THE UNIVERSITY OF ZAMBIA

SCHOOL OF LAW
NAME: KAFWEMBE N KUNDA

COMPUTER NUMBER: 24043008

COURSE: LEGAL PROCESS

COURSE CODE: LPR 1941

TASK: ASSIGNMENT ONE (1)

LECTURE: MR CLIVE M NOOMBO

CASE STUDY: Mr Muntu Phiri, popularly known as “Man of the People” or

“MP” for short was recently elected Member of Parliament for Goma Constituency in the Lusaka
Province (not real place) MP was elected on the platform that he will push for the eradication of
all vestiges of the British colonial rule in Zambia. Soon after his election, MP is appointed by the
Republican President Her Excellency Madam Hogta Hatta (aka HH) to be the new Minister of
Justice. No sooner does he take office than he sets to work on his campaign promises. You are an
officer in the Ministry of Justice and this morning you were called for a meeting in the Ministers
office. Present is the Director of your department and other senior officers. Your director is given
the task to prepare a brief on the removal of the Common Law Legal System in Zambia.
According to the new Minister, the Common Law is another example of the continued influence
of the former colonial power and must be erased. After the meeting, your director calls you aside
and makes the observation that it appears the new Minister, who has no legal back ground, does
not understand what the Common Law Legal System is. Through a critical analysis, render a
well-reasoned opinion to the Minister.
THE ROLE AND IMPORTANCE OF THE COMMON LAW LEGAL SYSTEM
IN ZAMBIA: A CRTITICAL OPINION
INTRODUCTION

The Honourable Minster of Justice, Mr. Muntu Phiri, has expressed his commitment in ensuring
he upholds his decision to eliminate all reminders of the British colonial rule in Zambia and this
includes the removal of the Common Law Legal System. In as much as the aim is to promote a
legal sovereignty and our own national identity, it is also important to differentiate between
political colonialism and legal traditions and consider the potential implications this will have on
Zambia’s legal infrastructure and access to justice. This proposal offers a critical analysis of the
Common Law Legal System in Zambia, how it has evolved, its functions, how it continues to be
relevant and considers the potential implications of how doing away with it would affect the
integrity of the country’s legal framework.

UNDERSTANDING THE COMMON LAW LEGAL SYSTEM IN ZAMBIA

The Common Law Legal System is a legal system that was developed in England and brought to
Zambia under British colonial power. Zambia has since maintained this system upon gaining
independence in 1964. This legal system provides a structured framework for governance,
commerce and crime and is administered by high courts, resident magistrate’s court, and the
supreme court. It is based on judicial precedent or stare decisis concept, which means that past
judicial decisions guide the interpretation and application of the law. The decision to adopt
Common Law was not made to passively continue colonialism but it was an intentional
legislative choice made by the post-independence government. Common law, promotes a legal
system based on uniformity, predictability, and equity. Matters are decided in a way that is
consistent with past rulings and this approach gives the public and the courts a clear knowledge
of how laws are implemented and interpreted, hence building confidence in the legal system and
ensuring consistency in legal decisions. Section 2 of the English law (extent of application) Act,
clearly states that English common law, doctrines of equity and statues of general application are
in force as at 17th August,1911 and shall be part of Zambian legal system, as long as there are not
inconsistent with any written law or local circumstances.

Zambia’s legal system consists of statutory law which is enacted by Parliament, customary law,
and the English derived common law. This structure is acknowledged in the Constitution of
Zambia (Amendment) Act No. 2 of 2016 and it states in Article 7 (c) that one of the values of
principles of governance is ‘upholding of human rights and the rule of law.’ The common law
plays an important role in interpreting statues, developing the law in areas where statues are
silent and ensures the rule of law through judicial rulings. It is also important to mention
notwithstanding the provisions of the English law (Extent of Application) Act, Cap 11 of the
laws of Zambia, all English Statues that apply to Zambia by virtue of that Act serve only as
‘reserve’ sources of law in Zambia. This means that we can only turn to English statutes if our
own Zambian Acts of Parliament are silent on a particular issue. This position was confirmed by
the High Court in the case of The people vs Shamwana & Others1.

In this case, the accused were charged with treason as they were a part of a mob that killed
individuals suspected of practicing witchcraft. Proving the case was dependent on Act No. 35 of
1973, the court used the common purpose doctrine, attesting that individuals who actively
participated or encouraged the attack could be found guilty of murder even if they did not
personally inflict the fatal injuries. Prior to this Act, the law stated that one individual could not
be convicted of treason unless there were two witnesses who each observed a separate apparent
act of the same kind of treason. This was the law in England and in Zambia but Act No. 35 of
1973 changed the law in Zambia to ensure that there was no requirement as to a specific number
of witnesses to prove the offence of treason. After this Act was in full force, the offence of
treason was then proved like any other criminal offence Furthermore, it is also worth mentioning
that in terms of practice and procedure, the Zambian legal system also relies heavily on English
law and this is evident in the provisions of the Subordinate Courts Act 2; the High Court Act3;
and the Supreme Court Act4.

1
(1982) ZR,122
2
Cap 28 of the Laws of Zambia
3
Cap 27 of the Laws of Zambia
4
Cap 25 of the Laws of Zambia
THE ROLE OF COMMON LAW IN ZAMBIA

Despite Zambia having its own Constitution and statutes, and the English common law still plays
an import role, especially in cases where local law is silent. Here are some key notes in which
Common law plays a significant role in Zambia:

a) Judicial Precedent guidance.

The Zambian judiciary courts have often invoked English Commonwealth case decisions when it
comes to the reasoning of legal problems that have not yet been resolved in the Zambian local
legislation. This does not in any way mean Zambia is accommodating colonialism but a practical
legal borrowing that enhances domestic jurisprudence and this helps maintain consistency in
legal analysis. Chief Justice Sakala observed in Attorney-General v Roy Clarke, reliance on
foreign case law does not undermine Zambian’s sovereignty but rather strengthens its legal
reasoning.
b) Legal Certainty and Continuity
An important core strength of Common Law is how it is able to maintain legal consistency
through precedent and this is important when it comes to legal predictability, stability and a fair
administration of justice. Through this, individuals and institutions are able to proceed with their
actions with confidence because they know what their legal consequences would be. Legal
continuity helps to ensure the justice legal system continues to be connected to the past whilst
gradually evolving. Donoghue v Stevenson [1932] is an example of a case regarding negligence
and continues to influence Zambian tort law today. This shows the continuity of legal ideas
through decades and jurisdictions.
c) African Traditions compatibility
Common Law operates hand in hand with Zambian courts as they have repeatedly recognized the
role of customary law; especially when it comes to family law and land tenures issues, provided
it does not public policies or justice principles. This therefore shows that common law has not
displaced traditional norms but rather co-exists with them.

REPRECUSSIONS OF REMOVING THE COMMON LAW LEGAL SYSTEM.

If Zambia were to abolish the common law legal system, it would not only have a serious effect
on the legal framework, but also the confidence of the public in its law would start to diminish.
Some major implications lead to:
 Legal uncertainty and predictability: since common law aids in legal certainty as it offers
established principles that developed over years, doing away with it would mean the legal
 system does not have structured framework and because of this, legal decisions become
inconsistent and unpredictable which then undermines the rule of law.
 Disruption of Legal Education and Institutional dependence: Zambia’s legal education is
based heavily on the common law tradition. Abolishing this system would disrupt the
curricula in law schools which would disrupt the legal training. Furthermore, all legal
practitioners and this includes judges, magistrates and lawyers.
 Heavy burden on the Parliament: If Zambia were to do away with common law, many
legal principles would have to be explicitly legislated by Parliament. The whole process
would overwhelm the legislative procedure because it would be impractical to change
every rule. Moreover, this would slow down law-making and the gaps would leave the
Zambian citizens with no protection.
 Likelihood of adopting another foreign system: Once Zambia discards common law
without an understandable indigenous alternative, we may have to still adopt another
foreign legal system-most likely civil law system and this new system could be
unsuitable to Zambia’s historical background and structure.
 Dependency on Customary Law: Doing away with common law will increase the
dependency on customary law. Traditional courts may have to be the primary source of
court decisions and this will potentially continue patriarchal norms and the unfair
treatment of women, this leads to more violations of human rights. This further causes a
challenging access to justice, especially for vulnerable groups.
 Regional and international Integration: Zambia, being a member of the Commonwealth,
the African Union, SADC, and all these operate with the influence of Common Law. To
disrupt it would isolate Zambia and weaken its ability to meet the standards set by
regional and international agreements. This then undermines regional cooperation and
confidence from investors.

ALTERNATIVE SOLUTIONS TO ABOLISHING COMMON LAW IN ZAMBIA.

The Honourable Minster of Justice’s concerns on colonial vestiges is understandable, but the
correct response would be to reform the system and not completely do away with it. Zambia has
sovereign power to restructure inherited laws and this has been done through the legislation-the
Interstate Succession Act and this has replaced colonial laws with the local important rules.
Some favourable suggestions to this would be:
 Reform Customary Laws and update Common Law Reception: Introduce measures to
ensure customary law aligns with constitutional protections and human rights standards.
Not only this but also, the English Law (Extent of Application) Act (Cap 11) can possibly
be amended to redefine the common law principles that still apply and through this we
ensure that they are better suited to Zambia’s current economic, social and cultural needs.
  Invest in Legal Resources: An investment in the legal education sector, its infrastructure
and personnel would bring an increase to improving access to justice, more especially in
rural areas. This also helps to ensure that common law evolves to reflect Zambian
realities without abandoning it.
 Frequent review of the Common Law: The legal system may establish a law reform
institution that frequently reviews how the common law is applied and recommend
updates that remain relevant and not eradicate it as a whole. This enhances cooperation
between traditional courts and the formal legal system as it increases access to justice and
the promotion of human rights.
 Develop a unique Zambian Common Law: Zambia can encourage courts to slowly
develop a distinct Zambian body of common law that will go hand in hand with Zambia’s
constitutional structure and African customary values.
Through this, there is a preservation of legal certainty and continuity and an elimination of
dangerous legal gaps. They also allow for a gradual and mannered restructure rather than a
sudden disruption thus, promoting respect to Zambia’s regional and international obligations, for
example the human right treaties.

CONCLUSION
All in all, The Common Law is not like a colonial artifact that can easily be disregarded but a
living system with legal reasoning that has been adopted into Zambia’s jurisprudential identity. It
should be viewed as a symbol of colonial dominance and understood as a tool of legal
development, legal certainty and justice system integrity. With the help of proper legal guidance
we encourage the Honourable Minister to purse legal reforms where necessary in order to
Zambianise the law and its contents and spirit but not to do away with a system that holds a good
framework of the nation. A far better approach would also be to conduct a thorough assessment
in order to understand the future risks of removing the common Law Legal System.
Lastly, engaging stakeholders such as; legal professionals, traditional leaders and civil society
organizations to help explore different alternate solutions. This helps to prioritize the access to
justice to the legal system while still respecting the Zambian cultural heritage.

BIBLIOGRAPHY
1. English Law (Extent of Application) Act, Chapter 11 of the Laws of Zambia.

2. Constitution of Zambia (Amendment) Act No. 2 of 2016.

3. The people vs Shamwana and Others (1985) ZR 122.

4. Attorney General v Clarke (96 of 2004) [2008] ZMSC 4 (23 January 2008).
5. Sakala E, ‘The Role of the Common Law in a Mixed Legal System: A Zambian
Perspective’ (2005) 27 *Zambia Law Journal* 14.
6. Donoghue v Stevenson [1932] AC 562 (HL).