The Law and Legal research in Zambia
By Alfred S. Magagula
Alfred S. Magagula is a student at the University of Swaziland in the final year of his LL.B. He holds a B.A. (Law) from the same university and has done research with various consultancy firms in Swaziland before. He is a part-time researcher with Panacea Consulting.
Published October 2009
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Table of Contents
Zambia lies between the Democratic Republic of Congo to the north, Tanzania to the north-east, Malawi to the east, Mozambique, Zimbabwe, Botswana, and Namibia to the south, and Angola to the west. The country measures approximately 752,618 sq km with a population of approximately 11 862 740. The country’s leadership is democratic.
Zambia's population comprises more than 70 Bantu-speaking ethnic groups. Some ethnic groups are small, and only two have enough people to constitute at least 10% of the population. Most Zambians are subsistence farmers. The predominant religion is a blend of traditional beliefs and Christianity; Christianity is the official national religion. Expatriates, a majority of whom are British (about 15,000) and South African, live mainly in Lusaka and in the Copper belt in northern Zambia, where they are employed in mines and related activities. Zambia also has a small but economically important Asian population, most of whom are Indians.
The indigenous hunter-gatherer
occupants of Zambia began to be displaced or absorbed by more advanced
migrating tribes about 2,000 years ago. The major waves of Bantu-speaking
immigrants began in the 15th century, with the greatest influx between the
late 17th and early 19th centuries. They came primarily from the Luba and Lunda
tribes of southern Democratic Republic of Congo and northern Angola but were
joined in the 19th century by Ngoni peoples from the south. By the latter part
of that century, the various peoples of Zambia were largely established in the
areas they currently occupy.
Except for an occasional Portuguese explorer, the area lay untouched by Europeans for centuries. After the mid-19th century, it was penetrated by Western explorers, missionaries, and traders. David Livingstone, in 1855, was the first European to see the magnificent waterfalls on the Zambezi River. He named the falls after Queen Victoria, and the Zambian town near the falls is named after him.
In 1888, Cecil Rhodes, spearheading British commercial and political interests in Central Africa, obtained mineral rights concession from local chiefs. In the same year, Northern and Southern Rhodesia (now Zambia and Zimbabwe, respectively) were proclaimed a British sphere of influence. Southern Rhodesia was annexed formally and granted self-government in 1923, and the administration of Northern Rhodesia was transferred to the British colonial office in 1924 as a protectorate. In 1953, both Rhodesias were joined with Nyasaland (now Malawi) to form the Federation of Rhodesia and Nyasaland. Northern Rhodesia was the center of much of the turmoil and crisis that characterized the federation in its last years. At the core of the controversy were insistent African demands for greater participation in government and European fears of losing political control.
A two-stage election held in October and December of 1962 resulted in an African majority in the legislative council and an uneasy coalition between the two African nationalist parties. The council passed resolutions calling for Northern Rhodesia's secession from the federation and demanding full internal self-government under a new constitution and a new national assembly based on a broader, more democratic franchise. On December 31, 1963, the federation was dissolved, and Northern Rhodesia became the Republic of Zambia on October 24, 1964.
At independence, despite its considerable mineral wealth, Zambia faced major challenges. Domestically, there were few trained and educated Zambians capable of running the government, and the economy was largely dependent on foreign expertise. Abroad, three of its neighbors--Southern Rhodesia and the Portuguese colonies of Mozambique and Angola--remained under white-dominated rule. Rhodesia's white-ruled government unilaterally declared independence in 1965. In addition, Zambia shared a border with South African-controlled South-West Africa (now Namibia). Zambia's sympathies lay with forces opposing colonial or white-dominated rule, particularly in Southern Rhodesia. During the next decade, it actively supported movements such as the Union for the Total Liberation of Angola (UNITA), the Zimbabwe African People's Union (ZAPU), the African National Congress of South Africa (ANC), and the South-West Africa People's Organization (SWAPO).
Conflicts with Rhodesia resulted in the closing of Zambia's borders with that country and severe problems with international transport and power supply. However, the Kariba hydroelectric station on the Zambezi River provided sufficient capacity to satisfy the country's requirements for electricity. A railroad to the Tanzanian port of Dar es Salaam, built with Chinese assistance, reduced Zambian dependence on railroad lines south to South Africa and west through an increasingly troubled Angola.
By the late 1970s, Mozambique and Angola had attained independence from Portugal. Zimbabwe achieved independence in accordance with the 1979 Lancaster House agreement, but Zambia's problems were not solved. Civil war in the former Portuguese colonies generated refugees and caused continuing transportation problems.
The Benguela Railroad, which extended
west through Angola, was essentially closed to traffic from Zambia by the late
1970s. Zambia's strong support for the ANC, which had its external headquarters
in Lusaka, created security problems as South Africa raided ANC targets in
Zambia. In the mid-1970s, the price of copper, Zambia's principal export,
suffered a severe decline worldwide. Zambia turned to foreign and international
lenders for relief, but as copper prices remained depressed, it became
increasingly difficult to service its growing debt. In response to growing
popular demand, and after lengthy, difficult negotiations between the Kaunda
government and opposition groups, Zambia enacted a new constitution in 1991 and
shortly thereafter became a multi-party democracy. Kaunda's successor,
Frederick Chiluba, made efforts to liberalize the economy and privatize industry,
but allegations of massive corruption characterized the latter part of his
administration. By the mid-1990s, despite limited debt relief, Zambia's per
capita foreign debt remained among the highest in the world.
Although poverty continues to be a significant problem in Zambia, its economy has stabilized, attaining single-digit inflation in 2006-2007, real GDP growth, decreasing interest rates, and increasing levels of trade. Much of its growth is due to foreign investment in Zambia's mining sector and higher copper prices on the world market. In 2005, Zambia qualified for debt relief under the Heavily Indebted Poor Countries (HIPC) initiative, consisting of approximately U.S. $6 billion in debt relief.
a republic immediately upon attaining independence in October 1964. The
constitution promulgated on August 25, 1973, abrogated the original 1964
constitution. The new constitution and the national elections that followed in
December 1973 were the final steps in achieving what was called a
"one-party participatory democracy." The 1973 constitution provided
for a strong president and a unicameral National Assembly. National policy was
formulated by the Central Committee of the United National Independence Party
(UNIP), the sole legal party in Zambia. The cabinet executed the central
committee's policy. In accordance with the intention to formalize UNIP
supremacy in the new system, the constitution stipulated that the sole
candidate in elections for the office of president was the person selected to
be the president of UNIP by the party's general conference. The second-ranking
person in the Zambian hierarchy was UNIP's secretary general.
In December 1990, at the end of a tumultuous year that included riots in the capital and a coup attempt, President Kenneth Kaunda signed legislation ending UNIP's monopoly on power. Zambia enacted a new constitution in August 1991, which enlarged the National Assembly from 136 members to a maximum of 158 members, established an electoral commission, and allowed for more than one presidential candidate who no longer had to be a member of UNIP. The first multi-party elections in November 1991 resulted in the victory of the Movement for Multi-Party Democracy (MMD) and the election of President Frederick Chiluba, a former trade Unionist. The present Constitution dates from June 1996. While similar to the 1991 Constitution, it contains amended provisions regarding the qualifications of presidential candidates and grants the President and the National Assembly increased powers in respect of their relationship with the judiciary. The May 1996 amendment set new limits on the presidency (including a retroactive two-term limit, and a requirement that both parents of a candidate be Zambians-by birth or descent). This amendment had the direct effect of excluding former President Kaunda, whose parents were Malawian, from standing in the presidential elections. The UNIP boycotted the November 1996 elections that confirmed the government of MMD and President Chiluba. Executive power is vested in the President, who is elected directly by universal suffrage for a term of five years and may be re-elected only once. The President is the Head of State and the Commander-in-Chief.
On 2 August 1991, the adoption of a new Constitution introduced a multi-party system, thereby ending the monopoly of Kaunda’s United National Independence Party (UNIP). The President appoints the Ministers of his Cabinet from among the members of the National Assembly, and they are collectively answerable to the National Assembly. The President has the power to declare a state of emergency and to dissolve the National Assembly. Article 45 of the Constitution provides for the office of the Vice-President, who is appointed from among the members of the National Assembly and performs such functions as are assigned to him by the President of the Republic. Legislative power is vested in the Parliament, which consists of the President and the National Assembly. The National Assembly is composed of 150 members elected by universal, direct suffrage, with not more than eight members nominated by the President, and the Speaker, nominated by the members of the National Assembly. Traditional chiefs are not qualified to be elected as members of the Parliament. Legislation passed by the National Assembly must be assented to by the President in order to become law. Members of the Parliament form parliamentary committees with the mandate to consider specific matters or bills.
The Constitution also provides for a House of Chiefs, an advisory body composed of 27 chiefs from the various provinces. 401 Zambia – Attacks on Justice, eleventh edition International Commission of Jurists .The country is divided into nine provinces, including the capital of Lusaka, each of which is administered by a centrally appointed Provincial Secretary and a partially elected Provincial Council. The provinces are subdivided into 55 districts, each administered by a centrally appointed Governor and a partially elected District Council. Presidential and parliamentary elections are to be held on 27 December 2001.
At the beginning of 2001 President Chiluba had seemed eager to amend the Constitution in order to seek a third term, but on 8 May 2001, following pressure from the opposition, international donors and even by members of his own cabinet, Chiluba announced that he would not stand for an unconstitutional third term in office. In the meantime, more than 20 dissident members of the ruling MMD party including the country’s Vice-President and eight ministers have been expelled from the Parliament. In May 2001, an impeachment petition was filed against President Chiluba before the House Speaker of the National Assembly. The petitioners, mostly MMD parliamentarians, obtained 65 signatures, enough to compel the Speaker to convene parliament to hear charges of gross misconduct against President Chiluba, who had come under intense criticism for corruption in his government. On 30 May 2001, the Parliament postponed the debate on the impeachment motion.
In December 1990, at the end of a tumultuous year that included riots in the capital and a coup attempt, President Kaunda signed legislation ending UNIP's monopoly on power. In response to growing popular demand for multi-party democracy, and after lengthy, difficult negotiations between the Kaunda government and opposition groups, Zambia enacted a new constitution in August 1991. The constitution enlarged the National Assembly from 136 members to a maximum of 158 members, establishing an electoral commission, and allowed for more than one presidential candidate who no longer had to be members of UNIP. The constitution was amended again in 1996 to set new limits on the presidency (including a retroactive two term limit, and a requirement that both parents of a candidate be Zambian-born.) The National Assembly is comprised of 150 directly elected members, up to 8 presidentially appointed members and a speaker. Zambia is divided into nine provinces, each administered by an appointed governor.
Zambia is a member of the Non-Aligned
Movement (NAM), the African Union, the Southern African Development Community
(SADC), and the Common Market for Eastern and Southern Africa (COMESA), which
is headquartered in Lusaka. President Kaunda was a persistent and visible
advocate of change in southern Africa, supporting liberation movements in
Angola, Mozambique, Namibia, Southern Rhodesia (Zimbabwe), and South Africa.
Many of these liberation organizations were based in Zambia during the 1970s
and 1980s. President Chiluba assumed a visible international role in the mid-
and late 1990s. His government sponsored Angola’s peace talks that led to the
1994 Lusaka Protocols. Zambia provided troops to UN peacekeeping initiatives in
Mozambique, Rwanda, Angola, and Sierra Leone. Zambia was the first African
state to cooperate with the International Tribunal investigation of the 1994
genocide in Rwanda.
In 1998, Zambia took the lead in efforts to establish a cease-fire in Democratic Republic of the Congo. After the signing of a cease-fire agreement in Lusaka in July and August 1999, Zambia was active in supporting the Congolese peace effort, although activity diminished considerably after the Joint Military Commission tasked with implementing the ceasefire relocated to Kinshasa in September 2001.
During President Mwanawasa's administration, Zambia contributed troops to support UN peacekeeping operations in southern Sudan. During his tenure as SADC Chair, President Mwanawasa brought the issue of Zimbabwe to the fore in the SADC, taking a lead role in pressuring President Mugabe for reforms in his country. Zambia's history of stability and its commitment to regional peace has made it a haven for large numbers of refugees. Currently, Zambia hosts approximately 87,000 refugees (down from a high of 203,000 in 2002), including roughly 51,000 Congolese, 27,000 Angolans, and 9,000 other nationalities (mainly Rwandans, Burundians, and Somalis). In recent years, Zambia has made serious efforts to repatriate many of these refugees, including organized repatriation for 74,000 Angolan and 17,000 Congolese refugees.
About two-thirds of Zambians live in poverty. Per capita annual incomes are well below their levels at independence and, at $852, place the country among the world's poorest nations. Life expectancy at birth is about 51 years, and maternal mortality is 649 per 100,000 pregnancies. The country's rate of economic growth cannot support rapid population growth or the strain which HIV & AIDS-related issues (i.e., rising medical costs, decline in worker productivity) place on government resources. Zambia is also one of Sub-Saharan Africa's most highly urbanized countries. Over one-third of the country's 12.9 million people are concentrated in a few urban zones strung along the major transportation corridors, while rural areas are under-populated. Unemployment and underemployment are serious problems. HIV & AIDS is the nation's greatest challenge, with 14.3% prevalence among the adult population.
HIV & AIDS will continue to ravage Zambian economic,
political, cultural, and social development for the foreseeable future. Once a
middle-income country, Zambia began to slide into poverty in the 1970s when
copper prices declined on world markets. The socialist government made up for falling
revenue by increasing borrowing. After democratic multi-party elections, the
Chiluba government (1991-2001) came to power in November 1991 committed to an
economic reform program. The government was successful in some areas, such as
privatization of most of the parastatals, maintenance of positive real interest
rates, the elimination of exchange controls, and endorsement of free market
principles. Corruption grew dramatically under the Chiluba government. Zambia
has yet to address effectively issues such as reducing the size of the public
sector and improving Zambia's social sector delivery systems.
For 30 years, copper production declined steadily from a 1973 high of 700,000 metric tons to a 2000 low of 226,192 metric tons. The decline was the result of poor management of state-owned mines and lack of investment. With the privatization of the mines in April 2000, the downward trend in production and exports was reversed as a result of investments in plant rehabilitation, expansion, increased exploration, and high copper prices on the international market. Copper production rose to 535,000 metric tons in 2007, but slumping copper prices in late 2008 put significant pressure on the mining companies and government revenue. Zambia experienced positive economic growth for the ninth consecutive year in 2007 with a GDP of U.S. $10.9 billion and a real growth rate of 6% (according to preliminary IMF estimates). The rate of inflation dropped from 30% in 2000 to single-digit inflation of 8.9% by December 2007 due to fiscal and monetary discipline and the growth of the domestic food supply.
Year-on-year inflation grew to double digits in late 2008, due to rising fuel and food prices. In April 2005, the International Monetary Fund (IMF) and the World Bank's International Development Association (IDA) provided Zambia significant debt service relief and debt forgiveness under the Heavily Indebted Poor Countries (HIPC) initiative. Zambia was the 17th country to reach the HIPC completion point and has benefited from approximately U.S. $6 billion in debt relief. In July 2005, the G-8 agreed on a proposal to cancel 100% of outstanding debt of eligible HIPC countries to the IMF, African Development Fund, and IDA. Zambia is among the beneficiaries of this additional multilateral debt relief.
Zambia also completed a Poverty Reduction and Growth Facility (PRGF) arrangement with the IMF for the period 2008-2011. The Zambian Government is pursuing an economic diversification program to reduce the economy's reliance on the copper industry. This initiative seeks to exploit other components of Zambia's rich resource base by promoting agriculture, tourism, gemstone mining, and hydropower. The government is also seeking to create an environment that encourages entrepreneurship and private-sector led growth. Zambia's economy has been affected by the global economic crisis and the fall in world copper prices. High inflation, currency volatility, rising unemployment, and restricted access to capital are likely to dampen Zambia’s economic performance in 2009.
Zambia does not have a single code containing its laws. These are drawn from a variety of sources. The following are sources of law in Zambia:
- Common Law
- Judicial precedent
- Customary Law
- Authoritative texts
The constitution was adopted in 1991 and was amended in 1996. It abrogates the 1973 constitution, which allowed, as stated above, only one political party. More political parties were allowed to participate as enshrined by the new constitution.
Legislation in Zambia is contained in statute books that are available in most libraries. The Ministry of Justice Law library offer legislation. The government website is also helpful in as far as legislation is concerned. Constitutionally, legislation refers to laws that have been passed by parliament and have been assented to by the President. Subsidiary legislation refers to laws passed by other bodies to which parliament have validly delegated such legislative powers. These include government gazettes and municipal bye-laws, inter alia.
In Zambia the legislative vests in the National assembly and is assented to by the President. Parliament can confer power on any authority to create binding laws. Currently parliament consists of one House; the National assembly. In terms of the constitution, legislation brought through parliament has to be scrutinized by the National assembly before it goes for assent to the President (article 78(2)). A bill shall not become law unless the President has assented to it and signed it in token of that assent (article 78). By virtue of Article 54(2) (a), the Attorney General is charged with drafting and signing all bills presented before parliament. The Attorney General may delegate functions to the Solicitor General (article 55(5) (b)). Laws made by the National Assembly and assented to by the president shall be styled “Acts” and the words of enactment shall be “Enacted by the Parliament of Zambia” (article 78(8)).
Precedent forms part of the law of Zambia. Decisions of superior courts of record are therefore binding to lower courts. Decisions from South African courts are only persuasive, and courts refer to them in formulating their decisions. Decisions from similar jurisdiction can also be cited for their persuasive value. Magistrates' courts decisions do not become precedent since these are lower courts. They are however bound by decisions of the High Court and the Supreme Court of Appeal. Precedent assists in consistency in legal interpretation and application of the law. It has also been justified for bringing certainty and uniformity to the law. However, precedent has been blamed for causing rigidity of legal systems, preventing development of the law.
Written works of eminent authors have persuasive value in the courts of Zambia. These include writings of the old authorities as well as contemporary writers from similar jurisdictions.
Zambia is signatory to many international instruments. Although the country is quick to ratify, implementation is often slow or never materialises. Zambia belongs to the dualist tradition, thus views international law and domestic law as two separate legal systems. Hence domestication of international law by an Act of Parliament is necessary before international law can be applied. This of course excludes customary international law which is binding on all states. The Attorney General is mandated by article 54(2) (b) to draft and peruse treaties and agreements the government of Zambia is party to.
At the apex of the Zambian justice system is the Supreme Court which is the final court of appeal on all matters. It has a supervisory and review jurisdiction over all courts of Zambia. The Supreme Court has appellate jurisdiction for all legal and constitutional disputes. The High Court, which holds regular sessions in all nine provincial capitals, has authority to hear criminal and civil cases and appeals from lower courts. The Industrial Relations court deals exclusively with industrial and labour matters. There is also a Land Tribunal and Revenues Appeals Tribunal. Magistrate courts have original jurisdiction in some criminal and civil cases; local, or customary, courts handle most civil and petty criminal cases in rural areas.
Local courts employ the principles of customary law, which vary widely throughout the country. Lawyers are barred from participating in proceedings in such courts, and there are few formal rules of procedure. Presiding judges, who usually are prominent local citizens, have substantial power to invoke customary law, render judgments regarding marriages, divorces, inheritances, other civil proceedings, and rule on minor criminal matters. Judgments often are not in accordance with the Penal Code. For example, they tend to discriminate against women in matters of inheritance.
Judicial power exclusively vests in the judiciary in terms of Article 91(2) of the Constitution. Article 91 (3) of the Constitution further provides that justice shall be administered in accordance with the provisions of an Act of Parliament which shall be independent and subject on. Article 91(1) provides that the judiciary shall consist of
the Supreme Court of Judicature comprising:
(a) The Supreme Court, and
(b) The High Court
(c) Such other courts as may be prescribed by an Act of Parliament.
The constitution of Zambia is the supreme law and if any other law inconsistent with the constitution that other law shall, to the extent of its inconsistency, be void ( article1(3)). Therefore Zambia has a constitutional supremacy.
The constitution was adopted in 1991 after consultations with the citizens of Zambia. It was amended in 1996. It repealed the constitution of Zambia Act, 1973. It purports to be an autochthonous document. The constitution set out clearly the state structure, bill of rights, the separate arms of government as well as other administrative organs such as the public service commission.
Fundamental rights and freedoms Article11
Protection of right to life Article 11(a), Article 12
Protection of right to personal liberty Article13
Protection from slavery Article 14
Protection from inhuman or degrading treatment Article 15
Protection from deprivation of property Article16
Right to a fair hearing Article 18(1)
Protection against arbitrary search or entry Article 17(1)
Protection of freedom of conscience and religion Article 19
Protection of freedom of expression Article 20
Protection of freedom of assembly and association Article 21
Rights of child Article 24
Enforcement of protective provisions Article 28
Zambia is defined as a unitary sovereign, multiparty and democratic state. (This part sets out that all power resides in the people who shall exercise their sovereignty through the democratic institutions of the state). This part also establishes the Public Seal. The supremacy of the constitution is set out in this part. The constitution also sets out the anthem and the National Emblem.
Citizenship is the state of belonging. Citizenship guarantees rights of nationality and all other rights from being a national of a particular country. Amongst other inherent rights is the ability to pass on to natural and adopted children since they cannot obtain their independent citizens at that stage. This part talks about acquisition and loss of acquisition. Citizenship in Zambia can be by way of descent, operation of the law or birth, marriage or by registration.
Most notable is the fact that either the mother or the father or both can confer citizenship on children (Article 5). Article 9 provides for the establishment of the Citizenship Board, which deals with any matters pertaining registration as citizens and powers of parliament in making provisions for acquisition of citizenship of Zambia by persons who are not eligible to become citizens of Zambia.
Part three is concerned with the promotion and protection of fundamental human rights and freedom of the individual.
Zambia still retains the death penalty, whilst Article 12(1) states that no person shall be deprived of life, it permits the use of death penalty in the execution of the sentence of a curt in respect of criminal offence which that person has been convicted. This is not enough to ensure the full guarantee of the right to life. The right to life, as guaranteed by the second protocol to the International Covenant on Civil and political Rights aiming at the abolition of the death penalty, and the African Charter on Human and Peoples Rights. Imposition of the death penalty itself is not only a violation of the right to life, but also the ultimate form of cruel, inhuman or degrading punishment or treatment.
The protection guaranteed in the international standards is missing or not fully recognized and entrenched in this constitution. For example International standards of fair trial provide that anyone arrested or detained must be notified at the time of the arrest of the reasons of their arrest or detention and their right, including their right to counsel. This information is essential to allow detained persons to challenge the lawfulness of their arrest or detention and, if they are charged, to start the preparation of their defense. It is essential against arbitrary arrest and detention, to ensure that no detainee is held incommunicado detention, or in a place other than an official detention centre or prison or held in any manner intended to frustrate proper and prompt access to the detainee by legal representatives, doctors or next of kin. Finally, it is not clear why this part on the protection of the right to personal liberty should include exceptions allowing for orders requiring a person to remain within a specific area or prohibiting that person from being within such an area as envisaged by article 16(1)(i).
The Zambian Constitution is silent on the issue of women’s equal participation in electoral politics. Moreover, no provision of the Zambian Constitution ensures substantive equality between women and men, though Article 11 does include a blanket non-discrimination clause that guarantees everyone the enjoyment of fundamental rights and freedoms regardless of “race, place of origin, political opinions, colour, creed, sex or marital status” (emphasis added). Article 23 of the Constitution further guarantees that, except for certain limitations, “A law shall not make any provision that is discriminatory either of itself or in its effect.”
Article 23(4) of the Zambian Constitution allows discrimination in the area of customary Law, family law and other areas such as adoption, marriage, divorce and inheritance. Article 11(1) recognizes and declares every person in Zambia to be entitled to the fundamental rights and freedoms of the individual, whatever “his sex”. However, the same article states that the entitlement of these rights and freedoms are subject to limitations contained in this related to Fundamental Rights and Freedoms. Linked to Article 23(4), this means that discrimination against women in areas related to property and inheritance rights is allowed. Article 16 provides for protection against deprivation of property, which may only be carried out under an Act of Parliament providing for payment of adequate compensation.
There is no specific provision in the Zambian constitution that stipulates the rights of persons with disabilities. Article 23 proscribes discrimination in any form against any person and could be used to govern the rights of the disabled. Persons with disabilities should have their rights protected and guaranteed. However, Zambia has a specific legislation on the rights of disabled persons. It is contained in the Handicapped Persons Act of 1968 as amended. The Zambian statute establishes a Council of the disabled, which provides for voluntary registration of disabled persons and of associations that maintain their welfare. A commissioner of the disabled is responsible for the administration of the Act.
Article 33(1) states that there shall be a president of the Republic of Zambia who shall be the head of state and of the government and the Commander-in-chief of the defense force. Article 33(2) clearly states that the executive power of the Republic of Zambia shall vest in the president and, subject to the other provisions of this constitution; shall be exercised by him either directly or through officers subordinates to him. In line with the doctrine of separation of powers Article 33(2) emphasizes that exercise of executive power by the president shall be in accordance with the constitution. This serves to curtail any excess on the use of such power. The constitution further provides for the appointment of the Vice-President, ministers and their deputies.
The attorney General (AG) plays the role of the legal advisor to the government, hence the relationship between the office of the AG and the ministry of justice. The AG is not part of the cabinet per se but works closely with the executive. Article 54(1) of the constitution which is the provision creating this office provides that the AG shall be appointed by the president. It further spells out the qualifications of the persons to be appointed. The AG is the Principal legal advisor to the government and an ex-officio member of cabinet. The AG represents the government in courts or any other legal proceedings to which government is a party.
Government also makes use of the office of the Solicitor General (SL) who shall be appointed by the president as per Article 55(1). The SL may exercise any power or duty imposed on the AG when the AG is unable to act owing to illness or absence and in any case where the AG has authorized the AG.
Apart from the AG’s office and the SL’s office government also makes use of the office of the Director of Public Prosecutions (DPP), mainly in criminal matters. Article 56(1) set up this office and provides for the appointment of the DPP. The DPP is appointed by the President subject to ratification by the National Assembly, and qualification for appointment to this office is the same as that for a judge of the High Court with experience biased on criminal law, (Article 56(2)).
Article 56(3) provides that the DPP shall have power in any case which he considers it proper to do so, to;
(a) Institute and undertake criminal proceedings against any person in any court, other than a court martial, in respect of any offence alleged to have been committed by that person;
(b) Take over and continue any such criminal proceedings as have been instituted or undertaken by any other person or authority;
(c) To discontinue, at any stage before judgment is delivered, any such criminal proceedings instituted or undertaken by himself or any other person or authority.
The DPP in person or by delegation to subordinate officers has the power to institute and undertake criminal proceedings against any person before any court. This office can take over and continue or discontinue any criminal proceedings instituted by any person or authority, at any stage before judgment is delivered. Although individuals can prosecute (that is institute criminal proceedings) at the private instance. The drawback of provisions allowing for prosecution at the private instance is that the DPP’s office never really gets to totally relinquish its powers to prosecute. Article 56(3) (b) of the constitution acts as a drawback clause that can easily be open to abuse, to frustrate any attempts at private prosecutions. Notwithstanding the issue of a nolle prosequi, the DPP’s office can still intercept private prosecution proceedings and take over in its capacity as a public prosecutor: thus effectively excluding the person or authority that initiated the proceedings. The DPP’s office need not give reasons for such move, save that it is proper to do so.
Further, after rejoining the fray, the DPP’s office may then exercise its powers under paragraph (c) to terminate any criminal proceedings, whether started by the office at the public instance or any person at private instance.
It is submitted that this vicious cycle is open to abuse. In effect it means that prosecution can only be undertaken by the DPP and no other individual or authority.
The constitution portrays the government in Zambia as a multi-party and democratic Sovereign State. The constitution further provides that parliament shall consist of the President and the National Assembly. In terms of Article 63(2) membership to the National Assembly is through ordinary elections and being voted into parliament. The elected members shall not exceed one hundred and fifty members (150), not more than eight (8) nominated members and the speaker of the national assembly. Since Zambia is a multi-party democracy members of parliament represent their respective political parties. The constitution is silent on the issue of Women’s equal participation in electoral politics.
The constitution provides that the judicature shall be autonomous and shall be administered in accordance with the provisions of an Act of parliament. The judicature shall be independent and subject to only the constitution. The judiciary shall consist of superior court of judicature comprising of;
· Supreme Court
· High Court
· Industrial Court
· Subordinate Courts
· The Local Courts
· Such other courts as may be prescribed by act of parliament.
The judiciary has jurisdiction in all matters civil and criminal, including matters relating to the constitution, and such other jurisdiction as by law conferred on it. The superior courts are courts of record and have power to commit for contempt to themselves and all such powers as were vested in a superior court of record immediately before the commencement of the constitution.
The constitution gives very wide powers to the head of state to appoint judicial officers. The president appoints the chief justice and the deputy chief justice. According to article 93(1) the chief justice and deputy chief justice shall subject to ratification by the national assembly, be appointed by the president. Article 93(2) gives the president the power to appoint judges of the Supreme Court. Article 95(1) states that puisne judges shall subject to ratification by national assembly be appointed by the president on the advice of judicial services commission. Furthermore, the president with the advice of the JSC appoints the chairman and deputy chairman of the industrial court. Section 96(1) states that any position appointed under article 93 to act as a judge of the Supreme Court shall continue to act for the period of that person’s appointment is marked by the president.
Judges and other judicial officers ought to be hired on full time basis to ensure that they enjoy security of the tenure to enable them to carry out their duties in a competence fashion without fear or favour. Judges on contract are under pressure particularly when their contracts are about to end. This is contrary article 91(2) which promotes judicial independence and frowns upon infringement on this independence by other organs of government. Appointment of judges on acting or contract basis is detrimental to judicial independence since such judges are put in a state of suspense regarding whether they would be confirmed or not. In such a situation the judge may find himself / herself trying to please those with power to confirm him/ her by deciding cases in their favour. The involvement of the head of state in the process of appointing judges intimidates against an independent judiciary. Due to this fact such appointment can not be free of political considerations. The constitution still rests arguably judicial powers on the president. In a situation where the appointing body is politically influenced one cannot hope for independent judiciary. People seeking judicial appointments might be lobby appointed. Thus such people would feel a sense of obligation to the executive and be inclined to favour the executive in the adjudicatory process.
Article 98(1) provides a position holding the offices of a judge of the Supreme Court or the office of a judge of the high court shall vacate that office on attaining the age of 65 years. Provided that the president –(a) may appoint a judge of the supreme court, who has attained that age to continue in office for such further period, not exceeding seven years as the president may determine. Judges along with other specified officers such as attorney general, investigators- general solicitor- general director of public prosecutions are paid from the general revenues of the republic. Such salaries and or allowances may be presented by or under an act of parliament. Article 119(3) provides that the salary payable to the holder of any holder of office shall not be uttered to his disadvantage after his appointment. Note article 96.
According to Article 98(2) a judge of the Supreme Court, high court chairman of deputy chairman of the industrial relations court may be removed from office only for inability to perform the functions of his office whether arising from infirmity of body or mind, incompetence or misbehavior and shall not be so removed except in accordance with the provisions of this article. Article 98(3) provides for the establishment of a tribunal which will investigate the case of a judge before removal in which the tribunal consists of a chairman and not less than the other members who hold or have held high judicial office. This tribunal can be biased in the sense that the judge whose perpetual removal has been influenced by the political motives can collude to remove him from offices in order to gain favour from the executive. The tribunal after a proper inquiry represents the matter to the president and advices the president whether the judge ought to be removed from office for inability or incompetence or for misbehavior for which the president has an obligation to remove such judge from office. Article 98 gives so much power on the president to remove and suspend judge and this compromises the independence of judiciary as narrated by article 91(2).
Article 92 establishes the supreme court of Zambia, which shall consist of: the chief justice, the deputy chief justice, seven Supreme Court judges or such greater number as may be prescribed by an act of parliament. The Supreme Court is a superior court of record.
Article 97 establishes the high court of Zambia which shall have, except as to the proceedings in which the industrial relations court has exclusive jurisdiction under the industrial relations (act no.27 of 1993), unlimited or original jurisdiction to hear and determine any civil or criminal proceedings under any law and such jurisdiction and powers as may be conferred on it by this constitution or any other law. The high court shall be divided into such divisions as may be determined by an act of parliament 94(2). The chief justice shall be such an ex-offices judge of the high court (3). The other judges of the high court shall be such number of puisne judges as maybe prescribed by parliament.
Article 94(6) provides that the high court shall be a superior court of record. The high court has jurisdiction to supervise any civil or criminal proceedings before any subordinate court or any court martial and may such order issues such as writs and give such direction as it may consider appropriate for the purposes of ensuring that question as is duly administered by such court.
Apart from the Supreme Court and the High Court which are ordinary courts, Zambia also has specialist courts set up to deal with particular matters. These are creatures of statute, with limited jurisdiction as set out in the legislation establishing them. The Industrial Court and Local courts are examples of specialist courts in Zambia.
The local courts play an important part in the settlement of disputes of the majority of the majority of the population the customary law itself is in a state of flux. The main thrust of the law governing the operation of the Local Courts, contained in Chapter 29 o the Laws of Zambia, is the administration of customary law. In reality the Local Courts are the focal point of varied societal claims. Customary law is the ambiguous expression in which are hidden many legal claims. It can be safely asserted that Local Courts are the clearing grounds for simple torts, contracts, and petty crimes. But the main workload of the courts is the law relating to non-statutory marriages. Divorce, reconciliation, custody of children, payment of mabolo or lobola, persons who die without a will-these are areas which affect the legal rights of the majority of the population. The effective handling of these disputes and their fair and just resolution assure stability in the community.
There is no uniform formal educational qualification for adjudicators of local courts. They bring important innovation in the administration of community justice derived in part from their practical understanding of the workings of a post-traditional society. These justices are often fluent in more than four local languages.
There is on the Zambian statute books the Small Claims Court Act. The objective of the Act is to provide for the establishment, of Small Claims Courts to be situated in areas to be designated by the Chief Justice. The Small Claims Courts adopt arbitration as a mode of resolving disputes. The choice of this mode of dispute resolution is questionable because arbitration is typically adjudicative and is quite formal. Mediation would probably have been a more apt mode of resolving disputes in the Small Claims Courts. The tragedy of the Small Claims Court legislation is that although the legislation has been on the statute books for over a decade, the Small Claims Courts have not yet been operationalized. However the idea of Small Claim Courts is a very good one. It depends on involvement of legal practitioners of 5 year standing with more personnel allocated to them. The Small Claims Court could utilize existing infrastructure such as school buildings, community halls and several others. If the existing mechanisms of resolving disputes in both rural and urban areas are adopted but also adapted to suit the needs of the poor the small claims court could work most effectively. Rules that normally apply to formalized courts should be more flexible to enable the poor.
The Legal Aid Act 70 was enacted on 20th November 1967. The objective of the Act is to provide for legal aid in civil and criminal matters and causes to persons whose means are inadequate to enable them to engage practitioners to represent them. The Directorate of Legal Aid Board operated as a department within the Ministry of Legal Affairs and consequently enjoyed limited autonomy. However, by the Legal Aid (Amendment) Act the Legal Aid department was transformed into a Legal Aid Board. The Legal Aid Board comprised the following part-time members appointed by the Minister: 73
(a) A person qualified to be a Judge of the High Court who shall be the Chairperson;
(b) A representative of the Law Association of Zambia;
(c) The Permanent Secretary in the Ministry responsible for legal affairs;
(d) A representative of the Ministry responsible for Home Affairs;
(e) The Director who shall be an ex officio member;
(f) A representative of a non-governmental organization active in the promotion of human rights; and
g) One other person
Furthermore, the Legal Aid (Amendment) Act defined the functions of the Board as being to:
(a) Manage and administer the Legal Aid Fund; and
(b) To carry out any other activities relating to the provision for legal aid which are necessary or conducive to the performance of its functions under the Act. There was however a proviso placed on this function, namely, that the Board would not be responsible for the supervision and administration of the Directorate. It is difficult to fathom the intention of the legislature in this respect because it is usual for boards of corporate bodies to superintend secretariats or directorates. A further amendment was made to Legal Aid legislation in 2005. By the Legal Aid (Amendment) Act, the Legal Aid Board was re-constituted as a body corporate, with perpetual succession and legal capacity to sue and to be sued. The composition of the Board was enlarged to include representatives from the Ministries responsible for finance and national planning; community development and social welfare; labour and sport and child development.
Furthermore, the functions of the board were reformulated and enlarged. The functions of the Board are to:
(a) Administer and manage the Legal Aid Fund;
(b) Facilitate the representation of persons granted legal aid under the Act;
(c) Assign practitioners to persons granted legal aid under the Act;
(d) Advise the Minister on policies relating to the provision of legal aid and implement
Government policies relating to the same; and
(e) Undertake such other activities relating to the provision of legal aid and which are conducive or incidental to the performance of its functions under the Act.
Although the Legal Aid Board has been established as a body corporate, it has not been delinked from the Ministry of Justice. The Ministry still recruits, disciplines and determines the conditions of service for legal aid personnel. The Ministry is also still responsible for mobilizing and disbursing resources to the Board. The de-linkage is important in order to establish an independent body that can effectively plan for expansion, hiring and retention of staff as well as mobilize resources from either Government or cooperating partners. The formality surrounding the Legal Aid Board still makes it difficult for the ordinary person to easily approach the Board.
The Legal Aid Board has offices in Lusaka, Kitwe, Ndola, Kabwe and Livingstone. It has on its establishment a total of twenty-one lawyers, out of an establishment of thirty four. 79 the lawyers for the Board are faced with crashing case loads. Apart from facing a critical shortage of staff, the Board has inadequate transport and operational tend to suffer. In view of the preceding constraints, the Board tends to limit the grant of legal aid to accused persons facing serious criminal cases mostly in the High Court. The Board therefore handles a very limited number of civil cases. The woes of the Board are also worsened by the fact that the Board is unable to attract and retain lawyers due to the poor conditions of service. The failure to decentralize the Board and its myriad of administrative and logistical problems has resulted in denying many indigent persons especially in rural areas legal aid.
Zambia has a law report series known as the Zambia Law Reports (ZLR). These Law reports are available online and they are obtainable at the high court. The statutes of Zambia are available online and are listed by name. Supreme Court, High Court, Industrial Relations Court, Land Tribunal, Revenue Tribunal rulings are also found online. The ‘Zambian Law Journal’ is found at the school of Law in the University of Zambia. The ‘Laws of Zambia’ is a 1996 compilation of 26 Volumes containing all the laws and the entire respective various Republican Constitutions since independence. Volume 1 Contains the Index of the Laws of Zambia. The Laws are in read only PDF format. Zambia law Reports can also be obtained at the University of Pretoria. There is also ‘Zambia Law Reports Consolidated Index’ containing the cumulative indexes of cases reported, cases referred to, legislation referred to, and subject matter from 1963 to 1978 Published in 1984, Council of Law Reporting, and High Court for Zambia (Lusaka, Zambia).
The Zambia Legal Information Institute (ZamLII)
was established by the Law School of the University of Zambia in 1996, in
partnership with Zamnet. It has received important start-up assistance from the
Information Institute of Cornell Law School. The Institute's aim is
to improve access to judgments, statutes and other legal materials of the
Republic of Zambia both within Zambia and elsewhere and to connect lawyers,
judges, academics, students and others within Zambia with the growing
collection of legal information available around the globe via the Internet.
ZamLII provides on-line research of Zambian and foreign legal information and general information about Zambia. Our collection of legal information in Zambia includes The Constitution of the Greater Republic of Zambia, rules and selected decisions of the courts, selected acts, legal commentary, a legal directory, and finally, information about the University of Zambia School of Law. ZamLII also provides links to foreign legal information in and outside of Africa. You can also find general information about Zambia through our link with Zamnet.
The government of Zambia publishes a gazette that contains all relevant announcements and enactment or amendments of laws and regulations. It incorporates various government decisions, and once they feature in the Gazette, government decisions are deemed and laws and regulations are deemed to have been published and validly promulgated.
Gazettes are used by both the government and ordinary citizens to convey information to the public. The following are some of the normal uses of gazettes:
- Notices to creditors and debtors in administration of estates.
- Publication of amendments to existing laws, regulations and rules.
- Publications of newly enacted laws, regulations and rules.
- Invitation for tenders from government departments.
- Insurance of trading licenses for companies.
- Publication of title deeds and deed of transfer in respect of property.
There is a school of law in the University of Zambia. It has a law department within the faculty of law that offers Batchelor of Laws degree. The law school in collaborations with Zamnet established The Zambia Legal Information Institute (ZamLII). It has received important start-up assistance from the Legal Information Institute of Cornell Law School.
Access to information is impeded by a number of factors such as limited and uneven distribution of libraries and information materials, restrictive library regulations and lack of awareness among members of the general public of their rights of access to information. These limitations inhibit citizens from effectively participating in national affairs. Having said that legal information is available at the School of law and the internet as discussed above.
The Law Association of Zambia is a professional organization bringing together more than 600 legal practitioners. The Association was founded in 1973 and brings together all practicing members of the legal profession. Prior to this, the Association was called the Law Society of Zambia. As in most other jurisdiction, the Law Association of Zambia regulates the legal profession. The Law Association of Zambia is a professional organization bringing together more than 600 legal practitioners. The Association was founded in 1973 and brings together all practicing members of the legal profession. Prior to this, the Association was called the Law Society of Zambia. Members of the association are Individual advocates practicing in Zambia and students enrolled in the University of Zambia Law School. Amongst others, the law association seeks to further the development of law as an instrument of social order and justice and as an essential element in the growth of society, To provide a means by which lawyers, whatever their particular field of activity, can participate together fully and effectively in the development of society and its institutions and To encourage lawyers as individuals to join actively in the life of, and identify themselves with people and to utilize their skills and training in their service .
The Law Association of Zambia (LAZ) is a body corporate established by the Law Association of Zambia Act, Chapter 31 of the Laws of Zambia. Being a body corporate, the Association can sue and be sued and is competent to enter into any contractual obligation of its choice. The Association’s main policy-making body is the Annual General Meeting, comprising all registered members of the Association, which membership presently stands at five hundred. In between the Annual General Meetings the Association elects an Executive, comprising the Chairperson, Vice-Chairperson, Hon. Secretary, Hon. Treasurer and eleven Council Members to run the day-to-day affairs of the Association. The Association has various committees of duly appointed Advocates responsible for various activities of the Association. Membership is open to individual advocates practicing in Zambia and students enrolled in the University of Zambia Law School.
Significant political developments have occurred in Zambia since the 2001 tripartite elections. After having had two previous elections in 1991 and 1996, the 2001 elections produced a multiparty Parliament for the first time since Zambia’s independence in 1964. These elections seem to signal that the country has moved from a dominant one party political system to a competitive multi-party system. Despite these positive political developments, political parties and the party system in Zambia still remain relatively undeveloped. This trend in Zambian political culture may be partly due to the short time period in which political parties have had to organize, a lack of organizational funds, and a host of legal and political obstacles that have exacerbated political party fragmentation. Political parties play a vital and indispensable role in modern political systems and are the raison d’être of a multiparty system.
To its credit Zambia has been deemed an “oasis
of peace” in Africa since its independence. Although the country experienced
one-party rule for 27 years, there was not the degree of repression and social
anarchy that characterized many other African countries. Because of this unique
attribute, Zambia’s political transition in 1991 was peaceful; Zambia
successfully held presidential and parliamentary elections in 1996 and 2001.
Despite disputes over the election results in 1996 and 2001, the country has
been able to utilize constitutional provisions to resolve political differences.
The MMD government was elected in 1991 and within six months of assuming office; fragmentation began to surface within the ruling party. Several MPs resigned in the fracas. In 1993, several former cabinet ministers and notable MPs left MMD to form the National Party. Although several MPs successfully won their seats on the NP ticket, the party atrophied and failed to offer a serious challenge to the MMD government. Due to continued dissatisfaction with MMD, two other parties, the Zambia Democratic Congress (ZDC) and the Agenda for Zambia (AZ) were formed in 1995 and 1996 respectively.
Faced by a perceived threat from the political opposition, by 1996 the MMD government orchestrated a constitutional amendment to preclude the strongest challenger, UNIP’s Kenneth Kaunda, from competing in the 1996 elections. Traditional tribal chiefs were also barred from standing as candidates. In a backlash attempt by supporters of UNIP, the 1996 elections were widely boycotted by civil society representatives, and supporters of UNIP, resulting in a consolidation of MMD’s dominance in Parliament. That year, the MMD increased its parliamentary seats from 125 to 131, while the political opposition remained largely fragmented. Both parties were led by individuals who held senior positions in the first MMD National Executive Committee and were ministers in Chiluba’s first cabinet.
With the combined opposition parties winning
only nine seats and the independent candidates having won ten seats, this
parliamentary result followed serious irregularities in the electoral process.
The alleged irregularities included poor management of the voter registration
process, resulting in a massive reduction in voters eligible to participate in
the elections. The overwhelming evidence of widespread vote rigging and other
forms of electoral fraud in the 1996 elections led to the elections result
being challenged in the Courts.
Amid popular contestation, Chiluba announced in May 2001 that he would not seek a third presidential term on the MMD ticket. In late August 2001, Levy Mwanawasa emerged as the party’s choice for its presidential candidate. The election date was announced at the end of November, in the middle of the rainy season and well after the MMD had commenced its election campaign. At the dissolution of Parliament, prior to the election, MMD held 89 seats as compared to 131 when elected in 1991. The opposition UPND, NP and UNIP held twenty seats in sum. Forty seats in Parliament were vacant. After a split within the MMD, forty seats that were occupied by that party were left vacant, as several MP’s who left the government either joined the opposition or formed other parties.
The 2001 tripartite elections were also widely regarded as flawed by both domestic and international observers. There were serious doubts as to whether the results reflected the will of the people. The final results released by the Electoral Commission of Zambia indicated that about 70% of the registered electorate cast their votes for president. Of these votes the MMD party received 28.69%, while the UPND receiving 26.76%, a difference of 30,000 votes. Expressed as a percentage of registered voters, the MMD received less than 20% of the vote, which makes it the only party to win the government with such a narrow margin of victory since independence, in spite of allegations against the party over vote rigging and other alleged abuses of electoral fraud.
The 2001 elections seem to highlight the risks associated with transitioning from a dominant single party system to a non-authoritarian competitive party system. Of the seven political parties in Parliament, no party had an absolute majority. The MMD won less than 50 % of the seats (46%), while the UPND had just about a third (33%). Combined, MMD and UPND shared about 80% of seats in Parliament. Together, UNIP and FDD accounted for 17% of the seats while the remaining three opposition parties shared 5% of the seats. At the local government level, opposition parties controlled key city and municipal councils in about six provinces.
Movement for Multiparty Democracy (MMD)
The MMD originally formed during a planned referendum in July 1991 as a pressure group to campaign for the restoration of a multiparty system to contest the ruling party UNIP. In January 1991, MMD transformed itself into a political party with diverse representation, including trade unions, commercial farmers, the clergy,
students, academics, businesspersons and former UNIP politicians. Under the leadership of the former Zambia Congress of Trade Unions (ZCTU) chairman-general, Frederick Chiluba, the party united around a cohesive platform to remove UNIP from power. As MMD consolidated power in 1991 and 1996 elections, with the
party leadership garnering the majority vote, there were fears that the country was regressing back to a one-party state. As Although legislation severed the formal links between the party and government, MMD’s priority position in government allowed it to use the incumbency to access state resources, especially during election campaigns. As a result of discord within the party over governance issues, between 1993 and 1996 the party experienced several defections and resignations leading to the formation of rival political parties.
In 2001, the MMD had an organizational presence in every province within the country. Consequently the party could boast of national structures and coverage and it held regular elections for its national leaders. However, as the 2001 elections drew nearer, the party was faced with the prospect of defeat, triggered by the desire of
President Chiluba to run for a third term in office. As public pressure against the third term mounted and senior party leaders began denouncing the action, the party began to lose its popularity. Eventually, the president declared he would not seek a third term and the MMD went on to win its third mandate. However, MMD’s electoral performance was very poor -having gained less than 30% of the national vote and winning less than three seats in four provinces. This was perhaps the lowest mandate won by any ruling party in Zambia since independence and posed serious challenges to the new leadership.
The MMD manifesto is based on the promotion of
a free market economy and good governance. Since 1991 the party has implemented
a very ambitious economic reform program. It has liberalized the economy and
removed most of the controls that characterized the Zambian economy in the
Second Republic. These policies have
produced a serious social impact, which has contributed to deterioration in living standards and a high incidence of poverty. The party faces a number of challenges, as has been reflected in the party’s declining representation in Parliament, considering that since the 2001 elections the MMD no longer commands an absolute majority.
United Party for National Development (UPND) was formed the UPND in 1998. The party was established on a social democratic platform of providing free health and educational services to the Zambian people. It also articulated a commitment to providing agricultural subsidies to rural farmers to increase agricultural production. The UPND’s performance in local government and parliamentary elections between 1998 and 2000 made it the main opposition party to the MMD.
The party won more than 60 local council seats
in the 1998 local government elections and six parliamentary by-elections in
Southern, Western and Central provinces. It also controlled one council in
Northwestern province. Although the party claimed an organizational presence in
almost all of Zambia’s nine provinces, it was better
organized in Central, Northwestern, Southern and Western provinces.
UPND finished second to the MMD presidential
candidate in the 2001 elections. The party won the majority of local government
seats in Western, Central, Northwestern, Southern and Lusaka provinces. With these
49 seats UPND was the second largest party in Parliament. Historically, UPND
has strong ties to other opposition parties, with which it contested the
results of the 2001 election in the Supreme Court. The party has encountered
serious leadership and organizational challenges, including its level of
dependency on the patronage of its party president. Although the party’s
national leadership is representative of all the ethnic groups, the electorate
perceives it as a regional or ethnic party. Additionally, the party has had difficulty asserting itself as the main opposition party in the country. Without recognition as the official opposition, on account of falling short of the threshold of 53 seats, the party has been unable to systematically challenge government policy in Parliament and to initiate legislation. Notwithstanding these shortcomings, UPND has been internally cohesive and self-confident, as evidenced by very few defections among the senior leadership. Additionally, it is the only political party that successfully expelled its MP for accepting a ministerial appointment in the MMD government.
UNIP is the oldest African political party in
Zambia. It was established in 1959. It was briefly involved
governmentwiththeANCbetween1962-1964and it was the governing party in Zambia
from 1964-1991.The leader of the party until 1992 was former President Kenneth
Kaunda, who was the first president of the independent country of Zambia. He
voluntarily stepped down in favour of Kebby Musokotwane, but returned to the
party in 1995 to increase the party’s chances of defeating the MMD in 1996.
Kaunda was excluded from running on the party’s ticket in 1996 due to a
controversial constitutional amendment passed by the ruling MMD, which barred
persons whose parents were not born in Zambia from contesting the presidency.
Between 1992 and 1998 UNIP suffered harassment
under the government’s rule, including arrests and detentions over allegations that
the party conspired to overthrow the Government. The most controversial of these
alleged conspiracy acts were the “Zero Option” and “Black Mamba” “plots” that
resulted in a number of UNIP leaders being detained, including the party’s vice
president Chief Inyambo Yeta. Additionally, UNIP president Kenneth Kaunda was
detained in connection with an alleged coup attempt to overthrow the MMD
government in December 1997.
Although the party can legitimately claim to
have countrywide organizational structures, the party has experienced serious organizational
problems since leaving office in 1991. During the one-party era prior to 1991,
UNIP benefited from the use of public funds because there was no distinction
between the ruling party’s purse and the government as evidenced by the fact
that party officials were paid from the public treasury, the party used
government vehicles and the State financed party offices. Since leaving office,
UNIP has had to rely upon its own resources and properties, which has
translated into a diminution of the party’s organizational capacity. The
Central Committee that was formerly full-time is now part-time and a number of staff have been laid off or have not been paid for a significant period of time. Due to financial problems the party has not been able to hold important party meetings.
In addition to organizational problems, the
party has also experienced serious leadership problems since 1992. Internal
bickering and factionalism has led to frequent leadership turnover, suspensions
and sometimes expulsions. The influence of the party’s founder and former
president Kenneth Kaunda may have had a negative
impact on party organization and membership morale, as the party seems to be divided between two camps between supporters of the former president, and those who want fresh leadership without formal ties to Kaunda.
A leadership crisis in 2000 led to the ouster of party president Francis Nkhoma and his replacement by Kaunda’s son and UNIP’s secretary general, Tilyenji Kaunda, who later contested the 2001 presidential elections. There are concerns within the party over Tilyenji Kaunda’s leadership ability, as he is perceived to be directing the affairs of the party from outside the country and lacking necessary organizational experience. UNIP espouses a distinct social-democratic ideology that calls for more state- involvement in the economy and the provision of state resources for social services. However, the perceived failure of its past policies, coupled with its serious leadership problems have contributed to the party’s failure to offer a formidable opposition to the ruling MMD.
This party was formed in July 2001 by senior party
and government officials who were expelled from the MMD for opposing a third
term of the country’s president. The original founders included the former Vice
President of Zambia, Christon Tembo, cabinet ministers, deputy ministers and
MPs. In September 2001 Tembo was elected as the party’s first president, with a
similar manifesto as the MMD. In the 2001 elections the FDD won 12 MP seats in
Lusaka and Eastern provinces. It also gained control of the Lusaka City Council.
Additionally, its candidate in presidential elections finished third, managing
to win 13% of the national vote. Additionally, the party fielded the largest
number of councilors and MPs and won the mayoral ticket. Unsatisfied with the
results, however, the FDD have joined in collaboration with other parties to
contest the 2001 elections results in the Supreme Court. The party has an
organizational presence in all nine provinces of the country. Although
relatively well organized, lately a significant number of FDD party members
have defected to the MMD government. Recently three of its MPs were appointed
to governmental ministerial positions without party consultation. While the
party supports a Government of National Unity (GNU), as it has sought to
negotiate its involvement in the MMD government with the President to date it
has been unable to reach a workable partnership.
Heritage Party (HP)
Godfrey Miyanda, former Zambian Vice President
from 1994 to 1997 founded the HP. Like other opposition parties, the HP was
formed in protest of the government’s bid for a third presidential term. HP is
committed to promoting integrity in public office, transparency and greater
public accountability. The party’s leader is a
central force in the party’s operation. Although the party contested the 2001 elections and finished fifth with about 8% of the national vote, it obtained only four MPs in the most recent elections. Since those elections two of these MPs have defected to the ruling party, while the remaining two HP MPs have both been appointed to Deputy Ministerial positions in the MMD government party approval. The party views this action as “poaching” and because there is no expulsion clause in the HP constitution, it has not challenged with the “erring” MPs. Currently HP is one of the parties challenging the election of the country’s president in the Supreme Court
Many former MMD members claim that their only quarrel with the MMD was Chiluba’s desire to run for a third term. This explains why a number of FDD members and officials have gravitated back to the MMD after Levy Mwanasa was elected President. The ZRP was formed in early 2001 through an alliance of four parties including the Republican Party. The ZRP presidential candidate in the 2001 elections did not perform well finishing sixth with less than five percent (4.8%) of the national vote. Although the party did win one Parliamentary seat in Lusaka Province, the MP has since been appointed by the government as Cabinet Minister. The party’s policy direction does not differ fundamentally from the MMD. ZRP supports a free-market economy based on private entrepreneurship, good incentives to the private sector and a Government that is responsive and responsible to the citizens.
Patriotic Front (PF)
In September 2001 Michael Sata, a former Cabinet Minister and the MMD National Secretary, formed the PF. It was the last of the parties to be formed as a result of MMD succession problems. The party was organized quickly to contest the 2001 elections and consequently it did not perform well. The PF secured under 4% (3.3%) of the national vote and won only one MP seat. The party’s main policy platform is the reduction in taxes and prudence in the management of public resources. The party’s leader is a central force in the party’s operation. However, the main problem the party faces is a public perception that its leader supported Chiluba’s third term bid and was at the forefront of prosecuting those opposed to it through suspensions and expulsions. The are other political parties which have contested parliamentary seats and they include National Citizens Coalition (NCC), Social Democratic Party (SDP), Zambia Alliance for Progress (ZAP), National Leadership for Development (NLD) and the NCC (National Citizens Coalition).
Zambia has a variety of non-governmental organizations working on issues of human rights and related fields. Despite the euphoria over the defeat of President-since-independence, Kenneth Kaunda's, United National Independence Party (UNIP) in Zambia's first ever multi-party elections, it has become clear that elections did not herald an end to the prominence of human rights issues in the political life of the country. The then ruling Movement for Multiparty Democracy (MMD has been beset by political scandal, defection, corruption and allegations of involvement in the traffic of illegal drugs. The new government has also demonstrated a certain degree of intolerance by declaring a state of emergency and detaining several opponents, following claims of a coup plot hatched by members of UNIP. At the same time, law enforcement agencies for the most part remain fixated on their erstwhile methods of operation, which were, to say the least, not human rights-sensitive. The press is often targeted for harassment.
Human rights organizations (HROs) in Zambia are, in the main, faced with extending the experience they gained in the monitoring of elections and civic education to other areas of human rights work. While the elections were an issue around which it was fairly easy to galvanize interest and attention, there is a need to aggressively promote knowledge of human rights among the general populace--broadly described as "apathetic". Some prominent cases from the past regime, such as the detention-without-trial of Katiza Cebekhulu (the key witness in the trial of Winnie Mandela, who was spirited away from South Africa in order not to give testimony expected to be potentially damaging), have been passed over to the new government, but the government has done little to address the concerns expressed by human rights groups about them. Torture is reported to take place on a regular basis. In addition, there have been reports of a number of incidents where police have detained the relatives of their intended victims, in order to flush them out of hiding--the case of opposition UNIP member, William Banda, being the most prominent. The new HROs that have come into existence are largely believed to be "elitist", and need to cooperate more effectively with the press and others involved in the human rights struggle.
The Centre for Human Rights and Democracy (CHRD) has yet to make a significant impact on the human rights scene in Zambia, although it runs an office for pro bono counseling on legal and human rights matters. The Centre faced initial problems with registration, as the authorities suspected their motives. Although the registration matters were overcome, it continues to encounter problems with government obstruction of receipt of external funding granted to the organization. The Centre is nevertheless looking around for alternatives, and intends to organize a paralegal training course to be conducted in June 1994.
Christian Council of Zambia (CCZ)
The Christian Council of Zambia (CCZ) was part of the group that was active in the Foundation for Democratic Process (FODEP), but it has, in general, adopted a low profile with respect to advocacy on human rights issues in Zambia. Instead it deals with questions such as refugees and relief, some gender questions, ethics, development and unemployment. This activity is all conducted under the auspices of the Social Justice Committee of the CCZ.
Initially begun as a monitoring group prior to the 1991 general elections, FODEP is an umbrella organization comprised of several church groups, women's organizations, the Law Association and the Press Association. Today, FODEP has broadened its mandate to cover civic education for the purposes of enhancing the general awareness of the population. Drawing on its experience in the elections, FODEP intends to focus on civil and political rights at the local level, and to involve parliamentary and other elected representatives in the dissemination of knowledge and information about these rights.
Human Rights Committee of the Law Association of Zambia (LAZ)
The Law Association of Zambia (LAZ), a statutory body recognized by law in 1973, established a Human Rights Committee to function under its auspices. The Committee was heavily involved in civic education around the elections and produced a number of programs for the broadcast media on elections and civic rights. The Committee transcribed the notes from these seminars and circulated them as a further mechanism of sensitization. In conjunction with the Catholic Secretariat, it has also designed a program for the conduct of simultaneous seminars on human rights in all the provincial centres of the country, as a starting-point for the sensitization of the broad populace on general human rights issues. A series of seminars for the police force have also been designed, the first to commence in Lusaka. As a major human rights actor, the Committee has received several reports on police violence and prison conditions, and attempts to ensure that these issues are expeditiously addressed.
AFRONET is billed as an organization designed to promote coordination and networking among African HROs. As yet, it has only begun to meet with various organizations within Zambia and to publicize its operations outside the country. Although it has observer status at the African Commission on Human and Peoples' Rights, it still has a long way to go, both in the conceptualization of its precise goals and programs, and in raising the consciousness of HROs throughout the continent on the need for coordination and networking. Its programs focus on communication, the promotion of good governance and sustainable development, human rights, and the interaction of law and society.
The Legal Resources Foundation (LRF) was established as a company limited by guarantee, in order to obviate the possibility of the authorities' exercising their powers to ban a society under the provisions of the Societies Act. The idea of the LRF was conceived in 1991 prior to the meeting of the Commonwealth Heads of Government (CHOGUM) in Harare. LRF has several objectives, including the promotion of an interest in human rights; the development of law (through the publication of cases, law reports and a monthly newsletter); and reform of the law. So far, however, LRF has not commenced operations and has yet to formulate specific programs to actualize its objectives.
National Women's Lobby Group
Established on July 20, 1991, the National Women's Lobby Group (WLG) is a pressure group established to pursue the rights of women, children and minorities, especially in relation to the policy-making bodies in the country. It is headed by a Secretary General, who is presently assisted only by a secretary. WLG is composed of a number of women's NGOs and its approach is broad in ambit. It is involved in networking and is a resource base for information and policies about women. It also lobbies the President and informs the electorate about issues of women's rights. WLG has developed a three-year plan by which it will work towards a core budget to cover training in human rights and, especially, in lobbying and outreach.
Often working in collaboration with the other church groups in Zambia (the Christian Council and the Evangelical Fellowship); the Zambian Episcopal Conference (ZEC) has been more public and active in the arena of human rights, especially in the issuance of public statements or pastoral letters, than have its counterparts. ZEC statements have covered issues such as structural adjustment and its impact on human rights, a review of the Constitution, and problems with the transition to the third (present) republic. The ZEC has embarked on an active program of encouraging the formation of Justice and Peace Committees at the local level, building on the model of the Zimbabwean experience. To this end, it has conducted a total of five seminars over the past two years in order to sensitize its members on the spirituality of justice and peace, and the need for respect for human rights. The attendees at these seminars have then proceeded out into the countryside, and sought to disseminate the information they have culled to the broader populace. The results have varied, but are a significant beginning for a process that will invariably take some time to gel. Individual Justice and Peace Committees also identify areas of specific concern to their local communities. Among the issues that have been addressed are: the treatment of prisoners on remand, the payment and condition of domestic workers at large and within church institutions, the issue of allocation of places in schools, and the effect of the structural adjustment program. A national Justice and Peace Committee/Commission is yet to be established.
Established in 1988 as part of the LAZ, the Women's Rights Committee (WRC) gained impetus after the passing of the Intestate Succession Act. Following this, WRC established a National Legal Aid Clinic for Women in November 1990, which has been run in the main by volunteer lawyers. A full-time Coordinator for the Clinic was appointed in 1991, and continues to be assisted by volunteers. The clinic still has problems of recognition and has not been formally registered, but utilizes the framework of the Citizen's Advice Bureau of the LAZ in order to appear in court. The WRC functions like a private law firm and the majority of its cases are on inheritance, divorce, and custody and maintenance matters. The clientele are mainly the unemployed who are charged only a nominal fee.
The Zambia Civic Education Association (ZCEA) initially commenced as a program of UNIP--the former ruling political party--as a mechanism in its "revival campaign" to meet the challenges following the general election, but the party was not extremely responsive to its overtures. Consequently, the group has attempted to distance itself from any direct political affiliation and claims to be wholly independent. The ZCEA is under the organizational control of a Chair, who is the only full-time worker, while all its programs are implemented by volunteers. One of its first actions was to inaugurate what it calls "clinics", which are held every Saturday and Sunday, where ZCEA holds public information sessions, discussing the role of public officers, human rights education and issues such as health, hygiene and the environment, as the most "basic needs" of the community. The group has also targeted the police and attempted to implement a community-policing scheme in at least one area of peri-urban Lusaka. This has been approached as a pilot project, and an attempt has been made to deal with common problems in the relationship between police and the community. The scheme has also addressed conditions at the stations, related to the cells, women prisoners, and so on. The ZCEA has also designed a "right to shelter" project in Mapoloto Township.
The National Assembly is comprised of 150 directly elected members, up to eight presidentially-appointed members, and a speaker. Zambia is divided into nine provinces, each administered by an appointed deputy minister who essentially performs the duties of a governor. The Supreme Court is the highest court and the court of appeal; below it are the high court, magistrate's court, and local courts.
Voting in Parliament
Voting is done through simple majority. There are no reserved seats or quotas for women, ethnic minorities or other categories. Vacancies arising between general elections are filled through by-elections. Voting is not compulsory.
Voting is open to all people above 18 years and eligibility to stand for parliamentary is 21 years, of Zambian citizenship (including naturalized citizens), and resident in the country at the time of election. Also eligible are people who are able to speak and read in the official language of Zambia, as well as citizens overseas, who are not civil servants.
Disqualified are people who pay allegiance to a foreign State, insanity, sentence of death or imprisonment, conviction of a corrupt or illegal practice within five years preceding the elections, persons found guilty of such practice upon the trial of an election petition, lawful custody, persons who are not in possession of a national registration card, insanity, undischarged bankrupts, sentence of death or imprisonment, restriction in movement or detention pursuant to certain laws, etc.