http://dspace.unza.zm:8080/xmlui/handle/123456789/79 Sun, 09 Jul 2017 20:22:13 GMT 2017-07-09T20:22:13Z http://dspace.unza.zm:8080/xmlui/handle/123456789/4629 The legislative and institutional framework for combating money laundering in Zambia Andeleki, Clement The study discusses the legislative and institutional framework for combating money laundering in Zambia. After examining the historical origins and evolution of the problem of money laundering, the study proceeds to review the various measures that the Zambian Government has put in place since 1980 to combat money laundering. In so doing, the study examines in detail the roles played by the law enforcement agencies in Zambia, amongst them, the Anti Money Laundering Investigation Unit, the Drug Enforcement Commission and the Financial Intelligence Centre. The study also brings into perspective the roles played by the international community in the fight against money laundering and counter financing of terrorism. At the centre of the study is the question whether or not Zambia has adequate legislative and institutional framework for combating money laundering, especially in the light of technological sophistications that has taken place since 1980s. Relying on the qualitative method of data collection, the study engaged the seven institutions mandated to combat money laundering in Zambia. Structured interviews and participant observation was adopted as a method of data collection. This method of data collection implied having to be attached to the institutions mandated to combat money laundering in Zambia for most of the duration of study. The study also among others relied on desk research and review of leading judicial precedents on money laundering in Zambia The research established that Zambia has adequate legislative and institutional framework for combating money laundering. The study however noted that despite this state of affair, there are legal provisions that tend to undermine the autonomy of these institutions. The lack of protected tenure of office for officers serving in the Anti Money Laundering Investigations Unit, the Drug Enforcement Commission, the Zambia Police Service, the Bank of Zambia and the Financial Intelligence Centre were among the bottle necks noted. Further it was observed that there is lack of coordinated interface amongst the seven law enforcement agencies. The research notably recommends inter alia that the Anti Money Laundering Investigations Unit be made a fully fledged institution enjoying its own autonomy and independence away from the Drug Enforcement Commission as envisaged by the Prohibition and Prevention of Money Laundering Act. It is further recommended that the Office of the Auditor General of Zambia be granted prosecution powers like is the case in Lusophone countries. This is vital in an attempt to curtail abuse and embezzlement of public funds. Thu, 01 Jan 2015 00:00:00 GMT http://dspace.unza.zm:8080/xmlui/handle/123456789/4629 2015-01-01T00:00:00Z http://dspace.unza.zm:8080/xmlui/handle/123456789/4272 ECONOMIC, SOCIAL AND CULTURAL RIGHTS: PROSPECTS AND CHALLENGES FOR THEIR INCLUSION IN THE NEXT CONSTITUTION OF ZAMBIA Mwapela, Sam This study examines the prospects and challenges for the inclusion of economic, social and cultural rights in the Constitution of Zambia. The argument put forward is that the most effective way of ensuring that citizens enjoy their basic rights to food, housing, safe and clean water, sanitation, education, health services, culture, tradition, custom and language is by guaranteeing the protection of these rights through the Constitution. The rationale behind the study is that, where economic, social and cultural rights are enshrined in the Bill of Rights of the Constitution, citizens can hold the State and public bodies accountable in courts of law for violations or threatened violations, or denial of their rights by the State and public bodies. The study proceeds from the premise that having these rights in the Constitution would result in a transparent, accountable and equitable distribution of wealth. This would in turn result in a rise of the standard of living of the majority poor Zambians. The study thus employs a socio-legal approach, which is inter-disciplinary. The study starts with the history of constitution-making in Zambia, and later examines the place of economic, social and cultural rights in the reports of successive constitutional review commissions. The study establishes that, despite the majority of petitioners to the constitutional review commissions submitting in favour of constitutionalization of economic, social and cultural rights, these rights have not been put in the Bill of Rights of the Constitution of Zambia. The 1996 Constitution of Zambia, which is the current Constitution, provides for Directive Principles of State Policy under Part IX of the Constitution, which are unenforceable against the State. The study further reveals that, despite the inclusion of economic, social and cultural rights in the current draft Constitution of Zambia, the draft Constitution has derogation clauses which bar the proposed Constitutional Court from passing a decision that is contrary to the position of the executive branch of government, in matters of resource allocations. Further, the study undertakes a comparative perspective of how other jurisdictions have dealt with the subject of constitutionalizing economic, social and cultural rights. Accordingly, the study establishes that the executive, legislature and judiciary as arms of government cannot offer effective protection of citizens‟ economic, social and cultural rights in the absence of constitutional provisions on these rights. Hence the study‟s finding is that the answer lies in enshrining justiciable economic, social and cultural rights in the Bill of Rights as is the case in the South African and Kenyan Constitutions, among other jurisdictions. The study thus concludes by recommending that in order to reduce poverty and ensure equitable distribution of national resources, there is need for legislators and all stakeholders in the constitution-making process to provide for justiciable economic, social and cultural rights in the Bill of Rights, including enforcement and monitoring mechanisms of court judgments in the next Constitution of Zambia Thu, 01 Jan 2015 00:00:00 GMT http://dspace.unza.zm:8080/xmlui/handle/123456789/4272 2015-01-01T00:00:00Z http://dspace.unza.zm:8080/xmlui/handle/123456789/4270 Constitution making process: The Zambian experience Lungwangwa, Vincent Zambia has experienced constant constitutional instability since attaining independence in 1964 to date. That is, she has since independence, never achieved a Constitution that has been regarded as legitimate, democratic and durable. To date, the quest to achieve a legitimate, democratic and durable Constitution still rages on. The objective of the study was to examine why Zambia has failed to achieve a legitimate, democratic and durable Constitution. The study primarily focused on the constitution – making processes embarked by the country, from the process leading to the crafting of the 1964 independence Constitution, to the current constitution – making process embarked by the Technical Committee on Drafting the Zambian Constitution (TCDZC). The study therefore, does not delve much into the contents of successive Zambian Constitutions. The research employed the pure legal research methodology. The research was basically a desk review of secondary sources on constitution – making process in Zambia and other jurisdictions. The study opened with a discussion of the notion of the people as the repository of constituent authority as the starting point to discussing constitution – making process. Thereafter, the study discussed the theory of New Constitutionalism or Democratic Constitution Making. This discussion was followed by an examination of the various constitution - making processes that the country has undertaken, beginning with the process leading to the crafting of the 1964 Independence Constitution, to the on - going constitution – making process. The main findings of the study are, firstly, that the failure by Zambia to achieve a legitimate, democratic and durable Constitution has been attributed to the methods of constitution – making used to craft Zambia’s successive Constitutions. The methods used have been such that successive Constitutions have been imposed on the citizenry; hence these Constitutions have lacked legitimacy (acceptance) and moral authority of the citizenry. Secondly, that constitution – making process plays a vital role in achievement of a legitimate, democratic and durable constitution. And finally, that Zambia needs a proper legal framework to regulate and guide constitution – making process. The legal frame work should expressly vest in the citizenry, the power or authority to adopt and approve the final draft Constitution before it becomes law. The study concluded that to a very large extent, a legitimate, democratic and durable Constitution is inevitably achieved when the citizens participate in its adoption and final ratification. The main recommendations of the study (in view of the findings), are that, firstly, there is need for a legal frame work that will vest expressly in the citizenry, the power or authority to adopt and approve final draft Constitutions before they are enacted into law. Secondly, that a legitimate, democratic and durable Constitution under the current process undertaken by the TCDZC will be achieved only if the TCDZC incorporates the people’s wishes into the final draft Constitution and that Government does not manipulate this final draft. In addition, the people should be given an opportunity to ratify the final draft Constitution through a referendum Thu, 01 Jan 2015 00:00:00 GMT http://dspace.unza.zm:8080/xmlui/handle/123456789/4270 2015-01-01T00:00:00Z http://dspace.unza.zm:8080/xmlui/handle/123456789/4268 Judicial review: A mechanism for attaining Constitutionalism, with special reference to Zambia Lamaswala, Mukelabai Like many other commonwealth countries, Zambia has a written Constitution to offer guidance on how the country should be governed. Despite the availability of the Constitution, government and public officers in Zambia do not act or make decisions in line with constitutional dictates. For instance, His Excellency Michael Chilufya Sata, the 5th President of the Republican Zambia, was challenged in court for not following the laid down procedure in suspending judges accused of professional misconduct. Hence, the concern of many Zambians has been to find a mechanism which can lead to a better practice of constitutionalism. In this regard, I am of the view that judicial review is such a mechanism. The objective of the study is to find out whether there is a link between judicial review and constitutionalism; and if so, whether judicial review is a vehicle or mechanism through which constitutionalism can be attained. Particularly, this study focused on the employment of judicial review as a vehicle for attaining constitutionalism. This notion was necessitated by the fact that the two- constitutionalism and judicial review- have been studied in isolation, as if they do not have an influence on each other. Furthermore, the study provides empirical proof of the linkage and influence judicial review has in attaining constitutionalism. The research employed the socio-legal method and relied on qualitative data. Both primary and secondary data were used. Desk-based research was the main method of data collection. Data was also collected through key informant interviews. The relevant legislation in Zambia and other jurisdictions were also reviewed. Generally, the examination has five dimensions to it, before drawing conclusions and recommendations. They comprise: General introduction, the interplay between judicial review and constitutionalism, the number of people who resort to judicial review, judicial attitude towards judicial review, and lessons which Zambia can draw from other jurisdictions on how to utilise judicial review to attain constitutionalism. The major findings of the research are as follows: firstly, judicial review is a mechanism through which constitutionalism can be attained because it ensures that actions or decisions undertaken by government conform to the Constitution, and other laws of the land. Secondly, the attitude the courts have towards judicial review affects the extent to which constitutionalism can be attained in Zambia. Thirdly, although the common law jurisprudence on locus standi has been modified and relaxed with respect to protection of fundamental human rights, it is a hindrance with respect to the utilisation of judicial review to attain constitutionalism. Also, the courts insist too much on the mode of commencement at the expense of the problem a litigant faces, thereby not being helpful to the attainment of constitutionalism through judicial review. In view of the findings above, the major recommendations of the research are as follows: For the courts to be more responsive to the needs of Zambians, there is need to amend the High Court Act, Cap 27 of the Laws of Zambia, to provide for a “Zambian Order 53,” which will allow for “Public Interest Litigation.” The Public Interest Litigation will make it possible for any one to bring an action on behalf of those who are socially and or economically incapacitated to commence judicial review proceedings, even though they are legally aggrieved. Tue, 01 Sep 2015 00:00:00 GMT http://dspace.unza.zm:8080/xmlui/handle/123456789/4268 2015-09-01T00:00:00Z http://dspace.unza.zm:8080/xmlui/handle/123456789/4255 Pitfalls of insolvency provisions under the Zambian companies' ACT Bwembya, Anthony The purpose of this study was to establish whether the provisions of the Zambian Companies’ Act in relation to insolvent companies do provide an effective mechanism for protecting the wider interests of different stakeholders who include shareholders, employees, tax authorities, suppliers and customers. The insolvency provisions in the Zambian Companies Act, like those in many other commonwealth countries are premised on English law. Many jurisdictions including England have undertaken insolvency law reform to introduce modern and workable concepts such as those aimed at facilitating corporate rescue, enhancing director’s responsibility, providing for expeditious and non-court based procedures, among others. In Zambia however, the Companies Act is still premised on the repealed English Companies Act of 1948. The problem is that it is not known whether the current insolvency provisions are capable of providing safeguards to guarantee equitable and fair outcomes for all stakeholders in situations where debtor companies undergo financial distress. This approach adopted was a desk research method encompassing mainly collection of primary data in the form of local and foreign legislation, law reports and secondary data from text books, newspaper articles, journals, internet and dissertations and obligatory essays. The major research findings were that, insolvency provisions in the current Zambian Companies’ Act fall short of international best practice in that they lack any effective mechanism for corporate rescue and cross border insolvency. The said provisions are also incapable of fostering accountability, transparency and fairness among liquidators and receivers. The conclusion from the study was that insolvency provisions in their current form are incapable of safeguarding the interests of any of the stakeholders when a company has become insolvent. The major recommendations arising out of this research include the need to; strengthen provisions of the Zambian Companies’ Act relating to director’s duties and responsibilities; introduce provisions aimed at corporate rescue; introduce provisions aimed at improving accountability, expertise and fairness among Receivers and Liquidators in their practice; introduce provisions to cater for cross border insolvency and reform the judiciary in order to make it effective in dealing with cases of insolvency Thu, 01 Jan 2015 00:00:00 GMT http://dspace.unza.zm:8080/xmlui/handle/123456789/4255 2015-01-01T00:00:00Z http://dspace.unza.zm:8080/xmlui/handle/123456789/4065 The regulation of market dominance in Zambia Chulu, Jason D. In a free market economy, certain enterprises emerge stronger than others. With this strength comes the ability to independently influence the forces of competition and prices of products and services. Such strength must therefore be regulated, in order to ensure that it is not abused to the detriment of not only the other players in the market, but also the consumers.This essay therefore considers the regulation of market dominance in Zambia. It discusses the concept of market dominance, and the indicators used to determine it. It also considers the sort of behaviour considered to amount to an abuse of market dominance. The paper considers the role of the Competition and Consumer Protection Act No. 24 of 2010 (the "Act") in the regulation of market dominance. It also focuses on the role performed by the Competition and Consumer Protection Commission (the "Commission") in implementing the provisions of the Act.With the help of documented cases, interviews, and raw data, the essay analyses the position of the Commission in relation to the regulatory duty placed upon it. The essay provides a brief comparison of the regulation of market dominance in Zambia, with that of the United Kingdom, to provide more insight on the phenomenon. Finally, based on an analysis of its salient points of discussion, the essay draws profound conclusions and recommendations on how this regulatory system can be improved and concludes with a synopsis of the aforementioned. Mon, 05 Oct 2015 00:00:00 GMT http://dspace.unza.zm:8080/xmlui/handle/123456789/4065 2015-10-05T00:00:00Z http://dspace.unza.zm:8080/xmlui/handle/123456789/4059 The assessment and impact of the lands tribunal in resolving land disputes under the new legislative framework Muyunda, Maimbolwa Gloria The Lands Tribunal was set up with the aim of creating a forum through which land-related disputes could be disposed of in a quick, flexible and cost effective manner. However, its functions were greatly undermined by jurisdictional restrictions imposed by the Lands Act as well as the various decisions of the Supreme Court. This extremely narrowed the number of cases the tribunal could deal with to an extent that it was almost rendered defunct. In view of the foregoing, the Lands Tribunal Act was enacted. This Act seeks to extend the jurisdiction of the Lands Tribunal. This dissertation seeks to make an assessment as to whether the jurisdiction of the Lands Tribunal under the Lands Tribunal Act has been extended and whether it has had any impact in resolving land disputes.A qualitative study has been used in this research. It has invoked, desk research based mostly on secondary data which included, inter alia, Acts of Parliament, statutory instruments, cases law, parliamentary debates and parliamentary committee reports, and case law. It also involved interviews with the Registrar of the Lands Tribunal and litigants who appeared before the Tribunal.This study revealed that the jurisdiction of the Tribunal has indeed been extended in that the Tribunal is now able to hear and determine land disputes which are on title, disputes under customary land as well as those under site and service schemes. However, the Lands Tribunal Act took over a year to become operational after it was enacted and in the meantime there has been no continuity in the operations of the Tribunal. Secondly, as at the time of this study, members of the Tribunal had not yet been appointed. Invariably, the Act confers a lot of discretionary powers on the Minister in so far as the making of such appointments is concerned; as a result, external control is difficult. Consequently, the Tribunal is completely non-functional and as such has had a negative impact in resolving disputes under the new legislative framework, in that it is not available for resolution of land disputes.Several recommendations have been made among them that members of the Tribunal should be employed on a permanent basis in order to allow for continuity and total dedication. There should also be provision for ad hoc arbitration to deal with land disputes while waiting for the Tribunal to become operational. Mon, 05 Oct 2015 00:00:00 GMT http://dspace.unza.zm:8080/xmlui/handle/123456789/4059 2015-10-05T00:00:00Z http://dspace.unza.zm:8080/xmlui/handle/123456789/3895 Polygamy in the conflict of laws Chibesakunda, Chibesa Since the close of the first World War, there has been great intensification of modern influences among African peoples. They have experienced the impact of alien political, religious and economic organisations and of various other factors which have shaken the foundation of community life. This has resulted in a wide spread disintegration of the bonds and sanctions of African society before the people have been able to adjust themselves to the new order.Many factors in this process of culture have already engaged the attention of sociological enquiries, but there is one particular field of investigation which has not as yet received the special study it demands, namely, the effect of modern contacts on African marriage customs and the family system. The family is the most significant feature of African society, and the process of disintegration is nowhere more apparent than in this central institution. The orderly development of African life will depend in large measure upon the successful maintenance of the solidarity of the family unit in the course of the modification of its role under modern conditions.Within this general setting of the problem, it is important to note that colonial statutory law is sometimes ill-adjusted to African customary law in relation to marriage and kindred matters and that there is great divergence in the rules made by Native Authorities and in the practice of Native Courts in respect of matrimonial issues.The large Native Christian population and the Christian Churches themselves suffer exceptional difficulty owing to the fact that the law regulating the status of persons contracting marriages under Christian rites, often pays insufficient regard to the conditions of African social life.For an adequate understanding of the urgency and character of practical steps desirable to secure the orderly develop¬ment of African family life, a comprehensive appraisal of the present position is required. It is accordingly proposed that an investigation be undertaken of the effect of modern contacts on African marriage custom, and this should include a particular study of the influence escerted by the statutory law, the practice of Native Authorities and courts and Church law on the relationship between polygamy and the law.Achieving these aims will entail first and foremost the nature of the conflict resulting out of an attempt to reconcile polygamy with English Criminal Law. Secondly, it will be necessary to trace the history of the application of alien influence on the African people and finally the effects of this influence in present day Africa. Mon, 11 May 2015 00:00:00 GMT http://dspace.unza.zm:8080/xmlui/handle/123456789/3895 2015-05-11T00:00:00Z http://dspace.unza.zm:8080/xmlui/handle/123456789/3894 Peoples' call for retraining of Policemen, is it necessary?: A critical analysis Moono, Lacane Mon, 11 May 2015 00:00:00 GMT http://dspace.unza.zm:8080/xmlui/handle/123456789/3894 2015-05-11T00:00:00Z http://dspace.unza.zm:8080/xmlui/handle/123456789/3893 The performance of Parastatals: A legal analysis Muya, Zachariah M. Mon, 11 May 2015 00:00:00 GMT http://dspace.unza.zm:8080/xmlui/handle/123456789/3893 2015-05-11T00:00:00Z