1] L100 Legal Process: Learner’s Module

University of Africa

Faculty of Law

L100 Module: Legal Process

© 2013 Adv. Justin Sipho Chitengi1 DAAD Scholar; PhD Candidate- Law & Policy(UNILUS); LLM(UWC/HU); LLB Merit (UNZA); BSc Forestry(CBU); PGC

Public Policy(AU); CPD Conveyancing(LAZ); PGC LPQE(ZIALE); CETP Entrepreneurship(Northlink); AHCZ(High/Supreme Court)

1 Formerly the Founding Assistant Dean of the Law School- University of Lusaka, Adv. Chitengi is a seasoned teacher of

law and renowned researcher as well as publisher. He has lectured both in public and private universities in Zambia and

abroad including the University of Zambia and the Copperbelt University among others. He also served as Postgraduate

Researcher on Financial/Economic Crimes Law at the German-South African Centre of Excellence, a collaboration between

Humboldt Universität zu Berlin & University of the Western Cape. Chitengi was appointed by the then Republican Vice

President & Minister of Justice in 2011 to serve as a Council Member of the Zambia Institute for Advanced Legal Education

(ZIALE) - the only Bar School in Zambia. He is currently in the employ of John Snow Inc. Ltd (SHAReII Project), a

USAID-funded project where he practices law as Legal and Policy Manager. Adv. Chitengi is a recipient of many

prestigious scholarships and fellowships both locally and internationally in recognition of his contribution to the legal

fraternity.

2] L100 Legal Process: Learner’s Module

Course Introduction

This course is the foundation of legal studies as it introduces you to the general

principles of learning the law. It is not necessary a stand- alone branch of law, but is a

cross-cutting course in all the other law courses that you will undertake.

Module Objectives

This module aims at laying a strong foundation for new learners of law who are being

introduced to the study of key concepts in law. It endeavours to prepare you for the future

of solving legal problems.

Expected Module Outcomes

On completion of studying this module you should be able to, inter alia:

i. Demonstrate clear understanding and definition of key concepts and principles of

law;

ii. Understand the key legal and institutional frameworks governing the

administration of justice;

iii. Explain the relationship and professional interaction between lawyers and the

courts;

iv. Understand the major legal systems of the world;

v. Trace the historical development of the English legal system and it impact on the

Zambian legal system;

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vi. Identify the key techniques of alternative dispute resolution;

vii. Appreciate the correlation between law and society;

viii. Identify and explain the various rules of statutory interpretation; and

ix. Explain the major approaches in solving legal problems.

Duration

You are expected to complete studying this module in one academic semester averaging 5

months.

Study Tips

i. As you go through this module you will come across margin icons (gavels and scales

of justice) that serve as signposts. These icons are intended to assist you navigate

through the module;

ii. There are several activities interspaced in the learning activities that will allow you to

reflect on the topics in each unit;

iii. At the end of each unit you will find a number of revision questions to self-assess

your level of understanding a particular unit before you proceed to the next unit;

iv. Various case studies are given under each unit for you to familiarise yourself with

how lawyers identify legal issues from a given set of facts and apply the law to the

identified legal issues as they help the courts to pass judgements;

v. Few past examination questions have been reproduced at the end of the module for

you to assess your preparedness for examination in this course; and

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vi. A list of prescribed and recommended reading materials has been attached to

supplement your reading. Make efforts to secure for yourself at least a copy of the

prescribed texts

Study Skills

As espoused by Gay, “Learning by study must be won; ‘Twas ne’ er entailed from son to

son.”2 You are personally responsible for your study- time management as the institution

will only manage your study programme during the residential school period according to

the school calendar. Therefore, you should balance your use of time, learn to cope with

academic pressure in strictly meeting the deadlines for submission of assignments and

familiarise yourself with rules of writing legal essays.

Do You Need Help?

If you need help, extra information or have any queries concerning this module, kindly get

in touch with the Course Coordinator through the University regional offices nearest to your

location. Where it is exceptionally necessary, you may directly consult the lecturer or the

driver of this module outside the scheduled residential classes on +260 965 444 353 or

email: cjnsipho@gmail.com

2 Fables, II, ii

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Assessment

Continuous Assessment

o 1st Assignment: 25%

o 2nd Assignment: 25%

Final Examination: 50%

Prescribed Readings

Statute

i. Constitution Act, Cap 1 of the Laws of Zambia.

Text Books

i. Munalula, M. M., Legal Process: Zambian Cases, Legislation and Commentaries

(2004), UNZA Press, Lusaka.

ii. Smith, A.T.H., Glanville Williams: Learning the Law (2006) 13th ed, Thomson

Sweet & Maxwell, London

Recommended Readings

i. Curzon, L. B., Dictionary of Law (1997) Revised 4th ed, Pitman Publishers,

London.

ii. Rogowski, R., Civil Law (1996), New York Univ. Press, New York.

Module Outline

Part 1: The Legal System

Unit 1: Introduction to the Study of Law

Topic 1.0: Introduction

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Topic 1.1: Concept of Law

Topic 1.2: Purpose and Attributes of a Good Legal System

Topic 1.3: Law and Society

Topic 1.4: Adjudication and Alternative Dispute Resolution

Unit 2: World Legal Systems/Jurisdictions

Topic 2.0: Introduction

Topic 2.1: English Common Law System

Topic 2.2: Civil Law System

Topic 2.3: American Common Law System

Topic 2.4: Islamic Legal Order (Sharia Law)

Topic 2.5: Canon Law Jurisdiction

Topic 2.6: Roman Dutch Law

Topic 2.7: Customary Law

Unit 3: Historical Development of the English Legal System

Topic 3.0: Introduction

Topic 3.1: The Norman Conquest

Topic 3.2: Reception of English Law

Topic 3.3: Evolution of the Zambian Judiciary

Topic 3.4: Zambian Courts and Stare Decisis

Topic 3.5: Received Law vs. Indigenous Law

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Unit 4: Sources of Law

Topic 4.0: Introduction

Topic 4.1: The Constitution

Topic 4.2: Acts of Parliament/Statutes

Topic 4.3: Subsidiary Legislation- SIs; By Laws; Regulations; Standing Orders; and

Circulars

Topic 4.4: Judicial Decisions

Topic 4.5: Common Law; Rules of Natural Justice; and Doctrines of Equity

Topic 4.6: Customary Law

Topic 4.7: International Law

Topic 4.8: Legal Treatise

Topic 4.9: Scholarly Works/Text Books

Unit 5: Institutional Framework

Topic 5.0: Introduction

Topic 5.1: The Judiciary

Topic 5.2: The Legal Profession

Topic 5.3: Other Key Institutional Stakeholders

Part I1: The Legal Skills

Unit 6: Statutory Interpretation

Topic 6.0: Introduction

Topic 6.1: Legislation and Case Law

Topic 6.2: Rules of Interpretation

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Topic 6.3: Law and Society

Unit 7: Precedents: Doctrine and Technique

Topic 7.0: Introduction

Topic 7.1: Judicial Decisions

Topic 7.2: Common Law and Zambia

Topic 7.3: Preparing Case Summaries

Unit 8: Lawyers and the Court

Topic 8.0: Introduction

Topic 8.1: Lawyer’s Dress Code

Topic 8.2: Etiquette to the Bench

Topic 8.3: Problem Solving Approaches- IRAC/CLEO and IMC

Unit 9: Sample Examination Questions

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Unit 1: Introduction to the Study of Law 1.0 Unit Overview and Expected Outcomes

This Unit is a preliminary introduction to the study of law. It lays a foundation for you

to understand the basics of law and the study of law. After studying this Unit you

should be able to discuss the basic concepts of law including its evolution;

terminologies; and impact on society, inter alia. You are, equally, expected to be able to

identify and discuss the various legal technics that are available in resolving societal

disputes after you have studied this Unit.

Topic 1.0: Introduction

The study of law involves one conducting research on pertinent topics of law in a bid to

understand the legal principles that may be applied in resolving a dispute. Before one

may conduct such research, they ought to clearly understand what law is and how it

interacts with other instruments in society; such as religion, politics and customs, inter

alia, in promoting social order. Below are some of the pertinent aspects necessary to

prepare you in your new journey as a law student.

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Topic 1.1: Concept of Law

Law is a concept of regulating how persons in a particular society should behave. It

involves the official rules made by governments. They keep peace and create order.

When people break laws, their governments punish them.

Evolution of Law

Long ago, people lived only in small tribal groups. They lived together, followed the

same traditions, and worshipped the same gods. There were no formal laws. Instead,

people were guided by their customs, morals, and religion.

Over time, cities began to form. Laws became more formal and were written down in

legal codes. In about 1750 BC, the king of Babylon created one of the first legal codes,

the Code of Hammurabi. It listed certain crimes and told how they should be punished.

The Roman Contribution to the Development of Law

The ancient Romans helped shape our modern view of law. In the 600s BC, citizens of

Rome wrote down all of their basic laws on twelve bronze tablets. The Romans declared

that no citizen, not even the ruler, was above the law. Modern law codes are rooted in

the Roman system. Such law codes are statutory, meaning they are created and changed

by legislatures, not by courts. They provide the main source of law in much of modern

Europe, South America, and other places.

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1.1.3 Elementary Legal Terminology

Terminology and proper use of appropriate language is very critical to a lawyer.

Whereas a farmer has ploughs, oxen, axes and hoes among other things for their

instruments of trade, a lawyer has no instruments of trade but his tongue alone. As such,

the astile skills of a successful lawyer must lie in their mastery of the art of proper use of

language. One may win a bad case or lose a very good case dependant on, among

other things, the inappropriate or appropriate use of language. Below is a sample of

commonly abused terminologies both in civil and criminal matters.

Civil Terminology

In civil actions, the terminology is that a Plaintiff (the wronged person) sues

(commences a claim against) a defendant. If the action is successful judgement is entered

for the plaintiff resulting in the defendant being found liable. In such cases, the

defendant may be ordered to pay damages (compensation/money) to the plaintiff for the

damage (injuries) caused.3

3 Smith, A.T.H., Glanville Williams: Learning the Law (2006) 13th ed, Thomson Sweet & Maxwell, London, pp 17- 18

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It is, therefore, a misnomer to say “a prosecutor to institute civil proceedings against

accused person.” It should be “a plaintiff to commence a civil action against a

defendant.”

Criminal Terminology

With respect to criminal proceedings, the terminology is that a Prosecutor (a public

officer usually a police officer acting on behalf of the State) prosecutes (institutes

proceedings) an accused person. If the prosecution is successful, the judgement results in

a conviction and the convicted person is found guilty. The punishment is a sentence in

form of a fine or custodial sentencing, inter alia. It is, therefore, a misnomer to say

“commence a criminal action.” It should be to “institute criminal proceedings.”

Topic 1.2: Purpose and Attributes of a Good Legal System The law is a body of rules that is designed to control the blameworthy conduct of

individuals. And whilst a lot of people may not agree with the existence of the law it is

still an important and irreplaceable aspect of any society. But to curb the improper

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application of the law it is important to set down a few things that are expected of a

good legal system.4

There can never be a functional legal system if it is not transparent. When people turn

to the courts they naturally expect the judges and prosecutors to act with ethics and

honesty. But if the people responsible for applying the law are dishonest the very

foundation on which justice rests will be shook to a standstill. The confidence which

people will have in a transparent rule of law will somehow urge them to be law abiding

and respectful of the law and its expectations.

Court cases are brought before the courts to be finalized and concluded. The remedies

that the courts give are anticipated with much anxiety and nervousness so it is crucial

that the law be applied with efficiency. The speedy conclusion of court cases means

justice prevails instead of frustration and anxiety. Instead of postponing hearings over

4 Adriana, N., The Characteristics of a Good Legal System Retrieved 18 July 2013 from http://ezinearticles.com/?The-

Characteristics-of-a-Good-Legal-System&id=3393942

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and over again the courts must see to it that cases are brought to a close speedily whilst

at the same time bringing about a fair and equitable conclusion to cases.

The law is useless if it is applied unjustly and unfairly. Justice is best served when the

best possible outcome that pleases both parties is achieved. There are enough instances

where money prevailed over justice and criminals went on to commit the same offences

as the ones they were charged for in the very beginning. So for a legal system to be

deemed good it must see to it that justice and fairness prevail over any other competing

interests.

Corruption is when a benefit is given or accepted in exchange for a favour. Even though

corruptibility is inescapable like oxygen it is best fought in the courts than anywhere

else. The people entrusted with applying and enforcing the law must not accept bribes

from the wealthy who wish to have the outcomes of cases sway in their direction. There

is no real use in having the law if the people entrusted with the responsibility of

protecting it are corrupt themselves; they must lead by example if they want others to

respect the law.

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In any country there are lower courts and higher courts. Whenever a person is not

satisfied by the decision in a lower court they have the right to appeal on the basis of

the improper application of the law or procedures. This system of checks and balances is

a healthy scenario to have and it actually rids the justice system of corruptibility and

inefficiency.

For a justice system to run smoothly it must be free of government influence. There will

always be situations where government officials get trapped in legal battles that

threaten their political careers. As expected these officials do almost everything in their

power to make sure that they remain free and out of prison. To avoid this, guardians of

the law must be independent of government influence and separatist.

Lastly, before anything gains precedence over the law there must be accountability. If

any judge; prosecutor or policeman does anything wrong he should come out in the

open and confess. This accountability raises the people's confidence in the law.5

5 http://EzineArticles.com/3393942 Retrieved 18 July 2013

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Topic 1.3: Law and Society

As propounded by Thomas Hobbes, thus there is a symbiotic and reciprocal relationship

between law and society. Indeed, there can be no law where there is no society just like

there can be no society where there is no law because mankind is by nature a savage,

monster and abyss capable of eliminating its own existence. This is evidenced in the

classic Greco-Roman social maxim by Cicero: “Ubi societas, ibi ius” translating that

“where there is a society, there is law” and vice-versa. This topic discusses the law and

its impact in social change with emphasis on the complexity and interrelationship of

legal, social, and ethical issues in the context of society. In short, there can be no society

where there is no law just like there can be no law where there is no society.

Law as a set of legal rules, regulations, norms and practices is a code aimed at regulating

the interactions of persons in a particular society for the ultimate purpose of

maintaining social order. As function of law in any given society is to regulates the

interactions of the persons (whether people/humans or fictitious bodies). As for its

purpose in any given society, the law is about maintaining social order. In simple terms,

the law is relevant in society to advance the aspirations of the people in the particular

society in which it operates by identifying the mischiefs therein and eliminating them

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(mischiefs) so that there is social order in that particular society. This is more so with

respect to social change.

Correlation between Law and Social Change

The correlation between law and social change in any given society is in twofold and

may be either direct or indirect. First, law plays an important indirect role in regard to

social change by shaping have a direct impact on society. A good example hereon would

be a law to introduce a compulsory educational system in a society where education had

been optional. Second, law interacts in many cases indirectly with basic social

institutions in a manner constituting a direct relationship between law and social

change. For example, a law designed to prohibit polygamy in a society that is potentially

polygamous. See the case of Chitambala v The Queen.6

Law also acts as an agent of modernization and social change. It is also an indicator of

the nature of societal complexity and its attendant problems of integration. Further, the

law reinforces of our beliefs and convictions as a people in a particular society by

entrenching as sacrosanct those beliefs; and outlawing breach thereof.

6 [1961] R & N 166

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Lastly, law is an effective medium or agency, instrumental in bringing about social

change in any given society as it legislates for the envisaged social change thus

preparing the legal environment in which that particular change will be legally

accepted. Therefore, we rejuvenate our belief that law has been pivotal in introducing

changes in the societal structure and relationships and will continue to do so.7

Topic 1.4: Adjudication and Alternative Dispute Resolution

In any given society, disputes that arise from the interactions of persons in that

particular society may be resolved through either a court-based litigation or ex-curia

settlements through alternative dispute resolution techniques.

Activity 1.1 With reference to the Zambian society, critically discuss the meaning and efficacy of ubi jus, ibis societa.

Adjudication

Adjudication is the legal process of resolving a dispute by a court of law; and is

synonymous to litigation. It involves the judicial procedure/ litigation of a matter by an

Adjudicator hearing the arguments and submission from both parties to a dispute,

calling witnesses to testify, adducing evidence and displaying of exhibits before studying

the law governing the case; and finally settling of the dispute by formal giving or

pronouncing of a Judgment or Ruling as the case maybe. In simple terms, adjudication

7 http://faizlawjournal.blogspot.com/2008/01/law-and-society.html Retrieved 14 July 2013

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refers to the final judgment or pronouncement by a court of law in a case that will

determine the course of action taken in reference to the issue presented.8

Alternative Dispute Resolution

Otherwise popularly known as DRR, Alternative Dispute Resolution [techniques] are

procedures for settling disputes by means other than litigation. Examples include

Arbitration; Mediation; and Mini trials. The term alternative dispute resolution includes

a wide range of processes, many with little in common except that each is an alternative

to full-blown litigation. Litigants, lawyers, and judges are constantly adapting existing

ADR processes or devising new ones to meet the unique needs of their legal disputes. As

such, the definition of alternative dispute resolution is constantly expanding to include

new techniques.9

Types of ADR Techniques

First is Mediation. Mediation, also known as conciliation, is the fastest growing ADR

method. Unlike litigation, mediation provides a forum in which parties can resolve their

own disputes, with the help of a neutral third party. Mediation depends upon the

commitment of the disputants to solve their own problems. The mediator, also known

8 http://www.investopedia.com/terms/a/adjudication.asp Retrieved 16 July 2013

9 http://legal-dictionary.thefreedictionary.com/alternative+dispute+resolution Retrieved 16 July 2013

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as a facilitator, never imposes a decision upon the parties. Rather, the mediator's job is to

keep the parties talking and to help move them through the more difficult points of

contention. To do this, the mediator typically takes the parties through five stages.

Second is Arbitration. Arbitration more closely resembles traditional litigation in that a

neutral third party hears the disputants' arguments and imposes a final and binding

decision that is enforceable by the courts. The difference is that in arbitration, the

disputants generally agreed to the procedure before the dispute arose; the disputants

mutually decide who will hear their case; and the proceedings are typically less formal

than in a court of law. One extremely important difference is that, unlike court

decisions, arbitration offers almost no effective appeal process. Thus, when an

arbitration decision is issued, the case is ended.

Final and binding arbitration has long been used in labour-management disputes. For

decades, unions and employers have found it mutually advantageous to have a

knowledgeable arbitrator, whom they have chosen, resolve their disputes in this

cheaper and faster fashion. One primary advantage for both sides has been that taking

disputes to arbitration has kept everyone working by providing an alternative to strikes

and lockouts and has kept everyone out of the courts. Given this very successful track

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record, the commercial world has become enthusiastic about arbitration for other types

of disputes as well. Nowadays a new form of arbitration, known as court-annexed

arbitration has emerged.

Activity 1.2 Briefly explain what is legally meant by court-annexed arbitration?

Third is Minitrials. The minitrial, a development in ADR, is finding its greatest use in

resolving large-scale disputes involving complex questions of mixed law and fact, such

as Product Liability, massive construction, and antitrust cases. In a mini-trial, each party

presents its case as in a regular trial, but with the notable difference that the case is

“tried” by the parties themselves, and the presentations are dramatically abbreviated.

In a minitrial, lawyers and experts present a condensed version of the case to top

management of both parties. Often, a neutral adviser, sometimes an expert in the subject

area, sits with management and conducts the hearing. After these presentations, top

management representatives, by now more aware of the strengths and weaknesses of

each side, try to negotiate a resolution of the problem. If they are unable to do so, they

often ask for the neutral adviser's best guess as to the probable outcome of the case-

thereafter negotiations are resumed.

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The key to the success of this approach is the presence of both sides' top officials and the

exchange of information that takes place during the minitrial. Too often, pre-litigation

work has insulated top management from the true strengths and weaknesses of their

cases. Mini-trial presentations allow them to see the dispute as it would appear to an

outsider and set the stage for a cooperative settlement.

Advantages of ADR Techniques

The key advantages of such procedures are that they are usually less costly, user

friendly, less complicated, less tedious and relatively expeditious compare to litigation.

Activity 1.3 Write a legal brief on the key difference(s) between a Court Ruling and a Court Judgement.

Well done, you have completed this unit but the scales of justice are yet to tilt in your favour. Attempt the Revision Questions below NOW!!!

Revision Questions (1) Briefly explain the difference between adjudication and ex-curia settlements.

(2) List at least two essential characteristics of a good legal system.

(3) Discuss the concept of law.

(4) Trace the historical development of the law.

(5) Of what relevancy is the law if it does not advance the aspirations of the people in its society?

The Gavel is down; you are now cleared to proceed to the next unit.

Congratulations!!!

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Unit 2: World Legal Systems/Jurisdictions 2.0 Unit Overview and Expected Outcomes

This unit attempts to familiarise you with the major legal systems of the world. It

explores their history and espouses their respective characteristics and merits. At the

end of this Unit, you should be able to identify the said legal systems and ascertain to

which legal system Zambia subscribe.

Activity 2.1 What is a legal system and how does it differ from a jurisdiction.

Topic 2.0: Introduction

The Zambian legal system is based primarily on the English common law tradition.

Zambia is overly reliant on the colonial legal system (many of the government’s

inefficiencies can be traced to its decision to adhere to a system that is ill-fitted for post-

colonial rule). For instance, English law is used as a gap filler in all aspects of law from

procedure, to contract, to legislative acts. Moreover, the system is structured in the same

manner as it was during colonial rule and recognizes traditional customary law only if it

is not “repugnant” to “civilized” ideas of justice. Further still, judges and lawyers

continue to wear the antiquated dress of judges in the 19th century, especially

complicated robes and white-haired wigs, while these customs have been phased out in

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most of the rest of the world, including England where they originated.

Like the American and South African legal systems (which were heavily influenced by

the British tradition), Zambia has a hybrid common law system with a legal authority

hierarchy as follows: 1) constitutional law 2) statutory law 3) common law 4) customary

law and 5) authoritative texts (which are merely persuasive and not binding).

The Zambian Constitution is the highest law of the land and provides for, essentially,

the structure of government and the protection of the Zambian people’s rights. The

Constitution is broken into parts and articles. Article five provides for citizenship, while

articles 12 through 21 provide for the rights to life, personal liberty, a fair hearing,

freedom of conscience and religion, expression, assembly, and protections from slavery,

inhuman treatment, deprivation of property and freedom against arbitrary search;

respectively.

Parliament is the legislative body. It is responsible for promulgating acts that become

the law of Zambia upon printing in the law in the Zambian Gazette (See “Branches”

section). The government of Zambia publishes the Zambian Gazette, which contains all

relevant announcements and enactment or amendments of laws and regulations.

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Zambia also has a law report series known as the Zambia Law Reports (ZLR). These Law

reports organize common law by subject and are obtainable at the High Court. The

statutes of Zambia are available online and are listed by name. Supreme Court, High

Court, Industrial Relations Court, Land Tribunal, and Revenue Tribunal rulings are also

found online. The Zambian Law Journal, which is Zambia’s scholarly law journal, is

found at the school of Law in the University of Zambia.

Below, is an exploration of the most established world legal systems that have bearing

on the aforesaid Zambian legal system.

Topic 2.1: English Common Law System Another system of law took shape later in England. Before the 12th century AD, each

part of England had its own rules and customs. From the 12th century onward, England

became a single nation. The courts of the land made sure people followed a common set

of customs, today known as the English common law.10

Unlike the Roman system of law, the common law was never written down in one

place. Instead, the courts made decisions about the law based on earlier court decisions.

Those decisions are called precedents. Each case must be decided in the same way as

10 Microsoft Encarta (2006)

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earlier cases. But if a case has some new aspects, the decision made will set a new

precedent. That way, courts gradually change the law as society changes.

Topic 2.2: Civil Law System

Definition

Civil Law is “[A] body of rules that delineate private rights and remedies, and govern

disputes between individuals in such areas as contracts, property, and Family Law;

distinct from criminal or public law. Civil law systems, which trace their roots to

ancient Rome, are governed by doctrines developed and compiled by legal scholars.

Legislators and administrators in civil law countries use these doctrines to fashion a code

by which all legal controversies are decided.”11

Meaning of Civil Law System

Broadly, the term civil law has two meanings. One meaning of civil law refers to a legal

system prevalent in Europe that is based on written codes. Civil law in this sense is

contrasted with the common-law system used in England and most of the United States,

which relies on prior case law to resolve disputes rather than written codes. The second

meaning of civil law refers to the body of laws governing disputes between individuals,

11 http://legal-dictionary.thefreedictionary.com/civil+law Retrieved 7 July 2013

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as opposed to those governing offenses that are public and relate to the government-

that is, civil law as opposed to Criminal Law.

Historical Background

The civil law system is derived from the Roman Corpus Juris Civilus of Emperor

Justinian I. In modernity, it is largely attributable to the actions of Napoléon as

entrenched in the new French jurisdiction. Indeed, in France, the civil law is set forth

in the comprehensive French Civil Code of 1804, also known as the Code Napoléon.

France exported this legal system to the New World when it settled Louisiana in 1712.

When the French ceded Louisiana to Spain in 1762, the new Spanish governor replaced

French civil law with Spanish civil law. France regained control of the territory in 1803

and the United States purchased it a mere 20 days later. During that brief period of

French rule, the French prefect abolished all Spanish courts but did not reintroduce

French law. Hence, the new U.S. governor of Louisiana, William Claiborne, took

control of a territory that lacked a legal system.

Distinction from Common Law System

A civil law system differs from a common-law system, which relies on prior decisions to

determine the outcome of a lawsuit. Most European and South American countries have

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a civil law system. England and most of the countries it dominated or colonized,

including Canada and the United States, have a common-law system. However, within

these countries, Louisiana, Quebec, and Puerto Rico exhibit the influence of French and

Spanish settlers in their use of civil law systems.

Under Civil Law system, judges, unlike their common-law counterparts, are not bound

by judicial precedent. Common-law judges adhere to the doctrine of Stare Decisis,

which mandates that the outcome of a lawsuit be governed by previous decisions in

similar cases. However, under the civil law doctrine of jurisprudence constante, or

settled Jurisprudence, judges are expected to follow a series of decisions that agree on

the interpretation of a code provision.12

Civil law systems differ from common-law systems in another important way: in a

common-law jurisdiction, appellate courts, in most instances, may review only findings

of law. However, civil law appellate courts may review findings of fact as well as

12 Ibid

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findings of law.13 This allows an appellate court to declare a lower court’s decision

erroneous, impose its own findings of fact.14

Topic 2.3: American Legal System

The system of law in the United States is a mixture of the statutory and common law

systems. The U.S. Congress and state legislatures pass many statutory laws. But the

common law remains important, too. American courts continue to make many legal

decisions by precedent.15

Topic 2.4: Islamic Legal Order (Sharia Law)

Definition and Meaning

Shariah is the moral code and religious law of Islam.16 It deals with many topics

addressed by secular law, including crime, politics and economics, as well as personal

matters such as sexual intercourse, hygiene, diet, prayer, and fasting. Though

interpretations of Shariah vary between cultures, in its strictest definition it is

considered the infallible law of God- as opposed to the human interpretation of the

laws. 13 Rogowski, R., Civil Law (1996), New York Univ. Press, New York, p 6

14 Ibid

15 Microsoft, op cit

16 http://en.wikipedia.org/wiki/Sharia Retrieved 5 July 2013

30] L100 Legal Process: Learner’s Module

Sources of Shariah Law

There are two primary sources of sharia law: the precepts set forth in the Quran, and

the example set by the Islamic prophet Muhammad in the Sunnah. Where it has official

status, sharia is interpreted by Islamic judges (qadis) with varying responsibilities for the

religious leaders (imams). For questions not directly addressed in the primary sources,

the application of sharia is extended through consensus of the religious scholars (ulama)

thought to embody the consensus of the Muslim Community (ijma).

Islamic jurisprudence sometimes also incorporates analogies from the Quran and

Sunnah through qiyas, though Shia jurists prefer reasoning (“aql) to analogy. The

introduction of sharia is a longstanding goal for Islamist movements globally, including

in Western countries, but attempts to impose sharia have been accompanied by

controversy, violence, and even warfare such as the Second Sudanese Civil War. Some

in Israel and other countries in Asia have maintained institutional recognition of sharia,

and use it to adjudicate their personal and community affairs. In Britain, the Muslim

Arbitration Tribunal makes use of sharia family law to settle disputes.

The concept of justice embodied in sharia is different from that of secular law. In Islam,

the laws that govern human affairs are just one facet of a universal set of laws governing

31] L100 Legal Process: Learner’s Module

nature itself. Violations of Islamic law are offenses against God and nature, including

one's own human nature. Whatever crime is committed, whatever punishment is

prescribed for that crime in this world, one must ultimately answer to God on the Day

of Judgement.17

In secular jurisprudence, sharia is classified as religious law, which is one of the three

major categories that individual legal systems generally fall under, alongside civil law

and common law.

History of Shariah Law

The origin of sharia is the Qur'an, believed by Muslims to be the word of God, and

traditions gathered from the life of the Islamic Prophet Muhammad (born ca. 570 CE in

Mecca). Sharia underwent fundamental development, beginning with the reigns of

caliphs Abu Bakr (632–34) and Umar (634–44), during which time many questions were

brought to the attention of Muhammad's closest comrades for consultation. During the

reign of Muawiya b. Abu Sufyan ibn Harb, ca. 662 CE, Islam undertook an urban

transformation, raising questions not originally covered by Islamic law. Since then,

17 http://en.wikipedia.org/wiki/Sharia#cite_note-23 Retrieved 13 July 2013

32] L100 Legal Process: Learner’s Module

changes in Islamic society have played an on-going role in developing sharia, which

branches out into fiqh and Qanun respectively.18

The formative period of fiqh stretches back to the time of the early Muslim

communities. In this period, jurists were more concerned with pragmatic issues of

authority and teaching than with theory. Progress in theory happened with the coming

of the early Muslim jurist Muhammad ibn Idris ash-Shafi'i (767–820), who laid down

the basic principles of Islamic jurisprudence in his book Al-Risala. The book details the

four roots of law (Quran, Sunnah, ijma, and qiyas) while specifying that the primary

Islamic texts (the Quran and the hadith) be understood according to objective rules of

interpretation derived from careful study of the Arabic language.

A number of important legal concepts and institutions were developed by Islamic jurists

during the classical period of Islam, known as the Islamic Golden Age, dated from the

7th to 13th centuries.19 Among some Muslims, tribal laws were adapted to conform to

sharia “for they could not form part of the tribal law unless and until they were

generally accepted as such.” Additionally, Noel James Coulson, Lecturer in Islamic law

18 Ibid

19 http://en.wikipedia.org/wiki/Sharia Retrieved 8 July 2013

33] L100 Legal Process: Learner’s Module

of the University of London, states that “to the tribe as a whole belonged the power to

determine the standards by which its members should live. But here the tribe is

conceived not merely as the group of its present representatives but as a historical entity

embracing past, present, and future generations.”20 So, while “each and every law must

be rooted in either the Qur'an or the Sunnah,”21 without contradiction, tribal life

brought about a sense of participation. Such participation was further reinforced by

Muhammad who stated, “My community will never agree in error.”22

The Umayyads initiated the office of appointing qadis, or Islamic judges. The

jurisdiction of the qadi extended only to Muslims, while non-Muslim populations

retained their own legal institutions. The qadis were usually pious specialists in Islam.

As these grew in number, they began to theorize and systemize Islamic jurisprudence.

The Abbasid made the institution of qadi independent from the government, but this

separation wasn't always respected.

Both the Umayyad caliph Umar II and the Abbasids had agreed that the caliph could not

legislate contrary to the Qur'an or the Sunnah. Imam Shafi'i declared: “a tradition from

20 Coulson, N. J., A History of Islamic law (Islamic surveys) (1964), University Press, Oxford, p 1

21 http://en.wikipedia.org/wiki/Sharia#cite_note-Berg.2C_Herbert_2005-32 Retrieved 14 July 2013

22 Berg, H., “Islamic Law” in Berkshire Encyclopedia of World History 3 (2005): 1030.

34] L100 Legal Process: Learner’s Module

the Prophet must be accepted as soon as it becomes known….If there has been an action

on the part of a caliph, and a tradition from the Prophet to the contrary becomes known

later, that action must be discarded in favour of the tradition from the Prophet.”23 Thus,

under the Abbasids the main features of sharia were definitively established and sharia

was recognized as the law of behaviour for Muslims.

During the 19th century, the history of Islamic law took a sharp turn due to new

challenges the Muslim world faced: the West had risen to a global power and colonized

a large part of the world, including Muslim territories. In the Western world, societies

changed from the agricultural to the industrial stage, new social and political ideas

emerged, and social models slowly shifted from hierarchical towards egalitarian. The

Ottoman Empire and the rest of the Muslim world were in decline, and calls for reform

became louder.

In Muslim countries, codified state law started replacing the role of scholarly legal

opinion. Western countries sometimes inspired, sometimes pressured, and sometimes

forced Muslim states to change their laws. Secularist movements pushed for laws

deviating from the opinions of the Islamic legal scholars. Islamic legal scholarship

23 http://en.wikipedia.org/wiki/Sharia#cite_note-Khadduri60-36 Retrieved 9 July 2013

35] L100 Legal Process: Learner’s Module

remained the sole authority for guidance in matters of rituals, worship, and spirituality,

while they lost authority to the state in other areas.

The Muslim community became divided into groups reacting differently to the change:

secularists believe that the law of the state should be based on secular principles, not on

Islamic legal doctrines; traditionalists believe that the law of the state should be based

on the traditional legal schools;24 reformers believe that new Islamic legal theories can

produce modernized Islamic law and lead to acceptable opinions in areas such as

women’s rights. This division persists until the present day.25 There has been a growing

religious revival in Islam, beginning in the eighteenth century and continuing today.

This movement has expressed itself in various forms ranging from wars to efforts

towards improving education.26

Sources of Sharia Law There are two sources of Sharia (understood as the divine law): the Qur’an and Sunnah.

The Qur’an is viewed as the unalterable word of God. Much of the Qur'an exhorts

24 http://en.wikipedia.org/wiki/Sharia#cite_note-Khadduri60-36 Retrieved 8 July 2013

25 Ibid

26 Lapidus, I., The Cambridge Illustrated History of the Islamic World (1996) Cambridge University Press, Cambridge, p.

292

36] L100 Legal Process: Learner’s Module

Muslims to general moral values; only 80 verses of the Qur’an contain legal

prescriptions. The Sunnah is the life and example of the Islamic prophet Muhammad.

The Sunnah's importance as a source of Shariah is confirmed by several verses of the

Qur’an. The Sunnah is primarily contained in the hadith or reports of Muhammad's

sayings, his actions, his tacit approval of actions and his demeanour. While there is only

one Qur’an, there are many compilations of hadith, with the most authentic ones

forming during the sahih period (850 to 915 CE). The six acclaimed Sunni collections

were compiled by (in order of decreasing importance) Muhammad al-Bukhari, Muslim

ibn al-Hajjaj, Abu Dawood, Tirmidhi, Al-Nasa’i, Ibn Majah. The collections by al-

Bukhari and Muslim, regarded the most authentic, contain about 7,000 and 12,000

hadiths respectively (although the majority of entries are repetitions). The hadiths have

been evaluated on authenticity, usually by determining the reliability of the narrators

that transmitted them.

The process of interpreting the two primary sources of Islamic law is called fiqh

(literally meaning “intelligence”) or Islamic jurisprudence. While the above two sources

are regarded as infallible, the fiqh standards may change in different contexts. Fiqh

37] L100 Legal Process: Learner’s Module

covers all aspects of law, including religious, civil, political, constitutional and

procedural law. Fiqh depends on 4 sources:27

1. Interpretations of the Qur'an

2. Interpretations of the Sunnah

3. Ijma, consensus amongst scholars (“collective reasoning”)

4. Qiyas/Ijtihad analogical deduction (“individual reasoning”)

Although there are many different interpretations of Sharia, and differing perspectives

on each interpretation, there is consensus among Muslims that sharia is a reflection of

God’s will for humankind. Sharia must therefore be, in its purest sense, perfect and

unchanging. The evolution or refinement of sharia is an effort to reflect God's will more

perfectly.

Parallels with Western Legal Systems

Similarities and influences on English legal institutions have led some scholars to

suggest that Islamic law may have laid the foundations for “the common law as an

integrated whole.”28

27 http://en.wikipedia.org/wiki/Sharia#cite_note-R57-58 Retrieved 18 July 2013

28 Ibid

38] L100 Legal Process: Learner’s Module

Hawala, an early informal value transfer system, later influenced the development of

the Aval in French civil law and the Avallo in Italian law. The “European commenda”

limited partnerships (Islamic Qirad) used in civil law as well as the civil law conception

of res judicata may also have origins in Islamic law.

Islamic law also made “major contributions” to international admiralty law, departing

from the previous Roman and Byzantine maritime laws in several ways. The “Islamic

influence on the development of an international law of the sea” can thus be discerned

alongside that of the Roman influence.

After students completed their post-graduate education, they were awarded doctorates

giving them the status of faqih (meaning “master of law”), mufti (meaning “professor of

legal opinions”) and mudarris (meaning “teacher”), which were later translated into

Latin as magister, professor and doctor respectively. Shariah classically recognizes only

natural persons, and never developed the concept of a legal person, or corporation, i.e., a

legal entity that limits the liabilities of its managers, shareholders, and employees; exists

beyond the lifetimes of its founders; and that can own assets, sign contracts, and appear

in court through representatives. Interest prohibitions, also imposed secondary costs by

discouraging record keeping, and delaying the introduction of modern accounting.

39] L100 Legal Process: Learner’s Module

Topic 2.5: Canon Law Jurisdiction

Definition

Canon law jurisdiction is a “Roman ecclesiastical law system”29 consisting of canon law

rules. It also refers to the law of the Church of England.30

Historical Development

The Canon law system was first codified in 1139 as body of writings to govern the

ecclesiastical scholars. As such, in the 1736 case of Middleton v Croft,31 the court held

that canon law does not bind the laity.32 In the olden days, Canon law outlawed the

questioning of religious precepts and beliefs. For instance, until 1677 heresy was a

capital offence of deliberate and overt denial of some accepted dogma of the church as

espoused in Nobel v Voysey33 as well as the Ecclesiastical Jurisdiction Measure.34

29 Curzon, L.B., Dictionary of Law (1997), Revised 4th ed, Pitman Publishing, London, at 51

30 Ibid

31 (1736) 2 Atk 690

32 The ordinary congregation or layperson followers

33 (1871) LR 3 PC 357

34 1963

40] L100 Legal Process: Learner’s Module

Topic 2.6: Roman Dutch Law

Roman-Dutch law is a legal system based on Roman law as applied in the Netherlands

in the 17th and 18th centuries. As such, it is a variety of the European continental civil

law or ius commune. While Roman-Dutch law ceased to be applied in the Netherlands

proper as early as the beginning of the 19th century, Roman-Dutch law is still applied

by the courts of South Africa and its neighbours Lesotho; Swaziland; Namibia;

Botswana; and Zimbabwe. It also had an impact on New York State.35

History of Roman Dutch Law

Roman law was not abandoned during the early middle Ages. Codified versions of

Roman law such as the Theodosian Code and excerpts of latter-day imperial enactments

Constitutiones were well known in the successor Germanic kingdoms and vital to

maintaining the commonplace principle of folk-right which applied pre-existing Roman

law to Romans and Germanic law to Germans. The Breviary of Alaric and the Lex

Gundobada Romana are two of the several mixed Roman-Germanic law codes that

incorporated much Roman legal material. However, because the fall of Rome preceded

35 Bielinski, S., “The Schout” in Rensselaerswijck: Conflict of Interests (1979) Colonial Albany Social History Project.

Retrieved 13 July 2013

41] L100 Legal Process: Learner’s Module

the drafting of Justinian’s Code, early Byzantine law was never influential in Western

Europe.

Interest in the doctrines of Byzantine lawyers came when, around the year 1070 AD,

copy of the Digest of Emperor Justinian I found its way into northern Italy. Scholars in

the emerging University of Bologna, who previously had access to only a limited portion

of Justinian's code, began a revival of interest in Roman law and began to teach law

based on these texts. Courts gradually started to apply Roman law, as taught in Bologna

and soon elsewhere, because the judges felt that the refined legal concepts of Roman

law were more apt to solve complex cases than customary law which had been in use

since the fall of the Western Roman Empire throughout western and central Europe.

This process, referred to as the reception of Roman law, took place in the Holy Roman

Empire and the Mediterranean, but was much slower to come to northern Europe.

Examples include Saxony, Northern France, the Low Countries and Scandinavia.

In the 15th century, the process reached the Netherlands. While Italian lawyers were

the first to contribute to the new jurisprudence based on the Roman texts, in the 16th

century, French doctrinal scholars were most influential. In the 17th and 18th century, it

42] L100 Legal Process: Learner’s Module

was the Dutch who were the most influential. Members of the “school of elegant

jurisprudence” included Hugo Grotius, Johannes Voet, Ulrich Huber and many others.

These scholars managed to merge Roman law with legal concepts taken from the

traditional Dutch customary law, especially of the province of Holland. The resulting

mixture was predominantly Roman, but it contained some features which were

characteristically Dutch.

The said mixture is known as Roman-Dutch law. The Dutch applied their legal system

in their colonies. In this way, the Dutch variety of the European civil law (or ius

commune) came to be applied in South Africa and Sri Lanka. In the Netherlands, the

history of Roman-Dutch law ended when, in 1809, the puppet state Kingdom of

Holland adopted the French Code civil, a different system but also ultimately based on

Roman law. However in the then Dutch colonies, French law was never introduced

during or after the Napoleonic era. As a result, the Roman-Dutch law managed to

survive to this day.

Topic 2.7: Customary Law

Zambia has a dual legal system propagated by statutory and customary law although

statutory law takes precedence over customary law the reality is that many people live

43] L100 Legal Process: Learner’s Module

in rural. As espoused in Chibwe v Chibwe,36 customary law in Zambia is recognized by

the Constitution provided its application is not repugnant to any written law.

Customary law is administered by the Local Courts though the High Court may seize

jurisdiction thereon. In the case of Nkhoma v Nkhoma37 it was held that a Local Court

shall administer African customary law.

Well done, you have completed this unit but the scales of justice are yet to

tilt in your favour. Attempt the Revision Questions below NOW!!!

Revision Questions

(1) Critically explain the major legal systems of the world.

(2) In an event that there was conflict between statutory and conflict customary law, which one should prevail.

(3) What are the major characteristics of canon law?

(4) What is the philosophy underlying Shariah law as a legal order?

(5) Discuss the fundamental differences between common and civil.

The gavel is down; you are now cleared to proceed to the next unit.

Congratulations!!!

36 SCZ Judgment No. 38 of 2000

37 (HC) [2004] ZMHC 1 (7 March 2004)

44] L100 Legal Process: Learner’s Module

Unit 3: Historical Development of the

English Legal System 3.0 Unit Overview and Expected Outcome

The main objective of this Unit is to introduce you to the historical development of the

English legal system and the legal profession. After studying this Unit, you should be

able to explain the various stages that the English legal system has gone through and

how the legal profession has evolved over the years. You should also be able to

demonstrate understanding of how the English legal system has influenced the Zambian

legal system.

Introduction

Zambia is a former colony of Britain; by virtue of which the English legal system has

overwhelming influence on the Zambian legal system. As a result, the precepts and

tenets of the English legal system have been imported into the Zambian jurisdiction.

Topic 3.1: The Norman Conquest

The Norman conquest of England was the 11th century invasion and occupation of

England by an army of Norman, Breton and French soldiers led by Duke William II of

Normandy, later William the Conqueror. William, who defeated the Anglo-Saxon King

Harold II of England at the Battle of Hastings on 14 October 1066, was crowned king in

45] L100 Legal Process: Learner’s Module

London on Christmas Day 1066. He then consolidated his control and settled many of

his followers in England, introducing many governmental and societal changes.

William’s claim to the English throne derived from his familial relationship with the

childless King Edward the Confessor, who may have encouraged William's hopes for the

throne. When Edward died in January 1066, he was succeeded by his brother-in-law

Harold, who faced challenges from William and another claim by the Norwegian king,

Harold Hardrada.

Hardrada invaded northern England in September 1066 and was victorious at the Battle

of Fulford before being defeated and killed by King Harold at the Battle of Stamford

Bridge on 25 September 1066. Within days of that battle William landed in southern

England and Harold quickly marched south to confront him, leaving many of his forces

behind in the north. On 14 October Harold's army confronted William's invaders near

Hastings. After an all-day battle, Harold's army was defeated and he was killed.

Although William’s main rivals were gone, he still faced rebellions over the following

years, and he was not secure on his throne until after 1072. The English elite who

resisted had their lands confiscated and some fled into exile. To control his new

46] L100 Legal Process: Learner’s Module

kingdom, William gave lands to his followers and built castles throughout the land to

command military strongpoints.

Other effects of the conquest included the introduction of Norman French as the

language of the noble elite, the court and government, and changes in the composition

of the upper classes, as William enforced lands to be held directly from the king.38 More

gradual changes affected the agricultural classes and village life: the main immediate

change appears to have been the formal elimination of slavery, which may or may not

have been linked to the invasion. There was little alteration in the structure of

government, as the new Norman administrators took over many of the forms of Anglo-

Saxon government.39

Topic 3.2: Reception of English Law

English Law is applicable to Zambia by virtue of the English Law (Extent of

Application) Act.40 Section 2 thereof provides that common law, doctrines of equity and

statutes that were in force in England on 17 August 1911 are applicable to Zambia. This

reception provision entails that all laws that were in force in England as at 17 August

38 https://en.wikipedia.org/wiki/Norman_conquest_of_England Retrieved 13 July 2013

39 Ibid

40 Cap 11 of the Laws of Zambia

47] L100 Legal Process: Learner’s Module

1911 were imported into our jurisdiction. 17 August 1911 is the cut-off date when the

laws in England seized to be applicable here because the Northern Rhodesia Order in

Council commenced. The Northern Rhodesia Order in Council became the new legal

regime replacing the further importation of laws enacted after the cut-off date. This

does not, however, mean that all laws in England before the cut-off date were imported

into our jurisdiction. It is only those laws that were actually valid and in force as at the

cut-off date. Those laws that had ceased to have force in the UK as at the cut-off date

were not part of the imports.

Topic 3.3: Evolution of the Zambian Judiciary The judicial system is based on English common law and customary law. Common law

is administered by several High Courts, which have authority to hear criminal and civil

cases and appeals from lower courts. Resident magistrate's courts are also established at

various centres. Local courts mainly administer customary law, especially cases relating

to marriage, property, and inheritance.

Under the Constitution of 1996, the Supreme Court is the highest court in Zambia and

serves as the final court of appeal. The chief justice and other eight judges are appointed

by the President. In consultation with the prime minister, the president also appoints

48] L100 Legal Process: Learner’s Module

the director of public prosecution and the attorney general, the latter being the

principal legal adviser to the government.

Activity 3.1 Trace the historical development of the Zambian judiciary.

Topic 3.4: Zambian Courts and English Stare Decisis

One of the major features of the Common Law is that the court is required to follow

precedence. Very simply speaking, past court decisions can be binding law. Each time a

current dispute or charge reaches the court and there is a judgment, the judgment is

required to be based on past court decisions/opinions (as long as the old and new cases

have facts that are similar enough). By contrast, in Civil Law systems the courts do not

have to follow prior decisions.

Since a major feature of the Common Law system is to follow prior court decisions, legal

systems of countries that gained independence from the British Empire, Zambia

inclusive, still occasionally cite and follow British court decisions as persuasive law. In

Zambia, today, courts still cite and rely on British reasoning in certain decision. The

following or emulation of the reasoning in a past decision is referred to as Stare decisis.41

41 http://www.nationsencyclopedia.com/Africa/Zambia-JUDICIAL-SYSTEM.html#ixzz2ZNixbyo4 Retrieved 17 July 2013

49] L100 Legal Process: Learner’s Module

Topic 3.6: Received Law vs. Indigenous Law

Zambia is a former British colony, and as with many countries that are former British

colonies, its legal system is an inheritance and continuation of the English common law

(one of the two legal systems that trace back to ancient western civilization; the other

being Civil Law). All Common Law countries share a fundamentally similar legal

system.

These countries include the United States, Hong Kong, Bangladesh, Australia, Pakistan,

Canada (except for one province), and others. One common thread in all these countries

is that there is need to balance the relationship between the received foreign law and

the indigenous law. In Zambia, both municipal statutory law and domestic Case law

take precedence over English law unless there is a lacuna (gap) in the law.

Activity 3.2 Read the case of Lewanika & Others v. Chiluba (1998) ZR 89 and write a one-page brief on the impact of Zambia’s legal history on citizenship.

Well done, you have completed this unit but the scales of justice are yet to

tilt in your favour. Attempt the Revision Questions below NOW!!!

50] L100 Legal Process: Learner’s Module

Revision Questions

(1) Do you subscribe to the view that Zambian statute and case laws are proper indigenous laws?

(2) Briefly discuss the pertinent differences between received laws and indigenous law in terms of application.

(3) With hypothetical examples, write a legal brief on stare decisis.

(4) Trace the history the Zambia legislature and its impact on the Judiciary.

(5) Why is the English legal system important in the administration of justice in Zambia?

Gavel is down; you are now cleared to proceed to the next unit.

Congratulations!!!

51] L100 Legal Process: Learner’s Module

Unit 4: Sources of Law 4.0 Unit Overview and Expected Outcomes

This unit deals with the various sources of law applicable to Zambia. At the end of the

Unit you are expected to demonstrate understanding of the various sources and their

respective nature; whether binding or persuasive sources; primary or secondary sources.

Topic 4.0: Introduction

Sources of law are the springs or fountains from which we may draw legal authority in

dealing with legal disputes. Sources may be classified into two broad categories by virtue

of effect. That is to say, first, some sources are binding sources thus mandatory to

consult them when dealing with a legal issue. Second, some sources are merely

persuasive thus it is optional to consult them when dealing with a legal dispute.

The other approach categorisation is whether the source of law is a primary source or

secondary source. Primary sources have a binding effect thus mandatory whereas

secondary sources are merely persuasive thus optional to consult.

Topic 4.1: The Constitution

The Constitution is the supreme law of the land and the highest source of law. It is a

Like most other branches of law in Zambia, the Constitution Act42 is the major source of

42 Cap 1 of the Laws of Zambia

52] L100 Legal Process: Learner’s Module

legal process law. It is the primary instrument of law by which all other laws must be

tested for legal validity and legitimacy. Article 1(3) of the Constitution Act43 states that

the Constitution is the supreme law of the land and any other law; whether written or

unwritten law must be consistent with the Constitution. Otherwise, such a law shall be

null and void to the extent of its inconsistency.

Activity 4.1 Collect the above mentioned statutes including the Constitution. Get your markers or highlighters ready. Peruse through the said statutes and highlight or mark at least 3 pertinent provisions in each one of them covering the topic of sources of law. Note that these provisions could be explicit or implied.

Topic 4.2: Acts of Parliament/Statutes

After the Constitution, Acts of Parliament or Statutes are the major sources of law in

Zambia. They have a binding effect on all subjects of the jurisdiction by virtue of being

municipal or domestic law. The making (enactment) of these laws is a preserve of

Parliament; which is the National Assembly (the Speaker of the National Assembly and

Members of Parliament) acting together with the Republican President.

43 Ibid

53] L100 Legal Process: Learner’s Module

Activity 4.2 Differentiate Municipal Law from International Law with respect to their binding and/or persuasive effect in the Zambian jurisdiction.

Topic 4.3: Subsidiary Legislation

Subsidiary legislation is delegated legislation that Parliament or a specific

provision of a particular Statute delegates to a different body, institution, or

experts to legislate on. It is normally an addition or supplement to an already

enacted substantive statute. Examples of subsidiary legislation include, inter

alia, Statutory Instruments (SIs); By Laws; Rules and Regulations; Standing

Orders; and Government Circulars.

Statutory Instruments

Statutory instruments are laws made, usually, by a Minister in charge of a

particular Government Ministry or Department. It is normally restricted to

specific issues or matters pertaining to that respective Ministry. For example,

the Minister in charge of industrial and labour relations has time and again

issued SIs to revise the minimum wages and conditions of service for

employees.

The advantages of this type of legislation are that the process of issuance by

one Minister is faster than the process of enactment by all Members of

54] L100 Legal Process: Learner’s Module

Parliament. Second, there is a special touch of expertise as the Minister is

more conversant with the issue at hand and is likely to work with

technocrats in issuing the SI.

By Laws

By Laws are laws made by local authorities (councils) to regulate affairs in their specific

localities. As provided for under the Local Government Act,44 one of the fundament

functions of local authorities is to pass laws for maintenance of social order in their

respective domains of jurisdictions. Local authorities are under obligation to ensure that

they pass By Laws that are reasonable and in conformity with other existing written

laws as was espoused in William Kasonso v Ndola City Council.45

Rules and Regulations

Rules and Regulations are delegated laws made by specialised organs of the

Governemnet as per Parliamentary delegation. They normally deal with procedural

matters of how to enforce the substantive provisions of an Act after enactment by

Parliament. For example, Section 41 of the Anti- Gender Based Violence Act46 vests

44 Cap 281 of the Laws of Zambia

45 SCZ Judgment No. 13 of 1997

46 No. 1 of 2011

55] L100 Legal Process: Learner’s Module

powers in the Chief Justice to formulate Rules and Regulations on how to enforce the

said Act with respect to litigation thereon.

Standing Orders Standing Orders are rules of engagement formulated by a group of persons to

govern their internal interactions as they conduct business to the exclusion

of others. In the case of Chikuta v Chipata Rural Council47 it was elucidated

that Standing Orders of a particular local authority govern only the

relationship among councillors of that particular local authority and not

outsiders; with the Minister in charge of Local Government held to be

amenable thereto as he is not an outsider. The case of Fred Mmembe and

Another v The People48 is also instructive hereon by implication and analogy.

Circulars With regards to Circulars, where there is no any other written law, Government policy

pronouncements and guidelines in form of circulars may resume the force of law and be

enforced as such. In such situations they may serve as a valid source of law. For

47 (1974) ZR 241

48 1996

56] L100 Legal Process: Learner’s Module

example, in the case of Wynter M. Kabimba v Lusaka City Council49 Government

Circular No. 2 of 1996 was given the equivalence of law in laying terms and conditions

for the sale of Government houses.

Topic 4.4: Judicial Decisions/Common Law

Judicial decisions are judgements handed down by the courts of law. Under the doctrine

of precedents, judicial decisions form part of plethora of sources of law in Zambia.

Domestic judicial decisions form part of the Zambian primary sources of law together

with the Constitution, statutes and regulations as held in Kasote v The People.50

Generally, trial courts determine the relevant facts of a dispute and apply law to these

facts, while appellate courts review trial court decisions to ensure the law was applied

correctly. As such, court opinions create legal precedents that guide judges in deciding

similar future cases. In this regard, judicial decisions of the highest court in a court

system (the Supreme Court) create mandatory and binding precedent that must be

followed by lower courts. Similarly, the High Court creates binding precedents for the

courts below it. In the same manner, the Subordinate Court’s judicial decisions become

binding sources of law on the Local Courts.

49 (1998) ZR 49

50 (1977) ZR 75

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Topic 4.5: Rules of Natural Justice; and Doctrines of Equity

Rules of natural justice and doctrines of equity are also a primary source of law in

Zambia.

Activity 4.1 Discuss the meaning and nature of both the rules of natural justice and doctrine of equity.

Topic 4.6: Customary Law

Customary law is applicable in Zambia as a source of law provided that customary law is

not contrary to any written law and is not repugnant to rules of natural justice, good

conscience and morals. In the case of Kaniki Buleti v Lot Jairus 51 it was enunciated that

the imposition of the rite of purification upon individuals against their volition was a

customary practice contrary to good conscience.

Topic 4.7: International Law

Zambia is signatory to many international instruments. Although the country is quick

to ratify, implementation is often slow or never materialises. Zambia belongs to the

dualist tradition, thus views international law and domestic law as two separate legal

systems. Hence domestication of international law by an Act of Parliament is necessary

before international law can be applied. This of course excludes customary international

51 (1967) ZR 71

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law which is binding on all states. The Attorney General is mandated by article 54(2) (b)

of the Constitution to draft and peruse treaties and agreements the government of

Zambia is party to.52

Topic 4.8: Legal Treatise A legal treatise is a scholarly legal publication containing all the law relating to a

particular area, such as criminal law or trusts and estates. There is no fixed usage on

what books qualify as a “legal treatise” with the term being used broadly to define books

written for practicing attorneys and judges, textbooks for law students, and explanatory

texts for laypersons. The treatise may generally be loose leaf bound with rings or posts

so that updates to laws covered by the treatise and annotated by the editor may be

added by the subscriber to the legal treatise.

Legal treatises are secondary authority, and can serve as a useful starting point for legal

research, particularly when the researcher lacks familiarity with a particular area of law.

Lawyers commonly use legal treatises in order to review the law and update their

knowledge of pertinent primary authority namely, case law, statutes, and administrative

regulations.

52 Magagula, S.A., The Law and Legal Research in Zambia Retrieved on 16 July 2013 from

http://www.nyulawglobal.org/globalex/zambia.htm#Sourcesoflaw

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In law schools, treatises are sometimes used as additional study materials, as treatises

often cover legal subjects at a higher level of detail than most casebooks do. Certain

treatises, called hornbooks, are used by American law students as supplements to

casebooks. Hornbooks are usually one volume- sometimes a briefer version of a longer,

multi-volume treatise written by a recognized legal scholar.53

Topic 4.9: Scholarly Works/Text Books

Authoritative texts will include any restatements of the law that may be found in

treatises or official restatements. Also included will be scholarly journals found in

Zambia and elsewhere. Zambia has a tradition of looking to more mature legal systems

for guidance on how to handle issues that come before the court for the first time. All of

these items are used when the other sources of law have proved unhelpful or

nonexistent. They hold little weight against common law, and especially against statutes

or the Constitution.54

53 http://en.wikipedia.org/wiki/Legal_treatise Retrieved 13 July 2013

54 http://www.neweconomia.com/zambia/zambiagovlegalsystem.html Retrieved on 16 July 2013

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Well done, you have completed this unit but the scales of justice are yet to

tilt in your favour. Attempt the Revision Questions below NOW!!!

4.5 Revision Questions

(1) Discuss at least five demerits of SI in comparisons with Acts.

(2) Compare and contrast legal treatise from scholarly writings as sources of law.

(3) What is the key difference between laws and sources of law?

(4) Can a written lecture module qualify as a source of law?

(5) With the aid of at least two decided Zambian cases, write a legal essay on judicial decisions as sources of law.

Gavel is down; you are now cleared to proceed to the next unit.

Congratulations!!!

61] L100 Legal Process: Learner’s Module

Unit 5: Institutional Framework in the

Administration of Justice 5.0 Unit Overview and Expected Outcomes

This unit aims at helping you to understand the institutional framework pertinent to the

administration of justice in Zambia. At the end of the Unit, you should be able to

identify key institutions in the administration of justice and demonstrate proper

understanding of their respective roles.

Introduction

As per the Constitutional provisions, the Judiciary is the fundamental wing of

Governemnet mandated with the task of administering justice. Other than the Judiciary,

there are other key stakeholder institutions contributing to the full dispensation of

justice- including Parliament which enacts the laws that the Judiciary enforce and the

legal profession comprising of legal practitioners who are officers of the Courts.

Activity 5.1

Discuss the relationship between Parliament and the Judiciary with respect to the administration of Justice.

Topic 5.1: The Judiciary The Zambian court system (Judiciary) consists of the Supreme Court; the High Court

(and Industrial Relations Court- IRC); Subordinate Magistrates’ Courts; Small Claims

Court; and Local Courts. Because the law administered by all except the local courts is

62] L100 Legal Process: Learner’s Module

based on English common law, decisions of the higher British courts are of persuasive

value; in fact, a few statutes of the British Parliament that were declared by ordinance

(decree) to apply to Zambia are in force so far as circumstances permit. Most of the laws

presently on the statute book, however, have been locally enacted by ordinance or,

since independence, by Zambian Acts.

The Supreme Court

By composition, the Supreme Court consists of the chief Justice and Supreme Court

Justices. In terms of jurisdiction, the Supreme Court is a court of appeals. As such, it

does not have original jurisdiction but appellate jurisdiction only. That is to say, no

matters can be originally commenced therein; except for Presidential election petitions

as per Article 41(2) (b) of the Constitution. The rest of the matters reach the Supreme

Court by way of appeals.

The High Court

The High Court consists of the Chief Justice (who is an ex-offio member) and High

Court Judges. In line with Section 9 of the High Court Act55 and entrenched in Article

94 (1) of the Constitution,56 the High Court has both original and unlimited jurisdiction

to hear and determine any matter- whether civil or criminal matters, except for matters

55 Cap 27 of the Laws of Zambia

56 Cap 1, op cit

63] L100 Legal Process: Learner’s Module

exclusively reserved for the IRC. That is to say, matters may be commenced therein and

it can also hear matters reaching it by way of appeals. On the authority of Zambia

Holdings Ltd & UNIP v Att. Gen,57 the unlimited jurisdiction of the High Court does not

mean that it has limitless powers.

Activity 5.2 Read the case of Brigadier General Godfrey Miyanda v Judge Mathew Chaila (1985) Z.R. 193 (H.C.) and write an elaborate essay on concept of functus officio as a protector of judicial independence.

The Industrial and Labour Relations Court

By ranking, the IRC is equal to the High Court and consists of the Chairperson and

Members of the IRC. It has exclusive jurisdiction to hear and determine matters related

to industrial and labour-related disputes as per the Industrial and Labour Relations

Act.58 By virtue of its past nature of being a tribunal and not a court, the IRC is not a

court of strict procedures. For example, in the case of Katwamba v Mulungushi Textiles

Ltd, it was held that the IRC aims at dispensing justice, thus not strictly bound by the

rigors and niceties of procedural rules.

57 (1994) ZR 22

58 Cap 269 of the laws of Zambia

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The Magistrates’ Subordinate Courts

The Magistrates Courts are composed of Magistrates of various classes of jurisdictions.

Their jurisdictions are limited to their respective geographical boundaries. The classes

are Magistrates Class III; Magistrates Class II and Magistrates Class I who are lay

Magistrates. They are not qualified lawyers admitted to practice law as Advocates of the

High Court. Professional Magistrates are those qualified to practice law as Advocates

and include Resident Magistrates; Senior Resident Magistrates; Principle Resident

Magistrates; and Chief Resident Magistrates.

Small Claims Court

There is a Small Claims Court established under the Small Claims Courts Act.59 The

objective of the Act is to provide for the establishment, of to be situated in areas to be

designated by the Chief Justice. The Small Claims Courts adopt arbitration as a mode of

resolving disputes. The choice of this mode of dispute resolution is questionable because

arbitration is typically adjudicative and is quite formal. Mediation would probably have

been a more apt mode of resolving disputes in the Small Claims Courts. The Small

Claims Court utilizes existing infrastructure such as school buildings, community halls

and several others. Because the existing mechanisms of resolving disputes in both rural

59 Cap 47 of the Laws of Zambia

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and urban areas are adopted and adapted to suit the needs of the poor, the small claims

court has proved effective.60

Local Courts

Local courts are governed by the Local Courts Act61 and employ the principles of

customary law, which vary widely throughout the country. Lawyers are barred from

participating in proceedings in such courts, and there are few formal rules of procedure.

Presiding magistrates, who usually are prominent local citizens, have substantial power

to invoke customary law, render judgments regarding marriages, divorces, inheritances,

other civil proceedings, and rule on minor criminal matters.62 Local Courts have

jurisdiction limited to their geographical boundaries- mostly in rural areas.

Activity 5.2 Read the Subordinate Courts Act and explain the jurisdictional limits of matters that each respective class of Magistrates may be seized with conduct thereof.

Tribunals

There is also a Land Tribunal and Revenues Appeals Tribunal that deal with very

specific and specialized disputes touching on land and tax; respectively.

60 http://www.nyulawglobal.org/globalex/zambia.htm#Sourcesoflaw Retrieved 16 July 2013

61 Cap 29 of the Laws of Zambia

62 http://jurist.law.pitt.edu/world/zambia.htm Retrieved 13 July 2013

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Topic 5.2: The Legal Profession

The legal profession is an important institution in the administration of justice in that it

empowers legal practitioners with astile flair and skills to meaningfully plead and act on

behalf of the suitors. Equally, the legal profession prepares and equips professional

adjudicators for the task of administering justice.

Topic 5.3: Other Key Institutional Stakeholders

There are a number of other key institutions playing the role of stakeholders in the

administration of justice and execution of judicial functions. They include the following

among other:

Government Printers

The government of Zambia publishes a gazette that contains all relevant

announcements and enactment or amendments of laws and regulations. It incorporates

various government decisions, and once they feature in the Gazette, government

decisions are deemed and laws and regulations are deemed to have been published and

validly promulgated.

Gazettes are used by both the government and ordinary citizens to convey information

to the public. The following are some of the normal uses of gazettes: issuance of Notices

to creditors and debtors in administration of estates; publication of amendments to

67] L100 Legal Process: Learner’s Module

existing laws, regulations and rules; publications of newly enacted laws, regulations and

rules; and publication of title deeds and deed of transfer in respect of property.

Law Association of Zambia

The Law Association of Zambia (LAZ) is a professional organization bringing together

more than 900 legal practitioners. The Association was founded in 1973 and brings

together all practicing members of the legal profession. Prior to this, the Association was

called the Law Society of Zambia. As in most other jurisdiction, LAZ regulates the legal

profession. Members of the association are Individual advocates practicing in Zambia as

full members; and laws students enrolled in various Universities as associate members.

Amongst others, LAZ seeks to further the development of law as an instrument of social

order and justice and as an essential element in the growth of society, to provide a

means by which lawyers, whatever their particular field of activity, can participate

together fully and effectively in the development of society and its institutions and To

encourage lawyers as individuals to join actively in the life of, and identify themselves

with people and to utilize their skills and training in their service.

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LAZ is a body corporate established by the Law Association of Zambia Act.63 Being a

body corporate, the Association can sue and be sued and is competent to enter into any

contractual obligation of its choice. The Association’s main policy-making body is the

Annual General Meeting, comprising all registered members of the Association, which

membership presently stands at five hundred. In between the Annual General Meetings

the Association elects an Executive, comprising the Chairperson, Vice-Chairperson,

Hon. Secretary, Hon. Treasurer and thirteen Council Members to run the day-to-day

affairs of the Association. The Association has various committees of duly appointed

Advocates responsible for various activities of the Association; and is the legal umbrella

of the National Legal Clinic for Women.

Activity 5.3

Discuss the role of the National Legal Clinic for Women in the administration of justice in Zambia

Law Reporting Council

Zambia has a law report series known as the Zambia Law Reports (ZLR) governed by

the Law Reporting Council. These Law reports are available online and they are

obtainable at the high court. The statutes of Zambia are available online and are listed

by name. Supreme Court, High Court, Industrial Relations Court, Land Tribunal,

63 Cap 31 of the Laws of Zambia

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Revenue Tribunal rulings are also found online. The ‘Zambian Law Journal’ is found at

the school of Law in the University of Zambia.

The ‘Laws of Zambia- Green Volume’ is a 1996 compilation of 26 Volumes containing

all the laws and the entire respective various Republican Constitutions since

independence. Volume 1 Contains the Index of the Laws of Zambia. The Laws are in

read only PDF format. Zambia law Reports can also be obtained at the University of

Pretoria. There is also ‘Zambia Law Reports Consolidated Index’ containing the

cumulative indexes of cases reported, cases referred to, legislation referred to, and

subject matter from 1963 to 1978 Published in 1984, Council of Law Reporting, and

High Court for Zambia (Lusaka, Zambia).

Legal Aid Board

The Legal Aid Act was enacted on 20th November 1967 to provide for legal aid in civil

and criminal matters and causes to persons whose means are inadequate to enable them

to engage practitioners to represent them. The Directorate of Legal Aid Board operated

as a department within the Ministry of Legal Affairs and consequently enjoyed limited

autonomy. However, by the Legal Aid (Amendment) Act the Legal Aid department was

transformed into a Legal Aid Board.

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By the Legal Aid (Amendment) Act of 2005, the Legal Aid Board was re-constituted as a

body corporate, with perpetual succession and legal capacity to sue and to be sued. Some

of the functions include: (a) Facilitation of the representation of persons granted legal

aid; (b) Assigning practitioners to persons granted legal aid under the Act; and (c)

Advise the Minister on policies relating to the provision of legal aid and implement

Government policies relating to the same.

The rigorous formalities surrounding the Legal Aid Board still make it difficult for the

ordinary person to easily approach the Board.

National Institute for Public Administration The National Institute for Public Administration (NIPA) is critical in the administration

of justice in Zambia. It is the institution responsible for training of Public Prosecutors

and lay Magistrates.

University Law Schools There are two public Universities in Zambia offering a Bachelor of Laws Degree (LLB)

namely; The University of Zambia; and the Copperbelt University. There are a number

of law schools in various private universities including the University of Africa among

others.

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Zambia Institute for Advanced Legal Education

The Zambia Institute for Advanced Legal Education (ZIALE) is the sole Bar School in

Zambia. All lawyers graduating from various Universities both locally and from abroad

have to be trained at ZIALE for possible admission to the Zambian Bar for them to

practice law as Advocates of the High Court for Zambia (AHCZ).

Zambia Legal Information Institute

The Zambia Legal Information Institute (ZamLII) was established by the Law School of

the University of Zambia in 1996, in partnership with Zamnet. It has received

important start-up assistance from the Legal Information Institute of Cornell Law

School. The Institute’s aim is to improve access to judgments, statutes and other legal

materials of the Republic of Zambia both within Zambia and elsewhere and to connect

lawyers, judges, academics, students and others within Zambia with the growing

collection of legal information available around the globe via the Internet.

ZamLII provides on-line research of Zambian and foreign legal information and general

information about Zambia. Its collection of legal information on Zambia includes the

Constitutional order, rules and selected decisions of the courts, selected Statues, legal

commentary, a legal directory and profile information about the University of Zambia,

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School of Law. ZamLII also provides links to foreign legal information in and outside of

Africa.

Activity 5.4 Write an essay on the contribution of the legal professional bodies to the effective functioning of the judiciary.

Well done, you have completed this unit but the scales of justice are yet to

tilt in your favour. Attempt the Revision Questions below NOW!!!

5.5 Revision Questions (1) Of what relevancy is the mandate of ZIALE to the dispensation of justice in Zambia?

(2) Explain the connection between the legal framework and the institutional framework pertaining to the growth of the Zambian legal system.

(3) How do the objectives of LAZ fit into the impartiality of the judiciary?

(4) Distinguish a court from a tribunal.

(5) Why is Judiciary the key institution in the administration of justice?

Gavel is down; you are now cleared to proceed to the next unit. Congratulations!!!

73] L100 Legal Process: Learner’s Module

Unit 6: Statutory Interpretation 6.0 Unit Overview and Expected Outcomes

This unit deals with the legal rules and techniques employed in interpreting statutes. At

the end of the Unit, you should be able to demonstrate understanding of the

relationship between case law and legislation in that case law gives life to legislation

after the courts have interpreted the same. After studying this Unit you should also be

able to distinguish canons of statutory construction from rules of ststutory

interpretation.

Introduction

Legalism is the excessive reliance on the formal, literal interpretation, rather than the

spirit, of the law.64 A good legal interpretation of statutes must take into account

relevant considerations and omit to take into account irrelevant considerations. Below

are the rules that should help in deciding which considerations are relevant and

irrelevant in the process of statutory interpretation.

Topic 6.1: Legislation and Case Law

Law may be in form of either legislation or case law. Legislation connotes the authority

which promulgated a written. It includes statutory law enacted by the legislature;

64 Curzon, op cit, p 224

74] L100 Legal Process: Learner’s Module

regulatory law, promulgated by the Executive branch agencies pursuant to delegation of

rule-making authority by the legislature. On the other hand, case law is common law

which is precedent-setting decisions issued by courts or by quasi-judicial tribunals

within agencies.

Classification of Case Law

Case law may be classified into two categories namely: (1) pure case law and; (2)

interstitial case law. Pure case law emanates from traditional and inherent authority of

courts to define the law, even in the absence of an underlying statute. Examples include

most pre-20th Century criminal law and procedural law, plus most modern contract law

and the law of torts. On the other hand, interstitial case law consists of court decisions

which analyse, interpret and determine the fine boundaries and distinctions in the law

that is promulgated by other bodies. This body of common law includes judicial

interpretation of the Constitution, legislative statutes, and/or agency regulations, and

involves the application of law to the specific facts of a matter.65

Topic 6.2: Rules of Statutory Interpretation

Statutory interpretation is the process by which courts interpret and apply legislation.

Some amount of interpretation is always necessary when a case involves a statute.

65 http://en.wikipedia.org/wiki/Common_law Retrieved 17 July 2013

75] L100 Legal Process: Learner’s Module

Sometimes the words of a statute have a plain and straightforward meaning. But in

many cases, there is some ambiguity or vagueness in the words of the statute that must

be resolved by the judge. To find the meanings of statutes, judges use various tools and

methods of statutory interpretation, including traditional canons of statutory

interpretation, legislative history, and purpose.66 In common law jurisdictions, the

judiciary may apply rules of statutory interpretation to legislation enacted by the

legislature or to delegated legislation such as administrative agency regulations. There

are a number of rules employed in statutory interpretation including the following,

inter alia.

6.2.1 Literal Rule

The literal rule of statutory interpretation should be the first rule applied by judges.

Under the literal rule, the words of the statute are given their natural or ordinary

meaning and applied without the judge seeking to put a gloss on the words or seek to

make sense of the statute.67 Examples of cases where the literal rule has been used

include R v Harris;68 Fisher v Bell;69 and Whitely v Chappel.70

66 https://en.wikipedia.org/wiki/Statutory_interpretation Retrieved 17 July 2013

67 http://www.e-lawresources.co.uk/Literal-rule.php Retrieved 15 July 2013

68 (1836) 7 C & P 446

69 [1961] 1 QB 394

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Advantages of the Literal Rule

This rule has about five key advantages namely that it:

i. Sticks to the possible ordinary meaning hence promoting clarity;

ii. Restricts the role of the judge;

iii. Provides no scope for judges to use their own opinions or prejudices;

iv. Recognises Parliament as the supreme law maker; and

v. Upholds the separation of powers.

6.2.2 Golden Rule

In law, the Golden rule, or British rule, is a form of statutory construction traditionally

applied by English courts. The other two are the “plain meaning rule” (also known as

the “literal rule”) and the “mischief rule.” The golden rule allows a judge to depart from

a word's normal meaning in order to avoid an absurd result.

The term “golden rule” seems to have originated in the 1854 case of Mattison v. Hart71

as per Chief Justice Jervis’ propounding and implies a degree of enthusiasm for this

particular rule of construction over alternative rules that has not been shared by all

subsequent judges. For example, Viscount Simon made a point of including this note in

70 (1868) LR 4 QB 147

71 [1854] 14 C.B. 357, at 385

77] L100 Legal Process: Learner’s Module

a 1940 decision: “The golden rule is that the words of a statute must prima facie be given

their ordinary meaning.”72

Like the plain meaning rule, the golden rule gives the words of a statute their plain,

ordinary meaning. However, when this may lead to an irrational result that is unlikely

to be the legislature's intention, the golden rule dictates that a judge can depart from

this meaning. In the case of homographs, where a word can have more than one

meaning, the judge can choose the preferred meaning; if the word only has one

meaning, but applying this would lead to a bad decision, the judge can apply a

completely different meaning.73

History and evolution of the Golden Rule

This rule is founded on Justice Parke (later Lord Wensleydale)’s enunciation in Becke v

Smith74 where he stated thus: “It is a very useful rule in the construction of a statute to

adhere to the ordinary meaning of the words used, and to the grammatical construction,

unless that is at variance with the intention of the legislature to be collected from the

72Nokes v. Doncaster Amalgamated Collieries, [1940] A.C. 1014, at 1022

73 http://en.wikipedia.org/wiki/Golden_rule_%28law%29 Retrieved 10 July 2013

74 (1836) 2 M&W 195

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statute itself, or leads to any manifest absurdity or repugnance, in which case the

language may be varied or modified so as to avoid such inconvenience but no further.”

Twenty years later, Lord Wensleydale restated the rule in different words in Grey v

Pearson75 thus: “[I]n construing statutes, and all written instruments, the grammatical

and ordinary sense of the words is to be adhered to, unless that would lead to some

absurdity or inconsistency with the rest of the instrument, in which case the

grammatical and ordinary sense of the words may be modified, so as to avoid that

absurdity or inconsistency, but not farther.”

With time, the rule continues to become more refined and therefore to be a more

precise and effective tool for the courts. More than a century after Grey v. Pearson, a

court added this caveat: “Nowadays we should add to 'natural and ordinary meaning' the

words in their context and according to the appropriate linguistic register.”76

In summary, this rule may be used in two ways. It is applied most frequently in a

narrow sense where there is some ambiguity or absurdity in the words themselves. For

75 (1857) 6 HL Cas 61, 106; 10ER 1216, 1234

76 Lord Simon of Glaisdale, reasons for judgment in Stock v. Frank Jones (Tipton) Ltd. [1978] 1 W.L.R. 231, at 235

79] L100 Legal Process: Learner’s Module

example, imagine there may be a sign saying “Do not use lifts in case of fire.” Under the

literal interpretation of this sign, people must never use the lifts, in case there is a fire.

However, this would be an absurd result, as the intention of the person who made the

sign is obviously to prevent people from using the lifts only if there is currently a fire

nearby.

The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious

to principles of public policy, even where words have only one meaning. The rule was

applied in this second sense in Sigsworth, Re, Bedford v Bedford 77 where the court

applied the rule to section 46 of the Administration of Estates Act 1925. This statute

required that the court should “issue” someone's inheritance in certain circumstances.

The court held that no one should profit from a crime, and so used the golden rule to

prevent an undesirable result, even though there was only one meaning of the word

“issue.” A son murdered his mother and then committed suicide. The courts were

required to rule on who then inherited the estate: the mother's family, or the son's

descendants. There was never a question of the son profiting from his crime, but as the

77 (1935) Ch 89

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outcome would have been binding on lower courts in the future, the court found in

favour of the mother's family.

6.2.3 Mischief Rule

The mischief rule is one of three rules of statutory construction traditionally applied by

English courts. The other two are the “plain meaning rule” (also known as the “literal

rule”) and the “golden rule.” The main aim of the mischief rule is to determine the

“mischief and defect” that the statute in question has set out to remedy, and what ruling

would effectively implement this remedy. The rule was first laid out in a 16th century

ruling of the Exchequer Court.78

Meaning and Use of the Mischief Rule

This rule was coined in Conway v Rimmer79 as a rule of construction stating that judges

can apply in statutory interpretation in order to discover Parliament's intention. In

applying the rule, the court is essentially asking the question: what was the “mischief”

that the previous law did not cover, which Parliament was seeking to remedy when it

passed the law now being reviewed by the court?

78 http://en.wikipedia.org/wiki/Mischief_rule Retrieved 12 July 2013

79 [1968] AC 910

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The Mischief Rule is of narrower application than the golden rule or the literal meaning

rule, in that it can only be used to interpret a statute and, strictly speaking, only when

the statute was passed to remedy a defect in the common law. Legislative intent is

determined by examining secondary sources, such as committee reports, treatises, law

review articles and corresponding statutes.

The application of this rule gives the judge more discretion than the literal and the

golden rule as it allows him to effectively decide on Parliament's intent. It can be argued

that this undermines Parliament's supremacy and is undemocratic as it takes law-

making decisions away from the legislature. It is trite that the mischief rule produces

more sensible outcomes than the literal rule.

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Case Study 6.1: Mischief Rule- Establish the Intent of Parliament

Smith v Hughes [QBD 1960]

Brief Facts: Under the UK Street Offences Act [1959], it was a crime for prostitutes to “loiter or solicit in the street for the purposes of prostitution.” The defendants were calling to men in the street from balconies and tapping on windows.

Legal Issue: The defendants claimed they were not guilty as they were not in the “street.”

Holding: The judge applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act was to cover the mischief of harassment from prostitutes.

History of the Mischief Rule

The Mischief rule was first set out in Heydon's Case80 where the court ruled that there

were four points to be taken into consideration when interpreting a statute: first, what

was the common law before the making of the Act? Second, what was the mischief and

defect for which the common law did not provide? Third, what remedy Parliament hath

resolved and appointed to cure the mischief; and fourth, what is the true reason of the

remedy?

Traditional Use of the Mischief Rule

In the century in which it was created, and for some time thereafter, the mischief rule

was used in a legislative environment very different than the one which has prevailed in

the past two centuries. As Elmer Driedger notes:

80 [1584]76 ER 637 3 CO REP 7a

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[S]ixteenth-century common law judges…looked upon statutes as a gloss upon the

common law, even as an intrusion into their domain. Hence, statutes were viewed

from the point of view of their effect upon the common law, as adding to it,

subtracting from it or patching it up…. Then also, in the time of “Heydon’s Case’’

the judges paid more attention to the “spirit” of the law than to the letter. Having

found the mischief they proceeded to make mischief with the words of the statute.

They remodelled the statute, by taking things out and putting things in, in order to

fit the “mischief” and “defect” as they had found them.81

Modern Use of the Mischief Rule

Modern courts continue to apply the rule in a more restricted manner, and generally

with a greater regard for the integrity of the statutes which they are interpreting.

Driedger observes thus: “[T]o this day, “Heydon’s Case’’ is frequently cited. The courts

still look for the “mischief” and “remedy”, but now use what they find as aids to

discover the meaning of what the legislature has said rather than to change it.”82

Driedger further argues that this modern use of the mischief rule ought to be

understood as one of the components of what he characterized as the “modern” method

of statutory construction, rather than a stand-alone rule serving (as it formerly had), as

an alternative to the methods of construction proposed by the plain meaning rule and

the golden rule.83

81 Driedger, E., The Construction of Statutes (1983) 2nd ed, Butterworth, Toronto, pp 74-75.

82 Ibid

83 Ibid

84] L100 Legal Process: Learner’s Module

Advantages of the Mischief Rule

Below are the three major advantages of the Mischief Rule: Firstly, in a common law

jurisdiction, the existence of precedent and the knock-on effects of construing a statute

prevent misuse of the rule. Secondly, the Law Commission of the UK and most eminent

scholars see it as a far more satisfactory way of interpreting acts as opposed to the

Golden or Literal rules; and thirdly, it usually avoids unjust or absurd results in

sentencing.

Disadvantages of the Mischief Rule

Below are equally three disadvantages associated with the Mischief Rule: first, it is

ostensibly out-dated as it has been in existence and use since the 16th century when

common law was the primary source of law. Secondly, it gives too much power to the

unelected judiciary which is argued to be undemocratic. Thirdly, the rule can make the

law uncertain.

Topic 6.3: Canons of Statutory Interpretation

In addition the above rules or techniques of interpretation, there are a number of

canons of statutory interpretation. Also known as canons of construction, canons give

common sense guidance to courts in interpreting the meaning of statutes. Most canons

emerge from the common law process through the choices of judges. Proponents of the

use of canons argue that the canons constrain judges and limit the ability of the courts

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to legislate from the bench. Critics argue that a judge always has a choice between

competing canons that lead to different results, so judicial discretion is only hidden

through the use of canons, not reduced.84

Textual Canons

Textual canons are rules of thumb for understanding the words of the text. Some of the

canons are still known by their traditional Latin names. Some of the textual canons

include:

1. Plain Meaning Canon

When writing statutes, the legislature intends to use ordinary English words in their

ordinary senses. The United States Supreme Court discussed the plain meaning canon in

Caminetti v United States,85 where it was stated that “[i]t is elementary that the meaning

of a statute must, in the first instance, be sought in the language in which the act is

framed, and if that is plain... the sole function of the courts is to enforce it according to

its terms.” And if a statute's language is plain and clear, the Court further warned that

“...the duty of interpretation does not arise, and the rules which are to aid doubtful

meanings need no discussion.”

84 https://en.wikipedia.org/wiki/Statutory_interpretation Retrieved 12 July 2013

85 242 U.S. 470 (1917)

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2. Ejusdem generis Canon

Ejusdem generis is Latin for: “of the same kind, class, or nature.” The canon simply

entails that when a list of two or more specific descriptors is followed by more general

descriptors, the otherwise wide meaning of the general descriptors must be restricted to

the same class, if any, of the specific words that precede them. For example, where

“cars, motor bikes, motor powered vehicles” are mentioned, the word “vehicles” would

be interpreted in a limited sense. Therefore vehicles in this case cannot be interpreted as

to include airplanes.

3. Expressio unius est exclusio alterius

Expressio unius est exclusio alterius is Latin for: “the express mention of one thing

excludes all others.” Items not on the list are impliedly assumed not to be covered by the

statute or a contract term.86 However, sometimes a list in a statute is illustrative, not

exclusionary. This is usually indicated by a word such as “includes” or “such as.”

4. In pari materia

In pari materia is Latin for: “upon the same matter or subject.” When a statute is

ambiguous, its meaning may be determined in light of other statutes on the same subject

matter.

86 Lhauge, E., Statutory Default Rules: How to Interpret Unclear Legislation (2008) Harvard University Press, Boston, pp

237–39

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5. Noscitur a sociis

Noscitur a sociis is Latin for: “a word is known by the company it keeps.” When a word

is ambiguous, its meaning may be determined by reference to the rest of the statute.

Activity 6.1 What is the difference, if any, between rules of statutory interpretation and canons of statutory construction?

Well done, you have completed this unit but the scales of justice are yet to

tilt in your favour. Attempt the Revision Questions below NOW!!!

Revision Questions (1) With the aid of case law, discuss two major canons of construction commonly used in Zambia.

(2) Of what relevancy is the Ejusdem generis canon in the Zambian jurisdiction?

(3) In your considered opinion, should judges be given the absolute liberty to interpret statutes?

(4) Why bother about rules of statutory interpretation?

(5) Critique the modern use of the mischief rule.

Gavel is down; you are now cleared to proceed to the next unit.

Congratulations!!!

88] L100 Legal Process: Learner’s Module

Unit 7: Precedents, Doctrine and Technique Topic 7.0: Introduction

This Unit concerns itself with the way courts treat past curt decisions. It deals with

situations where lowers courts are supposed to be bound by past decisions from higher

courts. The Unit also deals with instances in which lower local are not bound but simply

persuaded by past decisions. At the end of this Unit you are expected to demonstrate

critical understanding of matters pertaining to the aforementioned.

Topic 7.1: Judicial Decisions

Precedent serves as the governing principle of Zambia’s common law. Deciding courts

and lower courts with similar jurisdiction to the deciding court are bound by precedent.

Therefore, any case that comes before the same or a lower court with substantially

similar facts must be decided in the same way, unless the deciding court, for good

reason, decides to overturn and set a new precedent. Higher courts are not bound by the

decisions of lower courts. Courts with different jurisdiction (e.g., the Industrial

Relations Court) are not bound to the decisions of other courts, but may find those

decisions persuasive if only to provide the system with consistency. Decisions from

89] L100 Legal Process: Learner’s Module

South Africa and England are only persuasive, unless there is no Zambian authority to

provide guidance, in which case the English law becomes precedent.87

Topic 7.2: Common Law and Zambia

Also known as case law or precedent, Common Law is law developed by judges through

decisions of courts and similar tribunals. By contrast, civil law (codified/continental law)

is set on statutes adopted through the legislative/parliamentary process and/or

regulations issued by the executive branch on base of the parliamentary statutes.

A common law system is a legal system that gives great potential precedential weight to

common law, on the principle that it is unfair to treat similar facts differently on

different occasions. The body of precedent is called “common law” and it binds future

decisions. In cases where the parties disagree on what the law is, a common law court

looks to past precedential decisions of relevant courts.

Stare Decisis

If a similar dispute has been resolved in the past, the court is bound to follow the

reasoning used in the prior decision. This principle is known as stare decisis. If,

however, the court finds that the current dispute is fundamentally distinct from all

87 http://www.neweconomia.com/zambia/zambiagovlegalsystem.html Retrieved 16 July 2013

90] L100 Legal Process: Learner’s Module

previous cases (called a “matter of first impression”), judges have the authority and duty

to make law by creating precedent. Thereafter, the new decision becomes precedent,

and will bind future courts.

In practice, common law systems are considerably more complicated than the simplified

system described above. The decisions of a court are binding only in a particular

jurisdiction, and even within a given jurisdiction, some courts have more power than

others. For example, in most jurisdictions, decisions by appellate courts are binding on

lower courts in the same jurisdiction, and on future decisions of the same appellate

court; but decisions of lower courts are only non-binding persuasive authorities.

Interactions between common law, constitutional law, statutory law and regulatory law

also give rise to considerable complexity. However, stare decisis, the principle that

similar cases should be decided according to consistent principled rules so that they will

reach similar results, lies at the heart of all common law systems.

Well done, you have completed this unit but the scales of justice are yet to

tilt in your favour. Attempt the Revision Questions below NOW!!!

91] L100 Legal Process: Learner’s Module

Revision Questions (1) Discuss the applicability of common law in Zambia

(2) What are the fundamental principles underlying stare decisis?

(3) In your considered opinion, should lower courts be bound by the reasoning in past decision? Explain.

(4) Does, the doctrine of precedents buttress predictability in the law? Explain.

(5) Critique the modern application of precedents.

Gavel is down; you are now cleared to proceed to the next unit.

Congratulations!!!

92] L100 Legal Process: Learner’s Module

Unit 8: Lawyers and the Court Topic 8.0: Introduction

This Unit lays a foundation on legal skills and empathizes how lawyers should interact

with the courts of law. Lawyers are officers of the court and such must demean

themselves to the bench in both their conduct and behaviour. At the end of this Unit

you are expected to understand the mannerisms, conduct, dress code and behavour of

the calling in which you now are. Section 2 of the LAZ Act88 defines a lawyer as to

include a law student pursuing a law degree in a recognized University. As such, you are

a lawyer thus must step to the ethics and demands of the noble profession which you

now profess to be part thereof.

Topic 8.1: Lawyer’s Dress Code

A lawyers’ dress code is governed by the Practice Directive of 1977 as amended in 2005.

Under here, both male and female lawyers must wear when appearing in court. The

colors for the suit are restricted to navy blue; black; and charcoal grey. For soft linen,

female counsel must wear a blouse while male counsel must wear long sleeved shirts.

The colours in both instances must be elegant and not flamboyant. That is to say, white

shirt or white blouse and black suit in criminal matters. A red necktie is diplomatically 88 Cap 31 of the Laws of Zambia

93] L100 Legal Process: Learner’s Module

the best for male counsel. In civil matters, both male and female counsel may opt for sky

blue or white soft linen (shirt or blouse respectively).

Female counsel may wear slacks provided they are not tight to their skin. If they opt for

skirts, the same should be long enough to go at least down their knees. Shoes for both

counsel must be black in colour and closed; not too high-heeled and not flamboyantly

fancy. Hair style for both male and female counsel must be smart and simple- not fancy

or exaggerated.

Topic 8.2: Etiquette to the Bench

The language of a lawyer must demonstrate courtesy and etiquette to the Bench. The

following is the right appellation for various levels of Adjudicators according to their

ranks:

i. Chief Justice; Deputy Chief Justice and Supreme Court Adjudicators are referred

to as Honourable Justices of the Supreme Court. Your address the as: “My lord(s);

Mi lord(s); or your lordship(s)” if male. If female, you address them as: “My

lady(ies); Mi Lady (ies); or your ladyship(s).”

94] L100 Legal Process: Learner’s Module

ii. High Court Adjudicators and Adjudicators of the Commercial Registry are

referred to as Honourable Judges of the High Court. You address them as: “Your

Honour” whether male or female.

iii. Adjudicators of the Industrial Relations Court are referred to as Honourable

Members of the Industrial Court. You also address them as: “Your Honour”

whether male or female.

iv. Subordinate Courts Adjudicators are referred to as Honourable Magistrates of the

Subordinate Court. Your address them as: “Your worship” whether male or

female.

v. Adjudicators of the Small Claims Court are referred to as Commissioners of the

Court. You address them as: “Sir” if male or “Madam” if female.

vi. Local Courts Adjudicators are referred to as Honourable Magistrates of the Local

Courts. Your address them as: “Your worship” whether male or female.

vii. Adjudicators of various Tribunals are referred to as Commissioners of the

Tribunal. You address them according to their rank or designation of title. For

95] L100 Legal Process: Learner’s Module

example, if a Supreme Court Justice presides on a tribunal you address them as

“my lord.”

Topic 8.3: Problem Solving Approaches- IMC and IRAC/CLEO

This topic deals with the two main approaches employed in legal works to solve

problems. The same are IMC and IRAC or CLEO as is sometimes referred to.

8.3.1 IMC

This approach is utilized in writing essays or legal briefs that are not problem-based or

hypothetical scenarios. IMC is an abbreviation for: (i) Introduction; (ii) Main Text; and

(iii) Conclusion.

Introduction

This part of the legal brief introduces the subject matter to the reader. It gives a

background and summary of what the paper will discuss in details.

Main Text

This part forms the main body of the paper. It discusses all the pertinent matters related

to the subject matter under discussion.

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Conclusion

This part is a summary of the work done in the main text. It summarizes and

recapitulates the subject matter. It gives a consolidation of all the matters by way of

summary.

8.3.2 IRAC:

IRAC is an acronym of the approach used in legal works to solve practical situational

questions. The acronym is thus:

I: Identify pertinent legal issues from the given set of facts;

R: Relate on the law applicable to the identified legal issues. That is to say, discuss

the law relevant to the facts. Here you do not apply the law to the fact- you just

discuss the law;

A: Apply the law to the facts; and

C: Conclude on the matter. Give a logical conclusion on the matters above.

Under this approach, you begin by identifying the pertinent legal issue(s) from the

given set of facts. Then you relate on the law applicable to the identified legal issue(s).

At this point, you do not explain the connection between the law and the case hand; but

simply state and discuss the applicable law in general. Thereafter, you apply the law to

the identified legal issue(s). Finally, you must conclude on the subject matter by directly

97] L100 Legal Process: Learner’s Module

responding to the instructions given. That is to say, if the instructions were, for

example, that you render legal advice on the given set of facts- in conclusion you must

ADVISE. If on the other hand, for example, your instructions were that you render a

legal opinion on the given set of facts- in conclusion you must OPINE.

Activity 8.2 Use a hypothetical situation of pour own imagination to apply IRAC and write a legal opinion on the same using IRAC.

8.3.3: CLEO

This approach is similar to IRAC. It stands for: (i) Claim; (ii) Law; (iii) Explanation; and

(iv) Opinion. It is usually applicable in situations where you are instructed to render a

legal opinion. Under this approach, you first identify the legal claim(s), then you

identify the law applicable to the claim, then you explain how that law is applicable to

the identified claim. Lastly, you opine on the subject by giving your opinion thereon.

Well done, you have completed this unit but the scales of justice are yet to

tilt in your favour. Attempt the Revision Questions below NOW!!!

98] L100 Legal Process: Learner’s Module

Revision Questions (1) Can the CLEO approach be applied in situational question other than rendering opinions?

(2) What is the importance of the IRAC approach in the today Zambian litigation system?

(3) Why should a ‘legal brief’ question be handled different from ‘opinion rendering’ questions?

(4) Explain the IMC approach to problem solving in law.

(5) What is the justification for studying legal process with respect to solving legal problems?

Gavel is down; you are almost there. Now proceed to the last unit

and attempt the ultimate revision. Congratulations!!!

99] L100 Legal Process: Learner’s Module

Unit 9: Sample Examination Questions 9.0 Unit Overview and Expected Outcomes

This unit provides you with an opportunity to evaluate yourself in terms of your

preparedness to seat for an examination in this semester course. At the end of unit you

should be able to assess your levels of understanding Legal Process.

9.1 Compulsory Questions

9.1.1: Distinguishing Cases- 3 Grounds

Mrs Kumeka Chidongo- Chibombebombe was appointed as a Junior Distributions

Supervisor in the employ of Nyumba Kushota Quarries Co Ltd on 10 February 2009

after 7 years of roaming the streets of Lusaka job- hunting since her acquisition of a

Diploma in Stone Crushing Technology from Kapamwamba Technical College. Being a

fulltime employee, she was allocated one of the flashy flats that the company had just

secured.

On 24 December ultimo, she received a letter from the company’s Properties and Estates

Manger instructing her to vacate the flat as it had been reassigned to the newly

employed Finance Manager, one Dr Ndeisa Uzachokamo who happens to be Chidongo’s

former secret admirer whose love proposal to her she unceremoniously turned down

during their secondary school days about 15 years ago.

100] L100 Legal Process: Learner’s Module

Feeling humiliated, segregated against on the basis of gender, demeaned and

unappreciated by the company... spending her entire festive period under distress and

anguish, Chidongo has just commenced proceedings in the Industrial Relations Court

seeking, inter alia, an interlocutory Injunction to restrain the company from evicting

her until the matter is disposed of.

You are a Junior Advocate practising under the name and style of Messrs CJNSIPHO

Legal Practitioners of 3rd Floor Mukuba Pension House, Kitwe. Your Principal, Adv

cjnsipho, being Counsel seized with conduct of the matter on behalf of the Respondent

Company has this morning instructed you to prepare a legal opinion in defence relying

section 108 of the Industrial and Labour Relations Act, Cap 269 of the laws of Zambia

by distinguishing the case in casu from that of Rachel Sakala v Attorney General,

1991/HP/2082. With adequate reference to both case law and eminent publications,

kindly proceed to advise your Principal hereon the rules governing “distinguishing

cases” as a somewhat aspect of statutory interpretation. [30 marks]

9.1.2: Rules of Interpretation

Discuss the validity of the case of Godfrey Miyanda v Mathew Chaila in the fight for

judicial independence in Zambia. [30 marks]

101] L100 Legal Process: Learner’s Module

9.1.3: Rules of Interpretation

Chimutengo Municipal Council has been sued by the family of Schmidt Chabipa, a 9

year old mentally retarded boy. Facts in issue are that Mapeveto Chinangwa, who is a

certified freelancer nanny, was hired by the Local Authority herein to assist in the

running of its public day care and kindergarten in her area of specialty. On the material

day, the plaintiffs caught the aforementioned Mapeveto sexually molesting the lad;

resulting in the lawsuit in casu. The lead prosecutor herein has conceded to the voire

dire and preliminary objection by the family insisting on suing the Counsel as the

employer under the doctrine of vicarious liability; notwithstanding the ambiguity of the

wording thereof the Statute being relied on chiefly.

You are a newly admitted Advocate of the High Court for Zambia celebrating your

practice as such under the name and style of Messrs Cjnsipho Legal Practitioners where

your Principal, Adv. Cjnsipho, being counsel seized with conduct of the matter on

behalf of the defendant Council, has just instructed your learned self to prepare a

concise and well-reasoned legal opinion hereon by citing at least two decided cases

pertinent hereto; with respecting to whether or not the court should proceed in the face

of alleged ambiguity and prima facie difficulties in ascertaining the unequivocal intent

of the legislators as deducible from the Act itself. Kindly proceed as instructed. [30

Marks]

9.2 Optional Questions

7.2.1: Rules of Interpretation

With specific reference to the case of Grey v Pearson (1857) 6 HLC 61, discuss the scope

and ambit of the Golden Rule. [20 Marks]

102] L100 Legal Process: Learner’s Module

7.2.2: Institutional Framework

With the aid of a decided case, explain the role of institutions other than the judiciary

in the administration of justice in Zambia. [20 Marks]

7.2.3: Functions of the Courts- Other than Statutory Interpretation

With the aid of at least 3 decided cases, expatiate on the role of Adjudicators as true

givers of law to society. [20 Marks]

Both gavels are down, the Mother of Justice has ADJUDJED YOUR CASE.

THE Verdict IS reserved till after the exams- All the best!!!

Disclaimer This Module is made possible by the generous funding of the University of Africa through the Zambian

Campus (UoA). The contents are the responsibility of the author [Adv. Justin Sipho Chitengi] and do not

necessarily reflect the views of any other organizations the author may be associated with.