Law
Permanent URI for this collection
Browse
Recent Submissions
Now showing 1 - 5 of 279
- ItemJurisdiction and institutional framework of the constitutional court of Zambia.(The University of Zambia, 2019) Kawandami, Annie MusondaThe newly established Constitutional Court of Zambia is expected to play the pivotal roles of interpreting, protecting and defending the Zambian Constitution. To do this, the Court requires appropriate jurisdiction and an adequate institutional framework. Thus, the purpose of this study was to assess the Court’s jurisdiction and institutional framework in order to determine its probable efficacy. More specifically, the study examined the Court’s original and appellate jurisdiction as conferred by Article 128 (1) of the amended Constitution of Zambia. The study undertook a qualitative and triangulatory research paradigm because a study of this nature requires detailed descriptions and prose which a quantitative study could not provide. Both primary and secondary data were collected in order to add knowledge to the subject. The primary data was collected from legislation, case law and interviews. The secondary data from books, journals and peer reviewed articles among others, provided support for primary sources, ground for comparison, gauging and defining the topic which was in a novel area of constitutional law in Zambia. Regarding the jurisdiction of the Court, the study found that original and appellate jurisdictions of the Court are necessary for it to effectively carry out its mandate. The powers under the Court’s original jurisdiction would allow it to function as a specialised Court, solely dedicated to adjudicating over matters arising from the Constitution. On the other hand, its appellate powers would enable it to effectively hear those matters which would overwhelm the Court’s docket if heard originally. Further, on the subject of jurisdiction, the study noted that wide though its powers; it is excluded from hearing matters under the Bill of Rights which forms a fundamental part of the Zambian Constitution. This is because Zambia has had an entrenched Bill of Rights since 1991 which can only be amended using a referendum. According to Article 28 (1) and (2) of the said Constitution, all matters arising under the Bill of Rights are a preserve of the High Court of Zambia with appellate jurisdiction vested in the Supreme Court of Zambia. The study seeks to demonstrate that the Constitutional Court will have complete jurisdiction over the Zambian Constitution only if the necessary constitutional amendments are made to allow the Court to hear matters arising from the Bill of Rights.About the Court’s institutional framework, the study found that the position of the Constitutional Court and the Supreme Court as apex courts in the hierarchy of the Zambian judicial system, may lead to delineation problems. The study therefore recommends that the Constitutional Court be the highest court in Zambia to be headed by the Chief Justice and the Deputy Chief Justice to be included as a member of the Court. Further research about the Constitutional Court may explore whether persons, institutions and authorities will comply with the Court’s decisions as this is key to determine its success in the role of interpreting, protecting and defending the Zambian Constitution.
- ItemThe industrial relations court in Zambia from 1971 to 2017: a study of the evolution of an institution of industrial relations(University of Zambia, 2020) Nyundo, StevenLabour courts fulfill important functions for the justice system of a country. In the post Second World War, scholars and jurists advanced different reasons why industrial relations matters should be removed from being heard by the ordinary courts of law and be transferred to specialized institutions, such as, labour courts and industrial tribunals. Similarly, in Zambia the Industrial Relations Court (IRC), now a division of the High Court following the Constitution Amendment of 2016, was established in 1971 as an institution to resolve industrial relations matters or cases in a simpler, speedier, cheaper and informal manner. This study is about the evolution of the IRC as an institution of industrial relations in Zambia. Emphasis is on the composition and jurisdiction of the IRC which has evolved overtime. In this study, mixed methods research approach was used. Doctrinal legal research method was applied and secondary data was collected from journal articles and books on industrial relations. In addition, primary data was collected from stakeholders, such as trade unions, employers‟ organisations and government institutions using interviews and questionnaires. Content analysis was used to analyse the primary data (qualitative). This study has established that the tripartite composition of the Court in Zambia was consistent from its inception in 1971 to 2016. However, under the Constitution of Zambia (Amendment) Act of 2016 the composition of the Court is unipartite. With regard to jurisdiction, like many countries of the world, the IRC in Zambia generally addresses matters within the scope of worker- employer relations. Further, it has been observed that the Court has had positive impact on industrial relations matters. For example, the Court can intervene and enforce decisions on management which appear reluctant to attend to employees‟ reasonable demands. In addition, the Court cannot be restrained from going behind reasons advanced for termination of employment in order to redress any real injustices discovered. On the basis of the findings of this study, it is recommended that the tripartite composition of the Court be reinstated; the judges of the IRC as a division of the High Court be exempted from the requirement to sit robed when hearing cases; that legislation be enacted to prescribe the jurisdiction, powers and sittings of the IRC in conformity with the provisions of Article 120(3)(b) of the Constitution of Zambia (Amendment) Act, 2016. In line with the practice in other countries the Zambian government may consider establishing an Employment Appeal Court (EAC) with exclusive jurisdiction to hear appeals from the IRC on questions of law or mixed law and fact. Key words: Industrial relations, institution, evolution, tripartite, unipartite
- ItemAn analysis of the impact of nationalism on the rights of dual citizens in Zambia: an equality approach(The University of Zambia, 2019) Shubayi, ChatoraZambia’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
- ItemAn evaluation of policy and legislative framework on Investment expropriation in Zambia against International Instruments(University of Zambia, 2019) Mulwanda, SaraThis research examines the policy and legislative framework on investment expropriation in Zambia, against international law instruments. It outlines the investment policy and law on investment expropriation at the international, regional and national levels. Finally, this research identifies the gaps in the expropriation policy and legislation in Zambia in relation to international investment law instruments and assesses whether the policy and law benefit both the Zambian citizens and investors. The main question investigated in this research was whether the investment expropriation policy and law in Zambia contains any gaps, and to determine the extent to which these gaps could be sealed in order for the policy and law to have tangible benefits to the Zambians. The research employed a social legal approach to analyse the policy and legislative framework on investment expropriation in Zambia. The methods of data collection were triangulated between secondary and primary data collection methods, as a way of broadening the scope of investigation. Secondary data collection included consultations of a wide range of documents. Sources of data included United Nations General Assembly Resolutions and Instruments, Articles from journals, books, internet materials and so on. Primary data included administration of an interview guides to a cross section of Respondents. The Respondents were purposively selected based on their expertise. Interviews were both formal and guided by interview guides. Formal interviews were tape recorded and later transcribed and analysed, using thematic analysis techniques. The main findings of this research are as follows: (a) the Zambian policy on investment expropriation is not in line with international investment expropriation policy. On the other hand, the legislative framework reviewed is in line with international investment expropriation law save for the Mines and Minerals Development which has no provision on investment expropriation; (b) secondly, the policy on investment expropriation as contained in the 7NDP,RSNDP and MRD Policy are too broad and addresses investment in general, thereby creating gaps; and (c) thirdly, the law as contained in the Zambia Development Agency, Mining and, Land acquisition are not comprehensive enough to achieve the objectives set under international law, thus creating gaps between international law expectations and national law and further that it does not differentiate between the two opposing concepts of expropriation and regulation. The research notes that investment policy and legislation in Zambia on expropriation is inadequate though some of the key policy considerations and principles of international investment law appears to have been domesticated to a certain extent. The research recommends that there is need for government to come up with a comprehensive investment policy and law on expropriation that takes into account Zambian history and capacity as a nation, as well as differentiating between the two opposing concepts of expropriation and regulation. KEY WORDS: Compensation, expropriation, investment, public interest, regulation.
- ItemAn evaluation of social security legislation and policy in Zambia against international legal instruments(The University of Zambia, 2019) Mulenga, Nancy CheweZambia’s social security system is comprised of contributory and non-contributory social protection programmes, the former requires contribution from both the employer and the employee while the latter is tax financed administered by the Ministry of Community Development and Social Services. Social protection is therefore provided through social insurance and social assistance which requires means testing to determine eligibility. The study evaluated the social security legislation and policy in Zambia against international instruments on social security, particularly Convention 102 (1952) of the International Labour Organisation (ILO). The evaluation was important in order to determine whether the national legislation is in line with international instruments which allude to social security as a fundamental human right to which every human being is entitled. The main objective of the study was to determine the adequacy of the law in providing social security in line with international instruments. The specific objectives were to determine the adequacy of the law on social security in Zambia and establish whether Zambia is ready to ratify Convention 102 and the benefits of ratification thereof. The study was doctrinal as it heavily relied on ‘black-letter’ law to approach, explain and understand the law on social security. The research relied on both primary and secondary sources of information and conducted unstructured interviews with key informants who were purposively selected in order to get more insights on the subject. The study found that, despite Zambia being a member State of the Universal Declaration of Human Rights and ratifying the International Covenant on Economic, Social and Cultural Rights it has to date not ratified Convention 102 which provides for international standards for social security systems. Convention 102 contains flexibility clauses which make it relevant to all its members regardless of national economic development status. It was also established that, despite the non ratification of Convention 102, Zambia’s social security legislation provides coverage for four contingencies out of the five that the ILO recommends a ratifying State to endeavor to provide cover for its citizens. The four contingencies covered are; old age, invalidity, survivor’s benefits and employment injury benefits. It was established that, ratification of Convention 102 would send a clear message of the commitment of the Government to develop social security. The study has thus, emphasised the need to ratify Convention 102 as this will help the country to progressively provide coverage for a those contingencies that are currently not covered by legislation and also progressively increase the population to be covered. The country has further not adopted a national social security policy but relies on the broad social protection policy; this has contributed to the lack of reform on social security law and its institutions. It is therefore recommended that, Institutions should be reformed and the law redrawn and broadened, this is needed in order to align the law on social security to prevailing international standards and best international practices. The study recommends that the failed referendum that sought to include Economic, Social and Cultural rights in the Bill of Rights be revisited and that there is need to come up with a law to govern and regulate social assistance schemes. Key words: Social security, legislation, economic, international.