Zambia has a dual legal system, with customary and statutory law running concurrently. In the case of conflict between the two, statutory law prevails. Where there is a lacuna in the law, recourse is had to the English common law and other specific English statutes.
The highest Court is the Supreme Court, ranking equally with the Constitutional Court. However, the Constitutional Court's jurisdiction is limited to constitutional matters only. The Supreme Court only hears special cases that raise novel issues on which the it needs to make a pronouncement.
Other courts are the Court of Appeal, the High Court, the Subordinate Court and the Local Court. The Small Claims Court is also part of the court structure. Its jurisdiction is to limited low value money claims.
The High Court is divided into the General List, the Commercial Court Division, the Family and Children's Court Division, the Industrial Relations Court Division and the newly established Economic and Financial Crimes Division. The General List hears criminal matters and any matters that do not fall withing the jurisdiction of the other specialised divisions.
Specialised tribunals or quasi-judicial panels are also part of the dispute resolution structures. Examples of these include the Lands Tribunal, the Capital Market Tribunal, the Tax Appeals Tribunal and the Competition and Consumer Protection Tribunal.
Dispute resolution (litigation)
The jurisdiction of the court determines the nature of the claims that can be heard. The Small Claims Court deal with claims for liquidated sums not exceeding ZMW 20, 000. Local courts generally deal with customary law. Lawyers are not allowed to represent clients in the Small Claims Court and in the Local Court. A decision of the Small Claims Court cannot be appealed but a request for review before a new panel may be made.
The Subordinate Court is a court of first instance and also an appellate court for appeals from the Local Court. Appeals from the Local Court are heard de novo (from the beginning) because the Local Court is not a court of record. The Subordinate Court hears both civil and criminal matters within its prescribed jurisdiction.
The High Court is also a court of first instance and an appellate court hearing appeals from the Subordinate Court. It hears both civil and criminal matters. It also hears Constitutional matters that relate to the Bill of Rights in the Constitution.
Appeals from the High Court are heard by the Court of Appeal, the Supreme Court or the Constitutional Court depending on the subject matter of the appeal. Appeals relating to the Bill of Rights are heard by the Supreme Court while appeals on any other matters provided for in the Constitution such as election petitions are heard by the Constitutional Court. Decisions of the Court of Appeal are appealed to the Supreme Court. A matter may only be appealed from the Court of Appeal to the Supreme Court if it concerns novel issues or points of law of public importance on which a pronouncement by the Supreme Court is required.
Appeals from specialised tribunals and quasi-judicial bodies are determined by the enabling legislation. For example, appeals from the Tax Appeals Tribunal are made to the Supreme Court while appeals from the Mining Licencing Committee are made to the High Court.
Dispute resolution (arbitration and other ADR)
Zambia has increasingly adopted the use of alternative dispute resolution ("ADR") as a means of resolving disputes between parties and recently established the Lusaka International Arbitration Centre.
The Arbitration Act, No. 19 of 2000 (the "Arbitration Act") governs both domestic and international arbitration. Zambia has domesticated the United Nations Commission on International Trade Law (UNCITRAL) Model Law and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Both local and foreign awards are recognisable and enforceable in Zambia.
The role of the courts in arbitration is merely complimentary to give effect to the arbitration process.
Zambia also has court annexed mediation in both the Subordinate Court and the High Court. A judge is at liberty to refer a matter to mediation in appropriate case. There is currently no legal framework for non-court annexed mediation. Parties can, nonetheless, contractually agree to resolve their dispute by mediation or other forms of ADR.
Enforcement of contracts
The general rule is that parties are bound by their agreements and courts will enforce agreements that are freely and voluntarily entered into. Another general rule, is that extrinsic evidence is not admissible; parties are bound by their agreements. An exception to this rule is where a party was induced to enter into a contract by fraud.
Agreements which are executed outside Zambia must be authenticated to be enforced by Zambian courts. Where the last signatory to a contract signs from Zambia, such contract or agreement is deemed to have been executed in Zambia and does not require authentication.
Contracts that are governed by a foreign law can still be enforced by the Courts in Zambia, as a general rule. An exception to this is where the subject matter of the contract is immovable property or land, in which case, Zambian law would apply, under the principle of lex situs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.