings. In judicial review proceedings, the court has power to grant orders of mandamus, prohibition, certiorari, declarations, injunctions and even damages if these have been pleaded. The pleadings in this case showed that the Appellant only sought an order of certiorari relying on procedural impropriety and irrationality and he did not plead for the other reliefs. The learned trial Judge could not therefore be faulted for having confined himself to the reliefs that were pleaded.

4. The Minister of Home Affairs’ declaration that a person’s presence is inimical to the public interest should be made in writing in accordance with section 35 (2) of the Immigration and Deportation Act. Therefore, as there was no evidence of any declaration in writing that was made by the Minister, the determination of the Court below upholding the Minister’s decision is set aside. The removal of the Appellant from Zambia was unlawful..

1. The table below shows types of remedies. Complete the table by describing each remedy with relevant examples

        | Certiorari     |             |         |

| Injunctions | | |

2.Using suitable examples, explain the key differences between preliminary injunction and ex parte injunction.

3. State the two core points in the concept of principles of natural justice.

4.Having read the Esan v Attorney General case above, how did the case and the findings of the Supreme Court promote the rule of law and human rights?

5. Explain how this case curbs arbitrariness in local government?

9.3.3.1 Civil liability of Local Authorities in Tort and Contract

It has long been recognised that a public authority may be subject to a common law duty of care when exercising a statutory power or performing a statutory duty.

However, the common law has also recognised special factors applicable to statutory and other public authorities which may negative a duty of care which a private individual would owe in apparently similar circumstances, or result in the standard of care owed to a plaintiff by a statutory authority being less than that which would be owed by a private party.

9.3.3.2 Criminal liability of Local Authorities

The local government Act provides that: -

“that every council shall be a body corporate with perpetual succession and a common seal, capable of suing and being sued in its corporate name and with powers subject to the Act other acts, and of any written law to do all such other acts and things as a body corporate may do by law and as are necessary for or incidental to , the carrying out of its functions and power as set out in this Act.”¹

As already discussed, it’s a fundamental tenet of the rule of law that public bodies like local authorities be held liable for civil actions in the same way as any private individual. The most prominent types of crimes that municipalities are most likely to commit may include the violations of the environmental law, civil rights, and antitrust laws. Hence, local authorities may be criminally liable:

1. Failure to collect garbage and maintain garbage sites;
2. Failure to register and remit their employees’ pension obligations;
3. Failure to register and remit funds for their employees for workers;
4. Failure to register and remit funds for their employees for tax.

By making local authorities both liable under tort law and criminal law, it is possible to deter others from wrongdoing.

Unfortunately, there are very few reported cases of criminal prosecution of local authorities across the country but, this does not mean that these public bodies cannot be held liable from criminal acts they commit. For example, the Lusaka City Council was recently charged in the Subordinate Court in Lusaka for failing to remove waste and restore garbage dumping areas in some parts of Kanyama and Misisi Compounds. The Lusaka City Council was charged with two counts for managing garbage in a manner which creates significant risk of an adverse effect and other two counts of failure to restore, where garbage had been illegally dumped. These charges were for instance brought in accordance with the provisions of sections 54 and 60 of the Zambia Environmental Management Agency Act against the Lusaka City Council.

Note that local authorities cannot be imprisoned because they only act through the agency of individual officials, therefore, courts may order local authorities to pay:

1. Civil damages;
2. Civil fines; and
3. Criminal fines-and probationary.

Remember: Government is not immune to actions arising from it’s breach of Human Rights. Rights of citizens are contained in Article 13 of the Bill of Rights. In fact, if Government is found liable under Article 13, it has to compensate the complainant or victim.

Zambia is a democratic republic with two spheres of government, national and local. There is constitutional provision for local government and the main governing legislation includes the Local Government Act 1991 and the Local Government Elections Act 1992. The 103 local authorities fall under the Ministry of Local Government and Housing. These consist of:

1. Four city councils;
2. 15 municipal councils; and
3. 84 district councils. There are also ten provinces, which are purely administrative.

9.4.5.1 System of Local Government

151. (1) There is established a local government system where—

1. Functions, responsibilities and resources from the national Government and provincial administration are transferred to the local authorities in a co-ordinated manner;
2. The people’s participation in democratic governance is promoted;
3. Co-operative governance with the national Government, provincial administration and local authorities is promoted to support and enhance the developmental role of local government;
4. The capacity of local authorities to initiate, plan, manage and execute policies in respect of matters that affect the people within their respective districts is enhanced;
5. Social, spatial, financial and economic planning, at the district level, is developed, prioritised and promoted; and
6. A sound financial base is established for each local authority with reliable and predictable sources of revenue.

9.4.5.2 Local Government Act

The Local Government Act 1991 stipulates 63 functions that councils may discharge. Around half these functions focus on investment and maintenance of infrastructure and are the sole responsibility of the individual council. These include the establishment and maintenance of roads, bridges, ferries, watercourses, street lighting and public transport services, fire fighting and prevention services and environmental health services.

Councils must also provide and maintain supplies of water as well as establish and maintain drains, sewers and works for urban and feeder roads, and dispose of sewage and refuse. They must maintain and establish cemeteries, crematoria and mortuaries, together with parks, zoos, gardens, pleasure grounds, camping grounds, caravan sites, art galleries, libraries, museums and film services.

Councils also have joint responsibility, alongside various sector-specific government agencies, for: the conservation of natural resources; the protection and control of local forests and woodlands; the establishment and maintenance of farms and allotment gardens; and the storage, marketing and preservation of agricultural produce.

9.4.5.3 Doctrine of Ultra Vires

lntra vires is a Latin phrase meaning “beyond the powers”. If an act requires legal authority and it is done with such authority, it is characterised in law as intra vires (“within the powers”). If it is done without such authority, it is ultra vires.

9.4.5.3 Functions of Local Authorities as Regulation of Community Activities:

Councils must also provide and maintain supplies of water as well as establish and maintain drains, sewers and works for urban and feeder roads, and dispose of sewage and refuse. They must maintain and establish cemeteries, crematoria and mortuaries, together with parks, zoos, gardens, pleasure grounds, camping grounds, caravan sites, art galleries, libraries, museums and film services.

Councils also have joint responsibility, alongside various sector-specific government agencies, for: the conservation of natural resources; the protection and control of local forests and woodlands; the establishment and maintenance of farms and allotment gardens; and the storage, marketing and preservation of agricultural produce.

Allocation of land and land rates, business licensing, markets, garbage collection, fire authorities, Town and Country Planning, Water Supply and Sanitation, Public Roads, Local Authority by-laws and regulations.

9.4.6.1 Constituency Development Fund (CDF)

The main goal of the CDF is to empower Local Communities to take part in the decision-making process through improved local governance and development management, in order to reduce poverty and improve service delivery. Specifically, CDF has the following objectives:

1. Provide community participation in decision making during project implementation.
2. Support community projects.
3. Support planning and management of CDF at the constituency level.
4. Provide resources which ensure that development investments respond to the priority of needs of the constituency needs.

9.4.6.2 Borrowing Powers of Local Authorities

Local Government Act 1991 Ch IV: Sec (47)

A council may, borrow such sums of money as may be required for the purpose discharging its functions in all or any of the following ways:

1. By loan under section forty-five;
2. By the issue of stock or bonds;
3. By mortgage;
4. By temporary loan or overdraft from a bank or other source;
5. By loan from any other source.

9.4.6.2 Central Government Funding to Local Authorities

Section 45(1) The Minister may, on such terms and conditions as he may determine, make constituency development grants or loans of money to a council for the purposes of the discharge by the council of any of its functions. Government grants and loans (2) Any constituency development grant or loan made by the Minister under this section shall be paid out of moneys appropriated by Parliament for the purpose. (3) The Government shall make specific grants to the council concerned for- (a) water and sanitation; (b) health services; (c) fire services; (d) road services; (e) police services;

6. primary education; (g) agricultural services; (As amended by Act No. 19 of 1992 and Act No. 30 of 1995).