By: Chipego Mudenda
INTRODUCTION
Accessibility of the law has been one of the main
objectives put forth in improving the Zambian legal system and enhancing legal
accessibility for all citizens. All individuals are required to know the law
and are bound by it. Accessibility refers to the ability of people to obtain
and understand legal information and services without barriers. This simply
means the availability of legal resources in understandable formats and
physical access to legal institutions. Not only is making the law accessible
crucial for achieving a good legal system, but it is also pivotal for a just
society. Zambia has made strides in improving access to legal resources and
justice, though challenges remain. This article will endeavour to critically discuss
the Zambian legal system, accessibility of the law as an attribute of a good
legal system, how Zambia has tried to make the law accessible, the barriers to
legal accessibility, and how these barriers may be curtailed.
1.0 THE ZAMBIAN LEGAL SYSTEM
Zambia belongs to the dualist tradition meaning it
denotes the existence of two separate legal systems existing side by side in
the republic, that is, English common law and customary law. For a better
understanding of what a legal system entails, it is important to understand the
concept of law. Law is a system of rules, a set of rules recognized as
commanding or forbidding certain actions which are intended to regulate the
conduct of all persons within a particular state and are enforceable by the
courts of that state.[1] In
simpler terms, Law is an obligatory rule of conduct imposed and enforced by the
state. A legal system on the other hand may be defined as a framework of rules,
procedures, and institutions that a community uses to interpret and enforce its
laws.[2]
There is no uniform legal system across the globe. Each jurisdiction uses its
legal system and is binding on all legal disputes within its jurisdiction.[3] As
earlier stated, Zambia has a dual legal system, with customary and statutory
law running concurrently.[4] In
the case of conflict between the two, statutory law prevails.[5]
Where there is a lacuna in the law, recourse is provided for by the English
common law and other specific English statutes.[6]
Common law is administered by several High Courts, which have authority to hear
criminal and civil cases and appeals from lower courts.[7]
Resident magistrate’s courts are also established at various centers. Local
courts mainly administer customary law, especially cases relating to marriage,
property, and inheritance.[8]
A good legal system is essential for maintaining
order, protecting rights, and promoting societal justice. Certain elements must
be progressively met for a good legal system to be achieved. Most observers can
agree on the formal elements necessary for a successful legal system.[9] A
selection includes certainty, affordability, simple, flexibility, and
accessibility to note a few.
2.0 ACCESSIBILITY AS AN ATTRIBUTE OF A GOOD LEGAL SYSTEM
A good legal system must have laws that are accessible
to the people. In other words, the majority of the populace should be able to
access it. As the focal point of this article, it has been pointed out that
access to the law and justice institutions as an attribute to a good legal
system has been one of the main objectives being addressed in Zambia. Section 3
of the Subordinate Court Act[10]
implies that the subordinate courts shall be located in each district and
exercise jurisdiction within the said district. This initiative aims to broaden
the geographical reach of the institutions that constitute the legal system,
ensuring that all individuals have access to these services. By doing so, the
intention is to make legal resources more available to the population, thereby
enhancing their ability to engage with the legal framework effectively and
equitably. A further consideration that has been put in place is the Zambian Legal
Aid Act[11]
which was enacted by parliament to ensure that the majority of the Zambian
population has access to legal aid by providing such services at an affordable
price. This also contributes to making the law inexpensive as another attribute
to achieving a good legal system. Likewise, www.parliament.gov.zm is a Zambian Parliament website that makes Acts of
Parliament available to the public.[12]
This guarantees that the laws comprising the Zambian legal system are readily
available to the citizens of Zambia via the Internet. In addition,
sensitization programs conducted by institutions that are part of the legal
system have contributed to this initiative. This may include sensitization
programs by the Anti-Corruption Commission and the Drug Enforcement Commission
which have aided in increasing awareness and understanding of prohibited
activities and the law in general by educating people to promote informed
decision-making, encourage positive behaviours, and foster social change.
3.0 CHALLENGES ZAMBIA FACES IN ACCESSING THE LAW AND POSSIBLE
SOLUTIONS
As proven above, it is evident that the Zambian
government has put in place initiatives to ensure that the majority of the
populace has access to the law, however, challenges remain. Despite the efforts
that the Zambian government makes, some people in the country do not have
access to the law. The following are some of the barriers Zambia faces in
ensuring that individuals in the country have access to the law:
3.1 Geographical
Barriers
Rural areas may have limited access to legal resources
and institutions. Of course, the Zambian parliament website offers access to
the law to everyone regardless of their location, however not every individual
in Zambia has access to a phone or an internet-enabled device. This impacts the
goal of ensuring that every person has access to the law. The goal of ensuring
that everyone has access to the law can be traced back to the times of the
Magna Carta. After the Magna Carta was agreed to, many copies were made and sent
out to all the towns and churches. It was reissued many times by subsequent
kinds and the document was read aloud twice a year and posted all over the
towns, including nailed to church doors.[13]
This way, the law was widely known, and every person knew the king was also
required to follow the law and in doing so, accept the consequences of breaking
the law. In addition, Government printers is an official printing facility
operated by the government to produce various documents, publications, and
materials for public administration and communication in Zambia. This
initiative was put in place to provide the public with documents and
publications of the law, however, there is only one government printers in
Zambia which is located in Lusaka. This means that people outside Lusaka do not
have access to an official printing facility operated by the government. For
easier access to various documents and government publications, the government
must put into consideration introducing more government printing facilities in
other parts of the country.
3.2 High
Cost of Litigation and Legal documentations
Legal fees can be prohibitively expensive for many
Zambians. While legal aid exists, it may not be sufficient to meet the needs of
all individuals requiring assistance. Limited resources and funding for legal
aid programs can restrict availability. The government must consider providing
legal services that can incorporate a majority of Zambians regardless of their
financial status and place more funds for legal aid programs, activities, and
legal documents for easy access to the public.
3.3 Complex language used in Zambian law and
unavailability of the law in local Zambian languages
It is not enough that the law be written,
comprehensive, and simple. It must also be relatively understandable to most of
the people whom it is supposed to guide and regulate.[14] Complex
terms used in the law that are understood by a few individuals may discourage
other people from learning the law and having incites on the current changes in
the country’s legal system. People will perceive the law as applicable only to
those who understand legal terminology for example lawyers. Parliament must put
into consideration drafting the law in a simplified language that is understood
by a majority of Zambians. In addition, it must be noted that all Zambian
legislation is expressed in the English language. This affects individuals who
cannot understand the English language. Of course, the Zambian official
language is English, however, most Zambians do not understand this language.
Parliament should implement an initiative that offers the law in various
Zambian languages.
In summary, this article has discussed the Zambian
legal system, assess to the law as an attribute of a good legal system,
challenges that are faced in regards to the access to the law and how they can
be resolved. It has further, highlighted that accessibility must be seen from
two points of view. The first is easy accessibility to the laws, while the
second is accessibility of legal services in general. This piece of work has
illustrated how Zambia has made strides in improving access to the law, legal
resources and justice, however the barriers to legal accessibility affect this
initiative. Additionally, this attribute raises concerns about the reliance on
selectively available foreign source materials. It also necessitates the
establishment of a large, well-trained group of legal advisors to serve the
population.
BIBLIOGRAPHY
Legislation referred to:
Chapter 28 of the laws of
Zambia
Chapter 34 of the laws of
Zambia
Book
referred to:
Munalula Mulela Margaret ,
Legal process: Case, Legislation and commentaries, (UNZA press, 2004)
Other
Sources referred to:
Blackhall Publishing, `laws of Zambia: Fully Consolidated and
Annotated` https://www.zambialaws.com/.
Accessed on the 14th December 2024
`Law is known and
Accessible| Rule of Law Education Centre`, https://www.ruleoflaw.org.au/principles/law-is-known-and-accessible/
National Assembly of Zambia, https://www.parliament.gov.zm
Sakuwaha Sharon, Mumbi Mulenga and Mofu Mbulo, Moira Mukuka Legal Practitioners, `Legal System` (www.mondaq.com, 3rd May 2023) https://www.mondaq.com/trials-amp-appeals-amp-compensation/1310882/legal-system accessed on 13th December 2024
Wex
Definitions Team, ‘Legal Systems` (legal systems| Wex | US Law | LII/Legal
Information Institute, Updated in July 2023) https://www.law.cornell.edu/wex/legal_systems
