Munyonzwe Hamalengwa and Charles Mwewa | September 18, 2014
The whole Zambian legal system needs to be revamped. Still deeply rooted in its colonial origins, the system has stifled creativity and stunted the possible independent growth of the country’s legal institutions, law making, judicial decisions and legal scholarship.
1. Zambia was founded as a company state in 1889. It still is a company state, based on copper rents. These copper rents have historically determined the fortunes and misfortunes of the State. Zambia’s externally induced incorporation into the expanding world capitalist system still largely entails the external determination of Zambia’s political economy.
2. Just like in economics, Zambia’s legal system is still tainted by colonial attitudes. It also still bears the birthmarks of its origins – its duality. Right at the inception of colonial company rule, duality in the legal system was introduced: “In the administration of justice to the said peoples or inhabitants, careful regard shall always be had to the customs and laws of the class or tribe or nation to which the parties respectively belong, especially with regard to the holding, possession, transfer and disposition of lands and goods, and testate or intestate succession thereto, and marriages, divorces, legitimacy and other rights of property and personal rights, but subject to any British laws which may be in force in any of the territories aforesaid and applicable to the peoples or inhabitants thereof.” The legacy of this seemingly benevolent but in fact, highly disruptive, colonial legal imposition has been to prevent and disorientate the development of a unified legal system, which is so central to progressive political and economic development.
After fifty years of self-rule, Zambia has not made expected progress in terms of its economic development, mainly due to a legal system that has stifled free thinking and freedom of enterprise. To augment democratic manumission, we recommend the following:
3. The Colonial origins and still prevailing colonial attitudes have stifled creativity and have stunted the possible independent growth of the Zambian legal system which comprise of legal institutions, law making, judicial decisions, legal scholarship and so on.
4. Most crucial judicial decisions, especially those that affect political liberties, still follow the colonial precedents. This means that the political liberties of Zambian citizens are largely still determined by the judicial rulings of the colonial era when the laws were immediatedly in the service of the colonial state. We refer for example to the land mark political cases of Re Kapwepwe and Kaenga (1972); Nkumbula v. Attorney General (1972); Re Puta (1973, 1981, 1982); Shamwana v. Attorney General (1980, 1981) and others, all reproduced in M. Ndulo and K. Turner, Civil Liberties Cases in Zambia, (Oxford, 1984) where colonial precedents and colonial laws were used to determine the outcome of the cases.
5. Take also the example of emergency powers which were permanent in the Zambian legal system and which had been used to detain many individuals without trial from 1964 to 1991. They had colonial origins and were brought into existence to deal with the then nationalists, who are presently the wielders of state power in Zambia. These same leaders who were detained without trial during the colonial days and who vehemently denounced those laws were now using the same laws to deal with the perceived political opponents. Sometimes even common criminals were detained using these same laws. To some extent, these laws had become more draconian during the independence era. The example of the Public Order Act which continues to bedevil the Zambian legal and political system is a colonial creation. This Act curtails freedom of association, freedom of speech and freedom of assembly and thought.
6. It can be stated that the existence of colonial laws at independence induced or created an atmosphere of laziness in those who took over the reins of state power. Things were already there, why bother to innovate, why spend money which could be used on private accumulation?
7. What happened however was almost inevitable. At independence in 1964, there were only one or two Zambian trained lawyers and they were educated in England. Thus, there were absolutely no indigenous legal resources (trained legal personnel) to think of overhauling the legal institutions. What were in abundance were colonial legal personnel and colonial legal literature. There was no university in Zambia. There was no law school.
8. It is thus not surprising that for several years after independence, the judges, lawyers and law teachers were colonial judges, lawyers and teachers. This meant that colonial legal philosophies inevitably continued their sway in independent Zambia. This explains why it has been difficult to root out colonial legal attitudes. Further, indigenous lawyers continued to be trained in England, thus continuing the colonially inspired legal attitudes.
9. This largely explains why there is still a scarcity of indigenous legal literature in Zambia. There are very few books to date on the Zambian legal system or some aspect of it written by an indigenous Zambian. The few authentic books on the Zambian legal system are either collections of articles, some of which were written by foreigners or collection of judicial decisions, some of which contain heavy doses of colonial precedents and attitudes. We refer to M. Ndulo and K. Turner, Civil Liberties Cases in Zambia and M. Ndulo (ed.) Law in Zambia (Nairobi: East African Publishing House, 1984). This attests to the poverty of Zambian legal scholarship.
10. The Zambia Law Journal has tried to rectify the situation. Unfortunately, it has not normally appeared with as much frequency and consistency as we would have loved it to. By now there should be dozens of law journals or legal publications in Zambia. In any case, a good number of issues of the Zambia Law Journal have published articles by the same authors. This may mean in the long run the domination of Zambian legal scholarship by a few individuals. This however is preferable to the domination of the Zambian legal scholarship by colonial attitudes.
11. The Zambian constitution of 1964, a colonial creation, remained until 1972 – 8 years later. It was only changed in reaction to political threats posed against the ruling class. The change was very minimal and only to entrench more securely the power of the ruling class. This clearly shows that change comes very slowly and only when there is a threat to the prevailing status quo. And the change is not usually or necessarily for the better or to serve the interests of the majority.
12. Given the above observation, how then can the Zambian legal system be overhauled to reflect the changing political, economic and social-cultural realities in Zambia since independence? This entails first demarcating the observable changes in the political, economic and social-cultural realities. How deep rooted are these changes?
13. If the dynamics of the Zambian political economy are still externally induced, entailing the same attachments to the global capitalist world economy, hence very minimal changes from the colonial political economy, how could we expect any dramatic changes in the legal system? How much autonomy does the legal system enjoy within the political economy? Can you have dramatic changes in one without affecting the other?
14. Politically, Zambia has an authentic indigenous ruling class which took over the reins of power at the demise of colonial rule. This ruling class has increasingly been entrenching itself using state power. It exercises taxing power; formulates the budget; decides to a large extent foreign policy agenda; deploys police and military power within the country; decides investment policy; controls huge economic resources; formulates laws and so on. These changes are not inconsequential. With these powers at their disposal, it is conceivable that the ruling class can change the legal system if it so wishes. It has in fact so done from time to time. Thus, those aspects of the legal system that it has changed and those that it has not changed from the colonial days can be regarded as in its best interests. Thus the prevailing legal system in Zambia is in the best interests of the ruling class in Zambia. Such include the powers of the Nolle Prosequi and the Public Order Act for example or the powers to initiate constitutional reforms only to abandon them when they clash with vested interests.
15. Economically, despite the entrenched hold of international corporate capital on the economic levers of the political economy of Zambia, the Zambian ruling class through a series of reforms has been able to wrestle some control of the economy for itself. There is now, without doubt, an entrenched indigenous Zambian ruling class, both in the political and economic sense. This does not however mean that international capital is no longer dominant. It still is. The Zambian ruling class is still subordinated to the exigencies of international capital. But it is not totally helpless. It exercises tremendous economic and political power internally. It is much more appropriate to regard the Zambian political economy as based on the triple alliance of international capital, the state and local capital. This alliance (which gets disturbed periodically) is a factor in the cohesion of the Zambian political economy. Given the fact that during the colonial era, the economy was geared to serving the interests of the colonial state and the metropolitan bourgeoisie, the entry of the Zambian ruling class has meant some significant changes in the control and utilization of the economy. These changes also entail the capacity of the ruling class to change the laws to reflect its own interests.
16. Socio-culturally there have also been some significant changes. There is now a University of Zambia with a law faculty. There is the Open University with a Law School. There are so many universities in Zambia now. There are as well so many colleges than during the colonial era. Some of these universities and colleges are private. The University and the law schools have produced hundreds of graduates who are now working in various capacities. Other institutions of learning have also similarly produced hundreds of graduates. The Zambian judiciary is now staffed a hundred percent by indigenous Zambians. These changes must also entail changes in the legal system of Zambia. What then must be the changes?
17. The desired changes are numerous and the Zambian ruling class is aware of the necessary changes that need to be made. They are also aware of the role of the law in society. For example, President Kaunda has articulated the problem thus, “I consider law to be perhaps the most important of all instruments of social order because without it, the whole structure of society can but inevitably collapse… It is the means by which order within society is maintained and society itself preserved. The law… is not something independent of the society it regulates and purports to preserve… it would be presumptuous for anyone to criticise the concepts and rules of some other society without the deepest knowledge and understanding of the history, traditions and present day character of that society… law of any society must inevitably reflect the character and needs of that society… Neither the character nor the needs of any given society can remain static, and if the law is to fulfil its proper function, it must keep pace with the changes… if law is to be an effective instrument of social order it must be a stabilising influence, but it must be flexible and it must be progressive, else it will hinder society in its progress and development instead of advancing it…” He then referred to the role of lawyers in working “out solutions to the social and economic problems of society” and in altering the [(received or imposed colonial)] law “… to the needs of the type of society Zambia aspires to be. The Lawyer,” he added, “is better fitted than anyone else to work out solutions to the social and economic problems of society… He must understand the society if he is to be able to participate in the development and advancement of the economic and social well-being of its members… The developing countries – and Zambia is no exception – have a tremendous need for increasing the number of lawyers…”. However, it is axiomatic to say that law in Zambia has been largely used to maintain “social order” rather than promote progressive change or reflect the changing social needs of the majority.
18. The Law School’s initial objectives have not been fulfilled. They were 1) to join in the building and development of the legal system in Zambia, and generally to make available the resources of the school, in staff and students, for the welfare of the [Zambian] community; and 2) to produce lawyers in Zambia… better fitted to meet the needs of developing countries like Zambia.
19. The Zambian legal system should be changed to address the above objectives. It should be used to address the needs of the poorest segments of the Zambian community, for example: provision of basic legal education and other services in the rural areas; provision of free legal services to the urban and rural poor; to gear the law to be used to demand the provision of basic necessities of life for the poor, e.g. housing, food and clean water.
20. The law must be overhauled from its reliance on colonial and past precedents. It must be creative to reflect the changing needs and social realities in Zambia. As one scholar has observed, “the courts should explicitly recognize that they are never irrevocably bound by any past cases, Zambian or foreign, except that lower courts must remain bound by decisions of higher ones… the courts should be more willing to deviate from precedent than they are at present. If past cases do not seem suitable today, in Zambia, the courts should not follow them… all precedent must be analyzed in terms of its usefulness to the problems at hand, whether or not that precedent is ultimately followed… recourse to precedent should however, not be axiomatic as it so often is now…” This should engender critical legal developments in Zambia.
21. Legal education in Zambia must be geared toward the production of development lawyers. These are lawyers who are critically aware of the abject poverty of the majority of the citizenry, the warped nature of the present legal system in the interest of the ruling class and the need to develop a legal system that promotes social development as well as social justice. Other professionals must also be conversant with the limitations as well as possibilities of law so that they can influence the development of a progressive legal system. This has been aptly pointed out by the International Centre for Law in Development which we here quote at length:
‘… if development is seen as a self-conscious effort to transform society, law has a multiple relationship to this process. Law may be seen as an instrument by which man in society consciously tries to change environment… some may also see law as a value, or a process so fundamental to the realization of certain values… development of effective legal institutions and processes can contribute to strengthening of (these values) … legal studies may… be essential to any comprehensive study of state, society, and economy in developing societies… modern states employ statutory and other forms of law as part of an effort to reach the goals they define as ‘a development’… law and legal processes of individual nations must frequently be changed — often in drastic ways, if the social, economic, cultural and political goals contained within the idea of development are to be attained… Research must be sensitive to all these dimensions of or perspectives on law and development… the current body of development knowledge and doctrine is relatively insensitive to law and legal institutions… In ignoring law, developmental studies have overlooked a major dimension of the very process they are charged with examining. In failing systematically to examine the possibilities and limits of law as a tool of planned social change, developmental researchers have shown a surprising lack of interest in the nature of the tools that policy makers daily employ to reach development goals… In failing to develop any systematic knowledge about the relationship between law and contemporary process of development, scholars have lost an opportunity to develop more complete and general knowledge about law, thus denying the legal scholarship the fullest possible understanding of the legal process… the development researchers have failed to understand the potential contribution that legal studies might make to a better understanding of development, and legal scholars have been insufficiently aware of the contribution that law and development research could make to legal studies.’
22. Some of the reforms we propose have already been proposed by others but we list them here for emphasis: the wholesale use of the powers of Nolle Prosequi must be reconsidered as it has become a political tool and has been abused; the Public Order Act must be annulled as it is anti-democratic and has been used for repressive purposes; those who are appointed to hold positions in the service of justice must declare their assets before ratification in order to curtail corruption.
23. We propose the institution of a Constitutional Court where citizens can bring constitutional challenges directly to that court without passing through various judicial hierarchies. The Judges of this court must be of highest intellectual calibre or judicial experience, or academic experience or educational experience or international legal or other experience or must have extensive publications or a combination thereof.
24. We propose that Judges must be able to serve up to the age of 75 to 80 years, in keeping with the experiences of other countries like the United States, Britain and Canada.
25. Lastly but not the least, we propose the institution of the Jury System in Zambia. As this is a very fundamental and new topic that has not been raised before, we accompany this submission with a paper on the jury system that was written for another purpose, [need for judicial diversity leading to judicial transformation] as background to this proposal. The above submissions are however, self-contained and no reference need be made to the Jury paper accompanying this submission. Only if one is interested in the proposal of a Jury system in Zambia should the accompanying paper on the Jury system be read.
26. The whole Zambian legal system needs to be revamped. The introduction of a Jury System will be a magnanimous addition which will help in reshaping Zambia as a true democratic society. The Jury should be one of the central pillars of the criminal justice system. Jurors and not so much Judges would do a duty by preserving democracy in Zambia.
27. We are aware of the shortcomings of the Jury System, for example in poor countries, jurors can easily be bribed and corrupted just like some judges are. Despite this reality, a Jury System is an advance over the current system just like corruption after independence did not mean that colonialism was preferable. There was massive corruption under colonialism but whatever corruption goes on under independence, preferable significant political and economic development has taken place. Much more fundamental improvements can be made.
28. The recent revelations and acknowledgments by the Chief Justice of Zambia Madam Lombe Chibesakunda that there is some corruption in the judiciary is a good starting point to address what can be done.
29. The introduction of the Jury System would be one of the ways to curb corruption within the judiciary.
30. Any introduction of the Jury System in Zambia would be preceded by careful study and implementation of a pilot project. A Jury school could be established to study and teach the importance of this bedrock of democracy that colonial powers were so afraid in introducing in colonial countries.
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* Munyonzwe Hamalengwa is a lawyer, writer, book reviewer, lecturer and author.
* Charles Mwewa is a Professor of Legal Studies at CDI College in Toronto, Canada and a prolific author.