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ZIALE conundrum as a symptom of the collapse of Zambia’s legal system

This is not being alarmist or using shock tactics. If the recent ZIALE passing rate of 1 per cent on first attempt is put in context, as I do in this article, it will be conclusively found that this conundrum is but a bleep of a symptom in the sea of quandary of the increasing collapse in the legal system of Zambia. You can start analyzing this phenomenon from anywhere: law schools offering legal education, ZIALE, LAZ, The Judiciary, The Party and its government, anywhere, you will discover that there is indeed festering rot in Zambia’s legal system. But everything is connected to everything else and exit will entail total destruction of the existing system and rebuilding anew.

Where do I start? Ten-year old Taonga wants to be a lawyer so that she can contribute to the provision of the much needed access to justice and to improve the fairness of the judicial system( see article in Sunday Mail, September 30, 2018). Even at that early age Taonga knows that Zambia suffers from a serious deficit in the availability of access to justice and is already suspicious that the judicial system is not fair. Taonga is supported in her belief that access to justice is a problem by the Government of Zambia whose Cabinet met on Monday October 1, 2018 and decided at that meeting to expand the legal aid programme provisions because according to Honourable Dora Siliya, lack of access to justice leads many perhaps innocent people to spend an unacceptable amount of time in pre-trial detention and possible convictions thereafter because they cannot afford to hire costly lawyers (see Zambia Daily Mail, October 2, 2018). Indeed as The Sunday Times of Zambia reports in its editorial of September 30, 2018, “lawyers’ fees are criminally high” making justice out of rich for the majority of Zambians.

LAZ and ZIALE compound the endemic poverty in Zambia’s legal system. They contribute to poverty in the access to justice quotient. On first attempt the passing rate is torturously low: .8, 1, 2 percent etc. In Canada, the passing rate at first attempt is over 90 percent, in the US the average is in the range of 50 to 65 per cent.  All types of explanations have been given for this low percentage pass at first attempt; half-baked lecturers from half-baked new and numerous law schools passing on half-baked students artificially onto ZIALE which is itself allegedly a cesspool of incompetence and comprised of half-baked lecturers who teach part-time and are too busy to devote their time 100 percent to students. A proposal has been made by Higher Education Authority (HEA) Director  General Professor Stephen Simukanga that ZIALE Lectures must teach full time rather than part-time and he believes that “students going to ZIALE had the ability to to do well”.( see Daily Nation, October 31, 2018).

Unfortunately the HEA and Professor Simukanga have no jurisdiction over ZIALE. ZIALE is outside the purview of HEA. The HEA regulates “higher education” of ” higher education institutions”. ZIALE does not offer “education leading to the qualification of a diploma, BA, MA or PhD”. It only offers postgraduate professional qualification which does not lead to an academic qualification in form of a degree or diploma. The HEA defines a higher education institution as a university or college that is public or private. ZIALE is neither a University nor a College. (See Munyonzwe Hamalengwa, Commentaries on the Laws of Zambia, forthcoming). ZIALE and HEA at  best can be cooperating partners especially in the regulation of law schools but none of them can supervise the other. ZIALE is therefore a loose canon in the pantheon of Zambia ‘s legal food chain. Very good luck to Justice Minister Lubinda who is calling for accountability at ZIALE respecting the low passing percentages where some analysts have analogized ZIALE to a cartel, being restrictive of the numbers that enter its sanctum.

After a genius has emerged from ZIALE because that is what it takes to pass ZIALE given the criminally lower percentages on first attempt, after someone has been passing from Grade One through law school, most without ever failing a single subject in their lives, the LAZ Act detains these people for five years doing indentureship at a law firm in Lusaka, Kabwe, Ndola, Mongu, Kitwe and other Copperbelt and major towns restricted from opening their own law firms to increasing the number of practising lawyers to provide access to justice. Because of the LAZ Act restrictions on new lawyers, law firms only exist in major centres along the line of rail exposing the rest of the rural areas and small towns to existing without any lawyers whatsoever and where legal aid centres don’t also exist. Access to justice is affected.

The LAZ Act treats new lawyers as if they never attended law school because it continues to engage in an antiquated legal practice before the existence of law schools when a person could only become a lawyer after five years practical experience with an already existing law firm, which members themselves had become lawyers after five years clerkship. In England, Canada, US, Australia etc where Zambia got this antiquated legal regime, a lawyer can open his or her own law firm in the afternoon of the day of the Call to the Bar. These and other countries recognize that this new Call to the Bar, spent years in law school and articled or clerked for at least one year during or before the Bar examinations so they need no longer be subjected to further restrictions. In a country short of lawyers like Zambia, with endemic lack of access to justice by the majority of its citizens, there is really no justification for detaining lawyers for another five years after doing four years of law school and and moulded into geniuses by ZIALE through a combination of attachment to a law firm and rigorous daily training and punishing exams. ( see also an excellent article by N.A. Khan-Fogel, “The Troubling Shortage of African Lawyers: Examinations of a Continental Crisis Using Zambia as a Case Study”, 2012. 33:3 U.Pa.J. Int’l L).

Justice Minister Honourable Given Lubinda had talked about relinquishing some colonial legal relics which must be thrown into the dustbin of history, may well go after the LAZ Act.

In terms of the anemic conditions of law schools and legal education in law schools in Zambia, Dae Un (Danny) Hong (PhD candidate, Cornell) has said it all in his paper delivered at the University of Zambia on July 27, 2016 entitled, “The Decline of Legal Scholarship in Zambia”. He documents the declining numbers of every yardstick that constitute a breathing and thriving law school: funding, number of PhDs, research output, number and frequency of journals, presence on the Internet, rankings amongst best universities in Africa and the world, infrastructure, salaries etc. Zambia lies at the bottom in English speaking Africa in all categories. Many professors have migrated abroad. The Zambia Law Journal appears infrequently and hasn’t appeared for years. Zambia has only produced four (four) PhDs in law in 54 years. Many give up and go abroad to finish in record time. This is among other reasons because of lack of funding or transitory supervision by lecturers who are underpaid and are pursuing other avenues to make ends meet or due to laziness. There is no research or publication funding of any sort in Zambia. The last spurt of publications at UNZA were funded by the Swedish International Development Agency (SIDA) which led to quite a number of useful law books. There are no legal aid clinics in law schools so students do not get sensitized to the issues of access to justice and pro bono legal work. Worse there is no interface between the academy and the Bench to mentor young students as is the case in Canada and the Us where Judges, Peofessors/Lecturers and Students interface much more often despite their divergent paths.

The Bench, the government and the legal profession do not give succour to notions of access to justice. Let’s hear it from an English Judge who feared to be saddled with the appellation of Exercising “legal imperialism” with his decision to accept a Zambian case in an English court in the case of Lungowe  versus Vedanta Resources. One of the reasons the judge of the High Court (Technology) gave for accepting jurisdiction in England was that the victims of environmental mining pollution will not obtain access to justice in Zambia because of the lack of legal aid, paucity of experienced environmental class action lawyers, the obduracy of powerful mining companies in Zambia and political corruption.

A Zambian High Judge had already found in the case of  Nyasulu and 2000 others versus KCM that KCM in Zambia “was shielded from criminal prosecution by political connections and financial influence” giving the English High Court judge confidence that his decision to assume jurisdiction in England was correct and comported with the fundamentals of access to justice. The judge in England concluded that ” there must come a time when access to justice in this type of case will not be achieved by exporting cases, but by the availability of local lawyers, experts, and sufficient funding to enable cases to be tried locally”. He had already found that the judiciary in Zambia is frail when confronted by powerful monied interests with political connections like mining companies. It is a long way to that time.

LAZ has stated as contained in the Lusaka Times of November 1, 2018 that Constitutional Court Judges are unqualified if one ranged their qualifications to the requirements of Article 141 of the Zambian Constitution as Amended in January 2016. To shield themselves from ferocious attacks, fair or unfair, the judiciary has now began to engage in contempt of court proceedings against the belligerents, prompting many observers including me to write severally including the article published in The Mast on October 22, 2018 entitled, “Is the Zambian Judiciary Revolutionary or Counter-Revotionary?”

We end where we started by quoting the Chitimukulu Henry Kanyanta Sosala who stated among other things that “The Collapse of the Legal System of Zambia” is evidenced “….where the High Court and Constitutional Court Judges are making 180 degrees u-turns on their own earlier rulings”. ( Lusaka Times 03/06/2017). This is a sign of political interference and judicial chicanery. Access to justice is affected when judges flip flop.

Even Honourable Mwanakatwe was seen celebrating her victory  in the Election Petition appeal in a green outfit on the covers of Zambian newspapers on November 1, 2018. She was not sure of her victory because of flip flops even though many court observers knew the decision was predictable, especially since Justice Musalukwe was appointed and one of his explanations for his appointment without applying for the job was that the appointing authority had confidence in him!

Lack of access to justice is all interconnected and it will take the powers of the 10-year old million Taongas to usher in a new era. Not the current configuration of legal forces.

 

Dr. Munyonzwe Hamalengwa is Acting Dean of Law at Zambian Open University School of Law.

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