Where there is no will there will be no way: A book review on The Law of Succession in Zambia

I pass at various bookstores to check on any latest law books at least once a week. My last visit yielded a new book by Dr Henry Bwanga Mbushi, enticed, “Zambian Law of Succession – Customary, Intestate and Testate Law” (Lusaka: Book Publishers Association of Zambia, 2020, pgs 248). This book demonstrates once again our continuing theme about the poverty of Zambian legal scholars and legal scholarship. Despite the importance of the law of Succession and the different intertwinedness of common Law, statutory law and customary law embedded herein and its recurring complex litigation involved and the trauma it levies on the participants, this is the first and so far, only book in Zambia, making Dr Mbushi a legal pioneer in the Law of Succession.

As I flipped through this book while leaning on the bookshelf stuffed with law books written by English and Indian authors, it dawned on me that I must immediately contact the author for an interview on the subject matter of this book. His contact details were in the book. Many things intrigued me about this book as I flipped through it, starting with the inside cover that contains information about the City of publication, publishing company and year of publication then going over to the outside back cover which details the mini-resume of the author and the gist of the importance of the book: the book is not written by an academic but by a lawyer of many years standing at the Bar, unusual because unlike in Canada, US, UK, South Africa etc, Zambian lawyers hardly write. In Zambia, a few law books that exist have been written by academics or former academics. What prompted this lawyer to pioneer this important book on the Law of Succession was a question I wanted to ask him.
Secondly, the author keeps stating that the text and or the book is not perfect. Why is he saying that? Thirdly, there is no bibliography in this book indicating that this area has not been researched and written about in Zambia. My question for the author would be: what are his speculations, if any, of why this area is not written on or about despite its importance? The Author partly answers this question when he writes that he has mainly used legal materials from South Africa to fill in the lacunae missing in Zambia and because the South African materials are analogous to the Zambian situation. Fourthly, I wanted to find out more about the Author’s unusual engagement in the educational enterprise of a life time. The Author went up to old form 2 at Munali Secondary School in the early 1960s, then did his studies by night school or correspondence up to his Cambridge General Certificate of Education while employed as a teacher in North Western Province and on the Copperbelt. From there he got a scholarship to go to university in India in the seventies. He came back and joined INDECO group of companies. He then left again to secure his law degree at UNZA between 1975 and 1979. He started practising law in 1981 and after a time, he left to get his LLM in Australia. After coming back, he practised again before being sent into diplomatic service. After diplomatic service, he came back to practice and to teach at various universities while studying for a PhD in Law.

For me this is very interesting practical and academic resume. Dr Mbushi is an academic at heart and that explains his intermittent work and study breaks and reaching the higher echelons of academic accomplishment. His resume mirrors mine in many respects and those of a few others. I believe there is a difference in practising or teaching law between those who never practised law and those who never taught law with those who did both. This subject matter is for another day. It goes the same for judges. One needs to have practised law or taught law before elevation to the bench. Better if one did both. Again this is for another day.

This book also speaks to both practical aspects of being a lawyer engaged in the practice of litigating law of succession cases, experiencing the paucity of legal materials in this important area of Law which touches on practically the entire population at some stage in their lives. At the same time Dr Mbushi was aware of the richness of materials on The Law of Succession in South Africa where he lived for some time and even got a wife from there. His continuing interest in academia led him to continue teaching and desired to place his knowledge at the disposal of the students, the general public, ZIALE students, lawyers and judges. This book is for everybody. However, my reading of this book is that it is a complex area of Law and of high academic and legal practice content that would not be suitable for the general public. Anyone who reads this book will find that. The Law of Succession is not an easy area to master or muster.

After flipping through the book, I called Dr Mbushi for an interview. We met the same day at Woodlands Mall. He endorsed my free copy of the book which is the subject of this write-up. Dr Mbushi told me that he took the manuscript to a number of judges and legal friends, some of whom he went to law school with but none agreed to peer-review the book because no one had the time outside their legal practices or writing judgments. The space for legal authorship camaraderie is constricted in Zambia. Even in the academy, fellow lecturers have no time or little time to peer-review another academic’s work. This book could have used a lot of peer-reviewing to catch some simple errors in incomplete sentences, unclear sentences and so on. Otherwise this book is written by a learned and practising counsel. It is a must read for any student, lawyer and judge who is tasked to do a case on the Law of Succession.
The layout of the book is excellent: Chapter one introduces the subject matter, Chapter two discusses the Meaning of the Law of Succession; Chapter three deals with the Background to the Zambian Law of Succession, Chapter four delves into General Principles of Zambian Intestate Succession Law; Chapter five concerns General Rules of Testate Succession; Chapter Six is on Formalities for a Will; Chapter Seven disposes of the Revocation and Renewal of Wills; Chapter eight deploys Capacity to Inherit; Chapter nine engages Freedom of Testation; Chapter ten reveals Contents of Wills; Chapter eleven contributes to Content of Wills, Substitution, Usufruct and Accrual; Chapter 12 moves on to discuss Trusts; Chapter 13 disseminates the Interpretation of Wills; Chapter 14 reverts to Customary Law Reforms in Zambia; Chapter 15 concentrates on Administration of Estates.

Each chapter is followed by a good summary of that chapter in point form and throughout many chapters there are boxes containing “pause for reflection” interregnums. These are useful study scenarios. The last part of the book contains entire reproductions of relevant legislation in the field like 1. The Intestate Succession Act; 2 The Wills and Administration of Testate Estates Act and 3. Probates (Resealing) Act; Succession Terminology is reproduced and there is a comprehensive table of cases, statutes and index. Where there is no will, there is no way. This book shows that where there is will to research and write to illuminate The Law of Succession in Zambia, there is a way. This book is the way.

Dr Munyonzwe Hamalengwa teaches Law at Zambian Open University School of Law, teaching Research Methodologies; Law of Evidence and Criminal Law.

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