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THE COPPERBELT UNIVERSITY
SCHOOL OF HUMANITIES AND SOCIAL SCIENCES -
DEPARTMENT OF LAW
NAME: BIBUSA KABETA 21165467
FRANCIS MBEWE 21164355
NINGA MOSES NKOLE
JEFF BANDA
PROGRAM: LAW
COURSE: LS 131
LECTURE: MR. HENRY AONGOLA
TUTOR: MISS. CHOONGO
TASK: GROUP 11 PRESENTATION
DUE DATE: 10/02/2022
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Question 7
The Zambia courts system as it exists today is a product of the court system
introduced by the British colonists when the present day Zambia was acquired at
the beginning of the 20th century. Give an account of the development of the
courts in Zambia from inception, with reference to constitutional provisions and
how they operate. Clearly highlighting their jurisdiction comprehensively and
exhaustively. Further, highlight the principle of stare decisis in relation to court
hierarchy in Zambia. Reference should be made to Zambian decided cases in this
regard
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The high court of Zambia was created in 1966 and established by article 133(1)1. Its
divisions include the industrial relations division of 1971, which looks at employer
employee situations. The commercial division which is established pursuant to article
133(2) 2looks at family. Children’s divisions of 2016, which looks at petitions for divorce,
custody of children disputes intestate succession disputes, inter alia.3
For its operation, it is composed of the chief justice as an ex- officio member and has
puisine judges to be determined by acts of parliament. During sittings it is made up of a
single judge who exercises equal powers, authority and jurisdiction as any other judge
of the ranking in question. Furthermore a judge in sittings may sit with two or more
assessors if he wishes.4 The assessors, although in practice rarely used in court, may
advise courts on the guilt or innocence of the accused and assist in ascertainment and
evaluation of local customs and customary law, as such effectively serve as expert
witnesses, but judges are not obliged to follow their advice.
All its judges are appointed by the president, who is assisted by the judicial service
commission and are also subject to ratification by the national assembly. 5 In addition it
consists of the office of high commissions established in 1974, to allow the president to
appoint lawyers in both the public and private sector, for various reasons such as
increase number of judges when the business of the court is heavy and to facilitate
employment of the legal profession for work puisine judges are not familiar with.
Lastly it has its own subsidiary courts such as
The lands tribunal court, which is created by section 20 of the lands act 6. Its
members are appointed by ministers
Industrial relations court, which is created under section 84 of industrial and labor
relations act 7
The subordinate courts, which is established in chapter 28 of the laws of Zambia.
It consists of three different rankings, which have sitting on a daily basis8
1
The constitution of Zambia amendment No.2 of 2016.
2
Ibid.
3
https://judiciaryzambia.com/high-court/ .
4
Section 5 of the high court act, chapter 27 of the laws of Zambia.
5
The constitution of Zambia Article 140(e)
6
Chapter 184 of the laws of Zambia
7
Chapter 269 of the laws of Zambia
8
The subordinate court act section 3.
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The local courts of Zambia, established in article 120(1)9 which are at the bottom of
the judiciary hierarchy in Zambia and have been recently given title of record 10 are found
in all communities around the country. It is provided for under chapter 29 of the local
court act, subject to section 4(1)11.
It consists of local court magistrates, whose tenure is three years, who do sittings
alone it is however subject to change in number as per instructions of the chief justice
The sessions of the local court are held in times and places necessary for convenient
and speedy dispatch of business. 12
The court of appeal is established in article 130 of the constitution of Zambia. It is
the second court of record after the supreme court of Zambia and constitutional court of
Zambia.1314
It operates in the composition of the Judge President, Deputy Judge President
and 17 courts of appeal judges. Lastly in its sessions and circuiting it conducts ten
gazettesessions.15
Structure of the court system in Zambia
The legal basis of the Zambia’s court system is as follows
Supreme Court and Constitutional Court
Court of appeal
High court
Industrial Relations court
The subordinate court
The local courts
The supreme court and Constitutional Court
Article 12116 of the constitution states that the Supreme Court and Constitutional Court
rank equivalently Article 12517 of the constitution states the jurisdiction of the supreme
court as follows ;
9
Of act No.2 of 2016 of the amended constitution.
10
Article 120 (2) of act No.2 of the 2016 amended constitution.
11
S 2 of act 16 of 2008.
12
Section 7 of the high court act.
13
Article 121 of the constitution of Zambia.
14
https://judiciaryzambia.com/high-court/
15
Ibid.
16
Article 121 of the 2016 amended Constitution
17
Article 125 of the 2016 amended Constitution
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(1) Subject to Article 128, the Supreme Court is the final court of appeal.
(2) The Supreme Court has—
(a) Appellate jurisdiction to hear appeals from the Court of Appeal; and
(b) Jurisdiction conferred on it by other laws.
(3) The Supreme Court is bound by its decisions, except in the interest of justice and
development of jurisprudence.
12818(1) of the constitution states the Jurisdiction of the Constitutional Court as follows
Subject to Article 28, the Constitutional Court has original and final jurisdiction to hear—
(a) A matter relating to the interpretation of this Constitution; (b) a matter relating to a
violation or contravention of this Constitution;
(c) A matter relating to the President, Vice-President or an election of a President;
(d) Appeals relating to election of Members of Parliament and councilors; and
(e) Whether or not a matter falls within the jurisdiction of the Constitutional Court
Court of Appeal
Article 131(1)19 of the Constitution states the jurisdiction of the Court of Appeal has
jurisdiction to hear appeals from—
(a) The High Court;
(b) Other courts, except for matters under the exclusive jurisdiction of the Constitutional
Court; and
(c) quasi-judicial bodies, except a local government elections tribunal
High court
Article 13420 of the constitution states that The High Court has, subject to Article 128—
(a) unlimited and original jurisdiction in civil and criminal matters;
(b) Appellate and supervisory jurisdiction, as prescribed; and
(c) Jurisdiction to review decisions, as prescribed. The high court is vested with
unlimited and original jurisdiction to hear and determine civil or criminal proceedings
under any law. the high court also has powers to supervise proceedings in all
subordinate courts, the high court enjoys appellate jurisdiction in both civil and criminal
matters determined by all the classes of subordinate courts either in the exercise of their
18
Article 128 of the 2016 amended Constitution
19
Article 131 of the 2016 amended Constitution
20
Article 134of the 2016 amended Constitution
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jurisdiction or appellate jurisdiction.
The industrial relations court was established under section 8421 of the industrial and
labor relations act chapter 269 of the laws of Zambia
The court has original jurisdiction in all industrial relations matters. The court has
powers to inquire into and make awards and decisions in collective disputes to
adjudicate upon any matter affecting collective rights and obligations and privileges of
employees and employers.
The subordinate courts - The magistrate and jurisdiction of the court
Magistrate courts are courts of record with both original and appellate jurisdiction in
local appeals, these courts have powers to confirm, vary, amend or quash any decision
or order from a local court . Even though magistrates have both civil and criminal
jurisdiction, the extent of the powers depends on the class of the presiding magistrate.
The local Courts
These are at the bottom of the Judiciary hierarchy in Zambia. They are charged with the
responsibility of applying customary law.
21
Section 84 of industrial and labour relations act
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STARE DECISIS IN RELATION TO COURT HIERACHY IN ZAMBIA
Stare decisis is a principle of English law by which previous judicial decisions
(Precedents) are binding and must be followed. Zambian courts follow the principle of
stare decisis; it has been following the aforementioned principle in its judicial system
since colonial days.
In Zambia the court hierarchy is well established and settled. The judiciary consists of
the superior courts, subordinate courts, small claims courts, local courts and courts as
prescribed.22
The Supreme Court and the Constitutional Court
The Constitutional court and the Supreme Court rank equivalently. 23 This means that
decisions made in the constitutional and supreme courts are binding on lower courts
under the doctrine of stare decisis. Article 125 (3) of the Zambian constitution provides
that, the Supreme Court is bound by its decisions, except in the interest of Justice and
development of Jurisprudence24
In Kasote v the people25 it was held that the principle of stare decisis is essential to
hierarchical system of courts. Such system can only work, if when there are two
apparent contradictory judgments of the Supreme Court all lower courts are bound by
the most recent decision.
The Supreme Court may follow precedent of the high court, although is not strictly
bound to do so but is merely persuasive. In determining the case of John Mubanga
Mulwila v the People26 the Supreme Court considered the case of Mbewe v the
People27 which, the court said, although was a High court decision, is still good law.
Some of the best decisions on certain aspects have been made by the High Court.
Hence, it is no surprise to hear the Supreme Court state that it has upheld the decision
of the High Court. However, it is not advisable for Counsel to refer to High Court
authorities unless they raise a really important point of the law. Typically the courts will
22
The Constitution of Zambia, Article 120 (1)
23
The Constitution of Zambia, Article 121
24
The constitution of Zambia, Article 125 (3)
25
(1977) Z.R 75 (SC)
26
(1988) SCZ 15 (Unreported)
27
(1983) Z.R. 59
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recommend Counsel to rely on Supreme Court precedents as these are binding upon
the court and while those from the High Court are more or less persuasive
The High Court
The high court is bound by decisions of the Supreme Court even if it considers them to
be wrong, this under the doctrine of stare decisis. In the same way decisions of the High
Court are law but are only binding on inferior courts to itself such as the Magistrate
Court. Single judges of the High Court are not strictly bound by their brethrens decisions
but, they will, as ordinary practice follow them. A High Court judges may depart from the
decision of his or her counterpart if need be. In practice there is consultation among the
judges before there can be such departure this is so as create acrimony and not make
the other judge look unreasonable. 28 This practice is not stipulated by the High Court
rules but it is just a common practice.
An unsuccessful litigant cannot bring the same case from one High court judge to the
other in search of a favorable outcome. This was the outcome in The Attorney General
& the speaker of the National Assembly v The People 29, The Supreme Court ruled
that Judge Nhdlovu did not have jurisdiction to receive the application or to enter into
the injunction. The Court stated that the High Court is a single court with many Judges.
For this reason a litigant can only appeal to the Supreme Court.
Industrial Relations Court
The Industrial Relations Court (IRC) is established as a court of first instance with
original jurisdiction in all industrial relations matters. Its jurisdiction is clearly outlined in
the Industrial Relations Act. The IRC like the High Court is bound by decisions made by
the Supreme Court under the doctrine of stare decisis. This was shown in the case of
Zambia Consolidated Copper Mines v Mulemwa,30 in which the respondent had been
dismissed from his employment for having given false information about an employee
which had resulted in the employee’s dismissal. The industrial relations court referenced
the decision of the Supreme Court in Ngwira v Zambia National Insurance Brokers
28
Interview with Mr. Justice P. Musonda on 9th June 2004
29
(1999) No. 34 (unreported)
30
(1995) Z.R. 99
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Limited31 was incorrect. The Supreme Court held that until such a time as the Supreme
Court it upset its own earlier decision the IRC was bound thereby.
The Subordinate Court
The Subordinate Courts popularly known as Magistrate Courts are established by
section 3 of the Subordinates Courts Act. These courts are follow precedents set down
by the superior courts that are the Constitutional Court and the Supreme Court, The
High Court and the Industrial Relations.
LOCAL COURT
Decisions of the Local Courts are ordinarily not binding since they are at the bottom of
the court hierarchy. The decisions of the Supreme Court are not binding to local courts
as they only deal with Common Law issues whilst the local court generally deals with
Customary Law
31
(1993) Z.R. 140
