The evolution of the Zambian courts is a fascinating journey. From the days of colonial rule where justice was often a tool of oppression, this journey highlights the resilience and determination of the Zambian people. This article will explore some pivotal events that have shaped the court system and how the principle of stare decisis came into play. It will also discuss when and how the establishment of these courts came into being while employing case law and time periods.
The 1899
to 1911 Court System
To begin
with, the first Zambian court system existed from the year 1899 to 1911.
Noteworthy however, is that the Zambian court system today is as a result of
the court system introduced by the British Colonists when the present day
Zambia was acquired at the beginning of the 20th century. Another
thing to take note is that the court system in Zambia is based on English
Common Law and Customary Law, which are legal systems that co-exist. The case
of Kaniki v. Jairus (1967) ZR 71 (HC) espouses
the principle that customary law practice can be deemed repugnant to natural
justice and therefore not enforceable if it violates fundamental principles of
fairness and equity even if it is part of the local customary law. Essentially, a court can refuse to
apply a customary law when it is considered to be inherently unjust. It is
therefore safe to say that English common law takes precedence over customary
law.
The
coming of the Barotseland North-Western
Rhodesia Order in Council of 1899 (SR&O 1901/567) created an elaborate
judicial system which was first established in the North-Western part of
Zambia. This order in council of 1899 made provision for the appointment of
judges and magistrates thereby paving a way for the establishment of the High
Court and Subordinate Courts. The order in council also expressly stated that
except where otherwise stated in the order, English common law would apply.
Article 9 of the Order in Council of 1899
(SR&O 1901/567) provided that, “The High Commissioner in issuing
such proclamations shall respect any native laws or customs by which the civil
relations of any native chiefs, tribes or populations under her majesty
protection are now regulated except so far as the same may be incompatible with
exercise of her majesty’s power and jurisdiction.” This article of the order
in council clearly shows that it provided for some form of protection of
customary laws.
The
North-Eastern Rhodesia Order in Council
The North-Eastern Rhodesia Order in Council
(SR&O 1900 No 886) had established an even more elaborate
judicial system than the Barotseland North-Western Order in Council. It was
more elaborate in the sense that the North-Eastern had a High Court with civil
and criminal jurisdiction over all cases in the territory and it also had a
High Court to the privy council in relation to civil cases if the amount
involved satisfied a set threshold.
The main
similarity between the Barotseland North-Western Rhodesia Order In Council of
1899 and North-Eastern Rhodesia Order in Council of 1900 is that both did not
officially recognize tribal courts nor was any system of appeal provided from
tribal courts to Magistrate courts or High Courts. Nevertheless, both provided
some protection of customary as long it was not repugnant to natural justice or
to any order made by her Majesty in Council or to any regulations made under
the order.
Evolution
of the Dual Legal System
As stated
earlier on in the introductory paragraph, the Zambian court system is based on
English common Law and Customary Law. In the year 1911 two distinct systems of
judicial administration developed and they officially recognized courts
administering English Law and the tribal courts administering customary law.
The 1911
to 1964 court system
On 4th
May, 1911 Northern Rhodesia Order in Council of 1911 (SR&O 1911/438),
revoking the Barotseland North-Western and North-Eastern Orders in Council and
the merging of the two territories into
one jurisdiction, was promulgated. The provisions of the court system followed
the North-Eastern Rhodesia Order in Council of 1900 (SR&O 1900/89).
In the
year 1929, there was an official recognition that was given to the native courts
which is found in the present day local courts. This was possible because of
the Native Courts Ordinance of 1929. During this time the Magistrate Courts
were expanded and later in the year 1933 the Penal Pode was developed.
In the year 1936 the Native Courts Ordinance was amended to establish the Urban Native Courts. This decision to create Urban Native Courts was necessary because of the growing numbers of Africans who were migrating from rural arears to work in urban arears. The intention for doing so was to carter for the urban dwellers.
Establishment
of the Court of Appeal 1964
With the
coming of independence in the year 1964 several changes were introduced and one
of the changes was the establishment of the court appeal for Zambia.
The
Zambian Court System from 1973 to date
The
following have been the notable events that have taken place in the court
system:
Abolishment
of the Court of Appeal; in 1973 the court of appeal was abolished and replaced
by the Supreme court of Zambia.
Establishment
of the Supreme Court on 14th September, 1973. Article 124 of the
Constitution of Zambia Act No.2 of 2016 establishes the Supreme court
as well as the increase in the number of judges to 13 judges inclusive of the
Chief Justice and the Deputy Chief Justice.
Establishment of the Industrial Relations
Court; Another change was the introduction of the Industrial Relation Court in
the early 1900s which until now has been operating as an Industrial Relation
Tribunal and is a division of the High court.
Establishment of Small Claims Courts; In the
year of 1992. There was the enactment of the Small Claims Court Act, Chapter 47
of the Laws of Zambia. Currently the Small Claims Court has been created in
Lusaka and Ndola.
The
enforcement of the Constitution of Zambia (Amendment) Act Number 2 of 2016 and the establishment of the Zambian
Court System starting with the highest in the land. It consists of the Supreme
Court whose establishment and composition is provided under Article 124. The Constitutional Court whose
establishment and composition is provided for under Article 127, The Court of
Appeal as stipulated under Article 130. The High court, which is a court of
unlimited civil and criminal jurisdiction as well as appellate jurisdiction
over lower courts. Article 133(1) lays down its composition and establishment
and Article 133(2) provides for its divisions. The Subordinate Court also known
as the Magistrate Court, with limited jurisdiction in civil and criminal cases
and whose establishment and composition is given under Article 120(1) (a), and
finally, the Local Court which is the most accessible court found in every
chiefdom in rural areas. Its establishment and composition is stipulated under Article
120(1)(c).
In conclusion,
from their ancient origins to the modern judicial system we see today, courts
have continually adapted to meet the needs of the communities they serve. This
ongoing transformation not only underscores the importance of the rule of law
but also highlights the courts pivotal role in shaping a fair and equitable
society for all.
BIBLIOGRAPHY
Legislation
Barotseland North-Western Rhodesia Order in Council of 1899 (SR&O 1901/567)
Native Courts Ordinance of 1929
North-Eastern Rhodesia Order in Council of 1900
Small Claims Court Act, Chapter 47 of the Laws of Zambia.
The Constitution of Zambia, Act Number 2 of 2016
Case Law
Kaniki v. Jairus (1967) ZR 71 (HC)
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| Elizabeth Mukeya is a second- year law student at the University of Lusaka and currently serving as Researcher at Legal Aid Initiative |
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