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MULUNGUSHI UNIVERSITY
SCHOOL OF BUSINESS
NAME DANIEL MWEWA

STUDENT NUMBER 202402980
COURSE NAME LEGAL PROCESS
COURSE CODE BLL 111
PROGRAM BACHELOR OF LAWS
LECTURER YUMA ZACKS
QUESTION: Chifuchi Malasa was born and bred in chitokoloki in the

Zambezi district to the Republican of Zambiain199 His uncle captain katoti
who works for the Zambia Air Force and based in Mbala District of the
Northern province got him to his bases on that he may been rolled in the
Zambia Air Force whilst in Mbala he developed a relationship with
Ivwananji such that one evening he eloped with her and according to
namwanga tradition that was the genesis of a matrimonial union. Captain
katoti is perplexed and wonders as to what comprises the traits of native
namwanga dialect as a consequence. He village elders brought an action
against Chifuchi to the effect that he deflowered Ivwananji. The court so
flaw declined to follow the native occurrences because there was no
tangible evidence. With authorities where applicable, give an opinion on
the traits and proof of the native namwanga dialect and why the
adjudicators declined to observe the namwanga way of handling their
daily occurrences in society.
This legal essay will define customary law and proofs of the namwanga
occurrences in society, it shall also discuss about requisites of customary
and the court declined from following the namwanga tradition beliefs and
customs.
By definition, customary laws customs, beliefs and traditions accepted by

the society as binding upon them. Furthermore, customary law can be
considered legally binding if it has the following four requisites; customary
if it is reasonable, the reasonableness of customary law is a nuanced
process that requires a balanced consideration of cultural sensitivity,
human rights and legal principles. Striking a balance between respecting
cultural diversity and safeguarding fundamental rights is a critical aspect
of this evaluation.
More to the above, long established is also one of the requisites

considered for customary law to be legally binding. The concept of long
establishment of the customary laws refers to traditional practices that
developed within a particular community over an extended period of time.
It is rooted in the customs and tradition of a specific culture or society.
The customary laws are considered as binding and authoritative within the
community where they are practiced. The longevity and stability of
customary law contribute to its authority and acceptance within the
community.
In addition to the above, customary must be certain. Certainty is an

important requisite of customary law. Certainty in customary law means
that the rules and practiced are well defined, clear and predicable. A
customary law system that lacks certainty can lead to confusion,
uncertainty and potential disputes. When rules are vague, it can be
challenging for community member to know how to conduct themselves
or resolve conflict according to the established norms.
Finally, uniformly observed is also a requisite of customary law. The
concept of uniformly observed means that customary law should be
uniformly observed within a particular community or group. This means
that customs, traditions and practices that make up customary are
consistently followed by members of the community.
On this stage this legal essay will explain the traits and proofs of
customary law. To start with the traits of customary law. These are six
features or traits which include the following; it must be in existence at
the material time. For customary to be considered valid and applicable it
must be in existence at the relevant material time. This means that
customs, traditions and practices that make up customary law must have
been established and recognized within the community or society at the
time a specific event or dispute occurred.
In addition to the above, customary law must be an existing native law

and customs not that of by gone days. This emphasizes that customary
law is a living, dynamic system that reflects the current customs and
traditions of the community. It is not a static set of rules frozen in time,
but rather an evolving body of practices that adapts to the changing
needs and values of the community.
Therefore, customary law must be flexible (elastic), organic (not static),

regulatory and a living of the indigenous people subject to it. Customary
law is adaptable to changing circumstances and societal needs. It has the
capacity to evolve, adjust in response to new situations or challenges
within the community. It is shaped by ongoing practices and beliefs of the
indigenous people. Customary law is deeply embedded in the lives of the
indigenous people who are subject to it. It influenced how they govern
their behavior, resolve conflict and manage various aspects of communal
life.
Perhaps, customary law must be of universal application in a community

and must enjoy acceptability as a custom. Customary law should apply
universally in a given community. This means that the customs, traditions
and practices that make up customary law should be recognized and
followed by all members of the community. It provides a common
framework for regulating the behavior and resolving disputes. Customary
law must be accepted and acknowledged as a legitimate system of norms
and riles by the members of the community. It should be respected and
adhered to as a customary practice that governs various aspects of social,
economic and legal intellections.
Lastly and not the least, customary law must be written (or partly written
and partly unwritten). Absolutely this is a crucial aspect of customary law.
It is primarily transmitted through oral tradition, practices and precedents.
While some written customary laws are predominantly based on the
collective memory, oral tradition and the day today practices f the
community. The unwritten nature customary law underscores its reliance
on lived experiences and cultural heritage of the community. It also
reflects the organic and evolving nature of customary practices. This
characteristic distinguishes customary law from formal customary law
from formal statutory law which is usually codified and written in legal
statutes or documents.
At this stage we shall discuss the proof of customary law. It is important to

note that customary law has many different kinds of proof and at this
stage of the legal essay we shall discuss some of them.
Customary law was proved by the following strong evidence;
Expert evidence and opinion e.g evidence of tradition leaders (chiefs) who
possess special knowledge of the subject matter. This involves the
testimony or opinions provided by individuals who have specialized
knowledge and expertise in the customary practices of a given community
or culture. These experts, often refers to as “customary laws experts”,
typically individuals who have intensive experience, education or direct
involvement in the specific customs and traditions of the community in
question. Opinion evidence involve the expression of the witness’s opinion
on the matter that falls within the matter of expertise.
Furthermore, evidence of credible witnesses e.g evidence of persons who
are sufficiently acquainted with the customs. This is also one proof of
customary law and this proof explains that customary evidence is often
presented by individuals who have deep familiarity with the customs,
practices and traditions of a specific community. These individuals are
considered to be sufficiently acquainted with the customary law, and their
testimony can be crucial in helping the court understand and interpret the
relevant customs.
More to the evidence stated above, judicial notice is also one of the proofs
of customary law. This proof provides that the customs may be
established as judiciary noticed or evidence may be called to establish
what a custom is and the existence of such a custom and to show that
persons concerned in a particular case regard the customs as binding
upon them.
In addition to the proofs above, writers have provided evidence to

customary law. Test books, manuscripts that are recognized by subject
people may be used as evidence.
Finally, assessors have also given evidence to customary law. Persons

with local knowledge and duly appointed assessors may assist with their
knowledge in order to give evidence to customary law.
At this stage we shall now, explain why the adjudicators declined to

observe the namwanga way of handling their daily occurrences in society
and this shall serve as the last part of this whole legal essay. The main
reason why the court declined to follow customary on the namwanga
practices it is because the namwanga tradition did not have the four
mentioned requisites above that bare required for customary law to be
legally binding and because of this we can conclude that the namwanga
tradition had the following thing that made the adjudicators to rule
against it;
i) The practice was repugnant to natural justice, equity and good

conscience, arises in legal systems with formal statutory law. It
refers to situations where a customary law practice conflicts with
fundamental principles of fairness, justice and morality. This was
explained in the case of 1
ii) The practice was incompatible with the law at the time of being
in force or other current binding customary law cannot conflict or
be inconsistent with existing formal laws or other established
customs that are currently binding within a given legal system.
This was explained in case of2. In this case, the Zambian high
court addressed the issue of customary law conflicting with
statutory law and the court held that customary law cannot take
precedence over statutory law, especially when there is a clear
conflict between the two.
iii) The namwanga traditional practical was contrary to public policy.
The public policy under customary law recognizes bride price as
a way of showing or legalizing marriage but in this case, it was
considered much. The concept of customary law being contrary
to public policy means that certain customary practices or norms
maybe deemed unacceptable or unenforceable if they go against
the fundamental values and principles upheld by the broader
society. This was explained in the case of 3
iv) The namwanga marriage practice was injurious to public interest.

The concept of customary law being injurious to public interest
means that certain customary practices or norms may be
considered harmful or detrimental to the well-being or broader
welfare of society as a whole. In such cases, the courts may set
aside or modify these customary practices to protect the public
interest. This was explained in the High court case of 4
In conclusion this legal essay has explained the requisites, traits and
proof of customary law and it has further explained why the court
declined to follow customary law. Customary law can be followed by
1
Kanika vs Jairus
2
Lewanika and others vs Chiluba and others (1998)
3
S vs Mwamba (1977) H.C
4
Musonda vs Zambia Security guards limited (1997)
the court if it had required characteristics, traits and proofs and on the
other hand they may not rule in favor of any customary practices if it
lacks the stated things above and that it why the court declined to
follow the namwanga traditional practices.
BIBIOGRAPHY
BOOKS
1. Yuma z (2020) Moodle legal process notes, Mulungushi; Mulungushi

university lecturer
2. Munalula M.M (2004) legal process, Lusaka; university of Zambia
CASES
1. Kaniki vs Jairus
2. Lewanika and others vs Chilube and others (1998)
3. S vs Mwamba (1977) H.C
Musonda vs Zambia security guards limited (1997)

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MULUNGUSHI UNIVERSITY

NAME DANIEL MWEWA

QUESTION: Chifuchi Malasa was born and bred in chitokoloki in the

By definition, customary laws customs, beliefs and traditions accepted by

More to the above, long established is also one of the requisites

In addition to the above, customary must be certain. Certainty is an

In addition to the above, customary law must be an existing native law

Therefore, customary law must be flexible (elastic), organic (not static),

Perhaps, customary law must be of universal application in a community

At this stage we shall discuss the proof of customary law. It is important to

Customary law was proved by the following strong evidence;

In addition to the proofs above, writers have provided evidence to

Finally, assessors have also given evidence to customary law. Persons

At this stage we shall now, explain why the adjudicators declined to

i) The practice was repugnant to natural justice, equity and good

iv) The namwanga marriage practice was injurious to public interest.

1. Yuma z (2020) Moodle legal process notes, Mulungushi; Mulungushi

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