As a magistrate in the subordinate court of the first class, before me is an appeal case, in which

the appellant is appealing on the lower court’s judgement. That the lower court misdirected itself
when it upheld its judgment based on customary law. Therefore, I am going to provide a well-
reasoned judgment that upholds the local courts decision, as well as identifying the key issues for
discussion which include;

Firstly, the Constitution and statutory statutes of customary law, this issue will be dealt with the
following legal authorities; Articles 1,7,118,119 and 120 of The Zambian Constitution
Amendment Act No.2 of 2016 Cap 1 of the laws of Zambia, section 16 of the Subordinate Court
Act Cap 28 of the laws of Zambia and section 12 of the Local court Act Cap 29 of laws of
Zambia.

Lastly the due standard of justice, this issue will be tackled by the relevant legal authorities; The
British Acts Extension Act cap 10 of the laws of Zambia and the of dual stated M. Munalula
(2004:56)

Having identified the issues for discussion, this academic paper will firstly begin by discussing
the legal authorities that apply with the above issues then lastly a conclusive summary will
drown.

Munalula (2004:87) “noted that local customary laws are applicable to the majority of
indigenous Zambians in certain circumstances such as the settlement of family disputes. The
constitution recognizes the validity of customary laws even were the same discriminatory.
However, the adjectival law limits the application of the customary law that is repugnant or
contradicts the written law. A dispute based on customary must be commenced in the local
courts and is only heard by the higher court, the courts of record, upon review or appeal.”

The first issue for discussion is, the constitution and statutory statutes of customary law.
According to Article 1(1) of the Zambian Constitution Amendment Act No.2 of 2016 cap 1 of
the laws of Zambia states that “This Constitution is the supreme law of the Republic of Zambia
and any other written law, customary law and customary practice that is inconsistent with its
provisions is void to the extent of the inconsistency” Further, Article 7 from the constitution
amendment Act No.2 of 2016 cap 1 of the laws of Zambia states that “The Laws of Zambia
consist of; (a) this Constitution, (b)laws enacted by Parliament, (c)statutory instruments, (d)

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Zambian customary law which is consistent with this Constitution and (e) the laws and statutes
which apply or extend to Zambia, as prescribed. Therefore, with reference made to the above
facts, the appellants ground of appeal is based on the application of customary law by the lower
court henceforth this acknowledges the fact that customary law forms a vital part of Zambia in
accordance to section Article 7.

Under Article 118 of the Constitution Amendment Act No.2 of 2016 Cap 1 of the laws of
Zambia talks about the principles of judicial authority, and states that; In exercising judicial
authority, the courts shall be guided by the following principles (d) alternative forms of dispute
solution, including traditional dispute resolution mechanisms, shall be promoted, subject to
clause (3); feather, Article 118 (3) states that; traditional disputer solution mechanisms shall not
(a) contravene the Bill of Rights; (b) be inconsistent with other provisions of this Constitution or
other written law; or (c) be repugnant to justice and morality. This simply means that the courts
have the power to administer judicial authority, in the above situation this includes the local
court however they must abide by the above principles under Article 118 (3).

Article 19 talks about the vesting of judicial authority and performance of judicial function and
states that; Judicial authority vests in the courts and shall be exercised by the courts in
accordance with this Constitution and other laws.

Article 120 (1) talks about the system of courts, and states that; The Judiciary shall consist of the
superior courts and the following courts; (a)subordinate courts; (b) small claims courts; (c) local
courts and (d) courts, as prescribed. Therefore article 120 (1) acknowledges the local court as
part of the court system.

Application of African customary law is also recognized under section 16 of the subordinate
court cap 28 of the laws of Zambia. And states that; Subject as hereinafter in this section
provided, nothing in this Act shall deprive a Subordinate Court of the right to observe and to
enforce the observance of, or shall deprive any person of the benefit of, any African customary
law, such African customary law not being repugnant to justice, equity or good conscience, or
incompatible, either in terms or by necessary implication, with any written law for the time being
in force in Zambia. Such African customary law shall, save where the circumstances, nature or
justice of the case shall otherwise require, be deemed applicable in civil causes and matters
where the parties thereto are Africans, and particularly, but without derogating from their

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application in other cases, in civil causes and matters relating to marriage under African
customary law, and to the tenure and transfer of real and personal property, and to inheritance
and testamentary dispositions, and also in civil causes and matters between Africans and non-
Africans, where it shall appear to a Subordinate Court that substantial injustice would be done to
any party by a strict adherence to the rules of any law or laws other than African customary law.
Therefore section 16 as well gives, the subordinate jurisdiction to administrate customary law.

According to section 12 of the Local Court Act Cap 29 of the laws of Zambia states that subject
to the provision of this Act, the local court shall administer; (a) the African customary law
application to any matter before it in so far as such law is not repugnant to natural justice or
morality or incompatible with the provisions of any written law; (b) the provisions of all by-laws
and regulations made under the provision of the local government Act and in force in the area of
jurisdiction in such local courts.

Henceforth in relation to the above case before me on appeal in which the appellant is
challenging the decision of the local court, on the grounds that the lower court misdirected itself
when it applied customary law is irrational in the sense that; section 12(a) give jurisdiction to the
local court to administer the African customary law to any matter before it, with the only
exception being that when such law should not repugnant to natural justice or morality or
incompatible with the provisions of any written law. In relation to the above case the customary
law that was applied by the lower court, was not misdirected because according to the Zambian
Constitution Amendment act No.2 of 2016 which is the supreme law of the land considers and
recognizes the application of customary law.

Therefore, I am of the view that the lower court did not misdirect itself when it applied the said
customary law and that the appellants ground must fail.

The last issue for discussion is the due standard of justice; Munalula (2004:52) noted that;
“according to the Zambian context, it must be noted that Zambia has a dual legal system
consisting of general law (statutory and common law) and customary law. The general law is
based on the English common law and systems. The common law and selected British Acts were
gradually replaced or subjugated to local statutes but remain the reserve law. The combination
is known as the general law”. Therefore, English law for the purpose meant the common law, the
doctrine of equity and the statutes of general application which were in force in England. This is

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where the application of The British Acts Extension Act Cap 10 of the laws of Zambia which
under its preamble provides for the application of certain British Acts to Zambia and provides for
the amendment to certain British Acts in their application to Zambia.

Customary law, which is unwritten, mostly regulates matters of personal law and is subordinate
to the general law, the bill of rights and all written law. It can be said that Zambia’s customary
law still hold considerable way in Zambia’s society and enjoys constitutional recognition under
Article 7 of the Zambian Constitution Amendment Act Cap 1 of the laws of Zambia. However
customary law ceases to operate only to the extent that they were inconsistent with local
legislation or contrary to natural justice, equity, and good conscience or some such formula.

In relation to the above case the customary law that was applied by the lower court, was not
misdirected because according to the Zambian Constitution Amendment act No.2 of 2016 which
is the supreme law of the land considers and recognizes the application of customary law.

Therefore, I am of the view that the lower court did not misdirect itself when it applied the said
customary law and that the appellants ground must fail.

In conclusion Zambia has a dual legal system consisting of general law (statutory and common
law) and customary law. The application of customary law is recognized under Article 7 of the
Zambian Constitution Amendment Act Cap 1, section 16 of the subordinate court Act and
section 12 of the Local Court Act Cap 29 of the Laws of Zambia. Therefore, the decision of the
lower court on its application of Customary Law should be upheld.

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 REFERENCE

The Zambian Constitution Amendment Act No. 2 of 2016.

Mulela Margaret Munalula (2004) Legal Process; Zambia Cases, Legislation and
Commentaries UNZA press Lusaka Zambia.

The subordinate Court Act Cap 28 of the Laws of Zambia.

The Local Court Act Cap 29 of the Laws of Zambia.

The British Acts Extension Act Cap 10 of the laws of Zambia.