Law

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Adequacy of copyright law in the fight against piracy in Zambia
(2013-10-29) Mbewe, Mwape
The administration and enforcement of Road Safety Laws in Zambia
(2013-10-18) Mwansa, Kasumpa
Agricultural financing in Zambia : with particular emphasis on the legal framework
(2012-10-30) Munalula, Margaret Mulela
This thesis attempts to evaluate the legal framework for the provision of agricultural finance in Zambia. The post-independence era has witnessed a decline in resources from the mining sector and this has led to an effort by the Government to find ways to diversify the economy, in part through the promotion of agriculture. This has led to the government playing a greater role in the provision of agricultural credit to all categories of farmers. Agricultural credit has been channeled through specialized agricultural credit institutions in which the government has controlling shares. The legal framework of these institutions accounts, in part, for their inability to fulfill the role that they were intended to play. This legal framework and performance of these institutions is critically examined in the context of law in the development process.The thesis is divided into six chapters. Chapter One is an introduction to the subject at hand i.e. agriculture and credit, the role of the peasant farmer, and the role of the law in facilitating agricultural financing. Chapter two is a historical account of the agricultural credit system in Northern Rhodesia which provided the base upon which the existing system was built. Chapter three looks at Government policy and the legal provisions regarding credit from the time of Independence to date.The institutional framework which is presented in Chapter four covers all the institutions both before and after Independence.Chapter five is a critical review of the provision of agricultural credit in Zambia. It covers law and policy, the performance of the institutions, and comes to the conclusion it has stagnated for many reasons; not the least of which is the provision of inadequate and ineffective agricultural credit institutions and facilities. Chapter six is the concluding chapter and contains proposals for reform of the system of agricultural credit in Zambia.
Aids in Zambia: Challenges to human rights
(2015-05-11) Mvunga, Khandikile P
Analysing the legal standard of defamatory conduct during national elections in Zambia
(2013-11-29) Ngaba, Chapatama
Journalists generally face a number of challenges in their reporting during the period of national elections. This comes as a result of their duty to afford the public the best means of discovering and forming an opinion of the ideas and attitudes of Political Leaders vying for the various positions as well as their obligation to balance this amongst protecting the reputation of these candidates.This research has undertaken the task of looking into how much leverage journalists should be given in their reporting of election candidates. Particular attention will be paid to the historical perspective, looking at how the courts have dealt with defamation cases during elections in all three republics and their consideration of press freedom. Looking at this will as well necessitate a critical analysis of our current defamation laws and whether they are in touch with the reality on the ground during election period. Suggestions such as amendments to the Defamation Act and/or the Electoral Code of Conduct in respect to the media as a way curb this poblem.Furthermore, amongst the issues of great importance will be the amount of regulation that must be imposed on the media and just how far into the lives of candidates they should be allowed to explore. To achieve this, a comparative study with the United States, England and Australia has be made to see how much clout the courts have given the media. A questioner was also distributed among key informants so as to obtain their views around key topics concerning this research.It is recommended that greater latitude needs to be extended towards these statements made during elections, than at any other time. This has not been the case in Zambia with the result that cases of defamation have been on the rise during election periods.
An analysis of Child related Legislation in Zambia
(2013-04-15) Mukelabai, Mubita
The Analysis of Child related legislation in Zambia aims at identifying the gaps existing in the Zambian legislation dealing with the protection of children's rights in view of the contemporary legal provisions enumerated in international instruments such as the Convention on the Rights of the Child(CRC) and the African Charter on the Rights and Welfare of the child(ACRWC). It is therefore envisaged that the research will help document some of the existing gaps and shortcomings so as to provide the basis for advocating for the enactment of a more modern and just legal framework which will help in addressing, in a more meaningful way, the contemporary concerns related to the protection of the child's rights. The research starts by giving a background to the study and analyzing the statement of the problem as well as the rationale of the study. The second chapter discusses the constitutional issues affecting the rights the children, as contained in the current constitution of Zambia. These rights are analyzed in view of the protective provisions of the CRC and the ACRWC as well as constitutions of other modern democratic states like that of the Republic of South Africa. The Third Chapter is an analysis of the Juveniles Act of Zambia, with the view of identifying areas which do not adequately provide for the protection of the rights of juvenile offenders as required by international instruments dealing with protection of Juvenile delinquents. The fourth Chapter is an analysis of the Legitimacy Act and emphasis the need to harmonize the various provisions of the Act in order to bring it in line with contemporary developments in the law of inheritance and succession. The emphasis here is that the law no longer distinguishes between the rights of legitimate and illegitimate children and that the concept of illegitimacy has since been done away with both at common law and the Zambian national laws dealing with succession and inheritance. In the fifth chapter, the law relating to the adoption of children in Zambia is analyzed in the context of the principles outlined in the CRC which require state parties which permit the system of adoption should ensure that the best interest of the child is given paramount consideration in all matters affecting the child. The research is completed by a summary, conclusion and recommendations in chapter six. The recommendations have focused more on the gaps found in the statutes that have been reviewed and the proposals to address them.
An Analysis of How The Current Status of forensic Science Affects the Administration of Criminal Justice in Zambia
(2013-02-21) Chilikwela, Vanessa K
Where there is law, there is crime; but there is no perfect crime. The existence of obligations of citizens in society and sanctions for the disobedience embodied in statutes are meaningless if the Courts cannot sufficiently uphold and ensure conformity to them. As an organ of the state, the Judiciary in particular the courts have the key function of administering justice. In administering justice, the Court relies upon the evidence presented before it; evidence which can be obtained through various means. One way in which evidence that is presented before the courts is obtained is through the use of forensic science. It is the focus of the research to highlight the important dual relationship that exists between forensic science and the administration of criminal justice. The main question investigated by the research was whether the current status of forensic science has affected the administration of forensic science in Zambia, and if so, to what extent. Detailed consideration was made of the concept of forensic science as well as the key components of the Criminal Justice System. Further, the research highlighted the uses of forensic science in the criminal justice system before analysing the current status of forensic science in Zambia.The research concluded that the important role that forensic science plays in administration of criminal justice cannot be ignored. Forensic science in Zambia has developed at a marginal rate in comparison to jurisdictions such as the US and UK and although this can be attributed to the later introduction of forensic science in Zambia, the current status of forensic science has had both positive and negative effects on the administration of criminal justice. It has affected the administration of criminal justice to a lesser extent though there is an urgent need to improve the current status of forensic science in order to improve the efficiency and quality of criminal justice administered by the courts.
An analysis of legislation on corporate criminalisation and criminal sanctions in Zambia
(The University of Zambia, 2019) Bwalya, Jennipher
The study investigated the current corporate criminal liability legal system in Zambia to analyse its effectiveness in serving as a deterrent instead of a conduit pipe for corporate crime. The current legislation recognises corporations as capable of committing criminal offences. However, these provisions appear to be more biased towards individual than corporate responsibility. The legislation make it easier to establish individual criminal liability than corporate criminal liability. As a result, the criminal justice players have faced numerous challenges in fighting corporate crime and deterring would be corporate offenders. The overall objective of the study was to investigate the adequacy of corporate criminal liability laws in curbing corporate crime in Zambia. The specific objectives were to assess the strengths and weaknesses of corporate criminal liability laws in Zambia; determine the extent to which corporate criminal liability laws hold the corporate entity accountable; determine the extent to which shareholder, creditors and directors of a corporate entity liable to punishment are protected in their individual rights and how the corporation is protected from individual criminals; and to highlight domestic and international best practices favourable to the effective administration of corporate criminal liability. The study used mixed methods of research encompassing doctrinal where both primary and secondary data were used; social legal where the legal concept of and legislation on corporate criminal liability was considered in the social context by looking at its implications; and qualitative methods used enabled the analysis of the data collected by transcribing it into the major themes which emerged. The study also used interviews and the data collected by this method was analysed by use of interpretative techniques. The study found that corporate criminal liability is recognised in Zambia that its recognition is based on the fiction theory of corporate personality hence the derivative models of corporate criminal liability being the identification model with traces of the vicarious liability model. It found that there is a general inadequacy of capacity building for the criminal justice system and that this coupled with the limited corporate sentencing base make the overall corporate criminal liability law less efficient in holding corporate criminals sufficiently accountable for their crimes. The study also found that the shareholders, creditors and directors are not protected under law as the primary sentence of a fine on a corporation is ultimately borne by the shareholders and creditors who have little or no control over corporate activities. It fund that where statutory provisions provide for the sentence of imprisonment in addition to the fine, the prison term is served by the director of the corporation unless he raises due diligence defence, for which the law does not provide procedure. The study concluded that the existing corporate criminal liability laws are inadequate to curb corporate crime and deter would be corporate offenders. This study recommends, among others, for the enhancement of corporate criminal liability by including corporate culture as a basis for corporate liability. It recommends the outlining of clear procedures on treatment of corporate criminals and enactment of specific offences‟ legislation targeted at the corporate form and the expansion of the corporate sentencing base to discourage recidivism and promote the deterrence purpose of punishment. Keywords: Corporate liability, corporate crime, legislation, criminal sanctions.
An analysis of the Effect of Patents on the right to health in Developing Countries: a case Study of Zambia
(2013-03-15) Kabalu, Chishiba
Several scholars have agreed that a forceful patent system providing for adequate patent protection is an indispensable incentive to creative and inventive work. Such a system becomes crucial to establishing and maintaining an attractive commercial environment. An adequate patent system, effectively administered, ultimately stimulates domestic innovation, fosters new industries and creates jobs and therefore facilitates countries' development. Various theories have therefore been developed to support why the patenting of inventions is important to the sustained development of any given country. However, it is arguable the extent to which these patents are necessary, especially with regard to the pharmaceutical sector.This research examines the challenges that result from the grant of patents. It examines the relationship between patents and human rights in general, where it discusses the arguments brought forward for the support of patents. It thereafter discusses the right to health in relation to other rights and intellectual property rights. It then discusses the issues which arise from such grants that affect developing countries. Afterwards, specific aspects of this problem are analysed, using Zambian as a case study. Finally a conclusions is drawn and recommendations given on how to address the issues that arise from the discussion.
An analysis of the impact of nationalism on the rights of dual citizens in Zambia: an equality approach
(The University of Zambia, 2019) Shubayi, Chatora
Zambia’s Constitution (Amendment) Act, No. 2 of 2016 provides rights and places duties upon the status of citizenship. Equality and non- discrimination are recognized as national values used to interpret the Constitution and in the enactment of laws. Nevertheless, the Constitution seemingly discriminates against citizens with ‘Dual Citizenship’, from eligibility to serve in public office such as the President, Vice President, National Assembly Speaker, and service under the Defense and National Security agencies. This demonstrates conflict of policy objectives underlying national values and the prohibitive clauses. For liberalists, this derogates from citizenship rights, because despite recognizing equality and non- discrimination, ‘Dual Citizenship’ is a status viewed as challenging to communitarian notions of nationalism. Underpinned by a doctrinal approach carried out through desk research and thematic analysis of the sources of the material, this study ascertains how nationalism impacts on dual citizen’s rights, and whether justifications exist, in light of principles of equality and nondiscrimination, among citizens. This study also interrogates the consequences of the said impact on the state and citizen, and what lessons could be learnt from other jurisdictions. The study revealed that notions of nationalism limit citizenship rights relating to political participation and equality of opportunity. The loyalty justification for the restrictions remains questionable, because reviewed studies do not reveal consensus that loyalty to a specific political state is the precondition for office holders. Furthermore, legislative provision for the limitations does not make them justifiable in a democratic society, as discriminatory practices are challengeable, even when legal. For differential treatment to be discriminatory, it should lack reasonable justification. A difference in enjoyment of citizenship rights was established despite the Constitution not distinguishing in its definition of ‘citizen’. The study argues that the absence of conclusive data from studies on ‘divided allegiances’ makes the restrictions unreasonably justifiable treatment as the discrimination proves unfair, due to its impact on the victims. Adverse economic, social and political consequences of this for the state and the citizen are numerous. Conversely, the United Kingdom places no distinction in the nature of British citizenship that qualifies for office of Prime Minister. The United Kingdom extends its liberal approach to non-British citizens, particularly, Irish and Commonwealth citizens, including eligibility to join British armed forces. Nigeria is also progressive as ‘Dual Citizenship’ is no disqualification for high level public office for citizens by birth. This study recommends legislative reforms to eliminate citizenship inequality by narrowing restrictions premised on perceived divided loyalties. These include: requiring dual citizens in public office to declare conflict of interest in specific situations, executing bilateral or multilateral agreements confining dual citizens’ military service to countries of habitual residence and enlisting army personnel on professional basis than imputing loyalty associated with citizenship. The impact of the findings and recommendations on the study is that they provide a basis upon which the study can inform the need for reform both in policy and the law. Keywords: Citizenship, ‘Dual Citizenship’, Nationalism, Equality and Non-discrimination
An Analysis of the law Relating to Contempt of Court and the Discretionary powers of Judges: The Zambian Experience
(2013-04-15) Mulenga, Chishimba Yvette
It is of great importance to ensure that the courts of law, in their dispensation of justice, are respected and their dignity and integrity maintained. Thus, there is need for the existence of laws put in place for this particular purpose. This law regulates what has come to be known as matters of contempt of court. This paper is set out to analyse the law relating to contempt of court and the discretionary powers of judges in Zambia. It was largely achieved by desk research even though in certain instances, some field research was conducted. The findings of this research were that it is not debatable that issues of contempt of court form part of the basis of the law in Zambia. However, even though the reason for the existence of this law is to protect the integrity of the courts and their officers, it is sometimes used against the principles of natural justice in that even though it is trite law that a person should only be punished after they have been given a chance to be heard, the law of contempt of court does not really accord with this principle. In fact, in Zambia, the law governing contempt of court has many flaws and this is principally because of its nature which places too much power in the hands of judges, thereby raising the chances of the same power being abused. It is the judges who identify the grounds of complaint, select the witnesses, investigate what the witnesses have to say, decide on the guilt or otherwise of the accused and pronounce the sentence. As such, the paper recommends that the law on contempt of court be adopted by judges only when there is need. There should also be strict adherence to the procedures set out in the existing laws and defences made available to contemnors.
An analysis of the legal status of refugees in Zambia
(2013-10-18) Mbewe, Nsenduluka Cecilia
An analysis of the movement for multiparty democracy government's efforts to enhance democracy at the local government level
(2013-10-10) Folotiya, Thandiwe
In 1991, the international community regarded Zambia as a champion of democracy after her peaceful transition from a one-party to a multi-party state. Sadly, the government's zeal for democracy is slowly being eroded by greed, corruption and intolerance, and the development of the nation envisaged as a result of democracy is taking longer to achieve.This directed research studies the decentralisation of the local government system in Zambia because I believe that the development of an efficient, transparent, accountable and participative local government will help develop and enhance democracy in Zambia. To build a democratic culture, the people must be educated on their civic duties and their important role of participating in the democratic process.The aim of this directed research is to show the reader that central government, despite its initiatives to decentralise local government, still has considerable control over local government. It is up to Zambian citizens to influence changes to the system in order for them to reap from the development arising from the effective democratic decentralisation of local government.
An analysis of the prevalence of defilement cases in Zambia
(2013-11-29) Chiwaula, Chinunda
Defilement is highly prevalent in Zambia as evidenced by widespread reports on the vice in recent years. In view of this fact, the law on defilement seeks to protect the plight of young children in society to ensure they grow into responsible citizens and contribute meaningfully to national development.This research analyses the cause of the high prevalence of defilement cases in Zambia. The research will analyse information collected from both primary and secondary sources. Primary sources comprise interviews with people from leading institutions involved in the fight against defilement such as Victim Support Unit (VSU) and Civil Society Organisations (CSOs) involved in the fight against defilement such as the Young Women Christian Association (YWCA) and the National Legal Aid Clinic for Women (NLACW). Secondary sources will include journals, books, statutes, newspaper articles and internet sources. The research will analyse section 138 of the Penal Code and show that the law on defilement in its current form is inadequate to address the high prevalence of defilement. The research will also demonstrate the complexity of the requirement of corroboration in defilement cases and the negative impact it has on the prevalence of defilement.The research will also analyse the performance of the VSU and show that this institution can be effective in eradicating the high prevalence of defilement if the challenges the institution continues to face can be addressed. Further, the research will further show that the awareness campaign messages on defilement do not address the possible causes of defilement and this is partly responsible for the high prevalence of defilement cases in Zambia. The research recommended that the proviso in section 138 of the Penal Code which provides a defence for the accused if he or she had reasonable cause to believe and did in fact believe that the accused was of or above the age of sixteen years be removed as it has a negative bearing on the fight against defilement among others.
An analysis of the role of, the performance of and the challenges faced by the surbordinate Courts in the administration of criminal Justice in Zambia
(2013-10-29) Nyeleti, Lawrence
Applicability of compulsory license under the Zambian Patent law
(2013-10-29) Mwalongo, Buchisa K.
This research is about applicability of compulsory license at the local and international plane. A compulsory license is a mechanism governments use to grant licenses to third parties to exploit an invention. This type of license is granted either by an administrative authority or judicial body. This type of license is granted without the consent of the patent holder. It is also a means of technological transfer of intellectual property rights.Under the current Zambian patent law regulating compulsory licenses, adequate compensation is not provided for. This may lead to stifling of the advancement of science and technology which is the bedrock of wealth creation. The research will make comparisons of the applicability of compulsory license with other jurisdictions. It will also look at the applicability of compulsory license according to Article 31 of the TRIPS Agreement.Lastly, this paper will also make recommendations about the changes to be made to the current patent legislation in order to include the provisions contained in article 31 of the TRIPS Agreement.
Aspects of environmental Health in Zambia: A case study of water and sanitation as human rights
(2013-10-07) Nyalungwe, Nyampachila Gina
Provision of clean water and access to healthy sanitary systems are critical aspects of environmental health. In view of the Current Constitution of Zambia it is clear that these services are viewed as mere policy directives. However Economic Social and Cultural Rights should not be viewed as mere policy directives. It is a truism to note that they are human rights. Therefore, the extent of their efficacy can only be ascertained when the rights in question are enshrined in the Constitution in an explicit manner. This would mean that Government would be accountable to the citizens in a positive manner. It will be obliged to implement services that will enable the citizens to access clean water and sanitary systems at an affordable price and without any hinderances. It follows therefore that the current absence of environmental rights in the Constitution and non-enforceable character of Economic Social and Cultural Rights, renders their realization impracticableIn view of the fore-going, it is clear that the relevance of the rights contained in the Directive Principles of State Policy leaves much to be desired. It is hoped that Government would change its stance on inclusion of Economic Social and Cultural Rights in The Constitution by allowing for a Referendum Process to facilitate the amendment of the Bill of Rights. One of the basic values of all free and open societies is the recognition and protection of citizens' human rights. Provision of water and sanitation and access thereto are critical aspects of the citizens' health and well being. These will be far from attainable if they are not regarded as human rights.
Assessing the Effectiveness of Anti-Corruption Laws in Zambia
(2013-03-15) Musonda, William Chewe
The assessment and impact of the lands tribunal in resolving land disputes under the new legislative framework
(2015-10-05) 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.
The Award and assessment of Damages in Defamation cases: a Zambian Legal perspective
(2013-03-15) Mulawo, Mwaba
this essay considers the current position of the law of defamation in Zambia. The paper considers the fact the courts in Zambia mostly rely on common law when it comes to the law of defamation as the statute which regulates defamation is not very comprehensive. It is an attempt to establish whether the courts in Zambia have appreciated the core principles underlying the law if defamation. It is very evident from the Zambian jurisprudence that the courts have appreciated tie core principles underlying the law of defamation. The research revealed that despite the fact that the courts have appreciated the principles underpinning the law of defamation the defamation act is not comprehensive. It is therefore recommended that the Act should be viewed to make it more comprehensive. Additionally, the courts may be faced with some difficulties when the law of defamation comes into conflict with the right to freedom of expression bearing in mind that the Constitution guarantees the right to freedom of expression. In this instance, the courts have a duty of balancing the interest of an individual on the one hand to express him or herself freely and the interest of the other individual not to have their reputation ruined. It is argued that the court should not give unnecessary weight to any of the two conflicting interests. In other words, the ourt has to treat the two interests with equal importance. In trying to balance the two interests, le Zambian courts have held that the right to freedom of expression is not absolute. This ^search has revealed that if in the course of exercising your right to freedom of expression you injure someone's reputation, then liability will arise. This is because freedom of expression is not synonymous with the right to defame others.However, the paper also revealed that the Zambian courts tend to favour the view that it is only exceptional circumstances that public interest immunity will be claimed as regards public figures. However, it is recommended that in the interest of making those who hold public offices accountable, public interest immunity claims should only fail if the publisher had malice when e published the article. It is light of this fact that the paper examines the current position of the law of defamation in Zambia with a view of improving the situation.

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