(842)

SCZ JUDGMENT NO. 36 OF

2014

IN THE SUPREME COURT OF ZAMBIA APPEAL

NO.109/2013
HOLDEN AT LUSAKA
(Civil Jurisdiction)

BETWEEN:

KELVIN HANG’ANDU
APPELLANT
AND
LAW ASSOCIATION OF ZAMBIA
RESPONDENT

Coram: Chibesakunda, Ag. CJ, Lisimba, and Lengalenga Ag.JJS, on

6th June, 2014 and 29th July, 2014

For the Appellant: In Person

For the Respondent: Mr. K. Chenda, of Messrs. Simeza,
Sangwa and Associates

JUDGMENT
Chibesakunda, Ag. CJ delivered the Judgment of the
Court.

Cases referred to:

1. Union Bank v. Munster (1888) 37 Ch. D 54;

2. Greenlands Ltd v. Wilmshurst (1913) 29 T.L.R 687;
3. Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed. 2d
140 (1986);
4. Braunfeld v. Brown, 366 U.S 599, 81 S.Ct. 1144, 6 L.Ed.2d 563
(1961);
 5. Sherbert v. Verner, 374 U.S. 399, 83 S.Ct. 1790, 10 L.Ed.2d 965
(1963);
6. School District of Abington Township v. Schempp, 374 US 203,
83 S.Ct. 1560, 10 L.Ed.2d. 844 (1963);
7. U.S. v. Seeger, 380 U.S. 163 (1965);
8. Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91
L.Ed. 711 (1947);

(843
)

9. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98

L.Ed. 873 (1954);
10. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256
(1896);
11. Strauder v. West Virginia, 100 U.S. (10 Otto) 303, 25 L.Ed. 664
(1878);
12. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220
(1886);
13. Furman v. Georgia 408 US 238, 33 L Ed 2d 346, 92 S.Ct 2726
(1972);
14. Kachasu v. Attorney-General (1967) ZR 145;
15. Anderson Mazoka and Others v. Levy Mwanawasa and Others,
(2005) ZR 138;
16. Attorney-General v. Achiume (1983) ZR 1;
17. Communications Authority of Zambia v. Vodacom Zambia,
(2009) ZR 196;
18. Arthur Lubinda Wina and Others v. Attorney-General (1990-
1992) ZR 95;
19. Edith Nawakwi v. The Attorney-General (1990-1992) ZR 112;
20. Undi Phiri v. Bank of Zambia (2007) ZR 186;
21. Ramlogan v. The Mayor of San Fernado (1986) LRC 377;
22. Koinange v. Attorney-General and Others (2007) 2 EA 256
(HCK);
23. Adegbenro v. Akintola (1963) A.C 614; and
24. Barry v. Midland Bank Plc (1999) 3 All ER 972.

Statutes referred to-

1. The Constitution of Zambia, Chapter 1 of the Laws of Zambia;

and
2. The Education (Primary and Secondary Schools) Regulations,
1966.
Other works referred to-

1. Longman Dictionary of Contemporary English, New Edition, for

Advanced Learners (Essex, Pearson Education Limited, 2009);
2. Macmillan English Dictionary for Advanced Learners New
Edition (Oxford, Macmillan Publishers Limited, 2007); and
3. Oxford Paperback Thesaurus, Third Edition (Oxford, Oxford
University Press, 2006).

(844

This is an appeal from a judgment of the High Court

delivered on 31st December, 2012 following a petition, for the
protection of fundamental rights, filed by the Appellant on 7 th
September, 2010. The main facts of this matter are simple and
substantially not in dispute.

The Appellant’s case can be gathered from his Petition, his

testimony and the testimony of his only other witness, Patson
Tembo. His case is that he is an Advocate of the High Court of
Zambia, and a member of the Law Association of Zambia, the
Respondent in this Appeal. That he has been a member of the
Respondent since 15th November, 1996, when he was admitted to
the Bar. That on 24th May, 2003, he was baptized into the
Christian faith of the Seventh Day Adventists (SDA).That among
the fundamental doctrinal beliefs of the SDA is the immutable
biblical command, enshrined in Exodus, Chapter 20, verse 8-11 of
the Bible, that the seventh day of the week is the Sabbath of the
Lord, and must be sacredly observed between Friday sunset, and
Saturday sunset, through public worship and complete abstention
from any form of menial work and regular activity, such as
participation in the Annual General Meetings and other meetings
(hereinafter collectively referred to as “the meetings”)
customarily conducted by the Respondent on Saturdays.

(845)

The essence of the Appellant’s Petition was that the

Respondent had continued to hold its meetings on Sabbath
despite his formal written complaints that his fundamental rights
to religious liberty and freedom from faith based segregation
should be upheld by the Respondent. Accordingly, the Appellant
prayed that-

(a) it may be determined and declared that his

fundamental rights to freedom of conscience, and not
to be discriminated against had been contravened,
contrary to Articles 11(a), 19(1), and 23(2) of the
Constitution of Zambia;

(b) it may be determined and ordered that the

Respondent, whether by itself, its agents, or servants
or otherwise howsoever be restrained and an
injunction be granted restraining it from holding or
 transacting any of its formal meetings during the
Sabbath;

(c) the Court may make such order, issue such writs,
and give such directions as it may consider
appropriate for the purpose of enforcing or securing
the enforcement of any of the fundamental rights
provisions allegedly violated in relation to the
Appellant pursuant to Article 28(1) of the Constitution
of Zambia; and

(d) the Appellant may have the costs of the action,

and any such further relief or other reliefs, as may be
just.

On 28th October, 2011, the Respondent filed its Answer to

the Petition. During trial, the Respondent did not call any witness

(846)

because its Counsel held the view that the facts of this case were
not in dispute and that the resolution of the matter largely
depended on the interpretation of the law.

In its Answer, the Respondent denied that it had conducted

its affairs in a discriminatory manner that had resulted in
excluding the Appellant, from participating in its meetings, on the
ground that he is a member of the SDA Church. The Respondent
contended that the practice of holding its meetings on Saturdays
had been in place from time immemorial, and way before the
Appellant’s professed conversion to SDA. It denied that the
Appellant’s fundamental right to religious liberty and freedom
from faith based segregation had been infringed. It stated that
the holding of its meetings on Saturday was due to the
convenience of the day for the majority of its members.

After considering the evidence before him, and the

submissions by the Appellant as well as those by Counsel for the
Respondent, the learned trial Judge stated that there were two
questions for his determination. He outlined the first question as
whether or not the Respondent had willfully continued to
contravene the Appellant’s freedom of conscience as provided for
in Article 19 of the Constitution, and the second, as whether the

(847)

Respondent willfully continued to contravene the Appellant’s

fundamental right of protection from discrimination on the ground

of creed as provided for in Article 23 of the Constitution. The

learned trial Judge dismissed both limbs of the Appellant’s claim
and ultimately the entire Petition.

The Appellant has appealed, to this Court, against that

judgment of the learned trial Judge, raising the following grounds:
1. that the honourable trial Court misdirected itself in law
in dismissing the Appellant’s claim that the Respondent
breached his fundamental right to freedom of
conscience, as enshrined by Article 19(1) of the
Constitution of Zambia Cap. 1, notwithstanding the
Respondent’s conscience or deliberate timing and
convocation of its official business on the Sabbath i.e.
between Friday sunset and Saturday sunset, by failing
to show that his non-attendance or participation in
such programmes resulted from some positive act or
constraint, restriction, or form of coercion imposed on
him by the Respondent; in that no such criteria is
required by Article 19(1) of the Constitution of Zambia
as a sine qua non for proving a violation of the said
Article;

2. that the honourable Court misdirected itself in law in

holding that the Appellant failed to adduce any
evidence showing that he has been discriminated
against by the

(848
)

Respondent in that the finding of fact was against the

weight of the evidence adduced at the trial;

3. that alternatively and without prejudice, the

honourable Court misdirected itself in law in holding
that the Appellant failed to adduce any evidence
showing that the Respondent schedules its formal
 meetings in order to suit the religious beliefs or
opinions of non-Seventh-day Adventists (SDAs) or
otherwise so as to favour non-SDAs in that the finding
of fact was against the weight of the evidence adduced
at the trial;

4. that the honourable Court misdirected itself in law in

holding that the Appellant failed to prove the charge of
discrimination against the Respondent, by failing to
prove that a similarly circumstanced or situated
member of the Respondent had likewise complained
but received more favourable treatment than him, in
that no such criteria is required by Article 23(2) of the
Constitution of Zambia as a sine qua non for proving
discrimination and contravention of the said Article;
and

5. the lower Court misdirected itself in law in holding that

granting the Appellant’s Petition against the
Respondent would in itself sanction discrimination in
favour of the

(849)

Appellant, in that the holding is unconscionable or

otherwise unjust, inequitable, and entirely destitute of
legal precedent; and thus an arbitrary rule or precept
 instituted by the High Court of Zambia for the purpose
of this action alone.

In support of the foregoing grounds of appeal, the Appellant

filed very detailed heads of argument which he supplemented
withviva voce submissions. The viva voce submissions were
essentially a restatement of the salient points of his filed heads of
argument.

In ground one, the Appellant started by presenting a

discussion of the history of freedom of conscience. We must state
from the outset that we do not see how the historical
development of freedom of conscience would have any bearing
on the issues to be determined in this appeal. The actual
existence of freedom of conscience has not been disputed by the
Respondent. We will not, therefore, make any reference to
arguments relating to the historical development of freedom of
conscience.

In his substantive arguments, the Appellant has argued that

charging the Respondent with abnegation of its constitutional
obligation, not to infringe, or otherwise to refrain from the

(850)
continued infringement of, his freedom of conscience and
protection from discrimination on account of creed, is rooted on
the fact that the Respondent is a professional Association of
lawyers uniquely constituted by an Act of Parliament. That
according to section 4(1) of the Law Association of Zambia Act,
Cap 31, the Respondent has an obligation to advance the rule of
law and the rights and liberties of the individual. That, therefore,
the Respondent’s violation of his constitutional right to freedom of
conscience and protection against discrimination on the ground of
creed, ironically contravenes one of the Respondent’s own
principal statutory objects: ‘the advancement of the rule of law
and of rights and liberties of the individual.’

In support of ground one, the Appellant faulted the learned

trial Judge for having used English dictionaries to define the term
‘hindered’, which has been used in Article 19(1) of the
Constitution. He submitted that the Court below should have
instead followed the long line of judicial precedents that have
clearly defined the true import of freedom of conscience. The
Appellant contended that an English dictionary is not a legal
authority and can never be an authoritative statement of
constitutional law. To reinforce the foregoing arguments, the
Appellant referred us to Union Bank v. Munster(1); Greenlands
Ltd v. Wilmshurst(2) and Bowers v. Hardwick(3).
(851)

The Appellant went on to submit that the Respondent’s

deliberate timing of its meetings during the Sabbath, by itself,
amounts to a violation of his freedom of conscience. That it was
not a legal requirement that enforced attendance of the
Respondent’s meetings had to be proved in order for the
Appellant to successfully plead that his freedom of conscience has
been violated. That freedom of religious conscience can still be
indirectly impeded or even effectually destroyed where the
adherents of a religious faith are forced to abandon their religious
convictions by a measure whose natural or indirect result is to
disadvantage members of a particular faith alone.

The Appellant maintained that the timing of the

Respondent’s meetings unfairly hinders him from participating in
the affairs or activities of the Respondent because the holy
Sabbath, which he devoutly observes as a constituent part of his
religious creed as a baptised Seventh-day Adventist, falls during
the same period. He went on to submit that freedom of
conscience or religious liberty has been said to comprise: “the
right to have or adopt the religion of one’s choice; to change
religious belief according to conscience; to manifest one’s religion
individually or in community with fellow believers, in worship,
observance, practice, witness and teaching, subject to respect for
the equivalent rights of others” (See Seventh Day Adventist
Church Manual Revised, 2005, 17th Edition).

(852)

The Appellant noted that the Respondent’s rebuttal to the

petition was that it has never compelled him to abscond from its
meetings held on the Sabbath. His reply was that the convocation
of the Respondent’s meetings during the Sabbath, has everything
to do with him as a devout member of the SDA, in so far as the
timing unfairly hinders him from participating in the Respondent’s
meetings by reason only of his faith, and notwithstanding that he
has been a bona fide member of the Respondent since 15 th
November, 1996, when he was admitted to the Zambian Bar. In
advancing the foregoing submissions, the Appellant drew
inspiration from the decision of the US Supreme Court in
Braunfied v. Brown(4).

The Appellant also referred us to the cases of Sherbert v.

Verner(5); and School District of Abington Township v.
Schempp(6) to further reinforce his submissions.

The Appellant further contended that it is a violation of the

liberty of conscience, and the free profession of faith to officially
compel religious doctrinal indoctrination on the pain of legal
sanction. He cited the case of Sherbert v. Verner(5) as authority
for the view that freedom of religious conscience may subtly and
yet effectually be destroyed where the adherents of one religious
faith are compelled to abandon their religious convictions
respecting a day of rest, via a measure whose design in effect
selectively aims at

(853)

or even intrinsically disadvantages members of a particular faith

alone. He went on to argue that this could be through State
legislation, as was the case in Sherbert v. Verner(5), or via the
unlawful act of a public body constituted by an Act of Parliament,
such as the Respondent.

Coming to ground two, the Appellant submitted that the

learned trial Judge’s finding of fact that he failed to adduce any
evidence showing that he had been discriminated against by the
Respondent, was against the weight of the evidence adduced
before the Court below. The Appellant contended that the facts
before the learned trial Judge indisputably proved that the
Respondent’s holding of its meetings during the Sabbath
effectively discriminates against him, on the basis of his religious
creed. He argued that the timing of the Respondent’s meetings
unfairly deprives him of the opportunity to vie for elective offices
in the Respondent and to participate in the consideration of the
Respondent’s budget. To buttress the foregoing submissions, the
Appellant cited the cases of U.S. v. Seeger(7); Everson v.
Board of Education(8); Brown v. Board of Education(9); and
Plessy v. Ferguson(10).

The Appellant went on to contend that discrimination can

either be intentional or unintentional. He relied on the cases of
Strauder v. West Virginia(11), Yick Wo v. Hopkins(12) and

(854)

Sherbert v. Verner(5), to aid his argument that discrimination is

intentional if it clearly singles out a particular group of persons for
unfavourable treatment. He submitted that discrimination is
unintentional if, a law which isprima facie fair and impartial is
administered by a public authority with an evil eye and unequal
hand thereby practically making it unjust.

The Appellant submitted that the law does not require him to
show that the Respondent has put in place a regulation that bars
him from attending its programmes convened during the Sabbath,
in order to prove his case of discrimination. On the authority of
Furman v. Georgia(13), he argued that in cases alleging unlawful
segregation or inequality of treatment, an act or law that is ex
facie non-discriminatory, can in fact be discriminatory in its
operation or effect.
 The Appellant further submitted that the SDA Church cannot
shift the Sabbath to any other day to accommodate him because
the Sabbath is enjoined by God. That conversely, the Respondent
is free to shift its business to other non-worship days, such as
Monday to Thursday.

With regard to ground three, the Appellant argued that the

Court below misdirected itself in law by holding that the Appellant
failed to adduce any evidence to show that the Respondent

(855)

schedules its meetings in order to suit the religious beliefs of non-

SDAs. He argued that there was evidence before the trial Court to
the effect that the Respondent’s timing of its meetings during the
Sabbath is directly irreconcilable with the Appellant’s religious
faith.

The Appellant went on to argue that the facts of Kachasu v.

Attorney-General(14) are distinguishable from the facts of the
instant case. He submitted that, in the Kachasu(14) case, what
was impugned, as being unconstitutional, was an Act of
Parliament, the Education (Primary and Secondary Schools)
Regulations, 1966 while in the present case the Petition relates
to the conduct of the Respondent. Further that, the Kachasu(14)
case never considered the question of protection from
discrimination on the ground of one’s creed. The Appellant also
contended that the ratio decidendi in the Kachasu(14) case was
that the Education Regulations infringed the Applicant’s freedom
of conscience, but that the Regulations were nevertheless
reasonably required by Zambia, as a democratic State, for the
furtherance of both national unity and security.

Coming to ground four, the Appellant submitted that the

learned trial Judge misdirected himself when he held that the
Appellant failed to prove the charge of discrimination against the
Respondent, by failing to establish that a similarly circumstanced

(856)

or situated member of the Respondent had complained but

received more favourable treatment than him. The Appellant
argued that no such criterion is required by either Article 23(2) or
Article 28(1) of the Constitution of Zambia.

As for ground five, the Appellant submitted that the lower

Court misdirected itself in law when it held that granting the
Appellant’s Petition against the Respondent would in itself
sanction discrimination in favour of the Appellant. He submitted
that the learned trial Judge’s holding was wrong at law because
there are many precedents in which Sabbatarians have
successfully obtained a remedy on the ground that denial of
certain benefits which extended to other classes of persons was
wholly attributable to their faith as SDAs. To buttress the
foregoing arguments, he cited the case of Sherbert v. Verner(5).

In response to the Appellant’s grounds of appeal and

supporting arguments, Counsel for the Respondent, Mr. K Chenda,
filed written heads of argument which he augmented by brief oral
submissions.

In brief, Mr. Chenda’s argument in opposition to ground one

was that the learned trial Judge properly directed himself when he
referred to English dictionaries for the definition of the word
‘hindered’. To reinforce his argument, Counsel referred us to our

(857)

decision in Anderson Mazoka and Others v. Levy

Mwanawasa and Others(15) where, when interpreting the word
‘determine’, as used in Article 41(2) of the Constitution, this Court
referred to the Concise Oxford Dictionary, 9th Edition.

Coming to grounds two and three, Mr. Chenda argued the

two grounds as one. Counsel contended that grounds two and
three attacked the learned trial Judge’s findings of fact. In support
of this argument, Counsel cited the cases of Attorney-General
v. Achiume(16) and Communications Authority of Zambia v.
Vodacom Zambia(17).
 With regard to ground four, Counsel submitted that the need
for a comparative investigation, when faced with an allegation of
discrimination, is not unique to the Zambian jurisdiction. Counsel
cited a judgment that was handed down by the High Court of
Trinidad and Tobago in Ramlogan v. The Mayor of San
Fernando(21) where the Court observed, at page 391, that-

“As far as the Applicant’s claims under sections 4(b)

and 4(d) of the Constitution are concerned, I do not
find any evidence that the Applicant was treated less
equally than any other individual similarly
circumstanced, or that the Applicant was
discriminated against.”

(858)

Counsel further argued that the definition of ‘discrimination’,

in Article 23(3) of the Constitution, clearly shows that the Court is
required to invoke a comparative investigation when faced with a
complaint of discrimination. As authority for this argument,
Counsel referred us the cases of Arthur Lubinda Wina and
Others v. Attorney-General(18); Edith Nawakwi v. The
Attorney-General(19); Undi Phiri v. Bank of Zambia (20); and
Koinange v. Attorney-General and Others(22).

Lastly, on ground five, Counsel contended that if the Court

compelled the Respondent to move the day for its meetings from
Saturday to another day of the week the effect would be to favour
the Appellant, on the one hand, against the interests of the rest of
the members of the Respondent. In Counsel’s view, that would be
a judicial endorsement of discrimination.

We have carefully considered the evidence on record and

the judgment appealed against. We have also aptly analysed the
industrious submissions advanced by the Appellant as well as
those by Counsel for Respondent. We are deeply indebted to both
parties for the extensive research that noticeably went into the
preparation of their respective submissions. We will deal with
grounds two, three, four and five as one because they all relate to
the issue of discrimination. We will decide on ground one
separately. We will start with ground one.

(859)

In ground one, the argument by the Appellant is that the trial

Court misdirected itself when it dismissed his claim that the
Respondent breached his freedom of conscience as enshrined in
Article 19(1) of the Constitution, Cap 1. The Appellant has argued
that the learned trial Judge misdirected himself when he relied on
English dictionaries to define the word “hindered” used in Article
19(1).

From inception, we must state that the Respondent has not

contested the Appellant’s belief in the inviolability of the Sabbath.
The critical question for our decision, in our view, is whether or
not the holding of the Respondent’s meetings on the Sabbath
hinders the Appellant’s enjoyment of freedom of conscience
enshrined in Article 19(1) of the Constitution. Article 19(1)
provides that-

“19. (1) Except with his own consent, a person shall

not be hindered in the enjoyment of his freedom of
conscience, and for the purposes of this Article the
said freedom includes freedom of thought and
religion, freedom to change his religion or belief, and
freedom, either alone or in community with others,
and both in public and in private, to manifest and
propagate his religion or belief in worship, teaching,
practice and observance.”

After painstakingly studying clause (1) of Article 19, we

agree entirely with the learned trial Judge that the operative word
in that clause is ‘hindered’. The phrase ‘freedom of conscience’
itself is

(860)

unmistakably defined within that clause as quoted supra. So the

only word that we must define, in order to properly understand
clause (1), is ‘hindered’.

In his judgment, the learned trial Judge formulated a

definition of ‘hindered’, after referring to Longman Dictionary
of Contemporary English, New Edition, for Advanced
Learners (Essex, Pearson Education Limited, 2009);
Macmillan English Dictionary for Advanced Learners New
Edition (Oxford, Macmillan Publishers Limited, 2007); and
Oxford Paperback Thesaurus, Third Edition (Oxford,
Oxford University Press, 2006). He defined ‘hindered’ as
follows:
“… the word ‘hindrance’ in the context of Article
19(1) of the Constitution seems to me to suggest or mean
an impediment, obstacle, barrier, bar, obstruction,
restraint, restriction, limitation, encumbrance that tends
to abrogate fundamental rights and freedoms that would
require judicial intervention and redress.” (Emphasis by
underlining ours).

The Appellant has, however, faulted him for having arrived

at that definition on the basis of interpretations obtained from
English dictionaries. The Appellant has argued that in defining
that word, the Court below should have followed the long line of
judicial precedents that have clearly defined the true import of
freedom of conscience. The Appellant’s submission canvassed the
view that the learned trial Judge should have defined ‘freedom of
conscience’ on

(861)

the basis of what he refers to as ‘the long line of judicial

precedents’. In our view, the Appellant’s argument is frail at law.
We hold the considered opinion, and entirely agree with the
learned trial Judge, that the term that needed to be defined, in
order to arrive at a clear understanding of Article 19(1) of the
Constitution, was ‘hindered’ and not ‘freedom of conscience’. The
drafters of our Constitution have already defined ‘freedom of
conscience’ in Article 19(1) itself. The Appellant has not advanced
any solid grounds upon which we can be persuaded to abandon
the interpretation of ‘freedom of conscience’ contained in Article
19(1), in preference to definitions derived by American Courts on
the basis of their own Constitutional provisions. In this regard, we
take a leaf from the caution provided by Lord Raddcliffe in
Adegbenro v. Akintola(23), when he said that-
“. . . it is in the end the wording of the Constitution
itself that is to be interpreted and applied, and this
wording can never be over-ridden by the extraneous
principles of other Constitutions which are not
explicitly incorporated in the formulas that have been
chosen as the frame of this Constitution.”

Strikingly, although the Appellant has faulted the Court

below for having referred to English dictionaries in coming up with
the definition of ‘hindered’, he has not offered any contrary
interpretation of that term. The authorities, that he has cited in
his

(862)
heads of argument, all describe what constitutes a breach of
‘freedom of conscience’ by using words which are either the same
as, or synonymous with the terms contained in the learned trial
Judge’s definition. The descriptive words contained in the
authorities cited by the Appellant are-‘hamper’ used in Everson
v. Board of Education(8); ‘constrain’ used in Sherbert v.
Verner(5); ‘impede’ used in Braunfeld v. Brown(4) and ‘inhibit’
used in School District of Abington Township v. Schempp(6).

It is our firm opinion that the Appellant has not established

that the underlined words, contained in the definition coined by
the learned trial Judge carry meanings which are different from
the words used in Everson v. Board of Education(8); Sherbert
v. Verner(5); Braunfeld v. Brown(4) and School District of
Abington Township v. Schempp(6).

Even assuming that the definition devised by the Court

below is different from the interpretations contained in the
American cases cited by the Appellant, we maintain the firm view
that it was not a misdirection for the learned trial Judge to refer to
English dictionaries when defining ‘hindered’. The foregoing view
is supported by a plethora of cases in which this Court has
referred to English dictionaries to define words. One such case is
the Anderson Mazoka(15) case, where we referred to the Concise
Oxford
(863)

Dictionary, 9th Edition, to define the word ‘determine’ as used in

Article 41(2) of the Constitution. We said in that case that-
“The question is; what mandate has this provision
given to this court? It is trite law that the primary rule
of interpretation is that words should be given their
ordinary grammatical and natural meaning. It is only
if there is ambiguity in the natural meaning of the
words and the intention of the legislature cannot be
ascertained from the words used by the legislature
that recourse can be had to the other principles of
interpretation. …”

Having referred to the definitions of ‘determine’ contained in

the Concise Oxford Dictionary, this Court proceeded to say the
following:
“We have no doubt in our minds that the meaning of
the word ‘determine’ in the context it is used in
Article 41(2) calls upon this court to find out or
establish precisely or decide whether a person was
validly elected as President of Zambia and/or whether
the applicable laws were followed.”

Accordingly, we hold that the learned trial Judge properly

directed himself when he defined ‘hindered’ on the basis of
definitions derived from English dictionaries.

Having ascertained the meaning of ‘hindered’, we must now

consider whether or not the learned trial Judge was on firm
ground when he dismissed the Appellant’s claim that the
Respondent had breached his freedom of conscience. We hold
that the trial Court

(864)

was indeed on terra firma. Even accepting the Appellant’s very

poignant argument that freedom of religious conscience can still
be indirectly – not necessarily purposely – impeded or even
effectually destroyed where the adherents of one religious faith
are confronted to abandon their religious convictions respecting a
day of rest via a measure whose natural or proximate or indirect
result is to disadvantage members of a particular faith alone, we
still hold the view that, in this case, the Respondent has not
infringed the Appellant’s freedom of conscience.

The foregoing holding is resolutely founded on the fact that

there is no evidence on the record of appeal to establish that the
Respondent has done anything to hinder the Appellant in the
enjoyment of his freedom of conscience. A careful scrutiny of the
record of appeal establishes that the Appellant does not dispute
the fact that the Respondent started holding its meetings on the
Sabbath way before he became its member. While the
Respondent was constituted in 1973, pursuant to the Law
Association of Zambia Act, Cap 31, the Appellant only became, its
member on 15th November, 1996, following his admission to the
Bar. According to the Appellant’s own evidence, he participated in
the Respondent’s meetings from 15th November, 1996 until 24th
May, 2003, when he converted to Adventism. Following his
conversion, he has faithfully observed the Sabbath. The Appellant
did not adduce any evidence whatsoever to prove that the
Respondent has in any way coerced

(865)

him to choose attending its meetings at the expense of observing

the Sabbath. He also did not tender any evidence to establish that
the Respondent has imposed or threatened to impose any
sanction against him for having been missing its meetings since
24thMay, 2003. What is effortlessly discernable from the
Appellant’s evidence and submissions is that since he voluntarily
converted from Catholicism to Adventism, he has been devotedly
observing the Sabbath. There is no evidence to establish that he
has been forced by the Respondent, even subtly, to abandon his
observance of the Sabbath. So the conduct of the Respondent
cannot be said to have had the effect of impeding the Appellant in
the observance of the Sabbath. What the Appellant has been
failing to do is to attend the Respondent’s meetings which are
held on the Sabbath. So in reality, in our view, since his
conversion from Catholicism to Adventism, the Appellant has
enjoyed his freedom of conscience without any hindrance from
the Respondent.
 A review of decided cases, on the subject of freedom of
conscience, establishes that the Appellant’s claim that the
Respondent has violated his freedom of conscience is
unsustainable. We will consider only two cases on this point,
namely, Sherbert v. Verner(5) and the Kachasu case(14). The
brief facts of Sherbert v. Verner(5) were that Adell Sherbert was
a spool tender in Spartanburg, South Carolina Textile Mill. She
worked on Monday through to Friday from 7pm to 3pm. She was a
member of

(866)

the SDA Church, which held that no work could be performed

between sundown on Friday, and sundown on Saturday. In due
course, Sherbert’s employers informed her that starting the next
day, to retain her job, she would need to report to mill every
Saturday. She continued to work only on Monday through to
Friday. In observance of her religious beliefs did not work on six
successive Saturdays. Her employer dismissed her.

Following her dismissal, Sherbert tried to find a job at three

other textile mills, but they too operated on Saturdays.
Consequently, she filed for State unemployment benefits. Under
South Carolina law, for a claimant to be eligible for benefits he or
she must have been “able to work… and available for work”. A
claimant was ineligible for benefits if he or she had “failed without
good cause … to accept available suitable work when offered… by
the employment office or the employer.” The benefits examiner in
charge of Sherbert’s claim turned her down on the ground that
she had failed, without good cause to accept “suitable work when
offered” by her employer.

Sherbert and her lawyers commenced an action in a South

Carolina State Court which ruled in favour of the employment
office. After the State Supreme Court affirmed that decision,
Sherbert’s lawyers asked the US Supreme Court to review the
case. The opinion of the Court was delivered by Justice Brenan.
The first

(867)

question that the Court considered was whether the

disqualification for benefits imposed any burden on the free
exercise of the Appellant’s religion. The Court considered that it
did.

Justice Brenan observed, inter alia, that-

“Here not only is it apparent that the Appellant’s

declared ineligibility for benefits derives solely from
the practice of her religion, but the pressure upon her
to forego that practice is unmistakable. The ruling
forces her to choose between following the precepts
of her religion and forfeiting benefits on the one
hand, and abandoning one of the precepts of her
religion in order accept work, on the other hand.
 Governmental imposition of such a choice puts the
same kind of burden upon the free exercise of religion
as would a fine imposed against the Appellant for her
Saturday worship. Nor may the South Carolina
Court’s construction of the statute be saved from
constitutional infirmity on the ground that
employment compensation benefits are not the
Appellant’s ‘right’ but merely a ‘privilege’. It is too
late in the day to doubt that the liberties of religion
and expression may be infringed by the denial of or
placing of conditions upon a benefit or privilege.
Significantly, South Carolina expressly saves the
Sunday worshiper from having to make the kind of
choice which we hold infringes the Sabbatarians
religious liberty.”

After citing Sherbert v. Verner(5), the Appellant contended

that the Respondent’s holding of its meetings on Sabbath has left

(868)

him with only two options, namely- (a) renouncing his faith, or (b)
abandoning his membership of the Respondent in order to
continue with his faith. We do not agree with the Appellant that
he has been put under the strain of choosing between the two
options. The evidence on the record of appeal plainly establishes
that the Appellant is free to continue being a member of the
Respondent even without ever attending its meetings. In fact this
is also evident from the fact that although he has not been
attending the Respondent’s meetings since 24 th May, 2003, the
Respondent has not imposed, or threatened to impose, any
sanction against him. There has never been any positive act or
threatened act on the part of the Respondent aimed at hindering
the Appellant’s enjoyment of his freedom of conscience. Unlike
Sherbert, in Sherbert v. Verner(5), the Appellant still remains a
member of the Respondent and continues to practice his law as
such even though he has not attended any of the Respondent’s
meetings, held on Saturdays, since he was admitted to the Bar.

Let us now examine the Kachasu(14) Case. The Appellant

argued that the Kachasu(14) case is distinguishable from the
instant case because, according to him, in the Kachasu(14) case,
the issue in contention was the constitutionality of a piece of
legislation while the instant case challenges the conduct of the
Respondent. With the greatest respect to the Appellant, we are of
the opinion that his argument is merely academic. In our view,
the significant

(869)

consideration is that in both cases the claims relate to the

violation of freedom of conscience as enshrined by constitutional
provisions couched in exactly the same words. Also the issues of
law raised are very similar.

The Kachasu(14) case was an application brought before the

High Court by Feliya Kachasu, a young girl aged between eleven
and twelve years, through her father, Paul Kachasu, as next
friend. The Applicant’s father was a Jehovah’s Witness. The
Applicant herself had been brought up in the religion of Jehovah’s
Witnesses and had been taught that it is against God’s law to
worship idols or to sing songs of praise or hymns to other than
Jehovah Himself. The Applicant and her father and many other
Jehovah’s Witness regarded the singing of the national anthem as
the singing of a hymn or prayer to someone other than Jehovah
God Himself.

On the 2nd September, 1966, the Education (Primary and

Secondary Schools) Regulations, 1966, was brought into
force. The Regulations only applied to Government and
Government aided schools. By regulation 25, pupils at these
schools were required to sing the national anthem and salute the
national flag on certain occasions. By regulation 31(1) (d), the
Head Teacher of a school was empowered to suspend any pupil
who willfully refused to sing the national anthem or to salute the
national flag when lawfully required to do so.

(870)

In October, 1966, the Applicant refused to sing the national

anthem and she was suspended from school. There followed
some interviews between the Applicant’s father and the school
authorities during which it was made clear to him that the
Applicant could not be readmitted to school unless she agreed to
comply with the regulations and sing the national anthem and
salute the national flag when required to do so.

Consequently, through her father, the Applicant filed a

Notice of Motion based, inter alia, on the ground that the
suspension constituted a hindrance in the enjoyment of her
freedom of conscience. Delivering his judgment, Blagden, CJ,
summarised his findings, of which the following are relevant to
the instant case:
1. “that the Applicant had suffered hindrance in the
enjoyment of her freedom of conscience in that she
had been coerced to sing the national anthem at
Buyantanshi School contrary to her religious
conscience; and that she had been suspended from
school and denied readmission thereto in
consequence of her refusing to sing the national
anthem or salute the national flag; and

2. that such hindrance, however, did not constitute a

contravention of her right to the enjoyment of
freedom of conscience, secured to her by section 21
of the Constitution, in as much as that hindrance was
reasonably justifiable in a democratic society and was
authorised by laws which were both reasonably
required in the interests of defence and for the
purpose of protecting the rights and

(871
)
 freedoms of other persons, and themselves
reasonably justifiable in a democratic society.”

Blagden, CJ, said that-

“In determining, therefore, whether there has been
any breach of the applicant's rights to her freedom of
conscience here, it is necessary to see first whether in
fact she has been, or is being, or is likely to be,
hindered in the enjoyment of her freedom of
conscience or religious thought. It is to be noted that
the operative word is “hindered”, not “prevented”.
Nor is there any qualification of the word “hindered”.
Even a slight degree of hindrance, therefore, will be
relevant and may constitute a contravention of
section 21.”(Emphasis by underlining ours).

Blagden, CJ, highlighted the practical meaning of the word

‘hindered’ as used in section 21(1) of the Constitution (which was
equivalent to the current Article 19(1) of the Constitution). In
arriving at the decision, that that the Applicant had been hindered
in the enjoyment of her freedom of conscience, Blagden, CJ
primarily based his conclusion on the fact that she had been
coerced to sing the national anthem contrary to her religious
conscience; and that she had been suspended from school
and denied readmission thereto in consequence of her
refusing to sing the national anthem or salute the national
flag. In fact Blagden, CJ, particularly said, at page 161 of his
judgment, that-

(872)
 “But in any case, in my view, the applicant was
hindered in the enjoyment of her freedom of
conscience the moment she was put under coercion to
sing the national anthem against her religious beliefs.
For at that moment she was not free to give
expression to her religious convictions….”(Emphasis by
underlining ours).

In his filed heads of argument, Counsel for the Respondent

has submitted that hindrance being the antithesis of freedom of
conscience, an infringement by the Respondent cannot be
established without showing to the Court that the Appellant’s
exercise of the freedom was affected by some constraint,
restriction, or from of coercion which he was subjected to by the
Respondent. That a positive act or overt act or threatened action
on the part of the Respondent is key to actionable infringement.
We entirely accept Counsel’s submissions.

On the evidence on record, we are of the considered view

that the Appellant did not prove that there had been any positive
act taken or threatened to be taken by the Respondent. The
evidence from the Appellant did not also establish that he had
been placed in a situation where he had to make extremely
painful and intensely burdensome choices of either being true to
his faith, or risk forfeiting his practice of the law, and his actual
membership with the Respondent, in the sense of Sherbert v.
Vernar(5).

(873)

Furthermore, as a matter of fact the Appellant has not been

denied his freedom of conscience. As already adjudged,
elsewhere in this judgment, since his conversion to Adventism, he
has remained absolutely free to give expression to his religious
convictions. In our view, what is manifest, from the evidence on
the record of appeal, is that what the Appellant has not been
enjoying is his freedom to participate in the meetings of the
Respondent and vie for elective offices in the Respondent.
Unfortunately for the Appellant, these freedoms are not
recognized and protected by our Constitution.

For the foregoing reasons, and on the authority of decisions

in Sherbert v. Verner(5) and the Kachasu(14) case, it is our
considered opinion that the Appellant’s claim that the Respondent
has violated his freedom of conscience, is unsustainable.

Accordingly, we hold that the Respondent has neither

directly nor indirectly hindered the Appellant in the enjoyment of
his freedom of conscience. Ground one must accordingly fail.

We now turn to considering grounds 2, 3, 4 and 5. These

grounds relate to the Appellant’s claim that he has been
discriminated against by the Respondent on account of his
religious creed as enshrined in Article 23(2) of the Constitution.
The broad question raised by the three grounds is whether or not
the Appellant has been discriminated against by the Respondent.
The

(874)

Appellant has argued that the Respondent’s customary timing of

its meetings during the Sabbath effectively discriminates against
him on the basis of his creed.

The learned trial Judge dismissed the Appellant’s claim of

discrimination on the ground that he did not adduce any evidence
to show how he has been treated differently by the Respondent.
The learned trial Judge also held that in the absence of evidence
that a similarly circumstanced member of the Respondent
complained about the day of holding meetings, and that their
complaint received more favourable treatment than that of the
Appellant, there can be no proper or fair basis to found the
allegation of discrimination. Lastly, the trial Court said that in any
case the relief sought by the Appellant would in fact amount to
sanctioning discrimination in favour of the Appellant, and against
the Respondent’s non-SDA members; in that meetings of the
Respondent would be held on any day other than that which SDA
members consider to be reserved for non-secular activities.
 We have taken time to judiciously examine the foregoing
holdings by the learned trial Judge. We hold the considered
opinion that in arriving at the said holdings, the Court below
properly construed Article 23(2) and (3) of the Constitution. For
the sake of clarity, we will reproduce both clause (2) and (3) of
Article 23, which are as follows:

(875)

23. (2) Subject to clauses (6), (7) and (8), a person

shall not be treated in a discriminatory manner by
any person acting by virtue of any written law or in
the performance of the functions of any public office
or any public authority.

(3) In this Article the expression “discriminatory”

means affording different treatment to different
persons attributable, wholly or mainly to their
respective descriptions by race, tribe, sex, place of
origin, marital status, political opinions, colour or
creed whereby persons of one such description are
subjected to disabilities or restrictions to which
persons of another such description are not made
subject or are accorded privileges or advantages
which are not accorded to persons of another such
description.”(Emphasis by underlining ours).

The question we must consider is - what constitutes

‘discrimination’ under Article 23(2)? The answer to this question is
not as elusive as the Appellant seems to have suggested in his
submissions. In our view, and contrary to the fervent contentions
by the Appellant that the Court below should have relied on the
USA Supreme Court’s decided cases in considering whether or not
he had been discriminated against, the interpretation of
‘discrimination’ is clearly spelt out in Article 23(3).

After examining Article 23(3) of the Constitution, we accept

Mr. Chenda’s argument that the definition of ‘discrimination’ calls
for a comparative consideration of persons belonging to at least
two

(876)

categories. This is what is similarly discernable from a number of

decided cases. To illustrate this point, in Edith Nawakwi v. The
Attorney-General(19), where the Plaintiff brought an action on
the ground, inter alia, that she had been and continued to be
unfairly discriminated against on the ground of sex, Musumali, J,
said the following:
“Be that as it may it is my very considered view that
the intentions of the framers of this Constitution
when they passed the Bill of Rights (Part III of the
Constitution) could never have been to discriminate
between males and females in the way the Passport
Office and its sister Department have been doing. ….
Forms A and D of the Passport Office have not been
issued, on the basis of any legal provision. And even
if they were so issued, that law would be
unconstitutional as it would be discriminatory
between mothers and fathers in matters relating to
their children’s inclusion in the mothers’ passports or
 getting passports or travel document, for no good
reason than the fact that one is a female and the
other a male.”(Emphasis by underlining ours).

Another decided case which demonstrates that a

consideration of ‘discrimination’ entails the existence of more
than one category of persons, is the Arthur Wina(18) case. The
brief facts of that case were that, at a press conference held at
State House on 1stNovember, 1990, the then Republican President
made a directive to the effect that henceforth the Government
owned newspaper, the Zambia Daily Mail and what he referred to
as (UNIP) Party

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newspapers, the Times of Zambia and the Sunday Times, should

cease to give coverage to statements made by members of the
Movement for Multi-Party Democracy (MMD) and, in the case of
the Times of Zambia and the Sunday Times, they should stop to
accept advertisements from the MMD. The President announced
that these newspapers were owned by the UNIP and its
Government and as such they were not supposed to give any
room for the opposition to criticise the policies, actions or
programmes of the UNIP Government. Aggrieved by this directive,
the Petitioners brought a Petition in the High Court, claiming,
inter alia, that the directive was discriminatory. Delivering his
judgment, Musumali, J, had the following to say-
 “The next issue arising from this finding is: did the
directive discriminate between the petitioners and
their members on the one hand and those who held
views similar to those held by the President on the
other hand? The answer again is in the affirmative.
The nature of the directive is such that it cannot
command any other interpretation even from those
really hostile to the petitioners. That discrimination
was against the petitioners and their followers and in
favour of the UNIP leaders and their
members.”(Emphasis by underlining ours).

Evidently, the Edith Nawakwi(19) and Arthur Wina(18) cases

consistently establish that discrimination can only exist in relation
to at least two categories of persons. To this effect, in Barry v.
Midland Bank Plc(24), the House of Lords said, at page 981, that

(878)

“Discrimination means treating like cases differently or,

as is claimed in the present case, treating unlike cases the
same.”

On the facts of the instant case, we are of the firm view that
the Appellant has not established that he has been discriminated
against by the Respondent. The fact that the Appellant has not
been attending the Respondent’s meetings, because such
meetings are held on the Sabbath, does not ipso facto mean that
he has been discriminated against. The burden of proof was on
him to establish that the Respondent holds its meetings on the
Sabbath for the purpose of, either intentionally or unintentionally,
affording the privilege of attending the said meetings to one or
more religious groups and denying that privilege to the Appellant
on the ground of his creed. It was essential for the Appellant to
prove that he is denied the privilege of attending the
Respondent’s meetings wholly or mainly because he is an
Adventist. It was also vital for him to establish that the other
category of the Respondent’s members is afforded the privilege of
attending its meetings wholly or mainly on the basis of their
creed. We do not think the Appellant proved the foregoing.

Instead the record of appeal clearly shows that the

Respondent did not fix the holding of its meetings on Saturday
with any religious grouping in mind. The Respondent’s decision to
start holding its meetings on Saturdays had no nexus to the
religious

(879)

beliefs of any of its members. Saturday was arrived at on the

basis of the convenience of the day to the majority of the
Respondent’s members. In fact, the evidence on record
establishes that when the Appellant joined the Respondent in
1996, he found the practice of holding meetings on Saturday. In
other words, it was because the Appellant changed his creed in
2003 that he has been failing to attend the Respondent’s
meetings.
 We, therefore, hold the strong opinion that there is no legal
basis upon which we can judiciously compel the Respondent to
change the day for holding its meetings. This is even more so
when one considers the fact that, paragraph 7 of the
Respondent’s Answer to the Petition, which paragraph was never
discredited by the Appellant, clearly establishes that Saturday
was set, by the Respondent, for the holding of its meetings, based
on the consent of the majority of its members, because it was the
most convenient day to the majority of them.

The Appellant took his argument further. He spiritedly

submitted that while Sabbath observance is perpetually enjoined
by God, and cannot, therefore, be abrogated by the SDA Church,
the Respondent has a choice of shifting its meeting days to other
known non-worship days, e.g. Monday to Thursday. He argued
that this is so because the holding of the Respondent’s meetings
on Saturdays was arrived at purely for the convenience of its
members. He

(880)

referred this Court to the case of Braunfied v. Brown(4) where

the US Supreme Court said that-
“if the purpose or effect of a law is to impede the
observance of one or all religions or is to discriminate
invidiously between religions, that law is
constitutionally invalid even though the burden may
 be characterised as being only indirect. But if the
State regulates conduct by enacting a general law
within its power, the purpose and effect of which is to
advance the State’s secular goals, the statute is valid
despite its indirect burden on religious observance
unless the State may accomplish its purpose by
means which do not impose such a burden .”

Indeed the indirect effect of the Respondent’s practice of

holding its meetings on Saturday has been that the Appellant fails
to attend such meetings on account of his observance of the
Sabbath. However, notwithstanding the said indirect burden, on
the Appellant’s observance of the Sabbath, we hold the
considered view that the facts of this case establish that the
Respondent cannot hold its meetings on any other day without
imposing a similar burden on the majority of its members. A
perusal of the record of appeal establishes that the Appellant did
not proffer any evidence to prove that the days, Monday to
Friday, would be convenient to all the members of the
Respondent. As already alluded to in this judgment, the majority
of the members of the Respondent chose Saturday as the most
convenient day for the conduct of the Respondent’s meetings. In
light of that fact, in our

(881)

view, instead of merely taking the easy route of suggesting

alternative days to the trial Court, the Appellant should have gone
a step further to prove that none of the members of the
Respondent would stand disadvantaged if it held its meetings on
any of the days he proposed. In his evidence, the only religious
groups that he talked about were Sunday worshippers and
Muslims who, according to him, worship on Friday. We, however,
take judicial notice that these are not the only religious groupings
that exist in Zambia. The Appellant has not, therefore, convinced
us that no religious group in Zambia conducts religious activities
on any of the days from Monday to Thursday. He has not
convinced us that ordering the Respondent to shift the holding of
its meetings from Saturday to any day, from Monday to Thursday,
will not impose a burden, similar to the one he is challenging, on
the majority of the Respondent’s members.

It follows from the foregoing, and we entirely agree with the

learned trial Judge, that compelling the Respondent to change its
day for holding meetings, from Saturday to a day from Monday to
Thursday, would amount to sanctioning discrimination in favour of
the Appellant, and against the Respondent’s non-SDA members;
in that activities and meetings would be held on any day other
than that which SDA members consider to be reserved for non-
secular activities. The practical effect of such a decision would be
to afford favourable treatment to the Appellant on the basis of his
creed

(882)
when such favourable treatment is not extended to the majority
of the Respondent’s members, who for various reasons, chose
Saturday as the most convenient date for the Respondent to hold
its meetings. In our view, it would be wrong, at law, for this Court
to order the Respondent to change the days of its meetings when
the Appellant’s evidence has not eliminated the possibility that
the religious liberties of other members of the Respondent may
be thereby abridged. In Sherbert v. Verner(5), the facts of which
we have already reproduced, Brennan, J said the following:

“In holding as we do, plainly we are not fostering the

‘establishment’ of the Seventh-day Adventist religion
in South Carolina. …Nor does the recognition of the
appellant’s right to unemployment benefits under the
State statute serve to abridge any other person’s
religious liberties. (Emphasis by underlining ours).

Taking a leaf from the foregoing statement by Brennan, J, we

hold that the recognition of the Appellant’s right to attend the
Respondent’s meetings and vie for elective positions in the
Respondent cannot be afforded to him at the peril of abridging
the religious liberties of any other member of the Respondent.

For the foregoing reasons, we hold that grounds 2, 3, 4 and

5, too, must equally fail.

(883)
 We, therefore, hold that on the totality of the issues, this
appeal lacks merit. We dismiss the appeal on all the five grounds.
Since this appeal has raised constitutional issues of remarkable
importance, we order each party to bear their own costs.

……….……………………..
L. P. CHIBESAKUNDA
ACTING CHIEF JUSTICE

……………………………….. …………………………………
M. LISIMBA F. LENGALENGA
Ag. SUPREME COURT JUDGE Ag. SUPREME COURT
JUDGE