THE UNIVERSITY OF ZAMBIA

SCHOOL OF LAW-LLB IDE PROGRAMME

TEST 1

NAME FRANCIS MUFAMBI

COMPUTER NUMBER 23046112

MODULE LEGAL PROCESS LPU 2960

LECTURER MR. BRIAN MWANZA

DUE DATE 08TH JULY 2024

1. a. Rules of statutory interpretation helps the court to interpret and give proper
meaning to the legal questions arising. Amongst others, the rules include the literal
rule, the golden rule and the mischief rule. Under the literal rule the judge looks at
what the statute says rather than what it might mean. The literal rule says that, the
intention of Parliament is best found in the ordinary and natural meaning of the
words. In the English case of Duport Steers v Sirs (1980) Lord Diplock once noted
where the meaning of the statutory words is clear and unambiguous, it is not then for
the judges to invent fancied ambiguities as an excuse for failing to give its plain
meaning because they consider the consequences of doing so would be inexpedient or
even unjust or immoral. In Zambia the use of the literal rule was illustrated in the case
of Mutale v The Attorney General (1979) 139 the court had to interpret the phrase
‘specifying in detail’ where the constitution provided for an accused person to be
informed of the charges in detail. The court held that the phrase ‘specifying in detail’
entail giving the accused sufficient information about the charge so as to allow them
to make their representations effectively. In that case the court found that the arresting
authority had not given the accused enough information.

The second rule is the golden rule. The golden rule is a modification of the literal rule,
it states that if the literal meaning of the words leads to absurdity or repugnancy then
the court should look for another meaning of the words to avoid that complete absurd
result. This cannon of interpretation in Zambia was illustrated in the case of The
Attorney General and MMD v. Lewanika & 4 others S.C.J no 2 of 1994 wherein the
supreme court stated that whenever strict interpretation gives rise to an unreasonable
and unjust situation. It is our view that judges can and should use there good common
sense to remedy it, that is by reading words in if necessary so as to do what
Parliament would have done if they had the situation in mind. Lord Denning in
Seaford Court Estate v Asher noted that ‘The English Language is not an instrument
of mathematical precision’ and from this the court has a role to attach meaning to
statutes to avoid an absurdity.

The Mischief rule rule gives more discretion to the court, it looks for what was the
law before the statute was passed in order to discover the gap or mischief which the
statute was intended to cover. This is contained in the Heydon's Case (1854) where it
 is said that for the true interpretation of the statute four things have to be considered
what was the common law before the making of the act, what was the mischief which
the common law did not provide, what remedy has Parliament resolved and appointed
to cure the disease of the Commonwealth, the reason for the remedy; the office of the
judges is to make shall such construction and suppress the mischief and advance the
remedy.

The use of the mischief rule in Zambian courts was illustrated in the case of
Shamwana & others v The People (1982) ZR 122 wherein Justice Chirwa submitted
that "In order to properly interpret any statute it is necessary now as it was when Lord
Coke reported the Heydon's case to consider how the law construed was passed, what
mischief did the old not provide and the remedy provided by the statute to cure the
mischief.’ In this case the court had to interpret the meaning of the requirement to
have two witnesses to the Treason charge the accused were facing. The court chose to
depart from this.

b. In Zambia, the Common Law system, which originated from the United Kingdom,
has two distinctive features which include Stare Decisis and Case Law.

The Common Law system in Zambia relies heavily on the concept of stare Decisis or
precedent. Precedent refers to the legal principle that court decisions should be
followed when deciding similar cases in the future. Judges in Zambia are bound to
follow the decisions made by higher courts and are expected to apply consistent
reasoning when interpreting and applying the law. In this case it should be noted that
higher courts are not bound by the decisions of the lower courts. Also only the
Supreme Court can overturn its earlier decisions although it has been reluctant to do
so. This nurtures a degree of predictability and consistency in the Zambian
jurisprudence.

Another distinguishing feature of the Common Law system in Zambia is the

importance of case law. Case law denotes the body of law created through judicial
decisions. In Zambia, judges play a significant role in shaping the law through their
interpretations and applications of legal principles. The decisions made by the courts
 in Zambia, particularly the higher courts, serve as authoritative sources of law and are
relied upon by legal practitioners and judges when resolving legal disputes.

These two features of the Common Law in Zambia, namely precedent and case law,
contribute to the development of a robust and evolving legal system that is based on
legal principles established through previous court decisions (the principle of stare
decisis).

2. Abel Banda v The People (1986) ZR 105 (SC)

Abel Banda v The People is a significant case in the context of the legal process and
the development of law in Zambia. In this case, the Apex Court of Zambia made
several important rulings that had a lasting impact on the country's legal system.

From the outset the case dealt with the issue of the admissibility of confessions
obtained through coercion. The court held that confessions obtained through torture or
other forms of coercion are inadmissible as evidence in court. This ruling emphasized
the importance of protecting the rights of individuals and ensuring fair trial
procedures as enshrined in the Constitution in relation to Article 15 of the
Constitution of Zambia.

Secondly, the case addressed the issue of identification evidence. The court clarified
the standard of proof required for identification evidence to be considered reliable. It
established that identification evidence must be clear, positive, and credible, and that
the court should exercise caution in relying solely on such evidence in reaching a
verdict. This ruling facilitated that the legal process in Zambia is fair and just in line
with the Constitutional requirement for fairness of trial as espoused by Article 18 of
the Constitution of Zambia.

Additionally, the case emphasised the obligation of the prosecution to prove the guilt
of the accused beyond a reasonable doubt. The court emphasized the importance of
the presumption of innocence and the need for the prosecution to present sufficient
evidence to establish guilt. This ruling reinforced the principle of fairness in the legal
process and protected the rights of the accused.
Mulenga v Mumbi Ex parte Mhango (1975) ZR 78

This is considered a landmark case in the development of Zambian jurisprudence,

playing a significant role in shaping the legal landscape, the legal practice, legal
education and law reform in Zambia.

This case was key in setting a precedent in Zambian jurisprudence, creating a legal
rule or principle that future cases may follow particularly with regards to the
importance of principles of natural justice

The court's decision in this case may have influenced subsequent legislation
especially in the holding that an appellant is entitled to an order of certiorari whenever
they have been denied natural justice. It could have filled gaps in existing laws or
prompted lawmakers to address specific legal issues concerning the rights to be heard,
represented and to an impartial court.The outcome of this case have influenced
affected how similar cases are litigated in Zambia, impacting the legal process and
procedures in the country. It may have introduced new legal arguments or defenses
that can be raised in court.

Chibwe v Chibwe SCZ Judgement No.38 of 2000

The case of Chibwe v Chibwe is also a significant landmark case in the context of the
legal process and the development of law in Zambia particularly in relation to family
law. This case deals with the issue of matrimonial property rights and the rights of
spouses in the dissolution of a marriage in the context of customary law vis-à-vis the
common law.

The significance of this case lies in its ruling that departed from the usual customary
law concludion which deprived women married under the customary law of property
rights. In the present case the decision that women have equal rights to matrimonial
 property upon the dissolution of a marriage transformed the Zambian jurisprudence in
the process aligning with the country’s international obligation particularly on the
rights of women. The court emphasized that the cardinal principle of equality should
be applied in determining the division of assets and the distribution of property
between spouses.

This case contributed to the evolution of the legal framework surrounding

matrimonial property rights in Zambia, ensuring that women are not disadvantaged or
unfairly treated upon the dissolution of a marriage departing from past customs.

3. Two essential attributes of a good legal system are clarity and consistency as
highlighted by Professor Munalula in the book ‘The Legal Process in Zambia: Cases
and Materials’. These attributes are important for ensuring the efficacy and fairness of
the legal system to those it is meant to benefit. Without clarity or consistency, the
legal system can suffer from confusion, abuse, uncertainty, and potentially prejudicial
outcomes which is an antithesis of the foundation of law itself.

Clarity in this case refers to the clear and understandable nature of laws and legal
principles including the unambiguousness and understandable diction. A good legal
system should have laws that are written in a clear and concise manner, making it
easy for individuals to understand their rights and obligations. This will give an
opportunity even to those who are not trained in the legal fraternity to grasp what and
what should not be done. Clarity is central because it ensures that laws are accessible
to all people, regardless of their legal knowledge or background.

If the attribute misses in a legal system, it can give rise to unbridled confusion and
uncertainty which degenerates into a Hobbesian state of nature. Laws that are vague
or abstruse can result in inconsistent interpretations and conflicting judgments in the
process compromising the whole justice delivery system. This can hinder the proper
application of the law and create a lack of trust in the legal system. For example, if a
law regarding a crime is unclear, it opens doors for abuse and citizens will fail to
discern what constitutes a crime or what doesn’t. In retrospect, this can result in
injustices or lengthy and costly legal battles, as well as unfair outcomes for the
litigants.
Another essential quality of a good legal system is consistency which is usually
attained through judicial precedence. Consistency attained through the doctrine of
stare decisis refers to the uniform application of laws and legal principles in order to
ensure that similar cases are treated in a regular manner, providing predictability and
fairness. Consistency is important because it promotes equal treatment under the law
and prevents arbitrary decision-making.

Without consistency in a legal system, it can lead to unreasonableness and a lack of

trust in the justice delivery system. Inconsistent application of laws can result in
different outcomes for similar cases, depending on the judge or jurisdiction. This can
create a perception of bias and unfairness, undermining the credibility of the legal
system.

In conclusion, clarity and consistency are to ensure equal access to justice and
maintain public trust.