Law

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The Sustainable Use and Concervation of Biodiversity in Zambia: A Review of the Forestry Sector
(The University of Zambia, 2008) Shauma, Groy
In Zambia more than 60 percent of the land is forest. The forests provide vital products for rural and urban dwellers, such as fuel wood, timber for construction and food. Generally forests provide shelter for animals and promote biological diversity conservation. Deforestation is mainly caused by uncontrolled forest product exploitation, illegal settlements, encroachment, clearing land for agricultural purposes and bush fires. This has brought about the need to restructure the forestry and related departments and also to reform both the law and policies in light of the current emerging consumption trends and land use practices that are unsustainable. Currently the Zambian Forestry Sector faces increasingly difficult challenges. The most obvious being the growing demand for forest products (especially fuel wood), Environmental services, the conservation of biological diversity, mitigation of global climate changes, protection from desertification and protection of soil and water resources, demands for achieving more equitable distribution of benefits from forests, for safeguarding the rights of local communities (forest dwellers), and for ensuring widespread participation in decision making related to forest management has added to the complexity and challenge of forest management and policy making today. Although Zambia has at least 19 pieces of legislation and a number of policies related to biodiversity in Zambia, the principal Act that governs the forest sector is the Forestry Act Number 39 of 1973. However, this Act emphasis on the "policing" sole of the forestry Department and the exclusion and restriction of local communities in forest management. Furthermore this Act took away all private ownership rights of trees, even where title to land was held. In response to this the government has made a new forest policy that has the objective of ensuring rational and sustainable protection, management, production and utilization of forest resources. It recognizes the need for employing broad-based and participatory approaches to forest sector development. In addition the Zambian government has also enacted a new Forest Act of 1999 which contains salient provisions which addresses most of the challenging environmental issues. However this Act is still non operational citing financial, legal and administrative huddles. Also the government has ratified various International Environmental Instruments and also has made a global commitment to conserve natural resources as can committed to come up with various initiatives to promote conservation and sustainable use of forest resources, especially in this day and age of the growing threat of global warming and climate change.
The role of the Judiciary in the effective resolution of electoral disputes in Zambia
(University of Zambia, 2011) Bwalya, Lloyd Kapambwe
The reality of electoral disputes is a characteristic of every competitive democratic process. History has shown that these disputes are caused by various factors and evidently manifest in so many ways within the democratic process. The effects of electoral disputes if not determined efficiently could be fatal both to human life and the economic and social development of a nation. To this effect, there is need to have a system of dispute settlement that can effectively and expediently settle and determine these disputes within the Judicial system of a nation. Although other mechanisms of electoral dispute settlement should be encouraged, the Judiciary of the nation must have oversight and command respect and confidence from stakeholders in the way it handles electoral disputes. This is because other mechanisms such as administrative and political mechanisms of electoral dispute resolution may generally be alleged to be impartial due to their structures and composition. Zambia has had a fair share of electoral disputes since the emergence of competitive politics. There is evidence of a number of presidential election petitions and an even greater number of parliamentary election petitions that have gone before the courts of law. This paper analyzes the effectiveness of the courts in the settlement of these disputes. The Zambian judiciary has been known to delay in the delivery of judgments on electoral disputes. As a result, stakeholders have lost confidence in the courts to resolve electoral disputes. Recent cases of parliamentary petitions have taken as long as four years to be determined for a seat which has tenure of five years. This has raised many questions as to the relevance, impartiality, transparency and independence of the court system in Zambia by both local and international eyes. It has further caused the loss of confidence in the judicial system of the nation by the electorate and other stakeholders. In comparison to neighboring countries like Malawi and Kenya, Zambia‟s judicial system regarding electoral dispute resolution is unsatisfactory. It is for this reason that this paper has recommended that judicial reforms be implemented such as an institution of an Electoral Tribunal which will deal with electoral disputes specifically to expedite their determination. In the alternative, going by the Draft Constitution by the Technical Committee, the Constitutional Court should be mandated to handle such disputes in order to efficiently deliver within time. Further, the paper recommends that these disputes be bound by a predetermined time frame within which they are to be determined. Finally, to restore confidence by the electorates and other stakeholders in the judicial system, there should be a vetting system of judges to investigate those judges whose credibility and/or impartiality has fallen to question. It is hoped that the recommendations resulting from this study will contribute to the enhancement of the efficiency of the judiciary as it endeavors to deliver justice in electoral disputes.
A critical analysis of the rent act and the Landlord and Tenant (Business Premises) Act in Zambia. An overview of the Law, practice and prospects
(2011-06-17) Chanda, C.Priscilla
Landlord and Tenant relationships in Zambia: An evaluation of the Landlord and Tenant (Business premises) act and the rent act.
(2011-06-17) Pasi, Hastings Siakoola
The administration of justice in the local and surbodinate cpourts of Zambia:an overview of the appropriateness of the present structure,procedure and qualifications of personnel
(2011-10-27) Nyambe, Mukelabai
This dissertation undertakes to examine the application of the concept of justice to the practical realities of court processes and administration in the Local and Subordinate Courts of Zambia, that is the lower courts - other than the High Court and the Supreme Court. The thesis is divided into four parts. Part one comprises one chapter; part two consists of two chapters. Part three has one chapter which is divided into two sections; and part four has three chapters. Chapter one discusses the concept and intricacies of justice. In chapter two an historical background to the present Local and Subordinate Courts in Zambia, is undertaken. It concentrates on the period 1890-1924 when colonialism first set in through the rule of the British South African Company (BSA Co.). Chapter three carries further the historical investigation of the evolution of the local courts and subordinate courts during the period 1924-1964 when the country was under direct British Rule taking over from the company. These chapters trace the origins of these courts or what may have been analogous to them, from the very early time of colonisation to the time of independence. Issues of the kind of personnel that presided over these courts, their qualifications and the socio-economic climate existing at different periods that may have had some influence on the court structures and function, are noted. Chapter four focusses on the post-independence developments with emphasis on the changes that were made to the structure of the Local and Subordinate Courts including new policy pronouncements which were put into effect. In Chapter five we examine some of the existing setbacks to the administration of justice in these lower courts. This chapter particularly looks at the role of and problems that two related institutions for the administration of justice (the Police and Legal Aid Department) have brought. Chapter six brings to the fore problems identified in the course of the earlier chapters, in order to try and assess and suggest possible improvements and solutions. Chapter seven concludes the discussion by way of summary of some fundamental aspects and issues brought out in the main text of the dissertation.
Tumbuka Customary Law of Marriage
(2011-11-28) Nyirenda, Wesley Pillsbury
The Legal Protection of Refugees in Zambia in the Light of International Law
(2011-12-01) Sahinkuye, Mathias
The thesis focusses on the protection of refugees' human rights in Zambia in the light of international law. The importance of this subject is underlined by the fact that Zambia does not have enough and adequate means to deal with the refugee influx and the national pieces of legislation and practice do not give enough protection to refugees' rights provided for in international instruments. This legislation has been used often improperly, and together with the practice, it infringes fundamental individual rights and, therefore, undermines the Rule of Law. The study examines the extent to which Zambia is ready to admit asylum-seekers and to grant them asylum, and the reality that people face who seek or enjoy asylum in Zambia considering the international law on the one hand, and the Zambian juridical, economical and political situations on the other hand. It demonstrates that Zambia, considered as a part of the international community and having signed the international instruments relating to refugees, has the legal obligation to protect refugees. The thesis is divided into five chapters. Chapter one gives a general survey of Zambia and shows the different refugee movements which have occurred into Zambia. Chapter two examines the different stages necessary for the protection of refugees in Zambia. It brings out the meaning of 'refugee' in international law as well as in Zambian law. It explains why refugees have sought refuge and have been granted asylum in Zambia regardless of the legality or illegality of their leaving home and entry into Zambia. Furthermore, it analyses the Zambian procedure of granting asylum. Chapter three discusses the refugee problem in view of international law and the national legislation and practice of Zambia. Chapter five is a conclusion.
The efficacy of the Zambian Investment act (No. 5 of 1986) in the attraction of Private Foreign Investment for development
(2011-12-01) Mwenda, Winnie Sitole
The Zambian economy, like many others in the so called less developed or developing world, is experiencing a severe depression characterised by high balance of payments deficits, a very high inflation rate, high debt burden, a manufacturing sector highly dependent on imported raw materials with very little foreign exchange earning capacity and high unemployment levels, among other things. These economic indicators of depression have been alluded to, among others, in the business, labour academic and political circles in the land. Indeed, the Head of State, President Kenneth David Kaunda, has himself time and again acknowledged the existence of the state of depression and has called for a radical restructuring of the economy in order to make it more competitive and able to meet the needs of primarily the domestic but also the international economy. In order for Zambia to restructure her economy, however, she needs a large volume of investment. It is this need for a large volume of investment which of necessity brings in the question of how to make the investment climate in the country more attractive to the much sought after private foreign investors since local investment has proved insufficient to meet the developmental aspirations of the country and foreign aid, which has to be shared among a host of other needy countries, is inadequate. With the heavy debt burden the country is faced with and the problems it has with debt servicing due to limited foreign earnings, more loans would be disastrous to the economy. In the circumstances more private foreign capital is the answer to the economic problems afflicting the nation. Attracting private foreign investors is not, however, by any means an easy task since their capital is in great demand in both developed and developing countries and as such investors can afford to be highly selective, opting for countries where the investment climates are most favourable. This is understandable in view of the risks involved in investing in foreign countries. Realising the competitive nature of private foreign capital, the Zambian Government has expressed its desire for private foreign investment through policy statements and stances. The investment Act, No. 5 of 1986 is a culmination of the Government's efforts to attract more private foreign investment into the country by providing incentives to foreign investors. This paper critically analyses the Investment Act to gauge its efficacy in attracting private foreign investors and also examines the effect of other factors such as expropriations of private property and the rising crime rate on private foreign investment flows into the country.
Women and crime in Zambia
(2011-12-01) Sakala, Julius Bikoloni.
This study of women and crime in Zambia is in fulfilment of the Master of Laws' degree of the University of Zambia. The study has been carried out entirely by research leading to the submission of this dissertation. It entailed extensive travel to Mufulira, Kitwe, Ndola, Kabwe, Lusaka and Livingstone female prisons to gather material which is found mainly in Chapter 5. I received no financial assistance from anyone and hence the shortcomings which appear in the study, particularly with regard to the number of women prisoners interviewed. Nevertheless a total of 81 female prisoners were personally interviewed by me at the various prisons mentioned above. My interest in the topic of women and crime in Zambia was first seriously aroused when I had the opportunity of successfully appealing to the Supreme Court of Zambia on behalf of Rosalyn Thandiwe Zulu in 1981. She had been convicted of the murder of her husband and sentenced to death by the Court below. But when I first submitted my proposal to the appropriate authorities in the School of Law, I was tempted to look at the broader issues of crime and suggested that I do some research on 'The Sociology of Crime in Zambia'. This was partly due to my earlier academic training in Sociology from the University of London (1965). I have found the resemblance in the vocabulary of the disciplines of sociology and the language of law quite striking. I was also intrigued by the fact that in Zambia, as perhaps elsewhere in Africa, old habits die hard and especially traditional attitudes towards women. It is clear from writings of various authors that what Lady Chudleigh wrote in her poem in 1703* that wife and servant were the same but that they were only different in name can be equally true of some men's thinking in Zambia to-day. The importance of research on female criminality cannot, therefore, be over-emphasized. There is a dearth of literature on the subject in Zambia. There is very little known about female criminality by many people especially those concerned with the administration of justice in the country such as legislators, the judges (using the term judge in its wider context), police, social workers, criminologists and other social scientists. It is hoped, therefore, that this study will be the beginning of further efforts to redress the imbalance of literature 01 female criminality in Zambia in particular and also in the neighbouring countries of East Central and Southern Africa. *Anne Bottomley and others (editors), The Cohabitation Book - a Rights of Women's Guide to the Law, Pluto Press Limited - London (1984) 2nd edition at page 1 - Introduction.
Autonomy and independence of judiciary in Zambia: Realities and challenges
(2011-12-06) Sakala, Ernest Linesi
The period prior to and after the introduction of multiparty system of politics in Zambia witnessed a flood of unprecedented litigation involving political cases in the Zambian Courts. The judiciary became the focal point and 'battlefield' of political cases. The political cases that were litigated during that period were all test cases on how independent the Zambian judiciary was. Indeed, criticism, attacks and accusations of the judiciary were at their highest ebb. Judges were given labels. Some were labelled 'gallant' judges while others were labelled 'pro-government.' This all depended on the outcome of a particular case. There was, at that time, a clear danger of the judiciary creating an impression that it would change with the change of political fortunes. The existence of constitutional and statutory provisions governing judicial independence did not protect the judges from the attacks and the criticisms. This study examines factors which have a bearing on judicial autonomy and independence but not provided for in the Zambian Constitution which enabled the judges to withstand the pressures of the time and continue to sustain judicial autonomy and independence today. The study critically analyses the judicature as the starting point of measuring factors with a bearing on judicial autonomy and independence. Thereafter the study critically looks at the judges in relation to their appointment, conditions of service and discipline. The study further analyses the two concepts, judicial autonomy and independence. This examination is followed by a chapter on threats to autonomy and independence. The last substantive chapter evaluates realities and challenges of autonomy and independence. The sixth chapter is the conclusion. Basically the whole study is an examination of the real factors that influence judicial autonomy and independence in Zambia not found in the Constitution. The dissertation has shown that in the ultimate analysis autonomy and independence of the judiciary in Zambia are best secured, not by constitutional and statutory provisions, but by the sincerity and the good will of the people at the helm of power; by the responsible conduct on the part of the judges through understanding of their autonomy and independence; and by the public's acceptance of the court's decisions. The study has revealed that while all the successive Zambian constitutions included provisions on independence of the judiciary, instances of attacks and intimidation directed at the courts never diminish, thereby making the whole concept of judicial autonomy and independence elusive and a mockery. The problem seems to be that many times the judiciary has in reality not been assertive enough. As a result of the lack of adequate self- assertion, the executive, the legislature and the public have not refrained from apparent, direct or indirect interference and attacks on the judges through derogatory comments, often made in bad taste with clear motive of intimidating the judiciary in 'politically sensitive' cases before or after judgment.
The dilemma of women's sexual and reproductive rights in Zambia
(2011-12-06) Shezongo-Macmillan, Joyce
The purpose of the study is to understand the challenges women face in exercising their sexual and reproductive rights in Zambia and to see whether this class of rights can be exercised or enforced fully as individual rights by women. It seeks to answer the broad question, 'Are women's sexual and reproductive rights mere theoretical assertions that cannot be fully enforced or exercised by women in Zambia'? It addresses the following specific questions; a)Are women's sexual and reproductive rights a distinct class of rights that can be exercised or enforced as individual rights by women in Zambia? b)What challenges, dilemmas or unwanted consequences, if any, do women in Zambia face in exercising or enforcing their sexual and reproductive rights? The research is qualitative and is both descriptive and analytical. The theoretical and conceptual framework of the study is based on African Feminist thought, Legal Pluralism and Women's Law Approaches. The study found that women face several challenges in respect of access to the right to sexual and reproductive health care and services. They also face a myriad of social, legal, economic and political factors and suffer unwanted consequences for exercising their right to sexual and reproductive self determination; or for refusing to comply with strictures that violate this right. These factors ensure a sustained ignorance of rights and perceived powerlessness on the part of women. Women are not only unable to exercise their right to sexual and reproductive self determination in the privacy of their personal lives, but are further unable to contribute to the decision making processes in the public sphere that impact on their lives. Women's lives are thus characterised by a sense of powerlessness in relationships and in public life and different forms of subjugation or multiple manipulations. This milieu sustains an asymmetrical or pyramid model of rights with women's rights at the bottom and men's at the top, which ensures that women's duties and obligations as mothers and wives supersede their individual rights; leading to conflicting interests between women's rights and duties and rights and familial ideologies. Further, the State's compliance with its responsibilities to human rights under international instruments is also limited. There are thus inadequate health care facilities and services and a lack of appropriate legislative framework and enforcement mechanisms for these rights that constrain women's right to sexual and reproductive health care.
The law of corroboration with specific references to Zambia
(2011-12-06) Sekaggya, Margaret.
The domain of this study is entitled "The Law of Corroboration with Specific Reference to Zambia", This is the first study to be made in the area of evidence in Zambia thus the importance of the study. Corroboration in particular, has been a subject of great importance and a subject for discussion by the courts. In Zambia its importance and controversy culminated in the celebrated case of Phiri (E) and Ors. v The People. This case raised important legal issues concerning which there appeared to be doubt and confusion. The court found it necessary to make a definitive pronouncement of law on these issues and a full bench of the court sat to hear the appeal. This case has since then formed the basis of the law on corroboration in Zambia. It was because of this case that my interest in this study was aroused. The study is divided into Seven Chapters, The first part of the study looks at the sources of law in Zambia. This part discusses the different stages of development of the law since the pre-colonial period. The law of evidence is founded on the basis of English law which was introduced during the colonial period. It may be noted in this respect that although English law is dominant in this area of law, the courts have built up through case law a system of law which in the long run has made Zambian Courts independent of English decisions. The study makes a detailed analysis of the law of corroboration. The rationale of Corroboration is that some offences are difficult to prove with¬out any other evidence, corroborating them, or that some witnesses cannot be relied on without some other evidence corroborating what they testify to. The study examines the nature of evidence required (1) to corroborate these offences and (2) to corroborate the evidence of different witnesses. From the study it is noted that the most important areas which require corroboration are the evidence of an accomplice and child evidence. The study therefore gives prominence to those two areas and makes a detailed analysis of what decisions and conclusions the courts have made. The law of corroboration is not settled in some areas, for instance in the law regarding mutual corroboration. The study discusses this topic and analyses the general rule that witnesses who require corroboration cannot corroborate one another. Reference is made to the English (llth Report of 1972) dealing with corroboration. Finally, the study suggests that Zambia should have an Evidence Act. There are countries which have Evidence Acts and they have been working well, for instance India, Kenya and Uganda. The main problem is having the law spread in different books and law reports. This makes it impossible for the judicial officers in remote areas to keep abreast with the law. An Evidence Act will be of use, more especially now that the law on various aspects has been settled by the courts.
The law governing the international Agricultural Commodity Trade and the new International Economic order : with special reference to Cocoa, Coffee and Sugar
(2011-12-09) Simapungula, Wakefield Chivwindi Muzyabi
This dissertation is an attempt to reflect the growing and substantial attention which the last two decades or so has given to international agricultural commodity trade Much of the relevant law on this subject is embodied in treaties, both bilateral and multilateral, agreements, national legislations and international conventions. Efforts to regulate unstable international commodities markets have highlighted the conflicting interests of developed and developing nations. The study analyses both the legal and policy issues and makes recommendations for future action. The emphasis is on the need for solid legal principles in this field and on cooperation between developed and developing nations. Not all the existing international commodity agreements are discussed. Instead the study only covers the cocoa, coffee and sugar agreements as illustrations of the agricultural commodity agreements now in operation. The agreements seek cooperation in assuring access to commodity supplies by recipient nations, while guaranteeing suitable prices at a sufficient level to support the economic development of the suppliers. The study also discusses the evolution of developing countries' demands for change in international commodity markets under the new international economic order and the reaction of developed countries to these demands. Chapter I deals with the general issues relating to commodity trade and gives a historical perspective to commodity trade through the United Nations and the General Agreement on Tariffs and Trade. Chapter II gives the legal framework under which demands for change are being persued. In a way this Chapter carries forward the discussion in Chapter I as reflected in the discussions of the United Nations Conference on Trade and Development for a new international economic order. Chapters III and IV deal with analyses of particular commodity agreements viz. cocoa, coffee and sugar. Chapter III introduces the various commodity control mechanisms now in use. In Chapter V we reflect on the failure of these individual commodity agreements to stabilize commodity prices. The proposals under the New International Economic Order are discussed including the Integrated Programme of Commodities and the Common Fund established to supplement individual commodity agreements. In Chapter VI the conclusion that more remains to be done in setting up new legal institutions to deal with commodity problems is offered. It is hoped that this study will stimulate further interest in exploring the legal mechanisms that may be established to improve the commodity markets to the advantage of all parties concerned. In particular an international commodity council is suggested to implement the integrated programme of commodities.
The System of Land Alienation in Zambia: A critical analysis of the Legal and Institutional Framework
(2011-12-09) Sichone, Frightone
Since the advent of colonial rule, the system of land alienation in Zambia has not received adequate attention both in terms of legal and institutional reform in line with political and socio-economic changes, and population growth. Even with the attainment of political independence in 1964, there has been no clear legislation to govern the procedure on land alienation. Currently, there are several statutes that have some bearing or relevance to land alienation, and there are several government Ministries and Departments that play a role in land identification, planning," surveying and tide registration. Admittedly, the challenge faced with this kind of legal and institutional structure is that there is lack of co-ordination among land alienation institutions, and there are conflicting regulations in certain instances. To cope with the current demand for land, there is need for equitable access to land, as well as secure land tenure for the people of Zambia. This dissertation is a study of the system of land alienation in Zambia in both State land and Customary land. The study critically analyses the law relating to the land tenure system in die country, and evaluates the legal framework and institutions that are involved in land alienation. Basically, the whole study is an examination of real practices and procedures followed in the alienation of land in different categories of land. During this study, it has been revealed that the system of land alienation in Zambia has continued to be based on and influenced by the colonial forms of tenure introduced during the colonial rule that have little relevance to the needs of the country. This study has further revealed that there is lack of institutional establishment, and technical capacity in the alienation of land. Furthermore, there is lack of rules and guidelines on the roles to be played and functions to be performed by the institutions involved in the alienation of land. The study reveals that some indigenous forms of customary tenure are no longer suitable in light of the increasing demand for land posed by population growth, urbanisation, rural-urban migration, and other demographic factors. There is now need to devise suitable methods of land alienation to cater for various uses of land such as land for housing, agriculture, commerce, and industrial development. The study has suggested that legislation governing land holding, land acquisition, usage and delivery in both systems of land tenure should be consolidated with a view to unifying land alienation and administration. Similarly, legislation should recognise the rights of land users by defining these rights through formal survey and registration so that everyone, irrespective of social status, gender or origin can have similar rights to land. The study has concluded that the law relating to land alienation should be revised and the institutions involved in land alienation should be restructured and decentralised in order for them to deliver land in an efficient, effective, transparent, democratic and equitable manner for the socio-economic development of the Zambian people and the country. It is hoped that the findings of this study will provide a contribution to the scholarly works on the system of land alienation and administration in Zambia.
The relevance of Economic crimes to Public Security : The response of the Zambian Judiciary
(2011-12-09) Simamba, Bilika Harry.
Traditionally, in Zambia and most of the common and civil law nations, emergency legislation was by and large never directed towards economic security both in formulation and application. Increasingly in Third World countries however, legislation has been introduced to allow detention on account of factors considered relevant to the economy. Where such legislation has not been introduced, old legislation which may never have directly dealt with "economic detentions", has often been interpreted so as to make such detention lawful. This last approach has manifested itself in Zambia, breeding divergent bodies of judicial opinion. At present, there are a number of decisions by different Judges of the High Court for Zambia which have decided differently. The Supreme Court has however recently ruled in favour of the State in Rao v Attorney-General, a matter relating to illegal trafficking in precious stones. An examination of the judgments of the five judges reveals that the issue of economic crimes is far from settled. The whole issue is as to the interpretation of the following provision in the Preservation of Public Security Act: 11 2. In this Act, the expression "public security" includes the securing of the safety of persons and property, the maintenance of supplies and services essential to the life of the community, the preservation and suppression of violence, intimidation, disorder and crime, the prevention and suppression of mutiny and rebellion and concerted defiance of and disobedience to law and lawful authority, and the maintenance of the administration of justice." Some High Court and Supreme Court Judges have held that this allows detentions for economic crimes while others have held otherwise. It is particularly important to discuss this matter at the present time for at least two reasons. First, if the power to detain under emergency laws is, by construction or by amending legislation, extended to economic crimes, it has been argued that this will make destructive inroads into the enjoyment of individual liberties through a power to detain that is already too wide. Second - and this is the opposing argument - an attempt must be made to construe the power widely so as to help contain agro-economic maladies which in Africa, for the first time in World history, are leading directly to the loss of millions of lives, and life is one of the interests which emergency legislation was meant to safeguard and promote. In Chapter I we shall lay the background in the form of emergency legislation and the judicial interpretation of it. Chapter II will directly address the issue as to whether economic crimes can properly be said to come within the meaning of "public security" as contained in section 2 of the Preservation of Public Security Act. Finally, in Chapter III we shall examine as to whether support can be found in international conventions for either view, if such conventions are construed with the African condition in mind. This discussion of international conventions in the contest of our local legislation will, I believe, give the work a further interesting and unique feature. Further, this conflict as to the relevance of economic crimes to public security re-opens some of the fundamental differences between the East and West as to the relationship between economic, social and cultural rights; and civil and political rights. In the examination of this matter of public security, it will be convenient to assess some of the old and new approaches to the construction of statutes. These approaches, regardless of which approach one prefers, will have a significant bearing , not only on the proper scope of the Preservation of Public Security Act, but also on the entire matter of modern statutory construction, and therefore on the scope of many Acts of parliament and Statutory Instruments.
Confessions in criminal cases in Zambia
(2011-12-09) Silungwe, Annel Musenga
In this dissertation, an attempt is made to examine the subject of confessions with regard to criminal cases. In Anandagoda v R (1962) 1 W.L.R. 817 at page 823, the Judicial Committee of the Privy Council said that a confession is the species of which an admission is the genus. However, the term "admission" is usually relevant in civil proceedings; when the term is used in relation to a crime, it denotes an admission of some fact relevant to the crime and the admission need not be voluntary. On the other hand, the term "confession" is used to denote the admission or acknowledgement of guilt and invariably applies to criminal cases. There are special rules governing the admissibility of a confession; these are discussed in the body of the work. Chapter I looks at the meaning, nature and effect of a confession. It then concludes with historical observations. Chapter II discusses the manner in which a confession may be conveyed. Chapter III deals with persons to wham a confession may be made; such persons may, or may not, be persons in authority. Chapter IV relates to what constitutes free and voluntary confessions, the significance of the Judges' Rules, the effect of any breach thereof and, finally, the question whether or not a free and voluntary confession requires to be corroborated. Chapter V deals with the admissibility of confessions.It discusses whether or not the whole, or part only, of a confession is admissible. It also discusses upon whom lies the burden of proving the voluntariness of a confession, the circumstances under which the procedure of a trial within a trial is introduced as well as the exercise of a judge's discretion. Chapter UI concerns the inadmissibility of confessions on the ground of involuntariness or ambiguity. It also deals with the questions arising from subsequent confessions, facts discovered in consequence of inadmissible confessions and evidence procured as a result of an illegal or improper search and seizure. Chapter VII looks at the use and abuse of confessions, the effect of confessions upon police investigations and the probative value of confessions. The final Chapter - Chapter VIII - is an appraisal of what safeguards there are, or should be, for the protection of suspects or accused persons in relation to police interrogations and the taking down of statements from such persons. The writer concludes the chapter by expressing certain views on the subject.
The Preferential Trade Area for Eastern and Southern African states: A Legal perspective
(2011-12-13) Simbyakula, Robert Ngosa
The recently established Preferential Trade Area for Eastern and Southern African States (hereinafter referred to as the PTA) is not a new innovation in this part of Africa. Regional economic co-operation dates back to the era of colonial rule. Inter-territorial economic links were established by the colonial powers between the various territories under their rule. There were various treaties, legislative enactments etc, which resulted in the creation of a number of economic institutions to regulate trade between the territories.With the attainment of political independence the new emergent states were reluctant to sever those economic links established during colonial rule. Not only has it been recognised that most African states' economies are potentially complimentary but also that the key to economic development lies in unity and economic co-operation. The crucial issue, however, is that there has not always been a clear appreciation of the nature of economic co-operation which is possible and desirable in Africa. All over Africa there have been various attempts at joint economic activity with a view to foster development. Sadly, however, these attempts have met with little or no success at all. Nevertheless, African leaders must be given credit for their perseverance and optimistic attitude towards unity. At the Summit Conference of Heads of State and Government of Eastern and Southern African States, which was held in Lusaka, Zambia on December 21, 1981, nine countries signed the Treaty establishing the PTA. The nine were the Comoros, Djibouti, Ethiopia, Kenya, Malawi, Mauritius, Somalia, Uganda and Zambia. The sub-region comprises of eighteen states and if they all ratify the Treaty the PTA will become the largest regional economic grouping in Africa. The region embraces different political and cultural set-ups; it spans the continent from the Atlantic to the Indian Ocean; and covers three official languages; English, French and Portuguese. Many questions, however, do come to mind: Does the PTA offer anything positive? Indeed will this arrangement succeed where others-such as the now defunct East African Economic Community-have failed? It is the aim of this dissertation to look at the legal regime governing the PTA. A comparative analysis of other similar regional economic groupings (such as the now defunct East African Economic Community, the Latin American Free Trade Area, the European Economic Community, SADCC, the Andean Pact etc) will be made. Such comparison will enable us to determine whether or not the PTA is a viable venture. Ultimately we shall be able to determine not only whether the legal regime is adequate or economic inequalities among member States that may frustrate the arrangement. Needless to say, such a study would be incomplete without giving a brief history of similar economic arrangements which existed during the colonial era. It is proposed to deal with this study under the following heads:- 1.General Background 2.Institutional framework 3.The Trade liberalization scheme 4.A Comparative Analysis 5.Conclusion: hopes and loopholes.
Zambia and the Universal declaration of Human Rights as a common standard of achievement for all peoples and nations
(2011-12-16) Torul, Ved Pukash
Events in the past have awakened world opinion on the importance of extending international protection of the individual. World leaders and legal philosophers have also recognised the merit of the struggle for man’s basic rights. There is, therefore, a constant and consistent attempt at international as well as municipal levels to build a new public order of human dignity. The subject on human rights and fundamental freedom is so vast, that it is not possible to do full justice in a few pages written in satisfaction of the requirement for a dissertation. Convinced by the vastness of the subject and the limitations imposed upon a student of law, only a few selected areas on human rights have been brought into focus. Chapter I looks at the Universal Declaration of Human Rights and its impact on international relations and practices at the municipal levels. Chapter II attempts to show that Zambia through sustained efforts and legislative enactments, has tried to give effectiveness and force to civil and political rights of an individual. Chapter III discusses how Zambia, through various economic reforms and the instrumentality of the law has tried to conform to the economic standards of human rights as provided in the Universal Declaration. Chapter IV brings out the salient features of social rights in Zambia. Problem areas such as the right to work, leisure and social security of an individual have been brought to light. These rights have also been looked at from different levels. These are homes for the aged, family and child welfare, Provident Fund, legal aid and the right to fair hearing and administrative justice. Chapter V focuses on Zambia's commitment to ensure effective development of human personality by the implementation of the right to education and culture. The conclusion tries to evaluate the existing civil, political, economic, social and cultural rights in Zambia. It also contemplates to suggest measures to improve on the present set up. As pointed out earlier, all aspects of human rights cannot be brought within the limited scope of this dissertation. However, attempt will be made to discuss the areas important in relation to the topic. I have had several constraints while working on the dissertation. On the expiry of his contract, Prof. Dayal who was initially appointed as my Supervisor, left the University. It was not possible for the University to appoint another supervisor until later this year. Major portion of the dissertation has been supervised by Dr. Koul who has tried his best to give the dissertation a presentable form. Another constraint was lack of resource materials. Due to unavailability of latest reports en Co-operative Development, Education, social services and legal aid, it has not been possible to make the present data up-to-date. On the other hand, most of the information collected are from interviews and discussions held with different officials at various levels in the ministries and departments concerned. I also had recourse to the University of Zambia Library (Special Collections), National Archives, High Court Library, The Evelyn Hone College Library, the United Nations Library (Lusaka) and the International Labour Organisation Library (Lusaka).
The role, nature and authority of the Legislature in Zambia's One-Party system of Government
(2011-12-16) Sondashi, Ludwig Sanday
This Dissertation attempts to analyse and evaluate the effectiveness of the Zambia's one-party Legislature within its life time of Ten years from 1974 to 1984. The focus is on the concept of the Legislature and the one-party system of government, to try and discover whether Parliament is being used as an instrument of progressive social change and thus contributing to the enhancement of the rule of law and democratic human values. The subject is presented and analysed within its operational context, that is analysing law in the context of the historical, social and political setting of Zambia, so that it is assessed on its relevance to the objective requirements of that state. Chapter 1 being an introductory chapter examines the arguments for and against the introduction of one-party states, especially Zambia's. It takes note of the persuasive reasons advanced in support of the introduction of the single party system in Zambia as being compatible with the theory of one-party states. Chapter 2 explores the nature, form and content of Zambia's Parliament. This basic understanding is necessary for the analytical evaluation to be made in the next chapter. This chapter reveals that the character and law applicable to this organ, including freedom of speech and parliamentary privileges, are similar to those of Westminster model. On the other hand, it is discovered that the power of the Executive as entrenched in the constitution are designed to make that organ independent of the Legislature without correspondingly altering the powers and functions of Parliament. The source of conflict, therefore, begins from here. Chapter 3 examines the roles of the Speaker and MPs in their collective and individual capacities, and the role of Parliament in relation to the Party and the Executive. The chapter discovers that Parliament faces many constraints mainly arising from internal and external factors, including the principle of supremacy of the Party and Presidentialism and the fact that the Executive is not responsible to Parliament in Zambia legally. The chapter concludes that the Legislature is not very effective, it appears to be. symbolic. The Dissertation concludes by confirming the notion for the insubordination of the Legislature in a one-party state. It makes an observation that despite. the apparent ineffectiveness of Parliament, the Legislature,nevertheless, plays an important educational role and contributes to the political consciousness of the general public and in many instances it has made the government change its course of actions etc. The treatise recommends a review of the role of Legislature in the long run to enable it to play a meaningful role in nation building. The writer has used both theoretical and empirical methods in his research. The work is no doubt intended to contribute to the knowledge of law on this subject.
Constitutional Development in Zambia, 1890-1975
(2011-12-16) Sipalo, Ngenda
Zambia is today a one party state. Though this would appear to represent a clean break with the past, in reality, however this is not entirely accurate. To the extent that there is an absence of a plurality of political parties or that because of the demands which a single party system entails there has got to be a limitation on freedom of association end assembly and communication, the proposition that a single party state represents a clean break with the past would appear to hold water but the legal realities make it absolutely difficult to get away from history. For instance the constitution of the Zambia Independence Act and the Zambia Independence Order had to be preserved is so far as this was not inconsistent with the new order. Even more important perhaps is the fact that although the one party-state constitution contains a number of original features such as the Commission of investigations popularly known as the Ombudsman and the concept of the Leadership Code the One Party Constitution preserves and perpetuates by way of organic growth the constitutional development during the colonial period and even before. Though Zambia today is a one party state it has experienced different forms of administrations. The Zambia Independence Act 1964 an enactment of the British Parliament provided for the termination of the British protectorate status over the territories of Northern Rhodesia and that they would henceforth become the independent republic of Zambia. Between 1924 and 1964 Northern Rhodesia experienced the British system of colonial government headed by a Governor and supported by a legislative council and an Executive council. Before 1924 going back to the 1890s Northern Rhodesia was administered by a commercial concern incorporated by Royal charter, the British South Africa company. Basing its right to rule on the agreements entered between itself and Lewanika the traditional ruler of the Lozi in the North West of Rhodesia and agreement entered between company officials and chief a in North Eastern Rhodesia it caused to be promulgated in 19OO the North Eastern Rhodesia Order in Council and the Barotseland North Western Rhodesia Order in Council of 1899 in order to facilitate the administering of the two components of Northern Rhodesia. In 1911 however, the two parts were amalgamated in the Northern Rhodesia Order in Council of that year. The British South Africa company had an official representative during company Rule in Northern Rhodesia called an administrator but he could not make laws for the territory, thus up until 1924 when Company rule was terminated in Northern Rhodesia by an Order in Council the country was administered by proclamations made either by the High Commissioner in South Africa or by the Commissioner in Nyasaland (Malawi) today some of these proclamations are still being enforced in Zambia. During company charter rule in Northern Rhodesia the interests of the British settlers were not always coincidental with those of the British Government and the interests of the Company coincided with neither of these. In addition the interests of the indigenous people were not identical with those of the company, which as a commercial concern its motives were ensentially profit oriented. It was therefore, not surprising when the British government following a report by a commission which had visited the area at the time terminated company rule by the Northern Rhodesia Order in Council of 1924, and Northern Rhodesia became a protectorate. Northern Rhodesia began to experience the colonial form of government. This form of government was to go on until 1953 when Northern Rhodesia was incorporated together with Southern Rhodesia and Nyasaland in the federation of Rhodesia and Nyasaland. With the F.H.N. Act the federation of Rhodesia and Nyasaland was established and the Federation (Constitution) Order-in-Council promulgated. This period was marked by intense African opposition to these forms of Administrations and because Northern Rhodesia remained a protectorate during the Federation period with the federal framework this made it possible for constitutional development to take place even though this left the Federal constitutional development behind. As a result of the frantic constitutional developments in Northern Rhodesia in a bid to widen the franchise this ultimately led to the formation of a black government in 1962 following a coalition of the two main black political parties. And with the dissolution of the Federal arrangement in 1963, this paved the way for full independence status for Northern Rhodesia. The General Elections of January, 1964 following the new self-governing constitution adopted in 1963 unshered in a black government and in May, 1964, at an independence conference in London a Republican constitution was finally agreed upon and promulgated in an order-in-council formally made by the British Monarch under the Zambia Independence Act which created the Republic. The scope of this paper therefore, will be from the 1890s when the British South Africa Company attempted to provide a system of administration to 1973 when Gambia, after having experienced different constitutional arrangements finally adopted a one party-state constitution. Our concern there¬fore, is with a type of constitutional law which is in written form and derives from institutions and modes of legislation unknown to customary law. Though a lawyer writing on government would invariably concern himself with the rules governing those institutions "rules" as Professor Nwabueze points out in the introduction to his book Presidentialism in commonwealth Africa are not to be regarded as a selfsufficient subject of study. The underlying political and social forces motivating them are as vital as the rules. This is more so with regard to the present study. The development of constitutional law in Zambia has inevitably been shaped by the political and social forces which characterised the changing focus in power relationships. For instance the federation of Rhodesia and Nyasaland was brought out by European settlers mostly in Northern and Southern Rhodesia who thought that such an arrangement would finally give them dominion status like that enjoyed by Australia and Canada. But the Africans on the other hand saw it as the embodiment of white supremacy and they were thus determined to fight it. In Barotse Province (as it was then called} on the other hand, the ruling elite there felt that because of the treaties which Lewanika had entered with Company officials in the l890s they were to be consulted on any constitutional changes which would affect their position and hence the inclusion of provisions referring to their special position in the constitutions of 1911, 1924-1953 and finally in 1961. And even in 1964 when the republican constitution was finally agreed upon in London a separate agreement. The Barotseland Agreement had to be signed in order to assuage the fears of the Litunga when independence finally came on 24th October, 1964. The nationalists on the other hand were determined to have one Zambia. One Nation in which all the people will have equal status hence the gradual but determined effort to bring Barotse Province on par with all other provinces. Thus the approach adopted in this paper is not one of dealing with the rules in vacuo but of dealing with the rules against a back drop of social and political undercurrents which determined them. Thus the rules will, as it were form the framework - the skeleton, while the social and political forces the flesh with which to help us understand the course and nature of constitutional development which Zambia has gone through. This paper will therefore attempt: a) to nonitor the historical evolutionary stages through which Gambia's Constitutional development has passed. Northern Rhodesia (Zambia) compared to Nyasaland (Malawi) or Rhodesia has seen more Constitutional Changes than any of the two countries. First under Charter rule and then Colonial protectorate Zambia was going through a Constitutional metarmophosis which reached its high water mark between the period 1958 and 1964 when for the first time the Africans of Northern Rhodesia began to be enfranchised albeit with some means, educational and property qualifications but by the beginning of 1964 the Africans had won Universal adult suffrage for themselves. Thus within a period of six years Zambia was to have four different Constitutions. There was a new constitution in 1959 then 1962 and in 1963 there was the internal self-governing Constitution which was itself replaced in May 1964 by a Republican Constitution agreed at a Conference in London. On the other hand Malawi evinces a different picture from Zambia. Malawi was not opened by Charter Company but by missionary endeavours. The British Government took over Control of the territory in 1902 when an Order-in-Council appointing a Commissioner to administer the protectorate in the name and on behalf of the Majesty was made. In 1907 the High Commissioner was replaced by the Governor, an executive Council and a legislative Council. This position remained essentially the ease until 1962 when a new Constitution was introduced which brought an African Majority in the Legislative Council. A new Constitution was agreed to in May 1963 which brought in internal self-government and finally independence in July 1964. Southern Rhodesia like Zambia was under Charter Company rule but the white settlers gained early control of Government to warrant the conferment of a self-governing Constitution in 1923. This Constitution remained the same until 1961 when a new Constitution was introduced. In 1965 Rhodesia Unilaterally declared itself independent after failure to reach agreement with the British Government. In 1969 some changes were made in its Constitution in preparation for a Republican Status in 1970. But the 1961 Constitution has remained in force all along. All the three territories became part of the ill fated Federation of Rhodesia and Nyasaland in 1953 which finally met its Waterloo in 1963 after implacable resistance to its implementations by the politically conscious Africans from Zambia and Malawi. (b) to show that the British Constitutional provisions and institutions which have characterised powers, procedures and traditions of the colonial government continue to buttness the system. We will contend that though Zambia's political parties could have opted for any Constitutional formula, their familiarity with the British one made their choice of the former much more certain. (c) an examination of Gambia's present Constitutional Legislation i.e. the One Party State Constitution. It will be contended that the principles of democracy are no less protected and enjoyed by the people in the One Party State than they were when Zambia was under a multi-party system. It is not necessarily the Constitutions which make or break the system but the people running such systems. Thus an apparently democratic Constitution can be violated at will by its framers thus making it no better than a villains manifesto.

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