ZAMBIA OPEN UNIVERSITY

SCHOOL OF LAW

2018 SECOND SEMESTER

NAME: ZULU KONZANI JOSEPH

COMPUTER No.: 21810738

PROGRAMME: BACHELOR OF LAW (LLB)

COURSE CODE: LL7

COURSE TITLE: LEGAL PROCESS

CONTACT LECTURER: DR. NGANDU

ACADEMIC YEAR: 1st YEAR

SEMESTER: 2 (TWO)

ASSIGNMENT No.: 2

DUE DATE: 15th SEPTEMBER 2018

POSTAL ADDRESS: ELIM SCHOOL

P.O BOX 22667,

KITWE

Email ADDRESS: jotisa2006@yahoo.com

Mobile phone: 0961705234

Question:

As a lawyer, your principal has instructed you to do a research and identify any 4 (Four)
attributes of a good legal system and discuss them with reference to the Zambian legal
system.
Introduction

Hart, a jurist has defined law in the following words, “It is a rule of conduct, overseen by those
political organs which it has ordained for that purpose and imposed in the first instance at the
will of the dominating political power in pursuance of the concept of justice, which is held by
that authority or by those to whom it has committed of making such rules”.1 This being the
definition of law, a legal system has been defined by, Summers (2011), as a legal regimen,
consisting of a constitution, which is either written or unwritten, primary legislation, statutes and
laws which are authorised by constitutionally authorised legislative body and the primary
legislative authorised body enacts subsidiary legislation or by laws, while traditional practices
upheld by the courts, whether civil, common or any other code of law as a source of such
principles or practices.2

In the Zambian context, the Zambia Association of Social Sciences Teachers has defined the
national legal system, as that system referring to the processes of dealing with offences and the
institutions that enact and enforce these laws and these institutions would include among others,
the courts, the police and the prisons.3

Zambia, like any other democratic in the world, is not exempted from having and operating a
good legal system which is constructed on attributes that guarantees a good legal system. The
legal system in Zambia constitutes statutory and common law, which is the general law as well
as customary law, thus making it a dual legal system. The constitution, clearly states that the
written statutes and the bill of rights has primacy in the legal system.4

1
Hart, H. L. A. (1961). The Concept of Law. Chicago: Yale University Press
2
Summers, R. S. (2001). Forms and Functions in Legal System. London: CUP
3
Zambia Association Of Social Sciences Teachers(ZASST).(2011)
4
Part V, Article 26, Constitution of Zambia, amended in 2016
Elements of a good legal system

As Adriana, an eminent jurist, postulates on the importance of a good system by stating the
following, “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 this purpose for the existence of the
law, it is still an important and irreplaceable aspect of any society, but to curb the improper
application of the law, it is important to set down a few things that are expected of a good legal
system.5

In order for any legal system to be successful and sturdy, it must make law fairly certain. As
indicated earlier, the purpose of the law is to control blameworthy conduct and if that conduct in
questioned is ambiguous, it will be very difficult to regulate it, for no one will exactly know,
what kind of conduct it is that is not permissible by the law, hence the need for the legal system
to make the law clear and certain. It is important to note that the legal system must ensure
certainty in the blameworthy behavior but also the certainty of the kind of punishment that
behavior will attract, as every citizen will know what will follow from his acts.6 In this way the
law becomes predictable. The need for the law to be certain, is well illustrated in a leading case
of; Newberry v Simmonds,7 ,were a question arose as to whether the term ‘vehicle’, which
clearly covers motor cars, should include donkeys drawn carts or a pair of roller skates. It was
uncertain from the law, whether these could be said to be ‘mechanically propelled vehicles’ for
which a license was required. A similar uncertainty, exists in the Zambian legal system, where a
section of the statute on official secrets Act, which states the following; “Any person who aides
or abets and does any act preparatory to the commission of an offence under the Act, shall be
guilt of a felony.”8 Any defendant charged under this section, of doing an act of preparatory to
commission of an offence, can contend that, this is not an offence under this provision. His
objection could be well grounded, because of the uncertainty in the Act, it appears like in the
wording of the Act, and the charge refers to behavior, which does not in itself amount to an
offence. It would appear an error in drafting this statute was made. The word ‘and’ should have
been replaced with the word ‘or’ for the Act, to be certain of what is expected in the behavior of

5
Adriana, N. (1990). The Characteristics of Good Legal System. London: Routledge
6
Church, W. L. (Unpublished). An Introduction to the Laws of Zambia. Ch1
7
Newberry v Simmonds(1961) 2QB 345
8
Section 219(3), Penal Code, Cap 87
the citizens.9 As rightly said the Lord Justice in the case of; R v Secretary for Home Dept.10, he
stated, “Questions of legal right and reliability should ordinarily be resolved by the application of
the law and not the exercise of discretion”. Thus, confirming the statement which states, ‘The
principles of legitimate expectation and assurance of legal certainty are part of the legal order of
the community”.11 This means, the principle of legal certainty, also precludes retrospective
changes in the law, as was the case of; Burma Oil Co. v British Govt.12, where a law was
enacted and applied in retrospect, so as, to prevent the Burma Oil Company claiming damages
for of business the war. In Zambia, application of a law in introspect is well illustrated in the case
of; The People v Matribouy,13 who was accused of motor vehicle theft, which is a bailable
offence under then Zambian laws, but because President Chiluba, for some reasons, he needed
the defendant kept in prison, a law was quickly enacted making the offence non bailable and it
was applied retrospectively, thus denying the defendant bail. This is to be avoided in a good legal
system.

Simplicity of a legal system is also a hallmark of a good legal system. It is at this point that many
of the world’s legal systems have been greatly defective, because of the systems’ emphasis on
certainty of law, through exhaustive and written coverage of every possible contingency, that the
content of the law has become massive and complex, that no one can understand and know them,
even trained lawyers. Consider the massive, sheer volumes of the laws of Zambia. It must be
admitted, that no one can comprehend them and much of these laws have various shadings of
meanings, inconsistencies and self-contradictions. Simplicity of a legal system means that the
law is, written in a language, which can be understood by the majority of the population. Since
the law regulates conduct, it important that it is well understood, otherwise how will they obey
that which they do not understand. The enjoyment of personal liberties and the prevention of
abuse of the same is only possible, if they understand the law. Schuck,14 claims that there a link
between legal simplicity and legal systems that are less interfering on individual freedoms of its
citizens. In the Zambian legal system, the constitution, which is the supreme law of the land, has

9
Ng’andu, F. (2005). Module LL7: Legal Process. Lusaka: ZAOU
10
R v Secretary of State of Home Dept.(2005) EWCA Civ 1363
11.Deutsche Milchkontor v Germany(205-215/82)11
12
Burma Oil Co. v British Govt.(1948) EWCA 121
13
The People v Matribouy(2000)HC 204
14
Schuck, P. (2000). The Limits of the Law. London: Boulders Westview Press
been translated in all the country’s major ethnic languages, so that every citizen may understand
their rights and liberties. In courts sessions, there is always an interpreter, so that both the
claimant and the defendant fully understand the legal proceedings.

Flexibility is also an essential element of a good and successful legal system, which makes it
‘bend with the wind’. It is extremely important, that a legal system must be adaptable to
sufficiently accommodate any kind of new problems confronting the system and be able to adjust
to changes in the needs and desires in the society it serves. The law must not be rigid, so as to
prevent it changing with the dynamic society, this makes it lose all contact with realities of
society, giving rise to discontentment among the population. A good legal system entails that any
law can be changed with respect to changing circumstances. In Zambia, the rigidity of the legal
system with regards to laws on abortion and homosexuality, is on account of Zambia being
declared as a Christian nation, so laws must promote always promote the Christian faith.

A good and acceptable legal system must attempt to strive to adapt to the moral values of the
society in which it serves. Moral values are the standard or beliefs, that define the right and
wrong and these values come from self, family, community, religion, government that influence
the thoughts of the individual. Some common examples of moral values in a society are fairness,
generosity, honesty and integrity. When members of the society are confronted by choices, moral
dilemmas, the decisions, they make will be greatly influenced by the moral values they hold. So,
any legal system that does not take into consideration the society’s moral values will be
unacceptable to the people and invariably the law will not be respected or obeyed. According to
Mahajan, an Indian law scholar, a good legal system should not be in conflict with traditions,
cultures and customs of society. If the legislature make laws without taking into consideration
ethnic principles, the consequences will be disastrous.15

Lastly, every successful legal system must affirm that all its citizens must be accorded and
receive a fair and equal treatment under the country’s law. In Zambia, equity before the law, has
been strengthened by enshrining it in the constitution. Article 18, in the 2016 amended
constitution of Zambia, states the following; “If any person is charged with a criminal offence,
then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable

15
Mahajan, V. D. (2000). Political Theory. New Delhi: S. Chand & Co. Ltd.
time by an independent and impartial court established by law”.16 It may be said, that to the
degree that a legal system ignores this constitution provision, that system will lose the respect
and co-operation of the people it serves.

Conclusion

In conclusion, a good and successful legal system is one whose attributes includes laws that are
certain and predictable and flexible, enough to be line with a dynamic society. It should provide
fair justice without any partiality and always takes into account the society’s moral values. It
ought to be a system that treats all its citizens equally before the law regardless of one’s race,
gender or social status, in this way, entrenching the rule of law in its system.

16
Article 18, Constitution of Zambia amended in 2016
References

1. Hart, H. L. A. (1961). The Concept of Law. Chicago: Yale University Press

2. Summers, R. S. (2001). Forms and Functions in Legal System. London: CUP
3. Zambia Association Of Social Sciences Teachers(ZASST).(2011)
4. Part V, Article 26, Constitution of Zambia, amended in 2016
5. Adriana, N. (1990). The Characteristics of Good Legal System. London: Routledge
6. Church, W. L. (Unpublished). An Introduction to the Laws of Zambia. Ch1.
7. Newberry v Simmonds(1961) 2QB 345
8. Section 219(3), Penal Code, Cap 87
9. Ng’andu, F. (2005). Module LL7: Legal Process. Lusaka: ZAOU
10. R v Secretary of State of Home Dept.(2005) EWCA Civ 1363
11. Deutsche Milchkontor v Germany(205-215/82)
12. Burma Oil Co. v British Govt.(1948) EWCA 121
13. The People v Matribouy(2000)HC 204
14. Schuck, P. (2000). The Limits of the Law. London: Boulders Westview Press
15. Mahajan, V. D. (2000). Political Theory. New Delhi: S. Chand & Co. Ltd.
16. Article 18, Constitution of Zambia amended in 2016