6th May 2024
Chimwemwe Tembo
One of the
largest changes to the 1991 Zambian constitution was the introduction of the
bill of rights and another one was the change of the structural formation of
the courts. The aim of this essay is to discuss the
significant impacts that the 2016 amendment had on the court structure.
The 2016 Constitution being merely an amendment to the
1991 Constitution, which is the current constitutional regime of the Zambia
jurisdiction. This changed a lot of dynamics of the former court structure
which consisted Supreme Court, High Court, the Industrial Relations Court,
Subordinate Courts and Locals Courts. The following are the ways the amendment
affected the court structure.
First, the overall change being the establishment of
the constitutional court in Zambia. Which was inspired by perception about the
success and reputation of the South African court to hold government
accountable (Chirwa, Joseph “The legal
process in Zambia: Cases and Materials (1st Edn Juta 2022) Page 52.
Legal systems do not exist in isolation; they learn from each other. Part of
this learning process involves the transfer or transplantation and assimilation
of materials from other jurisdiction. Hence the adaptation to our legal
system.
The Constitutional court as espoused in Article 128 of constitution, introduced
an exclusive jurisdiction of constitutional matters to the court such as
interpreting and determining the constitutionality of law. This is illustrated
in the case of Kapoko v the people [2016/CC/0023], this is all but subject to Article
(28) (2) of the Constitution, which restricts it to matter involving the
bill of rights. the introduction of this court also changed the previous
pre-existing jurisdiction of the Supreme court of hearing constitutional
matters to limiting its role to hearing appeals from lower courts. The Supreme
court now has jurisdiction to hear appeals only on matters of law and its
decisions are final and binding, this is espoused in Article 125 of the Constitution.
Further, the establishment of this court also made the
Constitutional and Supreme Court ranked equivalently. This raises the contradictory
jurisprudence being issued by the two courts (Kaaba, Obrien “South Africa Look What You Have Done to Us”: Exploring
the reason of the Likely Failure of the South African Constitutional Court Model
in Zambia; Paper presented) Considering that they are at the same level, it
creates scrutiny for the lower courts on decision to follow due to the
principle of judicial precedent.
Second, the amendment elevated the status of High
court by establishing it as a superior court of record this changed the
jurisdiction of the high court to that of an unlimited and original
jurisdiction in all civil and criminal matters (Article 134 of the Constitution),
from that of the previous regime but is to be subject to Article 128 of the constitution for
cases involving constitutional matters. Further it was observed in decision
case of Zambia National Holding Limited
and United National Independence Party v The Attorney General (1993–1994) ZR
115 (SC), that the jurisdiction of the High Court is Unlimited But not
limitless. Hence making it inevitable to the rule of law.
In Addition, it also changed the position of the
Industrial and Labour Relations court to a division of High Court as a result
this revoked its original jurisdiction in relation to industrial relation
matters which was prescribed by Section
85 of the Industrial Relation Court Act. This was also noted in the case Lungwani
Choobe &11 others v Africa Bank Corporation Limited (Comp/IRCLK/15/2018), that substantive provision of the
industrial Relation Court Act no longer apply to the industrial relation
Division following the Constitution amendment that made it a division of the
High Court. Among others, the establishment of the court of appeal in Article 130 of the constitution, the
court the establishment of the small
claims courts as a tier in the court structure (Constitution of Zambia: Article 120).
In conclusion, the 2016 amendment comes with tenets
which can be alluded to as contradictory in nature due to the likely hood of
injustice posed by the equivalent ranking the Supreme and Constitutional court.
Posing a question for which decision the lower courts must follow due to the
principle of precedent. Which the poses a threat for the courts undermining
each other and creating inferiority in cases were a constitutional matter
arising in the supreme courts is overruled. Finally, the Constitutional court having
final and original jurisdiction leaves a question of where parties may seek
leave in an event of unsatisfied with a decision of the court posing threat to
Justice.
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