Describe Law The Law
The Law
The Law is a set of rules, which a society develops for itself to control the behaviour of its members
to one another.
It also includes the meting out of punishment to members of society that do not abide by the rules
and the awarding of compensation to people who have been wronged.
Without law, society as we know it would be impossible because freedom without boundaries
results in anarchy, which means total confusion. From the time that human beings are born, their
lives, safety, health and peace are controlled by law.
Discuss elements of a good legal system
Elements of a Good Legal System
A good legal system is one that serves members of its society fairly without violating their rights. There are
six core elements that should be present in a good legal system. A good legal system has to be:
Simple (Uncomplicated)
A law has to be written in a language that can be easily understood by a large section of society.
The form of language and the level of difficulty should suit the needs of the majority of citizens.
Comprehensive (Inclusive)
It should not leave gaps but attempt to cover all possible areas of dispute, concern or debate. It
should anticipate future problems and include them in the laws. It should not be constantly
formulating new laws as wrongful acts take place.
Certain (Definite)
Citizens ought to know clearly what is prohibited by law. A law should not be so ambiguous or
vague that it is only fully understood and interpreted by a small number of people in society. It
should therefore be documented so that it is possible to refer to it and that it should be clear to
everyone who consults it.
Accessible (Obtainable)
It should be readily available to members of the public. This means that it should also be affordable.
If citizens come into conflict with the law, they should be able to afford legal representation.
Similarly, a wronged person should be able to readily access legal means of having their problem
dealt with. If the legal system is not affordable, then it excludes a large number of people.
Flexible (Adaptable)
Laws have to keep up with social change and therefore, they should change with time. If a type of
dispute which was not there previously comes up, the law should change to take care of any new
challenge. If it does not, then it is rejecting change. A good law should not reject change.
Moral Values (Ethical)
The law should be based on the moral values of society. If laws do not reflect society‟s core values,
citizens are unlikely to respect and uphold it
Describe sources of Law in Zambia
Sources of law are the starting point to refer to in order to find what the law says when one is faced with a
legal problem. Zambia has a dual legal system and relies on the English Law and African Customary Law.
i. English Law Sources
Common Law is one of the Laws that Zambia has adopted. Common Law is the Law that started
from customs that were common to all parts of England.
England applied this Common Law to its colonies such as Zambia and after independence this
became part of the sources of law of the Zambian legal system.
ii. Legislation
Legislation or statutes is the largest source of law in Zambia. These are laws enacted by parliament.
All powers to make laws are vested in parliament. There are three types of laws made by
legislation.
a) The Constitution
The Constitution is the Supreme Law of the land. Article 1 Paragraph 3 of the 1996
Amended Zambian Constitution states out its supremacy.
It states, This Constitution is the Supreme Law of Zambia and if any other law is
inconsistency of this law, that other law will be declared void.
This implies that if any law does not conform to the Constitution, then that law
becomes invalid
b) Acts of Parliament
Acts of Parliament are laws made through bills passed by the National Assembly
and assented by the President.
The process begins with the presentation of a bill in the National Assembly and
passes through three Reading Stages before being sent to the President to either
veto or withhold his or assent.
If he/she assents, the bill is gazetted and becomes law.
If the President does not sign, the bill is sent back to the National Assembly.
The National Assembly can either debate further or make changes or it can send
back to the President in its original form.
When this happens, the President has 21 days in which to either assent or dissolve
Parliament to pave way for fresh elections.
c) Delegated or Subsidiary Legislation
Delegated or subsidiary legislation are laws delegated to the Executive wing of the
government to make as provided for in an act of parliament.
The law recognized that it would not be possible for parliament to make all laws.
Parliament has allowed government ministers to make laws. For example, the
Education Act allows the Minister of Education, through consultations to issue
government circulars that become law.
iii. Case Law
This is the second largest source of law in Zambia.
It is also known as Law Reports or Judicial Precedent.
This is when, in disposing of a case, the court refers to how a similar case was decided
upon by a superior court.
In Zambia, superior courts are the Supreme Court, the Constitutional Court, the High Court
and the Industrial Relations Court.
The High Court and the Industrial Relations Court are at the same level, the difference is in
the type of matters they handle.
The High Court handles criminal and civil cases while the Industrial Relations Court
handles employment or labour disputes. The four courts handle appeal cases and are
therefore known as appellant courts.
The Magistrate Courts and the Local Courts are lower courts.
The decisions of the appellant courts are reported in the Zambia Law Reports.
Decisions of the appellant courts are binding on subordinate courts.
For example, if a case handled by the Supreme Court is recorded in the Law Reports, this
decision is binding on the High Court and the Industrial Relations Court. The imaginary
case below illustrates this point:
Case Laws are important because they:
i. Save time as there is no need for a whole new research.
ii. Show respect to the judges who made the previous decisions.
iii. Ensure equality, uniformity and stability in the law. If a murder case takes place and a decision is made,
when another murder case takes place in similar circumstances the same decision as the first murder
case should apply regardless of who committed the offence.
iv. International Treaties
Zambia is signatory to a number of International Treaties.
The contents of these treaties are the sources of Law.
Note that in order for these International treaties to become Law they have to be domesticated
through an Act of Parliament in order to officially become Zambian Statutes.
Note: we have two types of legal systems in the world namely; Monist and Dualist. Dualist
legal system which recognises International Law as law but does not apply directly on the
country not until it is domesticated through an Act of Parliament while Monist Legal
system considers International and domestic law as one.
v. Customary Law
Customary Law is derived from custom, which is the practice of doing things in
society.
These practices differ from the ones in Statutory Instruments because they are not
written and not codified.
Before Zambia was colonised, the indigenous people were using their customs, most of
which have been in use from prehistoric times, as their law.
For a custom to be recognised and enforced by the courts as law, it must be in existence
for a long time, sometimes over centuries and it must be freely accepted by most
citizens for it to be binding on them.
Most Zambians are governed by customary law in their personal affairs.
The local courts which administer customary law are located all over the country and
they are the ones commonly used by the less privileged and the vulnerable in society.
They are easily accessible and conducted mainly in local languages, although English
is also allowed. As a result, local courts hear 80% of the total cases brought before all
the courts in the court system annually. Customary law is also applied in traditional
courts, which are presided over by traditional rulers.
Customary law uses advisors who are called assessors to give advice on particular
matters.
These assessors are not extra Justices but play the role of a consultant. For example, if
a court is about to hear a case involving a Lamba customary law, it could invite a
Lamba person of suitable character and social status to sit as an assessor for that
particular case only.
The advice of assessors is given in open court so that everyone can hear it and that the
persons concerned shall be able to respond or bring evidence on matters after such
advice is given.
Explain criminal and civil cases
Criminal Cases: A case is a matter being examined or judged in a court of law.
A crime is any wrongful act or omission in society, which the particular society thinks affects the
interest of all members.
If the wrongful doing does not affect the safety, security and wellbeing of the whole community,
then it is not a crime.
Failure to pay debt is not a crime; failing to fulfil a promise is equally not a crime because it only
affects the people involved.
What constitutes a crime varies from one country to the other.
For example, kissing in public, drinking alcohol and adultery are crimes in most Islamic countries
but are not crimes in Zambia.
Elements of a Crime
Every crime has two elements:
i. The Wrongful act or omission, which creates the offence such as rape, burglary or defilement, has
an element of physical act taking place. In a theft, there is the taking away of something and
keeping it while in murder; there is the action of killing. This physical act is called actus reus in
Latin
ii. The intention or desire to cause harm, loss or injury known as the guilty state or blameworthy
state of mind on the part of the offender. The Latin phrase for this is mens rea, which simply means
a guilty mind or malice aforethought.
Civil Case
A civil case is a wrongful act that affects only the individuals or parties involved. It is any case
that does not have a criminal element. For example, failing to settle a debt has no criminal element
in it but the person who owes money can be sued in a civil case and the courts will compel him or
her to repay the debt. Civil law is sub-divided into several sections. For example, Family Law,
Employment Law, Law of Contract, Law of Tort, Land Law, Administrative Law and many more.
Broadly, crimes are classified into:
Crimes of Specific Intent
These are crimes that are committed with a specific intention.
For example, wounding someone to cause grievous harm, theft, burglary, and robbery are crimes of
specific intent.
A person who beats another to the extent where she or he causes grievous bodily harm intended to
do that.
Taking someone‟s property without the owner‟s permission or knowledge and then keeping it is a
deliberate act of crime.
Crimes of Basic Intent
These are crimes committed through recklessness or on a sudden impulse such as driving past a red
traffic light (robot), not stopping at a stop sign, exceeding the speed limit or manslaughter.
Specifically, crimes are classified into:
Misdemeanours
These are petty crimes such as common assault, indecent exposure, pick-pocketing or littering.
Felonies
These are serious or heinous crimes such as murder, treason, aggravated robbery, defilement or
rape.
Statutory Crimes
These are crimes that are committed contrary to what is contained in statutory instruments, such as
voting twice in an election, rigging an election or failing to pay tax.
- Rights of a Suspect in a Pre-trial procedure
A suspect is a person believed to have come in conflict with the law or is simply the accused.
Every Zambian citizen‟s right to liberty is guaranteed in Article 13 of the Constitution.
There are derogations, meaning exceptions to the right.
One of them is that liberty may be taken away from a person who is reasonably suspected of having
committed or about to commit a criminal offence.
In this case the person‟s liberty will be taken away through the act of arrest.
In order to make an arrest the Police officer should touch or confine the body of the person being
arrested.
If the person being arrested resists the Police are allowed by law to use reasonable force necessary
to effect an arrest.
Detention for Questioning:
Police have no power to detain a person for questioning unless he/she is arrested for criminal
offence and informed of the reasons for the detention.
A person detained for can compel Police to realise him/her or formally arrest him/her.
If the relatives of the detainee know where he/she is, they could secure his/her freedom through
habeas corpus.
It is illegal for Police to detain relatives of suspects as hostages in order to compel suspects to turn
themselves in.
Compensation for False Imprisonment
A person who is unlawfully arrested or detained can sue for compensation for false imprisonment
through the courts of law.
If the police falsely imprisoned a person, that person can sue the state through the Attorney
General, who is the government‟s legal representative.
Interrogation
Though the Police are allowed to question persons who may be suspected of having committed the
offence, such persons are under no obligation to answer.
The police have no powers to use force to draw out statements from suspects.
Article 15 of the 1996 Amended Zambian Constitution states that, “A person shall not be subjected
to torture, or to inhuman or degrading punishment or other like treatment.” This is the only right
that has no derogation.
This simply implies that torture of suspects is not allowed under any circumstances. A tortured
suspect can sue the state for compensation.
Judges’ rule
The rule that requires the Police to inform the accused of her/his right to remain silent if he/she
wishes and if he/she wishes and that if he/she said anything , the statement may be used as evidence
against him/her during trial.
The Judges‟ rule also provides that the accused to be allowed to consult lawyers or other legal
practitioners even when placed under custody.
Law of Bail
A person arrested, detained or appearing before the court may, while in custody, or at any stage of
the proceedings, apply for bail.
Bail is the sum of money an accused person pays as security that he/she will appear before the court
until the case is disposed of.
Bail may be secured by providing sureties, who are persons that go before the court to swear that
they will make sure the accused person does not run away and that will appear in court whenever
he/she is required to do so.
Sometimes if the accused is a respectable member of society does not have to provide sureties and
can hence be granted bail in his/her cognisance.
This means that being aware or having conscious knowledge.
In case of being granted bail in one‟s own Cognisance, the accused is fully aware of the
consequences of absconding from court.
In Zambian law, bail is not granted in criminal cases such as treason, aggravated robbery or
murder.
- Rights of a Suspect at the Trial Stage
Apart from other rights of an accused person during trial, there are three basic principles of criminal
procedure:
The defendant (suspect) is presumed innocent until proven guilty by the court of law.
The Burden of Proof is the duty that lies on prosecution to prove the criminal allegation labelled
against the accused. The burden of proof is based on the rule of he who alleges must prove. The
accused does not have to say anything in his or her defence.
The Standard of Proof is the weight of evidence the prosecution must produce in order to establish
the alleged crime. The Standard of Proof should be beyond reasonable doubt.
Other rights are:
i. Fair Trial and an Impartial Judge
The Zambian Constitution provides that any person charged with a criminal offence shall
be afforded a fair hearing within a reasonable time by an impartial and independent court
established by law.
The principle of natural justice states that no one should be a judge in his/her own case and
that and that both sides of the case should be heard.
Where a judge feels he/she has interest in case should excuse him or herself from handling
it.
ii. Right to a speedy and Public
The justice system operates on the principle that justice delayed is justice denied, which means that
not getting a speedy trial is tantamount (as good as) to not getting justice at all.
Delays in trials undermine the rule of law as people lose confidence in the justice system and by so
doing people resort to resolving cases through unlawful means such as instant justice and
vendettas.
iii. Right to Silence
The Burden of Proof lies solely on the prosecution the accused therefore has the right
to remain silent.
The accused may therefore choose to be silent by not taking the stand in the witness
box and giving an oath.
The accused may choose to give an unsworn statement from the dock.
The dock is the sitting place for the accused person (s) in a criminal court procedure.
The right to silence protects the accused against incriminating oneself also extends to
not answering questions from the Police.
iv. Protection Against Double Jeopardy
This means that an accused person cannot be tried again for an offence of which he or
she has been acquitted.
If a person has been acquitted of murder s/he cannot be tried on a lesser charge of
manslaughter.
If the prosecution decides to try the person for murder and gets acquitted, the
prosecution cannot later institute a lesser crime of manslaughter just to secure a
conviction unless in a nolle prosequi.
v. Protection Against Ex Post Facto Law
This means that if a person commits a wrongful act which at the time does not
constitute a crime, he or she cannot be tried at a later stage when that wrongful act
becomes a crime.
This means that a law creating a criminal offence cannot be backdated.
vi. Right to Examine and Cross-Examine Witnesses
The defendant has the right to question the witnesses presented by the prosecution and
examine his or her own witnesses.
The method of examination used in the Zambian courts is the question and answer
method that tries to elicit orderly and consistent stories, thereby avoiding the witness
saying things that are not allowed as evidence in a court of law.
vii. The Right to an Attorney
Both the civil and criminal trials in the Zambian courts are based on an adversary
procedure.
This is a system where the prosecution and the defence treat each other as opponents
but not enemies.
If one is too poor to afford a lawyer, the state should provide one through the Legal Aid
Department of the Ministry of Justice.
The Legal Aid Department is mandated to provide legal services to all persons accused
of offences that are supposed to be tried in the appellant courts.
viii. Right to Defend Oneself
Article 18 Paragraph 2 Section C of the Zambian Constitution requires that the accused
be given enough time to provide for his or her defence.
In Zambia, this rarely happens as the accused are usually in custody and are not given
chance to collect evidence and as a result the defence merely reacts to the prosecution‟s
witnesses.
There is little independent questioning of the witnesses, visits to the scene of the crime,
alibi, which is proof that the person accused of a crime was in another place from
where the crime took place and that the person could not have committed the crime.
- Rights of a Convicted Person at a Post-Trial Stage
Right of Appeal
A convict has the right to appeal to higher courts if not satisfied with the decision of the lower
court.
This ensures that any error that may have been made in the lower courts can be corrected by an
appellant court.
The convicted person should be informed of his or her right to appeal at the end of the trial.
Other rights of the Accused
Article 18 of the 1996 Amended Constitution of Zambia guarantees the following additional rights to the
accused:
Right not to be tried for a criminal offence for which he or she has been pardoned by the Head of
State.
Right to have an interpreter if he or she does not understand the language being used during the
proceedings.
Right to be given a copy of the record of the proceedings made by the court within a reasonable
time of judgement.
Right not to be convicted of a criminal offence unless that offence is defined and the penalty written
in law.
Describe the trial stages in a criminal justice process in the Zambian Legal System
Arrest
Arrest is when the accused person is taken into custody with or without a warrant.
An accused person may be arrested with a warrant, obtained from a court of law, for offences such
as poaching from restricted areas.
A cognizable offence such as theft allows arrest without a warrant.
Arrest for traffic offences such as careless driving is done by court summons.
Plea
Plea is when the charge against the accused is read.
It is the first appearance in a court. When the charge is read, a plea will be taken.
If the accused admits the offence then he or she is said to have taken a plea of guilty.
If he or she denies the charge then a plea of not guilty is taken.
The plea is recorded if the accused admits the charge.
The prosecutor will read the facts of the case to the accused.
If the facts are also admitted, the court convicts the accused.
The prosecutor produces and reads previous records of conviction, if any.
The accused accepts or denies these previous convictions.
Mitigation then follows with the accused asking the court for leniency.
Then a sentence is passed.
If the accused denies the charge, a plea of not guilty is recorded and a date is set for trial
Trial
The trial stage has the prosecution and defence parts to it.
The prosecution‟s case is when the prosecution calls their witnesses, known as prosecution
witnesses (State witnesses).
Each witness‟s narration is known as examination in chief.
It is meant to build the case against the accused. Each witness may be cross examined by the
accused and his or her legal representative who are known as the defence.
They try to destroy the evidence given by the prosecutor‟s witness.
After cross-examination, the prosecution re-examines the witness to try to correct the damage done
by the Defence‟s cross-examination, if any.
Then the prosecutor closes his or her case by summarizing the main points of the case and urging
the court to convict the accused.
The court will then consider whether the accused has a case to answer. If the court establishes that
the accused has a case to answer, known in Latin as prima facie, then the accused is put on her or
his defence.
The Defence will then bring in their own witnesses known as defence witnesses whose narration of
events will be the defence‟s examination in chief.
The prosecution will then cross-examine the defence‟s witness to try to destroy the evidence
offered by the witnesses‟ account.
The defence will then re-examine to control damage done by the cross examination, if any. The
defence will also close their case urging the court to find the accused innocent.
Both the prosecution and the defence will make what is known as final submissions by addressing
the magistrate or the judge with their strong points.
Judgment
The magistrate or judge will then deliver judgment, which is the final ruling or verdict.
Records of Previous Convictions
The prosecutor will then read to the court any previous convictions. The defendant will either
accept or reject these.
Mitigation
If the defendant is found guilty and convicted, he or she will then be required to provide reasons
why he or she should be given a lenient sentence.
Sentencing
The magistrate or judge will then sentence the accused, guided by the three principles of sentencing
which are:
Retribution – meant to punish the offender especially in rape cases.
Deterrent – meant to prevent the offender or other would be offenders from committing the crime.
Reformation or rehabilitation – meant to reform the offender in order to return to a decent life. This
punishment is mainly applied to juvenile offenders and first offenders
Discuss capital punishment
The Death Penalty
The death penalty is a form of Capital Punishment.
The death penalty is the taking away of someone‟s life this is the more reason it is referred to as
punishment beyond punishment.
It follows that very heinous (serious) crime are punished by death. As earlier alluded to, a crime in
one country is not necessarily a crime in another.
Similarly, what is considered a terrible crime worth of death penalty in one country might not
warrant death penalty in another country.
In the Zambian Penal Code, murder, treason and aggravated robbery are felonies currently listed as
crimes whose mandatory sentence is death penalty.
Mandatory sentence require judges to impose identical sentences on all persons convicted of the
same offence. This is also called fitting the punishment to crime.
Crimes that are Punishable by Death
When a person comes into conflict with the law by committing a wrongful act that is classified as a
crime, the task of the law is to punish the offender in order to fulfil one or more aspects of the aims
of punishment.
In terms of a crime the highest form of punishment is the death penalty. When a court of law passes
the death penalty on an offender, he or she becomes a condemned person.
They are referred to as condemned because they pay for the crime they committed with their lives,
which is the ultimate punishment that can be meted out on a human being.
The death penalty has been with mankind ever since the formation of societies and the beginning of
law in whatever forms it took.
The methods of execution are many and varied.
As societies advanced so have the methods of executions, from the most primitive method of
burning a person to death to the most sophisticated method of lethal injection.
Describe the procedures in a Civil Case
Procedures in a Civil Case
Whereas criminal law is a single branch, civil law is subdivided into several sections.
Unlike in a criminal law procedure where the process is similar despite the type of court trying the
case, there are variations in civil proceedings depending on the type of court.
Civil Procedure in the Local Court
The procedure is generally informal because the aim of the proceedings is to administer necessary
justice.
These courts have not adopted complex procedures because most of the people who use these
courts are not very educated and cannot easily understand complex court proceedings used in
higher courts.
Most of them are also too poor to afford legal representation.
It is for these reasons that lawyers have been excluded from representing parties in local courts.
Civil proceedings in a local court start by writ of summons obtained from the court clerk by the
plaintiff.
A plaintiff is a person or persons with a complaint.
Local court summons costs little to allow as many people as possible access to the courts.
The court clerk fills in the particulars of the plaintiff and the defendant, a term given to the party
being accused of a wrongful act or omission.
The nature of the claim and the date of trial are also filled in.
The summons is then served on the defendant at his or her residential address. A copy is left with
the defendant.
During trial, the plaintiff will state his or her case against the defendant. His or her witnesses will
also testify. To testify is to give evidence.
When the plaintiff has closed his or her case, the defendant will also state his or her case and will be
cross examined by the plaintiff.
Witnesses will also testify before the defendant closes the case.
The court will retire, which is going away to a separate room to consider the case, after which a
decision will be reached, followed by judgment
Civil Procedure in Subordinate Courts
In these courts, the parties are required to follow strict rules of procedure. The plaintiff is required
to give the defendant copies of the documents which they intend to rely upon during the trial.
The procedure begins with the serving of the writ of summons on the defendant.
During the trial, lawyers are permitted to represent parties. Examinations in chief cross
examinations and re-examinations will take place before parties close their cases. After both parties
close cases, the court will consider and deliver judgment.
Civil Procedure in the High Court
Procedure in a high court is formal. The plaintiff must file in a statement of claim, which is not
required in the subordinate court.
The Statement of Claim is served together with a writ of summons.
The defendant will fill in the Enter of Appearance form together with defence, which is a response
to the statement of claim. Trial will then take place leading up to the final submissions and then
judgment.
If the case is one of claim, a warrant of distress will be served on the defendant to seal the
judgment. Where the amount of claim is known, a specially endorsed writ will be served on the
defendant.
There are cases that come before the High court that are heard in chambers, which is the office of
the judge. The word „chamber‟ in this instance means private.
We learnt earlier that court proceedings are preferred to be conducted in open court so that justice is
seen to be done.
-Uncontested divorce actions
-Application for an order of vacation in property repossession
-Application for order of company dissolution also known as liquidation
-Application for maintenance in case of a divorced spouse and children
Procedure in the Industrial Relations Court
This court handles only industrial matters, which cases are pertaining to employer versus employee
relations.
Procedure is similar to that of the high court. Lawyers are allowed and appeals go to the Supreme
Court.
Civil Procedure in Supreme Court
The procedure is similar to that found in the high court except that the Supreme Court does not
conduct trials because its purpose is mainly to hear appeals, hence the reason it is referred to as the
Court of Appeal.
It only conducts trials in cases that a particular law expressly gives it power to hear, such as, a
presidential elections petition.
The procedure during an appeal is like the one in a high court. Lawyers are allowed to represent
parties
