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A spectre of British legal imperialism in Zambia

Zambia is still in the throes of Legal Imperialism where a lot of our laws are still tied to the apron strings of colonial laws, some or most of which have long been repealed in England. The Minister of Justice Honourable Given Lubinda has been vocal about the scandal this attachment to legal imperialism represents for Zambia, 54 years after independence, and has directed the Zambia Law Development Commission (ZLDC) to overhaul and modernize, nay Zambianize the laws. The state of the law is that wherever there are no laws addressing a specific legal issue in Zambia, British laws apply, including those that were long repealed in England. No one has written why this state of affairs has been allowed to exist for 54 years and will continue to echo into the future.

This article is my contribution to this debate. One of President Kaunda’s oft-quoted speeches on law after the opening of the school of law at the University of Zambia was the need to generate lawyers in Zambia who were attuned to the development needs of Zambia, lawyers who could Zambianize the legal system of Zambia and who were able to use law for development. It appears there was no direct reference to getting rid of the colonial legacy in the law. And for sometime after independence we continued to use colonial judges and lawyers since Zambia hardly had its own trained legal cadre. And we literally continued to use the laws in the books bestowed by the colonial system minus a few transformations here and there. The legal architecture remained the same: colonial legal system. We even strengthened some repressive laws and practices, eg laws relating to the state of emergency, the Public Order Act, Sedition, Defamation etc.

Our home grown first graduates in Law came in the early 1970s. Zambia poured a lot of money to further educate these graduates, some being sent abroad for graduate studies. Some came back and served their purpose.

Studying the legal developments in Zambia discloses that at no time was there a concrete decision made by the Government of Zambia or a resolution passed by any conference organized by the legal fraternity in Zambia to wean the Zambian laws from their colonial moorings. However, individual scholars have been lamenting about the dearth of Zambian materials and case law referencing specific Zambian legal innovations. Professor Muna Ndulo has been vocal about it. Honourable Dr. Justice Mumba Malila wrote about it in his book, Commercial Law in Zambia, as did former Dean of UNZA Law School Fredrick Mudenda in his book Land Law in Zambia. I have an ample section in my book Thoughts Are Free entitled, “Critical Notes on the Legal System of Zambia” (1992) on this same topic, as have other writers.

Canada made a specific decision that as of 1950, no Canadian cases will be appealed to the Judicial Committee of the Privy Counsel. If you read Canadian case law now, you would not recognize that Canada was once an entrenched British colony. British case law has entirely vanished from the Canadian landscape. It is the same in Australia, a once dominant British colony. The US weaned itself immediately after independence in 1776. Of course Canada, Australia and the US are older than Zambia but at least we have precedents of what can be done to get rid of colonial legal imperialism. First you have to have a government decision, second you have to have daring judges who are learned and creative, thirdly you have to have legal academics and researches in law schools, who are funded,innovative, creative and think outside the box. The jury is out on where we are in all these areas.

The Judiciary in Zambia without blame have quoted significantly from foreign British precedents. Students of law take particular pride in quoting British precedents despite an occasional reminder from some of us to begin with existing Zambian precedents in those legal areas.

From its inception, the ZLDC was tasked with proposing necessary law reforms but not legal overhaul of the colonial legal DNA and its progeny and echoes. The report on The Law of Succession was path-breaking. In the recent past, the ZLDC reports have studied and published excellent reports on how various laws should be in conformity with the existing Constitution and not how to get away from the colonial legal structure. The Minister of Justice has now commissioned the ZLDC to embark on getting rid of colonial laws. This it appears has never been that clear or poignant. Will the government be seriously committed to put its resources into this. We will be watching.

In this effort, the Minister and ZLDC should not neglect other key stake-holders in this endeavour: the Judiciary and the Legal Academy. I notice that there are no academics among the recently appointed commissioners unless I missed them. There has to be appointed people with the necessary education, zeal and competence to do the monumental inventory of the repugnant laws. This is not a cake-walk.

For this enterprise to succeed, the government needs to fund law schools so that academics can research and publish on Zambian law, academics and researches need to publish law journals etc. No one knows when the last issue of the Zambia Law Journal for example by UNZA appeared. Now go to Kenya, Ghana, Nigeria, South Africa, Tanzania and Zimbabwe and see for yourself what is published in the law. Zambia is a legal Pygmy in comparison. The latest publication of Zambia Reports only goes up to 2015. Of course there are current cases on the Websites but most users have no internet-wifi access at home. Wifi is expensive. Computers and Laptops are expensive and out of reach for a lot of users, particularly students and young researchers. Internet facilities in universities are not reliable, so hard copies of the law is still the way for a lot of people.

The Judiciary has decried the paucity of legal resources for use. Students are in need of current books and legal materials. They are nowhere in sight. Most course modules are outdated because of lack of funding by the government. Private universities are literally on their own and it is not easy. There are no research assistants to assist the lectures in researching and writing. The last assisted funding for research and publication at UNZA law was by the Swedish International Development Agency (SIDA) in the early 2000s. A few books were published, most of which are already outdated. The University of Zambia library is struggling as are others, of course others more than others.

I taught in North America. Terms there commenced in September. Student materials were up -to-date as of July-August of that same year. In Zambia, the latest published books and modules on law are mostly pre-2010, the ZR is 2015. And Zambian laws and precedents utilize British precedents and laws some of which have been dormant or repealed since 1893. The Minister of Justice is therefore on firm ground. And funding for all stake-holders should be on firmer ground.

Dr. Munyonzwe Hamalengwa is Acting Dean at the School of Law, Zambian Open University. He has an 500-page manuscript entitled, “Commentaries on the Laws of Zambia” based on significant and latest Zambian cases, without forgetting still-alive British precedents.

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