By Dr. O’Brien Kaaba and Prof. Melvin Mbao
May 23, 2026
In
the recent case of Henry Nyambe and 9 Others v Lumwana Mining CompanyLimited Appeal No 17 of 2025, handed down by the Supreme Court on 22
May 2026, the Supreme Court made deeply troubling remarks about the value of
locally published textbooks. The court specifically attacked an academic
publication by Mr Chanda Chungu, noting: “Mr C Chungu also referred to a number
of decisions of lower courts which have quoted passages from this textbook with approval. While we applaud counsel’s industry,
we would like to remind him that authors
of textbooks, such as the one under
reference, defer to decisions of the court
and not the other way round. Where there is established precedent by the
courts, this and indeed, all other
courts in Zambia are only bound by such
precedent and not books authored by Mr
Chungu or any author for that matter. This
quite apart from the fact that Mr
Chungu’s very recent books are very far from attaining the lofty status of being “established” or “authoritative”
books.”
We
must state at the outset that our interest here has nothing to do with the
merits or demerits of the case nor the outcome. Neither are we interested in the
substance of the arguments Mr Chungu advanced in representing his clients in
the matter. Our interest is in the denigration of local or indigenous
scholarship by the Supreme Court. This is not an isolated instance. The same
remarks were made during the Bar-Bench conference in Livingstone in April 2026,
to the effect that local publications should not be treated as authoritative as
they are not “established” in comparison to some English law textbooks. This
thinking is shocking considering the number of efforts across the African
continent in trying to decolonise jurisprudence and develop case law that is
contextually relevant and addresses the actual needs of the people and not a
helpless and mechanical imitation of English law, which was developed in a
context distinct from the local experiences.
The fact that through colonial rule we inherited the English legal
apparatus entails that we may not completely do away with some aspects of
English law. However, that should not undermine efforts to produce locally
relevant knowledge and jurisprudence. Our jurisprudence should be grown with
local needs in mind, without uncritical deference to other jurisdictions and
contexts. We must strive to overcome blind loyalty to English law or its works,
or what Professor William Church termed as a strong belief in English law which
even surpasses that of the Englishman.
Blind deference to English law has not yielded much in the development of our own jurisprudence. Chief Justice Mumba Malila perhaps correctly diagnosed the extant deficiency when he stated:
“When I was in academia as a university law teacher, I sought fervidly to use Zambian case law authorities for teaching purposes. I often found it rather disconcerting to make reference to some authorities generated by Zambian courts, particularly on legal problems that had also been adjudicated upon in other common law jurisdictions. Much of our domestic jurisprudence indeed appeared to fall short in some vital respects. They tend to be poorly researched, lacklustre and deficient in depth or clarity.”
The need to improve our jurisprudence is widely acknowledged. This, however, will not happen by taking refuge in English works, often written for a context far removed from the Zambian experience. It will be the collective effort of the Bar, the Bench and the Academia. The three are bound in a symbiotic relationship they cannot afford to disentangle from each other if progress is to be made. The Bar must raise its advocacy standards. The academia must research and publish high quality products, and the Bench must churn out well reasoned and contextually relevant decisions. Sustainable good jurisprudence by the courts would be impossible to develop without sound local academic scholarship and a knowledge feedback loop between the courts and scholars. The courts must, therefore, develop a sound and natural affinity for the local academia. The relationship should be nurtured. As former Kenyan Supreme Court Judge, Willy Muntunga eloquently said, “There is no doubt that for the development of the law to occur, the classroom should find space in the courtroom and vice versa.” It is not about publications being considered “established” by an unknown measure, but collectively building this symbiotic relationship between the Bench and Academia. Sound indigenous jurisprudence and sound academic output go hand in hand. Uncritical deference to English authorities and publications is mere escapism, some form of nostalgia that needs decolonising.
ABOUT THE AUTHORS
Dr. O’Brien Kaaba teaches constitutional law at the University of Zambia and is a senior research fellow at Saipar.
Professor Melvin Mbao is Emeritus Professor of Public Law and Legal Theory at the University of the North West in South Africa. Both write in their individual capacities.