The concept of Law

Law can be defined as a set of rules which regulate human conduct in society.

Distinction Between Law and Morality

In this section we explore the relationship between law and morality; starting with defining then comparing and contrasting the two concepts. Carefully study the table below.

Table 1.1a- Differences and Similarities between Law and Morality

Table 1: Shows the Differences and Similarities between Law and Morality

The Concept of Natural Justice

Now that we have defined law and morality, let us look at the concept of natural justice. Good law and morality are of no use to a society if they are not applied fairly.

The concept of natural justice entails two major principles, The Rule against bias and the Right of an individual not to be condemned without being heard. The rule against bias comes from a Latin phrase Nemo judex en causa sua, which means no person can be judge in a matter in which he has interest. The rule is strictly applied and it matters less whether there is actual bias or not hence the old age cliché that justice must not only be done but must be seen to be done.²

The Second rule that a person should not be condemned without being heard entails that a person should be accorded an opportunity to present their case and even challenge the case of the other side. It focuses more on procedural fairness before a decision is arrived at.

Attributes of an Effective Legal system

1. Purposes and 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. Certain

Clearness of the prohibited or permitted behaviour and the consequences of not abiding.

2. Simple

In striving for comprehensiveness through exhaustive written coverage of every possible contingency, a legal system must not end up being massively complex.

3. Comprehensive

A legal system should endeavour to cover all potential problems and disputes i.e. it should be exhaustive in the sense of covering every possible contingency. But is this possible in legal systems of developing countries which depend on borrowing from the legal systems of former colonial powers

4. Understandable

It is not enough that law be written, comprehensive and simple. It must also be relatively understandable to the people whom it is supposed to guide and regulate

22. Accessible

A legal system should be easily accessible in two ways. The first is easy accessibility of the laws while the second is accessibility of legal services in general. Is it easy to access laws in a country whose legal system partially relies on foreign laws?

6. Flexible

A good legal system is one that is sufficiently adaptable to accommodate new kinds of problems and adjust to changes in the needs and desires of those whom it serves. Society is dynamic and so should be the law.

7. Inexpensive

Running a good legal system and access to legal services may not be cheap. But the ideal situation of speedy adjudication, thorough procedures, fair and equal treatment written legal processes have the potential to mitigate the cost of justice.³

8. Written

A written legal system is preferred to one that is unwritten for obvious reasons that once a legal system is written, it is more predictable as it is easy for its users to make reference to it whenever necessary.

9. Thorough procedure

Each legal system has procedures to be adopted by the users and it is important for them to follow it when using it. A good legal system will have thorough procedures that are not only clear but provide for possible situations in its use.

24. Fair and Equal Treatment

Fairness and equal treatment of users are key in any legal system as these go to the core objective of the system. A legal system that does not treats its users equally and with fairness cannot therefore be said to be a good one.

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.⁴ 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.⁵

Zambia has a dual legal system. The country has two legal paradigms that together form its legal system⁶. 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.⁷ Article 7 of the Constitution of Zambia provides as follows

Institutions Involved in Civil Justice

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.

Functions of the Court

The functions of the judiciary are twofold namely, to hear civil and criminal matters and to hear matters relating to and in respect of the Constitution.⁸

The functions of the judiciary are twofold namely, to hear civil and criminal matters and to hear matters relating to and in respect of the Constitution.⁹

Institutions Involved in the Administration of Criminal Justice

Criminal Justice is the system of practices and government institutions working to maintain social control, deterring and mitigating crime, or punishing those who violate laws with criminal penalties and rehabilitation efforts. A number of institutions are involved in the criminal justice system and each of them has specific roles and jurisdiction. In order to enhance efficiency and effectiveness of the criminal justice system the five key justice institutions namely the Judiciary, National Prosecution Authority (NPA), the Legal Aid Board (LAB), the Zambia Correctional Service (ZCS) and the Zambia Police Service (ZPS)

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 generally 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.¹⁰

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.¹¹

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.¹²

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;

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.¹³

The Constitution guarantees the independence of the DPP from external interference.¹⁴ 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:

4. The Zambia Revenue Authority;

5. The Anti-Corruption Commission; and

6. 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.

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.

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 1.1 (1.1.3 Court Hierarchy and Jurisdiction in Zambia) for further details on the Judiciary.

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.¹⁵

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 prescribed¹⁶

Differences Between Civil and Criminal Law

The Constitution of Zambia

The Constitution of Zambia is the supreme law . If any other law is inconsistent with it, that other law, to the extent of the inconsistency, is void²⁶. In Thomas Mumba vs. The people, the Supreme Court concluded that “unless the Constitution is specifically amended, any Act that is in contravention of the Constitution is null and void”²⁷

Furthermore, Article 7 of the Constitution of Zambia lists the following sources of law in Zambia

1. The Constitution

2. laws enacted by Parliament

3. Statutory Instruments

4. Zambian Customary laws which are consistent with the constitution

5. The laws and statutes which apply or extend to Zambia as prescribed²⁸

Acts of Parliament

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

Judicial Decisions

The courts give meaning to the laws when resolving disputes and deciding cases, which results in the creation of binding judicial precedents (also known as judge made law) that form part of the law. This judge-made law results from judgments made by the higher courts of law in Zambia from the High Court to Supreme court.

You should note that Zambian precedents take priority over precedents from other parts of the world, which are only of persuasive value.

A judicial precedent may be defined as “a judgement or decision of a court of law cited as an authority for deciding a similar set of facts.”²⁹ The doctrine of precedent requires that cases must be decided the same way when their material facts are the same. There are two types of precedents:

When deciding cases, courts are guided by the principle of Stare decisis which is a practice or policy of using precedents to decide present cases. Stare decisis means “stand by decided matters”.

Common Law and Equity

Common law is the legal tradition that evolved in England from the 11^th century onwards. It is that ‘part of the law of England formulated, developed and administered by the common law courts, based originally on the common customs of the country and unwritten.’

On the other hand, Equity is a body of rules that seek to advance what is ‘just’ and ‘fair’ in the circumstances of each case. For this reason, equity is said to denote ‘natural justice’. Equity developed in England as a result of defects in the common law. Whenever there is a conflict between common law and equity, the latter prevails³⁰.

International law

International law is a set of rules generally regarded and accepted as binding in relations between states and between nations.

Remember from our discussion on categories of law above that international law is consent-based governance. This means that a state member is not obliged to abide by this type of international law but once a state expressly consents to a particular course of conduct then international law becomes a source of its law as well.

Treaties

Treaties are also sources of law and they may be called Conventions, International Agreements, Pacts, General Acts, Charters, Protocols, Statutes, Declarations and Covenants. Through treaties, states participating bind themselves legally to act in a particular way or to set up particular relations between themselves.

Books of Eminent Writers

Academic writings by eminent authors are also a source of law. For one to be an eminent scholar they must have specialty in the field they are writing in and their work must have been reviewed and accepted by their peers.

Customary Law

Customary law has been part of the Zambian legal system since colonial days. Its existence is also expressly recognised by Article 7 (d) of the Constitution of Zambia stating that “The Laws of Zambia consist of (…) (d) Zambian customary law which is consistent with this Constitution”. The fact that customary law is a recognised source of law in Zambia is also evident by the provisions of the Local Courts Act³¹ and the Subordinate Courts Act.

You must note that for a practice, tradition or custom to become customary law, the following requirements must be fulfilled:

1. It must not violate any statutory law (such as the Penal Code); and o It must not violate any of the rights in the Bill of Rights;

2. It must not be repugnant to equity and good conscious or contrary to principles of natural justice or morality.

Statutory interpretation and rules followed

Statute law is written and set in place by a legislature. There are three rules used when using statute law these rules are:

The doctrine of precedent in Zambia

Constitutional Court

The Constitutional Court is established by Article 127 of the Constitution of Zambia (Amendment) Act, No. 2 of 2016. The powers and procedure of the Constitutional Court is set out in the Constitutional Court Act No. 8 of 2016. It deals primarily with constitutional law or any other constitutional matter related to human rights. Before the Amendment Act No. 2 of 2016 came into force, all constitutional matters were dealt with primarily by the High Court of Zambia, and finally by the Supreme Court on appeal.

The Constitutional Court and the Supreme Court are at the same level (rank equivalently).³⁸ The Constitutional Court operates as a court of first and last instance in constitutional matters. This means that all decisions of the Constitutional Court are final and not appealable.³⁹

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

Table 3: Composition and jurisdiction of the Constitutional Court

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.

The Supreme Court

The Supreme Court is established by Article 124 of the Constitution. It is the highest court in Zambia. The powers and procedure of the Supreme Court are set out in the Supreme Court Act Chapter 25 of the Laws of Zambia.

Table 4: Composition and jurisdiction of the High Court

The Supreme Court may sit as a circuit court in districts and its decisions are final, conclusive and binding on all the lower courts. It is not possible to start a new matter in the Supreme Court.

The Court of Appeal

The Court of Appeal is established under Article 130 of the Constitution of Zambia (Amendment) Act, No. 2 of 2016. The powers and procedure of the Court of Appeal is set out in the Court of Appeal Act No. 7 of 2016.

Table 5: Composition and jurisdiction of the Court of Appeal

The High Court

The High Court is established by Article 133 of the Constitution of Zambia (Amendment) Act, No. 2 of 2016. The powers and procedure of the high court is set out in the High Court Act.⁴⁰

The following table shows the Composition and Jurisdiction of the Court

Table 6: Composition and jurisdiction of the High Court

A court of first instance is a court where cases can be first initiated. The High Court hears new criminal and civil cases, where the offence is serious, for example capital offences (in criminal cases), or where the amount of money involved is very large or depending on the nature of the claim such as disputed wills (in civil cases). The high court is also a court of appeal.

The Chief Justice has powers to establish specialised courts of the High court to hear specific matters. The Industrial Relations Court now falls under specialised courts within High Court. The High Court now consists of four specialised courts referred to as divisions of the high court which are established by Article 133 (2) of the High Court (Amendment) Act No. 21of 2016. The divisions of the High Court include the following:

1. Industrial Relations Court;

2. Commercial Court;

3. Family Court; and

4. Children’s Court.

The Industrial Relations Court

The Industrial Relations Court is established under Article 133 (2) of the Constitution of Zambia (Amendment) Act No.2 of 2016 as division of the High Court and Section 84 of the Industrial and Labour Relations Act.

The Industrial Division of the High Court is meant to do substantive justice in labour and industrial relations matters and such it is not bound by strict rules of evidence. For example, a photocopy of an original document can be accepted as evidence, which is not the case for other courts. There are currently two Industrial Relations courts, one in Lusaka and the other in Ndola. It is concerned with labour and industrial disputes. It can hear and determine any dispute between any employer and an employee (whether or not such dispute is connected to a collective agreement or other trade union matter). In this court, conciliation is of paramount importance.

Table 7: Composition and jurisdiction of the Industrial Relations Court

Appeals from the Industrial Relations Court go to the Court of Appeal on any point of law or any point of mixed law and fact.⁴¹

The Commercial Court

The Commercial court is a specialised division of the High Court as well. It deals with disputes arising out of commercial transactions. All commercial matters are registered in the commercial registry and judges dealing with matters in the Court are experienced in commercial law. Appeals from the commercial court go to the Court of Appeal.

The Family Court

The family court is a new specialised court that is a division of the high court. It has limited jurisdiction and hears matters involving matrimonial and domestic relationships.

The family court mainly handles the following matters in relation to family law:

1. Parental disputes over the upbringing of children;

2. Divorce;

3. Child custody and child maintenance;

4. Some types of domestic violence;

5. Affiliation;

6. Adoption.

7. Succession matters

Appeals from the Family Court go to the Court of Appeal.

The Children’s Court

A children’s court is a new specialised court that is a division of the High Court. It deals with issues affecting children. It also takes care of children who are in need of care and protection and makes decisions about children who are abandoned, neglected or abused.

Any person/child may approach the Clerk of the Children’s Court when he/she believes that a child may be in need of care and protection. The children’s court can place a child in safe care or refer the child and/or the parent to services that they may require.

Appeals from the children’s court go to the Court of Appeal.

The Subordinate Courts

Subordinate Courts are established under Section 3 of the Subordinate Court Act.⁴² They are also called Magistrates’ Courts. These courts are found in almost all the districts. Subordinate courts are court of record,⁴³ which means that their acts and proceedings are recorded and kept on permanent record.

Access to Justice

Access to justice allows aggrieved parties to seek a legal remedy for the wrongs they have suffered as you can see from the chart 3.1.

The flow chart below helps to explain the importance of access to justice as well as the required actions and capacities before a remedy can be granted

Chart 3.1: Elements of access to justice

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. ⁴⁹

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 area⁵⁰ .

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.⁵¹

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.

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.

Defining Legal Aid

Legal Aid is the provision of legal services to persons who are unable to afford legal representation.

The Legal Aid Act Cap 34 of the Laws of Zambia was enacted in 1967 to provide for the granting of legal aid in civil and criminal matters and causes to persons whose means are inadequate to enable them engage practitioners to represent them; and to provide for matters connected thereto.

The Act does not define legal aid per se. Section 2 of the Act states that legal aid shall have the meaning ascribed to it in section. Section 3 provides for the scope of legal aid in Zambia and it states legal aid to consist of assistance that is given by a practitioner including the steps preliminary or incidental to any proceedings or in arriving at or giving effect to a compromise to avoid or bring to an end any proceedings. The section also includes representation as legal aid⁵².

You must note that legal aid is not only restricted to matters in court but extends to all assistance given out of court to avoid proceedings by arriving at a compromise or giving effect to any such compromise.

On 1st October 2018, the Government of Zambia adopted a National Legal Aid Policy with the objective of ensuring efficient and effective delivery of legal aid services to the poor and vulnerable people in Zambia.

The Legal Aid Policy widens the scope of legal aid services for the provision of a full spectrum of legal services to the poor and vulnerable people.

As a result, services consisting of legal education, legal information, legal advice and mechanisms of alternative dispute resolution expressly fall within the scope of the legal aid system in Zambia, in addition to legal assistance and representation in court that we mentioned earlier when defining legal aid.

Legal Aid Service Delivery Models

There are three major legal aid service delivery models namely the Staff Attorney, and the Judicare and community legal clinic model.

In a "staff attorney" model, lawyers are employed by levels of government on salary solely to provide legal assistance to qualifying low-income clients, similar to staff doctors in a public hospital.⁵³

In a "judicare" model, private lawyers and law firms are paid to handle cases from eligible clients alongside cases from fee-paying clients, much like doctors are paid to handle Medicare patients.

The "community legal clinic" model comprises non-profit clinics serving a particular community through a broad range of legal services (e.g. representation, education, law reform) and provided by both lawyers and non-lawyers, similar to community health clinics.⁵⁴

Defendants under criminal prosecution who cannot afford to hire an attorney are not only guaranteed legal aid related to the charges, but they are guaranteed legal representation, either in the form of public defenders, or in absence of provisions for such or due to case overloads, a court-appointed attorney.

In Zambia, the Legal Aid Policy establishes a mixed legal aid delivery system involving complementary legal aid service delivery models based on cooperation and engagement between state and non-state legal aid service providers.

This includes:

1. Legal Aid Board Offices at national, provincial and district level

2. CSOs legal desks at community level, including in rural, peri-urban or urban areas

3. The continued establishment of legal desks based at police stations, correctional facilities and courts of law (both at subordinate court and high court levels)

4. University law clinics

5. Pro bono legal aid

6. Judicare

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

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.

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.

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.

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.⁵⁵

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.

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.

Categories of Legal aid Service Providers

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.

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.

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.

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

Types of Personnel Involved in Delivering Legal Aid Services

There are a number of personnel playing an active role in delivering legal aid services in Zambia. These include Legal Practitioners (lawyers), Legal Aid Assistants, Legal Assistants, Paralegals and Law students.

Paralegals and Legal Assistants

The Legal Aid Policy creates a framework for non-lawyers to deliver legal aid services in Zambia.⁵⁶ 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.⁵⁷

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.⁵⁸

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 with⁵⁹

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”.⁶⁰

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.

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 si 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.

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.⁶¹

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.⁶²

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.⁶³

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.

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.

There is now a Legal Aid Board (Amendment) Bill whose contents are substantially in line with the policy.

summaryUnit Summary

Access to justice refers to easy access to courts and legal representation. There is no access to justice where citizens/marginalised groups fear the system and see it as alien and where the justice system is financially inaccessible.

The key components of access to justice include normative legal framework, legal awareness, access to appropriate forum, effective administration of justice and enforcement of remedies, transparency of the oversight of the justice system.

There are a number of barriers to access to justice, key of which include lack of awareness, education and information about the availability of legal remedies and protection; inability to pay associated legal fees; geographical isolation; structural discrimination and high opportunity cost.

Recommended Readings

The Legal Aid Act Chapter 34 of the Laws of Zambia

The Zambia National Legal Aid Policy 2018

www.usip.org › rule-law › access-justice

https://www.usip.org/

Defining Constitutional law

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.

Distribution of Government Power

The constitution of the republic of Zambia identifies three main forms of government power namely executive, legislative and judicial. The exercise of this power is equally distributed within three branches of government, that is, the Executive, Legislature and the Judicial which are equally creatures of the Constitution.

The Constitution in Article 61 states that legislative authority of the republic of Zambia derives from the people of Zambia. Furthermore in Article 62(1) the Constitution creates Parliament which consist of the Republican President and the National Assembly. Both the republican President and the members of the National Assembly (serve for 8 members who are nominated by the President) are directly elected by the people in a simple majority vote

The functions of the legislature are mainly two fold in nature. The first function of the legislature is to enact laws through the passing of bills in parliament. The second function is to oversee the functions of the Executive

Secondly the Constitution creates executive authority which is vested in the Executive branch of government. Article 90 of the Constitution states that executive authority of the republic shall derive from the republic of Zambia while Article 91 vests executive authority in the republican President who is said to be the head of state of government and commander in chief of the armed forces. Executive authority is exercised directly by the President or through public officers created under the constitution.

Judicial authority like the other two forms of government authority derives from the people and is expected to be exercised in a manner that is just and promotes accountability. Judicial authority is vested in the courts.

Local Government Service

The Constitution under Article 152 creates a Local Authorities and requires that there be a council for each local authority. The local authority is responsible for administering the district, overseeing projects and making by-laws. Each council should have councillors and a mayor or council secretary and at least three chiefs

Chieftaincy and House of Chiefs

The institution of Chieftaincy and the House of Chiefs are guaranteed of continued existence and given protection under Articles 165 of the Constitution. Parliament is prohibited from passing law that confers on a person powers to confer recognition or withdraw of recognition of a chief. It is further forbidden from passing a law which derogates from the honour and dignity of the institution chieftaincy.

Attorney General

The office of Attorney General created under article 177. The major functions of the Attorney General are to act as chief legal adviser to the government, represent the government in civil proceedings in which it is a party, sign bills to be presented to the National Assembly and to give advice on agreements conventions treaties and other international instruments that the government intends to be a party to.

Solicitor General

The Constitution in article 179 establishes the office of the Solicitor General for the republic. The Solicitor General’s function is to assist the Attorney General in the performance of his functions. In instances when the Attorney General is unable to perform his functions it is the Solicitor General’s role to perform them.

Director of Public Prosecutions

Article 180 of the Constitution creates the office of the Director of Public Prosecutions. The DPP is the chief prosecutor of the government and is also the head of the National Prosecution Authority, an institution responsible for prosecution of most cases in the country.

The office is given wide powers to institute or undertake any criminal proceedings against any person, take over or continue criminal proceedings or indeed to discontinue criminal proceedings instituted against any person by any person or authority.

You must note that the Director of Public Prosecution enjoys autonomy in the exercise of his powers as he is not subject to interference by any person or authority. He is however expected to take into account administration of justice, public interest the integrity of the judicial system and the need to prevent abuse of the legal process.

Furthermore you must remember also that the tenure of this office is protected under the Constitution and cannot be easily removed. The Director of Public Prosecution may only be removed in a similar way as a judge may be removed which involves setting up of a tribunal on the grounds provided for in the Constitution.

Zambia Police Service

The Zambia Police Service is established by under Article 193(a) of the Constitution as part of the national security service. Among the notable functions of the service are to preserve life and protect property, maintain law and order, ensure security of people, detect and prevent crime etc.

Zambia Correctional Service

This institution is created under article 193(c). The function of the Zambia Correction is to manage, regulate and ensure the security of prisons and correctional centers and perform other functions as may be prescribed.

Human Rights Commission

This institution is created under article 230 of the Constitution. It has provincial offices and is expected to be eventually in district. The general mandate of the commission is to ensure the Bill of Rights is protected and respected. Its’ specific duties are to take necessary steps to secure appropriate redress where rights and freedoms are violated; endeavour to resolve a dispute through negotiation, mediation or conciliation; carry out research on rights and freedoms and related matters; conduct civic education on rights and freedoms; and perform such other functions as prescribed.

Gender Equity and Equality Commission

The Commission is established under Article 231 and its main role is to promote

the attainment and mainstreaming of gender equality.

Lands Commission

Article 233 of the Constitution establishes the Lands Commission which is to have provincial presence and later on in the districts. It role is to administer, manage and alienate land, on behalf of the President, as prescribed.

Investigative Commissions

Article 235 of the Constitution creates three investigative commissions namely, the Anti Corruption Commission, Drug Enforcement Commission and the Anti-Financial and Economic Crimes Commission.

The Anti-Corruption Commission

As you may note from its name, the commission was established to spear head the fight against corruption. In section 6 (1) of the Anti-Corruption Act No 3 of 2012, the general mandate of the commission is captured as to:

“prevent and take necessary and effective measures for the prevention of corruption in public and private bodies….”

The Commission is an autonomous body and is not subject to any person’s control or authority in the performance of its duties. It is headed by a Director General who is its chief executive officer and is appointed by the President subject to ratification by the National Assembly.

Drug Enforcement Commission

The Commission was created under the Dangerous Drugs (Forfeiture of Property) (Special Organisations) (Drug Enforcement Commission) Regulations, 1989 and was its existence was continued under the Narcotic Drugs and Psychotropic Substances Act. The general mandate of the Commission is to investigate drug and money laundering offences. The specific functions appear under Section 5 of the Act and notable among them are the responsibility to address and advise government and other stakeholders such as the general public corporations, companies, institutions etc. on preventing prohibited activities relating to narcotic drugs and psychotropic substances as well as the task of educating the general public on the dangers of abusing drugs.

Anti-Financial and Economic Crimes Commission

The Anti-Financial and Economic Crimes Commission is responsible for the investigation of all financial crimes including advance fee fraud. Money laundering, counterfeiting, illegal charge transfers, futures market fraud. Fraudulent encashment of negotiable instruments, computer credit card fraud and contract scam,

Judicial Complaints Commission

The Judicial Complaints Commission (JCC) is a statutory body established pursuant to Article 236 (1) of the Constitution. The commission enforces the Code of Conduct for judges and judicial officers and hears complaints against judicial officers and makes recommendations to the appropriate authority. Its Members are appointed by the President subject to ratification by the National Assembly.

Police Public Complaints Commission

The Police Public Complaints Commission is established under article 237 of the Constitution and its main role is to receive, investigate, hear complaints from members of the public against the police actions and make recommendations to appropriate authorities or institutions for action.

Public Protector

The Office of the Public Protector was established to replace the Office of the Investigator General. This is by virtue of Article 243 of the amended Constitution.

The Public Protector is the OMBUDSMAN INSTITUTION of Zambia entrusted with the mandate to promote and safeguard the interests and the rights of an individual in his or her quest to receive a “public service” that is just and fair. The institution also serves to promote practices of good governance within public institutions in the delivery of public services to the general public.

Auditor General

The Auditor General’s office is established under article 249 of the Constitution and its mandate is to perform audits of public institutions to ensure prudent use and application of public funds, under the Public Finance Act, 2004, and any other written law.

Referendum

A referendum (plural: referendums or less commonly referenda) is a direct vote in which an entire electorate is invited to vote on a particular proposal. This may result in the adoption of a new law. The electorate are given a question and they simply must answer “yes” or “no” to a proposed change to the constitution.

Convention

National conference or conventions are usually large, unelected bodies composed of representatives nominated by a wide range of interests established to discuss constitutional changes. It is more broad based in terms of its members for example it may include, political parties, union bodies, church bodies, civil society etc.

The recommendations of the convention may then be passed to the legislature for mere adoption or passing into law.

National Assembly.

Parliament (The National Assembly and the President) is conferred with legislative authority and as such has the duty to make laws in Zambia. The constitution can therefore be made or passed by the Parliament. This authority to make a constitution was used in 2016 when Parliament passed the Constitution of Zambia (Amendment No 2 of 2016) which introduced a number of changes to the 1996 Constitution of Zambia.

The Bill of Rights

A Bill of Rights is a list of rights and freedoms guaranteed by the constitution to all the people in the country. The rights in our Bill of Rights only protect us whilst we are in Zambia. Article 266 of the Constitution of Zambia (Amendment) Act No. 2 which defines the Bill of Rights to mean:

” Bill of Rights ” means the human rights and fundamental freedoms set out in Part III, and includes their status, application, interpretation, limitations, derogations, non- derogations and enforcement;⁶⁶

Many democratic countries have a Bill of Rights intended to protect the people against abuse of power, Zambia is no exception. So a Bill of Rights limits the power of government and also impose duties on individuals.

The Bill of Rights as Part of the Constitution

Now that you have learnt what a Bill of Rights is, let us look at the Bill of Rights as a part of the Constitution and the implications of it being part of the Constitution. When a Bill of Rights becomes part of a country’s constitution, it means that the citizens have the powers to enforce the rights listed in the Bill of Rights.

The Bill of Rights is part of the Constitution and not any other law because of the following

1. The Constitution is the supreme law of the land and therefore the Bill of Rights equally enjoys supremacy over other laws.

2. Requirements for amendment of a Constitution are more stringent than those for ordinary legislation. In fact the Bill of Rights is entrenched which means it can only be changed after a referendum in which at least 50 percent of eligible voters vote in favour of the amendment. Placing the Bill of Rights in the Constitution therefore guarantees the existence of the rights as it cannot be easily altered.

3. Having rights enshrined in the constitution makes the realisation of human rights certain and predictable because citizens are well informed about what they are entitled to claim in case of violation.

Rights in the Bill of Rights

A justiciable Bill of Rights, guaranteeing civil and political rights is incorporated in Part III from Articles 11 to 32. It begins with a general declaration of the rights every person in Zambia is entitled to regardless of race, place of origin, political opinion, colour, creed or sex. The Bill of Rights does not contain economic, social and cultural rights Although these rights are not justiciable before domestic courts, Zambia is bound under International Law being a State Party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) to progressively realise economic and cultural rights based on available resources.

Article 11 up to 24 lists the rights protected under the Bill of Rights while articles 25 to 34 contain derogations and provisions relating to emergency situations in the country.

Article 12 Right to life;

Article 13 Right to personal liberty;

Article 14 Protection from slavery and forced labour;

Article 15 Protection from torture or inhuman or degrading punishment or treatment;

Article 16 Protection from deprivation of property;

Article 17 Protection for privacy of home and other property;

Article 18 Protection of the law (fair trial);

Article 19 Freedom of conscience;

Article 20 Freedom of expression;

Exception: In the interest of defence, public order or safety to prevent the disclosure of information received in confidence.

Article 21 Freedom of assembly and association;

Exception: in the interest of defence, public order or safety, to prevent the disclosure of information received in confidence.

Article 22 Freedom of movement;

Exception: When serving a sentence of court, imposed restriction by competent court, under regular order for members of defence security forces and punishment by the President only under a state of emergency.

Article 23 Protection from discrimination on the grounds of race, tribe, sex, place of origin, marital status, political opinions, colour or creed;

Article 24 Protection of young persons from exploitation;

Young person (anyone under age of 15 years). This includes using children for economic gain, labour and sexual purposes.

Article 25 Derogation from fundamental rights and detention;

During times of war or public emergency, all countries allow the state to restrict certain rights. This is known as ‘derogating from the rights”. This Article lists those rights that are ’derogable’ – that is, those rights (Articles 13, 16, 17, 19, 20, 21, 22 and 23) that the Government can restrict at such times.

Limitations on Human Rights in the Zambian Bill of Rights

The rights under the Bill of Rights, except protection from torture inhumane and degrading treatment, are not absolute and can therefore be limited in permissible instances. You have learnt that article 25 contains derogations. Derogations are clauses that limit enjoyment of human rights. They explain instances when human rights may not be enjoyed.

Similar to Derogations are what are known as “Claw back clauses”. Claw back clauses are found within the rights themselves”

General Limitations

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

Relevance of the Economic Social and Cultural Rights (ESCR) to the Bill of Rights

Economic, social, and cultural rights include the right to work, the right to an adequate standard of living, including food, clothing, and housing, the right to physical and mental health, the right to social security, the right to a healthy environment, and the right to education. These rights are relevant to the enjoyment of the rights listed in the Bill of Rights because they play a supplementary role to them. For example, the right to life is meaningless without the right to physical and mental health.

Relationship Between the Bill of Rights and Individual Responsibilities

You may have heard the saying that “Where your right ends mine begins”. This statement has been used to highlight the fact that human rights come with responsibilities. For example, the fact that you have the right to life, means that you have the responsibility not to do anything that might interfere with someone else’s right to life. When exercising your rights, you have the responsibility not to violate anyone else’s rights.

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summary Summary

A number of institutions have been established by the constitution to carryout specialised functions. These institutions include Parliament, Executive authority, Judiciary, Local Government, Chieftaincy of House of Chiefs, Attorney General, Solicitor General, Director of Public Prosecution and Prosecution Authority, Zambia police Service, Zambia Correctional Service, Human Rights commission, Gender Equity and Equality Commission, Lands Commission, Anti-Corruption, Drug Enforcement Commission, Anti-Financial and Economic Crimes Commission, Judicial Complaints commission, Police Public Complaints Commission, Public Protector, Auditor General

All of the rights in the Bill of Rights protect the people against abuse of power firstly by the State and those holding positions of authority, be it in government or in private bodies. Therefore, it is important for all Zambians to know about the Bill of Rights and what it contains.

Human rights deal with relationship between rights-holders and duty bearers. For every right that a person has there is usually a responsibility that is connected to that right.

1. States and other ‘duty-bearers’ (see further details in 1.2.4.1) are responsible for ensuring that the rights of all people are equally respected, protected, and fulfilled;

2. Governments have a particular responsibility to ensure that people are able to enjoy their rights;

3. ‘Rights-holders’ (see further details in 1.2.4.1) are responsible for respecting and not violating the rights of others.

Introduction to Human Rights

Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death.These basic rights are based on shared values like dignity, fairness, equality, respect and independence. These values are defined and protected by law

Characteristics of Human Rights

Human rights have qualities and features that are intrinsic and are considered innate to them.You should understand and differentiate these qualities and features. Each one of them is explained below:

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 they are human. Human rights are inherent to each individual;

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.

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.

d) 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.

Obligations

Human rights entail both rights and obligations. States assume obligations and duties under international law to respect, to protect and to fulfil human rights.

1. The obligation to respect means that States must restrain from interfering with or curtailing the enjoyment of human rights.

2. The obligation to protect requires States to protect individuals and groups against human rights abuses.

3. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.

5.2.2 Distinguish Between Limited and Absolute Rights:

Under this topic, you are going to learn the difference between Limited and absolute rights. Although human rights are claims as of right, not by appeal to grace, charity, brotherhood or love and that they do not need not be earned or deserved, this does not mean that all of them are absolute and that they can never be abridged for any purpose in any circumstances. Hence, human rights can either be limited or absolute.

Limited and Absolute Rights, and Differences Between the Two

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.

It is generally accepted that some limitations on certain rights are permissible during certain situations, but the limitations are themselves strictly limited. For example, it is acceptable to limit people’s rights for the purpose of governing the country properly. While a person may have the right not to be searched, the police has the authority to search people in order to prevent or uncover crime. There is no one who can argue that their right not to be searched is absolute and that the police can never search them. There are also times in the country when it is not possible to allow everyone all the rights listed in the Bill of Rights.

Absolute rights are those that no one has a right to interfere with. These rights cannot be limited for any reason. No circumstances justify a qualification or limitation of absolute rights. Absolute rights cannot be suspended or restricted, even during a declared state of emergency. Examples include the following:

1. Freedom from torture and other cruel, inhuman or degrading treatment or punishment;

2. Freedom from slavery and servitude;

3. Right to a fair trial;

4. Freedom from imprisonment for inability to fulfil a contractual obligation;

5. Prohibition against the retrospective operation of criminal laws;

6. Right to recognition before the law.

Circumstances/Conditions under which A Human Right Might be Limited (e.g. Right To Freedom in The Context of Imprisonment)

Human rights can sometimes be limited. For example:

While I may have the right not to be searched, the police needs to search people from time to time to prevent or uncover a crime. No one would argue that my right not to be searched is absolute and that the police can never search me. It may be necessary to limit rights when a country is at war or where it is faced with a natural disaster or public emergency.

In Zambia, the Bill of Rights contains specific limitations and general limitations.

Specific Limitations

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

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.

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

5.2.3 Categories of Human Rights

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:

Equality Taking into Consideration Provisions of the Gender Equity and Equality Act (EEA)

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

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.

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.

Right for Women in Zambia to Adequate Sexual and Reproductive Health:

In accordance with EEA Part IV article 21, every woman in Zambia has a variety of reproductive rights which include the following:

1. To access sexual and reproductive health services

2. To access family planning services

3. To be protected from sexually transmitted infection

4. To self-protection from sexually transmitted infections

5. To choose whether or not to have a child, to choose the number of children and when to bear those children

6. To control fertility, to reproductive rights education and to choose an appropriate method of contraception

Discrimination

Meaning of Discrimination in Practical Terms

Discrimination is generally defined as any distinction, exclusion, restriction or preference (whether intentional or not)⁵⁵ 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.⁵⁶

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

55 Italics added for emphases.

56 Convention on the Elimination of All Forms of Racial Discrimination, Article 1.

the recognition, enjoyment or exercise by all persons, on equal footing, of all rights and freedoms.⁵⁷ 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

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.

57 The Human Rights Committee General Comment No. 18.

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.⁵⁸

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

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.

58. UNAIDS (2005) ‘HIV - Related Stigma, Discrimination and Human Rights Violations: Case studies of successful programmes’.

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

Affirmative Action and Equity

Organisations and institutions should develop strategies for affirmative action against any form of discrimination for all people at places of work. This would create an environment where have equal chances and opportunities in terms of professional development and enable them contribute effectively to the development of the organization.

Notions and Relationship Between Duty Bearers and Rights Holders

Central to the idea of human rights is the notion of rights-holders and duty bearers because human rights deal with relationship between rights-holders and duty bearers.

Rights-holders: all individual human beings are rights-holders of those rights codified in UN International Covenants and Conventions. All citizens, regardless of age, race, gender, religion and other ground, are rights holders. Every person deserves to have their basic human rights upheld and respected. Every person is entitled to demand her/his rights from duty-bearers;

Duty bearers: are those officials and institutions, public and private, which have a responsibility that rights are respected, protected and fulfilled:

1. States are the number one duty bearer (and other ‘duty bearers’) responsible to ensure that the rights of all people are equally respected, protected and fulfilled;

2. The State has an obligation to create the conditions that enable other duty bearers, such as parents, private sector, local organisations, donors and international institutions, to fulfil their responsibilities:

3. Every individual or institution that has the power to affect the lives of rights-holders becomes a duty bearer. The greater the power, the larger the obligation to fulfil human rights, in addition to obligations to respect and protect human rights of others.

Protection Mechanisms of Human Rights in Zambia and their Applicability Through

Because each person has human rights, there must be a system in place to protect rights and provide remedies (solutions) for people whose rights have been violated or denied.

Human rights involve relationship among individuals, and between individuals and the State. The practical task of protecting human rights is therefore primarily a national one, for which each State must be responsible. The government must therefore protect the rights of individuals at the national level. These rights can be best protected through:

The Constitution and Bill of Rights, and adequate legislation;

1. An independent judiciary;

2. The enactment and enforcement of individual safeguards and remedies;

3. The creation and strengthening of democratic institutions like human Rights Commission.

The State has the primary responsibility to ensure that activities aimed at promoting human rights and the development of a human rights culture is undertaken. This can be done through legal education and information campaigns; these can be designed and undertaken at national or local level taking into account the local cultural and traditional context.

In addition, the effective enjoyment of human rights also requires the creation of necessary mechanisms for their protection. For this reason, Zambia has put mechanisms in place, which include:

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;

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.

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.

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.

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.

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; (b) 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.

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.

Role of CSOs and the Legal Profession

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.

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’).

Human Rights that are Commonly Violated in Zambia

Women’s Rights

There is no difference between human rights and women’s rights. Women’s rights are simply human rights. Women just like men, have the same rights as men such as the right to food, shelter, property, reproductive choice, health care, political rights, freedom of worship, and freedom of expression and so on.

Although men have equal rights as women a number of factors listed below make it difficult for women to enjoy all the rights:

Rape and domestic violence: the law criminalises rape, and courts have discretion to sentence convicted rapists to life imprisonment with hard labour. However, this crime is still widespread.

Customary marriage values teach women that sexual intercourse is a man’s right and discourage reporting spousal rape;

Women who reveal sexual abuse and violence to authorities often face societal stigma, which in turn diminishes future reporting;

Besides, customary laws in certain chiefdoms allow for spousal battery.

1. Low awareness levels among women on protective orders: very few women are aware of the protection orders for victims of domestic and gender violence provided for by the law, hence most victims continue being victimised by the perpetrators even when they have reported the matter to the police or taken it to court;

2. Lack of access to fast-track courts: two fast-track courts in Kabwe and Lusaka were launched in 2016 on January 22 and May 11, respectively, in an effort to speed up the hearing of gender-based violence cases, however, the two courts are inaccessible to rural women;

3. Inadequate access to HIV care and treatment services: it is evident that fear of violence, abandonment and divorce discourages women from seeking HIV care and treatment services, especially where women are dependent on men for their livelihoods;

4. Lack of information on reproductive health rights and services: most women still do not have access to information and services on reproductive health rights;

5. Discrimination against women: most women still experience discrimination in employment education, inheritance, and ownership of land and other property;

6. Sexual harassment: this is common in the workplace. However, stringent evidence requirements in courts of law make it difficult for women (victims) to report and even litigate these cases;

7. Lack of collateral: the majority of women lack adequate access to credit to acquire land or property. This means that women in most cases remain dependent on their husbands or male members of their family to be recommended for loans. Furthermore, customary law subordinates women when it comes to property acquisition and ownership, inheritance, and marriage. For instance, when a man dies, only his sons or the husband’s relatives may inherit his property.

Children’s Rights

Birth Registration: citizenship is derived from one’s parents or, with the exception of refugees, by birth within the country’s territory. Although registration is required promptly after birth, this is not possible in most rural areas. Failure to register births does not result in the denial of public services, such as education or health care, to children. However, this leaves girl children vulnerable to early marriages as their ages will be unknown and courts of law require official documents to prove the actual age of a child in such cases;

Education: Although government policy provides for tuition-free education through Grade Seven, education is not compulsory, and many children do not attend school. Contrary to government policy, many teachers and school administrators require pupils to purchase uniforms or pay a fee before allowing them to attend classes. These demands prevent many vulnerable children from attending school. The numbers of girls and boys in primary schools are approximately equal, but there are fewer girls than boys attending secondary school;

Child Abuse: Although the law prohibits sexual harassment of children, child abuse and violence against children are common problems. The punishment for conviction of causing bodily harm to a child is imprisonment for five to 10 years. However, most children have no one or no institution to report to when they have been abused by their parents or guardians. Unfortunately, most care givers are perpetrators of child abuse. This makes it very difficult for children to report child abuse;

Early and Forced Marriage: the legal age of marriage in Zambia is 16 years old for boys and girls with parental consent and 21 years old without consent. This confusion is worsened by the fact that there is no minimum age under customary law marriage. As a result:

1. Many men with women between the ages of 25 and 49 years old were married by age 18 with the majority being in rural areas;

2. Many girls drop out of school and are given in marriages.

3. Sexual Exploitation of Children:

The minimum age for sexual relations in which consent is given by both parties is 16 years old. However, most of defilement cases (where the victim (child) is below 16 years old) are not reported to the police as parents prefer monetary gain than having the perpetrators prosecuted;

1. Boys and girls are recruited into prostitution and subsequently exploited in towns along the Zimbabwean and Tanzanian borders and by miners in Solwezi.

Gender-based Violence

The 2010 Anti-Gender-based Violence Act criminalises spousal rape, and the Penal Code criminalises domestic violence between spouses and among family members living in one home. However, the law still requires medical reports prepared by government certified medical practitioners working at a government hospital for the prosecution of cases of violence against women (and against men). This is problematic because there are few certified medical practitioners in rural areas;

Discrimination Against Persons with Disability

1. The law prohibits discrimination in general, but no law specifically prohibits discrimination against persons with physical, sensory, intellectual, or mental disabilities;

2. Despite the existence of the 2012 Persons with Disabilities (PWD) Act, the specific needs of PWD such as in education, health care, and access to physical infrastructure and electoral participation have not been adequately addressed;

1. Public buildings, schools, and hospitals rarely have facilities to accommodate such persons.

3. There is insufficient data on persons with disabilities including how many adults and children are living with disabilities and information on their specific housing, education, and health-care needs;

4. Persons with disabilities are excluded in most government programming and policy formulation processes;

5. Persons with disabilities have limited access to education and correspondingly low literacy levels;

6. Persons with disabilities also faced significant societal discrimination in employment and education.

Description: summarySummary

Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death. These basic rights are based on shared values like dignity, fairness, equality, respect and independence. These values are defined and protected by law.

Human rights are inherent, inalienable, universal, interrelated and interdependent. States assume obligations and duties under international law to respect, to protect and to fulfil human rights

Human rights may be limited or absolute. .It is generally accepted that some limitations on certain rights are permissible during certain situations, but the limitations are themselves strictly limited. Absolute rights are those that no one has a right to interfere with. These rights cannot be limited for any reason

Categories of Human rights are:

1. Civil and political rights – First generation

2. Economic, social and cultural rights – Second generation

3. Minority group rights – Third generation

There are number of binding human rights instruments passed so far and these include the following:

1. Universal Declaration of Human Rights (UDHR)

2. African Charter on Human and Peoples’ Rights (1981)

3. International Covenant on Civil and Political Rights (ICCPR);

4. International Covenant on Economic, Social and Cultural Rights (ICESCR);

5. Convention on the Elimination of all forms of Discrimination against Women (CEDAW – 1979);

6. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT – 1984);

7. Convention on the Rights of the Child (CRC – 1989);

8. Convention on the Rights of Persons with Disabilities (CRPD – 2006).

Women’s rights in the Bill of rights lies in the following articles

1. Article 11: everyone in Zambia has all of the rights and freedoms listed in the Bill of Rights

2. Article 23: protection from discrimination

Children’s rights contained in the CRC, ACRWC and the Bill of rights. In the CRC, at 1(c) revolves around four general principals:

1. Non-discrimination

2. Best interests of the child

3. Right to life, survival and development

4. Respect for the views of the child

Forms of discrimination include direct, indirect and synthetic forms of discrimination.

Protection mechanisms of human rights in Zambia and their applicability through:

1. Courts of Law

2. Public Protector

3. Human Rights Commission

4. Police Public Complaints Commission

5. Judicial Complaints Commission

6. Gender Equity and Equality Commission (GEEC)

7. Legal Aid Board

8. Role of CSOs and the legal profession

Human rights that are commonly violated in Zambia include violations related to women’s rights, children’s rights, GBV and discrimination against people with disabilities

HIV and AIDS

“HIV” stands for Human Immune Deficiency Virus, a virus that affects the human immune system⁶⁷. It results in deterioration of the immune system, causing an individual to become more vulnerable to other infections.

“AIDS” on the other hand stands for Acquired Immune Deficiency Syndrome, which is an advanced stage of HIV noted by the existence of certain symptoms, infections, and cancers⁶⁸.

Consent

Before a person can be tested for their HIV status they would have to be counselled properly and freely give their consent to the testing otherwise such testing would be a violation of their right to privacy protection from inhumane and degrading treatment etc.

The government of Zambia as already stated above has introduced mandatory HIV testing prior to persons accessing health facilities. This act is in total violation of people’s constitutional rights as the law has not changed and remains that people have to give their consent prior to testing.

Confidentiality

1. People with HIV infection and AIDS have the right to confidentiality and privacy about their health and HIV status.

2. Health care professionals are ethically and legally required to keep all information about clients or patients confidential.

3. Information about 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.

Negligent Transmission of HIV/AIDS

This refers to intentional and reckless transmission of the human immunodeficiency virus from one person to another. Under The Anti-Gender Based Violence Act No1 of 2011 a person who engages another in sex knowing that they are infected with HIV without disclosing to the other person are guilty of sexual abuse under the Act⁷⁰.

Mandatory HIV testing and counselling denies people the right to privacy, the right to decide about one’s health, and the right to liberty and security. It may also lead to a violation of the right to non-discrimination, as it may be combined with unjust measures restricting the freedom of movement for people living with HIV.

Rights of People Living with HIV and AIDS

Now that you have been equipped with facts and understand the legal issues surrounding HIV/AIDS, let us look at rights of persons with HIV/AIDS. It is important for you to note out rightly that Zambia does not have a specific national HIV law. However, a few people living with HIV and AIDS in Zambia have successfully used the legal system to obtain redress based on constitutional rights. A body of law has been built up that demonstrates how constitutional rights may be used to protect individual’s rights of persons living with HIV and AIDS in such areas as:

1. Non-discrimination, equal protection and equality before the law;

2. Right to life and health, including access to health care and right of people living with HIV and AIDS to antiretroviral therapy (including for inmates with HIV and AIDS);

3. Right to privacy;

4. Right to freedom of movement;

5. Right to liberty and security of the person;

6. Right to work and to non-discrimination in employment;

7. Equal right to education.

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.⁷¹

Discrimination is generally defined as any distinction, exclusion, restriction or preference (whether intentional or not)⁷² 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.⁷³

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.⁷⁴

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.

The following morning, management at their work place, announced

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 infection⁷⁵. 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.

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 Chiluba⁷⁶ 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,⁷⁷a 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.

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.

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.

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.

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.⁷⁸

summarySummary

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

2. 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

3. 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

7. Equal right to education

Recommended Readings

1. Warwick Mckean, Equality and Non-Discrimination under International Law, 1993

Definition of Immigration Law and its Purpose

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.

Role and Functions of the Immigration Department

The Department of Immigration is a part of the Ministry of Home affairs and is headed by the Director-General of Immigration who is a public officer with authority to exercise powers under the IDA. He is assisted by immigration officers and immigration assistants. The functions of the department are contained in Section 5 of the IDA can be summarised as follows:

1. Controlling all borders, administering and regulating all ports of entry;

2. Regulating the migration of any person to Zambia while promoting economic growth, encouraging the training of citizens and residents by employers,

3. Enabling exceptionally skilled or qualified people to sojourn in Zambia

4. Facilitating the movement of students and academic staff within Southern African Development Community and the Common Market for East and Southern Africa, for study teaching and research.

5. Assist in the prosecution of any offence under this Act; and

6. Maintain public records showing funds received or collected for the purpose of dealing with costs related to repatriating illegal foreigners

7. Assist in the prosecution of any offence under this Act;⁷⁹

Legalising a stay in Zambia - Different Categories of Permits

Immigrants in Zambia are mandated to present themselves before an Immigration Officer or public officer as required by Section 12 of the IDA. The Migrant will then be subjected to an interview or assessment after which they are granted a permit. The process of presenting oneself before an Immigration Officer, subjecting oneself to an interview under Section 13 of the IDA and finally obtaining a permit is what amounts to legalizing one’s stay in the country

Among the common permits that may be issued are i) Residence Permit; ii) Temporary Residence Permit; iii) Diplomatic Permit; iv) Spouse Permit; v) Business Permit; vi) Visiting Visa and Visiting Permit; vii) Study Permit viii) Temporary Permit ix) Employment Permits x) Investor’s Permit xi) Cross Boarder Permit xii) Asylum Seeker’s Permit and xiii) Boarder Pass Permit.⁸⁰

You must read part iv of the IDA to familiarise yourself with the types of permits that may be issued to a migrant who comes to Zambia. The type of permit to be issued depends on the circumstances that relate to the migrant’s case.

Illegal Entry /Stay and Procedure for Removal

You have learnt above that a migrant is under obligation to present themselves to an Immigration Officer upon entry in the country. A person who does not present themselves before an Immigration Officer as stated would therefore be entering the country illegally. Equally, those that continue staying in the country on expired permits do so illegally. Such persons are referred to as Prohibited Immigrants. Part V of the IDA deals with Prohibited Immigrants and Deportation.

The presence within Zambia of a ‘prohibited immigrant’ is unlawful⁸¹. The IDA does not define a Prohibited Immigrant but merely gives categories of people who are deemed to be Prohibited Immigrants in the Second Schedule. The following table gives a summation of the classes of persons who are deemed to be prohibited Immigrants:

Table 1.7 (a) Classes of Prohibited Immigrants

Bail and Appeal Procedures in Immigration Cases Bail

You may wonder whether or not a person charged with an offence under the IDA may be admitted to bail. The IDA allows for a person arrested and charged with an offence to be admitted to bail in accordance with the provisions of section 123 of the Criminal Procedure Code.⁸³

However there is a proviso to the effect that a person who was deported from Zambia unlawfully returns into the country, the person shall not be admitted to bail if arrested and charged with an offence under the Act.

Once a person is admitted to bail the Director-General of Immigration must issue such a person with an appropriate permit pending the hearing and determination of that person's case before a court.

Appeal Procedures

There are times when an Immigration Officer may make decision, other than a decision relating to deportation, that adversely affects a migrant and the migrant is aggrieved by such a decision. In such cases the IDA allows for an appeal mechanism against such decisions.⁸⁴

The Immigration Officer is firstly duty bound to notify the migrant of the decision and the reason for the decision and he is to allow the person 48 hours within which to make representation. The Immigration officer must within 14 days notify the person of the decision made with respect to the representation.

If the person is unhappy with the decision of the Immigration Officer, he can within 48 hours of receiving the decision appeal to the Minister. The Minister may within 10 days of receiving the appeal either reverse or modify the decision of the Immigration Officer.

If a person is still unhappy with the decision of the Minister he may within 48 hours appeal to the High Court which may either suspend, reverse or modify the decision that was made.

If the decision is not appealed against then the decision is final and is therefore to take effect.

Note : The decision that the appeal procedure relates to is a decision that does not involve deportation or removal from the country.

Removal and Deportation

The IDA makes the following provision for deportation of illegal immigrants;

1. The Minister may, by order in writing, direct that any illegal immigrant be deported from and remain out of Zambia either indefinitely or for such period as may be specified in the order.

1. An illegal immigrant to whom an order made under this section relates shall— be deported to the place from where that person came or, with the approval of the Minister, to any place to which that immigrant consents to be deported if the government of that place consents to receive that immigrant; or if the Minister so directs, be kept in prison or in police custody until that illegal immigrant's departure from Zambia, and while so kept shall be deemed to be in lawful custody.

2. Subject to this section an order under this section shall be carried out in such manner as the Minister may direct.

2. Any order made or directions given under this section may at any time be varied or revoked by the Minister by further order in writing⁸⁵

Refugee Law

In this topic, we shall look at the legal framework on Refugee Law. Our focus locally will be on The Refugees Act No 1 of 2017, hereinafter called “the Refugees Act” and some key principles emanating from international instruments on refugee law namely the 1951 United Nations Refugee Convention, and hereinafter called “the 1951 Convention” the 1967 Protocol on the Status of Refugees and the 1969 OAU Convention Governing Specific Aspects of Refugees.

Before discussing the legal framework on refugee law, it is important for us to define categories of migrants so that you appreciate the type of persons covered under this law.

Refugee

The Refugees Act defines a Refugee as person who owing to—

1. a well-founded fear of being persecuted for reasons of race, religious beliefs, nationality, membership of a particular social group or political opinion is outside the country of nationality and is unable, or owing to that fear is unwilling, to be protected by that country;

2. not having a nationality and being outside the country of that person’s former habitual residence is—

1. unable to return to that country; or

2. unwilling to return to that country due to a well-founded fear of being persecuted for reasons of race, religion, membership of a particular social group or political opinion

3. external aggression, occupation, foreign domination or serious disturbance of public order in part or the whole of that person’s country of origin or nationality, is compelled to leave that person’s place of habitual residence in order to seek refuge in a place outside that person’s country of origin or nationality; or

4. internal conflict, generalised violence, massive violation of human rights or other circumstances that have seriously disturbed public order in that person’s country of origin, that person’s life, safety or freedom has been threatened⁸⁶

Migrant

The International Organisation for Migrants (IOM) defines a migrant as any person who is moving or has moved across an international border or within a State away from his/her habitual place of residence, regardless of (1) the person’s legal status; (2) whether the movement is voluntary or involuntary; (3) what the causes for the movement are; or (4) what the length of the stay is⁸⁷.

Internally Displaced Persons (IDPs)

IDPs stay within their own country and remain under the protection of their government, even if that government is the reason for their displacement.⁸⁸

Asylum Seeker/Refuge Migrants

These are persons who enter a country, whether regularly or irregularly, in order to escape persecution in their country of origin as defined by Article 1A of the Geneva Refugee Convention.⁸⁹

Status-Determination Procedures

Fundamental Principles on Treatment of Refugees

Non-discrimination

It is an acceptable global fact that Refugees are to be treated without discrimination when applying legislation that affects them. The 1951 Convention requires that provisions of the Convention for example, are to be applied without discrimination as to race, religion or country of origin. Developments in international human rights law also reinforce the principle that the Convention be applied without discrimination as to sex, age, disability, sexuality, or other prohibited grounds of discrimination⁹².

Section 29 of the Refugees Act in Zambia also prohibits discrimination against refugees based on birth, race, sex, origin, nationality, colour, age, disability, religion, conscience, belief, culture, language, tribe, health, pregnancy or marital, ethnic, social or economic status.

Non-penalization

This principle requires that a state should not penalize a refugee who enters its territory illegally coming directly from a territory where their life or freedom was threatened. Article 31(1) of the 1951 Convention speaks to this. Most states have therefore provided a grace period in their statues within which refugees should be allowed to report to their authority after entry.

In Zambia the Refugees Act allows a person up to seven days within which to make the application for recognition as a refugee after entering the country. This is in accordance with the principle of Non- penalization.⁹³

Non-refoulement

This principle requires that no one shall expel or return (“refouler”) a refugee against his or her will, in any manner whatsoever, to a territory where he or she fears threats to life or freedom. The principle originates from the 1951 Convention.⁹⁴ It is also found in Article 1 (2) of the 1969 OAU Convention Governing Specific Aspects of Refugee.⁹⁵ The Refugees Act in Zambia also reflects this fundamental principle of refugee law.⁹⁶

Rights of Refugees

As some of you may have correctly observed above, Zambia has domesticated various principles contained in the international conventions on refugees which it is party to. In addition however, the country’s local law has further extended the basic international guidelines on treatment of refugees by conferring rights on refugees.

These appear under Part IV of the Refugees Act No.1 of 2017. Part IV appears to be an expansion of the rights protected in Part III of the republican Constitution. Among the rights that recognised refugees enjoy are:

1. Right to life Section 28

2. Protection from discrimination Section 29

3. Freedom of the person Section 30

4. Security of the person and protection from inhumane and degrading treatment Section 31

5. Protection from slavery servitude and forced labour Section 32

6. Right to privacy Section 33

7. Freedom of conscious 34

8. Freedom of expression Section 35

9. Freedom of assembly and association Section 36⁹⁷

In addition to the above personal rights, recognised refugees also enjoy rights and protection under Part IV of the Act which are aimed at improving their welfare economically and in terms of education. For example Section 39 of the Refugees Act guarantees recognised refugees the right to acquire property individually or in association with others subject to the Constitution and any written law. Furthermore Sections 42 and 43 respectively allows them to engage in self-employment and to practice a particular profession which they are qualified to. They can also be issued with employment and study permits under section 41⁹⁸

Anti-Human Trafficking Act 2008 (No. 11 of 2008)

This Act makes provision for the prohibition, prevention and prosecution of human trafficking. Establishes the Committee on Human Trafficking and provides for its powers and functions as well as establishing centres for the victims of trafficking. A Human Trafficking Fund is also to be created. Domesticates the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, which supplements the United Nations Convention against Transnational Organized Crime

Citizenship Act

An Act to provide for the composition, functions, tenure and procedures of the Citizenship Board of Zambia; make procedural provisions for the acquisition, deprivation and renunciation of citizenship of Zambia; repeal and replace the Citizenship of Zambia Act, 1975; and provide for matters connected with, or incidental to, the foregoing

Concept of Mixed Migration

Mixed migration⁷⁵ refers to the complex population movements including refugees, asylum seekers, economic migrants and other migrants (IOM), while another describes them as people travelling in an irregular manner along similar routes, using similar means of travel, but for different reasons.

Categories of Mixed Migrants

1. Migrant Worker: Refers to “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.”⁹⁹

2. Asylum seekers: A person who is seeking protection from a foreign country and is still waiting to have his/her claim assessed. Once the person’s claim for protection has been assessed and denied, he then becomes a Rejected Asylum Seeker

3. Unaccompanied children (also called unaccompanied minors): are children, who have been separated from both parents and other relatives and are not being cared for by an adult who, by law or custom, is responsible for doing so.

4. Separated children are children, who have been separated from both parents, or from their previous legal or customary primary care-giver, but not necessarily from other relatives.

5. Refugee: Any person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable, or owing to such fear, is unwilling to avail himself/herself of the protection of that country.¹⁰⁰

6. Stranded migrants: A migrant who for reasons beyond their control has been unintentionally forced to stay in a country.

7. Victim of trafficking: A person who has been exploited and has suffered loss of fundamental rights and psychological or physical harm as a result of being trafficked¹⁰¹

8. Stateless Migrants: In international law, a stateless person is someone who is not considered as a national by any state under the operation of the law. Some stateless persons are also refugees. However not all refugees are stateless and many persons who are stateless have never even crossed an international boarder.

Restrictions Law Places on Refugees and Migrants:

Marriage

In Unit A1.5 you learnt that Zambia is a party to the UNDHR, the ICCPR the ICESCR as well as the ICERD. These international Human Rights Instruments recognise the right to marry and to found a family is contained (UNDHR-Article 16(1)) (ICCPR-Article 23) (ICESCR- Article 10(1)) and (ICERD-Article 5)

The above Instruments also apply to Refugees and Migrants although they prefer to contract ‘Consular marriages’ officiated by government officials at their respective Embassies/High Commissions and Consulates of their countries of origin in order to maintain the governing law of their domicile.

The Zambian government does not restrict marriages between refugees, migrants or indeed refugees or migrants wishing to marry Zambian nationals.

However if a spouse who is outside the country wishes to join their spouse in Zambia, they will have to apply for a Spouse Permit. The IDA allows for issuance of a Spouse Permit to enable them be with their spouse in the country.¹⁰²

Education

Although It is recognised internationally that all individuals, refugees, migrants and forcibly displaced people have the right to education, the IDA and the Refugees Act require that Migrants and refugees in the country must be issued with study permits in order for them to have access to educational institutions which is considered to be an indispensable means for the full realization of other human rights.¹⁰³

Health

Migration, Health and Rights

The right to health is recognised globally through different human rights instruments some which Zambia is a party to. The Convention on the Protection of the Rights of All Migrant Workers and Members of their Families has set out the rights of migrant workers to health care.

The country is however yet to domesticate the right to health and as such it remains unenforceable in our courts. This means that the restrictions that migrants face with regard to health are not necessarily legal in nature.

Migrants, especially refugees and other vulnerable migrants will therefore face restrictions in accessing proper medical care in a country which the right to health for its citizens. The fact that refugees are expected to remain in settlement areas in which they have be relocated to once granted refugee status means that they are restricted to accessing health facilities which are in those areas and this may be a challenge especially where the facilities are either far or inadequate.

In other countries where one needs to have insurance over before accessing health service Migrants who have been forced to flee their country face serious hardships in accessing medical care.

Employment

Both local and international statutes recognise Migrants’ to engage in income generating activities.. Article 6.1 of the ICESCR protects the right of everyone to the opportunity to earn a living by work freely chosen or accepted.

The right to work is also protected by Article 5(e)(i) ICERD, Article 11 CEDAW, Article 23 UDHR, Article XIV ADRDM, Article 6 of the Protocol of San Salvador to the ACHR, and Article 1 of the European Social Charter (revised). You recall also that under Part iv of the Refugees Act

Migrants however face some restriction on the exercise of such right by being required to be in possession of employment permits under both the Immigration and Deportation Act and the Refugees Act before they can exercise this right.

Vulnerable Migrants and Refugees in Need of Legal Aid Services

The Situation of Vulnerable Migrants and Refugees

Whether someone migrates to escape war, famine, persecution, natural catastrophes, economic depression, or just to find a better chance for a better life, the person often finds the insecurity, restrictions and sometimes destitution of their situation in the country of destination preferable to that at home.

Many have no choice but to leave. Those with some limited choice are prepared to risk losing their rights, for a fighting chance of thereafter gaining them. This is the human condition that migration policies and laws struggle with, manage and sometimes exploit.

While there is no formal legal definition of an international migrant, it is agreed that an international migrant is someone who changes his or her country of usual residence, irrespective of the reason for migration or legal status. Generally, a distinction is made between short-term or temporary migration, covering movements with a duration between three and 12 months, and long-term or permanent migration, referring to a change of country of residence for a duration of one year or more.

Below are some categories of migrants who are usually vulnerable and will constantly need legal assistance from you.

Undocumented Migrants:

These are migrants who enter the State in an irregular fashion, without having the proper documentation; or migrants who entered in a regular fashion whose authorisation has expired and who have remained, nonetheless, in the national territory.

This module uses the terminology recommended by the UN General Assembly, by avoiding the term “illegal migrant” and using “undocumented or irregular migrant” as synonyms. You must remember that that the term “irregular” migrant does not express a quality of the person but a mere reference to his or her situation of entry or stay.

Asylum-Seekers or Refugees:

Migrants who enter a country, whether regularly or irregularly, in order to escape persecution in their country of origin as defined by Article 1A of the Geneva Refugee Convention.

Other Migrants Needing Protection:

this category includes several kinds of migrants whose status is not well-defined but who are in need of international protection, recognised, to varying extents, by international law. These include stateless persons (whether or not they are asylum-seekers or refugees), victims of trafficking, unaccompanied children whose status has not been defined, failed asylum-seekers or undocumented migrants who cannot be expelled due to principle of non-refoulement.

summarySummary

International refugee law classifies a refugee as a person fleeing persecution based on various criteria set out in the UN Convention Relating to the Status of Refugees 1950. In addition to that regional conventions. In addition, the UN is concerned with other categories of persons such as internally displaced persons, stateless persons, asylum-seekers and migrants.

The movement of persons due to climate change, socio-economic or other reasons results in migrants moving from countries with weak economies to those with stronger ones, this area is also a concern to the UN.

Zambia and other UN member states have an obligation to comply with treaty requirements in terms of granting refugee status and permitting migrants residence. A host state has a duty to ensure that basic rights and fundamental freedoms are enjoyed by both refugees and migrants in all spheres of life including access to justice through legal aid.

Disability Rights Law and Its Purpose

What is Disability Rights Law

Disability law refers to laws relating to persons with disabilities.

What is the purpose of disability rights law?

Largely, disability laws protect persons with disabilities from certain kinds of discrimination and further improve their ability to participate in society with others on an equal basis. They further provide guidelines on how persons with disabilities must be treated and the procedures that can followed in enforcing the rights.

In July 2012 Zambia enacted the PWD Act and reading from the preamble part of the purpose of the Act is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for disabilities and to promote respect for their inherent dignity.¹⁰⁶

Societal Attitudes towards Disability

Attitudes towards disability have significantly shifted over the years in most communities. Societal attitudes equally differ depending on the community one is in. Chomba Wa Muyi in his article Past and Present Perceptions Towards Disability: A Historical Perspective writes:

“As Roeher observes, an examination of attitudes towards people with disabilities across culture suggests that societal perceptions and treatment of persons with disabilities are neither homogeneous nor static.” ¹⁰⁷

Among the Greeks, the sick were considered inferior and in his Republic, Plato recommended that the deformed offspring of both the superior and inferior be put away in some "mysterious unknown places"

During the 16th century, however, Christians such as Luther and John Calvin indicated that the persons with mental impairments and other persons with disabilities were possessed by evil spirits. Thus, these men and other religious leaders of the time often subjected persons with disabilities to mental and/or physical pain as a means of exorcising the spirits. ¹⁰⁸

Variations in the treatment of persons with disabilities are manifest in Africa as in other parts of the world. Among the Chagga in East Africa, persons with physical disabilities were perceived as pacifiers of the evil spirits. Hence, care was taken not to harm them. Among the citizens of Benin (formerly Dahomey in West Africa), constables were selected from persons with physical disabilities.¹⁰⁹

In some communities in Benin, children born with anomalies were seen as protected by supernatural forces. As such they were accepted in the community because they were believed to bring good luck.¹¹⁰ Nabagwu (1977) observed that among the Ibo of Nigeria, treatment of persons with disabilities varied from pampering to total rejection¹¹¹.

The above mixed attitudes are also common in Zambia. It is not uncommon for members of society to look at persons with disabilities with hate. Many believe that those who have mental disability are either possessed by evil spirits or where bewitched for having done something terrible to others in society.

It is further not uncommon for relatives of persons with disabilities (especially those with mental disabilities) to impose forced treatment by dumping them at Mental Health Institutions because they are viewed to be problems within their community. Those who do not react to treatment end up being institutionalized.

You may have witnessed members of society in Zambia reacting differently to persons with disabilities. Sometimes they have been considered as “feeble” (Although use of such terminology has been declared to be derogatory towards persons with disabilities¹¹²), “needing protection” and “charity” from those who consider themselves normal members of society¹¹³. The attitude towards them is that they are incapable of participating in or contributing to society and that they must rely on welfare or charitable organizations.

Persons with disabilities in Zambia face many unique challenges. The country has been passing laws and policies to help people with disabilities in Zambia, however, social stigma and other factors sometimes interfere in people being able to access services and assistance.

Persons with disabilities experience social exclusion, including not taking part in their own traditional ceremonies, not making important decisions about their own lives and not marrying or having children.

Services, facilities and institutions such as public transport, workplace, banks, places of worship, health care facilities and schools are often not accessible for persons with disabilities but there is a real need for more research into the everyday lives of persons with disabilities in Zambia.

Domestic Law and Policy

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

The Persons with Disabilities Act of 1996 established the Zambia Government Agency for Persons with Disabilities (ZAPD) whose mandate is to plan, promote, coordinate and services to people with disability and advises the Minister on disability issues. This 1996 Act has now been superseded by The Persons with Disabilities Act 2012

The Social Welfare Act was mandated to provide basic social services to people in vulnerable positions such as extreme poverty due to disability. A revolving fund programme was commenced in 1996 to meet the disabled people’s access to micro financing however loan recoveries have been limited

The Technical Education, Vocational and Entrepreneurship Training Act, 1998, states that the “special needs of people with disabilities will be taken into consideration”

The Workers’ Compensation Act (No. 10 of 1999), revises the law relating to the compensation of workers for disability incurred during the course of employment

The National Policy on Education of 1996 recognises the right to education for each individual regardless of personal circumstances or capacity

In addition to these disabilities has been a feature in the Government of Zambia’s National Development Plans.

International and National Legal Framework Aimed at Protection of Persons with Disabilities (PWDs)

African Commission on Human and People’s Rights- Draft Protocol on the Rights of PWDs

Africa has also designed its own continental instrument that promotes and protects rights of PWDs. The optional protocol has general principles and it is to be interpreted in accordance with those principles.

The said principles are the same with those of the CRPD the only difference being that the Optional protocol starts by introducing a principle aimed at ensuring respect for and protection of the inherent dignity privacy individual autonomy including the freedom to make one’s own choice and independence of persons. ¹¹⁷

National Legal Framework:

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

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.”¹¹⁸

You will note from the above definition of discrimination that PWD Act sets the tone for elimination of all acts by persons that are aimed at disadvantaging enjoyment of rights on an equal footing with others. PWDs .

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.¹¹⁹

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.¹²⁰

22. 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.¹²¹

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.¹²²

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.

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.

Principle of Non-discrimination

You recall that when looking at the salient features of the PWDs Act we defined discrimination as 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.

Since you now know what discrimination is, you now need to know what the concept of non-discrimination is.

The principle of non-discrimination means that all rights are guaranteed to everyone without distinction, exclusion or restriction that is based on disability or on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, age, or any other status.

Discrimination on the basis of disability means any distinction, exclusion or restriction which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise by persons with disabilities, on an equal basis with others, of all human rights and fundamental freedoms, and includes the denial of reasonable accommodation.

Discrimination occurs, for example when a blind woman is not allowed to open a bank account on the grounds that her disability would not allow her to manage her money. Discrimination also occurs when a man who was offered a job after an interview is later told to go home and wait for written confirmation from the administration after the employer realizes that the man has a visual impairment and needs to hold books very close to his eyes. The correspondence never arrives and the man never takes up the job.

Persons with disabilities might also experience multiple forms of discrimination; for example, a woman with disabilities might experience discrimination on the basis of sex as well as disability. The recognition of the principle of non-discrimination in article 3 of the PWD Act underlines the importance of considering discrimination in all its forms.

Direct and Indirect Discrimination Against

Discrimination may be both direct and indirect . It is Direct when a person with a disability is treated less favourably than a person without the disability in the same or similar circumstances. For example, it would be 'direct disability discrimination' if a school refused enrolment of a person entry because he/she is blind or severely crippled

Indirect discrimination occurs when a requirement (or rule) that appears to be neutral and the same for everyone in fact has the effect of disadvantaging someone because they have an a disability.

For example due to the Covid 19 pandemic a Bus company introduces a rule that the tickets must be bought online by their customers. When you go to their ticket office they inform you that their tickets can only be bought online but then you are unable to buy the ticket because you are blind. Even though the rule that their tickets only be sold online may seem fair to all to me it is discriminatory.

International and National Standards on Non-Discrimination Against Pwds

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 principles¹²³ and an obligatory parts of the CRPD¹²⁴.

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.¹²⁵

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.¹²⁶

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.

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

Reasonable Accommodation for 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.

You further learnt when discussing general principles of the CRPD under equality of opportunity that actions which are aimed at measures which are necessary to accelerate or achieve de facto equality of persons with disabilities are not considered discriminatory because PWDs already suffer situational inequality because of their disabilities.

In order to come up with equality in the workplace, national and international instruments on rights of persons with disabilities have inverted a concept called Reasonable Accommodation.

The Americans with Disabilities Act defines reasonable accommodation as follows:

“any change in the work environment or in the way a job is performed that enables a person with a disability to enjoy equal employment opportunities.” ¹²⁷

The PWDs Act in Zambia defines Reasonable accommodation as follows:

“….necessary and appropriate modification, adaptation and adjustments, not imposing undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms;”

The concept is aimed at enabling a qualified person with a disability to apply for or perform that job. The goal of reasonable accommodation is to remove barriers that impede equal participation. It is therefore, not a form of charity or positive action – but part of the equality standard.

This means the employer should take effective and practical measures to adapt the workplace to meet the needs of the person with disability. Examples may include but are not limited to:

1. Adapting premises and equipment;

2. Changing patterns of working time i.e. flexible or reduced working hours.

3. Redesign the distribution of tasks or the provision of training or integration of resources.

An accommodation may be tangible (for example, a certain type of chair) or in-tangible (for example, a modified work schedule for someone with a medical condition requiring regular appointments with a health care provider).

Similarly, qualified persons with disabilities have the right to request reasonable accommodation in the workplace. A duty to provide reasonable accommodation arises from an understanding that:

1. Applying a formal approach to non-discrimination will not, if anything, do very little to help many people with disabilities;

2. If one ignores the impact of an impairment, and treats a person with a disability in exactly the same way as one treats a person without a disability, undesired situation of inequality will arise and the concept of reasonable accommodation was developed to address such situations;

3. Employers are required to take account of the characteristics related to disability, and to accommodate them by, e.g.

1. Change the job or the physical environment of the workplace;

2. Take appropriate measures, where needed, to enable a person with a disability to have access to, participate in, or advance in employment, or provide training for persons with disabilities, unless doing so would impose a disproportionate burden on the employer;

4. Existing policies and work environment should not require disabled people to totally conform them but be changed to meet the needs of everyone.

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.¹²⁸

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

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.

summary Summary

International and national legal frameworks are aimed at protection of people with disabilities (PWDs) include the following:

1. United Nations Convention on the Rights of People with Disabilities

2. The Constitution of Zambia

3. Persons with Disability Act

4. Mental Disorders Act

5. National Disability Policy

The principle of non-discrimination entails good understanding of the concept of non-discrimination, in terms of direct and indirect discrimination and international and national standards on non-discrimination against PWDs. Reasonable accommodation for PWDs refers to any modification/adjustment to a job or work environment that enables a qualified PWD to apply for or perform that job.

Rights of PWDs include equal:

1. Equal opportunity for participation in political and public life

2. Equal access to quality education and health services

3. Right to privacy and procedural fairness in law

4. Right to life and other rights as outlined in the Bill of Rights

26 International Covenant on Economic, Social and Cultural Rights (ICESCR), Articles 6, 7, 9, 10, 14, 16, and 17.

Recommended Readings

Convention on the Rights of Persons with Disabilities

Disability Studies Quarterly Journal Vol 32 No.2 (2012)

Persons With Disabilities Act No. 6 of 2012

Protocol to the African Charter on Human and People’s Rights on the Rights of PWDs

Define administrative Law and its Purpose

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

In democratic countries as is the case of Zambia, administrative law as the body of regulatory law that controls the procedures, liability and accountability of administrative agencies. it addresses the application of administrative law of rule-making, adjudication, enforcement, transparency and external review of administrative agency actions. As earlier stated, administration law is the actions

made by a government, which adversely affects an individual. Therefore, administrative law encompasses the legality of the actions made by governments. Administrative laws are segmented into two broad categories which are firstly, the analysis of a particular law which can also be related to judicial review on the basis of case law and secondly, the legality of certain acts which are authorized by a particular law.

Administrative law may also apply to review of decisions of so-called semi-public bodies, such as non-profit corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of members of a particular group or entity. countries which are perceived to follow the common law procedure have come up with legal procedures and judicial review processes which have limitations on the reviewability of decisions or conclusions made by bodies involved in administration law. An example in which a judicial review has been carried out in Zambia to show the application of administrative law is one concerning the government’s revised minimum wage which was challenged in the Lusaka high court by the Zambia Federation of Employers which sought a judicial review of the government’s decision to issue Statutory Instruments to increase the minimum wages for domestic and shopworkers describing the move as illegal.

Distinguish Administrative Law from Constitutional Law

Constitutional law and administrative law both are concerned with functions of government, and in modern times, are part of public law. The table below show the key differences between the two.

Table 18:Comparison between Constitutional Law and Administrative Law

Sources of Administrative Law:

The key sources of administrative law include the constitution, Acts of Parliament, delegated legislation, administrative instruments/decisions, judicial decisions, common law and books of eminent writers

Applicability of Administrative Law to Public Bodies

Administrative law is a body of law that regulates the powers, procedure, legal status and external review of public administrative agencies. It consists of constitutional provisions, statutes, executive orders, judicial decisions and other measures that apply generally to the administrative agencies of a particular government (Rosenbloom, 1997). The term administrative law is not typically used to denote the legal provisions that are specifically tailored to the missions of individual agencies, rather it is generic in its across the board application to a wide range of agencies dealing with a variety of governmental functions and public policy areas such as finance, transportation, health, and housing. The concerns with which it deals necessarily vary broadly among regimes. Frequently, administrative law addresses administrative rule making, adjudication, enforcement, transparency and administrators and agencies legal liabilities as well as judicial and legislative review (ibid). However, Lubbers (2003), argues that its boundaries are not well defined in that some aspects of public personnel administration, including the privacy and appeals rights of public employees, may be considered within the ambit of administrative law whereas others such as pay and position classification are not.

Administrative law is often treated as a technical specialization. However, it is intimately connected to governance because it defines many of the values that will inform public administration operators (Emiola, 1998). In democratic countries as is the case of Zambia, administrative law as the body of regulatory law that controls the procedures, liability and accountability of administrative agencies. It addresses the application of administrative law of rulemaking, adjudication, enforcement, transparency and external review of administrative agency actions. As earlier stated, administration law is the actions made by a government, which adversely affects an individual. Therefore, administrative law encompasses the legality of the actions made by governments. Administrative laws are segmented into two broad categories which are firstly, the analysis of a particular law which can also be related to judicial review on the basis of case law and secondly, the legality of certain acts which are authorized by a particular law.

Administrative law may also apply to review of decisions of so-called semi-public bodies, such as non-profit corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of members of a particular group or entity. Countries which are perceived to follow the common law procedure have come up with legal procedures and judicial review processes which have limitations on the reviewability of decisions or conclusions made by bodies involved in administration law.

The Civil Service of the country of Zambia, and Local Government are also a realm that falls under the scope of administrative law. In this vein the hierarchical structures are defined with the head of civil service heading the central as well as local government Civil Service. There are permanent secretaries for each ministry with numerous administrative and executive cadres. There are laws binding the implementation and execution of works in various departments. The Director of Administration (DA) in Zambia heads each local government administration. In this case it is the statutory laws that are enacted by the legislature that govern the central as well as the local government administration. It commands public bodies to perform their statutory duties under the statute. This is termed a Command Function and this is normally carried out by the enabling act that is in normal cases statutory in that it is written down on paper. For example the Public Order Act that enables the existence of the Zambia Police Service and other authority bodies that are commanded to issue public order as the Act in itself states.

Delegation of Discretionary Powers - Delegatus Non Potest Delegare.

A discretionary power must in general, shall be exercised by the authority to whom it has been committed. It is a well-known principle of law that when a power has been confided to a person, he must exercise the power personally unless he has been expressly empowered to delegate it to another. This principle has been expressed in the form of a maxim delegatus non potest delegare, it is often applied to law of agency, trust and arbitration. Thus, if a person to whom authority to personally exercise discretion is vested by a statute, delegates his discretionary power to another person, it will amount to failure to exercise discretion by the public body.

Whether a person other than that named in the empowering statute is allowed to act will depend upon the statute which lays down the provision for delegation. The nature of the subject matter, the degree of control retained by the person delegating, and the type of person or body to whom power is delegated will be taken into account while delegating powers.

The maxim is applied with the utmost rigour to the proceedings of the ordinary courts. In the entire process of adjudication, a judge must act personally unless he is expressly absolved by a stature from such duty. Special tribunals and public bodies exercising functions analogous to the judicial functions are precluded from delegating their powers of decision making unless there is an express authority to that effect. But, sometimes a public body may delegate its quasi-judicial functions to its own members with the authority to hear evidence, investigate and make recommendations in a report, provided that (i) It Retains the power of decision in its own hands and receives a report full enough to enable it to hear the parties properly before making a decision (ii) The context does not indicate that it must perform the entire “adjudicatory" process itself. The decision may be made by an authorized official in the name of the Minister in whose office he is working.

There is a strong presumption against the granting of delegated legislative power to empower a delegate to sub-delegate the whole or any part of the substantial law making entrusted to it. Thus, in Allingham the court held that it was unlawful for a wartime agricultural committee, to which powers concerning cultivation of land had been delegated by the Minister of Agriculture, to delegate to an executive officer the choice of which particular fields should be subjected to a certain type of cultivation. The courts are reluctant to allow a further delegation of a delegated legislative power.

Judicial review is a form of court proceeding, usually in the Administrative Court, in which the judge reviews the lawfulness of a decision or action, or a failure to act, by a public body exercising a public function. It is only available where there is no other effective means of challenge.

Judicial review is concerned with whether the law has been correctly applied, and the right procedures have been followed. In order to succeed the claimant will need to show that either:

1. A public body is under a legal duty to act or make a decision in a certain way and is unlawfully refusing or failing to do so; or

2. A decision or action has been taken by a public body that is beyond the powers it is given by law.

Judicial review is about the supervision of administrative decision making. It can be a fast, effective and powerful way to convince a public body to reconsider a decision or force them to take action they should be taking. The court’s decision must be followed, and one judicial review case can make a difference to many other people.

Decisions can be Challenged by Judicial Review

Decisions made by public bodies in a public law capacity may be challenged by judicial review. Examples of the public bodies whose decisions can be challenged are:

Government ministries and departments, local authorities, health authorities, chief constables, prison governors, some tribunals (but not if you could appeal to a higher tribunal or court), magistrates, coroners and county courts, boards of school governors (but not independent schools).

If a public body is not exercising a public function, for instance where it is acting as an employer, or in a contractual relationship with a supplier, or if it acts negligently, its actions are governed by private, not public law.

Increasingly public functions are contracted out to private companies. If a private company is deemed to be exercising a public function, its acts and omissions are governed by public law. For example, a private company that runs a prison is deemed to be exercising a public function and so its actions in the running of the prison are governed by public law.

Exercise of Discretionary Powers by Public Bodies

Discretionary powers exercised by administrative and legal authorities are permissive, and not binding. These powers are granted to these officials by statute or delegation. Discretionary powers do not impose an obligation on a decision-maker to exercise them or to exercise them in a particular manner.

Administrative agencies must exercise discretionary powers in accordance to legal requirements. Discretionary power must be used reasonably, impartially and avoiding oppression or unnecessary injury.

Generally, administrative agencies are given broad discretion to exercise their administrative authority. Generally, statutes expressly confer right to exercise discretionary power to administrative agencies. However, administrative agencies’ duties necessarily include the right to exercise discretion. Reason for granting discretionary power to administrative agencies is because they possess experience and specialization in a particular area. This experience and specialization helps agencies in making decisions in the agencies’ area of expertise.

Administrative agencies are provided with discretionary power to ascertain place and time to hear and decide matters that come before it. Agencies have the power to prosecute or enforce matters through civil or criminal process.

Procedures for Complaints Handling

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

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.

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".

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.

Judicial Remedies and their Applicability

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.

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.

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.

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Local Government / Authorities Legal Basis for Local Government Constitutional Provisions: Part 8 of the Constitution

Article 52.2a provides for a system of local government comprised of councils elected on the basis of universal adult suffrage.

Main legislative texts. The relevant legislative texts are:

1. Local Government Act 1991 52.2b (Cap. 281), and amendments: Act No. 19, 1992; Act No. 30, 1993; Act No. 13, 1994; Act No. 30, 1995; Act No. 22, 1995; Act No. 8, 2004; Act No. 9, 2004; and Act No. 6, 2010

2. Local Government Elections Act 1992 (Cap. 282) amended twice.

Nature and Structure of Local Authorities

The government approved a national decentralisation policy in November 2002, following two previous failed attempts in 1968 and 1980. The policy covers aspects such as empowering local people through setting up sub-district structures, and clearly defined roles and responsibilities for local authorities, the provinces and national government.

Additionally, it states that the ultimate aim of the government is decentralisation through devolution, although the process will start with de-concentration of services while capacity is being developed in the local authorities. The objective of the policy is to enhance governance, by giving citizens more authority and power in decision-making at the local level.

The Ministry of Local Government is responsible for overseeing local government authorities. The mission of the ministry is ‘to promote a decentralized and democratic local government system and facilitate the provision of efficient delivery of quality housing, infrastructure and other social services by local authorities and other stakeholders for sustainable development’. Ministry of Local Government has the following six departments: Human Resources and Administration, Local Government Administration, Physical Planning, Government Valuation and Decentralisation. The Ministry is also responsible for the following statutory bodies and institutions: Chalimbana Local Government Training Institute, the National Housing Authority, the National Fire Services Training School and the Local Authorities Superannuation Fund. The provincial liquor licensing boards have been abolished and local authorities have been given full licensing powers, following the repeal of the Liquor Licensing Act (Cap. 167). With the enactment of the Local Government Amendment (Act No. 6, 2010), the Local Government Service Commission has been re-established with oversight from Ministry of Local Government. The commission is mandated to hire, fire, promote, demote and discipline officials of all councils. MLGH has also been responsible for providing various national grants to councils, including the Constituency Development Fund.

Liability of Local Authorities:

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

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.”⁷⁷

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.

3. Composition and functions of local authorities

Composition of Local Authorities:

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

At the local elections in 2011, 6.2% of councillors were women. Following the 2016 national election, 18.0% of elected representatives were women. Local governments must establish and maintain roads, bridges; ferries, watercourses, street lighting and public transport, as well as provide fire fighting and prevention, and environmental health services. Councils must also provide and maintain supplies of water; maintain drains, sewers and roads; and dispose of sewage and refuse. They must maintain cemeteries, crematoria and mortuaries, parks, zoos, gardens, pleasure grounds, camping grounds, caravan sites, art galleries, libraries, museums and film services.

77. The Local government Act, section 6.

National Urban Policy

There is no national urban policy in Zambia; however, in 2015 the Urban and Regional Planning Act was passed. This Act provides a comprehensive modern legislative framework for urban development, namely:

1. development, planning and administration principles, standards and requirements for urban and regional planning processes and systems

2. a framework for administering and managing urban and regional planning, guidelines for establishing accountable, transparent, participatory and inclusive process for urban and regional planning that allows for involvement of communities, private sector, interest groups and other stakeholders

3. guidelines on ensuring functional efficiency and socioeconomic integration by providing for the integration of urban activities, uses and facilities

4. procedures for integrated urban and regional planning in a devolved system of governance so as to ensure multi-sector cooperation, coordination and involvement of different levels of government, traditional leaders and other stakeholders

5. the promotion of environmental, social and economic sustainability in development initiatives and controls at all levels of urban and regional planning

City Councils, Municipal Councils, District Councils

City councils are located in urban districts which have more population and diversification in economic activities, while the municipal councils cover the suburban regions. District councils are located in those relatively rural districts which have less population and rely heavily on agriculture, and hence have fewer local tax revenue resources.

Councils have both legislative and administrative wings. In the legislative wing, councillors are directly elected by universal adult suffrage on the first-past-the-post system as representatives of the residents. The officials working in the administrative wing are hired by the Local Government Service Commission from either within or outside the district

Roles of Ministry of Local Government and Housing and Provinces

The Ministry of Local Government and Housing (MLGH) is responsible for overseeing local government. The mission of the Ministry is ’to promote a decentralized and democratic local government system and facilitate the provision of efficient delivery of quality housing, infrastructure and other social services by local authorities and other stakeholders for sustainable development.

The Ministry is also responsible for the following statutory bodies and institutions: Chalimbana Local Government Training Institute, the National Housing Authority, the National Fire Services Training School and the Local Authorities Superannuation Fund.

Zambia has ten provinces: Lusaka, Copperbelt, Eastern, Luapula, Lusaka, Muchinga, Northern, North Western, Southern and Western provinces, which are used for purely administrative purposes. Each province is headed by a provincial minister appointed by the president and there are provincial departments of national government ministries which play a major role in the administration of the local authorities.

Functions of Local Authorities:

Cap 1 – Article 151 of the Constitution makes provision for Local Government under Article 151 as follows:

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;

6. a sound financial base is established for each local authority with reliable and predictable sources of revenue;

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.

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.

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

Local Authorities Funds, Grants and Borrowing Powers:

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

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.

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;

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

Description: summarySummary

Administrative Law is the law which regulates public and semi-public authorities. It is the body of law that governs the activities of administrative agencies of government. Government agency action can include rule making, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law.

As a body of law, administrative law deals with the decision-making of the administrative units of government (for example, tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the social, economic and political spheres of human interaction.