Law

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    Abortion: Should it be legalized in Zambia
    (2013-10-09) Kabwe, Chiti Yvonne
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    Accessibility of public buildings to disabled persons
    (2013-12-17) Chilufya, Mutinta M.
    This research discusses the inaccessibility of public buildings in relation to persons with disabilities. The research identifies inadequacies of these buildings and considers the practical challenges that persons with disabilities are faced with as a result. The research further examines the effect of this inaccessibility on the dignity and right to equality of persons with disabilities as well as their other rights. The research thereafter discusses the contribution that accessible buildings can have on mainstreaming disabled persons in employment, education and health.Through interviews and a case example, the research established that most public buildings in Lusaka are inaccessible, as they were constructed in a way that hinders reaching or using them freely. Despite being intended for use by the general public they do not take into consideration the needs of persons with disabilities. Findings of this research reveal that these buildings lack ramps, handrails, elevators, user friendly restrooms and other facilities necessary for disabled persons to freely use a building. This state of affairs has resulted in disabled persons facing practical challenges (which are degrading at times) when making use of the services offered in such buildings. The research further established that as a result, there have been negative consequences on disabled persons' inherent dignity and right to equality. In addition, inaccessibility has restricted their enjoyment of the rights to independent living, inclusion in society and equality of opportunity.The research considered that making public buildings accessible whether by universal design or reasonable accommodation would contribute greatly to the mainstreaming of persons with disabilities in Zambia. This would afford disabled persons an opportunity to participate in employment, education and health on an equal basis with able-bodied persons. Thereby promoting equality and enhancing dignity.As such the research makes recommendations with the aim of achieving equality and dignity for persons with disabilities through the provision of accessible buildings. There is need to formulate standards of accessibility to be used in conducting extensive country wide access audits on all public buildings. In addition, educating relevant stakeholders on the value of accessible buildings and using tax incentives to motivate property owners to make their buildings accessible.
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    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.
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    The adoption act: how necessary is it in the Zambian customary setting
    (2013-05-16) Muyoyeta, Nalishebo M
    The aim of this research is mainly to examine the provisions of the Adoption Act' in relation to the Zambian customary law. The pluralistic nature of the Zambian legal system renders both statutory and customary law applicable. Statutory law is applicable as a result of the law as was adopted from Britain, the ex colonial power. Customary Law on the other hand comprises of practices and usages of indigenous people. It is also recognized in the Zambian Constitution.^ In the Zambian customary setting, the concept of formal adoption did not exist because of the extended family system which exists in the Zambian culture and takes care of those children who are orphaned. Apart from one's parents, a child regards his aunties and uncles as mother and father and all cousins are considered as brothers and sisters. Traditionally society made room for children whose parents for one reason or another failed to take care of them. What used to happen and still happens to a lesser extent is that those children were immediately placed under the care of relatives. In the event of the death of both parents, the situation was the same in that the surviving relatives took over the responsibility and care of the orphans. It was unheard of for children to be placed in an orphanage just because they had lost both parents. There was always a relative even if remotely related who could take care of the children.
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    Adquate provisions of the law in promotion and management of disability in the workplace
    (2013-04-25) Sisya, Sandra Zelu
    This dissertation seeks to ascertain the adequacy of the law in promoting and managing disability at the workplace. In order to do this, the paper employs primary and secondary methods of data collection including interviews with key staff in relevant organisations. The dissertation considers the subject of occupational health and safety and promotion and management of disability at the workplace in particular, under domestic framework such as the Workers Compensation Fund Control Board and international standards as set by the International Labour Organisation. This research showed that there is an insufficient legal framework and implementation infrastructure to effectively promote and manage disability in the workplace. In fact, though the Workers Board subrogates the responsibility of the employer to compensate, rehabilitate and possibly return-to-work the affected worker, the sums payable as compensation are meagre because they are indexed to the regulating Act which has no regard to variables such as inflation. The dissertation concluded that the domestic law has not fully incorporated the provisions of the international instruments which provide for adequate compensation, rehabilitation and retainment of employees. It also concluded that rehabilitation should include reasonable accommodation of the work environment. In view of these findings the dissertation recommends among other things that managing disability at the workplace should not be left to the discretion of the employer alone. It should be provided for by a minimum standard set by the Occupational Health and Safety Act.
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    The adverse effects of Lacunas on the Zambian legal system
    (2013-09-26) Chisenga, Sydney
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    Aggravated robbery in the Zambian criminal justice system: controlled use of firearms
    (2013-11-29) Nachilima, Patricia
    The regulation of firearms is a pertinent issue in every nation because it hinges on the protection of human life. A nation with uncontrolled use of firearms is prone to have high levels of insecurity. As a result nations, such as Zambia have developed firearm laws which control the use of firearms in that particular State. The Firearms Act, Chapter 110 of the Laws of Zambia regulates firearms in Zambia. This research investigates the role of the firearm licensing procedure prescribed in the Firearms Act, with regard to the controlled use of firearms. This study is important because it coincides with a period of public debate and outrage on the uncontrolled use of firearms, increase in aggravated robbery cases and other related cases in Zambia. There have been newspaper reports and cases concerning shootings and cases of aggravated robberies. This uncontrolled use of firearms has raised concern as to how the Firearms Act aids regulation of firearms. Using desk analysis this research evaluates legislation such as the Firearms Act and the Penal Code; it also evaluates literature such as case law and other documentation. Information relevant to this research was also obtained from interviewing officers at the Zambia Police Headquarters and the Office of the Director of Public Prosecutions. This research finds that the licensing procedure under the Firearms Act does not regulate access of firearms to the public because of the weaknesses in the licensing procedure. This research recommends that the Firearms Act be amended to include stringent measures to control access of firearms to the public.
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    Alternative dispute resolution and its place in the Zambian judicial system
    (2013-10-14) Young, Amelia Pio
    Over the past several decades, there had been a growing interest amongst advocates world-wide, in the use of alternative dispute resolution (ADR) techniques to resolve their clients' disputes more economically and efficiently. In the face of bottlenecks and backlogs in the court systems, as well as spiralling costs and fees, courts and members of the legal fraternity have been part of the movement seeking means other than litigation for resolving disputes.The development of more flexible means of resolving disputes in the form of ADR techniques has therefore gained increasing popularity, and the Zambian legal system is no exception. Certainly, the advantages to be gained by the implementation of ADR in the Zambian legal system provide enormous potential and as such, ADR has not gone unnoticed in Zambia.In the past year alone, tremendous reforms have been made in the Zambian legal system, and a study on ADR is therefore most timely in this context.This paper seeks to introduce to the reader, the concept of ADR and its implications in the Zambian context. In our first chapter, gives a brief overview of the problems faced by the court systems today and the need for alternatives to traditional litigation, not only because of congestion in the court systems or because of the need to save time and money, but more importantly, because of the many advantages that ADR processes bring to the disputants. We also provide a basic introduction to ADR, giving a bird's eye view of the various processes and techniques in the resolution of disputes, and highlighting the importance of ADR processes to any judicial system.We trace the history of ADR in general, and the historical development of ADR in Zambia in our second Chapter, giving an account of the genesis of the ADR movement and the current importance and status of ADR mechanisms. The importance and relevance of the historical background to this study is that it gives the reader who is new to ADR an idea of the speed and impetus with which the ADR movement has grown in recent times. This is an important aspect in that it creates a setting in which ADR has become an important and topical subject, of particular interest not only to lawyers in Zambia today, but more importantly, to the law students - the future generations of lawyers who will undoubtedly come across these processes in the not-too-distant future, and will require some idea as to how ADR developed as an important part of any judicial process.Our third Chapter gives a philosophical analysis of the various underlying factors that need to be considered in examining ADR processes. It highlights the basic underlying conceptual ideologies behind each process, and relates these concepts to the manner in which the lawyer and the client relate within the ADR environment. This is an important Chapter in that it creates a philosophical backdrop that conduces to the understanding of ADR processes and lays the foundation for the practical application of these processes. Further, it elucidates the broad approaches to ADR processes, pointing out how the basic underlying concepts impact upon the various players in the ADR system.Chapter four goes into the specifics of ADR Processes. It discusses the Primary ADR Processes and their practical application, as well as the Hybrid Processes. The major ADR processes, namely, arbitration, mediation and negotiation, are compared with traditional litigation, and described along with their advantages and disadvantages. An important section in this chapter relates to the current status of ADR processes in Zambia, detailing the major developments in recent years. The law stated is as at May 2000.Our fifth and final Chapter draws on previous chapters to highlight the importance and the necessity for ADR in Zambia, in order to make recommendations in terms of the institutional and legal framework for the implementation of ADR in Zambia
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    Analysis and advice on the legal effect of the Cotonou agreement on the Zambia Public procurement Act
    (2013-05-09) Maimbo, Daniel
    This study sought to generate an understanding and knowledge of issues surrounding the utilisation of European Development Fund (EDF) procurement procedures on funds granted to Zambia by the European Union (EU) under the Cotonou Agreement, at the expense of utilising the Public Procurement (PPA) Act of Zambia. The sample included all the GRZ ministries and agencies that have fundamental role in the initiation, signing and execution of the Cotonou Agreement. The study was conducted using a legal centralist approach. A desk study approach focused on the Agreement and subsequent documents; the Constitution, the PP and the Public Finance (PF) Acts; and judicial precedents. Data was analysed qualitatively. The most significant findings are that, on one hand, utilizing EDF procurement procedures on EDF funded procurements under the Cotonou Agreement is mandatory; on the other hand, all grants to Zambia are public funds on which the PP Act is applicable unless an alternative procurement system has been approved as per the Act. Despite the EDF procedures not being domesticated, they are being applied by the National Authorising Officer (NAO) of the EDF for all EDF funded procurements. There is need to amend the PP Act so as to make it clearer and realistic on what law is applicable for donor funds with mandatory, but distinct procurement rules and procedures. Where necessary, domestication of alternative rules and procedures has to be effected speedily.
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    An analysis of circumstantial evidence in discharging the burden of proof: A critical review of the Zambian Jurisprudence
    (2013-02-20) Chabu, Mercy
    This dissertation consists of the law relating to circumstantial evidence in discharging the burden of proof and has sought to criticize the Zambian jurisprudence in that regard. In order to come up with the contents herein I sought help from the institutions themselves such as the police and the courts and the roles of the aforementioned were established. The law enforcement mechanism such as the police and the courts have a big role to play to avoid convicting innocent people and must work hard in ensuring that justice is seen to be done, because in serious crimes such as murder of which the research is about, it is important to ensure that the right people are brought to justice. The paper is further sci/cd with the task of analy/ing circumstantial evidence because owing to the technicalities of the rules relating to circumstantial evidence innocent people arc frequently convicted. The court must therefore ensure that they take extra attention in the evidence that is brought before them before they can convict. The police and the courts must work hand in hand with the courts to establish the truth. It has been stated in this research that convicting someone based on circumstantial evidence alone leads to irreparable damages to the people so convicted because, it is not really established that they committed the offence that they have been charged with, and may face going away to prison for a crime they did not commit. The fact is that circumstantial evidence does not discharge the burden of proof, and since there are no equipments to use to establish the truth in Zambia it is therefore the task of the court to avoid using it to convict a person, especially in murder cases where the punishment is severe and a person may face the death penalty. The research was qualitative and bases on both primary and secondary sources, the former consisted of interviews with the law enforcement officers such as the police and the courts while the latter consisted of the use of books, internet sources and the Constitution of Zambia. In conclusion the study has recommended that with Government's financial assistance adequate and effective measures should be put in place to allow a conviction on circumstantial evidence in Zambia such as is the case in the American and British context as mentioned herein, otherwise until we develop our system to such an extent circumstantial evidence should not be used.
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    An Analysis of Defilement: Role,performance and Efficacy of the Law Enforcement Mechanisms and the Sopport System dealing with the sexual offence
    (2013-04-18) Zulu, Cynthia
    This dissertation was seized with the task of analyzing the offence of defilement in Zambia and generally ascertaining and establishing the structures that address the offence of defilement at the same time, the role, performance and efficacy of these institutions dealing with the sexual offence was established. The institutions that have been looked at are the police, the courts and various Nongovernmental organizations. It had been found that defilement is a very serious crime as witnessed from the importance attached to the fight against the vice. Due to the seriousness of the offence, the law on defilement has been amended to stiffen the penalties for the offence.Despite this amendment, incidences of defilement have continued to be reported as shown by the media, therefore, it has been shown in the research that there are a number of reasons that lead to the perpetration of the offence. All stakeholders and law enforcement agents have a part to play in the fight against defilement, this is so because violence against women and children requires an institutionalized, integrated approach reflecting effective coordination and collaboration between the various stakeholders, such as Nongovernmental organizations and law enforcement agents. Preventive and sensitization programs need to be put in place if the public is to remain aware of the offence. Such programs must be extended to public places as well. Despite a good fight against defilement, the institutions dealing with the offence face a lot of challenges in the fight against defilement, these challenges may be within their internal offices or in the communities. The main object of this research was to establish the roles of the police, the courts and Nongovernmental organizations in the fight against defilement. It was therefore established in this research that the role of these key players is indeed sufficient but these key players have to work hand in hand to be efficacious. In order to arrive at conclusions, the research was qualitative as it was desk research in which secondary data sources such as various legislation, legal commentaries and other publications including obligatory essays that have been written on the topic had been consumed. Primary sources such as conducting interviews with those specialized in sexual offences had also been used. The study therefore recommends that the government should come in and offer the key players in the fight against defilement assistance to enable them perform effectively. This is more so needed by the Victim Support Unit which lacks the much needed equipment and resources to help in investigations. Lack of resources of the unit makes investigations difficult and thus, making the public lose confidence in the police service. It is also recommended that the government should provide more office space to enable victims of defilement have privacy when reporting defilement and telling their story.
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    An analysis of the challenges posed by the lack of binding precedent in international Investment arbitration
    (2013-04-19) Shula, Lwisha
    International investment arbitration lacks a de jure doctrine of precedent, thus creating problems for the disputants and the entire dispute resolution mechanism. This research paper is an analysis of the challenges posed on the arbitral users due to the erratic issuance of awards, without arbitrators having due regard to the growing jurisprudence in the international investment domain. The use of precedent, as evidenced by the common law legal system, creates an atmosphere that is certain, predictable and quint-essentially, consistent. The afore-mentioned attributes are vital to the success of any dispute resolution system. This research paper is based predominantly on 'black letter' law. Therefore, the information contained herein was collected through the perusal of documents, which includes books, articles, legal papers and dissertations in the domain of international investment arbitration. The researcher further administered interviews to experts in arbitration and investment law. This paper has established that the lack of binding precedent, primarily and most decisively, accounts for the numerous conflicting decisions in international investment arbitration. An analysis of various decisions of the International Centre for the Settlement of Investment Disputes (ICSID) tribunals, such as that of CMS Gas v. Argentina and LG&E Energy Corporation v. Argentine Republic showed the various issues that arise from the issuance of contradictory awards. Second, the paper has established that the lack of precedent entails that subsequent tribunals re-enforce errors of law and fact in their decision making process. Third, the entire arbitral system is susceptible to challenges from third parties, to a greater degree than other dispute resolution bodies that have binding precedent. Finally, the role of ICSID is arguably skewed, as ICSID places itself as a guarantor of justice for investors, thereby leaving the States parties wary of its role in the administering of just awards. The principal recommendation in this paper is the introduction of binding precedent in international investment arbitration, that is, the use of arbitral precedent properly so-called. Other recommendations include; the creation of customary international law and the creation of an appellate system. Finally, it is essential to establish a multilateral system in contrast to the bilateral manner in which investment treaties are structured, such as that obtaining in the WTO/GATT system. The above recommendations will essentially give the system credence and save it from becoming defunct.
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    An analysis of the change of the legal regime governing the large scale mining sector
    (2013-05-16) Musopelo, Chilongoshi
    Throughout Zambia's history, Large scale mining has played a pivotal role in helping the country achieve its economic and social development aspirations. It is against this background that the legislature passed the Mines and Minerals Development Act, which effectively changed the legal regime governing the large scale mining sector, and gave rise to a number of issues, particularly with respect to the cancellation of the Development Agreements entered into between the government and mining companies under the repealed Mines and Minerals Act. This work analyses some of the issues that have arisen as a result of the change in the legal regime governing the large scale mining sector. The paper begins with an overview of the policy considerations that motivated the change in the legal regime governing the large scale mining sector, and briefly discusses the legal framework of the sector. The paper then examines the legal basis of the controversial Development Agreements that were entered into under the Old legal regime. It further examines the legal consequences of the cancellation of these agreements under the New legal regime. It also explores the nature of mining rights granted under Zambian legislation, and in doing so, assesses whether these rights have sufficient protection under Zambian law. The paper then considers the possible effects of the change in the legal regime governing the large scale mining sector, on future investment in the sector. The paper concludes with the author's observations and recommendations in the perspective of the issues discussed in the paper.
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