UNIVERSITY OF LUSAKA

SCHOOL OF LAW
UNIT 3:
HISTORICAL DEVELOPMENT
OF THE ZAMBIAN LEGAL
SYSTEM
UNIT 3

 Reception of English Law

 Modes of reception of English law
 Evolution of the Zambian court system
 Stare decisis in Zambia’s courts
 Conflicts between received English law and the customary law
 Parliament of Zambia
 The First National Assembly
 Second National Assembly
INTRODUCTION
 Zambia has a dual legal system consisting of general or statute law and tribe
specific customary law.
 Statute law takes precedence but also recognises the country’s different tribe
specific customary laws. Kaniki v Jairus (1967) ZR. 7
 The general or statute law is based on the English common law system
 What is ‘English law’? It refers to English common law, doctrines of equity as
well as statutes of general application which were in force in England on a
particular cut –off date ( 17th August 1911)”. See Extent of Application Act,
CAP 11 Sec. 2
Reception of English law
 During the “scramble for Africa” various European empires by way of
colonising the local people, brought along with them, their laws.
MODES OF RECEPTION OF ENGLISH LAW
a) Introduction by English settlers to the local people (Northern Rhodesians)
b) Introduction through Order in Council or Act of the imperial parliament (E.g.
The Northern Rhodesian Orders in Council 1911)
c) By Adaptation and Re-enactment of specific English Acts into local
ordinances or Acts
d) Adoption of specific English Acts (E.g. see the second schedule to The British
Acts Extension Act, Cap 10 of the Laws of Zambia)
1. Introduction by the English settlers:

 The English imported the common law to their African colonies.

 Wherever they go, English settlers are presumed to take their
English law with them.
 There is no express enactment stating that English law shall be
applicable to the newly acquired territory, only so much of the English
law as is suitable to the circumstances of the newly acquired territory
 By the end of the colonial period, the African colonies in the British
protectorate were heavily influenced by English common law
2. Introduction by the imperial government by Order in Council or
Act of the imperial parliament:
 English law was introduced by an express enactment either made by the
Crown by Order – in – Council or by the colonial legislature by means of
local legislation (through ordinances, proclamations, Acts e.t.c).
 The powers conferred on the Crown to promulgate an Order – in – Council
were found in the British Settlements Act, 1887 for settlements and in the
Foreign Jurisdiction Act, 1890 for protectorates and trust territories.
 On the other hand, the powers of the Colonial legislature to introduce English
law through local enactment were granted to such legislature by the Crown
 In the latter case, the authority for the application of English law is to be
found in such enactments as the English Law (Extent of Application) Act,
CAP 11, in the case of Zambia
3. Adoption of specific English enactments:
 Under the British Acts Extension Act, Cap 10 of the laws of Zambia, the
following English enactments were adopted as applying in Zambia
 the Conveyancing Act, 1911;
 the Forgery Act, 1913;
 the Industrial and Provident Societies (Amendment) Act, 1913;
 the Larceny Act, 1916;
 N:B Please note that these have been uplifted from the 1995 edition of the
Laws of Zambia.
 It is also possible that some of these British Statutes have since been replaced by
local legislation.
4. Adaptation and re-enactment of English law in local ordinances:
 Reception of English law
 It is worth noting that in terms of practice and procedure, the
Zambian law still resorts to English law even now.
 This is evident in the provisions of some Zambian Acts of Parliament:
Section 12 and 14 of the Subordinates Court Act, Section 10, 11 (1)
and (2) of the High Court Act
 According to Dr. Munalula, “the significance of the general reception
of English law in this manner is that it provides the residual law (i.e
source of law of last resort) of the territory, to which reference is
made in the absence of any express rule deriving from specifically
local law”.
 Evolution of the Zambian court system
 The1899 to 1911 Court System:
 At the time the British colonists acquired North-Western Rhodesia
in 1899 and North – Eastern Rhodesia in 1900, some form of
judicial system in the name of tribal courts was already in
existence administering customary law
 this tribal judicial system was not an elaborate judicial system.
 The Barotseland North-Western Rhodesia Order in Council of
1899 introduced an elaborate judicial system in the North- Western
part of today’s Zambia
 The Order in Council, provision was made for the appointment of
judges and magistrates thereby paving way for the establishment
of the High Court and Subordinate Courts for the territory
 The Order in Council also expressly stated that except where
otherwise stated in the Order, English law was to apply in the
territory
 Article 9 of the Order in Council provided some form of protection
of customary laws, no official recognition was extended to the
tribal courts themselves
 The North-Eastern Rhodesia Order in Council of 1900
established an even more elaborate judicial system than had the
Barotseland North-Western Rhodesia Order in Council.
 A High Court was created with civil and criminal jurisdiction
with provision for appeals from the High Court to her Majesty in
Council (the Privy Council)
 Both the Barotseland North-Western Rhodesia Order in Council of
1899 and the North-Eastern Rhodesia Order in Council of 1900 did
not officially recognize tribal courts and no official appeal
system provided. But still protected customary law so long as it
was not repugnant to natural justice and morality
Evolution of the dualistic legal system:
 Between 1899 and 1911, two distinctly different
systems of judicial administration developed, the
officially recognized courts administering English
law (and infrequently, customary law ‘in civil
cases between natives’) and the de facto tribal
courts administering customary law .
 4th May, 1911, the Northern Rhodesia Order in Council of 1911,
revoking the Barotseland North-Western and North-Eastern Orders
in Council and merging the two territories into one jurisdiction,
was promulgated
 In 1929, official recognition was given to the Native Courts
(today’s Local Courts) enactment through the Native Courts
Ordinance of 1929
 the Magistrate’s Courts were expanded
 the Penal Code was then developed in 1933.
 In 1936, the Native Courts Ordinance was amended to facilitate
the establishment of urban Native courts. This was necessitated
by the growing numbers of Africans who were migrating from
rural areas to work in urban areas.
 With the coming of independence in 1964, several changes
were introduced in what was now the Zambian Judicial system
 Establishment of the Court of Appeal in 1964
 In 1973, the Court of Appeal was abolished and replaced by
the Supreme Court of Zambia.
 In early 1990s, the Industrial Relations Court was
established
 in 1992, of the Small Claims Court, Cap 47 of the laws of
Zambia
 Before the coming into force of the Constitution of
Zambia (Amendment) Act No. 2 of 2016 on 5th January
2016, the Zambian Court system, starting with the highest
court in the land, was as follows:
 The Supreme Court;
 The High Court; (and the Industrial Relations Court);
 The Subordinate Courts;
 The Local Courts; and
 The Small Claims Courts.
Stare decisis in Zambia’s courts
 ‘Stare decisis’ is a principle of English Law by which previous judicial
decisions (precedents) are binding and must be followed.
 Before independence, there was a rigid approach to the doctrine of
stare decisis in the then Northern Rhodesian courts.
 The courts were bound by decisions of higher English Courts,
especially the House of Lords and the Privy Council (at least with
respect to cases appealed to it from Northern Rhodesia).
 English decisions construing statutes “imported” in the territory were
followed religiously even if “strange results” were produced.
 According to one commentator, “stare decisis was pursued with even more
rigour than in England itself”.
 There was automatic application of English substantive and procedural
law to the near complete exclusion of any inputs based on local needs.
 Even in cases dealing with uniquely local concepts such as witchcraft, the
courts insisted on referring to the then current laws and standards of
England.
 This mechanical approach to the principle of stare decisis may have suited
the needs of a rather poorly trained and inadequately staffed judicial
system, it contributed very little to the development of rules of law
 The coming of independence in 1964, it was impossible for the Courts to
continue to reflect complete dependence on a foreign jurisprudence as the
primary source of Zambian law
 The new thinking meant that the Zambian Courts could no longer take a
mechanical approach to the principle of stare decisis.
 Zambian Courts viewed the law as an instrument of social change and that as
the Zambian Society and policies changed, so too must the law be adjusted
 The law would turn away from automatic recourse to past precedents,
especially precedent from outside the country, towards consideration of the
practical needs of society as perceived by the law-makers.
 The new approach was based on considerations of public policy and less on
pure, policy-neutral legal authority
 What conflicts arose between the received English law and customary
law and how were they resolved?

 First problem would arise when a white settler and an

African were involved in the same law suit.
 English law was held to be applicable as customary law was
only applicable where the parties involved in the law suit were
exclusively Africans
 Second problem arose when customary law was clearly
the applicable law but was substantively unacceptable
to the European Judge or magistrate
The judge or magistrate had 3 options at his disposal:
1. Merely disregard the advice of the assessors as to what the law was or what
the facts were.
2. Find a direct conflict between the customary law and the received English
law.
3. Use the “repugnancy” standard to reject the application of customary law.
Whose standard was applicable in deciding whether or not a given
customary law was “repugnant to natural justice, equity and good
conscience?”
R v Luka Matengula and three others(1951) LRNR 148,151 in which the
Court cited the repugnancy provisions of the statutes and held that the “pointing
out” tradition was unacceptable as ”against justice as we people in England see
it.”
HISTORICAL DEVELOPMENT OF THE
PARLIAMENT OF ZAMBIA (1918-1999)

 The Northern Rhodesian Order in Council 1911 also

introduced the Northern Rhodesian Legislative Council
which was the first legislative or law making body.
 The functions:
1. Pass ordinances (laws) necessary for the administration of
justice; the raising of revenue; and the preservation of peace,
order and good governance within Northern Rhodesia.
2. Advise the Governor of Northern Rhodesia.
 THE FIRST NATIONAL ASSEMBLY-1964
 On 24th October 1964, Northern Rhodesia was renamed as the
independent state of Zambia.
 Legislative council was renamed as the National Assembly of Zambia
comprising of 75 elected MPs and 5 nominated MPs
 The National Assembly of Zambia effectively became a legislative
body, one of the three arms of government.
 In 1968, the first republican constitution was amended, increasing the
total number of MPs. From 80 to 110.
 Following the Presidential and General elections of 1968, the Second
National Assembly was constituted.
END OF LECTURE
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