.

THE UNIVERSITY OF ZAMBIA

SCHOOL OF LAW

LPU 2951 CONSTITUTIONAL LAW

CLASS NOTES

COMPILED BY

DR. O’BRIEN .

MAY 2020 .

INTRODUCTION AND SCOPE OF CONSTITUTIONAL LAW

What is a constitution?

In lay terms, a constitution is a set of rules which govern an organization. Every

organization, whether social club, trade union or nation state, which has defined objectives
and departments or offices established to accomplish those objectives, needs a constitution
to define the powers, rights and duties of the organization’s members. This set of rules, in
addition to the regulating the internal working of the organization, will also make provision
for the manner in which the organization relates to outside bodies. It can therefore be said
that a constitution looks both internal and external regulation of the body to which it relates.

In addition to the function of defining powers and duties and relationships with other
bodies, a constitution fulfills two related purposes- those of definition and evaluation. A
constitution will define the manner in which the rules in fact operate and dictate what ought
to happen in a given situation (Hilaire Barnett)

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Definitions by Other scholars:

KC Wheare defines the constitution of a state as:

“…the whole system of government of a country, the collection of rules which establish
and regulate or govern the government.”

Thomas Paine defines it as:

“A constitution is not the act of a government, but of a people constituting a government,

and a government without a constitution is power without right…A constitution is a thing
antecedent to a government; and a government is only the creature of a constitution.”

Aristotle defines a constitution as: “…an organization of offices in a state, by which the
method of their distribution is fixed, the sovereign authority is determined, and the nature
of the end to be pursued by the association and all its members is prescribed,”

“It is the supreme and fundamental law that sets the state’s basic structure including the
exercise of political power and the relationship between political entities and between the
state and the people,” Muna Ndulo

Functions of a Constitution

It can be seen that the constitution performs the following functions:

Provides a legal framework for the operation of government;

It defines the ultimate sources of legal authority and provides for the foundations of the
public law system, that is, the Constitution is the law behind the law (see the preamble
(“we the people”); article 1(1) (supremacy of the constitution); and article 5(1) sovereign
authority vests in the people));

It is a source of legitimacy for the state and its activities;

It indicates the political and legal parameters of the individual’s interaction with the
state;

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 It operates as a manifesto, a confession of faith.

It establishes the government, the administration and other organs of state, confers
power, imposes restrictions on the exercise of that power, indicates which bodies should
resolve conflicts, and provides procedures and standards for dispute resolution.

What a Constitution Contains

A Preamble

Usually included for symbolic and ideological purposes. Usually written in grand
rhetorical style and glorifying the country’s history, its struggles and its champions.

Preamble generally not considered to be binding or enforceable.

A Chart of the State

Deals with the operational system of the state.

Concerned with the way public authority is distributed, exercised and controlled.

Also concerned about the accession to and succession in office of those responsible for
its exercise.

Amending Provision

The amending provision is like a safety valve, which helps the constitution to release
pressure which might threaten its violent destruction.

It allows the present generation to modify the ground rules which it has inherited from
the past without rejecting the whole system of government.

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 The provision usually has inbuilt mechanism to prevent arbitrary amendment or
destruction of the constitution

See Article 79 of the Zambian Constitution.

Bill of Rights

Gives legal protection for human rights;

Limits state power in relation to its citizens;

Usually civil political rights, but modern constitutions now contain economic, social and
cultural rights.

Financial Provisions

About how money is to be collected

How money should be spend

And controls over entities that handle public funds (oversight)

Scope of constitutional law

Constitutional law is concerned with the role and powers of the institutions within the state
and with the relationship between the citizen and the state. It is a living and dynamic
document or organism which at any point in time must reflect the moral and political values
of the people it governs and, therefore, it must be appreciated within the socio-political
context within which it operates.

Classifying Constitutions

There are generally about six classifications of constitutions:

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a) Written and unwritten;

b) Rigid and flexible;

c) Supreme and subordinate;

d) Federal and unitary;

e) Separated powers and fused powers; and

f) Republican and monarchical.

Written and unwritten

A written document is one contained within a single document or a series of documents,

with or without amendments, defining the basic rules of the state. The modern origins of
written constitutions lie in the American War of Independence (1775-1783) and the French
Revolution (1789).

Unwritten constitutions are usually not set out in a single document but contained in a
series of statutes, rules and conventions. The United Kingdom, Israel and New Zealand are
examples of countries without written constitutions.

Rigid and Flexible Constitutions

This relates on the issue as to whether or not a constitution can be amended with ease. In
constitutions, all or some provisions may be entrenched, that is, the constitution stipulates
stringent procedures to be followed in any attempt to amend the provision. In Zambia the
Bill of Rights and Article 79 are entrenched.

Supreme and subordinate constitutions

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A supreme constitution refers to a state in which the legislative powers of the governing
body are unlimited; while a subordinate constitution is one whose powers are limited by
some higher authority.

Federal and Unitary Constitutions

The common feature of all federal states (e.g., USA, Nigeria, Canada, Australia, Ethiopia
and Malaysia) is the sharing of power between the center and region- each having an area
of exclusive power, other powers being shared on some defined basis. Equally common of
all federal states is the idea that the written constitution is sovereign over government and
legislature and that their respective powers are not only defined by the constitution but also
controlled by the constitution, which is interpreted and upheld by the Supreme Court or a
Constitutional Court. In a unitary government all power vests at the center and regions do
not enjoy any (semi-)autonomy.

Separated powers and fused powers

The essence of the doctrine of separation of powers is that the powers vested in the principal
institutions of the state (legislature, executive and judiciary) should not be concentrated in
the hands of any one institution. The object is to provide checks and balances and prevent
the potential of tyranny. The opposite of this is a totalitarian state where a single figure or
single body is vested with the sole power to enact laws, administer the state and adjudicate
disputes.

Republican and monarchical Constitutions

A republic usually has its figurehead a democratically elected president, answerable to the
people and to the constitution. In a monarch, the head of state is unelected and office is
usually inherited Swaziland seems to be the last standing absolute monarchy in Africa. All
acts of government are done in the name of the monarch. In constitutional monarchs (such

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as the UK), the monarch only enjoys little practical power as this is exercised by an elected
government.

SOURCES OF CONSTITUTIONAL LAW

Legislation

Acts of Parliament and delegated legislation (i.e. statutory instruments promulgated by

ministers and other authorities upon whom parliament has conferred power to legislate) are
an important source of constitutional law. Even where a formal constitution exists, it cannot
be comprehensive enough to cover every aspect of constitutional law. Often the
constitution lays down general rules which have to be elaborated in statutes and delegated
legislation.

Judicial precedents

The decisions of the courts interpreting the constitution and other related legislative
enactments. Under the doctrine of precedent, or stare decisis, these decisions are binding
on inferior courts and may, according to the relative status of the courts in question, bind
other superior courts.

Authoritative opinions

Generally, no legal textbook has intrinsic authority as a source of law: the authority of the
most eminent text-book is confined to the extent to which a court considers that it
accurately reproduces the law as enacted by the legislature or decided by earlier courts.
Where a statute has not yet been judicially interpreted, or where no court has pronounced
authoritatively on a matter, then the opinions of text-book writers and academic authors
may be of great value to the legal profession, as well as to the court when a case arises for
decision.

Formal constitutions (the constitution itself)

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Most countries, including Zambia, have a formal written constitution, which is the most
important source of constitutional law, from which all other laws derive their authority. .

BASIC CONCEPTS OF CONSTITUTIONAL LAW

Constitutionalism

The concept of constitutionalism derives from the idea of a written constitution. The
current concepts of a written constitution for a nation-state have roots in the eighteenth
century in the context of the French and American revolutions.1 What is distinct about the
idea of a written constitution is that it is considered the fundamental law that not only
establishes the government but regulates the exercise of governmental power by
prescribing limits to such power. Liolos has argued that this entails that the constitution
has two elements: the functional and aspirational.2 The functional elements of the
constitution create the organs of the state and the rules that govern them, while the
aspirational elements articulate the nation-state’s principles and values such as social
justice, transparency and accountability which every well-ordered state aims at achieving.

1 Albert HY Chen, ‘The Achievement of Constitutionalism in Asia: Moving Beyond

“Constitutions without Constitutionalism”’ in Albert HY Chen (ed), Constitutionalism in
Asia in Early Twenty-First Century (Cambridge University Press 2014) 4

2 John Liolos, ‘Erecting New Constitutional Cultures: The Problems and Promise of
Constitutionalism Post-Arab Spring’ (2013) 36 Boston College International and
Comparative Law Review 2

Charles Manga Fombad has argued that the concept of constitutionalism today can be said
to encompass the idea that a government should not only be sufficiently limited in a way
that protects its citizens from arbitrary rule but also that such a government should be able
to operate efficiently and, in a way, that it can be effectively compelled to operate within
its constitutional limitations.

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Constitutionalism combines the idea of a government limited in its actions and accountable
to its citizens for its actions. Two ideas are therefore fundamental o constitutionalism. First,
the existence of certain limitations imposed on the state particularly in its relations with
citizens, based on certain clearly defined set of important values. Secondly, the existence
of a clearly defined mechanism for ensuring that the limitations on the government are
legally enforceable. In the broad sense, constitutionalism has certain irreducible and
possibly minimum content of values with a well-defined process and procedural
mechanisms to hold government accountable. The core elements which any constitution
must possess to have any prospect of promoting constitutionalism are:

i. Provisions that recognize and protect fundamental rights and freedoms;

ii. Provisions for the separation of powers

iii. Provisions providing for an independent judiciary;

iv. Provisions dealing with the control of the constitutionality of laws;

v. Provisions controlling amendment of the constitution; and

vi. Provisions providing for institutions that support democracy.

“The philosophy behind constitutionalism is the need to design constitutions that are not
merely programmatic, shams or ornamental documents that can be easily manipulated by
politicians but rather documents that can promote respect for the rule of law and
democracy.” Fombad

The concept of constitutionalism expresses the idea that arbitrary political power should
be curtailed. Although constitutionalism recognises the necessity for government it insists
upon a limitation being placed upon its powers. In essence it connotes a 'limitation' on
government; it is the antithesis of arbitrary rule.

According to Professor De Vos, constitutionalism has the following basic characteristics:

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1) Constitutionalism is concerned with the formal and legal distribution of power within a
given political community in which a government is ordinarily established in terms of a
written constitution.

2) Constitutionalism provides for the establishment of institutions of governance, such as

the legislature, the executive and the judiciary.

3) Constitutionalism brings about the creation of binding rules or laws for the regulation
of the political community, its institutions of governance and the governed.

4) Constitutionalism plays an important role in determining the nature and basis of relations
that exist between institutions of governance and those they govern.

Implicit in all these points is that constitutionalism prescribes limits on the exercise of state
power and provides mechanisms to ensure that the exercise of power does not exceed the
limits set by the constitution.

Rule of law

The most well-known articulation of the rule of law is that of Lord Bingham. Lord Bingham
grappled with the challenge of defining the rule of law by breaking it up into eight ‘sub-
rules’. His discussion of these sub-rules has been one of the most influential modern
discussions of the rule of law. The sub-rules are as follows.

1. The law must be accessible and, so far as possible, intelligible, clear and predictable.
Why are these requirements important? Bingham gives three reasons: first, so that we know
what we might face a criminal penalty for; second, so we can claim our rights and
understand our obligations; third, because successful conduct of trade and commerce
depends on accessible rules. Predictability is a very important aspect of the rule of law. In
dictatorships, citizens are often left uncertain as to whether or not a particular action will
be subject to criminal punishment – the power of the state is enhanced by the

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unpredictability. Particular difficulties arise when laws are made to apply retrospectively
(to actions which have already happened).

2. Questions of legal right and liability should ordinarily be resolved by application of the
law and not the exercise of discretion.

3. The laws of the land should apply equally to all, save to the extent that objective
differences require differentiation. n the criminal law children and those without mental
capacity are treated differently in terms of procedures for investigation and trial as well as
in sentencing. Children under 8 are treated as doli incapax – legally incapable of
committing a crime.

4. Ministers and public officers at all levels must exercise the powers conferred on them in
good faith, fairly, for the purpose for which the powers were conferred, without exceeding
the limits of such powers and not unreasonably. Decision making can be challenged if there
is bias or individuals are not given the right to a fair hearing.

5. The law must afford adequate protection of fundamental rights.

6. Means must be provided for resolving, without prohibitive cost or undue delay, bona
fide civil disputes which the parties themselves are unable to resolve.

7. Adjudicative procedures provided by the state should be fair.

8. The rule of law requires compliance by the state with its obligations in international law
as in national law.

AV Dicey, in his book, Introduction to the Study of the Law of the Constitution (1885),
suggested the existence of three distinct elements which together created the rule of law:

1. An absence of arbitrary power on the part of the state: the extent of the state’s power,
and the way in which it exercises such power, is limited and controlled by law. Such control
is aimed at preventing the state from acquiring and using wide discretionary powers, for as

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Dicey correctly recognized, the problem with discretion is that it can be exercised in an
arbitrary manner.

2. Equality before the law: the fact that no person is above the law, irrespective of rank or
class. This was linked to the fact that functionaries of the state are subject to the same law
and legal procedures as private citizens.

3. Supremacy of ordinary law: the fact that the English constitution was the outcome of
ordinary law of the land and was based on the provision of remedies b the courts rather
than on the declaration of the rights in the form of a written constitution. Dicey was
opposed to codification of the constitution.

FA von Hayek, followed Dicey. In his book, The Road to Serfdom (1971), argued that:
“Stripped of all technicalities the Rule of Law means that government in all its actions is
bound by rules fixed and announced beforehand.” He further argued that “The Rule of Law
implies limits on the scope of legislation, it restricts it to the kind of general rules known
as formal law; and excludes legislation directly aimed at particular people.”

This means that law should not be particular in content or application, but should be general
in nature, applying to all and benefitting none in particular.

Joseph Raz attempted to provide a definition of rule of law that accommodates state
discretion without arbitrariness. Raz argues that the basic requirement from which the
wider idea of the Rule of Law emerged is the requirement that the law must be capable of
guiding the individual’s behavior. He stated some of the most important principles that
may be derived from this general rule:

1. Law should be prospective rather than retroactive. People cannot be guided by or

expected to obey laws which have not as yet been introduced.

2. Laws should be stable and should not be changed too frequently as this might lead to
confusion as to what was actually covered by the law;

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3. There should be clear rules and procedures for making laws;

4. The independence of the judiciary has to be guaranteed to ensure that they are free to
decide cases in line with the law and not in response to any external pressure;

5. The principles of natural justice should be observed, requiring an open and fair hearing
to be given to all parties to proceedings;

6. The courts should have the power to review the way in which the other principles are
implemented to ensure that they are being operated as demanded by the rule of law;

7. The courts should be easily accessible as they remain at the heart of the idea of making
discretion subject to legal control; and

8. The discretion of crime preventing agencies should not be allowed to pervert the law.

(What is the difference between constitutionalism and rule of law?)

Checks and balances

However, the concept of checks and balances presupposes that a specific function is
assigned primarily to a given organ subject to a power of limited interference by another
organ to ensure that each organ keeps within the sphere delimited to it. Thus, the executive
might be empowered to veto legislation or to dissolve the legislature, and the legislature to
impeach the chief executive, to approve the appointment of certain other top state
functionaries, to criticize and censor the executive or any member of it or, as a final
weapon, to bring down the government.

The idea of checks and balances presupposes that a specific function is assigned primarily
to a given organ, subject to a power of limited interference by another organ to ensure that
each organ keeps within the sphere delimited to it.

Power may be limited by dividing it, not among different organs of the same government,
but among different territorial unit governments (Nwabueze).

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Supremacy of the constitution

According to Ben Nwabueze, a constitution is, or is supposed to be, the product of the
exercise of the constituent power inherent in any people. It is an original, constituent act,
from which all other legislative acts derive their authority.

So, what is the basis of the supremacy of the Zambian constitution considering that it has
never been adopted as an expression of popular will. Nwabueze argues that this is based
on logical supremacy. That is, the constitution is supreme because it is logically prior to
the organs of the government. If the government and its organs are created by the
constitution, then logically they have only powers as are granted to them by the instrument
from which they derive their existence.

At a practical level, Nwabueze argues that the manner in which the constitution is adopted
and enacted has an effect on how in practice people venerate the superiority of the
Constitution. Nwabueze argues that a parliament which enacted a constitution is not likely
to treat its own creation as being above it. There would naturally be a great inclination on
its part to disregard the constitutional limitations than would be the case if it had been a
constituent act of the people. To the people, the idea of a constitution enacted by parliament
being supreme over its creator is hardly intelligible. To them, the constitution is on exactly
the same level as any other law enacted by parliament, and is entitled to no greater or
special protection (Nwabueze).

In the United States of America, Zambia and many other countries having a written
constitution the constitution is supreme. For example, Article 1(1) of the Constitution of
Zambia, 1991 proclaims that the constitution is the supreme law of Zambia if any other
law is inconsistent with it that other law shall, to the extent of the inconsistency, be void.

(See the cases of Christine Mulundika and Others v The People (1995) ZR;

Thomas Mumba v The Attorney General(1984) ZR 38

Separation of powers

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The doctrine of the separation of powers was developed further by Montesquieu, who was
concerned with the preservation of political liberty. He wrote that

Political liberty is to be found only when there is no abuse of power. But constant
experience shows us that every man invested with power is liable to abuse it, and to carry
his authority as far as it will go....To prevent this abuse, it is necessary from the nature of
things that one power should be a check on another...When the legislative and executive
powers are united in the same person, or in the same body of magistrates, there can be no
liberty....Again, there is no liberty, if the judiciary power be not separated from the
legislative and executive. Were it joined with the legislature, the life and liberty of the
subject would be exposed to arbitrary control; for the judge would then be the legislator.
Were it joined to the executive however, the judge might behave with violence and
oppression. There would be an end to everything, were the same man, or the same body,
whether of the nobles or of the people, to exercise those three powers, that of enacting laws,
that of executing the public resolutions, and of trying the causes of individuals."

The concept of 'separation' may mean at least three different things:

(a) that the same persons should not form part of more than one of the three organs of
government, for example, that Ministers should not sit in Parliament;

(b) that one organ of government should not control or interfere with the work of another,
for example, that the judiciary should be independent of the executive;

(c) that one organ of government should not exercise the functions of another, for example,
that ministers should not have legislative powers.

It needs to be pointed out that in considering each of these aspects of separation, it must be
remembered that complete separation of powers is not possible either in theory or in
practice.

Separation of powers has the following four elements:

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1. There is the division of governmental power across the three branches, namely the
legislative branch (parliament), the executive branch (president) and the judicial branch
(courts). The division is sometimes referred to as trias politica.

2. The principal of separation of functions, which entails conferring distinct areas of

responsibility and authority on each of the three branches of government and preventing
and preventing one branch from taking responsibility for the tasks allocated to another
branch.

3. The principle of separation of personnel entails that each branch of government must
have assigned to it specific persons who are responsible, often exclusively, for the
performance or execution of that branch’s function.

4. The provision of checks and balances entails that one branch can be held accountable by
other branches to check the exercise of power by that branch.

Democracy

The concept of constitutionalism is linked with the constitution and the concept of
democracy. The classic definition of democracy was given by Abraham Lincoln in the
immortal words: "A government of the people by the people for the people." This definition
emphasizes the popular basis of government, i.e. the idea that government rests upon the
consent of the governed, given by means of elections, in which the franchise is universal
for both men and women, and that it exists for their benefit. It must, however, be noted that
free elections based upon universal franchise do not of themselves alone create
constitutional government.

Democracy has at least three sub-concepts:

a) Direct democracy: This is a system of governmence that entails direct participation on

the part of the citizen, rather than elected representatives, in the rule and decision making
of their political community. Historically, this is generally regarded as the purest form of

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democracy that comes closest to achieving the rule of the people. Examples of provisions
relating to direct democracy are provisions entitling individuals to assemble and associate,
as well as the requirements for a referendum (see article 79 of the Constitution).

b) Representative Democracy: This entails a system of government in which the members

of a political community participate indirectly through elected representatives in the
governance of their community. Citizens elected or select representatives to govern on their
behalf for a limited period of time until the next election.

c) Participatory democracy: A weakness of representative democracy is that it can

disempower citizens. Decisions can be made by leaders without taking the citizens’
concerns into account. There is therefore need to counteract this potentially disempowering
aspect of representative democracy. To achieve this, constitutions often include
requirements for citizens to be consulted prior to certain decisions being made. It is about
affording citizens an opportunity to be involve in the decision-making processes that affect
their lives. In a sense, it is a derivative of representative democracy and ensures that even
when citizens entrust leadership to representatives, they are not totally excluded from
decision making processes that matter to them.

Legitimacy of the Constitution

The legitimacy of the constitution is concerned with how to make it command the loyalty,
obedience and confidence of the people. It cannot be disputed that a major cause of the
collapse of constitutional government in many of the new states was the general lack of
respect for the constitution among the populace and even among the politicians themselves.
The state itself is an alien, if also a beneficial creation; its existence is characterized by a
certain artificiality in the eyes of the people and it is remote from their lives and thought.
(Nwabueze).

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What this means is that a constitution should be generally understood by the people and be
acceptable to them. A constitution cannot hope to command loyalty, respect and confidence
of the people otherwise (Nwabueze).

The people must be made to identify themselves with the constitution. Without this sense
of identification, of attachment and involvement, a constitution would always remain a
remote, artificial object, with no more real existence than the paper on which it is written
(Nwabueze).

PARLIAMENTARY SYSTEM OF GOVERNMENT

Overview

A parliamentary regime in the strict sense is one in which the only democratically
legitimate institution is parliament; in such a regime, the government's authority is
completely dependent upon parliamentary confidence.

In contrast, in a presidential system an executive with considerable constitutional

powers-generally including full control of the composition of the cabinet and
administration-is directly elected by the people for a fixed term and is independent of
parliamentary votes of confidence. He/she is not only the holder of executive power but
also the symbolic head of state and can be removed between elections only by the drastic
step of impeachment.

In parliamentary systems, the government depends on the ongoing confidence of the

assembly.

The Westminster Parliamentary System (As An Example of a Parliamentary System)

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The main features of the system are the diffusion of executive power, the partial fusion of
the organs of government, and the responsibility of the executive to the legislature. These
features are not necessarily present in each parliamentary system. Some of these are unique
to the Westminster model.

(1) Diffusion of Executive Power

Executive power under the Westminster system is diffused among various persons. The
Queen is both the temporal and spiritual head of State. The supreme executive authority is
vested in her and the administration of the State is conducted in her name. However, in
practice the supreme executive authority is wielded by the Cabinet, a Committee headed
by the Prime Minister. The principal convention of the British constitution is that the
Queen shall exercise her formal legal powers only upon and in accordance with the advice
of her Ministers, save in a few exceptional situations.

However, the Queen has the right to:

a) be consulted,

b) the right to encourage,

c) to warn, and also

d) the right to offer, on her own initiative, suggestions and advice to her Ministers even
where she is obliged in the last resort to accept the formal advice tendered to her. To be
more precise, the Queen has the conventional rights to receive Cabinet papers and minutes,
to be adequately informed by the Prime Minister (with whom she has regular weekly
audiences) on matters of national policy, to receive Foreign Office dispatches and
telegrams and other state papers, and to be notified of proposed appointments and awards
to be made in her name so that she can express her views informally.

e) The Queen has the personal prerogative to appoint a Prime Minister. By convention,
however, she must appoint that person who is in the best position to receive the support of
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the majority in the House of Commons. Where an election produces an absolute majority
in the Commons for one party, the leader of the party will be invited to become Prime
Minister, and if he is already Prime Minister he will continue in office. According to
modern practice, a defeated Prime Minister resigns from office as soon as the result of the
election is known.

Relationship between the Prime Minister and the Cabinet

The Prime Minister and the Cabinet occupy key places at the heart of the political and
governmental system. While the Prime Minister provides the individual leadership of
the majority party in the House of Commons, the Cabinet provides the collective
leadership of that party. It is only the Prime Minister and the Cabinet who can direct
national affairs in any systematic way, and make deliberate choices in government between
competing political priorities.

Powers of Prime Minister in relation to the Cabinet

The Prime Minister is in a position to exercise a dominant influence over the Cabinet since
he has powers which other ministers do not have, however senior and experienced they
may be:

(1) He effectively makes all appointments to ministerial office, whether within or

outside the Cabinet. He may ask ministers to resign, recommend to the Queen to dismiss
them, move them to other offices. He settles the order of precedence in the Cabinet. He
may, if he wishes, name one of the Cabinet to be Deputy Prime Minister or Foreign
Secretary.

(2) The Prime Minister controls the machinery of central government in that he decides
how the tasks of government should be allocated to the different departments and
whether departments should be created, amalgamated or abolished.

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(3) The PM is able to take interest in different areas of government from time to time
and may indeed carry out his policy through the agency of a minister whom he has
appointed. Most Prime Ministers must take a special interest in foreign affairs, the
economy and defence. The Prime Minister may intervene personally in major pressing
issues.

In consultation with individual ministers he may take decisions or authorize them to

be taken without waiting for a cabinet meeting.

(4) The Prime Minister, by presiding at Cabinet Meetings, is able to control

Cabinet discussions and the process of decision-making by settling the order of

business, deciding which items are to be discussed and by taking the sense of the meeting
rather than by counting the votes of Ministers.

(5) The Prime Minister has a more regular opportunity to present and defend the
government's policies in Parliament than other ministers. He/she is available for
questioning in the Commons on Tuesdays and Thursdays and he may choose when to
intervene in debates. He/she is also in a position to control the government's
communications to the press and to disclose information about government decisions and
cabinet business.

(6) Alone among cabinet ministers, he has regular meetings with the sovereign and is
responsible for keeping the sovereign informed of the cabinet's handling of affairs. In
particular, he may recommend to the sovereign that a general election be held; he is
not required to discuss this first with the cabinet.

2) The Partial fusion of the Organs of Government

Executive Control of Law-Making.

In UK Parliament comprises the Queen, the House of Lords and the House of Commons.
British constitutional practice requires that holders of ministerial office should be
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members of either the Commons or the Lords. The Cabinet largely controls parliament
as it commands the time and programme of the House of Commons and pilots all important
legislation. It would be true to say, parliament legislates with the advice and consent of the
cabinet.

Public Bills are introduced and piloted by a cabinet minister generally.

Moreover, all money Bills can only be introduced by a Minister in the Commons on behalf
of the crown.

The Queen, by constitutional convention, will only assent or dissent to a bill on the advice
of the Prime Minister and his Cabinet. It is patent that the concurrence of the executive in
legislation makes it in law an equal partner with the legislative houses in the law-making
process, since the concurrence of Parliament is also equally indispensable.

Separation of Judicial Power.

Under the British constitution judicial power is not recognised as existing independently
of, and co-ordinate with, the legislative sovereignty of parliament. In Britain the courts do
not possess the power to question or declare invalid legislative enactments. Parliament is
the highest court in the land with power to make or unmake any law or to create or abolish
any rights, and so on.

The Responsibility of the Executive to the Legislature .

The Prime Minister and his Cabinet are collectively responsible to Parliament, and to the
Commons in particular, for the conduct of national affairs. Parliament controls Cabinet
actions by questions, criticism and votes of censure. Members of Parliament may ask for
information by giving notice of questions, or may move for returns for supplying
information on matters of public importance, or get parliamentary committees or royal
commissions appointed for detailed investigation and reports. They criticise and discuss
the governance of the country in various ways: by moving amendments in replying to the

22
Queen's Address or by cut motions on the vote for supply and by proposing votes of no
confidence in the government.

Collective Responsibility of the Cabinet

In modern times collective responsibility embodies a number of related aspects:

1. To Parliament and the nation Ministers must show a united front.

2. Although Ministers are individually responsible to Parliament for the conduct of their
departments, if members of the Commons seek to censure an individual minister for his
policies, the government generally will rally to his defence.

3. So long as a politician serves as a minister, he shares in the collective responsibility of

all ministers in the sense that he may not publicly criticise or dissociate himself from
government policy. He is expected to support the government by his vote in Parliament
even if he dissented to the decision during Cabinet meetings.

4. The collective decisions of the Cabinet are communicated by or on behalf of the Prime
Minister to the Sovereign. Dissenting ministers do not have access to the Sovereign to
communicate their views to her.

5. Since all ministers are required to support government policy once it has been settled, a
government generally considers it desirable that the process by which policy decisions are
made should be kept secret. In principle, secrecy attaches to Cabinet discussions, Cabinet
documents and the proceedings of Cabinet committees, except where the Cabinet or Prime
Minister decides that disclosure shall be made. Similarly, in principle secrecy attaches to
communications between departments. It is obvious that, therefore, that collective
responsibility serves a variety of political purposes. First, as most governments are drawn
from members of one party, it serves to reinforce party unity and to prevent back-bench
Members of Parliament from inquiring too far into the processes of government. Secondly,
it helps to maintain government's control over legislation and public expenditure and to
contain public disagreements between departments. Thirdly, it reinforces the traditional

23
secrecy of the decision-making process within government. Lastly, it helps to maintain the
authority of the Prime Minister.

Individual Responsibility

The principle of individual responsibility is that a minister is answerable to

Parliament for the work of his/her department. Praise or blame for decisions must be
addressed to the minister, not to the permanent officials. This is the basis upon which much
of the work of Parliament rests. In this regard .

government Bills are introduced into Parliament by ministers, who are responsible for the
proposals they carry. In debates on the work of individual departments, the minister
concerned replies to the criticisms raised and seeks usually to defend the department. A
minister is expected to meet an MP’s reasonable requests for information and may not
plead ignorance of a matter within his competence of which previous notice has been given.

In Sum, the main characteristic features of the Westminster Model are:

1) Parliament is the sovereign or supreme law making body. Laws made by parliament
cannot be undone by any body or entity. Parliament has unlimited power (at least
theoretically) to make any law it pleases.

2) The executive I drawn from the parliament. The prime minister and cabinet members
are also members of parliament. These, therefore, serve as both members of the executive
and members of parliament. There is no strict separation of powers, at least in terms of
personnel (as is the case in the USA, for example).

3) The courts under this model enjoy no power to decide on the constitutionality of
legislation, although this may review administrative decisions.

24
PRESIDENTIAL SYSTEM OF GOVERNMENT

Presidential System

There are many definitions of a presidential system and some are extremely complex. For
our purposes, a presidential system is defined minimally and considered as one where
the chief executive of the government or state is elected directly by the people. It does
not matter how nuanced the electoral rules guiding the elections may be, provided the
mandate comes directly from the electorate. The presidential system is the dominant
model on the African continent. With the exception of Lesotho, Swaziland and
Morocco which are monarchs, there are just about five countries which apply the
parliamentary model (Botswana, Ethiopia, Libya, Mauritius and South Africa). The
rest of the Countries apply the presidential model where the president is directly elected by
the people.

Two seminal articles of Juan J. Linz entitled “Democracy: Presidential or Parliamentary:

Does it Make a Difference?”3 and “The Perils of Presidentialism”4 are probably the most
eminent scholarly discussion of the presidential system (in contrast to the parliamentary
system). In these works, Linz offers a comparative analysis between Presidential system
and Parliamentary systems and concludes that the presidential system is unsuited for long
term national stability and democracy. Linz’s analysis and debunking of presidentialism
can be clustered as resting under the following four themes which are discussed further
below: full claim to democratic legitimacy; dual legitimacy; rigid or fixed term of office;
and zero sum game of winner-take-all.

3 Linz “Democracy: Presidential and Parliamentary: Does it Make a Difference?” 1-88

4 Linz “The Perils of Presidentialism” 50- 69

5 Ibid

1. Full Claim to Democratic Legitimacy

25
Linz considers that electing a president directly by the people is one of the advantages
of the presidential system as it clothes the president with democratic legitimacy,
knowing that his or her mandate is not mediated by parliament but wells up directly
from the people who elected him or her. This sets the president in charge of the
government apparatus and constitutes government (cabinet) which is responsive to him/her
and exercises full control over it. Article 91(2) of the Zambian constitution, for example,
states: “The executive authority of the state vests in the President and, subject to this
constitution, shall be exercised directly by the President or through public officers or other
persons appointed by the President.” This means that unlike in the collegiate executive of
the Swiss system, in Zambia there cannot be a concurrent vesting of the executive power
in two or more persons of equal authority.

Linz however notes that it is common place for presidents under this system to be
elected, where there are several candidates, by a slim majority and thus where this
happens, the claim to democratic legitimacy upon which they hold power as
representatives of the people is manifestly nonexistent.5 To support this view, Linz cites
the example .

of 1979 Chilean presidential elections where Allende was returned to office with a paltry
36.2 per cent of the popular vote (whilst his closest opponent Allesandri got 34.9 percent).
The fact that the president in such a case has not been elected by the majority leads
to tension in the country and in socially and ideologically divided societies, this may
lead to conflict. Even if some countries require a minimum percentage of votes
(usually 50 per cent) for one to be elected president, Linz considers this as negative as
it invariably leads to the top two contenders and their camps in a bitter battle. For a
divided society, this easily leads to instability and is thus a major disadvantage of the
presidential system, as it leads to polarisation.6

6 Ibid

26
7 Anderson Kambela Mazoka and Others v. Levy Patrick Mwanawasa and Others Z.R 138
(s.C) L SCZ/EP/01/02/03/2002

8 Article 138(4) The Constitution of Kenya 2010

9 See Articles 133 and 134 Constitution of the Federal Republic of Nigeria 1999

10 Electoral Reforms Society “The UK General Election of 5 May 2005: Report and
Analysis” 2-6

Critique: Linz’s view that the presidential system (in contrast to the parliamentary system)
leads to minority presidents and leads to polarisation in society is, respectfully, incorrect.
First of all, where a president in a presidential system is elected by a simple majority,
there is always the possibility of electing a minority president. This was the case
during the 2001 Zambian elections where the winner, Levy Mwanawasa, only
garnered a paltry 29 percent of the popular vote.7 However, it must be noted that the
simple majority is not inherent and a necessary concomitant of the presidential
system. It is possible to engineer a presidential system to ensure that the president is elected
by a qualified majority and to have that majority defused across the country. The new
Kenyan Constitution, for instance, requires that not only should the president be elected
by more than half of all the votes cast in an election but also that she/he should at least
garner 25 per cent of the votes cast in each of the more than half of the counties of Kenya.8
Similarly, the Nigerian Constitution requires that not only should the winning candidate
obtain the appropriate majority, but must also garner not less than one-quarter of the votes
cast in at least two-thirds of all the federal states including the federal capital.9 This
potentially ensures that the president has both majority and national support which reflects
the national character.

In any case, minority leaders can be produced by the parliamentary system as well,
contrary to the views of Linz. For example, while the Labour Party during the 2005 UK
elections won an overall majority of 55.1 percent of the seats in the House of Commons,
but by popular vote they only got 35.2 per cent of the votes.10 This actually meant that

27
even if the Labour Party had gained sufficient numbers of Members of Parliament to form
government that government actually rested on very thin public support.

The implication that the presidential system necessarily leads to polarisation,

instability and conflict is also incorrect. The early conflicts that assailed some
Anglophone countries in the aftermath of independence are attributable to the
unsuitability of the parliamentary system actually. Nigeria, for example, attained
independence under the Westminster parliamentary style, under which “a cluster of
ethnic groups from the north .

had managed to secure a majority of seats and shut all other groups out of power.”11
This is considered to have precipitated the military coup d’états of 1966 and the
Biafra war of secession in Nigeria.12 Uganda is another example of a parliamentary
system that did not lead to democratic stability. In 1966, after years of power struggles
between the Prime Minister Milton Obote and the titular President Sir Edward Mutesa II (
the King of the Baganda , Uganda’s largest ethnic group), Obote’s military forces invaded
Mutesa’s palace and forced him into exile. Obote then abrogated the Constitution and
turned himself into an executive president.13 This brought about instability, military coups
and war that took Uganda many years to recover from.

11 Horowitz “Comparing Democratic Systems” 73- 79

12 ibid

13 Sewanyanga and Awori “Uganda: The Long and Uncertain road to Democracy” 465-
477

14 Linz “The Perils of Presidentialism” 50- 69

15 Ibid

16 Supra note 267, p 73- 79

28
2. Dual Legitimacy

The presidential system necessarily creates two spheres of power, both claiming a
direct mandate from the people. These are the president and the legislature, as each
is elected directly by the people. Therefore, even if the president is directly elected and
entitled to full democratic legitimacy, the legislature too claims the same legitimacy as
it is also elected by the people. And since the legislature is elected separately, it is possible
that it could be dominated by another party or parties opposed to the president’s party.
According to Linz, when the legislature is dominated by another party opposed to the
president, and this party is cohesive, disciplined and ideologically different, this necessarily
creates problems as to who truly represents the people. As Linz asked: “who has the
stronger claim to speak on behalf of the people: the president or the legislative majority
that opposes his/her policies?”14

In Linz’s view, when this happens, “no democratic principle exists to resolve disputes
between the executive and the legislature about which of the two actually represents the
will of the people.”15 He believes that even where constitutional mechanisms exist to
resolve the impasse, the mechanisms are likely to be “too complicated and aridly legalistic”
to be of much use to the electorate. As a result, in such cases the armed forces are always
tempted to interfere as ‘mediators.’

Critique: It is worth noting, as will be show in the next section that Linz also argues that
the presidential system is inclined to producing winner-take-all presidents as the race for
running government is a zero - sum game. This is a clear contradiction in Linz’s
thoughts because where an election produces an executive and legislature controlled
by different parties, then clearly this is not a winner-take-all result. As Harowitz has
observed, “it is difficult to complain about inter-branch checks and balances and winner-
take-all politics at the same time.”16 Where a party .

29
does not get the executive but wins the majority of seats in parliament that makes it
more likely that there will be a check on executive power.

In any case, the problem of dual legitimacy is not exclusive to presidentialism but has
afflicted parliamentary systems as well. This has been a common phenomenon in
parliamentary systems with bicameral chambers and each chamber is controlled by a
different party.17 It is the duty of framers of a constitution to anticipate the possibility of
dual legitimacy in modern states and provide for mechanisms of avoiding or resolving
competing claims. Parliamentary systems with bicameral chambers such as Canada,
Germany, and Japan have constitutional provisions which give the upper houses more
power over lower legislatures but are precluded from exercising a vote of confidence
against government.18

17 Ibid

18 Ibid

19 Supra note 259

20 Ibid

3. Rigid or fixed Term

Linz argues that under the presidential system, presidents are elected for a fixed term
in office, after which they have to seek re-election and in many cases presidential
systems have term limits. He considers this as causing rigidity to politics as the term
cannot be modified, shortened or even prolonged. This turns the political process into
“broken discontinuous, rigidly determined periods without possibility for continuous
readjustments as political, social and economic events might require.”19 This, in
Linz’s view, creates chaos if midterm an incumbent president dies or is incapacitated. The
successor, if subjected to a new election, may come from a party different from the
predecessor or even if he comes from the same party as the predecessor, he may simply

30
implement his own policies. Or where the successor was the vice president who was elected
as a running mate, such a person is considered to have been imposed by the president and
may not have the support the president had. In fact, the president may have resorted to
him/her because he/she least presented a threat to the president’s hold on power.

Linz also argues that fixed term limits adversely affect how presidents implement
policies to which their name is tied. The limited time they have in power encourages
a sense of urgency in implementing policies which may lead to ill-conceived policy
initiatives and hasty implementation. As a president is racing against time to build a
legacy for himself/herself, he/she is likely to spend money unwisely. Linz considers that
in the presidential system, it is difficult to remove an inept president as there is no vote of
confidence, leaving only the drastic and difficult process of impeachment.20

Critique: It is true that fixed terms, without a vote of confidence, in presidential systems
can be a serious hindrance to check or remove an ill-performing president. However,
considering that we have defined a presidential system as one where the president is
directly elected by the electorate, which seems to be Linz’s definition as well, then the .

issue of fixed and limited terms is not peculiar to presidential systems. Under the South
African Constitution, for example, where the president is elected by parliament, the
Constitution provides for fixed tenure and limited term in office to two five year terms.21

21 See Section 88(2) Constitution of the Republic of South Africa 1996

22 Supra note 259

23 Mainwaring and Shugart “Juan Linz Presidentialism and Democracy: A Critical

Appraisal” 449- 471

24 Nwabueze Constitutionalism in the Emergent States 57

4. Winner-takes-all

31
In Linz’s view the most important negative implication of presidentialism is that it
turns elections into a zero-sum game which consequently leads to winner-take-all
electoral outcomes. Linz argues that in parliamentary systems, the winning party may
win a majority of seats but the minority would still have representation in parliament,
which could be used as a bargaining chip in coalition building. This is contrary to
presidential system which only produces one winner, however slender their victory
was. The feeling of being elected directly by the people gives the president a “sense of
power and mission that might contrast with the limited plurality that elected him.”22

As a zero-sum game, elections mark off winners and losers for the entire duration of
the presidential term. This is because of the rigidity and fixed term of office of the
president whereby there is no possibility of expansion of alliances, expansion of
government support base or holding of new elections in response to major new
developments in society.

Critique: As already noted above, Linz’s argument that presidentialism as opposed to

parliamentalism is more inclined to produce winner-take-all electoral results is incorrect.
In the UK, which has a long history of the parliamentary system, for example, in the
last three decades the ruling party often won a decisive majority seats and obtained
full control of government, despite winning far less than 50 per cent of the popular
vote.23 During the 2005 elections, as stated above, the Labour Party only got 32 per
cent of the popular vote but managed to get 55.1 per cent of seats in Parliament. In
fact, in Africa, many countries that inherited the Westminster parliamentary model, such
as Ghana and Nigeria, had to abandon it because it produced governments that were not
inclusive, in preference for the presidential system. The parliamentary system bequeathed
upon Nigeria at independence, with a titular president to mirror the British monarchy and
a Prime Minister in charge of government, simply could not hold and led to political
anarchy. Distinguished Nigerian law scholar, Ben Nwabueze, reflecting on some of these
challenges stated:

32
Ministers in Nigeria never regarded themselves as the president’s ministers or the
government as his own. If anything, the Prime Minister regarded himself as the President’s
superior and often behaved as such towards him. There were hardly any attitudes of
personal allegiance, of reverence or of courtesy towards him; he lacked the attribute of
kingly majesty in the eyes of the ministers.24 .

Such experiences indicate that most of the shortcomings that are often associated with the
presidential system are not inherent to it. They exist in other systems as well. What matters
is to engineer the electoral system to specific circumstances of each state.

However, where the presidential system is employed without adequate safeguards for
inclusiveness, it is likely that it will be inclined towards a winner-take-all result and
precipitate conflict. This is likely to be the case where the presidential system uses the
simple majority method of electing presidents. It has been argued that the all-or-nothing
structure of the 1993 Nigerian presidential election made it possible for the military to
annul the election results. This is because the losers of the election felt that they had no
immediate stake in the political outcome and, therefore, readily acquiesced in the
annulment of the election in the hope of being able to run again.25 The same argument is
advanced for Jonas Savimbi’s resumption of conflict in Angola following his 1994 election
loss to Jose Edwardo dos Santos. Equally, it was the same with Dennis Sassou Nguesso’s
military ousting of his successor, Pascal Lessouba, following the Congolese presidential
elections of 1992, as it was felt that losing a presidential election meant losing all.26

25 Ndulo “Presidentialism in Southern African States and Constitutional Restraint on

Presidential Power”

26 Ibid

(Source: O’Brien ., “The Challenge of Adjudicating Presidential Election Disputes in

Africa: Exploring the Viability of Establishing An African Supranational Elections
Tribunal,” LLD Thesis, University of South Africa, 2015) .
33
CONSTITUTION MAKING AND MODES OF ADOPTING THE CONSTITUTION

The making of a constitution

Since the constitution is the basic law of the land from which all other laws derive their
authority, the manner in which the constitution is made has a bearing on its duration. In the
developed democracies constitutions have remained stable for decades or even centuries.
However, developing countries have been characterized by constitutional instability. This
has been attributed mostly to the fact that such constitutions have lacked legitimacy.

Zambia, like many African countries, has experienced constitutional instability since
independence. It has had four constitutions in the last thirty-nine years, namely, the
Independence Constitution 1964; the One-Party Constitution 1973; the 1991 Constitution;
the 1996 Constitution ( i.e. the 1991 Constitution was so substantially revised as to produce
a new constitution); and the 2016 amendment.

Since the constitution is the supreme law of the land from which the government derives
its power, it should not change with each change of regime. As it embodies the values and
aspirations of the people it should endure over generations.

Legitimacy of the constitution

The major reason for constitutional instability in Africa is that the constitutions of many
states lack legitimacy or moral authority. The legitimacy of a constitution is concerned with
how to make it command the loyalty, obedience and confidence of the people.

Professor Nwabueze, has noted that:

“It cannot be disputed that a major cause of the collapse of constitutional government in
many of the new states was the general lack of respect for the constitution among the
populace and even among the politicians themselves. The state itself is an alien, if also a
beneficial creation; its existence is characterised by a certain artificiality in the eyes of the
people and it is remote from their lives and thought.”
34
To be legitimate a Constitution should be generally understood by the people and be
acceptable to them. It cannot hope to command the loyalty, respect and confidence of the
people if they neither understand nor accept it. In order to achieve the necessary
understanding and acceptance, a constitution needs to be put through a process of
popularisation, with a view to generating public interest in it and an attitude that everybody
has a stake in it, that it .

is the common property of all. Needless to point out that the people must be made to
identify themselves with the constitution.

A constitution would, in the absence of this sense of identification, of attachment and

involvement, always remain a remote, artificial object, with no more real existence than
the paper on which it is written.

A prerequisite for the legitimacy of the constitution is that people should be involved in
the process of its making. It is only then that a constitution can have reality for, and become
the property of, the people whose affairs it is to govern; only so can it hope to win their
confidence, respect and loyalty.

Modes of adopting a constitution

(a) Constitution Review Commissions

Successive Presidents in Zambia have used the device of a Constitutional

Review Commission to change the existing Constitution. Commissions are

appointed under the Inquiries Act. The Commissions have made recommendations to the
government on the basis of which the Government has presented constitutional bills for
adoption by Parliament. There have been five such Commissions since Independence:

35
 The Chona Commission, which was charged with recommending the manner and form
the One Party state should take (1973).

The Mvunga Commission, which was tasked to recommend the type of

Constitution Zambia should enact to usher in the Third Republic (1991).

The Mwanakatwe Commission which was tasked to come up with a new constitution
to replace the 1991 Constitution, which was said to contain a lot of defects.

The Mung’omba Commission in 2003 tasked to come up with a new constitution; and
the. The process led to the Constitution Conference Act 2007 under which a National
Conference was held. The Bill emanating from that process was defeated in the National
Assembly in 2010.

Silungwe Technical Committee on drafting the National Constitution (TC) in

2011.(Appointed under then Article 33-Executive Powers). This led to the 2016
Constitutional amendment.

In 2019, parliament passed the National Dialogue Act. Read it. The process resulting from
the Act led to the drafting of the Constitution of Zambia (Amendment) Bill No. 10 of 2019.
Read the Bill.

Setting up a Constitutional Review Commission is preferred by Presidents because it

enables them to control the making of the constitution from start to finish. This is because
under the Inquiries Act:

The President can appoint persons of his choice to be commissioners, including the
chairperson.

The President determines the terms of reference for the commission.

36
 Under section 5 of the Inquiries Act, the Commission can only make recommendations
to the President, who is not bound by such recommendations.

In practice once the Commission has made recommendations after considering

submissions from the public (written and oral submissions) it presents a report to the
President. The President and his Cabinet then choose the recommendations they like and
reject those they do not like. The government then presents a constitutional bill before the
National Assembly.

Since in the past the National Assembly has been under the firm control of the President
as a result of there being either no opposition MPs (during the one party era) or too few to
make a difference (during the Chiluba era), constitutions have been adopted with ease,
often without serious debate. Each constitution adopted has reflected the interests of the
ruling class, and not the people, because in all past constitutional review exercises the
government has rejected progressive recommendations which would have changed the
power balance.

In 1996, for example, the Chiluba government rejected at least 70 per cent of the
recommendations made by the Mwanakatwe Commission including the recommendation
that the Constitution should be adopted by a Constituent Assembly followed by a
referendum.

Professor Anyangwe has aptly observed that Constitutions made in this way do not endure:

“Generally drafted by a political coterie, in a hurry, upon a calculation of exigencies,

without even consultation with other major stakeholders, many of these so-called
constitutions are often a mere collection of rules of convenience administered by each
ephemeral regime. They never really constitute the legal basis of the states themselves.

37
Aware of the precarity of his own power and the fleeting nature of his own regime, each
succeeding head of state never bothers to produce a durable constitution. Consequently,
the basic law of many an African state has become a precarious document that inevitably
perishes with the particular regime which introduced it.”

Parliament, as the final authority in the adoption of the constitution, has not played its role
as a guardian of the peoples interests. Voting on constitutional bills has been conducted on
partisan lines. Since ruling party MPs lack independence from the President and look to
the President for appointment to ministerial positions, they have basically been voting in
accordance with the President’s wishes, not the wishes of their constituents.

Read these cases: Derrick Chitala (Suing as Secretary General of ZDC) v Attorney General
(1995-1997) ZR 91; Nkumbula v Attorney General (1972) ZR 111 (HC); and Nkumbula v
Attorney General (1972) ZR 204 (CA).

Law Association of Zambia and Chapter One Foundation Limited v Attorney General
2019/CCZ/0013/14

Read also the following articles: .

Pamela Towela Sambo and O’Brien ., “Law Association of Zambia and Chapter One
Foundation limited v Attorney General,”Saipar Case Review Volume 3 Issue 1, 2020

Ndulo M and Beyani C, Amidst Conversations with the Deaf: The Struggle for a Legitimate
and Democratic Constitution in Zambia (http://saipar.org/wp-
content/uploads/2013/09/Ndulo-and-Beyani_Amidst-Conversations-with-the-Deaf-The-
Struggle-for-a-Legitimate-and-Democratic-Constitution-in-Zambia.pdf )

Ndulo M, Zambia’s Unfulfilled Struggle for a New Constitution: Comments on the 2016
Constitution (http://saipar.org/wp-content/uploads/2016/04/SAIPAR_Discussion-
Paper_No-1_April-2016.pdf )

b)Constituent Assembly
38
The creation of a Constituent Assembly would seem to be a more promising alternative. A
Constituent Assembly is a body of persons that has been specifically elected or selected to
create or adopt a new Constitution. The mandate of the members usually only extends to
the making of a new Constitution. Many of the new democracies such as South Africa,
Ethiopia, Uganda and Namibia, have used a Constituent Assembly. The American
Constitution, which is the oldest written constitution, was adopted by a Constituent
Assembly (Convention) which met for two years in Philadelphia.

Advantages of Constituent Assembly (Prof Alfred Chanda):

1. A Constituent assembly could be more representative of the Zambian people than the
National Assembly is. In terms of its composition it would be a larger, more inclusive and
broad-based body. The composition would be inclusive of all the stakeholders. The
members would be elected or selected to represent specific interest groups.

2. Furthermore, in terms of legitimacy, participation at elections of members of the

Constituent Assembly is more likely to be massive than the low voter turnout often seen in
parliamentary elections. What this means is that the Constituent Assembly is more likely
to have a stronger popular mandate to perform its appointed task than the National
Assembly will.

3. The Constituent Assembly will work independently and will be free from the control of
any person or group of persons. It will be better placed to advance the national interest than
the President and the National Assembly who may be tempted, as has happened in the past,
to put their narrow, personal interests above those of the nation.

4. Moreover, a Constituent Assembly conceived as a sovereign body will have complete

authority to deliberate upon and enact the Constitution, for it will be sovereign in its own
right. It will not depend on any outside body to authorize its actions, either before or after
its work is concluded.

39
5. It is the desire of the majority of Zambians, as evidenced from press statements issued
by the church, NGOs, chiefs and others, that the next Constitution should be adopted by a
Constituent Assembly.

6. There is need to have a break in Zambia’s legal or constitutional continuity, which

stretches back to the Zambia Independence Act 1964, a British statute. Zambia needs a
constitution sanctioned by, and deriving its legitimacy, directly from the people of Zambia.
The ringing phrase ‘we the people of Zambia’ must be given concrete meaning.

7. Adoption of the Constitution by a Constituent Assembly will impart concrete meaning

to the idea of the Constitution as being derived from the people, which notion transcends
the realms of legal fiction into a political reality.

C)Adoption by Committee of Experts

This method uses a small committee of experts in the process of elaborating and adopting
the constitution. Kenya is a good example of this. The Constitution of Kenya (Amendment)
Act, 2008 provided for the legal framework and established four organs to facilitate the
review process for Kenya. The Constitution of Kenya Review Act, 2008 provided for the
establishment or recognition of the four organs to be involved in the facilitating the review
process and drafting the new constitution (Committee of Experts; The National Assembly;
The Parliamentary Select Committee; The Referendum- People of Kenya).

1. The Committee of Experts

40
The Committee of Experts comprised of nine persons, three were non Citizens of Kenya
nominated by the National Assembly and appointed by the president. The Committee of
Experts and the other organs were required by the law to take into account certain
guidelines in their work. The guiding principles of the review process are provided for in
Sections 4, 6, 23 and 29 of the Review Act, 2008. This is aimed to serve as a framework
that guides the organs responsible for the review process. The guiding principles set out in
the Review Act are as follows:

1. Ensuring that national interests prevail over regional or sectoral interests and that there
should be accountability to the people of Kenya;27

2. The review process should be able to accommodate the diversity of the people and to
ensure that the people of Kenya have the opportunity to actively, freely and meaningfully
participate in generating and debating proposals on a new constitution;28

3. The process must be guided by the principles of stewardship and responsible

management, respect for the principles of human rights, equality, affirmative action, gender
equality and democracy.29

27 Section 6(a)(b) The Constitution of Kenya Review Act, 2008 on the guiding principles
7

28 Section 6(c) (d) (ii) iv)

29 Section 5 Constitution of Kenya Review Act, 2008. .

The aforementioned principles were aimed at ensuring that the outcome of the process
faithfully reflects the wishes of the people of Kenya.

Why constitutions have failed to stand the test of time

41
1. There has been no enduring constitution in Zambia. This is because the various
constitutions have lacked legitimacy, mainly as a result of the method of their adoption.

2. The constitutions have been imposed on the people by the rulers. The Independence
Constitution of 1964 was imposed on Zambia by the departing British colonial government.
Subsequent constitutions have reflected the interests of the ruling elite.

HISTORICAL DEVELOPMENT OF THE ZAMBIAN CONSTITUTION

Constitutional development during colonial rule 1890-1964

Company Rule 1899-1924

Prior to the imposition of colonial rule in the 1890s Northern Rhodesia did not exist as
a single, unified entity. Various parts of the territory were occupied by various ethnic
groups, all having separate, independent administrations of varying strengths.

The single most important individual responsible for the colonization of Central Africa
was John C. Rhodes, head of the British South Africa Company (hereinafter referred to as
the BSA company), who wanted British power and influence to spread from the Cape to
Cairo.

He sent his representative, Lochner, to Barotseland to sign a concession with King

Lewanika of the Lozi tribe, which dominated the western part of the territory. On June 27,
1890 the Lochner Concession was signed. It granted the BSA company absolute rights over
vast regions north of the Zambezi. It covered the "whole territory of the said (Barotse)
nation or any future extension thereof, including all subject and dependent territory."

The Concession covered a vast area. In the North-West the boundary went as far as the
Zambezi-Congo watershed, and further East it followed the course of the Kafue River.

42
 In return, the company promised to civilize the people by the provision of schools and
industrial establishments. It also promised an annual royalty of 2,000 pounds.

In spite of the signing of the Concession in 1890 the BSA company left Barotseland
alone for almost a decade. It was only in 1897 when a British Resident, Major Robert
Coryndon, who was a close associate of Rhodes, was sent to Barotseland. As the terms of
the Lochner Concession did not confer any administrative powers on the company, the
British Foreign Office demanded a new concession in which Lewanika would grant such
powers and which would also remove the illegal trading monopoly procured by Lochner.

A new concession which closely paralleled the wording of the 1890 agreement, was
drawn up and signed on October 17, 1900. It gave the BSA company administrative
powers, including the right to judge cases "between white men and between white men and
natives" and to "make grants of land for farming purposes in any portion of the Batoka and
Mashukulumbwe (Ila) country to white men approved by the king,.”

Between 1904 and 1909 Lewanika gradually ceded complete control of all land outside
Barotseland proper, to the BSA Co., to be disposed of to settlers "as it was from time to
time required, on whatever terms the company considered just, the company retaining
money from such disposition of land."

The Occupation of North-Eastern Rhodesia

The British penetrated from the East, where the African Lakes Company had been
operating since 1879 in support of the Scottish missionaries around Lake Nyasa.

Between 1889 and 1911 a series of treaties were signed between African chiefs and
Rhodes’ representatives, namely, Harry Johnson, Alfred Sharpe, and Joseph Thomson. In
return for trade goods, illiterate chiefs granted extensive rights to the Charter Company.

43
These treaties were the only legal title which either the Crown or the BSA Company had
obtained to the region of the Upper Kafue, the economic heartland of the territory.

The treaties gave the Charter Company the right "to search, prospect, exploit, dig for,
and keep all minerals and metals, to carry on a wide range of business including the
manufacture and import of arms and ammunition of all kinds and to do such thingsas are
incidental or conducive to the exercise, attainment, and protection of all or any of the
rights, powers and concessions hereby granted."

African tribes that refused to sign treaties were defeated on the battlefield. For instance,
the Ngoni under King Mpezeni put up a spirited fight in 1898 but they were overwhelmed
by superior firepower. Mpezeni's headquarters were captured on January, 25, 1898.
Mpezeni was captured and imprisoned, and his son was killed; villages were burnt down,
and Ngoni cattle were confiscated.

In 1897 Major Forbes was appointed as administrator of the North-Eastern Regions,

with his Headquarters in Nyasaland.

Administration of North-Eastern and North-Western Rhodesia

In 1899 the territory was formally divided into two administrative units called

North-Western Rhodesia and North-Eastern Rhodesia. The two territories had been
declared protectorates in 1893.

North-Eastern Rhodesia

Detailed provisions were made for the administration of the territory by the company
under the North-Eastern Rhodesia Order in Council.

This Order was amended in 1907 and 1909. It was passed by the British government by
virtue and in exercise of the powers conferred under the Foreign Jurisdiction Act, 1890

44
Legislation made by the Queen in Council was known as an Order in Council. It
superceded any local enactments made in the colonies.

The company derived its administrative powers from its Charter and the Order in
Council. At the head of the administration was a company appointed Administrator, who
was assisted by an Executive Council. This comprised: the senior judge, ex officio; and not
less than three members.

The Administrator and his Council were empowered to make, alter and repeal
regulations for the administration of justice, the raising of revenue, and generally for the
peace, order and good government. But to be valid, such regulations had to be approved,
at the outset, by the British High Commissioner to South Africa, who was the supervising
authority. The Commissioner could also legislate for the territory (such legislation was
known as Queens Regulations) as could the British government. The High Commissioner
exercised direct control over the military police forces.

A High Court, with original civil and criminal jurisdiction over all persons and over all
matters within the territory, was created. It applied English Law as modified by local
legislation, and enjoyed the same power as English Courts. The High Court Judges, who
were paid by the Company, were nominated by the Company and appointed by the Colonial
Secretary. They held office during good behavior. They could only be removed by the
Colonial Secretary, who also had to approve any changes in their salaries.

Magistrate Courts, staffed by personnel appointed by the Company, were also created.
All appointments of Magistrates and Assistant Magistrate had to be approved by the
Commissioner and confirmed by the Colonial Office. A magistrate could at any time be

45
removed from office by the Colonial Secretary, or by the Administrator with the prior
approval of the Colonial Secretary.

Protection of African Interests Under the North Eastern Rhodesia

Order in Council

The Order-in-Council contained the following provisions meant to protect the natives.

In civil cases between natives the courts had to be guided by native law as long as it was
not repugnant to natural justice or morality, or to any legislation.

All contracts concerning land between Africans and Europeans had to be certified by
Magistrates, in order to be valid.

The Company was required from time to time to assign land to Africans for their
occupation. However, all mineral rights in such land were vested in the Company.
Therefore, the Company could remove natives from their land if it needed the land for
mineral development or for some other public purpose.

Lastly, no conditions, disabilities or restrictions could, without the previous consent of

the Colonial Secretary, be imposed on natives by regulation, which did not equally apply
to non-natives.

Native affairs were administered directly by the Secretary for Native Affairs, Native
Commissioners and Assistant Native Commissioners, all of whom were appointed by the
Administrator.

North Western Rhodesia .

46
 The style of administration as well as the degree and extent of imperial control in North-
Western Rhodesia differed from that of North-Eastern Rhodesia.

This was because in the former there was already in existence a strong centralized
African State ruled by King Lewanika. Its existence was acknowledged by treaties such as
the Lochner Concession, 1890, and subsequent treaties between the BSA Company and
Lewanika. For instance, the Land and Minerals Treaty of 1900 provided that the BSA.
Company was "not to interfere in any matter concerning the King's power and authority
over his subjects."

Consequently, the Lozi traditional government was left intact, largely free from
interference by the company or by the imperial government.

North-Western Rhodesia was closely linked to South Africa, and in fact, the British High
Commissioner for South Africa was made the Legislative authority for the territory. He
could make proclamations to provide for the administration of justice, for the raising of
revenue, and generally for the peace, order, and good government, and for the prohibition
and punishment of acts tending to disturb the peace.

As in North-Eastern Rhodesia, the High Commissioner in making proclamations, was

to respect any native laws. Again, as in North-Eastern Rhodesia, the imperial government
retained its checking power of disallowance of any undesirable legislation, through the
Colonial Secretary.

Amalgamation of North-Eastern and North-Western Rhodesia, 1911

On August 17, 1911 North-Eastern Rhodesia and North-Western Rhodesia amalgamated

into one country called Northern Rhodesia, pursuant to the Northern Rhodesia Order-in-
Council, 1911.

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 Except for a few provisions the 1911 Order was the exact replica of the North-Eastern
Rhodesia Order-in-Council 1900 (as amended). The BSA Company continued to rule the
territory through an Administrator, who was assisted by an Executive Council which
comprised the Resident Commissioner, Senior Judge, and three other members appointed
by the Company, with the approval of the Colonial Secretary.

The Administrator was bound by the advice of the Council upon all matters of
importance except in urgent cases. The High Commissioner for South Africa was not only
the supervising authority, but he could also issue proclamations for the territory. In making
proclamations, the High Commissioner had to consult the Administrator. He also had to
respect native laws or customs. The High Commissioner also had direct control of the
military police forces.

A unified High Court was created with full jurisdiction, civil and criminal, over all
persons and over all matters in Northern Rhodesia. English Law and procedure applied.
But Acts of the U.K. Parliament enacted after the amalgamation did not apply to the
territory. Magistrate Courts were also created. The appointing

authority, manner of appointment, power and privileges of judges and magistrate were a
replica of those in the North-Eastern Rhodesia Order-in-Council, 1900.

Appeals lay from Magistrates Courts to the High Court and then to the Privy Council.

The protective provisions relating to natives contained the North-Eastern Rhodesia

Order-in-Council, 1900 were reproduced, verbatim in the 1911Order.

48
 Moreover, Barotseland's special status was preserved. As under the previous Orders in
Council the BSA Company retained the mineral rights in all land assigned to natives and
could remove the natives whenever it required such land.

The provisions relating to native administration under the North-Eastern Rhodesia

Order-in-Council were reproduced verbatim in the 1911 Order.

Africans were not represented in government, as the BSA Company operated the
government exclusively for the benefit of White settlers. African rights were, as a result,
violated at will notwithstanding the so-called protective provisions contained in the Order.
On no account did the Crown use its reserved powers to check abuses of human rights by
the Company. The most common forms of human rights violations were hut tax and forced
labor. Hut tax was imposed for two reasons: (a) to make Africans contribute to the cost of
administration; and (b) as a means of forcing labor to centers of employment.

Crown Rule 1924-63

The rising cost of administering the territory forced the BSA Company to cede control
of Northern Rhodesia to the Crown in 1924. This was based on the Devonshire Agreement.
The Constitution of Northern Rhodesia consisted of the Northern Rhodesia Order in
Council, 1924, the Northern Rhodesia (Legislative Council) Order in Council, 1924, and
the Royal Instructions.

The Executive

All executive power was vested in the Governor, who was also Commander-in-Chief of
all the military forces. He was appointed by his Majesty, the King, and served during his
Majesty's pleasure. He inherited all the powers that had previously been vested in the

49
Administrator and the High Commissioner. The Government's powers were not subject to
any effective check. He was only accountable to his Majesty.

Thus, the Governor had power:-

a) To alienate land

b) To appoint public officers and prescribe their functions, and to discipline such officer

c) To grant pardons

d) Exclusive power to propose legislation dealing with the budget

e) To appoint Judges and Magistrate

f) To confirm death sentences, etc.

g) To initiate legislation

h) To assent to Bills or Veto them

The Governor was assisted by an Executive Council, whose role was merely advisory.
The Executive Council comprised the Chief Secretary, the Attorney general, the Treasurer,
the Secretary for Native Affairs, the Principal Medical officer, persons holding office in
the public service appointed by the Governor (called Official members), persons who did
not hold office in the public service appointed by the Governor (called Unofficio Members).

The Governor presided over meetings of the Executive Council. Although he was
required to consult with the Executive Council in most matters he was not bound by its
advice.79 In any case where he acted contrary to the advice of the Executive Council he

50
was required to fully report the matter to the Crown, with the grounds and reasons of his
actions.

The Legislative Council

One of the most significant organs created in 1924 was the Legislative Council
(hereinafter called the LegiCo), which comprised the Governor as President, five ex officio
members, four Nominated Official Members, and five Elected Unofficial Members. Both
Nominated Official Members and Nominated Unofficial Members were appointed by the
Governor subject to confirmation or disallowance by the Colonial Secretary. For a long
time the number of Official Members was always greater than that of elected ones.

In 1929 the number of Elected Unofficials was raised to seven. Parity of Officials and
Elected Unofficials was only reached in 1938. The number of Unofficial Members
exceeded that of the Official Members for the first time in 1945 (8 elected and 5
nominated). In 1948 Officials and Elected Unofficials each had ten seats. The number of
Elected Unofficials was in 1954, raised from ten to twelve while the number of Officials
was reduced from ten to eight.

The Governor presided over the meetings of the LegiCo. His dominance of the LegiCo
was assured by provisions which empowered him: to appoint (or nominate) the majority of
its members; to suspend erring members; to dissolve or prorogue the Council; to have the
casting vote; to assent to Bills or to veto them, etc. Moreover, only the Governor was
authorised to propose any Bill, vote or resolution the object or effect of which was to
impose any tax or dispose of or charge any part of the public revenue.

51
 The LegiCo was empowered to enact laws (called ordinances) for the administration of
justice, the raising of revenue and generally for the peace, order and good government of
N. Rhodesia.89 Africans were denied a role in both the Executive Council and the
Legislative Council.

The Judiciary

The High Court, Magistrate's courts, and native Commissioner's courts were created. All
judges, Magistrates and Native Commissioners were appointed by the Governor.

The provisions pertaining to jurisdiction, procedure, and type of law to be applied in the
High Court and Magistrates Courts, closely paralleled those of the Northern Rhodesia
Order-in-Council of 1911. Appeals lay from Native Commissioner's Courts to Magistrates
Courts and from the latter to the High Court and finally to the Privy Council in London.

Protection of African Interests

The scheme for the protection of the interests of Natives under the 1911 Northern
Rhodesia Order-in-Council was, save for a few minor modifications, retained in its entirety
in the 1924 Order.

Thus, all ordinances were to respect native laws and customs; in civil cases between
natives the courts were to be guided by native law so long as it was not repugnant to natural
justice, or morality or to any other laws.

52
 Discrimination against natives was forbidden save with respect to the supply of arms,
ammunition and liquor. As under the 1911 Order, Natives could not be removed from their
land except after full inquiry by, and by order of, the Governor. Furthermore, in order to
be valid, land transactions involving natives had to be certified by Magistrates. The special
status of Barotseland was recognised.

Section 40 provided as follows:

(1)It shall not be lawful for any purpose whatever to alienate from the chief and people of
the Barotse, the territory reserved from prospecting by virtue of the concessions from
Lewanika to the BSA C., dated the 17th day of October, 1990, and the 11th day of August,
1909.

(2)All rights reserved to or for the benefit of natives by the aforesaid concessions as
approved by the Secretary of State shall continue to have full force and effect.

Again, as under the 1911 Order, the Crown retained the power to legislate for the
territory and also reserved the right to disallow any ordinance passed by the Legislative
Council. A new provision imposed a duty on

the Governor to reserve any Bills passed by the Legislative Council which contained
differentiating measures for the signification of His Majesty's pleasure, which meant de
facto, the pleasure of the British government.

Once a Bill was reserved, it did not become operational until His Majesty, the king gave
instructions upon such a Bill through the Colonial Secretary. One of the classes of Bills

53
that required His Majesty's signification concerned "any Bill ....whereby natives may be
subjected or made liable to any conditions, disabilities or restrictions to which persons of
European descent are not also subjected or made liable".

Another new provision enjoined the Governor to promote religion and education among
the natives, and especially take care to protect them in their persons and in the free
enjoyment of their possessions, and by all lawful means to prevent and restrain all violence
and injustice which may in any manner be practiced or attempted against them.90

Land Rights

Thousands of Africans were deprived of their land in order to make way for European
settlement. The Government sought to encourage further European immigration by setting
aside blocks of land for exclusive European use. This land, from which Africans were
excluded, was located along the line of rail between Livingstone and Katanga.

Under the Northern Rhodesia (Crown Lands and Native Reserves) Order-in-Council,
1928-63 land was demarcated into Crown Land and Native Reserves, the latter being lands
set apart for the sole and exclusive use of the Natives. Crown Land was vested in the
Governor on behalf of his Majesty, while Native Reserves were vested in the Secretary of
State (for the Colonies).

Although Reserves were essentially a permanent habitat of Africans, Europeans could

acquire interests in land therein for a maximum term of five years, if this was considered
by the Governor to be in the interests of the Africans. Moreover, mineral exploitation was
permitted in the Reserves. Crownland was alienated to White Settlers. Africans living in
Crown Land were removed and forced to move into Reserves.

54
 About 60,000 Africans were expelled from crown land. Within a few years the Native
Reserves became overcrowded, and seriously deteriorated.

The Government was forced in 1947 to provide more land to Africans. Instead of
creating new Reserves the Government created a new category of land called Native
Trustland, which differed from Reserves in terms of the duration of the alienable interest
to a non-native. The alienable interest (or right of occupancy) that could be granted to a
non-native in Trustland was 99 years as opposed to five years in Reserves. Land could be
granted to a non-native so long as, in the opinion of the Governor, it was in the interests of
the Community as a whole.95

However,Trustland, like Reserves, was vested in the Colonial Secretary "for the use or
common benefit, direct or indirect, of natives.”96 Thus, by 1947 a kind of apartheid in land
had been created, with Europeans having the best land, in unlimited quantities, while
Africans were confined to overcrowded and poorly endowed pit-holes called Reserve and
Native Trustland.

Native Courts Ordinance, 1936

The Native Courts Ordinance established Native Courts, which administered African
Customary Law and which had jurisdiction in minor criminal and civil matters where
Africans alone were involved. Lawyers were barred from these courts as were non-
natives.103 District Officers and Provincial Commissioners were empowered to review
Native Court decisions.

55
Federation of Rhodesia and Nyasaland

Establishment

The proposals for federation were approved by the House of Commons in March 1953.
The British Government justified the imposition of Federation in economic terms: large
market; and large population., etc.

In April 1953 motions were passed in favour of the scheme in the Legislatures of
Northern Rhodesia and Nyasaland. In Southern Rhodesia the proposals were approved by
referendum. The Federal Constitution came into operation in October 1953.

Africans opposed federation for several reasons:- they feared that their lands would be
taken as land happened in Southern Rhodesia; they assumed that their educational and
occupational opportunities would be restricted by new forms of racial discrimination; and
that federation would threaten their political advance. They viewed the federation simply
as a vehicle put forward by the White settlers to achieve selfgovernment and to entrench
their position with the aid of Whites in Southern Rhodesia.

Organs of Government

The Federation was created by the Federation of Rhodesia and Nyasaland (Constitution)
Order in Council, 1953. The Constitution was appended thereto.

Executive Powers

The Federation was headed by the Governor-General, who was also Commander-in-
Chief of the Federation. He was appointed by Her Majesty, the Queen, and was her
representative in the Federation. The executive

56
.

powers of the Federation were vested in her Majesty but were exercised on her behalf by
the Governor-General.

The Governor-General was assisted by a Prime Minister and other Ministers, all of
whom he appointed. These constituted the Executive Council, which advised the Governor-
General in the government of the Federation.The power to appoint, promote, transfer, and
dismiss, and to exercise disciplinary control over Federal Civil Servants was vested in the
Governor-General.

The executive authority of each of the territories continued in accordance with their
respective constitutions.Northern Rhodesia and Nyasaland retained their Protectorate
status while Southern Rhodesia remained a self-governing colony.

Legislative Powers

The Legislative powers of the Federation were vested in the Federal Legislature although
Her Majesty reserved the right to legislate for the Federation.

The Federal Assembly consisted of the Speaker and 59 members, 44 of whom were
elected. Of the 44 elected members 24 were from Southern Rhodesia, from Northern
Rhodesia and 6 from Nyasaland. At its inception the Federal Assembly comprised 35
members only but this was raised to 59 in 1957.

Africans were vastly outnumbered in the Federal Assembly despite the fact that they
constituted the overwhelming majority of the population. Only twelve seats were allocated
to African members. Three seats were reserved for specially elected European members

57
with special responsibility for African interests. Of the eight African Members, four were
elected in Southern Rhodesia, two each in Northern Rhodesia and Nyasaland.

As regards the specially elected members, two each were elected in Northern Rhodesia
and Nyasaland. Of the three Europeans responsible for African interests, one was elected
in Southern Rhodesia and one in Nyasaland.

The Federal Constitution was designed to maintain White domination in all spheres of
government. The fifteen members who represented African interests had little impact as
they were vastly outnumbered by the White settlers. Worse still, Africans who were elected
to the Federal Assembly were elected on a very restricted franchise, which denied the vote
to the vast majority of Africans.

The Governor-General could assent to Bills or withhold his assent. He could also reserve
a Bill for the signification of Her Majority's pleasure. Her Majesty had the power to annul
any legislation passed by the Federal Legislature by exercising her power of disallowance.

Judicial Powers .

The Federal Supreme Court was established as the highest court of appeal in the
Federation. It consisted of the Chief Justice as President and Federal Justices, all of whom
were appointed by the Governor-General. The courts in the territories continued exercising
their civil and criminal jurisdiction as before.

Appeals lay from the territorial High Courts to the Federal Supreme Court and from the
latter to the Privy Council in London, whose judges were drawn from the House of Lords.

Apart from having appellate jurisdiction the Federal Supreme Court had exclusive
jurisdiction in certain matters:- (a) in any dispute between the Federal Government and a

58
Territory or between Territories; (b) to hear and determine matters relating to the election
of Federal Assembly Members; (c) any matter in which a writ or order of mandamus or an
injunction or interdict is sought against an officer or authority of the federation; and (d) to
decide questions as to the interpretation of the Federal Constitution referred by a lower
court.

Protection of African Interests

The Federal Constitution attempted to allay African fears of European domination by

creating a standing committee of the Federal Assembly called the African Affairs Board.

The Board, which consisted of three Europeans and three Africans, was expected to look
out for African interests. The Board comprised the two specially appointed European
members and the specially elected European member; and one African member of the
Federal Assembly from each of the three territories to be elected by all the members of the
Board. The chairman and vice-chairman were appointed by the Governor-General from
among the Board Members.

Its primary function was to draw attention to any Bill introduced in the Federal Assembly
and any Statutory Instrument, if that Bill or Statutory Instrument was, in its opinion, a
"differentiating measure."

The expression "differentiating measures" meant: “A Bill or Instrument by which

Africans are subjected or made liable to any conditions, restrictions or disabilities
disadvantageous to them to which Europeans are not also subjected or made liable, or a
Bill or Instrument which will in its practical application have such an effects.”

All proposed bills had to be submitted to the Board for scrutiny before they were
introduced in the Federal Assembly.

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In July 1959 the British Government announced the appointment of an

Advisory Commission (the Monckton Commission) with the following terms of reference:

“In the light of the information provided by the Commission of officials and of any
additional information the Commission may receive, to advise the five Governments, in
preparation for the 1960 (Federal) Review, on the .

Constitutional programme and framework best suited to the achievement of the objects
contained in the Constitution of 1953, including the preamble.”

The Commission's Report in October, 1960 marked the beginning of a lengthy period of
constitutional negotiations which eventually concluded with the granting of the Northern
Rhodesia Constitution of 1962. It emphasized the "almost pathological dislike" of the
Federation among Africans in Northern Rhodesia and Nyasaland and the belief held by
African nationalists that Federation had been a major obstacle to their constitutional
advance. The Commission's important recommendation for Northern Rhodesia was that
“there should be an African majority in the Executive Council so constituted as to reflect
the composition of the Legislative Council.”

It called for an immediate declaration by the BR Government that these steps would be
taken in the near future and suggested that a constitutional conference be held without
delay. .

FEATURES OF THE 1991 (CURRENT) CONSTITUTION AS SUBSEQUENTLY

AMENDED

THE EXECUTIVE

Executive Authority

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 Article 90 states that executive authority derives from the people and shall be exercised
in a manner compatible with the principles of social justice and for the people’s well-being
and benefit.

Article 91(1) establishes the office of the President of the Republic of Zambia, who shall
be the head of State and Government and Commander in Chief of Defence Force. By
having the President both head of government and state, all executive power vests in one
person.

All executive power vests in the president, who may exercise that power directly or
through other public officers or other persons appointed by the president. Check the
definition of “public officer” under Article 266.

Functions of the President

The functions of the President are listed under Article 92(2):

(a) Appoint ambassadors, high commissioners, plenipotentiaries, diplomatic

representatives, consuls and heads of international organisations;

(b) Receive and accredit foreign ambassadors, high commissioners, plenipotentiaries,

diplomatic representatives, consuls and heads of international organisations;

(c) Negotiate and sign international agreements and treaties and, subject to the approval of
the National Assembly, ratify or accede to international agreements and treaties;

(d) Establish, merge and dissolve government ministries, subject to the approval of the
National Assembly;

(e) Appoint persons as required by this Constitution or any other law to be appointed by
the President;

(f) Appoint persons as required to perform special duties for the Executive;

61
(g) Confer honours;

(h) Sign and promulgate proclamations as specified in this constitution or as prescribed;

(i) Initiate Bills for submission to, and consideration by, the National Assembly; and

(j) Perform other functions specified by this constitution or as prescribed.

Power of Appointment

The Constitution vests enormous power in the president relating to the appointment of
public officers. The President has power to constitute offices for the public service and to
abolish those offices (article 174(1)). Article 185(1) vests the president with power to:

(a) Appoint and confirm public officers;

(b) Exercise disciplinary control over public officers; and

(c) Terminate the employment of a public officer.

This power, however, is required to be exercised by relevant Service Commissions (Article

185(2)).

More specifically, the president appoints the following:

(a) Ministers and provincial ministers (articles 116, 117)

(b) Secretary to the Cabinet (Article 176(1))

(c) Attorney General (article 177(1))

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(d) Solicitor General (article 179(1))

(e) Director of Public Prosecutions (Article 180(1))

(f) Secretary to the treasury (article 183(1))

(g) Permanent secretaries (article 184(1))

(h) Governor of the Central Bank (article 214(1)).

(i) Public Protector (article 243(1))

(j) Auditor General (Artilce 249(1))

(k) Chief Justice, Deputy Chief Justice, president of the constitutional court, deputy
president of the constitutional court and other judges (article 140).

Ratification by the National Assembly

The Constitution entitles the President to make virtually all important appointments to
the public service and to make all the major decisions relating to the welfare of the state.
The exercise of this power in many instances is indicated as subject to the National
Assembly approval or ratification. According to Chanda (2005) the requirement of
ratification by the National Assembly of certain appointment is meant to act as a check on
presidential power. It is designed to ensure that the people appointed by the President have
integrity, proven ability and experience.

However, the Constitution has inbuilt clauses that in reality negate the significance of
the National Assembly (NA) in this regard. For example, Article 94(1) of the Constitution
states that where an executive function is subject to NA approval, the NA should give its
approval within 21 days. If it declines, the President shall refer the matter to the
Constitutional Court for determination (Article 94(2)) and its decision shall be final. The
provision effectively means that the NA’s rejection of an executive decision or action

63
cannot cause a lapse of that action. Instead, the President has been given a subtle
mechanism to always get his way out.

Similarly, when it comes to ratification of presidential appointments (Article 95) by the

NA, the amended constitution has guaranteed the President almost unchecked power. The
Constitution states that where the NA twice rejects a presidential appointment (or even
delays in making a decision) the president shall make a third appointment, which shall take
effect regardless of whether the NA approves or not (Article 95(4)).

The sum effect of Articles 94 and 95 is that the NA can never effectively check on the
executive as the executive has effectively been given powers to by-pass the NA. The NA
is simply required to rubber stamp

executive decisions and actions. Parliamentary disapproval does not lapse those decisions
and actions as the executive can side-step the NA.

Immunity of the President

There are several reasons why heads of government are given immunity. These include:

To protect the dignity of the office of the president;

To ensure that the president has as much freedom as possible in the due execution of the
duties of his/her office;

To avoid court proceedings from distracting the president in the execution of his/her
duties.

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Article 98 immunizes the president or those acting in the executive from prosecution from
criminal or civil action. The provision is more extensive than was the case prior to the 2016
amendment:

a) Now includes not just the president but all those who act in the executive office (Article
109). These include the Vice President and anyone who acts when the president and the
vice president are both not available (Article 98(1)).

b) Article 98(2) is so extensive that if interpreted literally the President cannot institute any
action including personal actions such as divorce

c) Article 98(7) gives the concerned person who held office of president to appear before
the National Assembly when it is considering a motion for the removal of his/her immunity.
Where immunity is removed, the concerned person can only be charged with an offence
for which immunity was removed (Article 98(9)). This effectively reverses the authority
of Fredrick Jacob Titus Chiluba v Attorney General Appeal No. 125 of 2002 in which the
Court held that the law did not provide for a concerned former president to be heard before
immunity was removed and that once immunity was removed, there were no restrictions
to what offense one could be charged with.

d) Where a person whose immunity was removed is acquitted, his/her immunity is now
automatically reinstated (Article 98(10)).

Note, however, that in the case of Godfrey Miyanda v Attorney General SCZ Judgment No.
9 of 2009 the Supreme Court held that nothwistnding the immunity of the president, there
is nothing to stop the court from determining whether the President in the discharge of his
duties had acted within the law, and granting any remedies found to be appropriate against
the government.

Cabinet .

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Cabinet consists of the President, Vice President, Ministers, and the Attorney-General as
an ex-officio member (article 113). The functions of cabinet are:

(a) Approve and cause to be implemented government policy;

(b) Approve government Bills for introduction to the National Assembly;

(c) Approve and Cause the national budget to be presented to the National Assembly;

(d) Recommend accession and ratification of international agreements and treaties to the
National Assembly;

(e) Recommend, for approval of the National Assembly: i)loans to be contracted by the
State; and ii)guarantees on loans contracted by State institutions or other institutions; and

(f) Advise the president on matters relating to the performance of executive functions.

Vacation of Cabinet Office

Article 72(1) requires a member of parliament, except the Speaker and the First Deputy
Speaker, to vacate office upon dissolution of parliament. There was controversy in the 2016
election regarding status of ministers on dissolution of parliament. The confusion was in
part due to article 116(3) of the constitution which does not include dissolution of
parliament among the grounds for dissolution occurrence of vacancy in cabinet.

Nevertheless, the Constitutional Court held that once Parliament is dissolved, ministers had
no basis for staying in office as they are appointed from within parliament. See the case of
Stephen Katuka and Law Association of Zambia v The Attorney General, Ngosa
Simbyakula and 63 Others Selected Judgment Number 19 of 2016.

Number of Ministers

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Article 116(1) requires number of ministers to be prescribed. Pursuant to this article,
section 3 of the Ministers (Prescribed Number and Responsibilities) Act No. 26 of 2016
states that the number of ministers shall not exceed 30.

Collective Responsibility

Article 114(2) states that cabinet shall take collective responsibility for cabinet decisions.
Hilaire Barnett states that the convention of collective responsibility “emphasizes the
unanimity of government and its accountability to parliament.” According to Barnettt, the
rationale for collective responsibility lies in the need for government to present a united
front to parliament and to the public in order to maintain confidence. It has two strands:

a) Once an agreement has been reached in cabinet, all members of cabinet are bound to
speak in support of the decision; and

b) Records of cabinet discussions are absolutely secret.

THE LEGISLATURE

Legislative authority derives from the people of Zambia and should be exercised in a
manner that protects the Constitution and promotes the democratic governance of the
country (article 61);

Article 62(1) establishes Parliament, which consists of the President and the National
Assembly. The implications of this is to water down the separation of powers as the
Executive is merged with the legislative branch.

Functions

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The functions of the National Assembly are to oversee the performance of executive
functions by (article 63(2):

a) Ensuring equity in distribution of national resources amongst the people of Zambia;

b) Appropriating funds for expenditure by state organs, state institutions, provincial

administration, local authorities and other bodies;

c) Scrutinizing public expenditure, including defence, constitutional and special

expenditure;

d) Approving public debt before it is contracted; and

e) Approving international agreements and treaties before these are acceded to or ratified.

Composition

The National Assembly consists of (article 68(2):

a) 156 members directly elected on the basis of a simple majority vote under the first-past-
the post system;

b) Not more than 8 nominated members;

c) The Vice-President;

d) The Speaker; and

e) The First and Second Deputy Speakers

Dissolution of Parliament

Parliament stands dissolved 90 days before the holding of the next general elections (article
81(3)). An MP, except the Speaker and First Deputy Speaker, should vacate office upon
dissolution of Parliament.

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In Stephen Katuka and Law Association of Zambia v The Attorney General, Ngosa
Simbyakula and 63 Others Selected Judgment No. 29 of 2016 the Constitutional Court held
that once Parliament is dissolved, there is no basis on which to hold ministerial office, and,
therefore, Cabinet equally stands dissolved on dissolution of parliament.

Powers and Privileges .

An MP has freedom of speech and debate in the National Assembly which shall not be
ousted or questioned in a court or tribunal (article 76(1).

Further, an MP has powers, privileges and immunities as prescribed (article 76(2)).

(for authorities, read cases below, the constitution and the National Assembly (Powers and
Privileges) Act, as amended by the National Assembly (Powers and Privileges)
(Amendment) Act No. 13 of 2016)

Read the article: O’Brien . and Pamela Towela Sambo, “Chishimba Kambwili v Attorney
General” Saipar Case Review, Volume 3 Issue 1.

CASES

Chishimba Kambwili v Attorney General 2019/CC/009

The People v The Speaker of the National Assembly RM Nabulyato Ex Parte Harry
Mwaanga Nkumbula (1970) ZR 97

Attorney General and the Movement for Multiparty Democracy v Lewanika and Others
(1993-1994) ZR 164

Fred M’Membe, Lucy Sichone and Bright Mwape v Attorney General and the Speaker of
the National Assembly SCZ No. 4 of 1996

Attorney General v the Speaker of the National Assembly and Ludwig Sondashi SCZ No. 6
of 2003

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In Re Akashambatwa Mbikusita Lewanika 2002/HN/123

Fred M’membe and Bright Mwape v the Speaker of the National Assembly, the
Commissioner of Prisons and the Attorney General 1996/HCJ/X

Stephen Katuka and Law Association of Zambia v The Attorney General, Ngosa
Simbyakula and 63 Others Selected Judgment No. 29 of 2016

JUDICIARY

The judiciary: judicial power and organisation; appointment and qualification of judicial
officers; autonomy of the judicature; the concept and practice of judicial independence,
limitations of judicial power.

Source of Judicial Authority

Article 118(1): “The judicial authority of the Republic derives from the people of Zambia
and shall be exercised in a just manner and such exercise shall promote accountability.” .

Article 119(1): Judicial authority vests in the judiciary and shall be exercised by the courts
in a manner consistent with the constitution and the law.

Article 119(3): Proceedings of court shall be in public, unless as excepted by this

constitution, other laws or as ordered by the courts.

Court Structure

a) Judiciary consists of superior courts and the following courts: subordinate courts; small
claims courts; local courts; and courts as prescribed (article 120(1)).

b) Superior courts are the Supreme Court, Constitutional Court, Court of Appeal, and High
Court.

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c) All courts are courts of record, except the local court, which shall progressively become
a court of record. Being a court of record means the court takes down details of proceedings
as close as possible or verbatim

d) Supreme court and Constitutional Court rank equivalently (article 121)

Appointment of Judges

a) The president, on the advice of the JSC, appoints the CJ, Deputy CJ, President of the
Constitutional Court, Deputy President of the Constitutional Court, and other judges
(article 140).

Qualifications as a Judge

b) Proven integrity (article 141(1))

c) SC: Has been a legal practitioner of at least 15 years;

d) CC: has been legal practitioner of at least 15 years and has specialized training or
experience in human rights or constitutional law

e) CA: for at least 12 years

f) HC: at least 10 years.

Tenure

a) A judge shall retire from office at the age of 70 years (142(1))

b) A judge may retire with full benefits at the age of 65 (article 142(2))

c) CJ and President of CC hold office for not more than 10 years and thereafter revert to
ordinary judges (article 142(3))

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d) A judge who wishes to take appointment outside the judiciary shall retire from judicial
office (article 142(6))

Removal of Judges .

Grounds for removal

a) Mental or physical disability that makes the judge incapable of performing judicial office
(article 143(a)

b) Incompetence;

c) Gross misconduct; or

d) Bankruptcy

Removal Process (article 144)

a) Removal may be initiated by the Judicial Complaints Commission or complaint made to

the JCC, based on grounds in article 143

b) Where JCC find a prima facie case, it submits report to President

c) President within 7 days of receipt of report shall suspend the judge from office and
inform the JCC

d) The JCC shall then, within 30 days, hear the matter or constitute a medical board if the
complaint relates to physical r mental health

e) Where the JCS finds the complaint unsubstantiated, it recommends to the president
revocation of the suspension, who shall immediately revoke the suspension

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f) If the JCC finds the complaint substantiated, it shall recommend removal of the judge
and the president shall immediately remove the judge

g) Proceedings of the JCC shall be in camera

h) Where the JCC had constituted a medical board, see article 144(8) to(10)).

Read the case of Peter Sinkamba v Hildah Chibomba, Mungeni Mulenga, Ann
Sitali,Margaret Munalul and Palan Mulonda 2016/JCC/84

On the status of magistrates and their removal process, read the cases of:

Benjamin Mwelwa v Attorney General Selected Judgment No. 9 of 2019

Chama Mutambalilo v Attorney General Selected Judgment No. 32 of 2019

Independence of the judiciary

Refers to capacity to hear and determine matters without external pressure or influence.

Three factors matter: .

a) Appointment: appointment of judges lacks transparency. Vacancies not openly

advertised. This leaves a lot of room for patronage. Makes it difficulty to ensure judges are
appointed on merit. That’s a danger to judicial independence

b) Removal: the 2016 amendment has reduced the powers of the president in the removal
of judges. Prior to 2016 the president could trigger the removal process (see the case of
Attorney General v Nigel Kalonde Mutuna, Charles Kajimanga and Philip Musonda
(Appeal No.088 2012))

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c) Conditions of service: The president still sets the conditions of service for judges.
Nothing has changed.

Cases

(These cases are mandatory reading)

The Attorney General v Nigel Kalonde Mutuna, Charles Kajimanga and Phillip Musonda
(Appeal No. 088 of 2012)(2013) ZR

Godfrey Miyanda v The High Court (1984) ZR 62

Godfrey Miyanda v Mathew Chaila (Judge of the High Court) (1985) ZR 193

Sebastian Saizi Zulu v The People (1991) (SCZ No. 7 of 1991) ZR

Rev. Tegerepay Gusta and Elias v The People (1988) (SCZ No. 29 of 1988) ZR

Elias Kundiona v The People (1993-1994) ZR 59

The Attorney General and Another v The People SCZ Judgment No. 34 of 1999

Benjamin Mwelwa v Attorney General Selected Judgment No. 9 of 2019

Chama Mutambalilo v Attorney General Selected Judgment No. 32 of 2019

ELECTORAL SYSTEM

Introduction

In a democracy, government governs on basis of the consent of the people. The electoral
process, therefore, determines how the people will exercise their right to constitute
government and who will hold elective political office. Through elections the people confer
power on the leaders but also hold leaders accountable for their performance as the people
potentially can vote out those who failed to perform to their expectations. In order for .

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the people to play this role appropriately, Hilaire Barnett states that the electoral process
needs to meet at least the following four principles:

a) That there is full franchise, subject to limited restrictions;

b) That the value of each vote cast is equal to that of every other vote;

c) That the conduct of election campaigns is regulated to ensure legality and fairness; and

d) That the voting system is such as to produce both a legislative body representative of
the electorate and a government with sufficient democratic support to be able to govern
effectively.

The Franchise

A citizen who has attained the age of 18 years of age is entitled to be registered as a voter
and to vote in an election by secret ballot (article 46). The right to vote or franchise is, by
virtue of this provision, unlimited. The provision is unqualified. This provision can be
contrasted with the repealed article 75(1) which was qualified and provided: “Every citizen
of Zambia who has attained the age of eighteen years shall, unless he is disqualified by
Parliament from registration as a voter for the purposes of elections to the National
Assembly, be entitled to be registered as such a voter under a law in that behalf, and no
other person may be so registered.”

However, the Electoral Process Act No. 35 of 2016 has limitations on who qualifies to
vote. Section 9(1)(d)(e)and(f) as read with section 47 restrict the rights of prisoners to vote.
Section 47 categorically states: “A person shall not be entitled to vote at an election if, at
the date of the election, that person is in lawful custody or the person’s freedom of
movement is restricted under any written law.” Considering that the Constitution is
supreme, and the clause in the constitution providing for franchise is unqualified, it means
that provisions in the Electoral Process Act that are inconsistent with the Constitution are
a nullity. The Constitutional Court, in the case of Godfrey Malembeka (Suing as Executive

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Director of Prisons Care and Counseling Association) v Attorney General and The
Electoral Commission of Zambia 2016/CC/0013 Selected Judgment Number 34 of 2017,
held that that provisions in the Electoral Process Act that prohibit prisoners from voting or
registering to vote were unconstitutional.

Section 8 provides for qualifications for one to register as a voter:

8. (1) A person qualifies for registration as a voter if that person—

(a) is a citizen of Zambia;

(b) has attained the age of eighteen years; and

(c) is in possession of a national registration card.

Electoral System

Simple majority system

This is sometimes called “first-past-the-post” (FPP). Its strength lies in its simplicity. The
person who gains the largest number of votes in the election wins the seat, irrespective of
the proportion of the votes cast for .

himself/herself or his/her opponents. Mwanawasa, for example, only got 29 percent of

votes to win the presidency. It can, however, be argued that a person who assumes authority
in such a manner has no authority from the majority of the citizens to preside over national
affairs and, therefore, lacks legitimacy. The simple majority system has been criticized for
this. Wade (1989) has famously stated: “If it is accepted that a democratic Parliament ought
to represent so far as possible the preferences of the voters, this system is probably the
worst that could be devised.”

The simple majority is still used in Zambia for the following elections:

a) Elections to the National Assembly (Article 47(2);

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b) Elections to councils (47(3)

When it comes to the election of the president, the simple majority has been used from
1996 to 2016. The independence constitution required one to be elected with more than 50
percent. This was repealed by the Chiluba regime in 1996. The Constitution of Zambia
(Amendment) Act No. 2 of 2016 now provides under article 47(1) as follows: “Elections
to the office of President shall be conducted directly, under a majoritarian electoral system,
where the winning candidate must receive more than fifty percent of the valid votes cast,
and in accordance with Article 101.”

The president, therefore, is no longer elected on the basis of simple majority but qualified
majority or majoritarian system.

Reforming the Simple Majority system

There have been several calls to reform the simple majority system in Zambia especially
in relation to the National Assembly elections. For example, the Electoral Reforms
Technical Committee (ERTC) led by Mwangala Zaloumis had recommended adopting a
mixed electoral system that combines the simple majority and proportional representation.
The Technical Committee on Drafting the Constitution led by former Chief Justice Annel
Silungwe had proposed in its first draft constitution to completely abandon the simple
majority in preference for proportional representation. Clause 75 of the 2012 draft
Constitution Provided: “Elections to the National Assembly shall be conducted under a
proportional representation system where a candidate is elected from a multi-member
constituency in an Electoral District, in accordance with Article 135.” These
recommendations were rejected by the government.

Reasons for suggesting reform of the simple majority system include the following:

a) That the composition of the legislature as a whole must reflect the wishes of the
electorate;

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b) A National Assembly that does not reflect the electoral composition or preferences of
voters lacks legitimacy;

c) A simple majority National Assembly leaves no room for representation of smaller

parties or parties with support diffused across the country and not localized in one
constituency (for example, a smaller party may get about 5 percent of votes across the
country but may not win a single constituency seat);

As already noted, the proposal in Zambia has often been to introduce Proportional
Representation (PR), in whole or in part. Proportional representation takes many forms but
in outline this means each party participating in an election draws a list of candidates
nominated by that party. Then the votes of each party’s list are calculated on a national
wide basis (or some other basis) and the parties are then allocated seats in the National
Assembly in direct proportion to the votes received overall.

The following weaknesses of PR have been noted:

a) It would destroy elections on the basis of constituencies as we know them today. There
would be no specific representative for a specific geographical area.

b) Too much patronage would be placed in the hands of political parties. Since parties draw
up nomination lists, and individuals voters do not vote directly for specific individuals, the
voter has no direct influence on who goes to the National Assembly

c) Weak government: a common effect of proportional representation is that governments

are often returned with a small majority of seats. As a result, minority parties with few
seats may hold a disproportionate amount of power, making the government a lot

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dependent upon such parties in order to successfully implement its policies. This, therefore,
means that the electorate can never be sure that even if they voted for the successful
government, policies will be implemented as pledged as the government is forced to make
compromise deals with smaller or other parties in oder to govern.

Electoral dates

a) A general election shall be held, every five years after the last general election, on the
second Thursday of August (article 56(1)

b) The day of the general election shall be a public holiday (article 56(2))

c) Where a vacancy occurs in the office of MP, council chairperson, mayor or councilor, a
by-election shall be held within 90 days of the vacancy (article 57(1)).

d) However, a by-election shall not be held within 180 days prior to the election (article
57(2)).

Qualifications for Election .

Member of Parliament

The qualifications for one to run as an MP are listed under article 70(1) and a person is
eligible to stand if that person:

a) Is a citizen;

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b) Is at least 21 years old;

c) Is a registered voter;

d) Has obtained, as a minimum academic qualification, a grade 12 certificate or its

equivalent; and

e) Declares that person’s assets and liabilities, as prescribed.

In the 2016 general election, there was a lot of political debate relating to the issue of
possession of a grade 12 certificate (article 70(1)(d). The question was often about the
status of a person who may not have a grade 12 certificate but has other more advanced
qualifications at tertiary level. The High Court, in Sibongile Zulu v Attorney General and
the Electoral Commission of Zambia 2016/HB/24 , held that a person who did not have a
grade 12 certificate but had higher tertiary qualifications satisfied the requirements of the
provision.

Disqualifications for an MP are listed under article 70(2).

Challenging the Election of an MP

Standing

Article 73(1) states: “A person may file an election petition with the High Court to
challenge the election of a Member of Parliament.” Article 266 defines a person as follows:
“ “ person ” means an individual, a company or an association of persons, whether
corporate or unincorporated.” It seems such a person is not required to demonstrate any
specific interest. Section 98 of the Electoral Process Act, however, seems to walk away
from that. Considering that the constitution is supreme, the provisions that depart from the
constitution are a nullity.

The petition shall be heard within 90 days of its filing (article 73(2). An appeal from the
High Court lies to the Constitutional Court (Article 73(3).

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An MP whose election is being petitioned shall hold office pending the determination of
the election petition (Article 73(4)). See the ruling clarifying the law on this matter in the
case of Scott v Mwanakatwe Appeal No. 14 of 2016 (The High Court had held that once
the petition was determined by the High Court and the election nullified, then the concerned
MP ceased to be a member of the House regardless of the pendency of an appeal. This was
reversed by the Court of appeal).

Grounds for Challenging an MP Election .

The challenging of the election of an MP can only b through an election petition filed in
the High Court (section 97(1) Electoral Process Act 2016).

The grounds for petitioning an election are stated under section 97(2) of the Electoral
Process Act 2016 as follows:

(2) The election of a candidate as a Member of Parliament, mayor, council chairperson or

councillor shall be void if, on the trial of an election petition, it is proved to the satisfaction
of the High Court or a tribunal, as the case may be, that—

(a) a corrupt practice, illegal practice or other misconduct has been committed in
connection with the election—

(i) by a candidate; or

(ii) with the knowledge and consent or approval of a candidate or of that candidate’s
election agent or polling agent; and the majority of voters in a constituency, district or
ward were or may have been prevented from electing the candidate in that constituency,
district or ward whom they preferred;

(b) subject to the provisions of subsection (4), there has been non-compliance with the
provisions of this Act relating to the conduct of elections, and it appears to the High Court
or tribunal that the election was not conducted in accordance with the principles laid down
in such provision and that such non-compliance affected the result of the election; or
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(c) the candidate was at the time of the election a person not qualified or a person
disqualified for election.

Reliefs

There are only two reliefs the High Court can provide in a parliamentary election petition.
These are stated under section 99 of the Electoral Process Act 2016 as follows:

Any of the following reliefs may be claimed in an election petition:

(a) a declaration that the election was void; or

(b) a declaration that any candidate was duly elected.

See also section 108 Electoral Process Act 2016.

Electoral Offences

See part VII of the Electoral Process Act.

Effect of corruption .

Since independence the electoral laws have been to the effect that a single act of corruption
is sufficient to invalidate an election as corruption is a dent on the integrity of a candidate,
rendering him/her unsuitable for public office. See the case of Paul John Firmino Lusaka
v John Cheelo (1979) ZR 99 (HC). The Electoral Process Act 2016, however, reversed this.
Section 97(2) subjects corruption to the materiality test of “the majority of voters in a
constituency, district or ward were or may have been prevented from electing the candidate
in that constituency, district or ward whom they preferred.” Section 97(3) further
categorically states that “the High Court or a tribunal shall not, by reason only of such
corrupt practice or illegal practice, declare that election of the candidate void.”

President

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Qualifications for a presidential candidate are listed under article 100(1). A person qualifies
for election as president if that person:

a) Is a citizen by birth or descent (prior to the 2016 amendment the requirement was for
both parents to have been citizens by birth or descent);

b) Has been ordinarily resident in Zambia;

c) Is at least 35 years old;

d) Is a registered voter;

e) Has obtained, as a minimum academic qualification, a grade 12 certificate or its

equivalent;

f) Is fluent in the official language;

g) Has paid that person’s taxes or has made arrangements, satisfactorily to the appropriate
tax authority, for the payment of the taxes;

h) Declares that person’s assets and liabilities, as prescribed;

i) Pays the prescribed election fee on, or before, the date fixed for the delivery of
nomination papers; and

j) Is supported by at least 100 registered voters from each province;

Disqualifications are listed under article 100(2).

Election of the President and assumption of office

a) The Returning Officer (ECZ chairperson and no longer the CJ) declares the presidential
candidate who received more than 50 percent of the valid votes cast during the election as
president-elect (article 101(2);

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b) If at the initial ballot no candidate got more than 50 percent, a runoff election is held for
the top two candidates (article 101(3)) within 37 days of the initial ballot;

c) The presidential candidate who receives the majority of votes cast in the second ballot
shall be declared president-elect (article 101(8)).

d) The president-elect shall be sworn into office by the CJ, or Deputy CJ if CJ unavailable.

e) The president-elect shall be sworn into office on Tuesday following-(a) the seventh day
after the date of the declaration of the presidential election results, if no petition has been
filed in accordance with article 103; or b) the seventh day after the date on which the
Constitutional Court declares the election to be valid.

Petitions

The framework governing the resolution of contested presidential elections is convoluted

and confusing (articles 101 to 105) as the provisions are not drafted in either logical or
chronological manner.

The general position seems to be as follows:

(a) A person may within 7 days of the declaration of results petition the Constitutional
Court to nullify the election of a presidential candidate who took part in the initial ballot
on the ground that: The person was not validly elected; or (b) the provisions of this
constitution or other law relating to presidential elections was not complied with(articles
101(4) and 103(1)).

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(b) The Constitutional Court shall hear such a petition within 14 days of the filing of the
petition(articles 101(5) and 103(2)). (In the Hakiande Hichilema and Geoffrey Bwalya
Mwamba v Edgar Lungu and Others 2016 the Constitutional Court held that the court had
no discretion and was bound by the 14 days threshold and, therefore, purported to dismiss
the petition on that pretext).

(c) After hearing the petition, the constitutional court may: (a)declare the election of the
presidential candidate valid; (b) nullify the election of the presidential candidate; or (c)
disqualify the presidential candidate from being a candidate in the second ballot (articles
101(6) and 103(3)). Note that in the Hichilema case, the Constitutional Court did not do
any of these and therefore, the decision seems at variance with the constitution.

(d) A decision of the constitutional court in a presidential election petition is final (articles
101(7) and 103(4));

(e) Where the election is nullified, another election shall be had within 30 days from the
date of the nullification (article 103(5)).

The Electoral Commission .

Article 216 requires all commissions under the constitution to be, among other things,
independent, act with professionalism, and integrity, nonpartisan and impartial. Article
229(1) establishes the ECZ and article 229(2) assigns it functions to:

(a) Implement the electoral process;

(b) Conduct elections and referenda;

(c) Register voters;

(d) Settle minor electoral disputes, as prescribed;

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(e) Regulate the electoral conduct of voters and candidates;

(f) Accredit observers and election agents, as prescribed;

(g) Delimit electoral boundaries; and

(h) Perform such other functions as prescribed.

Is ECZ independent? One has to look at the appointment, composition and nature of tenure
of Commissioners to get an idea.

The Constitution also prescribes broad qualifications all commissioners should meet. To
be appointed a commissioner, one must be a Zambian citizen, a permanent resident in
Zambia, and declare his/her assets and liabilities. In addition, one must be tax compliant;
free from physical and mental disability that would impede the performance of his/her
functions; and not serving a custodial sentence and must not have served such a custodial
sentence of at least three years in the five years immediately preceding the appointment
(Article 240 Constitution of Zambia, 2016). These are, however, general qualifications that
lack specific ingredients that would be relevant to the work of the Commission. It is left to
subordinate legislation to prescribe other qualifications that would be relevant for each
Commission.

The Electoral Commission Act 2016 states that the Commission consists of the
chairperson, the vice chairperson and three other members, appointed by the President and
subject to ratification by the National Assembly (section 5(1) Electoral Commission Act,
2016). Except for the chairperson and the vice who should have held or qualify to hold the
office of a judge of a superior court, there are no further specific qualifications laid down
for commissioners. The 2016 Act does not make any improvement to the repealed
legislation. The president, who is usually either a candidate in elections or leader of the
ruling party sponsoring a candidate, has a free hand in choosing Commissioners. As Ben
Nwabueze has noted, one of the most significant threats to consolidation of democracy and

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constitutionalism in Africa is the granting of powers to the executive to make appointment
of critical positions in the nation without clearly defined and objectively verifiable criteria
with emphasis on experience, expertise and qualifications which should limit appointments
being made on narrow and short-lived political interests (Nwabueze, 2008). .

This has always been pointed out as a major weakness of the system by opposition political
parties. When President Rupiah Banda, for example, had to fill two vacancies in the
Commission during his tenure (2008-2011), he was accused of doing so on the basis of
ethnicity. In 2009, the then two main opposition parties, the Patriotic Front (PF) and the
United Party for National Development (UPND), for example, strenuously objected to the
appointment of a commissioner who was reportedly a close relative of the president. The
opposition political parties were of the view that the president was packing the commission
with allies from his home province. During a debate in the National Assembly, one
Member of Parliament was reported to have openly stated:

Four out of five commissioners are from Eastern Province. I think that’s where the problem
is. Why should we only be talking about people from Eastern Province?[…]. We have a
president from Eastern Province, we have a Chief Justice who is supposed to be a returning
officer from Eastern Province, we have the chairperson of ECZ from Eastern Province (The
Post, November 27, 2009).

Similarly, the President in 2017 terminated the contracts of two commissioners (David
Matongo and Fredrick Ng’andu) who were perceived as independent and professional for
unexplained reasons (Zambian Observer, 2017).

Commissioners enjoy no security of tenure. They are appointed for a term of seven years
and may be re-appointed for a further term of seven years (section 5(3) Electoral
Commission Act, 2016). Their stay in office is precarious as they serve entirely at the
pleasure of the President. Among other grounds for removal, they can be removed from
office by the President for no apparent reason (section 5(5)(f) Electoral Commission Act,

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2016). The President has a blank cheque as regards the removal of Commissioners as
he/she is not obligated to assign any reason nor is he/she or she required to follow any
special procedure. This arbitrary power over the removal of Commissioners in the hands
of a person with a partisan interest in elections not only creates a lopsided playing field but
is inconsistent with the whole idea of an independent or autonomous ECZ.

The appointment and removal of commissioners from the ECZ contrasts remarkably, for
example, with the situation under the South African Constitution. Under the South African
Constitution, the President appoints members of the Commission on recommendation by
parliament, following their nomination by a parliamentary committee proportionally
composed of all parties represented in parliament. The nominees must be approved by a
majority of parliament (section 193(4)and(5) Constitution of South Africa, 1996). Once
appointed, the commissioners are only removable (by the president) on grounds of
misconduct, incapacity or incompetence, supported with a finding to that effect by a
parliamentary committee and a resolution to that effect being .

supported by the majority of parliament (section 194(1) Constitution of South Africa,

1996). The president therefore can only remove a commissioner from office only upon or
after adoption by parliament of the resolution for that person’s removal (section 194(3)(b)
Constitution of South Africa, 1996).

There seems to have been no sincere effort by crafters of the Electoral Commission Act to
create a truly autonomous ECZ that would not operate under the shadow of the incumbent
President. Section 12 of the Act requires all Commissioners and members of staff
employed by the Commission to take oath of office before assuming office in accordance
with the Official Oaths Act. The oath reads:

I………………………………………………………….., having been

appointed/elected/nominated……………………………do swear/affirm that I will well
and truly serve the Republic and the President of Zambia, that I will preserve, protect and

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defend the Constitution of Zambia as by law established; and that I will not directly or
indirectly reveal or transmit any such information or matter as shall be brought under my
consideration, or shall be made to me by reason of my office except as may be required in
the discharge of my duties as such or with the authority of the President (Official Oaths
Act, 1990).

Why should Commissioners of a supposedly autonomous ECZ be required to swear

allegiance to the President, who has a partisan interest in the outcome of elections? There
is no public interest that is served by requiring Commissioners to swear allegiance to the
President. The Oath taken by Commissioners makes it clear that Commissioners operate
under the tutelage of the President. Section 17(1) further makes the Commission
subservient to the President by requiring it to report to the President. The president is given
further powers over the Commission by requiring him to single handedly approve loans,
grants or donations to ECZ as well as any plans by ECZ to invest unspent funds (section
14(2)(a)and(4) Electoral Commission Act, 2016).

Commented [e1]: Note that there was an amendment to the Electoral Commission Act
affecting this part

Further Cases to Read

Sibongile Zulu v Electoral Commission of Zambia and Attorney General 2016/HB/24

Hakainde Hichilema and Another V Edgar Lungu and others 2016/CC/0031 Ruling No.33
of 2016

Hakainde Hichilema and Another v Edgar Lungu and Others 2016/CC/0034

Mailon Mushala and Moses Rindai Chisamba (2008) 1ZR 113

Godfrey Malembeka (Suing as Executive Director of Prisons Care and Counselling

Association) v Attorney General and Electoral Commission of Zambia No 34 of 2017

Nkumbula and Kapwepwe v The Attorney General (1978) ZR 267

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Samuel Miyanda v Samuel Handahu 1994/SCZ/6 .

Akashambatwa Mbikusita Lewanika, Hicuunga Evaristo Kambaila, Dean Namulya

Mung’omba, Ebastian Saizi Zulu and Jennifer Mwaba v Fredrick Jacob Titus Chiluba
(1998) Z. R. 49

Anderson Kambela Mazoka and Others v Levy Patrick Mwanawasa and Others (2005) ZR
140

Sebastian Saizi Zulu and Rodger Chongwe v Attorney General and Nikuv Computers
Limited SCZ Judgment No. 8/75 of 1996

Josephat Mlewa v Eric Wightman (1995-1997) ZR 171

Batuke Imenda v Alex C Luhila SCZ Appeal No. 5 of 2003

Arnold Keith August and Another v The Electoral Commission and Others Constitutional
Court of South Africa Case CCT8/99

Scott v Mwanakatwe 2016/HP/EP0039

Mwanakatwe v Scott Appeal No. 14 of 2016 (Selected Judgment No. 50 of 2018) .

THE ZAMBIAN BILL OF RIGHTS

The Zambian Constitution Chapter 1 of the Laws of Zambia has provided constitutional
protection for civil and political rights. Economic, social and cultural rights were prior to
the 2016 amendment to the Constitution provided for under the directive principles of
state policy. Rights under the directive principles of state policy were not justiciable. The
2016 amendment excluded that part. Instead, an attempt was made to expand the Bill of
Rights, to include enforceable economic, social and cultural rights. The draft Bill of Rights,

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which contained these rights was put to referendum on 11 August 2016, but did not pass
the threshold and, therefore rejected.

Possible reasons for failure of the Bill of Rights at the referendum:

Article 79(3) sets a very high threshold: 50 percent of persons entitled to be registered
as voters;

Referendum only allows for YES or NO vote. No other alternatives. The draft Bill of
Rights had many contentious provisions (such as when life begins) which needed
consensus building before going to referendum. Therefore, if a person was unhappy with
one clause, that may have led them to reject the whole document;

Timing: Holding the referendum together with general elections entailed that voters most
likely took partisan positions;

Compound question: The question had two parts and therefore, not sure which question
respondents were answering: “Do you agree to the amendment to the Constitution to
enhance the Bill of Rights contained in Part III of the Constitution of Zambia and to
repeal and replace Article 79 of the Constitution of Zambia”

Voter apathy: Although Zambia has historically been characterized by voter apathy, the
2016 general election recorded a 56.45% voter turnout. Despite this, the referendum
recorded a low turnout of 44.44% thus rendering it impossible to meet the threshold for a
valid constitutional referendum (before even the votes were counted. Still born).

Lack of institutional steering of the process: The Electoral Commission of Zambia (ECZ)
which is an independent electoral management body served as the referendum commission.
ECZ is required to be neutral by the provisions of the Constitution. This meant that when
questions were asked about provisions in the draft bill of rights or draft Article 79, ECZ
could not support any position or give any justification as that would have been contrary
to its mandate of neutrality. In the 2010 Kenya process, for example, the

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Expert Committee steered the constitution through the referendum and were available to
explain or justify any provisions. In Zambia the TC which drafted the document had been
disbanded.

Lack of insulation: the entire constitution making process was Executive driven; There
was no insulating legal instrument. It is, therefore, possible that some people may have
perceived it as a factional process.

Definition and Importance of Bill of Rights

A Bill of Rights is a list of fundamental rights guaranteed by the Constitution. Alfred

Chanda (2005) lists three advantages of having rights enshrined in the constitution:

a. By enshrining rights in the Constitution, which is the supreme law of the land (Article
1(1) of the Constitution), human rights are elevated as supreme law.

b. It is not easy to amend the Constitution, especially the Bill of Rights because of the
stringent requirements than for ordinary legislation. Article 79 of the Constitution requires
every Bill attempting to amend the Constitution to pass a referendum at which at least 50%
of all those entitled to be registered as voters vote in favour of the amendment.

c. Thirdly, having rights enshrined in the Constitution makes the realization of human
rights predictable as the citizens are well informed of their rights and how to claim them.

Short History of the Zambia Bill of Rights

A Bill of Rights was first introduced in Northern Rhodesia at the introduction of self-
government in 1963. Years preceding this introduction saw rampant and unwarranted

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abuse of native human rights by white settlers who had, from the time of the BSA company
rule through to the colonial times and the creation of the Federation of Rhodesia and
Nyasaland, dominated the territory.

A number of rights were suppressed because a number of laws prohibited certain activities.
At the height of total dissatisfaction by Africans with the suffering which characterized the
Federal era, the British government set up the Monckton Commission in 1960 to look into
means of introducing self-government rule in North Rhodesia. The Commission went
round the territories to gather information from the general public. In its report, the
Commission stated that the findings showed that the Federation was most disliked by
natives. The report stated in part:

The dislike of the Federation among Africans in the Northern territories is widespread,
sincere, and long standing. It is almost pathological.

The report identified racial discrimination as one of the reasons why Africans hated the
Federation. The report therefore called for a reform of the constitutions in order for them
to have wide support. The .

Commission called for legal and political safeguards to be included in both the Federal and
Territorial Constitutions. Legal safeguards were to consist of a Bill of Rights while the
political safeguards were to consist of representation in the councils of the State. The
Commission argued that a Bill of Rights, apart from promoting “greater security” among
all inhabitants of the Federation would:

a. Help allay fears of domination which disturbed the main section of the population, and
give them greater confidence in the future;

b. Provide a criterion or standard upon which institutions, whether political or judicial,

could base their protection of the people’s rights;

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c. Guard the liberties of all persons whether they were Federal citizens, British citizens,
British Protected Persons or allies.

The Monckton Commission recommended that the provision relating to the Bill of Rights
and the Councils of State, be specifically entrenched, to prevent the Legislature from
abrogating them. The Commission further proposed a special procedure for the alteration
of the entrenched provisions. There was to be:

a. an affirmative vote of not less than three-quarters of all the members of the legislature;
and

b. a referendum in which a majority of electors in each of the main racial groups approved
the proposed amendment.

The Monckton Commission urged the British Government to take immediate political steps
to implement the transition to self-government under an African Government. As such in
February 1961, the British government convened a constitutional conference. The
colonial secretary Ian Macleod argued for the introduction of the Bill of Rights in the
Northern Rhodesia Constitution. This suggestion was supported by African chiefs and the
five political parties in existence at the time. The Monckton Commission Report, the bulk
of which was accepted by the British government, had an enormous impact in shaping the
future Constitutional development of Northern Rhodesia. The Northern Rhodesia
Constitution of 1963, which incorporated a Bill of Rights, came into effect on 3rd January
1964.

Form of the Guarantee of Rights

The bill of Rights incorporated in the independence Constitution was modeled on the
Nigerian Constitution of 1963 (first adopted in 1959), which in turn was based on the

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European Convention for the Protection of Human Rights and Fundamental Freedoms of
1950.

The current Bill of Rights is found in Part III of the Constitution and consists of articles 11
to 32. It begins with a general declaration of the rights every person in Zambia is entitled
to regardless of race, place, origin, political opinion, colour, creed, or sex. The following
rights are guaranteed: life; personal liberty; protection from slavery and forced labour;
protection from torture; or inhumane or degrading punishment, or other like .

treatment; protection from deprivation of property; protection for privacy of home and
other property; protection of the law; freedom of conscience; freedom of expression,
assembly and association; freedom of movement; protection from discrimination on
grounds of race, tribe, sex, place of origin, marital status, political opinion, colour or creed;
and protection of young persons from exploitation.

Limitations

The enjoyment of the rights in the Bill of Rights is made subject to a number of limitations
such as respect for the rights and freedoms of others and public interests. In addition
to these two general limitations which apply to all the rights guaranteed, most of the
protected rights contain numerous derogation clauses. The format adopted is that the
right is first protected in broad terms. A succeeding article then qualifies it by outlining
circumstances in which that right may be derogated from. In many instances the
qualifications to the right are so numerous and wide-ranging as to negate the right or render
it almost meaningless.

Scope of Rights

Some of the guaranteed rights have wider scope than others. For example, Article 14(1) of
the Constitution provides that: “No person shall be held in slavery or servitude.” This

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Article is defined in language that admits of no exception. On the other hand, the right to
protection from deprivation of property contains not less than 26 permitted derogations.

Other rights that have wide derogation clauses include freedom of conscience, freedom of
expression, equal protection of the law, freedom of assembly and association, freedom of
movement and freedom from discrimination. The derogation clauses allow the legislature
to enact laws that may result in the taking away of the substance of the rights granted. The
only fetter placed on the legislature is that such laws must be “reasonably required in the
interests of defence, public safety, public order, public morality or public health” and must
be “reasonably required for the purpose of protecting the rights or freedom of others”.

In five categories of rights a person challenging the validity of a law that violates a
guaranteed right must show that the law or the act done under it is not reasonably justifiable
in a democratic society. Examples of such rights include: protection of privacy of the home
and other property (Article 17); protection of freedom of conscience (Article 19);
protection of freedom of expression (Article 20); protection of freedom of assembly and
association (Article 21); and protection of freedom of movement (Article 22). In such cases
the precise limit of the rights and freedoms is dependent on the construction the Court
places upon the phrase “reasonably justifiable in a democratic society”. Needless to say
that such an interpretation will inevitably be influenced by the social philosophy and the
scale of value placed on public interests by the Court.

Enforcement of Guaranteed Rights .

The Bill of Rights is justiciable, that is, a person who feels aggrieved by an action that
hinges on the enjoyment of his/her human rights can petition the High Court for redress.

Article 28 of the Constitution provides…

An instructive case on this point is that of Harry MwaangaNkumbula v Attorney General

(1972) ZR in which the appellant sought to challenge the government’s intention to

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introduce a One Party State even before the relevant legislation was drawn up and
introduced in Parliament. The Court held that the appellant could not validly challenge
a bill unless the same was already law.

Locus Standi

Under Article 28 of the Constitution, only a person whose rights have been, are being or
are likely to be contravened in relation to him can apply to the High Court for redress.
(Note that the Constitutional Court has no jurisdiction over the Bill of Rights. Appeals from
the High Court relating to the Bill of Rights lie with the Supreme Court). This restriction
on locus standi has severely inhibited Constitutional litigation. One cannot, for example,
bring an action to challenge the constitutionality of a law or a governmental action in the
public interest. In contrast, under section 38 of the South African Constitution, for example,
any of the following may bring an action to enforce human rights:

a. Anyone acting in their own interest;

b. Anyone acting on behalf of another person who cannot act in their own name;

c. Anyone acting as a member of, as in the interest of, a group or class of persons;

d. Anyone acting in the public interest; and

e. An association acting in the interest of its members.

Constitution Making and the Substance of the Bill of Rights

Zambia has had five constitutional cycles. At independence in 1964 it inherited a

constitution with a Bill of Rights modelled on the 1963 Nigerian Constitution. Although
the Bill of Rights was entrenched, the entrenchment provision was removed by an
amendment in 1969 achieved by the ‘referendum to end all referenda.’ This made it easy
for the government to make a further amendment in 1973 that abolished multiparty-ism in
favour of one-party rule. Then, in 1991, a new Constitution was passed (though the

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substance of the constitution changed very little) which reinstated multiparty politics. The
1991 constitution brought back the entrenchment clause (Article 79) to lock the Bill of
Rights and, for the first time, expressly affirmed the principle of constitutional supremacy.
In January 2016, the Zambian Constitution, except for the Bill of Rights and Article 79,
was amended. The draft Bill of rights, which purported to integrate social and economic
rights, was subjected to a referendum on August 11, 2016 but did not pass. .

The Bill of Rights was reproduced, with minor amendments, in the independence
Constitution of 1964, the One-Party Constitution of 1973, and the 1991 Constitution. When
the Constitution was amended in 1996 and 2016, the Bill of Rights was left intact. The
form and content of most of the provisions have, therefore remained largely the same
despite the significant changes in the political systems that have taken place since
independence. (The National Dialogue Forum is not mandated to consider the Bill of
Rights).

General constitutional principles

The Constitution of Zambia is the supreme law of the nation and any other law inconsistent
with it is void to the extent of the inconsistency (Article 1(1)). Article 267(1) requires the
entire constitution to be interpreted in accordance with the Bill of Rights and in a manner
that:

a) promotes its purpose, values and principles;

b) permits the development of the law; and

c) contributes to good governance.

Further, Articles 8 and 9 of the 2016 Constitution require courts to have regard to human
dignity, equality and non-discrimination and sustainable development in the interpretation
of the laws and policies.

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All the rights in the Constitution are subject to the general limitation that “the enjoyment
of the said rights and freedoms by any individual does not prejudice the rights and
freedoms of others or public interest”(Article 11). Subject to these limitations, the
underlying Constitutional values relating to the Bill of Rights are non-discrimination
and equality, whereby all individuals in the country are entitled to each of the listed
rights regardless of their ‘race, place of origin, political opinions, colour, creed, sex,
or marital status” (Article 11)

Special Tribunal to Report on Legislation

Members of Parliament can arrest a Bill which infringes the Bill of Rights under Article
27. This article provides for the appointment by the Chief Justice of a special tribunal of
two judges (or persons qualified to be judges) to report on a Bill or a Statutory Instrument
which may be inconsistent with the Constitution. Such a tribunal can only be established if
not less than thirty members of the National Assembly make a request in writing for a
report on a bill or statutory Instrument. In the case of a bill such request must be delivered
to the Speaker within three days after the final reading of the bill in the Assembly. A request
for a report on a statutory instrument must be delivered to the authority having the power
to make the instrument within fourteen days of the publication of the instrument in the
Gazette. .

Overview of Substantive Rights

Right to Life

The right to life is provided under Article 12 of the Constitution. Read it.

The Constitution provides for the right to life but allows for it to be taken away ‘in
execution of sentence of Court in respect of a criminal offence under the law in force in
Zambia’(Article 12(1)). This means that the death penalty can be imposed on crimes
specified under any law in force. It is mandatory on conviction for aggravated robbery

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using a firearm (section 294 Penal Code Act Chapter 87 of the Laws of Zambia) treason
(section 43 Penal Code Act Chapter 87 of the Laws of Zambia) and murder (except where
there are extenuating circumstances)(Section 201 Penal Code).

A case challenging the constitutionality of the death penalty for being inhuman and
degrading was dismissed by the Supreme Court on the ground that the Constitution
expressly contemplates the imposition of the death penalty under article 12(1) (as an
exception to the right to life)( See the case of Benjamin Banda and Cephas KufaMiti v The
Attorney General (2007)(unreported)).

The legitimacy of the mandatory death penalty for some crimes in Zambia was challenged
before the UN Human Rights Committee (HRC), the treaty body responsible for
monitoring the implementation of human rights obligations under the International
Covenant on Civil and Political Rights 1966 (ICCPR). Zambia is a state party to the
ICCPR. In the case of Lubuto v Zambia Commission No. 390/1990.UN. Doc.
CCPR/C55/zd/390/Rev/1.(1995) the applicant was convicted of aggravated robbery using
a firearm, which under Zambian law automatically earned him the death penalty; however,
the Committee found the mandatory nature of the death penalty in Zambia to be
incompatible with the ICCPR.

Both the Zambia Police Act and the Prisons Act, which allow their officers to use firearms
on persons escaping from lawful custody, categorically state that the purpose is not to kill
but to disable ( section 29 of the Prisons Act Chapter 97 of the Laws of Zambia, and section
24 of the Zambia Police Act Chapter 107 of the Laws of Zambia).

An issue that often arises in the context of the right to life is the issue of abortion. Abortion
is regulated by the Termination of Pregnancy Act1, section 3 of which provides:

3. (1) Subject to the provisions of this section, a person shall not be guilty of an offence
under the law relating to abortion when a pregnancy is terminated by a registered medical
practitioner if he and two other registered medical practitioners, one of whom has
specialised in the branch of medicine in which the .

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patient is specifically required to be examined before a conclusion could be reached that
the abortion should be recommended, are of the opinion, formed in good faith-

(a) that the continuance of the pregnancy would involve-

(i) risk to the life of the pregnant woman; or

(ii) risk of injury to the physical or mental health of the

pregnant woman; or

(iii) risk of injury to the physical or mental health of any existing children of the pregnant
woman; greater than if the pregnancy were terminated; or

(b) that there is a substantial risk that if the child were born it would suffer from such
physical or mental abnormalities as to be seriously handicapped.

(2) In determining whether the continuance of a pregnancy would involve such risk as is
mentioned in paragraph (a) of subsection (1), account may be taken of the pregnant
woman's actual or reasonably foreseeable environment or of her age.

(3) Except as provided by subsection (4), any treatment for the termination of pregnancy
must be carried out in a hospital.

(4) Subsection (3) and so much of subsection (1) as relates to the opinion of two registered
medical practitioners, shall not apply to the termination of a pregnancy by a registered
medical practitioner in a case where he is of the opinion, formed in good faith, that the
termination of pregnancy is immediately necessary to save the life or to prevent grave
permanent injury to the physical or mental health of the pregnant woman.

Personal Liberty

Read Article 13 of the Constitution.

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The Article requires that ‘any person who is arrested or detained shall be informed as soon
as reasonably practicable, in a language he understands, of the reasons for his arrest or
detention’(Article 13(2)). The provision does not indicate who is responsible for informing
the person arrested or detained, nor does it set strict timelines within which this is to be
done. Presumably the duty to inform lies with the police or person making the arrest. This
provision has not been incorporated in the CPC. However, as seen below, the CPC requires
that a person who has been arrested without warrant must be brought before court within
24 hours of the arrest.

Article 13 protects personal liberty and simply states that a person must be released if not
tried within a reasonable time. The Constitution has no other provisions relating to bail.

Subordinate legislation, however, allows for bail to be granted by police before the case
moves to trial. Section 33 of the CPC entitles a police officer in charge of a police station
to release an arrested person where, after due inquiry, .

there is insufficient evidence to proceed with the charge. Under the same provision, if a
person who has been arrested for offences which are not serious and not punishable by
death and cannot be brought to court within 24 hours of arrest, such person must be released
on bail. This bail granted at the police station is usually referred to as police bond.

No fee is chargeable for bail granted by police (section 19 of the Zambia Police Act Chapter
107 of the Laws of Zambia,). However, the police may require that the person being
admitted to bail must have sureties undertake that he or she shall appear before court as
required( sections 123 and 16 CPC). In The People v Benjamin SinkwintiChitunguand
Others (1992), the High Court held that the police have power to cancel the bail granted
by them if it appears to them that the accused is about to disappear, leave the country,
interfere with witnesses or is likely to commit a similar offence. It stated, however, that the
bail granted by police does not cease automatically when an accused appears before court.

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Although there is no constitutional limitation to the right to bail, the law lists certain
offences as non-bailable. These include:

murder, treason or any other offence carrying a possible or mandatory capital penalty;

misprision of treason or treason felony;

aggravated robbery; theft of a motor vehicle as a repeat offender of the same offence;
(CPC, s 126 as read with CPC (Amendment ) Act 1993, s 2 and CPC (Amendment) Act
2005, s 2)

where a person is charged with an offence under the State Security Act and the Director
of Public Prosecutions (DPP) issues a certificate that the safety or interest of the state would
be prejudiced( s 123(4) CPC); and

anyone charged with some drug-related offences (s 43 Narcotic Drugs and Psychotropic
Substances Act 1993).

The Article further states that ‘any person who is unlawfully arrested or detained by any
other person shall be entitled to compensation thereof from that other person” (Article
13(4)). In the case of Daniel ChizokaMbandangoma v The Attorney General (1979) ZR 45
(HC), the plaintiff was arrested by police and granted police bond. The police, however,
required him to present himself to them periodically, which he did several times before
being told they had stopped proceedings against him. In an action for compensation for
false imprisonment, the High Court held that police had no power to arrest or detain a
person for the purpose of conducting investigations, and awarded him compensation.

The Article sets no specific length of custody. It simply requires that an arrested or detained
person, if not released on bail, shall be ‘brought without undue delay before a court’(Article
13(3). Under Article 18(1) any person charged with a criminal offence is entitled to fair
hearing ‘within a reasonable time’(Article 18(1)). Section 33 of the CPC .

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requires that where a person is arrested without warrant, that person shall be presented
before court within 24 hours. However, other statutes allow for longer periods of detention
without any requirement to produce the detained person before court. The Immigration and
Deportation Act No. 18 of 2010 empowers an immigration officer to detain suspected
prohibited immigrants for a period not exceeding 14 days while conducting inquiries of
that person( s 38(1)). This is clearly arbitrary power as it does not even require reasonable
suspicion at a minimum. As held in the Mbandangoma case, no one has power to arrest a
person in order to help with investigation.

Protection from slavery and forced labour

Read Article 14.

The Article (14(1)) prohibits the holding of another person in slavery or servitude and
equally prohibits forced labour.

Article 14(3) lists five exceptions to the prohibition against forced labour.

Protection from inhuman treatment

Article 15 states that “A person shall not be subjected to torture, or to inhuman or degrading
punishment or other like treatment.” The Article has no qualifications or exceptions.

In the past, several Zambian laws, including the CPC, provided for corporal punishment,
but its constitutionality was challenged in the High Court in John Banda v The People
HPA/6/1998.The appellant had been convicted of malicious damage to property and
sentenced to one month’s imprisonment, suspended for 12 months, and ten strokes of the
cane. The Court held that the sentence of corporal punishment and its underlying provisions
breached article 15 of the Constitution and were null and void. See also the case of The
People v Ian Kainda HLR/01/2000.

Protection from deprivation of property

Read Article 16.

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The right to property is not absolute as the provision has 27 exceptions or derogations. The
Article has more derogations than any other. Several statutes have a bearing on the
enjoyment of this right. these include: the Land (compulsory) Acquisitions Act; the Town
and Country Planning Act, the Lands and Deeds Registry Act, the Income Tax Act, the
Rates Act, the Public Health Act, etc. The power of eminent domain, that is, the inherent
power of the state to compulsorily acquire private property in the public interest was
exercised by the state in the case of Zambia .

National Holdings Limited and United National Independence Party v the Attorney-
General. Other cases relevant to this right are summarized below (Do not depend on these
extracts. Read the cases in full):

Zambia National Holdings Limited and United National Independence Party v. The
Attorney-General (1993 - 1994) ZR 115 (SC)

The appellants petitioned the High Court challenging a decision by the respondent to
acquire compulsorily under the newly amended Land (Compulsory) Acquisition Act, the
appellant's land being stand No 10934 Lusaka, also known as the new UNIP Headquarters.
The issues raised challenged the Constitutionality and legality of the compulsory
acquisition and the refusal of the Court below to grant an interlocutory injunction
restraining the respondents from taking possession, occupation or entering upon the said
land.

….

Article 16(1) clearly states the general rule, that is, the acquisition must be under a law

which must provide for adequate compensation. Sub-article (2), on the other hand, goes on
to give exceptions to, and not categories of, the general rule. It deals with situations were
an involuntary loss of property could take place even without adequate or any

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compensation. We see no need for a strained and exotic construction of this straightforward
article in the manner attempted, and properly rejected, at the trial.”

In our considered opinion, even assuming that Statutory Instrument 110 of 1992 had not
been passed, ss (1) of s 6 which we have quoted affords a complete answer to Mr. Sakala's
arguments. It obliges that existing laws be read so as to be conformable to the Constitution
so that the word 'adequate', to qualify the compensation and the reference of disputes to the
Court rather than to the National Assembly, would have had to be imported into cap 296.
This Act was not unconstitutional for any of the reasons advanced by the appellants.”

Patel v. The Attorney-General (1968) ZR 99 (HC)

This is A reference to the High Court pursuant to section 28 (3) of the Constitution of
Zambia….

The circumstances in which this reference was made are as follows. On the 11th May,
1968, the applicant, Mr. JasbhaiUmedthai Patel, was served with a summons charging him
with (1) doing an act preparatory to the making of a payment outside Zambia, contrary to
regulation 9 of the Exchange Control Regulations, 1965, and section 6 of the Exchange
Control Act (Cap. 276) and, in the alternative, (2) attempting to export currency, contrary
to regulation 17 (1) of the aforementioned Regulations and section 6 of the aforementioned
Act and section 352 of the Penal Code (Cap. 6). The particulars to both charges consisted
.

of the allegation that, on diverse dates between 3rd and 10th May, 1968, at Ndola, he placed
or caused to be placed in the post sixty - five airmail envelopes for transmission outside
Zambia, addressed to 55 Oakfield Road, London N.4, each containing eight ten - kwacha
notes, making a total of K5,200, it being alleged that, in relation to charge (1), this was an
act preparatory to the making of a payment outside Zambia, and, in relation to charge (2),
that this was an attempt illegally to export a total of K5,200 legal tender in Zambia. After
a number of adjournments, the matter was heard on 28th June, 1968, at the Ndola
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Magistrates Court, before Mr W. Bruce - Lyle, the Senior Resident Magistrate. The
question was, therefore, referred to the High Court for determination. Accordingly a
reference was signed on 8th August, 1968, by Mr Cave, on behalf of the applicant, and Mr
Heron, on behalf of the respondent, in the following terms:

WHEREAS in proceedings in the Subordinate Court of the First Class for the Ndola
District holden at Ndola in the case of the above - mentioned criminal prosecution, a
question arose as to the contravention of one or more of the provisions of Chapter 3 of the
Constitution of Zambia

NOW THEREFORE William Bruce - Lyle the person presiding in the said Court, not being
of the opinion that the raising of the said question was merely frivolous or vexatious did
refer the following questions to the High Court:

1. Did the opening, examination and seizure of the postal article constitute a contravention
of the applicant's right to privacy of property as guaranteed by section 19 of the
Constitution.

2. Did the opening, examination and seizure of the postal article constitute a contravention
of the applicant's freedom of expression as guaranteed by section 22 of the Constitution.
On the opening of the proceedings before me, Mr. Cave submitted a third question, as
follows:

3. Did the opening, examination and seizure of the postal articles constitute a contravention
of the applicant's right to protection from deprivation of property as guaranteed by section
18 of the Constitution.

….

Although we have not yet reached the stage where any property of the applicant's has been
compulsorily acquired, I am satisfied on the evidence that property belonging to the
applicant has been taken possession of and that this was done without his consent. It was
therefore, taken possession of compulsorily. Unless, therefore, it can be shown, and, as I

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have held, shown by the State, that this taking possession was done in the excepted
circumstance, prima facie there has been a breach of the applicant's right under section 18

….

The nexus between this and exchange control is, to my mind, so clear that I do not think
one could reasonably argue to the contrary. I am satisfied, therefore, that the taking of
possession, so far as it affects section 18, was expedient for a scheme of exchange control
which was designed in order to secure the development of the nation's financial resources
for a purpose beneficial to the community. .

….

I have already said that I consider that exchange control comes within the excepted
derogation in paragraph (a) (ii) of subsection (1) and that the exchange control legislation
under which the taking of possession was effected was expedient for that purpose.

Protection for privacy of home and other property

Read Article 17.

Article 17 provides that no person, unless consenting thereto, “shall be subject to the search
of his person or his property or the entry of others on his premises” (Article 17(1)). The
provision, however, allows for several derogations or exceptions so broadly framed as to
render it almost meaningless. These include acts done in the interest of defence, public
safety, public order, public morality, public health, town and country planning, protection
of the rights and freedoms of others, inspection of premises by those entitled by law, and
for purposes of enforcing a judgment order of court (Article 17(2)(a)(b)(c)and(d)). As shall
be seen below, the courts have upheld arrests based on illegally obtained evidence in
contravention of this constitutional provision.

The Zambia Police Act(as amended by Act No. 14 of 1999) allows a police officer of at
least the rank of sub-inspector to carry out any search of premises for purposes of
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investigating a crime, provided the suspicion is based on reasonable grounds (section 15).
Such search requires a warrant issued by a magistrate, except where an officer suspects a
crime is being committed in his proximity or the matter is urgent.

In Liswanisov The People (1976) ZR 272 however, the Supreme Court upheld the
validity of an arrest and conviction that was based on an illegal police search.

Section 11 of the state Security Act, relating to public security, gives the president powers
to order any person by warrant who owns or controls any apparatus within the country used
for the sending or receipt of telegrams to produce originals and transcripts of all telegrams
of any specified class or description (section 17(1)).

The Constitution does not have a specific provision on the suppression of evidence
collected in violation of constitutionally protected rights. However, arising from the
provision on the supremacy of the Constitution in terms of which any other law in violation
of its provisions is null and void, it should be obvious that any evidence collected in
violation of the Constitution should not stand. The courts have taken a self-contradictory
position that effectively undermines the supremacy of the Constitution. While they have
readily suppressed evidence obtained as a result of confession induced by torture, they have
equally readily admitted evidence produced as a result of illegal searches violating the right
to privacy. In the view of the courts, such evidence is admissible as long as it is relevant
to the matters and that it is not the duty of the court to be concerned with the methods
by which evidence is obtained .

( Read these cases in full: Liswaniso v The People (1976) ZR 277 (SC); and LiswanisoSitali
and Others v Mopani Copper Mines PLC (2004) ZR 176 (SC)).

Protection of law and fair trial

Read Article 18.

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Trial by independent and impartial court: The Constitution entitles every defendant to trial
by “an independent and impartial court established by law” (Article 18(1)). In John Ezekial
Mumba v The People (2006) ZR 93 the Supreme Court quashed the conviction of the
accused because a military officer who took part in investigating the case also sat as a
member of the court-martial that convicted him, thus calling that court’s impartiality into
question.

Presumption of innocence: Article 18(2)(a) of the Constitution indicates that every person
who has been charged with a criminal offence ‘shall be presumed innocent until he is
proved or has pleaded guilty’. The presumption of innocence entails that a defendant ‘shall
not be subject to unnecessary pre-trial deprivation of freedom’(Chanda, 211). This
provision, read together with article 13(3) which entitles a person to conditional or
unconditional release, seems to suggest that it overrides any statutory provisions
prohibiting bail for certain offences. The Supreme Court acknowledged in
ChetankumarShantkal Parekh 1995/SCZ/11/a that Article 13(3) overrides any prohibitions
on bail in lesser laws, but took the view that its application only kicks in when trial is
unreasonably delayed through no fault of the accused. It follows that there is nothing
unconstitutional about statutory prohibitions of bail going by this interpretation.

Trial in absentia: The Constitution entitles every accused person to be present at his or her
own trial. Except with one’s consent, “the trial shall not take place in his absence unless he
so conducts himself as to render the continuance of the proceedings in his presence
impracticable and the court has ordered him to be removed and the trial to proceed in his
absence”(Article 18(2)). This is reflected in section 191 of the CPC, which requires that an
inquiry or trial shall be conducted in the presence of an accused, or if the accused’s
presence has been dispensed with, in the presence of his or her advocates, if any (CPC, s
191). The provision does not indicate circumstances in which an accused person’s presence
can be dispensed with. However, sections 202 and 203 of the CPC authorize a court to
continue a trial in the absence of an accused (except if charged with a felony) following an
adjournment, which may be unconstitutional. The court, though, may set aside a conviction

110
reached in absentia upon being satisfied that the cause of the absence was reasonable( s
203(2) CPC). The CPC also allows the accused to choose not to be present at trial, which
is in line with constitutional prescripts.

When it comes to the passing of judgment, the CPC requires that if the accused person is
in custody, he or she “shall be brought up, or if not in custody, be required by the court to
attend, to hear judgment delivered ...”( s168(2) CPC). .

However, no judgment shall be deemed to be invalid simply because the accused was
absent from court when it was delivered.

Time and Facilities for preparation of defence: The Constitution provides any person
charged with a criminal offence with the right to be given adequate time and facilities for
the preparation of a defence (Article 18(2)(c)). This right is applicable both to pre-trial
detention and during detention pending an appeal or during an appeal itself. Since it is a
right intended to allow an accused to prepare his or her defence, it falls off once a person
has exhausted or waived his or her right to appeal. The High Court has taken a very narrow
interpretation of the provision. In the Chiluba, Kabwe and Chungu v The People (2005)
HPR/01/05 case (where the applicants sought disclosure of adverse information in the
possession of the prosecution), it took the view that an opportunity to cross-examine
witnesses in court, to look at documents produced in court, to produce documents in
defence and to summon witnesses satisfied the right to adequate facilities to prepare one’s
defence. This approach means a defendant tried by the Subordinate Court (where trial is
largely by ambush) cannot ask for disclosure of adverse evidence in the possession of the
prosecution.

Right to legal representation: The Constitution states that every person charged with a
criminal offence “shall unless legal aid is granted to him in accordance with the law enacted
by parliament for such purpose be permitted to defend himself before Court in person, or
at his own expense, by a legal representative of his choice”(Article 18(2)(d). The

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Constitution, therefore, does not make the provision of legal aid mandatory but leaves its
provision to be regulated by an Act of parliament. Furthermore, the Constitution states that
a detained person (hence not every person on trial) must be given adequate facilities to
consult with a legal representative (Article 26(1)(d)) and has the right to be represented by
a legal representative before the courts (Article 26(1)(e)). What is clear is that people are
entitled to defend themselves at their own expense by hiring a legal representative of their
choice.

In Savenda Management Services Limited v Stanbic Bank Zambia Limited and Gregory
Chifire, the Supreme Court recently confirmed this position by stating that “whilst it is in
the interest of any litigant to be represented by counsel when he or she appears before
Court, there is no Constitutional right to legal representation.”30

30 Selected Judgment No. 48 of 2018, para 63. See also George Lipepo and Others v The
People SCZ No. 20 of 2014 and Nkanza v The People SCZ Appeal No. 145/2015.

In the case of Isa Yona Sibale v The People SCZ Judgment No. 4 of 2009, the Supreme
Court held that: “By not being allowed to call a witness and engage a lawyer, we find that
the appellant was not afforded a fair hearing, as required by Article 18 (1) of the
Constitution.” .

In the case of Mayonde v The People(1976) ZR 129 (HC) the High Court held that once an
accused seeks time to engage an advocate the provisions of Article 20(2) [which is now
article 18] of the Constitution indicate that he must be granted all reasonable adjournments.

The Legal Aid Act regulates the granting of legal aid to indigent litigants. It largely
construes legal aid as legal representation before a court. Defendants appearing before
Subordinate Courts may apply to the magistrate for legal aid. If the magistrate considers
that the person has insufficient means to hire a private practitioner and that it is desirable
in the interests of justice, he or she issues such a person with a legal aid certificate. The
Legal Aid Board is then required to provide the person with a legal representative (s 8 of
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the Legal Aid Act Chapter 34 of the Laws of Zambia). The High Court, however, is
mandated to grant legal aid to any accused person appearing before it where the “court
considers that there are insufficient reasons why the accused should not be granted legal
aid” ( s 9(2) of the Legal Aid Act Chapter 34 of the Laws of Zambia).

The construction of who is considered as a legal representative was given by the Court in
Patel v Attorney General (1969) ZR 97. The Court stated that a legal representative needed
to meet two criteria: first, one must be a lawyer who is entitled to appear before the Court;
and secondly, he or she must be a person not disabled under any law in Zambia from
appearing before and actually exercising his or her right of audience. This means only
lawyers admitted to the bar and not debarred for disciplinary reasons can represent another
person as legal representatives. Invariably this leaves out paralegals and all those who have
academic legal training but have not been called to the bar. Section 5 of the Legal Aid Act,
however, allows legal assistants (ie, persons who have law degrees but not yet admitted to
the bar) who are under the Legal Aid Board to appear for legally aided persons in
Subordinate Courts and in chambers for superior courts.

This problem is compounded by the narrow protectionist views of courts about legal
practitioners. For example, in the case of Musa Ahmed Adam Yusuf v Mahtani Group of
Companies and Others, 31 the High Court held:

31 2011/HPC/0081.

The requirement for a legal practitioner to state the name and place of his business confirms
the fact that a legal practitioner can only practice through a firm name and not in his
personal capacity. Indeed, practice in Zambia will show that this is what actually happens.
Therefore, since he provides legal services under the umbrella of his firm, it is only in the
firm name that the plaintiff can institute an action for payment of his fees. He cannot claim
the fees in his personal capacity as he has no locus standi or sufficient stake in the funds to
enable him do so. .

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The import of this holding is that only lawyers either serving as in-house counsel or those
practicing in law firms are entitled to litigate on behalf of their clients. Lawyers cannot,
therefore, provide pro bono services through civil society organizations.

Right to an interpreter: Article 18(2)(f) of the Constitution entitles an accused person to

be permitted to have the assistance without payment of an interpreter if he or she cannot
understand the language used at trial. The CPC recognises the accused’s right to have
evidence interpreted if it is not in a language he or she understands (s 195 CPC. See also
ss 223(4)(c) and 245(5)(c) in relation to certain depositions given by co-accused in High
Court proceedings). Furthermore, an accused can request that the judgment be translated
into his or her own language, at no cost and without delay. However, the limitation is that
this will be done only “when practicable”( s 170 CPC)

Protection against retroactive criminal law: Under the Constitution, a person ‘shall not be
held to be guilty of a criminal offence on account of any act or omission that did not at the
time it took place, constitute such an offence’(Article 18(4). A person hence cannot be
prosecuted for an offence created retroactively.

Right to remain silent and privilege against self-incrimination: Article 18(7) of the
Constitution states that ‘a person who is tried for a criminal offence shall not be compelled
to give evidence at trial’. The effect is that the investigation and prosecution cannot have
recourse to the accused person and force him or her to answer questions. As such, the
provision includes the right to refuse to answer questions asked by police and prosecutors
and also not to give evidence on oath or to make an unsworn statement which should not
be subjected to cross-examination.

In the case of Thomas Mumba v the PeopleHNR/438/1984the appellant was charged under
the Corrupt Practices Act, section 53(1) of which stated: ‘An accused person charged
with an offence under part IV shall not, in his defence be allowed to make an unsworn
statement, but may give evidence on oath or affirmation from the witness box.’ The
High Court found the provision in breach of article 18(7) of the Constitution, since it had

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the effect of compelling the accused to give evidence only on oath and thus be liable to
cross-examination.

See also the case of MacDonald Chipenzi, Richard Sakala and Simon Mwanza v The
People HPR/03/2014: “As I earlier stated in this judgment, Section 67 [of the PC] offends
against the Constitutional guarantee of presumption of innocence as well as that which
places the burden of proof of guilt upon the State. It requires an accused person to prove
lack of knowledge of the falsity of his statement, report or rumour and to show that he took
reasonable measures to verify the truthfulness of his statement, rumour or report. The
general rule is that in a criminal trial, the onus of proof remains on the State throughout
and does not shift to the defence.” .

Compellability of Accused/Defendant: Article 18(7) of the Constitution enshrines the right

of an accused not to be compelled to give evidence at his or her own trial. Section 157 of
the CPC further states that an accused (and his wife) is a competent but not compellable
witness.

Speedy trial: The Constitution recognises the right to be tried within a reasonable
time(Article 18(9)). There are no prescribed timelines in subordinate laws within which
cases should be concluded. In practice many cases take several years to conclude, thus
violating the rights of concerned people to speedy trial. In BenardLubuto v Zambia (2001)
AHKR 37 (HRC 1995) the Human Rights Committee held that the period of eight years it
took to conclude the applicant’s case was incompatible with the right to fair and speedy
trial.

Public trial: The Constitution requires that both trial and “the announcement of the
decision of the court ... shall be held in public”(Article 18(10)). However, this is subject to
several exceptions, under which the court or any other authority may hold proceedings
excluding the public. These include where public attendance would prejudice the interests
of justice; in the interest of defence; public safety; public morality; welfare of persons

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under the age of 18 years; or the protection of the private lives of persons concerned(Article
18(11)).

Freedom of conscience, thought and religion

Read Article 19.

Article 19 allows individuals to embrace or not embrace any belief in divinity and to
profess a religion of their choice. It also allows the establishment of religious institutions
including churches and schools, where they can offer religious education. However, such
institutions must comply with the relevant laws such as the Societies Act (for the
registration of societies such as churches)and the Education Act (for Schools). In order for
the High Court to grant redress under Article 28 of the Constitution, the applicant must
satisfy the court that he or she has been, or is being, or is likely to be hindered in the
enjoyment of his fundamental rights and freedoms without his or her consent. There may
be a breach of a person's right to freedom of conscience if there is even a slight degree of
hindrance in his or her enjoyment of freedom of conscience or religious thought. Although
a subjective test may be used in determining whether one holds a religious opinion, an
objective test must be used in determining whether a ceremony or observance is religious
in nature.

In the Kachasu case (excerpts below), an eleven year old girl challenged her suspension
from school for refusing to sing the National Anthem and to salute the National Flag, the
High Court observed that a person is hindered in the enjoyment of his freedom of
conscience by being put under coercion to sing the national anthem against her religious
beliefs, and by being suspended from any Government or aided school because of her
refusal, on religious .

grounds, to sing the national anthem or salute the national flag. However, the Court held
that on the basis of an objective test, the singing of the national anthem and the saluting of
the national flag are not religious ceremonies or observances. Read the case in full.
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Kachasu v Attorney-General (1967) ZR 145 (HC)

To summarise my findings in relation to the relief claimed and the grounds therefor
submitted in the originating notice of motion, I find that:

(1) Regulations 25 and 31 (1) (d) of the Education (Primary and Secondary Schools)
Regulations, 1966, are valid and within the rule - making powers conferred by section 12
of the Education 30 Act, 1966; further, that they do not conflict with any other provision
of the Education Act, 1966, nor are they in conflict with section 21 of the Constitution.

(2) The applicant has suffered hindrance in the enjoyment of her freedom of conscience in
that she has been coerced to sing the national anthem at Buyantanshi School contrary to
her religious conscience; and that she has been suspended from school and denied
readmission thereto in consequence of her refusing to sing the national anthem or salute
the national flag.

(3) Such hindrance, however, does not constitute a contravention of her right to the
enjoyment of freedom of conscience, secured to her by section 21 of the Constitution,
inasmuch as that hindrance is reasonably justifiable in a democratic society and was
authorised by laws which were both reasonably required in the interests of defence and for
the purpose of protecting the rights and freedoms of other persons, and themselves
reasonably justifiable in a democratic society. It follows that the applicant has not
established that any of the provisions of sections 13 to 26 (inclusive) of the Constitution
have been, are being, or are likely to be, contravened in relation to her, and that she is not
entitled to any redress under section 28 of the Constitution. There must be judgment for
the Attorney-General with costs.

Read also the case of Kelvin Hang’andu in full. Do not rely on extracts given below.

Kelvin Hang’andu v Law Association of Zambia SCZ Judgment No. 36 of 2014:

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This is an appeal from a judgment of the High Court delivered on 31st December, 2012
following a petition, for the protection of fundamental rights, filed by the Appellant on 7th
September, 2010. The main facts of this matter are simple and substantially not in dispute.

….

His case is that he is an Advocate of the High Court of Zambia, and a member of the Law
Association of Zambia, the Respondent in this Appeal. That he has been a member of the
Respondent since 15th November, .

1996, when he was admitted to the Bar. That on 24th May, 2003, he was baptized into the
Christian faith of the Seventh Day Adventists (SDA).That among the fundamental
doctrinal beliefs of the SDA is the immutable biblical command, enshrined in Exodus,
Chapter 20, verse 8-11 of the Bible, that the seventh day of the week is the Sabbath of the
Lord, and must be sacredly observed between Friday sunset, and Saturday sunset, through
public worship and complete abstention from any form of menial work and regular activity,
such as participation in the Annual General Meetings and other meetings (hereinafter
collectively referred to as “the meetings”) customarily conducted by the Respondent on
Saturdays.

….

The critical question for our decision, in our view, is whether or not the holding of the
Respondent’s meetings on the Sabbath hinders the Appellant’s enjoyment of freedom of
conscience enshrined in Article 19(1) of the Constitution.

…..

We hold the considered opinion, and entirely agree with the learned trial Judge, that the
term that needed to be defined, in order to arrive at a clear understanding of Article 19(1)
of the Constitution, was ‘hindered’ and not ‘freedom of conscience’. The drafters of our
Constitution have already defined ‘freedom of conscience’ in Article 19(1) itself. The

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Appellant has not advanced any solid grounds upon which we can be persuaded to abandon
the interpretation of ‘freedom of conscience’ contained in Article 19(1), in preference to
definitions derived by American Courts on the basis of their own Constitutional provisions.

Accordingly, we hold that the learned trial Judge properly directed himself when he defined
‘hindered’ on the basis of definitions derived from English dictionaries.

Having ascertained the meaning of ‘hindered’, we must now consider whether or not the
learned trial Judge was on firm ground when he dismissed the Appellant’s claim that the
Respondent had breached his freedom of conscience. We hold that the trial Court was
indeed on terra firma. Even accepting the Appellant’s very poignant argument that freedom
of religious conscience can still be indirectly – not necessarily purposely – impeded or even
effectually destroyed where the adherents of one religious faith are confronted to abandon
their religious convictions respecting a day of rest via a measure whose natural or
proximate or indirect result is to disadvantage members of a particular faith alone, we still
hold the view that, in this case, the Respondent has not infringed the Appellant’s freedom
of conscience. .

The foregoing holding is resolutely founded on the fact that there is no evidence on the
record of appeal to establish that the Respondent has done anything to hinder the Appellant
in the enjoyment of his freedom of conscience. A careful scrutiny of the record of appeal
establishes that the Appellant does not dispute the fact that the Respondent started holding
its meetings on the Sabbath way before he became its member. While the Respondent was
constituted in 1973, pursuant to the Law Association of Zambia Act, Cap 31, the Appellant
only became, its member on 15th November, 1996, following his admission to the Bar.
According to the Appellant’s own evidence, he participated in the Respondent’s meetings
from 15th November, 1996 until 24th May, 2003, when he converted to Adventism.
Following his conversion, he has faithfully observed the Sabbath. The Appellant did not

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adduce any evidence whatsoever to prove that the Respondent has in any way coerced him
to choose attending its meetings at the expense of observing the Sabbath.He also did not
tender any evidence to establish that the Respondent has imposed or threatened to impose
any sanction against him for having been missing its meetings since 24thMay, 2003. What
is effortlessly discernable from the Appellant’s evidence and submissions is that since he
voluntarily converted from Catholicism to Adventism, he has been devotedly observing
the Sabbath. There is no evidence to establish that he has been forced by the Respondent,
even subtly, to abandon his observance of the Sabbath. So the conduct of the Respondent
cannot be said to have had the effect of impeding the Appellant in the observance of
the Sabbath. What the Appellant has been failing to do is to attend the Respondent’s
meetings which are held on the Sabbath. So in reality, in our view, since his conversion
from Catholicism to Adventism, the Appellant has enjoyed his freedom of conscience
without any hindrance from the Respondent.

….

In our view, what is manifest, from the evidence on the record of appeal, is that what the
Appellant has not been enjoying is his freedom to participate in the meetings of the
Respondent and vie for elective offices in the Respondent. Unfortunately for the Appellant,
these freedoms are not recognized and protected by our Constitution.

For the foregoing reasons, and on the authority of decisions in Sherbert v. Verner(5) and
the Kachasu(14) case, it is our considered opinion that the Appellant’s claim that the
Respondent has violated his freedom of conscience, is unsustainable.

Accordingly, we hold that the Respondent has neither directly nor indirectly hindered the
Appellant in the enjoyment of his freedom of conscience. Ground one must accordingly
fail.

Freedom of expression .

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Read Article 20 of the Constitution.

Article 20(1) largely mirrors Article 19 of the ICCPR as well as Article 10 of the European
Convention for the Protection Human Rights and Fundamental Freedoms, 1950. Freedom
of expression includes the right to hold opinions without interference, the right to receive
ideas and information without interference, freedom to impart and communicate ideas and
information without interference and freedom from interference with one's
correspondence.

In providing for freedom of expression so broadly, the Constitution has recognised the
important role freedom of expression plays in the democratic process. Similarly, by
prohibiting the legislature from passing laws that may derogate from the freedom of the
press, the Constitution underscores the indispensable role the press plays in the realisation
of freedom of expression.

In the case of Re Munhumeso & Others (1994) ILRC 284, the Zimbabwean Supreme
Court outlined the broad functions of freedom of expression as follows:

“Freedom of expression, one of the most precious of all the guaranteed freedoms, has
four broad special purposes to serve:

(i) It helps an individual to obtain self-fulfillment;

(ii) It assists in the discovery of truth;

(iii) It strengthens the capacity of an individual to participate in decision making; and

(iv) It provides a mechanism by which it would be possible to establish a reasonable

balance between stability and social change.”

Restrictions on Freedom of Expression:

According to Article 20(3), in order for a restriction on freedom of expression or the press
to be valid, it must meet the following criteria.

First, it must be provided for by law.

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 Second, it must reasonably be required in any of the interests enumerated in clauses (a)
to (c). These "interests", especially those in clause (a), are expressed in very broad and
vague terms. There is no definition of `public safety', `public order' or `defence'. Almost
any restriction can be justified on any of these grounds. A timid judge will uphold all
restrictions imposed by the State by giving a broad interpretation to this clause. This has
happened in a number of cases in Zambia. Furthermore, the restriction need only be
"reasonably required" to protect the listed interests as opposed to being "necessary" as
under Article 10 of the European Human Rights Convention, Article 19 of the International
Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.
The Zambian standard is less stringent than that in international instruments as all that has
to be shown is that the restriction is merely "reasonable" or "desirable". It is not necessary
to demonstrate a "pressing social need" or to give relevant and sufficient

reasons for the restriction. The Zambian Supreme Court in the Christine Mulundikacase
stated the following principles as relevant to limiting the enjoyment of a right: that there
must be adequate guidelines so that the exercise of a discretion by the competent authorities
should have the scope indicated and the manner of its exercise set out in the affected law
with sufficient clarity; there must be effective controls on the exercise of the power to
restrict the right in question and there must be a procedure to allow the aggrieved person
to challenge the decision. Such a procedure must be reasonable, fair and just; fundamental
constitutional rights should not be denied to a citizen by any law which permits
arbitrariness and is couched in wide and broad terms; and the principles of fairness are
principles in their own right and ought to be allowed to pervade all open and just societies.

Third, the restriction must be reasonably justifiable in a democratic society. What

constitutes a democratic society is not defined by the Constitution. This will depend on the

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social philosophy of the judge hearing the case and the scale of value he places on public
interests.

The Supreme Court in the case of Christine Mulundikaidentified a number of features of a

democratic society, which it described as minimum attributes in any democracy: the
availability of a Government which reflects the will of the majority of the people expressed
at periodic and genuine elections; the power of the state should reside in the people and
where this is exercised on their behalf, the mandatory is accountable; apart from the free
and informed consent and maximum participation of the governed, it is also common to
expect that the people have and actually enjoy basic rights and freedoms and these are
available to the majority as well as to any minority; the freedoms of expression and
assembly are crucial.The Supreme Court noted in this casethat the requirement of prior
permission to gather and to speak, which permission can be denied sometimes for good
and at other times for bad cause not contemplated by the Constitutional derogation, directly
affects the guaranteed freedoms of speech and assembly. A derogation which is so broad
as to cover restrictions both within and without the limits of constitutionality cannot be
upheld.

Statutory Restrictions on Freedom of Expression

Apart from restrictions contained in the Bill of Rights, Alfred Chanda (2005) lists the
following laws as placing several restrictions on the enjoyment of freedom of expression.
Most of these laws were passed by the colonial government to contain rising African
nationalism. Such repressive laws, however, were not repealed after independence but in
some cases were even enhanced. The return to multiparty democracy in 1991, the
amendments to the constitution in 1996 and 2016 did not lead to any slight change.

1) Sedition

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Section 57(1) of the Penal Code prohibits sedition. Any person who does any of the
following is guilty of an offence and is liable for a first offence to imprisonment for seven
years - .

(a) does or attempts to do, or makes any preparation to do, or conspires with any person to
do, any act with a seditious intention;

(b) utters any seditious words;

(c) prints, publishes, sells, offers for sale, distributes or reproduces any seditious
publication;

(d) imports any seditious publication, unless he has no reason to believe that it is seditious.

Section 60(1) defines a seditious intention as an intention -

(a) to advocate the desirability of overthrowing the government by unlawful means...; or

(b) to bring into hatred or contempt or to excite disaffection against the

government ...; or

(c) to excite the people of Zambia to attempt to procure the alteration, otherwise than by
lawful means, of any other matter in Zambia...; or

(d) to bring into hatred or contempt or to excite disaffection against the administration of
justice in Zambia; or

(e) to raise discontent or disaffection among the people of Zambia; or

(f) to promote feelings of ill-will or hostility between different parts of the community; or

(g) to promote feelings of ill-will or hostility between different classes of the population in
Zambia; or

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(h) to advocate the desirability of any part of Zambia becoming an independent state or
otherwise seceding from the Republic; or

(i) to incite resistance, either active or passive, or disobedience to any law or the
administration thereof.

The proviso to this section says that an intention shall not be taken to be seditious if it is an
intention -

(i) to show that the government have been misled or mistaken in any of their measures; or

(ii) to point out errors or defects in the government or constitution or in legislation or in

the administration of justice, with a view to the reformation of such errors or defects; or

(iii) to persuade the people of Zambia to attempt to procure by lawful means the alteration
of any matter in Zambia; or

(iv) to point out, with a view to their removal, any matters which are producing or have a
tendency to produce feelings of ill-will or hostility between different classes of the
population of Zambia.

These sections are a serious impediment on press freedom and freedom of speech
generally. Many of the activities prohibited in this section (s 60(1)) are taken for granted
in a democratic society. It is usually the role of civil society organizations and opposition
political parties to raise matters of public importance the government may not be paying
attention to and thereby creating public disaffection. Not only does the section prohibit
peaceful opposition but does not make truth a defence to a charge brought under it. .

2) Power to ban Publications

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Section 53(1) of the Penal Code grants the President absolute discretion to prohibit any
publication or series of publications published within or outside Zambia, that he considers
to be contrary to the public interest. What constitutes the public interest is within his/her
sole discretion. Any person who imports, publishes, sells, offers for sale, distributes, or
reproduces any prohibited publication is liable to imprisonment for up to three years.

An attempt to challenge the President's power under this section failed in Edward Jack
Shamwana v. Attorney-General(see extracts below).In this case, two political detainees,
Edward Shamwana and Valentine Musakanya, sent a petition to the National Assembly,
requesting the Assembly to review the state of emergency, which had been in existence
since independence. In March 1981, President Kaunda banned the said petition. Shamwana
sought an order from the High Court declaring that the President's decision to ban the
petition was wrongful, unlawful and unconstitutional. He contended that a petition to the
National Assembly could not be prejudicial to the public interest and that by proscribing
the document the President was negating his oath of office to uphold the Constitution.
Justice Florence Mumba held that the President had acted within powers conferred on him
by section 53 of the Penal Code and that the President's opinion was not open to question
and that his decision following upon such an opinion could not be impugned. The Supreme
Court dismissed the appeal on similar grounds (reproduced below). The courts in this case
took the easy way out. There is no such thing as unchallengeable discretionary power. The
courts have power to check abuse of discretionary power where the said power is exercised
unreasonably, or in bad faith or where the person concerned takes into account irrelevant
considerations or fails to take into account relevant considerations, or acts under dictation.

Section 53 is clearly incompatible with democracy, as the existence of a free press is

entirely dependent on the goodwill of the President. As long as we have timid judges who
are reluctant to review the President's actions this power will continue to be abused.

For example, in 1996 the President banned edition 401 of the Post Newspaper because it
prematurely disclosed a plan by the government to organize a referendum over the

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Constitution. It is submitted that section 53 is unconstitutional as the powers given to the
President are overbroad and cannot be reasonably justified in a democratic society.

3) Publication of False News

Section 67(1) of the Penal Code stipulates that any person who publishes, whether orally
or in writing or otherwise, any statement, rumour or report which is likely to cause fear and
alarm to the public or to disturb the public peace, knowing or having to believe that such
statement, rumour or report is false, is guilty of an offence and is liable to .

imprisonment for up to three years. This provision has a chilling effect on the freedom of
the press as journalists publish stories at their own risk. (See the Chipenzi case above on
the status of this provision)

4) Defamation

Defamation is the publication of a statement that reflects on a person's reputation and tends
to lower him in the estimation of right thinking members of society generally or tends to
make them shun or avoid him. The defamatory meaning of the communication may be
apparent on its face or it may arise from extrinsic circumstances, which the plaintiff is then
required to prove. Defamation is made up of two torts, i.e., libel and slander.

Libel is a defamatory statement or representation in permanent form, e.g. a picture, statue,

waxwork effigy, or any writing, print, mark or sign expressed to view. Broadcasting, both
radio and TV, and theatrical performances are, by statute, treated as publications in
permanent form. On the other hand, slander is a defamatory statement or representation
conveyed by spoken words. It is important to distinguish libel from slander for two reasons.
First, because libel is a crime as well as a tort. Slander per se is not criminal albeit spoken
words may be punishable by common law or statute as being treasonable, seditious,
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blasphemous, tending to breaches of the peace, etc. Second, libel is actionable per se, that
is, without proof of special damage (actual damage). This means that no damages are
recoverable merely for loss of reputation by reason of the slander and that the plaintiff must
prove loss of money or of some temporal or material advantage estimable in money. It is
not enough for the plaintiff merely to lose the society of his

friends.

The Law of defamation is important as it is aims at protecting the reputations of other

persons. Both the Constitution of Zambia, in Article 20(3)(b), and international and
regional instruments, recognise the need to protect reputations. Freedom of expression is
not a license for destroying the reputations of other persons.

However, a rigorous implementation of defamation law may have a chilling effect on

freedom of expression. It may also undermine good governance, transparency and
accountability, as the press, for example, may not publish certain information for fear of
legal suits. Similarly, members of the public may be reluctant to provide information to the
press or the authorities for the same reason. Defamation law may thus hinder public debate
of national issues.

The challenge in a democracy is, therefore, to strike an optimum balance between the
legitimate interests of individuals not to have their reputations besmirched and the interest
of the public to have access to relevant information and to have unhindered debate of public
issues. This is especially important with regard to public figures.

5) Criminal Defamation

The offence of criminal libel is created under Chapter XVIII of the Penal Code. Section
191 provides that any person who, by print, writing, painting, effigy, or by any means
otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any

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defamatory matter concerning another person, with intent to defame that other person, is
guilty of “libel”. Publication of defamatory matter is unlawful unless: the matter is true and
it was for the public benefit that it should be published; and it is privileged on one of the
grounds mentioned in the chapter.

Since the law on civil defamation is sufficient to protect the right to reputation, there is no
reason why the offence of criminal defamation should be maintained in a democratic
country. In practice, prosecutions for criminal libel have been instituted against those who
have allegedly defamed politicians of the ruling party as well as members of their families,
the President’s wife and children and senior government officials.

6) Defamation of the President

Section 69 of the Penal Code seeks to protect the President's reputation and the dignity of
his office by providing that any person who, with intent to bring the President into hatred,
ridicule or contempt, publishes any defamatory or insulting matter, whether by writing,
print, word of mouth or in any other manner, is guilty of an offence and is liable on
conviction to imprisonment for up to three years. In the cases of The People v. Bright
Mwape & Fred M’membe1087, Fred M’membe& Bright Mwape v. The People, and Fred
M’membe, Masauso Phiri & Goliath Munkonge v. The People (see extracts below) both
the High Court and the Supreme Court upheld the constitutionality of section 69 on the
ground that it is reasonably required in the interests of public order and is reasonably
justified in a democratic state In the view of courts, the Constitution elevates the President
above everyone else and he can, therefore, not be compared to an ordinary person. For
example, the President is immunized from both civil and criminal proceedings while in
office. According to the court, given the fact the President enjoys a special status, it is
legitimate and justifiable to seek to protect his reputation, as section 69 does. Moreover,
allowing people to defame the President might lead to a breakdown of law and order

as supporters of the President may physically attack those defaming the President.

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These arguments are specious and speculative. They miss the point that the President is a
servant of the people and not their master and whether or not he has a good reputation
depends on his conduct while in office. A good reputation must be earned and not
legislated. Furthermore, no one is forced to run for the office of President. Those who
choose to do so must be thick-skinned and must be prepared to lose a large part of their
privacy. Why should the law give the President liberty to defame his opponents at will by
immunizing him from legal suits while making it criminal for his opponents to defame
him? The civil law of defamation is sufficient to protect the President’s reputation. If fact,
almost all genuine democracies do not have such discriminatory laws.

7) Obscenity

The law on obscenity is meant to protect society’s morals. Section 177(1) of the Penal
Code provides that any person involved in any of the following activities is guilty of a
misdemeanour and is liable to imprisonment for five years or to a fine.

a. makes, produces or has in is possession any one or more obscene writings, drawings,
prints, paintings, printed matter, pictures, postages, emblems, photocopies, cinematograph
films or any other object tending to corrupt the morals; or

b. imports, conveys or exports or causes to be imported conveyed or exported, any such

matters or things or in any manner whatsoever puts any of them in circulation; or

c. carries or takes part in any business, whether public or private, concerned with any such
matters or things, or deals in any such matters or things in any manner whatsoever, or
distributes any of them, or exhibits any of them publicly or makes a business of lending
any of them; or

d. advertises or makes known by any means whatsoever with a view to assisting the
circulation of, or traffic in, any such matters or things that a person is engaged in any of

130
the acts referred to in this section, or advertises or makes known how, or from whom, any
such matters or things can be procured either directly or indirectly; or any show or
performance tending to corrupt morals.

On convicting any person of an offence against this section, a court may order the
confiscation of any matter or thing made, possessed or used for the purpose of such offence.
A court is empowered, on the application of a public prosecutor, to order the destruction
of any obscene matter or thing to which the section relates regardless of whether or not the
defendant has been convicted in respect of such obscene matter or thing.

Below are case summaries relating to freedom of speech:

Arthur Lubinda Wina, Frederick Titus Jacob Chiluba, Vernon Johnson Mwaanga,
AkashambatwaMbikusitaLewanika, Levy Patrick Mwanawasa, Ephraim Chibwe and
Andrew Kashita v The Attorneygeneral (1990 - 1992) ZR 95 (HC)

The President of Zambia had, at a news conference, issued a directive that certain
Government owned newspapers were not to provide coverage to or accept advertisements
from the Movement for Multi-Party Democracy. The petitioners applied for on order
quashing and setting aside the directive as it violated their rights in terms of articles 22 and
25 of the Constitution of Zambia.

The next question for determination is the status of what the papers were told not to be
doing. Was that a directive or not? The answer to this is that those who listened to that
press conference, and I was one of them, would no doubt say that was a directive, simple
and clear. I accordingly find and hold that it was a directive…. .

The next issue arising from this finding is: did the directive discriminate between the
petitioners and their members on the one hand and these who held views similar to those
held by the President on the other hand? The answer again is in the affirmative. The nature
of the directive is such that it cannot command any other interpretation even from those

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really hostile to the petitioners. That discrimination was against the petitioners and their
followers and in favour of the UNIP leaders and their members.

Was that discrimination legal or, put in other words, was the directive within the provisions
of the Constitution: art 22 and 25? Before I answer this question I would like to examine
one or two aspects which arose in this case. The first one is whether or not the office of the
President is a constitutional creation. The answer is that it is such a creation, by art 37 of
the Constitution.

….

That directive was discriminatory of the petitioners and their cadres. The reasons for the
discrimination was that they had held different political views from those of the President
and his members. The newspapers which were given the directive are owned by the
Government. In the light of these findings, the directive would be unconstitutional unless
it falls within one of the permitted derogations. The first such derogation is consent of the
victims of the discrimination. In this case none of the petitioners consented to his being
excluded from the enjoyment of the freedom of expression. The directive in question was
not a written law as it was not enacted by Parliament in order to attract the considerations
of art 22(2)(a), (b) and (c). But the directive fell within the 'in the performance of the
functions of any public office' part of art 25(2) of the Constitution. Clause 6 of this art (25)
provides that: 'Clause 2 shall not apply to anything which is expressly or by necessary
implication authorised to be done by any such provision of law as is referred to in clause
(4) or (5).'

….

The next question is: did this directive constitute a hindrance of the petitioners from their
enjoyment of their freedom of expression. My very considered answer is that it did. It did
because in order for them or indeed anybody else to fully enjoy this freedom they must be
able to receive and publish information. The receipt part is what I would call an inlet of
information to the person. The publication is the outlet of information from that person to

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another person or other persons. If either of these, inlet or outlet, is blocked without the
consent of the individual in question and without any legal justification for the blockade,
then that is a denial of the constitutional freedom of expression. This is especially so where
the blockade is effected by means of a piece of legislation or by any person in the
performance of the functions of any public office or public authority. Since the petitioners
were not allowed to publish their views on matters political through the Government
newspapers, and by necessary implication even through radio an .

try, they were denied the enjoyment of their freedom of expression. Thus they were
hindered from exercising their said right. I have found and held that the directive in
question, and thus the hindrance already explained, was unconstitutional and therefore

illegal. As President of the Republic of Zambia, His Excellency the President whose
GRUND NORM is the Constitution of Zambia, is not allowed by the law to make
pronouncements which are contrary to any provision of the Constitution. Unless the
Constitution is amended, everybody from the President down to the commonest of the
common man is obliged to follow to its letter what it says. And this is so whether it is in a
one party or a multi-party political arrangement. Since the directive in question was
unconstitutional it is hereby quashed.

Edward Jack Shamwana v. The Attorney-General (1988 - 1989) ZR 44 (SC)

The appellant appealed against a judgment of the High Court dismissing his application
that the President's order proscribing his petition to the National Assembly was
unconstitutional. The President, when he decides to prohibit publication, should publish
such order in the Gazette 'and in such local newspaper as he may consider necessary'. The
appellant argued that such choice of newspaper was left to the President but that publication
was mandatory and not directory. The appellant had presented a petition to his Member of
Parliament setting out grievances. After the Speaker and all members of Parliament had
received copies, the President declared the petition a prohibited publication. The

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respondent argued that in terms of a petition being before Parliament and therefore being
part of the proceedings in Parliament that could not be prescribed, the petition under
Standing Orders must be signed by the member of Parliament in charge of the petition and
be deposited with the Clerk of the National Assembly for one clear day and thereafter be
endorsed by the Speaker. The appellant argued his petition was properly before Parliament.

It must now be decided whether the President's failure to publish the banning order in a
local newspaper is fatal to the validity of the order. The appellant's viewpoint was that such
failure was fatal as the requirement was mandatory. But Mr. Goel argued in the alternative
that the requirement was directory and that, as such, non-compliance was not fatal to the
banning order.

….

In this case, the general object to be secured by the requirement is to communicate the
banning order to the general public. In our opinion, publication of the banning order to the
general public is mandatory. As the general object of the requirement was here fulfilled
through publication of the banning order in the Gazette, we do not think that the omission
to publish it in a local newspaper can be said to be fatal to its validity. In other words,
whilst the publication of the banning order to the general public is mandatory, we would
regard the requirement to publish in a local newspaper as directory. .

The nub of this ground hinges on the appellant's belief that the petition was before
Parliament and that, as such, freedom of debate could not be censured by a Presidential
opinion no matter how honestly held that opinion might be. As we have already held, the
petition was not before Parliament and so the banning order cannot be said to have
interfered with the freedom of debate in Parliament. It is Parliament that has conferred
(under section 53(1) of the Penal Code) an absolute discretion on the President to ban a
publication, which, in his opinion, is contrary to public interest.
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M'membe and Mwape v. The People (1995 - 1997) ZR 118 (SC)

The appellants had been charged in a magistrate's court with contraventions of s 69 of the
Penal Codein that they had allegedly defamed the President. They requested the magistrate
to refer the matter to the High Court in order to determine the constitutionality of s 69 of
cap 146. The High Court heard argument on the issues whether s 69 contravened arts 20
and 23 of the Constitution and ruled that they did not. On appeal it was submitted on behalf
of the appellants that the criminal provision offended against the right to freedom of
expression in art 20 and was discriminatory and thus in breach of s 23 of the Constitution.

Speaking for myself, the judge below was right to reject arguments which sought to consign
the President into the general rank and file of the citizenry. He was not in error when he
considered that s 69 was reasonably required, in effect to forestall a possible unpeaceful
reaction from the citizens and supporters and to protect the reputation of the first citizen. I
do not consider that there can be any who would seriously dispute that side by side with
the freedom of speech is the equally very 'important public interest in the maintenance of
the public character of public men for the proper conduct of public affairs which requires
that they be protected from destructive attacks upon their honour and character'. See my
judgment in SATA v Post Newspapers Ltd and Another (1992/HP/1395 and 1804 and
1993/HP/821 - unreported). When the public person is also the Head of State, the public
interest is even more self-evident. The truth of the matter is that there is nothing in art 20
which immunises defamation. In my considered opinion, a law meets the test of being
reasonably required if it has as its aim at least one of the interests or purposes listed in art
20(3). It is also reasonably required upon the test of proportionality when, as the Court of
Appeal of Tanzania put it, 'Secondly, the limitation imposed by such law must be no more
than reasonably necessary to achieve the legitimate object. This is what is also known as
the principle of proportionality.' - See Pumbun v Attorney- General (1993) 2 LRC 317.

….

135
The election of any person to the office of President, I would have thought to be self-
evident, has legal and constitutional consequences, quite apart from any other result. The
Constitution itself ordains that he .

become Head of State and of Government; that the executive power of the state vest in him
and that he be endowed with the various matters, powers and functions described in the
Constitution. I do not see how it can be argued that the President should stand before the
law equally with the rest of us when, for example art 43 grants him immunity from civil or
criminal suit while he occupies that high office. If the Constitution itself makes the
President not equal to everyone else, how can the accused's arguments be maintainable?
The second ground of appeal must fail of its own inanition.

Michael Chilufya Sata v Post Newspapers Limited and Printpak Zambia Limited
1993/HP/1395 and 1804 and 1993/HP/821 (High Court)

The plaintiff was at all material times a politician and public official holding a Ministerial
appointment. The defendants published in their newspaper "The Post" (and formerly "The
Weekly Post")various articles and a cartoon. The plaintiff sued for libel and the defendants

pleaded fair comment. Their rolled-up plea asserted that the allegation contained in the
articles complained of consisting of fact were true and those consisting of comments were
fair comments on matters of public interest. In respect of some of the matters complained
of, there was a denial that they could bear the defamatory imputations assigned to them by
the plaintiff in his pleadings. There were three separate actions which were consolidated
into one.

….

Before analysing the issues raised in the pleadings and the evidence, it is necessary to give
precedence to a proposition put forward by Mr. Sikota and Mr. Lungu which was to the
following effect, as I summarise it: Because Article 20 of our Constitution of 1991

136
specifically recognises, among others, the principle of the freedom of the press, it is now
time, to modify the common law principles of the law of defamation in their application to
plaintiffs who are public officials as to their right of action, the burden and standard of
proof, and the latitude the press should be permitted to subject public officials to criticism
and scrutiny. It was argued that because of the similarity between the provision in our
Constitution and that of the USA, we should choose to follow the line taken by the
American courts rather than the one followed by the courts in England. In this regard, it
was submitted that I should apply the landmark case of New York Times v L.B. Sullivan
and Ralph D. Abernathy, et. al., v L.B. Sullivan1146; in which the Supreme Court of the
United States laid down some principles grounded in the First and Fourteenth Amendments
to fetter libel actions by public officials to the benefit of free speech and press freedom.

….

The question arises: Should the rationale and principles relating to impersonal criticism be
extended to public officials in the wholesale manner suggested by the submissions in this
case? In the opinion of the .

court in Sullivan which was delivered by Mr. Justice Brennan, stress was laid on the fact
that the alleged libelous publication caused injury to official reputation. The court weighed
the public interest of the public receiving information against possible injury to official
reputation of public figures and took the view that the chances of injury to their private or
personal character were usually very small when the discussion was on official conduct.
The judges were ever so careful to draw the distinction between injury to official reputation
arising from official conduct and injury to the personal character of an official. The
protection of the constitution was not extended to injury to private character or the private
conduct of a public official.

….

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Our Constitution in Article 20 recognises both the freedom of the press and the right to
reputation. A balance has to be struck and I do not consider that a good old balance can be
struck by shifting the burden or standard of proof; nor by straining to discover a new
qualified privilege; nor by immunizing falsehoods to any greater extent than the
Defamation Act already provides.

Let me make it clear that I fully endorse the view that some recognition ought to be given
to the constitutional provisions in Article 20 and I accept that impersonal criticism of public
conduct leading to injury to official reputation should generally not attract liability if there
is no actual malice and even if, pursuant to S.7 of the Defamation Act, CAP.70, the truth
of all facts alleged is not established if the imputation complained of is competent on the
remainder of the facts actually proved. However, I would reject the proposition in Sullivan
to the extent that it sought to legalise character assassination of public officials or to shift
the burden of proof so that knowledge of falsity or recklessness should be proved by the
plaintiff and to a degree of convincing clarity.

….

In contrast, our own Constitution is less vague, though I agree with the general principle
of not simply allowing the existing law of defamation to operate without due regard to the
need to lend greater meaning and effect to the Article 20 provisions. The dilemma is that
our Constitution attaches equal importance to freedom of the press and the right to
reputation, without distinction whether such reputation belongs to a private or public
individual. I have agonised and given very careful consideration to the competing
propositions that it is for the interests of society that the public conduct of public men
should be criticised without any other limit than that the writer should have an honest
belief that what he writes is true; and the equally important public interest in the
maintenance of the public character of public men for the proper conduct of public
affairs which requires that they be protected from destructive attacks upon their
honour and character if made without any foundation. I have come to the conclusion
that there is no need to formulate a new set of principles to impose new fetters on the

138
right of a public official to recover damages. However, in order to counter the
inhibiting or chilling effect of litigation, I am prepared to draw .

a firm distinction between an attack on the official public conduct of a public official
and imputations that go beyond this and attack the private character of such official
which attack would be universally un-sanctioned.I am also prepared, when
considering the defence of fair comment on a matter of public interest arising from
the conduct of a public official, to be more generous and expansive in its application.
Of course, it would be unwise for me to attempt an exhaustive description of what
would be a generous application of the defence but it seems to me that where an
allegation complained of can properly be regarded as comment on the conduct of a
public official in the performance of his official duties or on conduct reflecting upon
his fitness and suitability to hold such office, freedom of speech and press can best be
served in Zambia by the courts insisting upon a higher breaking point, or a greater
margin of tolerance than in the case of a private attack before an obvious comment
based on facts which are substantially true can be regarded as unfair. Although
considerably stretched at the seams, the existing defence would remain intact and the public
official still able to recover damages for comment that is rendered unfair by any outrageous
or aggravating features in the case.

….

In sum, it is my considered opinion that the constitutional protection of reputation and free
speech or press can best be balanced in Zambia, when the plaintiff is a public official who
has been attacked in that character, by a more generous application of the existing
defences. The chilling effect of litigation would thereby be mitigated to some extent, just
as it would be considerably eased by the courts constantly seeking to promote free speech
and press by keeping a careful eye on the size of awards which perhaps are the true chilling
factor especially if they involve any exemplary or punitive element.

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Shamwana v Mwanawasa (1993-1994) ZR 149 (HC)

The plaintiff issued a writ of summons claiming damages for malicious slander and an
injunction restraining the defendant from referring to the plaintiff as treason ex-convict or
as convict in the light of an absolute or presidential pardon. By an ex parte summons, the
plaintiff applied for an interim injunction.

At the end of the day, having weighed the mischief sought to be restrained and the
principles and authorities, and having considered the affidavits to the extent that they were
not objectionable for being argumentative and non-factual and also having taken all the
submissions into account, I am not satisfied that this is an appropriate case in which I
should exercise the discretionary jurisdiction of the Court to restrain the defendant by
interlocutory injunction pending trial. I have also not lost sight of the principle that
adequacy of monetary compensation is nearly always a ground for not granting such
interlocutory relief. Of course, I do not propose to dwell on the arguments related to the
plaintiff's right to seek election to political office nor the defendant's right to campaign
freely for or against any person. Such arguments .

were, in my considered opinion, otiose and surplus to the requirements of this application
since the issue was simply whether it was necessary and appropriate to grant an
interlocutory injunction to prevent irreparable or serious mischief.

Ludwig Sondashi v Multi Media Zambia 1996/SCZ/88

In 1987 the appellant was a UNIP Provincial Central Committee member for Northwestern
Province. On 18th January 1987, the Sunday Times of Zambia published an article headed
"Tribal Wrangle Rocks Solwezi" in which it was reported that the appellant said, at a Civil
Servants Union of Zambia meeting that nurses in the province who did not learn to speak
local languages would not be recommended for promotion. The allegations were
investigated by Mr. Elijah Mudenda, then Chairman of the Appointments and Disciplinary
Subcommittee of the Central Committee of UNIP and found to be false. In 1992, he was a
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Minister of Labour and Social Security and Zambia National Provident Fund fell under
him. On 20th March 1992, the Zambia Daily Mail published an article "NPF Workers
Strike. It's a Showdown - Sondashi."

The strike was about the appointment of Mrs. Dorothy Mulwila by the appellant as Director
of the Zambia National Provident Fund. In that article, the appellant is alleged to have told
Union members of the Zambia Union of Financial Institutions and Allied Workers that if
he did not appoint people from his province who would appoint them. At the trial, the
appellant testified that when he saw the article he telephoned the Editor and told him that
he never uttered the words attributed to him and demanded a retraction. No retraction came
and the matter ended there. Against this background, the respondent in its weekly issue of
the National Mirror for the week January 18th - 24th, 1993 invited the general public to
make general comments and rate the Ministers.

....

Then in its weekly issue for the week 8th - 14th February 1993 the respondent published
the offending article in which appeared also comments affecting other Ministers. The
article stated: "Mr. Sondashi is also branded an established tribalist, typical dictator,
fairly nice minister, a Minister who welcomes new ideas but needs to work closely with
people and he has betrayed the entire labour force because of too much pruning,
retrenchments and sacking of people."

The appellant then commenced an action against Multi-Media Zambia, the proprietors of
the National Mirror, for damages for libel. The learned trial judge considered the defence
of fair comment put up by the respondent and upheld it and dismissed the claim.

….

The appellant appealed to the Supreme Court.

….

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We have carefully considered the evidence on record and the arguments on both sides and
the authorities cited in support of these arguments. We are satisfied that the words
complained of were a publication of the opinion poll expressed by the general public. We
are also satisfied that the public opinion was based on the newspaper articles which were
produced in court. We are further satisfied that at the time of the opinion poll the general
public were not aware that the allegations against the appellant had been proved false or
that the appellant had denied them. We are also satisfied that the respondent did not verify
the opinions expressed by the public. The obvious question is were the comments not
honest and was the publication of those comments inspired by malice. The answer to the
first part of the question is obviously no because the general public believed that the facts
upon which they expressed their opinions were true as they were not aware that the
appellant had either denied those allegations or had been cleared.

As regards the second part of the question the fact that the respondent did not verify the
opinions is not per se evidence of malice. And as Lord Bramwell said in Abrath1162 "a
man may be the publisher of libel without a particle of malice or improper motive". The
court must therefore consider the offending article in its entirety and the occasion on which
it is made to construe malice. The article in this case is a reproduction of the public opinion
about the appellant and it has two facets, the positive and negative things about the
appellant. In resolving this issue this is what the learned trial judge said, at page 12 of the
record: "To the extent that the article complained of also contained positive comment about
the plaintiff from some other readers, I find that the article was well balanced and there
was no malice. More so that the article was not confined to the plaintiff alone but all the
Ministers serving at the time."

We would agree with the learned trial judge that the way the article was published negatives
any improper motive or malice on the part of the respondent. Had the respondent only
published the negative aspect of the public opinion then the position would have been
otherwise. We would therefore, for the foregoing reasons, refuse the appeal with costs to
be taxed in default of agreement.

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The Queen v. Chona (High Court, 1962)

The accused was the National Secretary of the United National Independence Party, and in
that capacity issued, in November 1961, a document describing the evils of Colonial rule,
which was addressed to all district secretaries, constituency secretaries and international
representatives of the party for “distribution and publication.” The document was signed
by the accused. He was charged with publishing a seditious publication contrary to
s.53D(1)(c) of the Penal Code. .

In my view, looking at the words themselves, the only meaning which any reasonable
person can have intended to convey when he wrote the press statement is that colonialism
is a bad thing and must be destroyed; that the mock justice administered by the courts and
the manner in which the courts rubber-stamped oppression is but an example of the evils
of colonialism….

….

Reading the article as a whole, I do not believe the accused when he said that this statement,
addressed to “Freedom Fighters” was a publication which intended to point out errors or
defects in the administration of justice with a view to remedying such errors or defects.
The statement was written for the purpose of ensuring an enthusiastic and widespread
reaction by members of the party so that they would take action to bring pressure upon the
Government of the United Kingdom and thus achieve their ends….

I therefore find that when this article was written and when on or about November 20th,
1961, it was published to divisional secretaries, the constituency secretaries and to the
international representatives of UNIP and to the press, it was a seditious publication
because it intended to bring into hatred or contempt and to excite disaffection against the
administration of justice in the Territory, and it did not fall within the exemptions set out
in the latter part of s. 53G(1) of the Penal Code. The intention of the publication was not

143
to put right errors and defects, but to excite hatred and contempt and disaffection against
the administration of justice for the purpose of propagating the policy of UNIP.

….

As I read the Penal Code, the offence is not “with a seditious intention publishing written
or printed matter”, it is “publishing written or printed matter, which matter has a seditious
intention.” In other words if a person publishes a document which is a seditious publication
because it has a seditious intention, then he does so at his peril.

….

There the legislature specifically adopted, as a criterion, the intention with which the libel
was published. The criterion which the legislature adopted in the sections dealing with the
publication of a seditious document, was not the intention of the publisher but the intention
contained in the document, which can only be estimated by the effect which it must have
upon the reasonable reader in the circumstances of its publication.

The People v Paul Kasonkomona HPA/53/2014 .

Paul Kasonkomona, an activist for the rights of LGBT people, was on the 7th April 2013
a guest on a TV programme hosted by Muvi Television, having been invited to give his
perspective on the rights of sexual minorities.32He was promptly arrested by police just
after the TV programme ended and subsequently charged with the offence of idle and
disorderly conduct contrary to section 178(g) of the Penal Code on the ground that he did
solicit for immoral purposes for homosexual rights to be respected in Zambia.

32 The People v Pual Kasonkomona CR. 9/04/13

33 The People v Paul Kasonkomona HPA/53/2014, pages 10/12

The Subordinate Court, however, demonstrated that there is in fact a relationship between
the provisions as that was the fulcrum around which the case was in fact resolved. The

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magistrate considered that two elements of the crime were satisfied, that is, that the
accused, by taking part in a TV programme, was engaging the public, and that the topic the
accused was discussing was immoral to the extent that same sex is prohibited under the
law. The magistrate, however, concluded that however immoral a topic could be, merely
discussing it was a different thing altogether; that the accused was simply “advocating for
the rights of those already practicing it [homosexuality] to be protected.” The magistrate
further opined that what the accused did was analogous to someone advocating for laws on
defilement (child rape) and capital punishment to be amended, which would obviously not
be considered as importuning for an immoral purpose. The magistrate considered that what
the defendant did was simply exercising his freedom of expression guaranteed under
Article 20 of the Constitution and acquitted him.

The state appealed to the High Court, but Judge Mulongoti in the High Court agreed with
the decision of the Subordinate Court, that the defendant “was exercising his right to
freedom of expression as found by the magistrate” and therefore, his participation in a
debate “advocating for gay rights did not amount to soliciting for immoral purposes.”33

MacDonald Chipenzi, Richard Sakala and Simon Mwanza v The People HPR/03/2014

The three Applicants were jointly charged before the Subordinate Court at Lusaka with one
count of publication of false information with intent to cause fear and alarm to the public,
contrary to Section 67 (1) of the Penal Code, Chapter 87 of the Laws of Zambia.

The particulars of the offence were that the trio, on the 10lh day of December 2013, at
Lusaka, in the Lusaka District of the Lusaka Province of the Republic of Zambia jointly
and whilst acting together did publish a false article in the DAILY NATION Tabloid
Volume 3, issue number 632 dated 10th December 2013, stating that “THE SECRET
POLICE RECRUITMENT HAS BEEN CONDEMNED AT AS A CONDUIT OF
FUSING FOREIGN TRAINED MILITIA INTO THE MAIN STREAM POLICE
SERVICE” a statement or report likely to cause fear and alarm to the public or disturb
public peace.

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The High Court held: .

“Looked at from the era of its enactment, therefore, I am of the view that the intention in
Section 67 was to suppress native dissenting views which could have the effect of
formenting insurrection against the colonial rulers. In the absence of a constitutionally
guaranteed right it may have been good law at the time, at least to the ruling elite though
not to the freedom agitations. It may, therefore, have served a purpose at the time.”

“As I earlier stated in this judgment, Section 67 offends against the Constitutional
guarantee of presumption of innocence as well as that which places the burden of proof of
guilt upon the State. It requires an accused person to prove lack of knowledge of the falsity
of his statement, report or rumour and to show that he took reasonable measures to verify
the truthfulness of his statement, rumour or report. The general rule is that in a criminal
trial, the onus of proof remains on the State throughout and does not shift to the defence.”

“In conclusion, I find and hold that Section 67 does not fit under Article 20 (3) of the
Constitution. It goes beyond what is permissible under that clause. I, therefore, find that
Section 67 does not pass the test of being “reasonably justifiable in a democratic society.”

“It contravenes Article 20 of the Constitution and is null and void, and therefore invalid for
unconstitutionality. It follows also that the invalidity and the constitutional guarantee of
freedom of expression preclude the prosecution of persons and the criminalization of
alleged false statements under Section 67.”

Freedom of assembly and association

Read Article 21.

Freedom of assembly and association is an essential element in a democratic government.

Justice C. Chitoshi aptly stated this in the case of William Steven Banda v. The Attorney-
General :

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The very idea of a government, republican in form implies a right on the part of citizens to
meet peaceably for consultation in respect of public affairs. The purpose of public meetings
is the education of the public and formation of opinion on religious, political, economic
and social problems. Hence the right of assembly is intimately connected with the right of
freedom of speech and expression guaranteed by Article 20.

Derogations from Freedom of Assembly and Association: The constitution in Article

21(2) permits the State to pass legislation which may restrict the guaranteed rights on
various grounds similar to those applicable to freedom of expression. The standards such
restrictive laws must conform to have already been explained above in the section on
freedom of expression. Several pieces of legislation place limitations on the exercise of
freedom of assembly and association. .

Alfred Chanda (2005) lists the following:

1) The Public Order Act

Public assemblies are regulated by the Public Order Actwhich has been on the statute books
since 1955. The Public order Act has been used principally to stifle protests against the
government. The Act underwent a major Amendment in 1996 in response in the Supreme
Courts’s decision in Christine Mulundika and 7 Others v. The People. In this case the
applicant and seven others, including the former Republican President, Dr. Kenneth
Kaunda, were charged in a Magistrate’s court with unlawful Assembly contrary to section
5 of the Public Order Act.

Section 5 required anyone who wished to hold a public meeting, procession or

demonstration to apply to the police for a permit. The police were entitled to reject the
application, or if they decided to allow the said event, they could impose conditions.
Among these conditions were: the persons who may or may not be permitted to address

147
such assembly or public meeting; the matters which may not be discussed at such assembly
or public meeting, etc. Section 7 made it an offence to contravene section 5, which was
punishable by imprisonment of up to six months or a fine not exceeding one thousand five
hundred penalty units, or to both. The applicants argued that sections 5 and 7 of the Public
Order Act were unconstitutional as they infringed the guarantees of freedom of expression
and assembly in the Constitution. The Magistrate’s Court stayed the criminal proceedings
until the constitutional issue was dealt with by the High Court. The High Court, fearing
that it might create a vacuum, declined to declare the two sections unconstitutional. The
Supreme Court struck down sections 5 and 7 of the Public Order Act for being
unconstitutional as they infringed upon the freedoms of expression and assembly
guaranteed by Articles 20 and 21 of the Constitution, respectively.

The Court held that section 5(4) was not reasonably justifiable in a democratic society for
a number of reasons: the uncontrolled nature of the discretionary power vested in the
regulating authority; the fact that the regulating authority was not obliged, when imposing
a ban, to take into account whether disorder or breach of the peace could be averted by
attaching conditions upon the conduct of the procession or meeting such as relating to time,
duration and route; although the rights to freedom of expression and assembly are primary
and the limitations thereon secondary, section 5(4) reversed the order, in effect denying
such rights unless the public meeting or procession was unlikely to cause or lead to a breach
of the peace or public disorder;

the criminalization of a procession or meeting held without a permit irrespective of the

likelihood of occurrence of any threat to public safety or public order; and the lack of
adequate safeguards against arbitrary decisions.

2) The Societies Act

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The formation and operation of societies and associations is regulated by the Societies Act.
The Act requires every society, unless specifically exempted from registration, to be
registered. The Registrar of Societies may under section 8 of the Act refuse to register: .

“..any society where it appears to him that such society has among its objects, or is likely
to pursue or to be used for, any unlawful purpose or for any purpose prejudicial to or
incompatible with the peace, welfare or good order in Zambia, or that the interests of the
peace, welfare or good order in Zambia would otherwise be likely to suffer prejudice by
reason of the registration of such a society.”

This provision gives a wide discretion to the Registrar to deny registration to any society
that the government does not like. But in doing so he must act fairly. In Labson Zimba v.
The Attorney-General the applicant applied for the registration as a society of the
Mutendere Branch of Jerusalem Church . The Registrar refused the application on the
ground that the interest of peace, welfare or good order in Zambia would be likely to suffer
prejudice. On appeal the Minister upheld the said refusal. The applicant applied for an order
of certiorari to remove into the High Court for the purpose of quashing the decision of the
Registrar, and the Minister on two grounds. First, that he was not afforded an opportunity
to be heard when the application and appeal were considered; nor was he notified of any
information available to the Registrar and Minister that would have had a bearing on the
application so that he would have had an opportunity of meeting it. And secondly that the
reason for the refusal was without merit, as there was no evidence to show that any of the
grounds set out in section 8 applied. Justice Hadden held that provided the Registrar
properly refused the application on grounds contained in section 8, such refusal would not
be a violation of the applicant's constitutional rights. He held further that the Registrar was
under a statutory duty to have regard to certain criteria; he had to determine whether the
interest of peace, welfare or good order in Zambia would be likely to suffer prejudice.
There was a duty on the Registrar to act fairly and this required him, in considering
the statutory grounds upon which he could refuse registration, to give the applicant

149
a sufficient indication of any relevant objection raised against him to enable him to
meet such objection without necessarily disclosing his source of information. As the
applicant was not provided with this information or opportunity Justice Hadden quashed
both the decision of the Registrar to refuse registration and the subsequent decision of the
Minister to sustain the refusal.

Section 13 of the Act provides that:

13. (1) The Minister may, in his discretion, cancel at any time the registration of any society
effected under the provisions of section seven if he is satisfied that it is expedient so to do
on the ground that-

(a) the society concerned has, in his opinion, among its objects, or is, in his opinion, likely
to pursue, or to be used for, any unlawful purpose or any purpose prejudicial to or

incompatible with the peace, welfare or good order in Zambia; or

(b) the interests of peace, welfare or good order in Zambia would, in his opinion, be likely
to suffer prejudice by reason of the continued registration of such society.

(2) The Registrar may, in his discretion, cancel at any time the registration of any society
effected under the provisions of section seven if he is satisfied that it is expedient so to do
on the ground that- .

(a) the terms of the constitution or rules of such society are, in his opinion, in any respect
repugnant to or inconsistent with the provisions of any law for the

time being in force in Zambia; or

(b) the society concerned has, in contravention of the provisions of section seventeen,
altered its objects or pursues objects other than its declared objects; or

(c) the society concerned has failed to comply with an order made under the provisions of
section nineteen or twenty within the time stated in such order; or

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(d) he has reason to believe that any such society has ceased to exist as a society; or

(e) the society has changed its name and the new name it

has adopted-

(i) is identical with that of any other existing society; or

(ii) so nearly resembles the name of such other society as, in the opinion of the Registrar,
is likely to deceive the public or the members of either society; or

(iii) is, in the opinion of the Registrar, repugnant to or inconsistent with the provisions of
any law for the time being in force in Zambia or is otherwise undesirable.

(3) Prior to cancelling any registration under the provisions of this section, the Registrar
shall notify his intention to the society concerned and shall give such society an opportunity
to submit reasons why the registration should not be cancelled.

(4) A society which has had its registration cancelled under the provisions of paragraph (c)
of subsection (2) shall not be entitled to apply for re-registration until the order concerned
has been complied with.

It may be noted that while the Registrar is required to give the affected society a hearing
before cancelling its registration the Minister is not obliged to do so. The Minister is given
unfettered power, which may be abused. This is exemplified by the case of SACCORD. In
this case the Minister of Home Affairs in 2004 deregistered an NGO, the Southern African
Centre for Constructive Resolution of Disputes (SACCORD), and refused to give reasons
for his action. He also had not given the applicant a hearing before taking his decision. This
ban was nullified by

the High Court in the case of Lee Habasonda (suing on behalf of SACCORD) v. The
Minister of Home Affairs and the Attorney General. The Court held that section 13(1)(a)
of the Societies Actwas unconstitutional because it gave the Minister unfettered and
uncontrolled subjective discretion. It contravened Articles 20 and 21 of the Constitution as

151
it reduced the freedoms of expression and association to the level of a mere licence which
could be granted or denied on the

subjective satisfaction of the Minister.

Another problematic provision of the Societies Act is section 23(1) which provides that
the Minister may, “..in his absolute discretion, where he considers it to be essential in the
public interest, by order, declare to be unlawful any statutory society which, in his opinion-
.

(a) is being used for any purpose prejudicial to or incompatible with, the maintenance of
peace, order and good government; or

(b) is being used for any purpose at variance with its declared objects.”

The effect of such an order is to immediately cancel the registration or rescind the
exemption of the society in question. The wording of this provision makes it hard to
challenge the Minister's action in court. The Kaunda regime availed itself of this
provision to ban opposition political parties during the first Republic. For example,
the United Party led by the late NaluminoMundia, was banned in 1968; the United
Progressive Party (UPP) led by the late Simon Kapwepwe was banned in February 1972.
A successor to the UPP, the United Peoples Party, led by Alfred Musonda Chambeshi, was
banned within weeks of its formation in 1972. Another opposition party, the African
National Congress (ANC) led by the late Harry Nkumbula, had its branches in Mumbwa
and Livingstone banned. The prohibition of these parties was accompanied by mass arrests
and detentions without trial of the leaders. President Kaunda justified the prohibitions on
the ground that the parties were a threat to peace and stability. The government also used
the Societies Act to ban religious sects such as the Lumpa Church of Alice Lenshina and
the Sacred Heart of Makumbi.

Below is a summary of cases relevant to the freedom of assembly and association:

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Christine Mulundika and 7 Others v The People (1996) 2 ZR 175

The appellants, who included former Republican President, Dr. Kenneth Kaunda, were
arrested and charged with unlawful assembly for attending a meeting without a police
permit, contrary to the Public Order Act. In the Magistrate’s court they challenged the
constitutionality of sections 5

and 7 of the Public Order Act. The Magistrate stayed the criminal proceedings and referred
the the constitutional question to the High Court. The High Court declined to hold the said
sections unconstitutional for fear of creating a vacuum. The appellants appealed to the
Supreme Court.

The requirement of prior permission is an obvious hindrance to two very important

freedoms under the constitution since the right to organise and participate in a public
gathering is inherent in the freedom to express and to receive ideas and information without
interference and to communicate ideas and information without inference. The fact or
possibility that permission to assemble and to speak may be refused - so that the
constitutional freedoms are denied altogether - on improper or arbitrary grounds or even
on unknown grounds, renders the subsection objectionable for a variety of reasons.

……… .

Quite apart from the possibility of unconstitutionally denying the fundamental rights, the
absence of adequate and objective guidelines in subsection 4 leaves it seriously flawed.

……….

The implication is that the permit must be refused unless the regulating officer is able to
satisfy himself or herself to the contrary. It is difficult to imagine a clearer recipe for
possible arbitrariness and abuse. The constitutional arrangements for democracy can hardly
survive if the free flow of ideas and information can be torpedoed by a misguided
regulating officer.

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The other aspect is whether there are any effective controls on the exercise of the power to
grant or refuse a permit under the subsection being discussed. There are in fact none so that
the regulating officer is not required to give reasons for refusal and there is no procedure
provided to act as a safeguard for an aggrieved unsuccessful applicant which is reasonable,
fair and just. Fundamental constitutional rights should not be denied to a citizen by any law
which permits arbitrariness and is couched in wide and broad terms.

….

Unfortunately, experience teaches and it is sadly not hypthetical that in this country, the
requirement for a permit to gather and speak has been used since 1953 to muzzle critics
and opponents as well as alleged troublemakers. It has also been used to deny permission
on grounds that had nothing to do with securing public order and safety. For example, there
was much litigation in our courts during the recent transition to plural politics engendered
by denials of permits on spurious grounds.

….

Though therefore the police can no longer deny a permit because the requirement for one
is about to be pronounced against, they will be entitled -- indeed they are under a duty in
terms of the remainder of the Public Order Act -- to regulate public meetings, assemblies
and processions strictly for the purpose of preserving public peace and order. The police
and any other regulating authority can only perform this other very necessary function of
giving directions and imposing conditions if they are notified, in advance, of any gathering
proposed to be held. Such notification would necessarily differ in form and content from
an application for permission under the subsection challenged in these proceedings. While,
therefore, we would urge that the whole Public Order Act should be reviewed and
modernize in its entirety to enable the police to carry out their duties effectively without
contravening any provision in our constitution, we are satisfied that, meanwhile, it would
not be unlawful for the Inspector-General of Police, as the appropriate authority under the
Act, to devise some simple and practical method of receiving notifications. Quite clearly,

154
all those organising meetings and processions have a corresponding obligation to enable
the police to carry out the regulatory function by giving notice. We repeat our convictions
that, contrary to the .

submission by learned the citizens of this country their freedom to assemble and speak.
The requirement of a prior permit is a left over from the days of Her Majesty's Governors
and the British themselves do not require permission to assemble and speak.

In sum and for the reasons which we have given, we hold that subsection 4 of section 5 of
the Public Order Act, CAP 104, contravenes Articles 20 and 21 of the constitution and is
null and void, and therefore invalid for unconstitutionality. It follows also that the invalidity
and the constitutional guarantee of the rights of assembly and expression preclude the
prosecution of persons and the criminalization of gatherings in contravention of the
subsection pronounced against. Accordingly, a prosecution based on paragraph (a) of
Section 7 which depends on subsection 4 of section 5 would itself be inconsistent with the
constitutional guarantees and equally invalid. The appeal is allowed.

Resident Doctors Association of Zambia and 51 others v. The Attorney-General ,Appeal

no. 39/2002, SCZ No. 12/2003

On 20th April, 2000, the 2nd Petitioner gave a written notification to the Commanding
Officer of Lusaka, that the Petitioners would hold a public procession on 27th April, 2000,
in order to raise public awareness on the pathetic situation prevailing in public hospitals
and the poor conditions of service for doctors. The commanding officer, one Mr. Mayonda,
informed them on 26th April, 2000 that he would not grant them permission to demonstrate
because he had information that there was a group of people who did not agree with the
Petitioners’ demonstration and was ready to disrupt it. He also indicated that the police did
not have enough manpower to police the situation. He then endorsed on the application the
words: “the application is rejected on grounds that the demonstration will cause a breach
155
of peace”. He did not suggest any alternative date on which the demonstration could be
conducted. When the Petitioners asked for an alternative date on which to conduct their
match, Mr. Mayonda told them that the matter was closed. Notwithstanding this refusal,
the Petitioners sourced 50 Marshals and conducted the Match on 27th April, 2000. Clad in
their doctors’ gowns, they started off from Kabwe round about through Cairo Road, using
the outer lane. They observed the procedures required during processions, and there was
uninterrupted flow of traffic. The Petitioners carried placards which conveyed various
messages. No member of the public attacked them during the procession but instead others
joined the match. They were intercepted by the Police between Freedom House and
Findeco House and told to disperse. The Petitioners refused to do so and told the Police
that they were a peaceful group, conducting a peaceful demonstration and requested the
Police Officers to escort them up to Ndeke House where the procession was to end. The
Police refused to escort them and insisted that the Petitioners should disperse. The
Petitioners continued with their procession and joined Independence Avenue where again
they were intercepted by the Police. The Police confronted the 2nd Petitionser, Dr.
Jonathan Tembo, and told him that he would personally be held .

responsible since he was a signatory to the application for permission to match. The
Petitioners again ignored the Police Order to abandon the match and they continued until
they reached the Freedom Statute at about 11:00 hours. The Police then arrested the 2nd
Petitioner and took him to Lusaka Police Station where he was detained. Despite the arrest
of the 2nd Petitioner, the rest of the Petitioners continued with the procession and before
they reached the first traffic lights, the 7th Petitioner, Dr. Mary Shapi, was bundled into a
Police car and whisked away to Lusaka Central Police station where she was detained in
the cells.

….

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While it cannot be denied that all manner of speech and assembly are acceptable, there is
need for the Court, when interpreting provisions conferring fundamental rights, to adopt
an interpretation which does not negate the rights. Most jurisdictions have adopted a
generous and purposive construction of human rights instruments, so as to confer on a
person the full measure in the enjoyment of the rights.

We agree entirely, with these decisions. The Police, in this case, flagrantly violated the
Public Order Act and consequently infringed the Petitioners’ rights as enshrined in Articles
20 and 21 of the Constitution.

The Petitioners complied with the law and duly notified the Police within the time allowed
by law. The regulating officer had a duty to inform the Petitioners in writing at least five
days before the event, if they were unable to police the march and propose alternative days.
The Petitioners’ right to assemble and march therefore accrued at this stage. The regulating
officer’s endorsement of a purported rejection of the march, a day before the event for
reasons that the demonstration would cause a breach of the peace, was not a valid exercise
of power under the

Act. Section 5(7), which prohibits the holding of the event after the have indicated in
writing their inability to police the event can only be invoked when there has been a valid
notification to that effect. The learned trial Judge therefore fell into error to have invoked
this clause and find that the Petitioners were in breach of the law. In our view, the learned
trial Judge completely negated the Petitioner’s rights of expression and assembly when he
held that the Petitioners had breached the Provisions of the Act.

As we stated in the case of Mulundika and 7 Others vs The People1113 “… invalidity and
constitutional guarantee of the rights of assembly and expression preclude the prosecution
of persons and the criminalisation of gathering in contravention of the subsection
pronounced against”. We therefore allow the first ground of appeal and find the learned

157
trial Judge misdirected himself in law and fact to have held that the Petitioners ere in breach
of the Public Order Act when they proceeded with march on 27th April, 2000. .

Law Association of Zambia, Zambia Episcopal Conference, Christian Council of Zambia,

Evangelical fellowship of Zambia and Nongovernmental Organisations Co-coordinating
Committee v. The Attorney-General, The Inspector General of Police and the Commanding
Officer at Lusaka Central Police 2001/HP0 382

This was an application for an interim mandatory injunction by the applicants for an order
that the second and third respondents “either by themselves, their agents or otherwise
howsoever be restrained from preventing, stopping and or/hindering the applicants from
going ahead with their planned procession or march from Freedom Statue to Kafue
Roundabout and from holding their planned public rally at the said Kafue Roundabout,
both events which commence at 10:00 hours and at 17:00 hours.”

….

The State has failed to appear and defend the allegations in the affidavit sworn by Mr.
Mundia that in fact the 3rd Respondent has threatened to crush the participants of the
intended event. This is most unfortunate. I find that the Police have acted in bad faith and
contrary to the spirit of the Public Order Act, which if adhered to by both themselves and
conveners will not bring any unnecessary litigation like in the instant case. The applicants
have a good arguable case and indeed they will suffer irreparable injury since this matter
touches on fundamental rights enshrined in the Constitution. The Police in this case have
not followed the very Act which guides their role in these matters. If indeed they have
information that the situation is volatile this is the more reason that they should police the
meeting and ensure that there is law and order during the intended meeting. Because the
Police have clearly acted in bad faith they are estopped from refusing to police the meeting.
Their action is mala fide and the way they have acted shows that they intended to frustrate
the applicants in the exercise of their constitutional rights.

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I therefore grant the application as prayed in order that the intended meeting by the
applicants take place as planned and the Police must police the meeting to ensure law and
order.

Labson Zimba v. The Attorney-General (1979) Z.R. 83

The applicant applied for the registration as a society of the Mutendele Branch of Jerusalem
Church. The registrar refused the application on the ground that the interest of the peace,
welfare or good order in Zambia would be likely to suffer prejudice. The said refusal was
upheld on

appeal to the minister. The applicant applied for an order of certiorari to remove into the
High Court for the purpose of quashing the decision of the Registrar. He submitted that he
was not afforded an opportunity to be heard when the application and appeal were
considered and secondly that the reason for the refusal was without merit. .

As in the case of R v Gaming Board for Great Britain, ex parte Benaim, the registrar was
under a statutory duty to have regard to certain criteria; he had to determine whether the
interests of peace, welfare or good order in Zambia would be likely to suffer prejudice.
There was a duty on the registrar to act fairly and this required him, in considering the
statutory grounds upon which he could refuse registration, to give the applicant a sufficient
indication of any relevant objection raised against him to enable him to meet such objection
without, of, course, necessarily disclosing his source of information. As the applicant was
not provided with this information or opportunity, the refusal to register by the registrar
and the subsequent decision on appeal must be set aside.

The order of the court is that the procedures regarding the application to the registrar and
those on appeal be removed into the High Court for Zambia to be quashed forthwith.
Application granted.

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The Attorney-General and the Labour Commissioner v. Zulu, C. Kamukwamba, Mundia,
Muyangwa and Others (1995-1997) ZR 33(Supreme Court)

Respondents applied for registration of a union. The Labour Commissioner rejected the
application on grounds that the Zambia National Union of Teachers existed and represented
secondary school teachers. Respondents applied to the High Court for a declaration that
their constitutional rights had been infringed. The Commissioner ruled in favour of the
Respondents. The Attorney-General appealed, advancing four grounds of appeal.

MrKinariwala argued grounds one and two together. He submitted on grounds one and two
that s 9(8)(c) of I the Industrial and Labour Relations Act provides: 'Nobody registering as
a trade union shall be registered if it purports to represent a class or classes of employees
already registered by an existing trade union or are eligible for membership of an existing
trade union unless the union intended to be registered represents a specific trade or
profession or category or eligible employees who are qualified to form a trade union.' He
submitted that the intention of Legislature behind s 9(8)(c) of the Act is not to allow more
than one trade union in an industry unless the second trade union is intended to represent a
specific trade or profession or category of employees who are qualified to form a trade
union.

….

This law has in my view made a provision for registration of trade unions. Section 9(8)(c)
of the Industrial and Labour Relations Act of 1993 is not in any way in conflict with art
21(2)(c) of the Constitution. The section is not ultra vires art 21 of the Constitution. The
learned trial commissioner erred in construing s I 9(8)(c) of the Industrial and Labour
Relations Act of 1993 as being in conflict with art 21 of the Constitution. I fully agree with
the argument by the appellant that the section is not in conflict with the provisions of the
Constitution. .

….
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In this case in order to avoid absurdity and an unjust situation, the Court read in some
missing words. In the instant case there is no question of implying any meaning or adding
any words. The strict and literal interpretation simply means nobody can register as a union
if there is one in existence unless the union intended represents a different class or category
of employees. The intention of the Legislature is generally to restrict mushrooming of
unions. I do not see any unreasonable situation arising in applying strict interpretation of
the section. The section permits to register another union if they satisfy conditions laid
down by the section. In the present case, there is a union in existence; both groups of
teachers are eligible to become members. The respondent's complaint is that they are not
adequately represented. The evidence in the Court below showed that secondary school
teachers were eligible for membership of the existing trade union ie Zambia National Union
of Teachers. I take judicial notice of the existing structure in the field of H education. There
are in existence basic schools which run from Grade 1 up to Grade 9.

Grades 8 and 9 are junior secondary schools. The teaching staff at these schools covers all
grades from Grade 1 to Grade 9. I take further judicial notice that the Government is the
sole employer of the teachers for the primary, basic I and secondary schools. If two unions
came into existence the Government will be faced, when negotiating conditions of service
for schools, with two unions. The two unions will be negotiating with the Government for
conditions of their teachers covering the same schools. In my view this was not intended
by the legislation. I do not think that the teachers in the secondary schools are a different
class from the teachers in primary and basic schools. I am unable to agree with Mr.
Simeza's argument or contention that secondary school teachers belong to a different class.
The two groups of teachers belong to one teaching profession and there is an existing a
union to which both groups or classes are eligible for membership. For the foregoing
reasons I would allow this appeal.

Freedom of movement

Read Article 22.

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Freedom of movement has a wide scope. It includes the right to move about freely in
Zambia, the right to settle or live in any part of Zambia and the right to leave and return to
Zambia. With regard to the right to leave and return to Zambia, the Supreme Court in
Cuthbert M. Nyirongo v. The Attorney-General (see extracts below) held that a Zambian
has a right to a passport since it is a prerequisite for the exercise of the said right. Only
grave security considerations can justify refusal to issue a passport or confiscation of a
passport by the State. Like other rights, freedom of movement is subject to restrictions that
are reasonably required in the public interest and are reasonably justifiable in a democratic
society. For example, a person may be placed in custody pending trial or deportation. .

Moreover, a court of law may, upon trying a person for a criminal offence, sentence such
a person to a term of imprisonment. Laws that are relevant here include the Protected Places
Act, the Public Health Act, the Immigration and Deportation Act, etc. The Law of Tort and
the Penal Code also have a bearing on the exercise of freedom of movement. The State is
also empowered to impose restrictions on foreigners. A foreigner does not have a right to
enter the country. The State may require that only foreigners issued with visas or those
exempted from doing so, may enter the country. Similarly, the state may impose
restrictions on the movements of foreigners within the country, particularly refugees. Thus,
the Refugee Control Act 1970, inter alia, regulates the movement of refugees in Zambia.
Moreover, during a state of emergency a person’s freedom of movement may be curtailed
by being restricted or detained without trial in the name of preserving national security.

Below are case summaries of cases relevant to freedom of movement:

Cuthbert Mambwe Nyirongo v. The Attorney-General 1991/SCZ/10

The appellant was found guilty of possessing Cannabis and fined. Before the appellant was
arrested in connection with that offence the Drug Enforcement Commission took
possession of some of the appellant's belongings including his passport. After the appellant
was convicted he applied for the return of his passport but to no avail. He sued the Attorney-

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General in the High Court for the return of the passport. The High Court, dismissing his
application, held that it was not a right but a privilege to possess a passport, that the issuing
authority had a discretion to grant or refuse a passport, that the passport was the property
of the government, and that the appellant was a self-confessed criminal who had abused
the privilege granted to him by engaging himself in drug trafficking which was an
international crime. The appellant appealed to the Supreme Court.

We therefore hold that a Zambian citizen has a right to the issue of a passport subject
always to the restrictions referred to in Article 24(3)(a) of the old Zambian Constitution,
which Article has now been replaced by Article 22 of the present Constitution.

….

There is therefore no law applicable to the circumstances of this case which enables the
appellant to be deprived of his right to the issue or possession of a passport. This appeal is
allowed and we make a declaration that the appellant is entitled to the return of his passport
or a replacement thereof if his passport has been physically cancelled.

Edith ZewelaniNawakwi (female) v The Attorney-General (1990 -1992) ZR 112 (HC) .

Talking about passports, I think it is an opportunity to say here that the holding of a passport
by a Zambian is not a privilege. It is not a privilege because he/she has a right of movement
enshrined in the Constitution: art 24 of the Constitution. In order to travel outside the
country a Zambian citizen needs a valid Zambian passport or travel document. Just as they
don't get permission from the authorities to travel from one part of the country to another,
so do they not need to get permission to travel outside the country. Since they cannot travel
outside the country without passports, they are entitled to have them, unless legal
restrictions attaching to the freedom of movement imposed by the Constitution validly
apply.

Non discrimination

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Read Article 23.

This article covers both de jure and de facto discrimination based on race, tribe, sex, place
of origin, marital status, political opinions, colour or creed. As is evident, Article 23 does
not prohibit discrimination on the grounds of religion, language, social origin, property,
non-political opinions, birth or other status, disability, pregnancy, age, culture and belief.
It does not even have an express equality clause as is the case with many other constitutions
. Moreover, it applies only to persons acting by virtue of any written law or in performance
of the functions of any public office or any public authority. This means it does not have a
horizontal application, that is to say, it does not prohibit discrimination perpetrated by
private persons or entities. Furthermore, the anti-discrimination clause sanctions
discrimination under customary law or personal law. But it is well-known that most of the
discrimination against women occurs in the area of personal law and customary law given
the fact that Zambian society is patriarchal. The cases of Sarah Longwe v. Intercontinental
Hotel and Elizaberth Mwanza v. Holiday Inn illustrate the kind of difficulties women face
as a result of this clause. The effect of the exemption is to undermine the rights of women
because it is precisely under personal law and customary law that women suffer the most
discrimination.

Although disability is not mentioned specifically as a ground for discrimination, in the case
of Brotherton v Electoral Commission of Zambia 2011/HP/0818, the High Court found
that by not providing disabled people with facilities for easy access to polling stations,
persons with disabilities were discriminated against. This is notwithstanding that disability
was not specifically listed as a ground of discrimination in the Constitution.

Below are relevant case summaries:

Edith ZewelaniNawakwi (female) v The Attorney-General (1990 -1992) ZR 112 (HC)

The applicant, an unmarried mother, applied for declarations that the names of her two
children should be included on her passport without the need to obtain the consent of the
putative father. The court found as a fact, inter alia, .

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that on a previous application the applicant obtained the particulars of her children entered
on her passport by firstly swearing an affidavit stating she was the mother of a particular
child born out of wedlock. When subsequently she applied for the renewal of the passport
she was told by the passport office of the need to swear an affidavit in similar terms to the
affidavit sworn initially. She refused to do so because, she said, the procedure was
discriminatory, wasted time and incurred unnecessary cost and she applied to the Court for
the declaration. The applicant argued that the need to swear the affidavit as a single mother
offended various articles of the Constitution. The respondent put the point in cross-
examination that because the applicant had been issued with a passport she applied for she
had no cause of action which related to her children.

In my considered view it is not at all justified, from whatever angle the issue is looked at,
for a father to treat himself or to be treated by the institutions of society to be more entitled
to the affairs of his children than the mother of that child or those children. The mother is
as much an authority over the affairs of her children as the father is. There would of course
be some cases where one of the parents may lose, temporarily or forever, his/her share of
that entitlement. Such a situation may arise where a parent abandons a child or children or
becomes so mentally sick that the best interests of the child or children would dictate
his/her exclusion from him/her or them. Each such case would of course depend on its own
facts.

The realities of these times have brought about another dimension to this problem of
children parentage. This case now before this Court is one in point. Here the petitioner is
both the father and mother of the two children. She is an unmarried mother. She is bringing
up her two children without a husband. Now is it fair for this society to have to require of
her to have been or to be married in order for certain things to be possible to be done for
her children? The answer, in my considered view, is in the negative! It is in the negative
because firstly the reality of her situation and of many others like her is that she has
illegitimate children; and secondly because discrimination based on gender only has to be

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eliminated from our society. Men and women are partners and not only partners but equal
partners in most human endeavours. They must thus be treated equally.

Going back to the facts of this case, Zambia has to accord every mother of a child, single
or married, the same powers that the father enjoys. Anything less would not be justified.
The fear that the mothers may be stealing children if they are allowed to include their young
children in their passports is a very unreasonable argument because in all honesty they are
entitled to have those children where they want them to go. One cannot steal what belongs
to oneself. It should be a matter between the father and the mother of a child to resolve as
to whether to allow a child to go to country A and not to B. If they cannot agree then one
or .

both of them should be free to apply to court for a solution. Such a situation would not
arise in the case of a single parent.

Thus when all is said and considered I find and hold that (1) the petitioner has been unfairly
discriminated against on the ground of sex; (2) the petitioner's children's particulars be
indorsed in her present passport without a requirement for her to furnish fresh affidavit or
other fresh documents in respect of them; (3) a single-parent family headed by a male or
female is a recognised family unit in the Zambian society; (4) a passport is part of the
freedom of movement and as such it is a right for every Zambian to have one or be indorsed
in one unless there is a valid legal excuse barring such possession or endorsement; and (5)
a mother of a child does not need to get the consent of the father to have her children
included in her passport or for him/her or them to be eligible for obtaining passports or
travel documents. Either parent has the inalienable right to be a recommender, in whatever
form the recommendation is required to be made, for the child or children. This applies to
birth certificates and passports in this country as they do to other things. I also award the
costs of this action to the petitioner. Application granted.

PhllisBubala Kasempa v. The Attorney General 1994/HP/4916

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The facts of the case are not in dispute and they are that the Petitioner who is a single
woman was recruited in the Zambia Air Force as a Corporal on 1st June, 1989. Under the
terms of her contract she would have served for seven years with an option to serve for a
further thirteen years. The petitioner served for four years up to 31st December 1993 when
she was discharged from the Force because she became pregnant outside wedlock. Her
becoming pregnant outside wedlock was said to have contravened clause 8(b) of the
Zambia Air Force Administrative Instruction No. 35 and she was discharged under
Regulation 9 (3) of the Defence Force (Regular Force) (Enlistment and Service)
Regulation, Third Schedule Serial No. (XVIII).

Administrative Instrument No. 35 is neither an act of Parliament nor a Statutory Instrument

and cannot be said to be a rule of law by any stretch of the imagination. It is nothing more
than an administrative circular and is not covered by the proviso contained in Article 23
(5) of the Constitution.

Clause 8 (b) of the Administrative Instrument which was used by the Respondent to
discharge the Petitioner from the Zambia Air Force is quite clearly discriminatory
and falls foul of Article 23 of Constitution. I will grant the Petitioner a declaration that
the provisions of Administrative Instruction No. 35 are null and void for being in conflict
with the Constitution of the Republic of Zambia.

Stanley Kingaipe and Charles Chookole v Attorney General 2009/HL/86 .

Having regard to the authorities cited herein, I find that the petitioners’ to protection from
inhuman and degrading treatment under Article 15, the right to privacy under Article 17
were violated. I must hasten to note that after the petitioners were put on ARVs they
responded positively to the treatment and this is going by their own evidence- but this does
not take away the fact that their fundamental rights to privacy and protection from inhuman
treatment were infringed.

….
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I must say that, listening to the petitioners on this point, they were not convincing though
they tried to insist that they were discharged because of their HIV status. Indeed having
regard to the facts of the whole case, I find that there is no evidence to show that the
petitioners were discharged because they were HIV positive. The relief sought by the
petitioners must fail for lack of merit and evidence.

….

For avoidance of doubt, my judgment is that and I declare that the respondent’s decision
to carry out mandatory HIV tests on the petitioners without their informed consent was a
violation of their right to protection from inhuman and degrading treatment and the right
to privacy. The damages are as stated herein.

Protection of young persons

Read Article 24. The Article protects young persons from exploitation. It prohibits
employing young persons “in any occupation or employment which would prejudice his
health or education or interfere with his physical, mental or moral development” (Article
24(1). Article 24(2) protects young persons against “physical or mental ill-treatment, all
forms of neglect, cruelty or exploitation” and Article 24(3) prohibits trafficking of young
persons. For purposes of this Article, a young person is defined as “any person under the
age of fifteen years.”(Article 24(4)). Note however the confusion caused by the 2016
amendment to the constitution where in Article 266 a young person is defined as “a person
who has attained the age of nineteen years, but is below the age of thirty-five years.”
Considering that the Bill of Rights was not affected by the 2016 amendment, the definition
of a young person in Article 24(4) must prevail.

Weaknesses of the Zambian Bill of Rights .

There are several weaknesses inherent in the Zambian Bill of Rights. First, very few
unprogressive provisions in other statutes, such as the CPC, offend human rights provisions

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in the Constitution. This, however, is not due to the fact that subordinate laws have
excellent human rights standards but that the Constitution has several broadly defined
exceptions that almost every other law easily meets. Furthermore, various human rights
provisions in the Constitution are expressed in language lacking in specificity and are hence
liable to interpretations that may water them down.

Secondly, due to the drafting style the Bill of Rights has inherent weaknesses in how the
rights are provided for, that is, primarily as constraints on state power and much less so as
personal entitlements. Most of the rights in the Bill of Rights, including personal liberty
and the right to privacy, are not given as positive affirmations or entitlements but as a
residue of constraining state power. The right to privacy is simply provided for by
prohibiting searches on one’s person or property, while the right to liberty is described in
terms of constraints on unlawful arrest and detention. This, coupled with several broadly
crafted exceptions, makes it difficult to know the actual content of a certain right.

Thirdly, the Constitution does not provide for many rights that are now associated with the
criminal justice system or which are usually found in international normative frameworks
and relatively new African constitutions such as those of Kenya and South Africa. The
right to bail, for example, is taken for granted in many jurisdictions, but is not provided for
in the Constitution.

In addition to these weaknesses, Alfred Chanda (2005) lists the following weaknesses in
the bill of Rights:

1) Lack of Gender Neutrality

First, the Bill of Rights is not expressed in gender neutral language. It uses the masculine
terms `he' or `him' or `his' in describing the person who is entitled to rights.

2) Language

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Second, the Bill of Rights is framed in highly technical language which makes it difficult
for the ordinary person to understand it. In contrast, the Bills of Rights of South Africa,
Kenya, Malawi, Namibia, among others, are written in simple user-friendly language
which any ordinary literate person can understand. A Bill of Rights should not be the
preserve of lawyers.

3) Lack of domestication of international instruments

Fourth, although Zambia has ratified all the major international human rights treaties, such
as the International Covenant on Civil and Political Rights, 1966, the International
Covenant on Economic, Social and Cultural Rights, 1966, the Convention on the
Elimination of All Forms of .

Discrimination Against Women 1979, the Convention on the Rights of the Child 1989, the
African Charter on Human and People's Rights, 1981 and scores of others these have not
been incorporated in the domestic legal system and cannot, therefore, be directly enforced
in Zambian courts.

4) No controls on presidential power to declare an emergency

Fifth, there are few controls on the President's power to declare a state of emergency and
the safeguards provided to those detained without trial are inadequate.

5) Weak Institutional structure

The institutional structure for the protection and enforcement of fundamental rights and
freedoms under the present constitution is very weak. The system entirely depends on a
litigant bringing action in court to challenge a governmental action. Because of poverty

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and ignorance few people can do this. Moreover, the lack of specialization on the bench
has led to mediocre decisions being handed down in constitutional cases.

6) Wide Derogation clauses

The Bill of Rights contains wide derogation clauses which have the effect of negating the
essential content of the rights protected. Most of the rights can be restricted on the grounds
of defence, public safety, public order, public morality and public health. In addition to
these

general restrictions almost all the rights (except for protection from torture, or to inhuman
or degrading treatment) have further restrictions. The right to property, for example, has
twenty-six (26) additional restrictions. The only test that these restrictions must meet is
that: first they must be reasonably required in one of the specified interests; and secondly,
they must be reasonably justifiable in a democratic society. These phrases do not easily
lend themselves to definition. As a result the courts' power to protect individual rights has
been severely circumscribed. The timidity of the judiciary in politically sensitive cases has
aggravated the situation. In the majority of cases when civil liberty cases have presented
any real choice within the constitutional language courts have invariably sustained the
government action impugned. In Kachasu v Attorney-General an 11 year old girl, a
member of the Watch Tower Sect, was suspended from school for refusing to sing the
national anthem and to salute the national flag. Despite finding that the petitioner had been
hindered in the exercise of her freedom of conscience, the court, nevertheless, upheld the
law under which she had been suspended on the ground that it was reasonably required "in
the interests of defence, public safety, and public order." In Patel v. Attorney-General,
where the petitioner's property was searched without warrant and seized the court upheld
the government action on the ground that the impugned regulations and action were
adequately covered by the derogation clauses.

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In The People v. Bright Mwape and Fred Mmembe, the two petitioners were charged with
defamation of the President contrary to section 69 of the Penal Code. They challenged the
constitutionality of this section on the .

ground that it conflicted with the constitutional guarantees of freedom of expression (and
the press) (Art. 20) and freedom from discrimination (Art.23). Although Justice Chitengi
agreed that the petitioners had proved that their rights under the constitution were hindered
he sustained the impugned law on the ground that it was reasonably required in the interests
of defence, public safety and public order. The Supreme Court upheld the High Court
decision. In Christine Mulundika and Seven Others v. The People , the former President,
who was on trial for allegedly addressing an illegal assembly, challenged the
constitutionality of section 5(4) of the Public Order Act (Chanda (2005, chapter 15).

Enforcement of Social and Economic Rights

The constitution does no expressly provide for social and economic rights such as health,
work, education, shelter and food. It has long been thought that these cannot be enforced
in Zambia. However, in the recent case of George Peter Mwanza and Melvin Beene v
Attorney General Selected Judgment Number 33 of 2019, the Supreme Court recognized
the right to food and nutrition through the articulation of the right to life. The Court
considered that the right to life should be interpreted broadly to include other rights that
make life meaningful. This judgment opens the possibility of enforcement of social and
economic rights, provided they can be related to rights provided for in the Bill of Rights. .

NATIONAL SECURITY VERSUS HUMAN RIGHTS

State of Public emergency

A state of emergency is “an exceptional situation of crisis or public danger, actual or

imminent, which affects the whole population or the whole population of the area to which

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the declaration applies and constitutes a threat to organized life of the community of which
the state is composed” (SR Chowddhury, 1989)

Emergencies are of several types: war; secession, insurrection, mass riots, great natural
catastrophes.

Declaration of Emergency

The constitution provides for two types of emergency:

(a)Full state of emergency: Article 30(1) of the Constitution states that the President may,
in consultation with Cabinet, at any time, by Proclamation published in the Gazette declare
that a State of public emergency exists.

(b) Threatened Emergency: under Article 31 the President may at any time by
Proclamation published in the Gazette declare that a situation exists which, if allowed to
continue may lead to a state of public emergency.

Under both situations:

The declaration ceases to have effect on the expiration of seven days from the date of
the declaration, unless before the expiration it has been approved by the National Assembly
by a majority of all members;

Declaration cab be revoked by the President at any time before it is approved by the NA;

Once approved by the National Assembly, the declaration stays in effect for a period of
three months starting from the date of approval

Judicial Review of Emergency Powers

The Judiciability of emergency powers arose in the case of Dean Namulya Mung’omba v
Attorney General 1997/HP/2617. The applicant was detained under emergency regulations
following the 1997 coup attempt. He applied for Habeas Corpus, arguing in part that the

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situation at the time did not justify the declaration of a state of emergency. The court held
that it had no jurisdiction to inquire into the reasons for the declaration of a state of
emergency. The court went on to state:

“I find that the President is not obliged to furnish any reasons for making a declaration and
such inquiry would in my view be ultra vires the powers of the Court because the only
condition that the President is required to fulfill is to meet and consult his cabinet before
declaring that a state of emergency exists.”

“it is a matter for executive discretion and nothing else; if the President is satisfied he may
detain. This court is not seized of the full facts, has no knowledge of what evidence there
is to support those facts and is not in a position to judge or even to recommend (certainly
not to substitute its discretion for that of the President).”

Without judicial review or oversight of the exercise of these powers, human rights are at
risk.

Similarities and Differences Between State of Emergency and Threatened Emergency

.

An emergency declaration may trigger into effect one of the two statutes: a declaration
under Article 30 triggers into effect the Emergency Powers Act Cap 108, while a
declaration under Article 31triggers into effect the Preservation of Public Security Act Cap
112.

To understand the similarities and differences between these two statutes, carefully read
sections 3 of the two statutes.

In terms of similarities, both statutes empower the president to make regulations for the
preservation of public security. The regulations may provide for the following:

Detention and restrictions of persons without trial;

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 Prohibition, restriction and control of assemblies;

The regulation, control and maintenance of supplies and services;

The prohibition and dissemination of matter, for the regulation and control of the
production, publishing, sale, supply, distribution and possession of publications;

The taking of possession or control of any property or undertaking and the acquisition
of any property other than land; and

Authorize the entering and search of premises.

Differences include the following (read sections 3 to 6 of each Act):

Under the Emergency Powers Act, not only can the President make regulations for the
detention or restriction of persons, but he can also make regulations to provide for the
deportation and exclusion from Zambia;

The scope of property which the president may acquire on behalf of the Republic under
the Emergency Powers Act is wider. He/she can acquire any property or undertaking other
than land under the Emergency Powers Act, but only “movable property” under the
Preservation of Public Security Act.

Under the Emergency Powers Act the President may make regulations to provide for the
amendment of any enactment, for suspending the operation of any enactment, and for
applying any enactment with or without modifications. However, under the Preservation
of Public Security Act the President may only make regulations to provide for the
suspension of the operation of any written law other than the constitution.

As regard the duration of regulations the Emergency Powers Act provides that only
emergency regulations that have been affirmed by a resolution of the National Assembly
shall take effect during an emergency. But regulations made under the Preservation of

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Public Security Act are valid even if they have not been tabled before the National
Assembly.

Cases

Dean Namulya Mung’omba v Attorney General 1997/HP/2617 .

Edward Jack Shamwana v Attorney General (1981) ZR 261(SC)

Edward Jack Shamwana v Attorney General (1981) ZR 270 (HC)

In Re Robinson Puta (1973) ZR 133

Joyce Banda v Attorney General (1978) ZR 233

Eleftheriadis v Attorney General (1975) ZR 69

Sithole v Attoreny General (1977) 55

In Re Buitendag (1974) ZR 156

In Re Kapwepwe and Kaenga (1972) ZR 248

Kaira v Attorney General (1980) ZR 65

Chisata and Lombe v Attorney General (1981) ZR 35

Mutale v Attorney General (1976) ZR 139

Mudenda v Attorney General (1979) ZR 245

Attorney General v Musakanya (1981) SCZ Appeal No. 4 of 1981

Valentine Shula Musakanya v Attorney General (1981) ZR 214

In Re Walamba and Sampa (1981)

In Re Chiluba (1981)
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Mutanda Yona v Attorney General (1980) ZR 165

Munalula and Others v Attorney General (1979) ZR 154

Sharma v Attorney General (1978) ZR 163

Attorney General v Chipango (1971) ZR 1

In Re Seegers (1976) ZR 117

Mungabangaba v Attorney General (1981) ZR 183

Attorney General v Musonda and Others (1974) ZR 220

Mwaba v Attorney General (1974) ZR 177

Chimba v Attorney General (1972) ZR 165 .

CONSTITUTIONAL INTERPRETATION

What is constitutional interpretation?

Constitutional interpretation or construction is the process by which meanings are assigned

to words in a constitution to enable legal decisions to be made that are justified by it.

In Constitutional interpretation, we must note that constitutional terms are not empirical
objects, so must as ideas, that is, mental models that do not for the most part have the
advantage of some formal scientific form of being representable in mathematical or
computer formalism that we can examine externally. In particular, they are ideas that
existed in the minds of persons long dead or are very old to impact our current society, so
we must develop mental models of their mental models “theories of mind” based on things
they read and wrote.

The Constitution and its Interpretation

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How the constitution should be interpreted is dependent on the concept of what a
constitution is. The question of how the constitution should be interpreted is inextricably
interwoven with what it is.

The constitution denotes two ideas. The first one is the establishment and regulation of
government. The second is that of “securing the liberties of the people.” Black has argued
that only the first idea is essential to the existence of a constitution because despotism is
not inconsistent with the existence of a constitution. This because a constitution can be
manipulated to be an instrument for consolidation of power, abuse of human rights and/or
looting of public resources. It is this negative deployment of constitutions that led to the
coining of terms or phrases such as “constitution without constitutionalism,” “façade
constitutions,” “sham constitutions,” or “abusive constitutions.”

In a democratic state, however, the constitution is a charter of liberty intended to secure

the liberties of the people and to discipline government in relation to the rights of the
people. The constitution spells out the collective values that bind the people as well as their
aspirations. In this regard, a constitution not only establishes government and imposes
constraints preventing it from encroaching upon the rights of the people, the constitution
also imposes duties on the government to foster constitutional values or at least act in a
manner consistent with them. The government, under a democratic constitution is,
therefore, duty bound to pursue ends considered collectively legitimate.

A government in a democratic constitution is, therefore, ordained to pursue ends dictated

by underlying constitutional values. In a sense, the constitution is every country’s “moral
sail” that gives the assurance that all the people are equal citizens entitled to respect for
their rights. .

This intrinsic nature of the constitution dictates how it should be interpreted or given
meaning in the daily life of the nation. Former Chief Justice of South Africa, Pius Langa,
has stated that because a democratic constitution enshrines transformative values, it should

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be interpreted in a manner that can be justified on the basis of the rights and duties it
enshrines. The constitution thus by its very nature disavows an interpretation approach that
is formalistic and literal. Values cannot be construed literally. It demands an approach that
contribute to the realization of its underlying ideas and values. The Chief Justice of India.
Dipak Misra, has held that this requires the courts, in interpreting the constitution, to “strive
to breathe life into the constitution and not render the document a collection of dead
letters.”

Various Approaches to Constitutional Interpretation

(1) Originalist Approach:

Originalism is a family of theories central to all of which is the proposition that the
constitution has a fixed and knowable meaning which was established at the time of its
drafting. The theories include; the ‘original intent’ theory which holds that interpretation
of written constitution is (should be) consistent with what was meant by those who drafted
and ratified it. The ‘original meaning’ theory which is closely related to textualism is the
view that interpretation of the written constitution or law should be based on what
reasonable persons living at the time of its adoption would have declared the ordinary
meaning of the text to be.

Weakness: impossible to establish original intent. Moreover, people who within same
context may have varying understanding of the same thing.

(2) Literal approach (The textualist and strict construction approach):

This suggests that decisions should be based on the actual words written in the law if the
meaning of the words is unambiguous. Since a law is a command, then it must mean what
it means to the law giver and if the meaning of the words used in it have changed since it

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was issued then the textual analysis must be of the words as understood by the law giver
which for a constitution would be the understanding of the ratifying convention.

A central argument for the subscribers of textualism and strict construction is that less strict
interpretations of the constitution can become a method of legislative activism by judges
which they feel is an abuse of judicial power. This concern might be phrased as ‘making
the law to say what you think it should say rather than submitting to what it does say.’ This
would be a form of judicial usurping the legislative power.

This is the approach preferred by the Zambian courts. In the case of Samuel Miyanda v
Raymond Handahu (1994) ZR 39, it was stated: .

"It is not what the legislature meant to say or what their supposed intentions were with
which the court would be concerned; the court's duty is to find out the expressed intention
of the legislature. When the language is plain and there is nothing to suggest that any words
are used in technical sense or that the context requires a departure from the fundamental
rule, there would

be no occasion to depart from the ordinary and literal meaning and it would be inadmissible
to read into the terms anything else on grounds such as of policy, expediency, justice or
political exigency, motive of the framers, and the like."

See also the case of Milford Maambo and Others v The People (2017) by the Constitutional
Court.

For weaknesses of this see O’Brien ., “Milford Maambo and Other” SAIPAR Case Review
Vol 1, No. 2 2018

(3) Contextualist approach:

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This is also concerned with the text itself, but instead of subjective intent, it seeks to
examine the broad context in which the provision at issue was promulgated, arguing that
in some important aspects, respect, the provision can only be understood relative to its
context.

This context can be through examining why the provision is located where it is in the whole
document and also focussing on the broad long history to determine the broadest possible
intent.

and to British institutions as they were when the instrument was framed and adopted.”

Weakness: Opponents of contextualism often argue that pure contextualism outlook

prohibits the constitution from adapting to different culture, technology and social
developments.

(4) Purposive approach:

Government of the Republic of Namibia and Another v Cultura 2000 and Another 1994(1)
SA 407:

A constitution is an organic document. Although it is enacted in the form of a statute it is

sui generis. It must be broadly, liberally and purposively interpreted so as to avoid the
austerity of tabulated legislation and so as to enable it to continue to play a creative and
dynamic role in the expression and achievement of the ideals and aspirations of the nation,
in the articulation of the values bonding its people and disciplining its government.34

34 Government of the Republic of Namibia and Another v Cultura 2000 and Another
1994(1) SA 407.

In the HH petition and in Milford Maambo, the CC said the purposive approach only
resorted to when the literal approach would lead to an absurdity. .

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Constitutional Interpretation In Zambia

Constitutional interpretation in Zambia has heavily been influenced by the common law
rules of statutory interpretation. The foundation for this was laid early in the life of the
country in several cases. One such case is that of Shadreck Mwiinga35 in which it was
stated that “In a country in which the basic law is the common law of England, statutory
law is necessarily to be interpreted according to the common law principles of statutory
interpretation in the absence of statutory provision to the contrary.” Since then, the courts
have been applying the common la rules of interpretation uncritically, even to the
constitution. The approach has been to interpret the constitution literally unless that results
into an absurdity. Only then could the court depart from the literal approach. This approach
was stated forcefully in the Samuel Miyanda36 case:

35 Shadreck Mwinga v The Queen (1963-1964) Z and NRLR 81

36 Samuel Miyanda v Raymond Handahu (1994) ZR 39

37 Lourens du Plessis (1999). “The Evolution of Constitutionalism and the Emergence of

a Constitutional Jurisprudence in South Africa: An Evaluation of the South African
Constitutional Court’s Approach to Constitutional Interpretation.” Saskatchewan Law
Review 62: 302

It is not what the legislature meant to say or what their supposed intentions were with which
the court would be concerned; the court's duty is to find out the expressed intention of the
legislature. When the language is plain and there is nothing to suggest that any words are
used in technical sense or that the context requires a departure from the fundamental rule,
there would

be no occasion to depart from the ordinary and literal meaning and it would be inadmissible
to read into the terms anything else on grounds such as of policy, expediency, justice or
political exigency, motive of the framers, and the like.

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The courts never rationalized why this is justified approach to constitutional interpretation.
Apart from being a common law heritage, there has been no analysis by courts grounding
the literal rule as the best approach to constitutional adjudication.

Shortcomings of the Literal Rule

(1) First, the literal rule usually posits that judges do not make law but simply find or
discover the intention of the legislature or law giver and give effect to it. The problem with
that approach is that a democratic constitution is a collective effort, an expression of the
constituent sovereignty of the people. It cannot be attributed to a single identifiable
legislator whose intention can easily be fathomed. This makes it impossible for the court
to find a reliable “intention” of the law giver that would give a correct understanding of the
constitution. The intention of the legislature is simply a fiction.37 It is for this reason that
Willis urges caution when courts purport to have deciphered the intention of the legislature:
“…you

should then conclude that the court’s reference to ‘the intention of the legislature’ is a polite
notice that it is about to speculate as to what it thinks is the social policy behind the Act.”38

38 John Willis (1938). “Statutory Interpretation in a Nutshell.” The Canadian Bar Review
XVI: 4

39 Pierre de Vos (2001). “A Bridge Too far? History as Context in the Interpretation of the
South African Constitution.” South African Journal on Human Rights 17, 1: 17

40 Ibid

41 ibid

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42 The State v Makwanyane and Mchunu Case No. CCT/3/94, para 18.

43 Lourens du Plessis (1999). “The Evolution of Constitutionalism and the Emergence of

a Constitutional Jurisprudence in South Africa: An Evaluation of the South African
Constitutional Court’s Approach to Constitutional Interpretation.” Saskatchewan Law
Review 62: 303

It might be argued that reliance on historical records or the drafting history could help
resolve this issue. This is, for example, the approach the Constitutional Court took in the
Milford Maambo case to arrive at the conclusion that the drafting history of the impugned
provision exonerated the Director of Public Prosecutions from judicial oversight in
performance of his/her duties, particularly the power to discontinue proceedings through
entering a nolle prosequi.

This approach does not resolve the short-comings of the literal rule. It is of limited value.
This is because the recording of history is not an all-embracing process. History is made
up of an endless or infinite number of experiences of which only a small number can be
recorded.39

This entails that the recording of events is a selective process that does not reflect the global
experience. History is therefore a selection of events, usually by those with the most
influence over the process or events being recorded. As de Vos argued, “a particular version
of history is nothing more than an interpretation by a specific person with a specific point
of view as a specific historical juncture of selected past events.”40 Consequently, historical
records cannot be read literally. History should be read with a critical mind, taking into
account the fact that any history is “a choice that excludes and includes- even when one
might not realize it.”41 A Constitution, therefore, should not be interpreted simply to
reflect its drafting history but to reflect the collective values and ideals of the people.
Interpretation should be forward and not backwards looking. Arthur Chaskalson, the
former President of the South African Constitutional Court, once stated that a constitution
should be interpreted as the product of a “multiplicity of persons” and therefore “caution

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is called for in respect of the comments of individual actors in the process, no matter how
prominent a role they might have played.”42

(2)The second conceptual problem of the literal rule relates to who should decide when the
ordinary or plain meaning is unclear. This is because human understanding of words is
driven by a complex interplay of a person’s culture, beliefs, prejudices, social background,
presuppositions, personal experience, and other similar traits.43 As .

such it cannot be assumed that the general language can have single objective meaning.
Laurens du Plessis has argued that clarity “is not a function of language but of a shared of
a text couched in a language.”44

44 Ibid, 304

45 Lourens du Plessis (1998). “The Jurisprudence of Interpretation and the Exigencies of

a New Constitutional order in South Africa.” Acta Juridica 8: 11. See also John Mark
Keyes and Carol Diamond (2016). “Constitutional Inconsistency and Legislation-
Interpretation, Remedies and the Ambiguous Role of Ambiguity.” University of Ottawa
Working Paper Series No. WP2016-23: 8

46 Stephen Guest et al (2004). Jurisprudence and Legal Theory. London: University of

London Press; 176

47 Sotirios Barber and James Fleming (2007). Constitutional interpretation: The Basic
Question. Oxford: Oxford University Press; 189

48 Ronald Dworkin (1986). Law’s Empire. Cambridge: Cambridge University Press; 49

(3)Third, and related to the second, is that language only has meaning in a specific context.
Holding that words have ordinary or plain meaning is an over simplification. Further, once
words are used in legislation, regardless of where they originate, acquire a legal
meaning.45 Therefore, once incorporated in legislation, words no longer just have ordinary
meaning but obtain a legal meaning in the context of the broad framework in which they
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are integrated. In that case, words are no longer an end in themselves but are a means
towards understanding the underlying idea of the legal text in which they are incorporated.

(4)Fourth and finally, provisions in the constitution are generally couched in broad value-
laden terms. This is partly in order to ensure the text is adaptable to changing realities,
circumstances and developments. What, for example, constitutes the right to life, privacy
or personal liberty, cannot be captured in a mechanical or literal sense as these are broad
moral and philosophical concepts that cannot be exhausted by specific instances that they
are known to be currently associated with.

The Best Approach to Constitutional Interpretation

Interpretation does not mean describing a phenomenon, as the Constitutional Court

decisions seem to suggest. Interpretation entails “getting under the skin” of the constitution
in order to determine its point or purpose.46 Constitutional interpretation is about looking
for the best that the constitution means in securing the interests of the people and the
establishment and disciplining of government.47 It is not a mere description of words or
provisions.

This approach sees provisions in the constitution not as ends in themselves, but as having
an instrumental value, that is, the constitution is an instrument for the realization of the
values underpinning it. This approach is probably best illustrated by Ronald Dworkin’s
parable of an inverted community.48 In this community members follow a set of rules
known as “rules of courtesy” relating to a wide range of social occasions. The people
believe that courtesy requires that peasants should take off their hats to nobility. This has
been the accepted practice for many years and attained the character of a taboo, that is, the
rules are simply obeyed and have not been varied. .

However, after some time, slowly the members of the community develop a new attitude
towards the rules of courtesy. First there is an assumption by the people that the practice
of courtesy does not just exist literally but has value, that is, it serves some purpose or
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value. This implies that the value behind the practice of courtesy can be expressed or stated
independent of merely describing the practice of courtesy. The second assumption that
develops is that the rules of courtesy are not exclusively or necessarily what they have
always been taken to be but are instead there to simply serve the purpose of showing
courtesy.

Dworkin argues that once this new attitude takes hold, then the practice of courtesy is no
longer going to be carried on mechanically as people will from now onwards reflect on the
institution of courtesy and see it in its best light and may even restate or alter the practice
in view of the new meaning.49 Thus, the people no longer defer to a practice uncritically;
the people may, in light of the new assumptions, for example, determine that courtesy does
not require removal of hats to nobility but is better expressed by other means. Using this
parable, Dworkin argues that interpretation “folds back into the practice, altering its shape,
and the new shape encourages further interpretations….”50

49 Ibid, 47

50 Ibid, 48

51 Ibid, 52. See also Kenneth Elnar Himma (1996). “Freedom’s Law: The Moral Reading
od the American Constitution By Ronald Dworkin.” Auslegung 23, 2: 191

52 As cited in Sotirios Barber and James Fleming (2007). Constitutional Interpretation:

The Basic Question. Oxford: Oxford University Press; 28

To Dworkin, this exemplifies how constitutional interpretation works. A constitution

should not be interpreted literally but should be interpreted to be the best it can be in terms
of realizing its underlying values. As Dworkin puts it, “constitutional interpretation is a
matter of imposing purpose on an object or practice in order to make it the best possible
example of the form or genre to which it is taken to belong.”51 In interpreting the
constitution, judges should make the constitution the best it can be in fostering equal
political status of the citizens and limited government.

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Another way of understanding this approach is to consider a mental exercise proposed by
Dworkin:

Suppose I tell my children simply that I expect them not to treat others unfairly. I no doubt
have in mind examples of the conduct I mean to discourage, but I would not accept that
my “meaning” was limited to those examples, for two reasons. First I would expect my
children to apply my instructions to situations I had not and could not have thought about.
Second, I stand ready to admit that some particular act I had thought was fair when I spoke
was in fact unfair, or vice versa, if one of my children is able to convince me of the later;
in that I should want to say that my instructions covered the case he cited, not that I had
changed my instructions. I might say that I meant the family to be guided by the concept
of fairness, not by any specific conception of fairness I might have had in mind.52 .

The use of the terms concept and conceptions by Dworkin in this mental exercise is
significant. Concepts, like values, endure, while conceptions manifesting underlying
concepts may change over time. Interpretation, therefore, involves giving expression to
concepts (which endure) through the medium of concepts that are appropriate to the times
and reflect the best available realization of the concepts.

In the context of this mental exercise, this means that a person who is loyal to some
authority would interpret it in a manner that safeguards its goodness. Similarly, a
constitution should be interpreted in a manner that makes for a good constitution, that is,
one that preserves the rights of the people and disciplines government.

WHAT THE CONSTITUTION SAY ABOUT HOW IT SHOULD BE

INTERPRETED

Article 1 of the Constitution declares the Constitution supreme. Therefore, any law or
practice contradicting it is, to the extent of the inconsistency, invalid. Article 267(1) of the
Constitution provides in mandatory terms, how the constitution shall be interpreted, stating
that:
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This Constitution shall be interpreted in accordance with the Bill of Rights and in a manner
that-

(a) Promotes its purpose, values and principles;

(b) Permits the development of the law; and

(c) Contributes to good governance.

Further, Article 8 of the Constitution provides for national values, which include
democracy and constitutionalism, social justice, good governance and integrity. Article 9
makes it mandatory for a court to apply these values in interpreting the Constitution and
other laws. It must be noted that these provisions were borrowed from the 2010 Kenyan
Constitution, word for word. The significance of these provisions, as the then Kenyan Chief
Justice Willy Mutunga stated, is that “the Constitution is complete with its mode of its
interpretation.”53 The constitution being self-contained with tools for its interpretation,
and these provisions being mandatory, there was no legal basis for the Constitutional
Court’s reversion to the common law in order to circumvent the theory of interpretation
required by the very constitution.

53 In the Matter of the Principles of Gender Representation in the National Assembly and
Senate Advisory Opinion No. 2 of 2012.

Reading

(Legislation)

Constitution of Zambia Chapter One of the Laws of Zambia .

Interpretation and General Provisions Act Chapter Two of the Laws of Zambia

Acts of Parliament Act Chapter Three of the Laws of Zambia

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(Case law)

Shadreck Mwiinga v The Queen (1963-1964) NRLR 81

Attorney General and Movement for Multiparty Democracy v Lewanika and Others

Eith Tshabalala v Attorney General SJ No. 2 of 1994

Samuel Miyanda v Raymond Handahu 1994/SCZ/6

Milford Maambo, Ziwa Malilo Ziwa and Chanda Chabala v The People 2016/CC/R001
Selected Judgment No. 31 of 2017

African Christian Democratic Party v Electoral Commission (2006) ZACC 1 3SA 305 (CC)

The State v Makwanyane and M Mchunu (3) SA391 (CC)

The State v Mhlungu 1995 3SA 867 (CC)

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